Weaver and Sherry
[2017] FCCA 724
•13 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEAVER & SHERRY | [2017] FCCA 724 |
| Catchwords: FAMILY LAW – Property – whether the husband should be responsible for a portion of the parties’ debts – spousal maintenance – whether the husband should pay spousal maintenance to the wife. |
| Legislation: Family Law Act 1975, ss.90MT(1)(a), 90MT(1)(b), 75(s), 79(2), 79(4) |
| Cases cited: Bevan &Bevan [2013] FamCAFC 116 Stanford v Stanford (2012) FLC 93-495 |
| Applicant: | MS WEAVER |
| Respondent: | MR SHERRY |
| File Number: | DGC 692 of 2013 |
| Judgment of: | Judge Small |
| Hearing dates: | 23 June 2016, 24 June 2016, 1 September 2016 |
| Date of Last Submission: | 1 September 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 13 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
ORDERS
The wife shall retain for her own benefit and use absolutely the Toyota (omitted) motor vehicle registration number (omitted).
The husband shall retain for his own benefit and use absolutely the insurance monies received by him for the Holden (omitted) motor vehicle registration number (omitted).
The wife shall be liable for, and shall forever indemnify the husband against liability for the following debts:
(a)$1,799.50 of the debt owed to (omitted) Real Estate for rental of business premises at Property M;
(b)$1,593.55 of the debt owed to Sensis for business advertising expenses;
(c)$429.21 of the debt owed to (omitted) for business printing expenses;
(d)$316.25 of the debt owed to (omitted) for business advertising expenses;
(e)$247.50 of the debt owed to (omitted) magazine for business advertising expenses;
(f)$176.49 of the debt claimed by (omitted) as agents for Tru Energy for business premises utilities accounts;
(g)$15,082.25 of the debt she owes to Centrelink for overpayments;
(h)$50.00 of the debt she owes to (omitted) for preparation of her 2010 tax return;
(i)$1,129.23 of the debt owed to RACV insurance for damage to a third party vehicle;
(j)$131.09 of the debt claimed by Dun & Bradstreet as agents for Simply Energy for utilities expenses incurred at the premises at (omitted);
(k)all Civic Compliance debts in her name;
(l)$2,908.25 of the husband’s outstanding debt to the Australian Taxation Office; and
(m)any other debt in her name.
The husband shall be liable for, and shall forever indemnify the wife against liability for the following debts:
(a)$5,398.50 of the debt owed to (omitted) Real Estate for rental of business premises at Property M;
(b)$4,780.65 of the debt owed to owed to Sensis for business advertising expenses;
(c)$1,287.63 of the debt owed to (omitted) for business printing expenses;
(d)$948.75 of the debt owed to (omitted) for business advertising expenses;
(e)$742.50 of the debt owed to (omitted) magazine for business advertising expenses;
(f)$529.47 of the debt claimed by (omitted) as agents for Tru Energy for business premises utilities accounts;
(g)$45,246.75 of the debt owed by the wife to Centrelink for overpayments;
(h)$150 of the debt owed to (omitted) for preparation of the wife’s 2010 tax return;
(i)$3,387.69 of the debt owed to RACV insurance for damage to a third party vehicle;
(j)$393.26 of the debt claimed by Dun & Bradstreet as agents for Simply Energy for utilities expenses incurred at the premises at (omitted);
(k)$8,724.75 of his debt to the Australian Taxation Office; and
(l)any other debt in his name.
In accordance with s.90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the husband Mr Sherry (member no. (omitted)) in the (omitted) Superannuation Fund (“the (omitted) Fund”), the wife will be entitled to be paid a percentage calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base percentage of 100% (one hundred percent) and there will be a corresponding reduction in the entitlement of the husband.
The trustee of the (omitted) Fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
The husband is hereby restrained by himself his servants and agents from making any binding death benefit nomination to the trustee of the (omitted) Fund in favour of any person who is an eligible beneficiary within the meaning of Regulation 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the wife of the splitting order made in paragraph 5 hereof.
Paragraphs 5 and 6 of these Orders bind the trustee of the (omitted) Fund when these paragraphs take effect from the operative time, being the fourth business day after the date these Orders are served upon the trustee.
The wife and the husband shall do all such things and execute all such documents as are necessary to facilitate the rollover by the trustee of the (omitted) Fund of the husband’s entitlements pursuant to paragraph 10 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the wife as soon as that is practicably possible after the operative time.
In accordance with s.90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in the (omitted) Superannuation Fund (“the (omitted) Fund”), the wife will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount of $21,250 (twenty one thousand two hundred and fifty dollars) and there will be a corresponding reduction in the entitlement of the husband.
The trustee of the (omitted) Fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
The husband is hereby restrained by himself his servants and agents from making any binding death benefit nomination to the trustee of the (omitted) Fund in favour of any person who is an eligible beneficiary within the meaning of Regulation 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the wife of the splitting order made in paragraph 10 hereof.
Paragraphs 10 and 11 of these Orders bind the trustee of the (omitted) Fund when these paragraphs take effect from the operative time, being the fourth business day after the date these Orders are served upon the trustee.
The wife and the husband shall do all such things and execute all such documents as are necessary to facilitate the rollover by the trustee of the (omitted) Fund of the husband’s entitlements pursuant to paragraph 10 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the wife as soon as that is practicably possible after the operative time.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders.
(b)monies standing to the credit of the parties in any joint bank account are to be divided between the parties in the proportion of 75 per cent to the Wife and 25 per cent to the Husband;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and
(f)each party forgoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.
IT IS NOTED that publication of this judgment under the pseudonym Weaver & Sherry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MORWELL |
DGC 692 of 2013
| MS WEAVER |
Applicant
And
| MR SHERRY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property and spousal maintenance proceedings arising from the breakdown in the marriage between Ms Weaver (“Ms Weaver” or “the wife”) and Mr Sherry (“Mr Sherry” or “the husband”).
There are four children of the marriage: W born (omitted) 2001, X born (omitted) 2003, and twins Y and Z born (omitted) 2010. The children live with their mother.
There are no assets of the marriage left – there is only debt.
Ms Weaver claims that she has been left with the parties’ debts and that Mr Sherry has effectively “walked away” from his responsibilities in that regard. The debt, and the nature of the debt, has meant that Ms Weaver has been unable to return to live in (country omitted), her country of origin, and where the Court has granted her permission to relocate with the children.
The issues in these proceedings, as in all property proceedings under the Family Law Act 1975 (“the Act”), are as follows:
A. Is it just and equitable in all the circumstances to alter the property interests of the parties?
B. If it is just and equitable what are the property interests of the parties and what is their value?
C. If it is just and equitable to make orders altering the parties’ property interests, what were the contributions of the parties to the acquisition, maintenance and improvement of their property?
D. Should the contribution-based entitlements of the parties be adjusted by reason of the matters set out in s.75(2) of the Act?
E. In light of the above findings, what orders ought to be made to effect a just and equitable settlement between the parties?
Background
Ms Weaver was born on (omitted) 1970 and is currently 46 years old. She is unemployed as her (occupation omitted) experience has lapsed, and is in receipt of Centrelink benefits.
Mr Sherry was born on (omitted) 1971 and is currently 46 years old. He is (occupation omitted) and has worked for a number of companies in that capacity. He is currently employed full time.
The parties began living together in 1998 and were married on (omitted) 2000. As already stated, they have four children currently ranging in age from 6 to 15 years.
The parties separated for two years in 2004 before reconciling. They separated finally in June 2011 and were divorced on 1 May 2013.
Mr Sherry lives with his partner in a property owned by her in Property E and to whose mortgage loan he makes contribution payments.
Ms Weaver lives with the children in rented accommodation in (omitted).
Procedural History
The proceedings were begun when Ms Weaver filed an Initiating Application on 29 May 2014.
The matter first came before the Court on 5 August 2014 before Judge Phipps in His Honour’s duty list at Dandenong. On that date, Judge Phipps ordered the Wife to file further material regarding her plans to relocate to (country omitted), and dismissed the interim spousal maintenance Application filed by the Wife.
The matter then returned before Judge Phipps for Interim Hearing on 10 October 2014. On that date, His Honour adjourned the matter to the Gippsland circuit at Morwell and set the matter down for a Conciliation Conference on 23 October 2014. Judge Phipps also made parenting Orders allowing the wife to relocate to (country omitted) with the children.
On 23 October 2014 the parties appeared before Registrar Lethbridge for a Conciliation Conference but no agreement was reached.
The matter was then heard before Judge Phipps in the duty list in the Morwell sittings of the Gippsland circuit on 17 November 2014. On this date, His Honour made final parenting Orders and set the property proceedings down for Final Hearing in the Gippsland Circuit at Morwell in the March 2015 sittings.
On 23 March 2015, the matter returned again before Judge Phipps at Morwell. On this date, Judge Phipps again set the matter down for trial in the June 2015 circuit at Morwell.
On 18 June 2015, the parties appeared before me for the first time at Morwell for final hearing. However, the matter was unable to be reached and did not proceed on that day. I made Orders regarding the filing of material regarding the wife’s Centrelink Debt and adjourned the matter to the September sittings of the Court at Morwell.
On 22 September 2015, the parties appeared again before me at Morwell for final hearing and again the matter was not reached.
However, I was able to hear some evidence about the expenses incurred before and after the birth of the twins, and I ordered that the Husband pay fifty percent of those expenses. I also made orders restraining the husband from disposing of any of his superannuation entitlements or other assets.
On 22 February 2016 the parties appeared before me for mention and the matter was adjourned to the June 2016 circuit.
The final hearing of the matter began before me on 23 June 2016 and I heard evidence on that day and the next, 24 June 2016. However, the matter being incomplete at the end of the second day, it was adjourned part heard to the August-September sittings of the court at Morwell and was finally completed on 1 September 2016.
Both parties appeared in person at the trial and they were the only witnesses called to give evidence. Each was cross-examined by the other.
I reserved my decision at the end of trial.
Issues and Evidence
A. Is it just and equitable in all the circumstances to alter the property interests of the parties?
This question is mandated by s.79(2) of the Act which states that the Court may not make orders altering property interests between parties unless it is satisfied that, in all the circumstances, it is just and equitable to do so.
In Stanford v Stanford[1], the High Court said the following at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.
[1] Stanford v Stanford (2012) FLC 93-495
In Bevan & Bevan the Full Court said that the circumstances described in the above passage of the Stanford judgment “encapsulate the vast majority of cases”[2] .
[2] Bevan &Bevan [2013] FamCAFC 116 paragraph 70
In this case the parties were engaged in a relationship and marriage of some 13 years’ duration. They acquired property together (and I note here that debt is a form of property) and are now separated. Therefore there is not and will not be common use of their property in the future.
As there is nothing in this case to distinguish it from “the vast majority of cases” other than the fact that we are dealing with liabilities rather than assets, I find that it is just and equitable in all the circumstances under s.79(2) to consider making orders for an alteration of the parties’ property interests in this case.
B. If it is just and equitable what are the property interests of the parties and what is their value?
This has been a particularly difficult matter to ascertain in this case, because the figures stated in each of the parties’ several affidavits seem to be quite fluid and at times contradictory, and there is a major dispute between the parties about who is responsible for certain liabilities.
The wife filed six affidavits and one sworn Financial Statement during the proceedings. Her trial affidavit sworn 31 May and filed 2 June 2016 consisted of a 55 page affidavit and 284 pages of annexures.
While there appeared to be some system in the way she constructed her affidavits, the evidence contained in them was quite chaotic and difficult to tease out, even taking into account Ms Weaver’s self-represented status and her consequent lack of forensics skills.
This is not a criticism of Ms Weaver, who came to Court thoroughly prepared for trial, but merely an observation which emphasises the difficulties self-represented litigants have in preparing the written documentation required by the Court in property matters.
Ironically, her opening statement at trial was much more cogent in putting her case than any of the affidavit material she had filed.
The husband filed three affidavits and two sworn Financial Statements, his last affidavit having been filed with the leave of the Court on 10 June 2015 and his “updated” Financial Statement being filed on 12 June 2015. When the matter finally came on for trial in June 2016, Mr Sherry told the Court that nothing had changed in the interim in relation to his financial situation.
Gleaning the evidence from the wife’s affidavits, from the husband’s affidavit sworn on 11 June 2015 and filed 12 June 2015, and from his affidavit sworn and filed on 10 June 2016, and from the oral evidence presented at trial, I believe the property interests of the parties to be as follows:
Assets Owner Value Toyota (omitted) Wife $1000
Holden (omitted) insurance proceeds Husband $2835.25 (omitted) Wife No value Income protection entitlements Husband $19,965 TOTAL non-superannuation assets $23,800 Liabilities[3]
Owner
Value
Various debts to energy providers, real estate agents, service providers, an insurance company, and various fines Joint (according to the wife)
Wife (according to the husband)$31,159.84
Centrelink debt Joint (according to the wife)
Wife (according to the husband)$60,329.00
TOTAL Liabilities $91,488.84 Superannuation Wife Nil
Husband $115,000
Total superannuation $115,000 [3] The Trial Affidavit of the wife sworn 30 May 2016 and filed 2 June 2016 paragraphs 9, 15 and 17.
The assets of the parties
No evidence has been provided to the Court in relation to the value of the wife’s Toyota (omitted) vehicle save for an assertion in Ms Weaver’s affidavit material that it is now only worth $1,000.
She was not questioned about that matter at trial and in those circumstances I accept the value of that vehicle as being $1,000.
Mr Sherry’s final affidavit related to his Holden (omitted) motor vehicle and stated that that vehicle was written off in "a rollover accident on 17 September 2015, with an insurance payout of $2835.25”. His affidavit annexed a letter from his insurer confirming that transaction.
I therefore accept that figure as the value of the vehicle for the purposes of these proceedings.
Similarly, there was little evidence adduced about the parties’ household contents, save that it was Ms Weaver’s evidence at trial that she had had to dispose of any chattels she had taken at separation because they had become broken and unusable.
In her affidavit material, she alleges that Mr Sherry retains certain equipment from her (occupation omitted) employment, but there is no further evidence in relation to that and it was not addressed at trial.
In those circumstances there is not enough evidence for me to value the household contents of either party and I will therefore not attribute any value to them.
It is Mr Sherry’s evidence that he thinks that (omitted) is a viable business and that it continues to exist. However, apart from him providing a printout of a webpage for that business, there is no evidence before the Court that the business is currently trading or that any income is currently received from it.
(omitted) was a business Ms Weaver set up in 2011. Its purpose was to (business omitted). It is the wife’s evidence that the business was conducted online, but that it never flourished and she derived no income from it.
However, profit and loss statements for “Ms Weaver trading as (business omitted)”, which are annexed to Ms Weaver’s trial affidavit, show that in the 2011 – 2012 financial year, the business made a profit of $7721 on a gross income of $38,894.
In 2012 – 2013 those documents show that the business made a profit of $7255 on a gross income of $17,371.
I accept Ms Weaver’s clear evidence that she has been struggling financially since moving to her current location in 2013, and that because of geographical and practical issues, she does not currently operate that business and has not done so for some years.
In those circumstances I am not prepared to attribute a value to it for the purpose of these proceedings.
In relation to Mr Sherry’s income protection insurance, it was his evidence at trial that “it’s possible” that he had drawn money from that fund in 2004. He said he had withdrawn the funds because he had left the particular industry in which they had been accrued.
He was then shown a document from Protect Severance Scheme showing a claim/withdrawal of $3100 on 29 October 2004 and another of $4000 on 15 May 2006.
Mr Sherry accepted that he had made those withdrawals and it was his evidence that he had applied them “for the family use”. However, he was unable to provide any evidence to the Court of those monies having been placed in joint accounts, nor any evidence about how those monies were used.
Indeed, when asked how those monies were applied to joint purposes Mr Sherry said:
Well, from – I recall it going into paying our debts and I think it was used – I can’t recall exactly where the money was used.
He was unable to provide any further detail about those funds other than to say that Ms Weaver had been aware that they were being withdrawn.
It was Ms Weaver’s evidence that those two withdrawals were not reflected in deposits into the parties’ joint accounts. That evidence was not challenged at trial.
When asked whether the total amount he had withdrawn had been $11,000, Mr Sherry indicated that he would be unable to say without conducting his own investigations. I note that the subpoenaed documents which would have provided that information had been available to Mr Sherry for inspection for the previous 12 months.
In those circumstances I find, on the balance of probabilities, that Mr Sherry withdrew $7100 from his income protection account during the marriage and that he used those funds for his own benefit.
I will take that fact into account when I consider the financial resources available to Mr Sherry.
The property at Property E is registered in the name of Ms D, Mr Sherry’s de facto wife. Any monies Mr Sherry might have invested in that property are post-separation investments and therefore any interest he has in the property has been acquired since the parties separated.
His interest in that property, if any, is therefore not a marital asset to be considered in these proceedings.
The debts of the parties
What is very clear from the evidence is that the debts of the marriage far outweigh its assets, and the real issue in these proceedings is how that debt should be apportioned between the parties.
In relation to the Centrelink debt, Ms Weaver annexed to her trial affidavit a letter from Centrelink dated 24 November 2011, and the first paragraph of that letter reads as follows:
Dear Mrs Sherry
As per our phone conversation on 24 November 2011, I am an Authorised Review Officer, an independent senior officer authorised to review decisions made by Centrelink. I have reviewed the decision made on 20 July 2011 to cancel your Parenting Payment Single due to being considered a member of a couple from 10 November 2004 and not living separate and apart from Mr Sherry, and subsequently ask you to repay a $39,437.91 debt of Parenting Payment Single for the period 10 November 2004 to 5 July 2011.
It is clear from other documents provided by way of annexure to that affidavit that at the time the Parenting Payment Single debt of $39,437.91 was raised in mid-2011, Ms Weaver already had outstanding debts to Centrelink of $27,528.16. That is, during the relationship and marriage the sum of $66,966.07 had been overpaid to Ms Weaver. Some of those monies had been repaid, and the debt at 11 June 2015 was $60,329.54. I find therefore that the current debt to Centrelink is a joint debt of the marriage having been incurred during the marriage, and both parties having had the benefit of those overpayments.
It is the evidence of the wife that the following debts are referrable to the business known as “(omitted)”, a (omitted) business which the parties conducted during the marriage:
·$7198.07 owed to (omitted) Real Estate for rental of business premises;
·$6374.21 owed to Sensis for advertising for the business;
·$1716.85 owed to (omitted) for printing for the business;
·$1265 owed to (omitted) for advertising for the business;
·$990 owed to (omitted) magazine for advertising;
·$705.96 claimed to (omitted) as agents for Tru Energy for business premises utilities accounts; and
·Those sums amount to $18,250.09.
Ms Weaver also claims the following as joint debts:
·$444.35 claimed by (omitted) as agents for Simply Energy for utilities accounts for the (omitted) property;
·$200 owed to “(omitted)” for preparation of her tax return;
·$4317.40 owed to unspecified creditors for unspecified expenses;
·$4516 owed to RACV Insurance for damage caused to another vehicle when the parties’ vehicle was uninsured;
·$3432 owed to Civic Compliance for unpaid fines; and
Those sums amount to $12,909.75.
Mr Sherry acknowledged that the (business omitted) debts are jointly owed at the commencement of the trial, but later, while giving evidence, stated that he thought those debts should remain with Ms Weaver.
In those circumstances I find, on the evidence set out below and as a matter of fact, that those debts were incurred during the marriage in a business operated jointly by the parties, and are therefore the joint liability of the parties.
Mr Sherry says that the remainder of the above debts specified by Ms Weaver were incurred after separation in mid-2011 and are therefore the sole responsibility of Ms Weaver.
However, when asked at trial whether he believed that the debts of the marriage ought to be “distributed evenly”, Mr Sherry replied, “if they were debts incurred in the marriage they should be distributed evenly”.
Annexed to Ms Weaver’s trial affidavit are scores of documents which appear to relate to the $12,909.75 which is in dispute in these proceedings.
In relation to the debt owed to Simply Energy for the (omitted) property occupied by the parties, Ms Weaver annexes a letter, addressed to her and dated 17 March 2011, from Dun & Bradstreet Debt Collection Services stating that her outstanding account to Simply Energy on that date, and relating to the (omitted) property, was $524.35.
However, I could find no supporting documentation for a debt owed to (omitted) on behalf of Simply Energy in the sum of $444 as stated in Ms Weaver’s trial affidavit.
Nevertheless, clearly there were outstanding accounts owed to Simply Energy from the period prior to separation in 2011, and therefore the evidenced debt of $524.35 will be considered a joint liability for the purpose of these proceedings.
I note that at trial Mr Sherry accepted that the utilities account debt from the (omitted) property was a shared debt.
There is a letter from (omitted) dated 30 November 2010 which states that Ms Weaver owes that business $200 for the preparation of her 2010 individual taxation return.
As that debt was incurred during the marriage it is a debt for which the parties are jointly liable.
I could find no supporting evidence either in documentary form or in the oral evidence given at trial for Ms Weaver’s assertion that there is a joint debt of the parties in the sum of $4317.40. I will therefore not make any orders in relation to that sum. If such debts exist, they will remain with Ms Weaver.
Also annexed to Ms Weaver’s trial affidavit are several documents from “(omitted)” in relation to her debt to RACV Insurance.
What is clear from those documents is that the original debt owed to RACV Insurance was in the sum of $4516.93, and that that debt was incurred before the parties separated in mid-2011. Ms Weaver has been paying that debt off at the rate of $20 per fortnight.
The evidence adduced at trial was that the insurance premium on the parties’ vehicle was being debited from the parties’ joint account, but that those payments had fallen into arrears at the time of an accident which caused damage to a third-party vehicle.
In those circumstances I find that RACV Insurance debt is a debt of the marriage and therefore that the parties are jointly liable for it.
Annexed to Ms Weaver’s trial affidavit there is a document from the Magistrates’ Court Victoria Infringements Court which sets out 13 infringements, all relating to traffic and parking fines incurred by Ms Weaver for offences dating between 6 April 2013 and 10 October 2014. The total sum owed is $3432.30.
As the parties separated in mid-2011, the fines were incurred after the marriage, and therefore remain the sole liability of Ms Weaver.
So, in summary, the joint debts of the parties are:
·$7198.07 owed to (omitted) Real Estate for rental of business premises;
·$6374.21 owed to Sensis for advertising for the business;
·$1716.85 owed to (omitted) for printing for the business;
·$1265 owed to (omitted) for advertising for the business;
·$990 owed to (omitted) magazine for advertising;
·$705.96 claimed to (omitted) as agents for Tru Energy for business premises utilities accounts;
·$60,329 owed to Centrelink;
·$200 owed to (omitted);
·$4516.93 owed to RACV insurance;
·$524.35 owed to Simply Energy.
The total of the joint debts to be apportioned at this stage is therefore $83,820.37.
At trial, Mr Sherry indicated that he was not seeking to have his taxation debt which arose from his business (omitted) considered a joint debt in these proceedings. However, as that debt relates to a business conducted during the marriage, it does not appear to me just and equitable that he should have to bear it alone.
In those circumstances I will add the sum of $11,663 to the joint liabilities of the parties, bringing the joint liabilities to $95,483 in round figures.
Superannuation interests
In relation to the husband’s superannuation, the evidence is not at all clear, partly because it would appear that Mr Sherry has had multiple superannuation accounts in his 28 years of working life, and partly because the parties were both self-represented.
Ms Weaver’s style of questioning at trial, which moved very quickly between topics and back again, and was somewhat chaotic, meant that it was difficult to understand exactly what she was asking Mr Sherry at times, let alone to ascertain whether those questions were relevant.
Nevertheless, the evidence about Mr Sherry’s superannuation entitlements, as far as I can glean it from the affidavits and oral evidence given at trial, follows.
On 10 March 2015 the wife filed an “Affidavit of single expert witness”[4] sworn by Mr G (“Mr G”) on 5 March 2015. Annexed to that affidavit was a report.
[4] I note that Mr G was actually Ms Weaver's witness and not a single expert as the court usually understands that term.
Mr G is an accountant, who holds a Bachelor of Business degree in accounting. However, Mr G does not annexe to his affidavit any statement of his full qualifications or his professional experience.
I here set out the substance of his report in full.
I have been asked by Ms Weaver (sic) Weaver to calculate the approximate amount of superannuation that Mr Sherry would have in his superannuation account.
I have been provided a copy of his resume which indicates his annual salary for the various positions he has held over the years.
I have calculated the average return on his fund by taking the average of the two funds listed below.
They have existed for more than 22 years in which compulsory superannuation was introduce (sic) and even allowing for the down turn during the Global Financial Crisis on a balanced fund the average is 9.12%.
– fund – reviews/(omitted) – superannuation – fund – review – ratings/#(omitted) Superannuation Rating and Reviews 8.70%
I have applied the appropriate contribution rate that would have been required to be contributed over the different years since the inception of compulsory superannuation.
I have also applied the 15% tax on contributions and earnings that would have been taken from his superannuation. The tax on the earnings may have been less than 15% due to superannuation funds getting franking credits from investments in shares which in turn would increase his balance.
Allowing for all of the above the calculation comes out that Mr Sherry would have just over $244,000 in superannuation.
Mr G’s report annexes a spreadsheet for the period September 1992 to June 2014 which sets out his calculations at quarterly intervals over that period under the following headings:
Date Salary Cont Rate % Amount Earnings Balance contributed
The spreadsheet runs for two portrait-oriented pages and is clearly the result of a considerable amount of work, as Mr Sherry’s salary level and superannuation contribution rate varied significantly over that period according to the annexed resumè.
Mr G was not called for cross-examination at trial.
In that regard it is noteworthy that Mr Sherry has not been represented since shortly after Mr G filed his affidavit.
It was Mr Sherry’s evidence that his total superannuation entitlements, at the time he filed his last sworn financial statement in June 2015, amounted to $92,695 in total.
When asked for that figure at the time of trial, he said, “Estimation only, probably, I would think about 115, 120 thousand”.
The following exchange then took place:
Ms Weaver: So you’re saying you only have $120,000 in super now, after 28 years of working?
Mr Sherry: As an estimate, yes.
Ms Weaver: Do you think that’s rather low for the level of income you have earned?
Mr Sherry: Well, yes. This is why I rolled everything over into one account because I had up to eight accounts chewing up fees and not earning much.
[…]
Ms Weaver: So did you move any other super around that you haven’t disclosed?
Mr Sherry: No. All my superannuation funds are registered with the ATO, through the accounts.
Her Honour: […] Let me get this clear. You say that you have now two superannuation funds with (omitted)?
Mr Sherry: Yes your honour. (And) my current one with (omitted) Fund.
Her Honour: You say on your oath they are the only ones you have?
Mr Sherry: Yes your honour.
Later in the proceedings there was the following exchange between the bench and Mr Sherry:
Her Honour: […] Now, I am going to ask you a very simple question. Between the date that you started living with Ms Weaver and now, have you taken out any of your superannuation?
Mr Sherry: No, your honour.
Her Honour: No. None?
Mr Sherry: None.
Her Honour: Except for the two and a half thousand dollars a year from (omitted) for your insurance[5]?
Mr Sherry: Yes, your honour.
Her Honour: Yes. And that’s since 2009?
[5] Mr Sherry had previously given evidence that he invested in an income protection and life insurance policy whose premiums came from his (omitted) superannuation entitlements.
Mr Sherry: Yes.
And later:
Her Honour: Okay. Now – and your – and it is your evidence, Mr Sherry, that you have not removed any funds from any superannuation account since the day that you started living with Ms Weaver?
Mr Sherry: That’s correct, your Honour. Everything has been preserved benefits so I can’t touch it.
Her Honour: And do you have any evidence to contradict that Ms Weaver?
Ms Weaver: Not currently, your Honour.
In other words, although Ms Weaver genuinely believes that Mr Sherry has hidden funds in superannuation entitlements, she has no admissible evidence to put before the Court to support that belief.
In his affidavit sworn 11 and filed 12 June 2015, Mr Sherry deposed that he had asked the two superannuation funds in which he currently says he has entitlements, those being (omitted) (in which he has two accounts) and (omitted) Fund, to calculate the value of his superannuation entitlements at various dates during the parties’ relationship, including the date of cohabitation, the date of final separation, and the present value.
Mr Sherry subsequently provided no such evidence to the Court either in affidavit form or by way of tendering documents at trial. He simply gave oral evidence at trial that all of his previous superannuation had been rolled over into either his current (omitted) or (omitted) Fund accounts.
It was his evidence that he did not have the statements for those accounts because: “It’s online. They don’t send out paper copies anymore”.
When I challenged him that one could print out online statements, Mr Sherry simply said that he was not aware that he was required to bring those statements to Court, despite the fact that I had told him on the first day of trial, some two months previously, that he would need to bring with him all evidence about matters that were in dispute.
He was adamant at trial that he did not have “any hidden superannuation funds”. He said that he had not spoken to Mr G and did not know where he had obtained his figures, although Mr G’s affidavit annexes Mr Sherry’s own resumè, which states what his salary had been at varying times and in varying positions between August 1991 and “current”. It was clear at trial that Mr Sherry had simply ignored Mr G’s evidence.
I note, however, that Mr Sherry was not asked at trial to adopt as his own the resumè used by Mr G to make his calculations.
When all of the above evidence is taken together, I consider Mr G’s calculations to be more in the nature of speculation than hard evidence as to Mr Sherry’s superannuation entitlements.
Ms Weaver informed the Court that she had sent a Form 6 request for information about Mr Sherry’s superannuation entitlements to (omitted), (omitted) Super, (omitted) Super, (omitted) Super and (omitted) Super, but that only (omitted) and (omitted) Super had responded. I can find nothing in annexures to affidavits or tendered documents that refers to Mr Sherry having current superannuation benefits in (omitted) or (omitted) Super superannuation funds.
However, annexed to Ms Weaver’s trial affidavit is a letter from (omitted) to Mr Sherry’s previous lawyers dated 10 June 2015 which states that at that date Mr Sherry had $62,826.06 in one account and $1,566.15 in another.
Another document annexed to the same affidavit states that at 30 June 2014, Mr Sherry had $20,477.82 in his (omitted) Fund account.
Although there does not appear to be any current documentary evidence about any further entitlements, I am satisfied that by the date of trial in June 2016, Mr Sherry had the entitlements he stated, which according to his evidence was about $115,000 in total.
It is Ms Weaver’s evidence, supported by the original statement from (omitted) Super annexed to her trial affidavit, that at 3 December 2014, Ms Weaver had $9,284.62 in superannuation benefits in that fund.
On 4 December 2014, according to a letter from (omitted) Super addressed to her on that day, Ms Weaver was granted permission to withdraw the sum of $7,241.62, “representing your total account balance, less tax deducted” on the grounds of “severe financial hardship”.
It is Ms Weaver’s uncontroverted evidence that she applied that money to pay some of her parking and traffic fines and that she has accrued no superannuation entitlements since that time.
In those circumstances, I find that for the purposes of these proceedings, Mr Sherry currently has $115,000 in superannuation entitlements, and Ms Weaver has no such entitlements.
Therefore I will consider $115,000 to be the worth of the superannuation entitlements available for distribution between the parties in these proceedings.
When all of the above evidence and findings have been taken into consideration, the property of the parties, to be divided between them as a result of these proceedings, consists of assets worth $23,800, debts of $95,483 and superannuation entitlements of $115,000.
C. If it is just and equitable to make orders altering the parties’ property interests, what were the contributions of the parties to the acquisition, maintenance and improvement of their property?
This question is mandated by s.79(4) of the Act which states:
Section 79(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(4)(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(4)(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(4)(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(4)(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(4)(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(4)(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The parties met and commenced living together in 1998.
At that time Mr Sherry owned the property at Property A. Certain unspecified renovations were undertaken at that property between the date of cohabitation and the date of its sale in early 2001. The net proceeds of that sale, approximately $150,000, were applied to the purchase of the property at Property Q, whose purchase price was $227,000. The remainder of the purchase price was obtained by way of a mortgage loan.
The property at Property Q was sold in 2003 with the net profits of about $60,000 being applied to the parties’ subsequent rent and living expenses. The parties did not thereafter own real property during the marriage.
During the period of cohabitation and marriage, Mr Sherry worked full time in varying positions and his salary was applied to the family’s expenses.
Between 2002 and 2006, Ms Weaver worked part-time as a (occupation omitted) save when she was on maternity leave, and her income too was applied to the family’s expenses.
In 2006 Ms Weaver set up a (omitted) business as she wished to be able to balance her work life and childcare responsibilities more easily than she was able to do working as a (occupation omitted).
On her evidence, that business, which was operated under the name (omitted), was reasonably successful in its early days, but she was forced to abandon it in early 2007 when Mr Sherry obtained work in the (omitted) industry, first in Western Australia and then in (omitted), Victoria.
I note here that there is other evidence that (business omitted) was closed in early 2010 when Ms Weaver obtained a contract from a company called “(omitted)”, which Ms Weaver informed the Court was “(business omitted)”.
Mr Sherry’s evidence is that he contributed to (business omitted) by assisting in renovating the business premises and by selling its products at farmers’ markets. He says that Ms Weaver retained all proceeds from that business.
When asked at trial about Mr Sherry’s involvement in (business omitted), Ms Weaver stated the following:
Well, you came to the Sydney Royal Easter show for three weeks. You took annual leave. My Mum and Dad came from (country omitted), looked after then W and X, who were, like four and five. You participated in all the markets – we went around Victoria doing market selling, like, farmers’ markets and stuff – and you helped build the wall at the shop. You agreed to take on a shop with me. You helped fund the deposit for the shop. You helped many, many times […] painting, renovating. You helped me with the sanding of the floors at the shop. You looked after the kids so I could go to Adelaide. You – we did Christmas – the Christmas fair which is a very big deal. We - I did lots of markets and shows. I did the (omitted). You looked after the kids. You helped me pack. You did markets for (omitted) and (omitted). And then I did another market. You took one child. I took the other child. I did (omitted) market. You had the kids. We did other events. I went to (omitted) and the market there on a regular basis […]
The following exchange then took place:
Mr Sherry: And did I receive any payment for that?
Ms Weaver: It was a joint thing. It was to build a business for the family. It was a family affair.
Mr Sherry: And yet did any of the expenses that you ran up of the business, did I have any input into those expenses?
Ms Weaver: Yes you did.
Mr Sherry: And how so?
Ms Weaver: You helped pay for rent. You helped pay – well, that was (omitted) rent – real estate – commercial real estate. You helped pay for the telephone, Telstra. You helped pay – I did a lot of work in (omitted) with that business but you also helped receive the drawings from that business too. […] We spent a lot of time there on the weekends together as a family, doing stuff to that shop as a business. You came to the (omitted) expo with me several times. […] So I would say you had a heavy business decisions (sic). I conferred with you on a lot of those business decisions. I even told you when I was going to close down the business.
It was also Ms Weaver’s evidence that Mr Sherry had invested money into that business from the parties’ joint account.
Mr Sherry did not challenge any of that evidence at trial. Indeed he accepted that he had played a part in the operation of the (omitted) business.
Ms Weaver alleges that Mr Sherry received the sum of $12,000 from his late father’s estate in October 2007, and that she was unaware of that inheritance until it was mentioned at the Conciliation Conference on 23 October 2014. It is her evidence that she has no idea how that money was spent.
Among the documents annexed to her trial affidavit, Ms Weaver annexes several documents relating to the late Mr J’s will. It would appear that the first page of the actual will is missing from those documents, as only the second page, which mentions the bequest of $12,000 to each of several of Mr J’s children including the husband, is annexed to the affidavit.
As part of his opening address at trial, Mr Sherry informed the Court that his entitlement to a $12,000 payment from his father’s will was conditional upon his mother predeceasing his father, and he said that his mother was “alive and well”.
Mr Sherry told the court that he was in possession of a copy of his father’s will, although no such copy was ever tendered to the court as evidence.
Nevertheless, while it is frustrating that Mr Sherry never provided a copy of his father’s will, I find it curious that Ms Weaver, who had gone to the trouble of providing copies of Mr J’s death certificate and various probate documents, had not provided the first page of the will.
Although Mr Sherry’s statement to the Court was not made under oath, the onus is on Ms Weaver to prove any fact she asserts, and I am not satisfied, on the balance of probabilities, that she has proved that Mr Sherry ever received an inheritance from his father’s estate.
In late 2007, after returning from his work in the (omitted) industry, Mr Sherry established the business known as “(omitted)” which he operated in his spare time until March 2011. Mr Sherry says any income from that business was also applied to family expenses.
The only remaining asset of that business had been his Holden (omitted), and at the time of trial he had a tax debt which, according to ATO documents tendered by Mr Sherry at trial, amounted to $11,663.53 which, he claims, arises from the operation of that business.
Ms Weaver’s evidence at trial was that she had contributed to (business omitted) by “doing the books”, preparing quotes, and assisting Mr Sherry in obtaining clients, but she later said that she had had only “a very small role” in that business.
Between 2008 and 2010, it is Ms Weaver’s evidence that she again worked as an (occupation omitted).
In 2009 Ms Weaver received $62,000 as a result of a personal injuries damages claim, and it is her evidence that those monies were spent on her lawyers’ fees, unspecified Centrelink repayments, the purchase of the Toyota (omitted), and the remainder of about $25,000 on general business and living expenses.
Ms Weaver says that the damages were paid for diminished future earnings, although no evidence was adduced to support that claim.
It is not disputed between the parties that Ms Weaver did not inform Mr Sherry of her damages claim upon receiving the money, although Ms Weaver says that Mr Sherry was present when she took delivery of the Toyota (omitted).
Mr Sherry says Ms Weaver did not tell him about her compensation damages, or where she had obtained the money to buy the Toyota (omitted). In any event, it does not appear that any joint monies or monies of Mr Sherry were used in its purchase.
Ms Weaver says she stopped work in mid-2010 on the advice of her obstetrician when she was pregnant with the twins, Y and Z.
Part of the debts which she claims are joint debts are outstanding expenses related to the twins’ birth.
I note that on 22 September 2015 I made orders requiring Mr Sherry to pay half of those expenses within 14 days of receiving an account or invoice in relation to them.
At the time of trial it was Ms Weaver’s evidence that Mr Sherry had only paid the sum of $489 of his total obligation of $2,140 in relation to the 22 September 2015 orders, that payment being part of the midwife’s fees.
At trial Mr Sherry acknowledged that he had not fully complied with the orders of 22 September 2015, apologised for that non-compliance, and informed the Court that he intended to pay the total amount owed under those orders. No timeframe was given for that intended payment, and the Court has no information as to whether he has subsequently made that payment.
The parties separated about six months after Y and Z were born, with Ms Weaver and the children remaining in the parties’ rented property at (omitted).
However, she and the children later moved to rented premises in (omitted) and Mr Sherry returned to the (omitted) property.
The parties are in dispute about how and why Mr Sherry left the (omitted) property, Ms Weaver saying that he was evicted because he had neglected or damaged the property, and Mr Sherry saying that because of a communication problem between him and the real estate agent, he was deemed to have abandoned the property.
Ms Weaver says that since Mr Sherry left the (omitted) property, which had been rented in joint names, she has had difficulty renting further premises.
Mr Sherry says that Ms Weaver’s rental difficulties were the result of damage she had caused to a rental property in 2012. It is Mr Sherry’s evidence that Ms Weaver took that matter to VCAT and lost, thus having her name placed on a “bad tenants” register.
On the basis of all the above evidence, in circumstances where the parties either worked or looked after the children throughout the marriage, I find that the parties contributed equally to their assets.
It is conceded by Mr Sherry that he is jointly responsible for the (business omitted) debts of $18,250.09, or, put another way, that he contributed to that liability.
I have already made findings about the parties’ joint and several responsibility for the other debts, and I find that they contributed jointly to those which have been found to be joint debts.
Under cross-examination at trial, Ms Weaver stated that her Centrelink debt related to the time in 2007 and 2008 when Mr Sherry was working in Western Australia, (omitted) and (omitted)[6].
[6] I note that, on the basis of other evidence, it would seem that Ms Weaver had been in receipt of overpayments of Parenting Payment Single benefits from before 2007
It was her evidence that Mr Sherry had been “very ambiguous” in relation to his commitment to the marriage and that she had asked him several times whether they were to divorce, but that he had not provided an answer.
She said that in those circumstances she had told Centrelink that she herself was earning about $40,000 a year, and that she had received some “nominal” Centrelink benefits as a result.
While it was her evidence that the parties had separate finances during that period, Centrelink considered them to be in an extant marriage and that she had therefore been in receipt of overpayments during that period.
The evidence is that Ms Weaver appealed the initial decision in relation to those overpayments, but that that appeal was dismissed.
Mr Sherry’s evidence about the Centrelink payments was that he was aware that Ms Weaver had been receiving “family assistance and what she was entitled to” and that he had “had my suspicions but I wasn’t certain” that Ms Weaver had been receiving a Single Parenting Payment when the marriage was still intact.
When asked whether he had spoken to Ms Weaver about those concerns, he said that he had tried to raise the issue and that he knew that Ms Weaver had contacted Centrelink previously about it.
I find, on the balance of probabilities, that Mr Sherry was aware that Ms Weaver was claiming Centrelink benefits to which she was not entitled during the marriage and that the family benefitted from those payments and I therefore find that the parties both contributed to her Centrelink debt.
Indeed, on the basis of all the evidence before the Court, I find that the parties contributed equally to the assets and liabilities of the marriage.
D. Should the contribution-based entitlements of the parties be adjusted by reason of the matters set out in s.75(2) of the Act?
Section 75(2) of the Act states that the following matters are to be taken into account by the court when considering spousal maintenance claims[7]:
[7] Those matters are relevant to property settlement applications because a notional lump sum spousal maintenance payment can be made as part of property proceedings.
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State Super or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In this case, the parties are of similar age and while Mr Sherry’s evidence is that he is in good health, Ms Weaver says only that she has had some “social and emotional and physical health issues since 2010”, although she provided no evidence of those issues to the Court.
Mr Sherry has a far greater earning capacity than Ms Weaver.
It was Ms Weaver’s evidence that she had not worked as a (occupation omitted) since 2013, that her (occupation omitted) “currency of experience” had lapsed by the time of trial, and that she would have to “do a refresher course in Western Australia through the (omitted) College” in order to retain her registration. She says she simply cannot afford to pay for that necessary training, which cannot be undertaken online, and is not available elsewhere. When that evidence was questioned at trial, Ms Weaver was adamant that the training was not available other than in Western Australia. I am somewhat sceptical about that evidence although there is nothing before me to contradict it.
She therefore does not work outside the home, and is reliant on Centrelink benefits and the child support paid by Mr Sherry. She has no superannuation entitlements.
Mr Sherry, on the other hand, works full time and earns $83,200 a year, and there is no evidence that he cannot expect to continue to work until retirement age.
He has some property, in the form of his motor vehicle and any interest he holds in the property registered in the name of his de facto wife, and he has financial resources in the form of his income protection insurance and superannuation entitlements, both of which are likely to grow into the future.
He also carries some debt to the Australian Taxation Office, which I have found to be a joint debt.
Ms Weaver has no property other than her motor vehicle and personal effects, and has major liabilities in the form of debts to Centrelink and the various entities already stated above.
Ms Weaver has the major responsibility for raising and supporting the four children of the marriage, and will do so until each reaches his or her majority. I note that the youngest children, the twins, will not turn 18 until 2028.
Ms Weaver’s accommodation, being rented premises, is insecure, although she may move back to (country omitted) with the children once these proceedings are concluded. I am unaware of what kind of accommodation she can expect to find there.
Mr Sherry lives in a house owned by his de facto wife and he contributes to the mortgage on that property. His accommodation and standard of living are therefore much more secure than Ms Weaver’s.
When all the matters set out in s.75(2) are considered, I find that it is appropriate to make an adjustment of 25% in favour of Ms Weaver.
That is, overall, Ms Weaver should retain 75% of the parties’ property and Mr Sherry 25%.
E. In light of the above findings, what orders ought to be made to effect a just and equitable settlement between the parties?
Ms Weaver’s evidence, which I accept, is that her living circumstances are financially strained and that she struggles to provide for herself and her four children on the Centrelink benefits and child support she receives. She has already been able to withdraw her superannuation benefits on the grounds of hardship.
In those circumstances, it is likely that she would be eligible to withdraw any superannuation entitlements she might acquire as a result of these proceedings in order to diminish her considerable debts.
I therefore propose to make an order for a superannuation split of Mr Sherry’s entitlements into a fund nominated by Ms Weaver so that she might be able to access those monies in that way.
I will apportion the parties’ assets, those debts I have found to be joint liabilities and Mr Sherry’s superannuation entitlements so that overall, there is an approximate 75/25 division of the marital property in Ms Weaver’s favour.
Conclusion
This has been a frustrating and difficult case, not because of any legal complexity, but essentially because of the state of the evidence, and the fact that both parties were unrepresented at trial.
That situation resulted in multiple questions being asked for which there was no basis in fact or evidence, and which were therefore of little or no assistance to the Court. The outcome was that the trial was unnecessarily long and somewhat chaotic in its process.
That is not a criticism of either party, but merely an observation of a situation which often arises with self-represented litigants who have no forensic training, and who want the Court to vindicate them in relation to matters that are not relevant to the issues before the Court in current proceedings.
Neither party in this case was a particularly impressive witness at trial.
Ms Weaver’s oral evidence, brief though it was, was presented in a rather defensive and, at times, evasive manner, while Mr Sherry had not brought significant documents to Court so that they could be entered into evidence, indicating a certain disrespect for the Court process and indeed for Ms Weaver. Some of his evidence, too, could only be called evasive, especially when he was asked questions in relation to his obligation to pay birthing expenses under previous orders of the Court, or about his knowledge of Ms Weaver's Centrelink overpayments.
Nevertheless, I am satisfied that the orders I will make are just and equitable in all the circumstances of this case.
It is to be hoped that the parties will now be able to move on with their lives, although no doubt each will find it difficult to repay the debts for which they will be liable as a result of these proceedings.
I certify that the preceding one hundred and ninety six (196) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 13 April 2017
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Remedies
-
Injunction
-
Costs
-
Statutory Construction
0
2
2