Westbourne and Westbourne and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

WESTBOURNE & WESTBOURNE & ANOR

[2018] FCCA 1542

Catchwords:
FAMILY LAW – Property dispute – long marriage – huge amounts of cash belonging to the Maternal Grandmother – dispute as to who abstracted cash from safety deposit box – agreed that $100,000 be repaid to Grandmother’s administrators – court comfortably satisfied husband should repay – substantial asset being matrimonial home – extensive arguments about minor and, ultimately, irrelevant cash and chattels – wife having enduring care of severely autistic son – 20 per cent adjustment in favour of wife.

Legislation:

Family Law Act 1975

Cases cited:

Stanford v Stanford [2012] HCA 52

Applicant:

MR WESTBOURNE

Respondent:

MS WESTBOURNE

Interveners:

MR A CAPLAN AND MR B CAPLAN

File Number:

DGC 1402 of 2017

Judgment of:

Judge Burchardt

Hearing dates:

12, 13 & 16 April 2018

Date of Last Submission:

16 April 2018

Delivered at:

Dandenong

Delivered on:

21 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Whitchurch

Solicitors for the Applicant:

Peninsula Law

Counsel for the Respondent:

Mr Devries

Solicitors for the Respondent:	Collards Solicitors
Counsel for the Interveners:	Mr Stanley

Solicitors for the Interveners:

Gigliotti Lawyers

ORDERS

That the Wife pay to the Husband the sum of $450,000 (“the payment”) on or before the 19^th day of September 2018.
Contemporaneously with the payment the Wife pay the Intervenors $100,000 (“the second payment”) on behalf of their mother and provide proof of such payment to the Husband’s solicitors.
That contemporaneously with the payment and the second payment:
(a)the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of his right, title and interest in the real property situate at and known as Property A Victoria being the whole of the land more particularly described in Certificate of Title Volume Folio (“the real property”).
(b)the Wife discharge any mortgage registered on the title of the property (“the mortgage”) and the Wife be liable for and indemnify the Husband against all apportionable rates, taxes and outgoings with respect to the real property of whatsoever nature and kind.
That in the event that the whole of the payment and the second payment have not been made by the date the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied as follows:
(a)first, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge any mortgage and any other encumbrance affecting the real property;
(c)thirdly, so much of the payment as is then outstanding together with interest thereon at the rate of 5 per centum per annum adjusted monthly from the date to the Husband;
(d)fourthly, so much of the second payment as is then outstanding together with interest thereon at the rate of 5 per centum per annum adjusted monthly from the date to the Intervenors;
(e)fifthly, the balance to the Wife.
That pending the payment or completion of the sale:
(a)the Wife have the sole right to occupy the real property and that during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and the like apportionable outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber the real property without the consent in writing of the other party.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or 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 (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Wife);
(b)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That all extant applications of the Husband and Wife respectively be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1402 of 2017

MR WESTBOURNE

Applicant

And

MS WESTBOURNE

Respondent

MR A CAPLAN AND MR B CAPLAN

Interveners

REASONS FOR JUDGMENT

Introductory

This is a bitterly fought property dispute between a couple who were married for 29 years. It originally involved additionally the interests of Mr A Caplan and Mr B Caplan as interveners, but on 12 April 2018 their interests were resolved by an order that the applicant and respondent pay them $100,000, the apportionment of that sum to be left to the Court as between the applicant and respondent.
One might have thought that, in a relationship of such lengthy duration, in which on any view of the evidence both parties contributed as best they were able, it would be relatively straightforward to produce a property result. The parties have striven long and hard to make this difficult, not least by considerable concentration of time and effort on amounts which, in the scheme of the total pool, are of little real significance.
Nonetheless, and in doing the best that I can to resolve the various matters of disagreement that seem to me to be of significance, for the reasons that follow, I am going to direct that there be an alteration of the parties’ property interests 70 per cent in favour of the wife and 30 per cent to the husband. The wife is extremely eager to retain the former matrimonial home and I will give her a period of 60 days in which to raise the requisite funds. Should she fail to do so, then the property will have to be sold and the proceeds divided accordingly.

Agreed or Uncontroversial Facts

The husband was born on 1966 and the wife was born on 1962. The parties married on 1986 (husband’s version) or 1987 (wife’s version). They separated on 8 October 2016 (husband’s version) or 19 October 2016 (wife’s version). An Intervention Order was taken out against the husband in October 2016, at which time he was compelled to leave the former matrimonial home.
The parties have four children: Mr A, born 1991, Mr B, born 1993, Mr C, born 1995 and Mr D, born 1997. All four children still live with the mother in the former matrimonial home. The eldest, Mr A, is autistic and severely so. He is given to outbursts of violence. He spends substantial amounts of time during the week in external care and has various disability payments and supports to a value of approximately $155,000 per year. The mother sets aside so much of that money as is not spent directly upon Mr A’s many needs and has a sinking fund, if I may so describe it, worth approximately $140,000 at present, designed for his future benefit. No one has suggested that this approach on the part of the mother is in any way inappropriate and those sums will be excluded entirely from consideration in this decision.
The wife possessed a property at Property C at the time the relationship commenced. There is a, to my mind, inconsequential dispute as to whether it was wholly unencumbered or had some small debt still owing on it at the time. On any view, it was substantially unencumbered and had some role in advancing the parties’ financial circumstances.
The parties bought and sold a number of properties from time to time, and it seems uncontroversial that Property C may have been used as collateral for some of these purchases. The husband received an inheritance of $50,000 from his grandmother in 1999 which he says was applied to the benefit of the family but which the wife says was dissipated on unsuccessful share transactions.
It is common cause that, at some point, the interveners gave to the wife a very large sum in cash which they had taken from the maternal grandmother’s home. They have deposed that it was slightly in excess of $315,000. Whatever the sum was, it was placed in a safe in the parties’ matrimonial home (there were at least two such safes) and stayed there for some time before the wife took it, in cash, to a safety deposit box at the Bank 1 where it was then placed. It is common cause that, in the ultimate, it was ascertained that the amount left in the safety deposit box was substantially less than the sum originally deposited. There is vivid argument as to who may have abstracted any of the funds originally deposited and as to what extent the husband may have used some of those funds to buy bullion, but I note that all parties have now accepted that the matter is remedied by the interveners retaining the contents of the safety deposit box as they were ultimately found to be, together with the $100,000 that the Court is being asked to allocate to their benefit from the parties.
The husband became unwell following separation and in the course of his treatment, met a new partner, Ms C. He and Ms C are presently residing in (country omitted). They have taken a three year lease on a property in (country omitted) at a cost of approximately $45,000 in total and will be living there for about the next two years at least. The husband is not working and does not intend to do so, at least for that period of time and Ms C’s work, as I find, is unremunerative. The wife is and intends to continue to be a full-time carer for Mr A.

The Parties’ Affidavits

Both sides have expressly sought to rely upon all the affidavit material they have filed, despite preparing trial affidavits. Much of what they have put in their affidavits is covered in the agreed or uncontroversial facts recited above. I will concentrate upon those aspects of the affidavit material that call for particular comment.
The husband’s first affidavit, filed contemporaneously with his initiating application on 10 May 2017, deposes to the history of the marriage and gives details of Mr A’s difficulties. He goes on to detail his alleged involvement in the children’s upbringing. He concedes that the wife had Property C at the time of the marriage. As he puts it, there was $20,000 owing on the property one way or the other. The husband went on to depose to substantial work done on the Property C property by him, and then proceeds to deal with the various properties bought and sold over time.
The affidavit then goes on to traverse the building of the matrimonial home at Property A. He deposed the home was built following the sale of the Property C property and three townhouses previously owned by the parties in Property B. The home is unencumbered by a mortgage. The husband deposed to the general work and upkeep he did on the property and work allegedly done to improve its value.
The husband deposed that he had continued to work throughout the marriage, most recently Business C. He deposed that the wife had bookkeeping skills and was paid for bookkeeping during the relationship. He went on to depose that the maternal grandmother is 89 years old and in poor health and estimated that the wife would receive approximately $500,000 in inheritance. He otherwise gave details of the chattels owned by the property including, “The gold and other valuables in a safety deposit box valued at approximately $250,000” and “my extensive amount of gym equipment to be valued”. I note that he valued his tools at a nominal value.
The wife’s first affidavit, filed 14 July 2017, once again in part traverses matters already dealt with under the agreed materials set out above. She described the annual payments in respect of Mr A as being in the order of $155,000. I note that it is surprising that the parties cannot even agree upon the date of the marriage. The affidavit gives greater insight into Mr A’s condition. She describes him as having very limited language skills and only speaks when he wants to but not, as the husband asserted, being non-verbal.
The mother largely dismissed the father’s assertions as to his involvement with the children and indeed made particular complaint of his failure to properly apply himself to what she described as the “hands on, nitty gritty, unpleasant aspects of parenting”. She likewise diminished or disagreed with any work he had done to improve the Property C property.
She similarly denied that the work done on the matrimonial home was of benefit to it and asserted that much of it had been done without proper council and other approvals. She denied having any bookkeeping skills. She went on to detail the deposit of the $300,000 in cash to the Bank 1 branch. She deposed to her “everlasting regret I gave the husband access to that box” (paragraph 43). She went on to depose to the alleged theft of $300,000 by the husband and the difficulties it had given rise to in her relationship with her siblings.
The wife went on to dispute some of the values attributed by the husband to various chattels and put in issue the husband’s capacity, and indeed her own capacity, to work. The wife’s second affidavit, filed

19 September 2017, deals with the contents of the safety deposit box and is not now relevant.
The husband’s trial affidavit repeats some earlier matters (including the apparently disputed date of the marriage). Paragraph 5, which runs from page 2 to page 8 of the affidavit, is a regrettable rant. It is most regrettable that the representatives of the husband were unable to persuade him not to include it in his material. It is replete with acerbic criticism of the wife. I note that, at page 7, the husband appears to concede that he has little relationship with his sons. He repeats the alleged involvement he had with the children when they were being brought up.
In this affidavit, he puts the amount of money encumbering Property C at the commencement of the relationship at $15,000 rather than the previous $20,000. He confirms that any encumbrance there was paid off within a few years. The husband goes on to repeat essentially his alleged contributions by way of work on Property C and other properties. I note that he deposes to very substantial rents received from the properties that the parties had owned from time to time, which he says were collected in cash. The amounts thus collected seem, as a matter of superficial impression, to represent very substantial rental returns for residential property. He repeats his assertion that the parties saved between $150,000 to $180,000 out of the rent that they received from the various properties they owned.
The husband went on to depose that the matrimonial home was built following the sale of Property C and of the three units in Property B. He deposed that the proceeds of the sale of these properties funded the build of the new home and also the purchase of a truck, which the husband used in his business. He said that the truck cost $58,000 and altogether, about $1 million was spent, leaving a new home with no mortgage. After the home was built, the husband deposed there was $250,000 left over in cash, of which $30,000 was used to build a tennis court. $10,000 was spent on stacked stone for concrete walls and $30,000 was paid towards bluestone pavers to pave the backyard. He deposes that they planned to spend $15,000 on drapes but because the wife vacillated, he put $15,000 in a plastic bag with a note on which read, “Drapes 15k” and put the money back in the safety deposit box. Likewise, he says he put $50,000 in a plastic bag in the safety deposit box with a note which read, “swimming pool” on it. He deposed to having purchased bullion from time to time, which was stored in the safety deposit box at the Bank 1 branch of the Bank 1.
He deposed to mowing and general upkeep of the grounds of the property, which he asserted had added at least $250,000 to its value. He deposed to having sold his truck in March 2017, asserting that there was significant damage to the body and to the window caused by a brick being thrown at it while it was at the home after separation. The husband repeated his assertion as to the wife’s bookkeeping skills and resulting earning capacity and repeated the assertions as to the wife’s likely inheritance.
He set out, at paragraph 57, what he said the property pool consists of and I note that he included “My $35,000 tools valued at nominal value”, “The $36,000 removed by Ms Westbourne from our joint bank account” and bullion worth approximately $180,000 and his extensive amount of gym equipment, valued at $15,000. He then went on to detail the contents of the safety deposit box. That box was opened, pursuant to court orders made on 19 July 2017, and contained $118,000 in cash, items of jewellery, one gold bar weighing a kilogram and 15 silver bars weighing a kilogram each with an estimated value of $180,000. He deposed that, until separation, both he and the wife had access to the safety deposit box.
The husband went on to detail the circumstances of the separation, which he found extremely distressing. He denied that there was any money in any of the safes, other than a safe in his workshop at separation which contained about $1,000. He deposed, however, that on his first return to the home in the company of police, he took $15,000 which was still in the open safe in the gym.
He deposed to selling what was described as “paper gold” for $26,000 following separation and deposed that the wife had taken out $36,000 from the bank account at about the same time. He deposed to still being in possession of 30 silver bars. I note that the husband deposed to receiving a brain injury in 2017 from a motorised bike accident in (country omitted) but I note further that counsel for the husband conceded this did not affect his earning capacity.
Otherwise, the remainder of the affidavit largely consists of supposition about the wife’s interrelationship with her own family and her mother. I note that he did depose, at paragraph 98, that he has re-partnered and has been living in (country omitted) since March 2017. He went on to propose a division of the sale of the matrimonial home. The other proposals have been rather overtaken by the settlement with the interveners.

The Wife’s Trial Affidavit filed 29 March 2018

The wife’s trial affidavit repeats some of the matters earlier deposed to as to the relationship with the husband and the ages of the children and the like.
I note that the wife has appended as annexure W-2, W-3 and W-4 documentation from various authorities which confirm, were it in any way to be in doubt, the severity of Mr A’s autistic condition and the associated difficulties that it gives rise to. I note that in particular, although it is only one of a number of such recommendations, Associate Dr N and Dr C, Psychiatry Registrar, recommend (page 50 of the affidavit):
“We would recommend minimal disruption to Mr A’s routine and environment in order to minimise the aforementioned risks and to avoid precipitating further episodes of protracted behaviour disturbance.”
The wife confirmed that the savings on behalf of Mr A presently amount to $142,000 and are solely for his benefit. The wife repeated her denials of the husband’s alleged involvement in the children’s life and more particularly that of Mr A. The wife set out her version of the pool but I will return to that matter in due course.

The wife responded to the husband’s assertions that Property C was not fully unencumbered at the commencement of the relationship. I accept that a receipt at page 57 of the affidavit dated 24 July 1986 appears to support the wife’s assertion that the mortgage was wholly paid off by the time the relationship started. If the wife is correct and the parties married on 1987 and not 1986 (no one has provided a copy of the wedding certificate) then clearly the mortgage was gone by that time. On any view, the Property C property was at the very least largely unencumbered shortly after the marriage.
The wife’s affidavit goes on to take issue with the amount of work the husband did both at Property C and in the matrimonial home. She also went on to depose to using the equity in the Property C property to commence the process whereby the parties bought and ultimately sold a number of other properties. I do not propose to traverse the purchase and sale of these properties because it is common cause that the matrimonial home was brought unencumbered with the proceeds of the sale of Property C and the units in Property B.
The wife took issue with the husband’s assertion that substantial amounts of rent were received in cash, repeated the asserted dissipation of the husband’s inheritance was by “principally the purchase of shares”. This assertion I should say in passing is typical of the lack of charity between the parties. Shares would not strike me as being inherently that bad an investment.
Much of the rest of the affidavit is concerned with the wife’s criticisms of the father’s allegedly unauthorised work on the matrimonial home. Given that the parties have ultimately come to an agreement that the property is to be valued at $1,850,000 these aspects of the controversy are simply no longer extant.
The wife went on to depose to placing $300,000 of her mother’s cash together with jewellery belonging to her mother into the safety deposit box at the Bank 1 in Suburb K. I note the parties are unable even to agree which branch it was. The wife says Bank 1 Suburb K and the husband says Bank 1 Suburb L. The wife then deposed to the husband’s access to the deposit box in Suburb K. She annexes W-16 which does seem to me to support her assertions.
She went on to depose to the solicitors for the parties and the wife opening the deposit box in September 2017 pursuant to court order and noted the contents. Given that the role of the interveners has now ceased the precise nature of the contents is no longer now relevant.
I note that the wife annexes W-17 which appears to show that the husband was the only person who accessed the deposit box between the time the wife put her mother’s cash and jewellery into it and the inspection on 8 September 2017. Annexure W-17 appears to support that assertion. I note further that annexure W-16 appears to once again support the proposition that the wife asserts that the husband requested that the access arrangements be changed only five days after separation.
The wife deposed to the husband’s removing $15,000 in cash and silver bars when he returned after separation with the police. Annexure W-19 appears to support the assertion that the husband took $15,000 in cash and 30 silver bars. The wife denied taking $36,000 from the parties’ bank account and said that she only removed $16,500-odd which was to return to Mr C the money belonging to him taken by the husband.
Otherwise in my view the affidavit is largely argumentative.

The evidence given at Court

What follows is taken from my notes and is self-evidently not a transcript. It records those matters that struck me as being of significance.
The husband was called and adopted his affidavits and Financial Statement as true and correct. In evidence-in-chief he explained that he is living in (country omitted) and is not employed. His expenses are $800 per week of which $300 is rent of the villa in (country omitted). His partner has a very small income. They spend about $500 per week. The rent was paid upfront for three years about 12 months ago. The father was firm in his assertion that the wife had withdrawn $18,000 from their bank account. He has sold his truck. He left the home with $15,000 in cash and took 30 bars of silver and a gold bar. He sold a half kilo of paper gold for $26,000 and has about $8,000 left from the totality of these funds. He has no car. He was firm that separation took place on 19 October 2016 when the wife and children remained in the matrimonial home. He wants to sell the property. The wife cannot buy it because she does not have a job.
Under cross-examination the husband recalled his Financial Statement. He was with Ms C last year. His Financial Statement sworn on 8 May 2017 was true at the time. Ms C does not really have an income. She makes a small income doing (occupation omitted). They spend more than they make. He commenced his relationship with Ms C, soon after separation. He had attempted suicide and was in a mental institution and she was his support person. Upon release he initially lived with Ms C’s mother and he started living with Ms C three to four months after that in late 2016 or early 2017. The rent is paid on a yearly basis and he paid in the end of March or early April 2017. You have to sublet if you wish to end the lease.
The truck was sold for $40,000 and the bullion was sold for $26,000. He took $15,000 in cash. He had bought a half kilo of gold for $26,000. A bar of gold is worth $52,000. You cannot buy a half kilo of gold for $14,000. To the extent that his affidavit suggested otherwise his solicitors were in error. He had bought the gold before separation. He had done so from his salary and cash he had in the safe.
The wife took two lots of $18,000 from the bank account. She had an account at a girlfriend’s house and that is where it had gone. She had closed the joint bank account and took $18,000. The banking Ombudsman was involved. The wife froze every account not him. He was outraged and went to the Ombudsman. The bank put $18,000 back in but it was frozen. She took the second $18,000 the next day. He himself received $9,021 compensation. This was not in his affidavits. The wife should account for the $36,000 but could have half of the $9,000 he had received.
Ms C had sold a car for $20,000 and had $25,000 in the bank from when her marriage ended. This was all she brought into the relationship. The husband had paid court fees but did not know how much he had paid. He guessed maybe $4,000 but did not know. He has $8,000 in the bank. The $15,000 referred to being given to Mr E was the same $15,000 he took from the property at separation. He had not taken $5,000 before the relationship ended. The wife froze all the bank accounts. He had been working sporadically and got $4,900 which went to a closed account at the Bank 2. They gave him his salary back. This was salary made after separation. He has not removed any moneys from the account since separation. He was adamant that the truck was sold at $40,000 as a result of $15,000 worth of damage. When taken to exhibit R1 which showed a market value of the vehicle of $50,000 the husband said that he had completed the left-hand column and the purchaser had completed the right-hand column which included the higher figure. I would interpolate and say this was one area of the husband’s evidence that was given with conviction and which I am minded to accept.
The husband was taken to exhibit R2 being the closing statement of the previous joint account held by the parties. This showed a closing balance of just over $16,500. Exhibit R3 showed a further account likewise closed in October 2016 with $1,480. He assumed that this added up to $18,000. There was in fact relatively extensive cross-examination about the moneys transferred into and out of the parties’ bank accounts from time to time. Given the overall scale of the pool, and the amounts of money involved, in my view this represents a certain myopia on the part of both parties. The husband was also cross-examined about his superannuation entitlements and it would appear from exhibit R6 that his total superannuation is $43,000. When questioned as to why his Financial Statement did not reflect this figure the husband said that the wife refused to give him any documents so he made an estimate. Further cross-examination showed that the husband had abstracted $5,000 on 17 October from the parties’ joint account and placed it into an account of his own. (see exhibits R7 and R8).
The husband said that he had obtained $26,000 for the paper gold and had paid it into Ms C’s account as they planned to move to (country omitted) and live off the money. He said that some of his salary went into Ms C’s account because all his accounts were frozen. The $15,000 cash he had went into Ms C’s account plus the $5,000 from Bank 3. He had bought the gold with money from savings and cash.
The husband said he took $30,000 for the tennis court from the box and $40,000 for tiles. These were both taken from the Suburb L box. Initially the cash was at home but then it was in the box in the bank. He said that the parties had money both in the safe at home and in the bank. He said it was a lie that only he had access to the box in the bank. It was for either to sign. When it was put to him that after the $300,000 was deposited only he had had access to the box because only he had signed, the husband responded that the wife had the key and had to given it to him each time. He accessed the box four times. There was a lot less than $300,000 when the solicitors opened it.
The husband was cross-examined about the rents allegedly received from properties from time to time. The only properties in respect of which he had used a real estate agent were the three units in Property B. The agent gave him a cheque which he banked and then withdrew the amounts concerned. He was unable to recall when rent started. He had forgotten that the rent on these properties from 1998 to 2001 had been leased through an agent because it was 20 years ago. The husband was cross-examined in further detail about the various properties bought and sold. His answers in my view were utterly non-responsive to the questions put. The husband was adamant that the total of rent received was in some hundreds of thousands of dollars. He said he did all the work on the properties himself. He said he paid land tax only once and otherwise did not pay land tax at any point on any of these rental properties. As I pointed out during the currency of the proceeding, the obvious and only inference available is that the husband misrepresented to the competent authorities that he was living in these premises to evade land tax.
I do not propose to go through the evidence of the purchase and sale of these properties in any detail because in my view they are overtaken by the fact that in the ultimate it was the sale of the Property B properties, together with the Property C property that enabled the purchase of the matrimonial home. It transpired that in fact the land was bought well in advance of the actual build. The land was bought for $300,000 and the house cost $530,000 to build. Property C was sold for $289,000 and the three units were sold for $546,000. The husband’s evidence about the figures involved significant corrections from time to time. The husband said that the land was bought six years before the build. Share trading and his income, all this in cash, enabled purchase of the land. The land was bought for $285,000 in January 2001.
The husband was adamant that although Property C was a great start, he had given the parties a great finish and felt that a 50/50 division of property was fair.
The four sons live with the wife. Mr A has an income and the wife is his sole carer although she has help from the other sons. The husband, whose evidence tended to be argumentative and aggressive, asserted that the wife had tried to get rid of Mr A when he was 20. He did not agree that she would look after him forever. He said the care of Mr A is fulltime during the day at a day centre. He said, “She’s got that much funding it’s not funny”. He said the wife could hire people as she wanted to. These assertions were not in his affidavits. He said the mother was a great mother but a terrible wife. He would not do anything to hurt the wife. He told that he loved her and would not hurt her. Then an Intervention Order was taken out days later. He said, “I want something fair for me”. He said he tries to contact Mr A and she refuses. She has turned his sons against him and is vindictive. He did not accept that Mr A could not access a computer and iPad. He said every time he messages the children the wife says not to contact them. The husband confirmed that his constant sniffing is as a result of his accident in (country omitted) as he has numbness in his face and neck. As earlier indicated counsel conceded that this does not affect his capacity to make earnings.
In re-examination the husband tendered exhibit A1 which shows that the purchase price of the truck when it was sold was $40,000 and the money was banked. The husband confirmed that he lived in the matrimonial home for about 13 years but lived in Property C before that. The wife had not worked since the children came on the scene. All the investment properties were in his name solely. The land for the matrimonial home was bought in 2001 and the home was built six years later. The husband confirmed there were four safes in the home. Three tin boxes and one fireproof safe. Cash and bullion were in the safe. There was cash in the deposit box and cash at home. It chopped and changed. The wife knew of this. There was only one key to the deposit box and he got that from her. The wife had access to it. The wife took $4,000 to pay for steel mesh. There were six or seven bank accounts all frozen. The ATM swallowed his card. This was the weekend after he was removed from the house. The bank gave him printouts. There is no accounting as to how the wife spent the money. There has been no contact with the wife because of the Intervention Order and no information about Mr A.

The evidence of the wife

In her evidence-in-chief the wife adopted her trial affidavit and Financial Statement as true and correct. She said it was not true that the husband had got the key to the deposit box. It was untrue that he told her what he was doing. She was not aware he had brought cash back to the house. She did not pay anyone cash.
Under cross-examination the wife confirmed that the four boys are all still at home. Mr B has part-time employment that pays for his food and contributes to bills. Mr D has one and a half years to go at University and works for an (employer omitted). Mr C is a (occupation omitted) at (employer omitted) and earns $900 per week. He started this year. Vehicle 1 car is hers and the Vehicle 2 is Mr C’s. It was bought jointly by the parties. She had saved the children’s money from Christmas and birthday gifts for the sole purpose of buying a car. Vehicle 3 is Mr D’s. This was bought with a mixture of the children’s money and the parties’. This was all before separation. The truck was there at separation in October 2016. She came home and found it damaged. The boys told her it was damaged but did not know how. She proposed to keep the family home. She and the children would pay for it. She has received provisional approval for a loan of up to $570,000 from the Bank 1. This would require income verification. This was only a verbal pre-approval. There is no other documentation available from the bank. She has not thought about selling the property because of Mr A. Mr A’s behaviours did not start until they moved to the new matrimonial home. Mr A needs routine.
The wife is not allowed to speak to the husband. She is getting support and strategies through the Department of Health and Human Services and Mr A has been excellent for the last six months. Mr A will not go into special accommodation. The wife had called police because Mr A was self-harming. She alone has access to Mr A’s account which has $140,000 in it. This comes through the pension. It was approximately $120,000 at the time when separation took place. Mr A is five foot eleven and big built. She is saving for Mr A for when she is dead. She has not considered selling the house at all.
Both parties worked during the relationship and they chose the block together. It was paid from what they then had. The house was built and they moved in. She did the gardening. The husband did an enormous amount of work. She was aware he was using family money. Sometimes she knew and sometimes not. He controlled the bank accounts. She had a card. She was going to buy drapes but did not know what she was going to spend. Supplies for the building were not paid out of cash but were paid out of the savings account. The husband kept things in the safe that she was not aware of, including weapons. She did not know he had cash. There was a safe in the Property C property. She and the husband had not found any money at the grandmother’s home. She collected the money from her brother’s home. The grandmother had told her that the boys had collected money from her home. She knew the money was there. Her brothers went to VCAT. She had never seen the VCAT order nor seen any documentation. Mr B Caplan gave her the money after counting it with Mr A Caplan. It was counted in the parties’ home in the hobby room. She put it in the Suburb K safe deposit box after a couple of months. Before that it was kept in the safe at the home. None of this money was allocated for a swimming pool or drapes. She was not interested in a swimming pool. She is concentrating on her autistic son. She let the husband do what he wanted.
She signed tax returns but left finances to the husband most of the time. He had nothing whatever to do with Property C. He was, however, involved in repairs and improvements. Property C was fully paid off when the parties married. They lived there together for 18 years. The wife was adamant that the husband blew $50,000 on shares and lost about $40,000 of it. The wife left the properties to the husband as she was looking after the children. They sold the three Property B units to build the home and had to sell Property C to pay for the rest of it.
The wife froze all the bank accounts. There was $1,400 in one account and $16,000 in the other. She gave no warning to the husband. She took out an Intervention Order. The husband has got his surfboard and has not asked for his other one. She does not want it and he can have it back and the truck wheel as well.
The wife was adamant that the $16,500 withdrawn on 31 October 2006 went to Mr C’s account. She said that the husband had transferred funds out of Mr C’s account from time to time. She was not allowed to speak to the husband and had the Intervention Order out on him at the time. She froze all the accounts, including those of the children. She opened a new account for Mr C. Indeed, she opened new accounts for all the children. She was unable to say how much was transferred. The wife conceded that the $1480 withdrawn had been transferred to her new account. She thought that the husband had withdrawn $4,000 on 3 November 2016. She had not touched his wages at all.
Mr A has $140,000 saved over the years. She uses these funds to buy things for him from time to time. The interest is 2. something per cent. She has always been the sole operator of this account. She froze all the husband’s accounts on the same day, which included his pay account. She does not use the internet and did not know the exact figures of his income. She signed tax returns, not all the time. She was made aware by the husband of income splitting. He was a full time worker. She refused to sign the 2015/2016 tax returns as she did not prepare them herself. She conceded it was fair if she did sign them and undertook to do so. The only chattels still retained were a small surfboard that the husband does not use. She said that there was no spare truck tyre. He had given her the Vehicle 1. She still drives the Vehicle 1, but it is worth next to nothing.

Mr A’s behaviour commenced once he hit puberty. He was not too bad when they moved from Property C. The only time that he was bad was when he was expelled. The mother said she would do anything to keep Mr A at home. He loves being at home with the boys and Mum. It is important to keep the house for Mr A. She does not give him out for respite. He stays at home. She had not informed the father that Mr A was hospitalised. Mr A does not want to see his father. They do not have a good relationship. Mr A finds his father intimidating. Mr A hit puberty gradually between 14 and 16. The father was with Mr A for four days when Mr A was expelled from school. She asked Mr A if he wants to see the father and he says “no” and gets agitated.
The wife has not thought about finishing the paving. The husband worked hard on the property. He did repair works at Property C. The wife had ceased employment when the second child was born. She has not worked since and does not intend to. Mr A goes on the bus from Monday to Friday. He is meant to start at 9.00 am but never gets there on time. He is there from 9.30 am to 3.00 pm if everything is running smooth. She drives him. She sometimes leaves Mr A with her other sons for half an hour to an hour. It depends on Mr A’s mood. She only goes out when Mr A is asleep.
When questioned about the $15,000 for drapes the wife said she had nothing to do with it. They had discussed drapes but they had no money in the bank. She had not got a price on the drapes but was looking at material.
When questioned about the swimming pool the wife said the husband brought this up. She did not want a pool. The money for pavers came out of their bank account. The gazebo had been completed before they counted her mother’s money. Everything was done before they had her money. After that there was about $13,000 of concrete for the tennis court.
The husband bought the truck with Mr A’s money but paid him back from his work. She had assumed she had paid him back from his pay. I interpolate and say this is inconsistent with the wife’s evidence that she alone had access to that account.
The wife was adamant that she had spent very little and had not overspent on the children. She left the finances up to the husband.
In re-examination the wife confirmed that Mr A had had a meltdown when he was 16. The husband had transferred money from Mr C’s bank account. He had accessed this through internet banking. Exhibit A3, being the records of Mr C’s bank account, show funds withdrawn in 2016.

The Brief Observations about the Credit of the Parties

The husband was not, I regret to say, an impressive witness. He had a pronounced habit of not answering questions directly but answering with rhetorical questions of his own. He was a poor historian. As earlier indicated, some of his answers were utterly non-responsive. Despite being directed to talk to nobody during the luncheon adjournment he spent it with his partner and sought to explain this thereafter by saying that he merely thought he was prevented from talking to his counsel. I do not accept that answer, although I do not think anything turns upon his having spoken with his partner other than his lack of proper attention to what the Court had directed.
As earlier indicated, he was at times argumentative and aggressive in describing the wife, and some of his answers, for example, as to the extent of the wife’s care of Mr A, were simply spiteful and unpleasant.
Taken overall, I would describe the husband as a poor witness with a breezy insouciance, at least at times, as to whether he was telling the truth or not.
By way of contrast, the wife was generally a good witness. She answered most questions directly and responsively. I did not, however, find her answers about the amounts of cash held in the family home from time to time convincing. As I think I may have observed during the trial, I was astonished that she could talk in such nonchalant terms about carrying the enormous sum of some $300,000 in a bag down from her home to the bank in the centre of Suburb K. For my part, I would be utterly beyond terror to have an amount of that sort in my possession. What this suggests to me is that she was far more accustomed to dealing in large amounts of cash than she was prepared to indicate in her evidence.
I further noted in the wife’s evidence a complete lack of charity towards the husband. She was not really prepared to give him credit for anything. The notion that he had wastefully squandered his $50,000 inheritance on shares plainly indicates an exaggerated tendency to demonise him. I found some of the evidence about how she has sought to pay back Mr C unconvincing. Put overall, however, and notwithstanding the total disdain that she has for the husband, she was generally a direct and straightforward witness, albeit clearly deeply embittered against the husband.

Findings as to the Facts

The parties commenced their relationship, in any meaningful sense, when they married. Both sides agree that they did not cohabit before that. I accept the wife’s evidence that the marriage took place on 1987. Neither party cross-examined about this, but I think she is a better historian. They were together for a very long time. Separation, despite whatever ups and downs there may have been in the meantime, did not take place until October 2016.
There is no doubt that the husband worked throughout the relationship and the wife worked at least until the first child was born. Very understandably, she has devoted herself since then largely to the wellbeing of the children.
The wife owned the property at Property C prior to marriage, and it was not encumbered. This was obviously of assistance to the parties in progressing their financial affairs. As I find, Property C did assist the parties to commence the process of buying and selling properties which has occupied so much of the evidence in the case.
The parties were both in the habit of dealing very substantially in cash. I do not think that the properties that the parties owned from time to time and which were clearly rented out engendered as much cash as the husband says because the asserted net returns are so high. Nonetheless, both parties were very familiar with cash transactions and plainly sums of money were engendered by the rent.
In the ultimate, the precise quantum of any such rent is neither here nor there. It is common cause that in the ultimate the matrimonial home was bought unencumbered, albeit in two tranches, given that the land was bought six years before the build, financed by the sale of the Property C property and the sale of the three Property B units.
It is clear that there were sums leftover one way or the other, whether from the investments or the husband’s earning or from whatever source, which were applied in part to seek to improve the property. There are substantial numbers of pavers still on the property awaiting, presumably, installation or sale. There is absolutely no valuation of any such matters, but they are an asset still there to be used.
The Court has heard all too much, in my view, about the freezing of the parties’ bank accounts and the subsequent extraction by one or other of the parties either of funds held in accounts or cash held in the safe at the property. It is clear that the husband took $15,000 in cash plus a certain amount of bullion. It is clear that the wife accessed the joint account in a fairly substantial way. The husband obtained a $9,000 rebate.
What occurs to me is that given that the substantial asset of the relationship, namely the house, is valued at $1,850,000, the sort of disparity between the parties’ finances arising out of this general frenzy of activity in relation to cash and bank accounts amounts to a disparity at the most of approximately one per cent of the pool. I do not think it is nearly as profitable as the parties do to fossick in these details. As I find, each party grabbed what they could at the end of the relationship and it appears to me that the net result, while not entirely clear, shows that they got roughly the same. Even if I am wrong as to this conclusion, any disparity that there was is of so small amount as to, in my view, be immaterial.
At this point it is not possible to avoid making findings about the one really critical factual dispute. The question is who is to pay the $100,000 to the interveners. My conclusions can be put shortly. There is no doubt in my mind whatever that the wife’s brothers counted their mother’s money and that it amounted to over $300,000. This was given to the wife for safe keeping and kept initially in a safe at the matrimonial home. The wife then took at least $300,000 of it in cash and deposited it in the safety deposit box. It was, as she well knew, her own mother’s money.
Not only is it inherently improbable that the mother would seek to use her own mother’s money for herself, but such records as there are of the access of the safety deposit box in the relevant time points strongly to it being the husband who accessed it. Whether the wife had to give him the key each time or not is not, to my way of thinking, material. The fact is that even on his own case, he got the key from her on a number of occasions. I think that the husband was unable to resist the temptation to apply at least some of the funds in the safety deposit box to his own initiatives. He is clearly, from the evidence he gave, a man well versed in bullion dealing. He may even have dealt with the cash with a view to improving its overall value.
I do not accept the husband’s denials of his abstraction of cash. It is true that he allocated $15,000 of this for drapes and a further $50,000 for a swimming pool. That, however, does not mean for an instant that it was not moneys from the maternal grandmother’s original source. If, as he says, it was funds generated in cash by himself and the wife, this simply means that more funds must have been abstracted than is otherwise thought.
I have no doubt that it is appropriate that the $100,000 to be paid to the interveners should come out of the husband’s share of the pool.

Stanford v Stanford

The High Court made it clear in Stanford that the Court’s first task is to identify the legal and equitable interests of the parties and determine whether it is appropriate that there would be a property adjustment. In this case, as in so many cases, it is clearly appropriate to do so. The basis upon which the parties conducted their financial affairs during the relationship has radically altered and both sides seek property adjustment.

The Pool

The pool consists of:
·Matrimonial home - $1,850,000;
·Proceeds of sale of truck - $40,000;
·Superannuation wife - $11,048;
·Superannuation husband - $43,000.
It will be noted that I have allotted no value whatever to the various cars. Vehicle 1 is described by the wife as being almost valueless. It is, in any event, not the subject of any valuation. Vehicle 2 and Vehicle 3 vehicles are owned by the children of the relationship.
Similarly, the husband’s tools have not been valued. They are of such apparent worth to him that they are still on the property some year and a half after he has moved out. His gym equipment may have some value, but there is no evidence as to what it is. On any view, it would be inconsequential in the scheme of things in any event. Other chattels have no meaningful value.
As earlier indicated, I have taken the broad view of the parties’ activities at the time of separation. The husband plainly took $15,000. It appears he took another amount of cash, some $4,000, shortly before separation. It appears that he sold bullion for $26,000 and retained bullion in the sum of $20,000.
The wife appears to have taken at least $18,000 out of the joint bank account.
It should be noted, however, that if I cause the husband to account for the sale of bullion I am likely in large part to be double counting because he is already paying $100,000 to the interveners. There is no doubt in my mind that the bullion that he retained and the bullion that he sold would, at least in part, have been constituted by the moneys that he abstracted from the grandmother’s funds.
As earlier indicated, I think the evidence about all these financial dealings is by no means as clear as the parties wish to assert. I think each party grabbed what they could. As already said, I think any resultant disparity in the amounts abstracted is likely to be immaterial in the scheme of things.

Contributions

This was a lengthy relationship of some 20 or so years. Both parties worked when they could. The wife had the predominant childrearing responsibilities. The husband undoubtedly contributed to an extent from time to time in the sort of (occupation omitted) work that he did. As I find, it was not as great as he says, particularly in terms of any value added to the various properties from time to time, but it is clear that the husband had the almost complete control of the process whereby the parties bought and sold properties. This latter activity undoubtedly generated a considerable amount of money.
While the wife’s original holding of the Property C property was undoubtedly a benefit to the parties, the notion that it constituted a springboard for the entire wealth of the parties at the end of the relationship, which I fear is not an exaggeration of counsel’s submission, is utterly unsound. In my view, the contributions of the parties taken as a whole should be assessed as equal.

Future Needs

Here the position is much clearer. The husband is living a life of ease in (country omitted) and will continue to do so for at least the next two years. He has not worked for a year and, as I find, has no plans to work for at least two more years. He could work if he wished but he does not wish to do so.
The wife’s position is stark. I entirely and unreservedly accept her devotion and commitment to the wellbeing of her son Mr A. She will not work. She will devote her life to looking after him. This is a selfless and committed position. To the extent that the husband in his evidence, and counsel in a more guarded way in submissions, sought to qualify the laudable nature of the wife’s position, I entirely disagree. The wife deserves nothing but praise for adopting a lifestyle that gives her what, in truth, is a very demanding and difficult future. It is a matter, in my view, only for the highest praise.
Having said that, however, it is important to remember that the Court is required to consider an outcome that is just and equitable. There is no question of rewarding the wife in some excessive way merely because her choice of lifestyle is so admirable. Rather, it is a matter of assessing her future needs.
I have no hesitation in these circumstances of assessing that the wife should have a 20 per cent adjustment in her favour in respect of property interests.

Just and Equitable

In my view, the outcome I have reached is, indeed, just and equitable. Given the wife’s expressed intention of retaining the matrimonial home if at all possible, I am going to give the wife 90 days in which to raise the requisite funds to give effect to my conclusions. Self-evidently, however, the husband is entitled to receive his share of the property pool, and if the requisite sum is not paid to the husband within 90 days of this judgment then the property will have to be sold. I will request the parties to draw up orders to reflect this judgment.
In practical terms the husband will collect his tools and equipment, if he wants them, together with his surf board and the tyre for the truck. Otherwise each party will retain the chattels in their possession. If this gives the wife a windfall in respect of pavers or other matters, the value is unascertained and more probably than not immaterial in the wider picture of the parties finances.
So far as superannuation is concerned, the parties must have accumulated all, or almost all, of their superannuation during the relationship. There should be an equalisation.
The wife will have to pay the husband 30 per cent of the $1,850,000. $550,000, less the $100,000 to be paid to the interveners.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 21 June 2018

[2018] FCCA 1542

21 June 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Constructive Trust

Remedies

Costs

Injunction