WILLIAMS and OAMRA

[2020] FCWA 109

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WILLIAMS and OAMRA [2020] FCWA 109

CORAM: O'BRIEN J

HEARD: 16, 17, 18, 19, 20 MARCH 2020, 14, 15 & 24 APRIL 2020

DELIVERED : 26 JUNE 2020

FILE NO/S: PTW 7613 of 2017

BETWEEN: MR WILLIAMS

Applicant

AND

MS OAMRA

Respondent

Catchwords:

PROPERTY - Where the wife contends that no order for alteration of property interests should be made - Where the parties have never jointly owned property nor operated joint accounts - Where the wife's evidence that the parties made a mutual decision to keep their financial affairs entirely separate, and intended that each would retain their property to the exclusion of the other is rejected - Where it is just and equitable to make an order - Where assessment of contributions favours the wife - Where no adjustment to the contributions based outcome is appropriate.

ADULT CHILD MAINTENANCE - Where it is not established that an order is necessary to enable the child to complete his education - Application dismissed.

Legislation:

Evidence Act 1906 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Bannerman
Respondent	:	Mr Hooper SC

Solicitors:

Applicant	:	Bannerman Solicitors
Respondent	:	FMD Legal Pty Ltd

Case(s) referred to in decision(s):

Bevan & Bevan (2013) FLC 93-545

Biltoft & Biltoft (1995) FLC 92-614

C & C [1998] FamCA 143

Calder & Calder (2016) FLC 93-691

Chancellor & McCoy (2016) FLC 93-752

Chapman & Chapman (2014) FLC 93-592

Chorn & Hopkins (2004) FLC 93-204

Cosgrove & Cosgrove (1996) FLC 92-700

Craig v Silverbrook [2013] NSWSC 1687

Dickons & Dickons (2012) 50 Fam LR 244

Everett & Everett (2014) 52 Fam LR 1

Fox v Percy (2003) 214 CLR 118

In the Marriage of Pierce (1998) 24 Fam LR 377

Jabour & Jabour (2019) 59 Fam LR 475

Kennon & Kennon (1997) FLC 92-757

Kowaliw & Kowaliw (1981) FLC 91-092

Lovine & Connor (2012) FLC 93-515

Mallet & Mallet (1984) 156 CLR 605

Norbis & Norbis (1986) 161 CLR 513

Paul & Paul (2012) FLC 93-505

Re LC (children) [2014] 1 All ER 1181

Rosenberg v Percival (2001) 205 CLR 434

Ryan v Zekas [2020] WASC 124

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Teal & Teal [2010] FamCAFC 120

Trevi & Trevi (2018) FLC 93-858

Truman & Clifton [2010] FCWA 91

Watson & Ling (2013) FLC 93-527

Williams & Williams [2007] FamCA 313

Woollams & Woollams (2004) FLC 93-195

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Williams and Oamra has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1[Mr Williams] (“the husband”) and [Ms Oamra] (“the wife”) have been involved in proceedings in this court since November 2017. Those proceedings have been both complex and difficult, largely because of the relationship between the parties which, even during their marriage, was at best unusual and at worst openly hostile.

2That relationship, and associated issues, permeated the parenting proceedings. The husband’s relationship with the four children of the marriage has been highly problematic. The parties have pursued a therapeutic option with very limited success.

3Nevertheless, to their credit, the parties conferred at length after the publication of an updated report from the Single Expert Witness shortly prior to trial. They were able to reach an agreement in relation to the parenting proceedings, and in relation to child support. Consent orders were made in the terms of their agreement.

4The trial proceeded in relation to the husband’s application for alteration of property interests, and the wife’s application for adult child maintenance. The wife did not pursue her application for spousal maintenance.

Brief background

5The husband was born in [1960]. He is presently unemployed, having recently been made redundant from his long-standing employment as an [accountant]. He has previously married and divorced. The wife was born in [1971]. She is employed as a [business analyst]. She has not previously married.

6The parties lived together before they were married. The husband moved in to live with the wife at a home in [A Street, Suburb A] then owned by members of the wife’s family. They ceased living together quite shortly thereafter, in circumstances outlined in more detail later in these reasons, before resuming cohabitation when the wife fell pregnant. They married [in mid-2004].

7Sadly, the parties lost their first child in early 2001. They have four children: [Child A] who is now 18, [Child B] who is 16, [Child C] who is 14 and [Child D] who is 12. All four children live with the wife. Child A is studying at university, and the younger children are all at private schools. Child C was born with a rare and life-threatening [medical] condition which required [a medical procedure] in early 2007; the husband was his donor.

8The parties’ relationship even while they remained living together was, as noted above, unusual and not infrequently hostile. That aspect of the matter is considered further below. In the particular circumstances of this case it has potential relevance to the determination as to whether any order for alteration of property interests should be made, and if so, what order.

9The husband moved out of the home in November 2017, and commenced these proceedings within days.

The issues as defined by the parties

10The wife’s primary position is that the court should not find that it is just and equitable to make any order for the alteration of property interests between these parties, and that accordingly as directed by s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) no such order can be made. She says that is so “given the manner in which the parties had voluntarily arranged their financial circumstances and matters to be considered pursuant to s.79 of the Act”.[1]

[1] Wife’s Outline of Closing Submissions handed up in court 24 April 2020, pg. 4 [27].

11In support of that primary position, the wife points to the fact that the parties do not own, and have never owned, real property registered in their joint names, have never operated a joint bank account, and have contributed equally to various expenses in a very structured way. On her case, the parties made their own decisions as to the use to which they put their respective incomes, and their own investment choices, each without reference to the other. She gave evidence that the parties “deliberately and meticulously kept [their] finances separate”,[2] and “both agreed to keep [their] properties, investments and finances completely separate”.[3]

[2] Wife’s Trial Affidavit filed 27 November 2018, pg. 6 [22].

[3] Ibid, pg. 11 [38].

12Against that background, the wife says that she has been more successful in her investment choices then has the husband, and that it would be unjust and inequitable for him to share in those successes. On her case, neither party had any role or influence in the other’s investment decisions. She argues that the parties both operated on express and implied assumptions that they would each keep their property separate, and “ran their lives and their marriage on [that] basis”.[4] She argues further that, even if there was no mutuality of assumptions whether express or implied, the manner in which the parties arranged their affairs both speaks for itself, and renders any alteration of existing interests unjust and inequitable.

[4] Transcript dated 24 April 2020, pg. 64 line 35.

13In the event that the court determines that it is just and equitable to make an order altering those interests, the wife contends that the required assessment of the parties’ contributions must heavily favour her. She contends further that any assessment of the respective contributions of the parties should be undertaken by “the application of ‘separate pools’ or a Norbis type approach”.[5]

[5] Wife’s Outline of Closing Submissions handed up in court 24 April 2020, pg. 14 [82], therein citing Norbis & Norbis (1986) 161 CLR 513.

14The husband contends that an order for alteration of property interests should be made, and that the respective contributions of the parties overall should be assessed as equal. On that basis, notwithstanding his current unemployment, he would not suggest that any further allowance should be made for his benefit as a result of a consideration of the matters set out in s 79(4)(d) to (g) inclusive of the Act. If contributions are assessed as favouring the wife, he would argue that an adjustment of 5 per cent in his favour should be made to that contributions based result.

15It is against that background that evidence was given as to the personal conduct of the parties during the relationship. Neither party relied on that evidence as supporting what is generally described as a “Kennon claim”.[6] Rather, the evidence was led in the context of the primary position adopted by the wife in the financial proceedings.

[6] As seen in Kennon & Kennon (1997) FLC 92-757.

16The husband sought a cash payment and an order that the former matrimonial home in Suburb A, which is owned by the wife, be transferred to him. The wife wishes to sell that property, whether or not orders for alteration of property interests are made. Otherwise, the parties agreed that they should each retain ownership of their property to the exclusion of the other, that they should each retain the benefit of their own superannuation entitlements to the exclusion of the other, and that they should each retain responsibility for their own liabilities. Declarations to that effect were made by consent during the course of the trial.

17In addition to the dispute just outlined, there remained a dispute as to adult child maintenance. The wife sought an order that the husband pay maintenance for Child A in the sum of $200 per week for a period of four years or until the completion of his first undergraduate degree, whichever is the earlier. She had earlier sought additional orders for maintenance, but they were not pressed.

The legal principles – alteration of property interests

18Three “fundamental propositions” laid down by the High Court as to the approach to be taken under s 79 of the Act have been summarised by the Full Court in the following terms: [7]

“1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);

2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;

3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements”.[8] (Emphasis in original)

[7] See Stanford v Stanford (2012) 247 CLR 108 for the original “fundamental propositions”.

[8] Bevan & Bevan (2013) 49 Fam LR 387, [73].

19The court must not make an order for alteration of property interests unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.[9]

[9] Family Law Act 1975 (Cth), s 79(2).

20As the High Court has observed:

“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 wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).”[10] (Emphasis in original).

[10] Stanford v Stanford (2012) 247 CLR 108, [42].

21It is in that context that the evidence given by each of the parties as to their personal conduct during the marriage, and the nature of their relationship, is potentially relevant.

22Firstly, the required separate and careful deliberation is as to whether it would be just and equitable to make any order “in all the circumstances”. The expression “just and equitable” is a “qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds”.[11] Consistently with that observation, the Full Court has expressed reservations about the utility of any analysis seeking to identify factual similarities and differences between the case under consideration, and other cases decided at first instance, noting that “no single case is ever the same as another, and each must be dealt with on its own facts and merits”.[12]

[11] Ibid, [36]; see also Mallet & Mallet (1984) 156 CLR 605, 608.

[12] Chancellor & McCoy (2016) FLC 93-752, [48].

23Secondly, any consideration of the express or implied assumptions that prevailed between the parties as to their financial affairs during the relationship must in my view necessarily involve an examination of the circumstances which gave rise to them.

24Fundamentally, it must be asked whether the matters in question were assumed by both parties, or simply by one. Self-evidently, a consideration of whether or not it is just and equitable in all the circumstances to alter existing property interests will potentially be informed by the circumstances which gave rise to those arrangements as between the parties; a case where it is common ground that the parties made a mutual, informed and truly consensual decision to keep their finances entirely separate must differ from a case where the decision to keep finances entirely separate, or for that matter to acquire property solely in the name of one party, is imposed by one party on the other.

25Were that not so, cases where by virtue of cultural considerations, or because of family violence or related issues, property is held exclusively in the name of one party, might lend themselves to an argument that it was not just and equitable to make any order altering those interests, without any examination of the circumstances which led to them being held as they were. That cannot, in my view, be so.[13]

[13] See for example, albeit in a different context, Chancellor & McCoy (2016) FLC 93-752, [34].

26Even if it is established or agreed that parties to a marriage made a mutual, informed and truly consensual decision to keep their finances entirely separate, that will not of itself inevitably lead to a conclusion that it is not just and equitable to make an order altering the property interests so established. Again, that is so, as the determination required by s 79(2) must be made in the context of a consideration of “all the circumstances”.

27It is not a requirement to take account of the factors set out in s 79(4) when considering the question posed by s 79(2), but as long as they are seen as separate and not conflated, those factors have the potential to inform the determination of that question, along with all other relevant considerations.[14]

[14] Chapman & Chapman (2014) FLC 93-592, [9]; Watson & Ling (2013) FLC 93-527, [12].

28The just and equitable requirement is not a threshold issue; rather, it permeates the entire process.[15] The court must be satisfied not only that it is just and equitable to make any order altering existing property interests, but that any order then proposed to be made is itself just and equitable.

[15] Bevan & Bevan (2013) FLC 93-545, [86]; citing Woollams & Woollams (2004) FLC 93-195, [53] and Teal & Teal [2010] FamCAFC 120, [70].

29In considering what order, if any, to make the court must take into account the respective contributions of the parties (including contributions to any assets which have ceased to be owned by them), and assess the factors in s 79(4)(d) to (g) of the Act to the extent they are relevant. It is open to the court to “determine the proportions in which the property is to be divided without treating any of the assets separately”, but it is also open to “proceed upon an item by item basis”.[16]

[16] Norbis & Norbis (1986) 161 CLR 513, 532.

30The court is required to consider the respective contributions of the parties, both financial and non-financial, holistically over the whole period to trial. That does not lend itself to a strictly mathematical approach.[17]

[17] See for example Lovine & Connor (2012) FLC 93-515, [41].

31Given the matters in issue in the present case, the observation of the Full Court in Dickons bears repeating:

“…the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79[.] That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640–1 “where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property” or is it, for example, a union where parties lived very separate domestic and financial lives?”[18]

[18] Dickons & Dickons (2012) 50 Fam LR 244, 21; therein citing Mallet & Mallet (1984) 156 CLR 605, 640 – 641.

32The relevant assessment does not require a causal relationship between contributions and a financial product of contributions. As the Full Court further observed in Dickons:

“As is plain from earlier decisions of this court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) 24 Fam LR 377; (1998) FLC 92-844; [1998] FamCA 74) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all”.[19]

[19] Ibid, [14].

33There is no presumption that, even over the course of a long marriage, the contributions of the parties are to be regarded as having been equal. There is no requirement for an entirely discrete consideration of the impact of initial financial contributions, nor that the contributions of the parties be quantified at a particular past moment in time, whether by reference to the date of commencement of cohabitation or, for that matter, the date of separation. Indeed, such a discrete consideration itself may raise the risk of error of the nature identified in Jabour,[20] and in Barnell.[21]

[20] (2019) 59 Fam LR 475.

[21] [2020] FamCAFC 102.

34Nothing in the Act requires the Court to express in percentage terms its assessment of contributions, or its assessment of the factors in s 79(4)(d) to (g), although that is often convenient and practical. Similarly, nothing in the Act requires the Court to allocate a percentage entitlement of the property to each party.

The legal principles – adult child maintenance

35Section 66L(1) of the Act is in the following terms:

(1)A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:

(a)to enable the child to complete his or her education; or

(b)because of a mental or physical disability of the child.

The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.

36The applicant bears the onus of establishing that the payments of maintenance sought are “necessary”. While “necessary” does not mean “completely indispensable”, neither does it simply mean “desirable”. The applicant must establish a “base level of necessity” before the court’s discretion is enlivened.[22] The capacity of the child to undertake employment, and the financial circumstances of the child, other than any entitlement to an income tested pension or benefit, are appropriately to be taken into account in determining that threshold question.[23]

[22] Paul & Paul (2012) FLC 93-505, [103]; see also Cosgrove & Cosgrove (1996) FLC 92-700.

[23] Ibid.

37If the threshold question is answered in the affirmative, the court must then adopt the approach mandated in s 66H, and take into account the matters set out in ss 66J and 66K.

The evidence at trial

38The husband relied on the following affidavits:

(a)his trial affidavit filed 9 November 2018;

(b)his further affidavit filed 15 January 2019;

(c)his updating affidavit filed 19 February 2020;

(d)his financial statement filed 19 February 2020;

(e)an affidavit of [Ms A] filed on 31 October 2018;

(f)an affidavit of [Ms B] filed the same day;

(g)an affidavit of [Dr C] filed the same day;

(h)an affidavit of [Ms D] filed the same day;

(i)an affidavit of [Ms E] filed the same day;

(j)an affidavit of [Mr F] filed the same day;

(k)an affidavit of [Mrs F] filed the same day;

(l)an affidavit of [Mr G] filed 5 December 2018;

(m)an affidavit of [Mr H] filed on 7 March 2019; and

(n)an affidavit of [Mr I] filed 6 March 2020.

39Of those witnesses, only Mr F, Mrs F, Ms B and Mr I were required to present for cross‑examination.

40The wife relied on the following affidavits:

(a)her trial affidavit filed 27 November 2018;

(b)her updating affidavit filed 21 February 2020;

(c)an affidavit of [Mr J] filed 21 February 2020; and

(d)an affidavit of [Mr K] handed up in court on 16 March 2020.

41Both Mr J and Mr K were required to present for cross‑examination, and did so via telephone.

42In addition, a significant number of documents were tendered into evidence over the course of the trial.

43To the extent evidence in the affidavits filed by both parties related only to the parenting case, no cross-examination was required given that consent orders were made at an early stage of the trial.

Observations as to the evidence of the parties at trial

44As will be seen, issues of credibility and the reliability of the evidence given by each of the parties weigh significantly in the determination of this case. It is convenient, therefore, to address those matters at this point.

45I am conscious that observations relating to the demeanour of witnesses can be a “crude and inaccurate methodology”, the defects of which “have been exposed on numerous occasions”.[24] That said, “in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties’ testimony, and the trial judge’s assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance”.[25]

[24] Craig v Silverbrook [2013] NSWSC 1687, [140].

[25] Ibid, [142]; see also Rosenberg v Percival (2001) 205 CLR 434, [41]; Fox v Percy (2003) 214 CLR 118, [23].

46As Hill J has recently observed:

“The court must recognise that:

Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval”.[26]

[26] Ryan v Zekas [2020] WASC 124; citing McClellan P, 'Who Is Telling the Truth? Psychology, Common Sense and the Law' (2006) 80 Australian Law Journal 655, 665, quoting Australian Psychological Society, Guidelines Relating to Recovered Memories (2000).

47Further, as Baroness Hale put it:

Almost every witness, whether adult or child, engages in a certain amount of (conscious or unconscious) manipulation of their recollection of past events to meet their present interests.[27]

[27] Re LC (children) [2014] 1 All ER 1181, 1202 [67].

48For those reasons, as far as possible conclusions should be drawn by reference to contemporary materials, objectively established facts and the apparent logic of the events.[28] Of course, that is not always possible.

[28] Fox v Percy (2003) 214 CLR 118, [31].

49For reasons that follow, where recourse to contemporaneous materials and objectively established facts or suitably independent corroboration was not available to resolve factual disputes between the parties, I preferred the evidence of the husband to that of the wife.

50In my view, the wife consistently demonstrated tendencies of the nature described by Baroness Hale. The wife is a highly intelligent person, and presented as being acutely aware of the necessary elements of her case, in particular her primary contention that no order altering existing property interests should be made. She was inclined to anticipate questions and seek to argue her case, and persisted in that despite my directions, so much so that in closing submissions her counsel proffered the acknowledgement that she was a “difficult witness”,[29] who “found it very difficult to give a straightforward answer to a simple question”.[30]

[29] Transcript dated 24 April 2020, pg. 74 line 19.

[30] Ibid, pg. 74 line 48 – 50.

51Of course, the fact that a witness is accurately described as “difficult” does not mean that he or she is dishonest, nor that the evidence given is inaccurate or unreliable.

52Where, however, that presentation on the part of the witness extends to a tendency to give evidence with an obvious eye to strategy and outcome, rather than openly, it can be a factor supporting a broader unfavourable conclusion as to credibility.

53One ready example of strategic considerations apparently influencing the wife’s approach to giving evidence may be taken from her cross‑examination.

54It was put to the wife that the signature of the husband on various documents produced by her was not in fact his signature. The documents related to a property at [B Street], [Suburb B], and were executed in June 2000. Having sought the protection of a certificate pursuant to s 11 of the Evidence Act1906 (WA), the wife acknowledged both that the husband had not signed the documents and that she arranged for unnamed persons to sign them. She then suggested that she had done so with the husband’s full knowledge and consent, and at one point went so far as to state that she had done so at his request. Those documents are referred to in more detail later in these reasons.

55The tendency of the wife to have a strategic eye to the consequences of her evidence was exemplified during an exchange about those documents. After receiving a detailed explanation of the effect of a certificate pursuant to s 11, and having been clearly directed by me to answer a particular question on the basis that a certificate would be granted if I was satisfied that she had answered satisfactorily, the wife asked, to my perception calmly, whether it was her “option just not to answer”.[31]

[31] Transcript dated 14 April 2020, pg. 128 line 14.

56A further example of the same tendency, and obvious inconsistency in the wife’s evidence, emerged when she was asked questions about her father having access to the husband’s cheque-book for the purpose of paying various accounts related to the building of the former matrimonial home. Central to the wife’s case was the proposition that she had no or very limited knowledge of the husband’s finances, as he was secretive about them and she maintained that he was domineering in their relationship.

57Initially, the wife was firm in her rejection of the proposition that while the former matrimonial home was being built her father, who [is employed in the construction industry], had access to the husband’s bank account. When presented with relevant cheque stubs, she identified her father’s handwriting on them; initially, she expressed the view that the account in question was likely her father’s account, as he “would not have written in [the husband’s] cheque-book”.[32] When she was presented with the cheque-book, which showed that the account was in the husband’s name, the following exchange took place:

[MR BANNERMAN]: So were you not aware that your father had access to write cheques on [Mr Williams’] bank account?

[THE WIFE]: I know – it’s the first I’ve seen this. I know nothing about this.

[MR BANNERMAN] So that presumably then would have been an arrangement between your father and [Mr Williams] to be able to write cheques for transactions that were obviously to do with the building of the [C Street] property?

[THE WIFE]: As I say I – I know nothing about it..[33]

[32] Ibid, pg. 39 line 32.

[33] Ibid, pg. 40 lines 28 – 37.

58Having professed to having no knowledge of her father ever making use of the husband’s cheque-book, a short time later in her evidence and in a different context the wife said that her late father would “mention” to her that the husband would “stand there, looking over his shoulder” when he was writing cheques from it.[34] When challenged as to the inconsistency of that answer with her previous answer, she gave an entirely unconvincing explanation.

[34] Ibid, pg. 52 line 24.

59By way of further example, at paragraph 23(e) of her trial affidavit, the wife said:

“I have also, through the Discovery process, noted that [the husband’s] [Suburb C] property did not receive rent for almost 3 years (2013–2016). I was not aware of this during the relationship.”

60During cross-examination, an email from the wife to the husband dated 28 May 2013 was put to her. In that email, she stated that her “biggest fear [was] that [the husband’s] rentals [were] sitting vacant”.[35] By that, she referred to the Suburb C property just mentioned, and another property owned by the husband in [Suburb D]. She expressed the view that the rental properties had “become storage vaults for all [his] old paperwork and other items that [were] no doubt left there and then never addressed again”, before apologising if in fact the properties were both rented out, expressing the hope that she was wrong in her understanding that they were not.[36]

[35] Exhibit 48, page marked 384.

[36] Ibid.

61At the very least, the wife was alive to the possible issue at that time, and did not simply become aware of it during the course of the proceedings as she asserted.

62Indeed, the wife had been focused on that issue for some time. In an email sent to the husband on 20 January 2011, in the context of settling the family budget, she said:

“… I work hard for what I’ve got and really gets on my nellie when I see you leaving 2 rentals empty for such a long time. As I’ve said – thousands gone down the drain despite my repeated advice to rent out both of them ASAP”.[37]

[37] Exhibit 21.

63Also in evidence was an email which she sent to the husband on 23 January 2011, expressing her view about proposed renovations to the Suburb C property, saying:

“Is it really worth losing 2K/month for [Suburb C] (sic) and missing out on time with the kids and working yourself stupid? How much have you already lost in rent?

Rent the place. The renovations will not bring in any significant increase in rent.

Rent [Suburb D]--what are we all waiting for? bankruptcy?”

64The proposition that the wife was unaware of any issues about the Suburb C and Suburb D properties being rented until disclosure was given during the proceedings was consistent with her contention that the parties kept their finances entirely separate throughout the relationship, had no knowledge of each other’s finances, and had no input into any decisions made by the other. It was also false.

65The evidence also demonstrated that the wife made misleading statements to the Child Support Agency in the context of an application to significantly increase the amount of child support assessed as being payable by the husband. In a letter to the Agency dated 6 December 2019, she said that her “taxable income based on [her] most recent tax return is $157,000. It will likely remain the same for the 2018 financial year”.[38] The financial statement attached to the documents submitted by her stated that her income from her work as a business analyst was estimated at $3,023 per week, or $157,196 per annum. Her tax return executed on 31 January 2019 showed that her net income from that source was in fact $239,582 before deductions of $139,898 offset against rental income of $82,504 reduced her taxable income.

[38] Exhibit 34.

66More particularly, the wife’s email to the Agency included the following statement, referring to the husband:

“[He] lived as a pampered guest in my property for many years, stating he earned far less than what I did. Disclosure via the Court has revealed he earned over double what I did.[39]”

[39] Ibid.

67In fact, as the wife emphasised in presenting her case as to the respective contributions of the parties, disclosure revealed no such thing. To the contrary, it confirmed that the husband’s earnings were consistently less than those of the wife. The agreed schedule of information from tax returns and financial statements compiled by the wife’s solicitors, and tendered by consent, showed that in each year from 1998 until 2019 the wife’s taxable income was higher than that of the husband, with the singular exception of 2015 when his taxable income exceeded hers by $9,242.

68The falsification of documents in June 2000 referred to above was not an isolated incident. In March 2013, the wife executed a disclosure statement in the course of establishing a self-managed superannuation fund. Her signature was purportedly witnessed by the husband. Under cross-examination, the wife admitted that the signature purporting to be that of the husband was not. She purported not to know who had signed his name, even suggesting at one stage that it may have been one of the children, who were then aged 11, nine, seven and five. She admitted having herself printed the husband’s name under the signature, knowing it was not his. I do not accept her evidence to the effect that she did not know who had signed the document, and it stretches credulity to suggest that it may have been one of the children.

69The wife was also evasive in parts of her evidence. She professed a lack of recall in relation to some matters which she might have perceived as being unhelpful to her case, while professing very detailed recall in relation to matters which did not meet that description. She sought to explain inconsistencies in her evidence by describing herself on several occasions as “scatter brained”, being poor with numbers, and paying little attention to numerical detail. That evidence was in stark contrast with the copious documentary evidence of her very detailed record-keeping of financial matters and individual transactions (including a handwritten record of her bank transactions maintained since at least 2010), and her approach to the preparation of a very detailed annual household budget. It was also in stark contrast to documentary evidence showing the degree to which she considered the overall financial ramifications of particular steps, including for example her exchanges with the husband as to the benefits of him retaining funds in a mortgage offset account rather than paying them to her.

70The wife sought also to portray herself as having been overborne by the husband throughout the course of the relationship. When presented with her written communications with him, which strongly suggested to the contrary (including by way of just one example a note saying “slam or smash my door once more I’ll bloody kill you pig!”),[40] she dismissively said that she was “very brave on paper” but not so when speaking to the husband in person. That is inconsistent not only with the husband’s unchallenged evidence as to her verbal abuse of him, but with the wife’s presentation more generally, and her subsequent admission that the parties “both swore at and abused each other”, and “both behaved badly”.[41] It is inconsistent also with her admission in response to the husband’s trial affidavit that she “sometimes went after him”, and “slapped him or hit him with an open palm on occasion”, sometimes in front of the children. In the same responsive affidavit, the wife acknowledged that she had also at times banished the husband from the family dining table, insisting that he eat his dinner outside and away from the family, when his interactions with the children became, to her perception, problematic.

[40] Husband’s Trial Affidavit filed 9 November 2018, exhibit E.

[41] Transcript dated 14 April 2020, pg. 78 lines 14 – 15.

71The tenor of her written communications with the husband, whether by email, SMS or handwritten note, was consistently strident, insistent, and directive. The communications did not make requests of the husband, they instructed him in no uncertain terms as to what he was to do, and what he was not to do. They included directives banning him from using the oven and microwave after he “left [them] in a mess”, and a note on a separate occasion saying “you are banned from using oven for 1 month. The oven is expensive to run. All casseroles can be slow cooked over gas. Enough with the constant ‘roasts’. More oven use! Roasts are done once in a while only. Put some effort in and get yourself some decent recipes from your family”.[42]

[42] Husband’s Trial Affidavit filed 9 November 2018, exhibit E.

72The volume of those communications, and the period over which they extended, are inconsistent with the proposition that the wife was very occasionally “brave” in her dealings with the husband, but more typically overborne by him.

73While the wife professed to be “ashamed” of some of her written communications to the husband, when confronted with them in cross-examination, her expressions of remorse and embarrassment did not ring true.

74I accept that parties to a conversation, particularly when that conversation occurred some time ago and is one of many, can genuinely have differing honest recollections of it. I accept also that parties to a relationship will often have entirely different, but honest, perceptions as to the dynamic between them. Nevertheless, the totality of the evidence, and not simply the limited examples specifically referred to above, led me to conclude that the wife’s evidence on contentious matters should not be accepted unless corroborated.

75In contrast, the husband gave his evidence in an unguarded and open manner. He was unshaken in his evidence in relation to fundamental matters, and his evidence in that regard was consistent. He made admissions against interest without apparent hesitation, and in contrast to the wife readily acknowledged errors in his affidavit evidence when they were pointed out to him. Indeed, both his responses in cross‑examination and his demeanour when challenged were consistent with his version of the dynamic between the parties in their own interactions, which was (to paraphrase) that he more often than not acquiesced in his dealings with the wife so as to “keep the peace” and only sometimes stood his ground. He readily acknowledged when his recollection was less than precise.

76Albeit in the context of a submission seeking to equate the credibility of both parties, counsel for the wife conceded that the husband was a “[witness] of truth in a sense” and “readily conceded most of the propositions [he] put to him”.[43]

Observations as to the evidence of other witnesses at trial

[43] Transcript 24 April 2020, pg. 73 lines 20 – 22.

77The husband’s witnesses, Mrs F, Mr F and Ms B, all gave their evidence in an honest and straightforward manner although none would profess to be particularly accurate historians. With no disrespect to them, nothing of significance turned on their evidence.

78The husband’s accountant, Mr I, gave his evidence in a straightforward and professional manner.

79The wife’s brother, Mr K, similarly gave his evidence in an honest and straightforward manner, and his explanations for matters upon which he was questioned were both logical and apparently unguarded. I accept that he was a truthful witness.

80The wife’s accountant, Mr J, gave his evidence in a straightforward and professional manner.

The property case

The existing interests of the parties in property

81To their credit, with only one exception of significance, the parties were able to agree the extent and value of their existing interests in property and superannuation, and their liabilities.

82There was only one minor dispute as to values; the parties vouched various account and superannuation balances at 28 February 2020 by agreement, and encountered difficulty in obtaining a precise figure for the wife’s [Superannuation A] at that date. The value of that interest at 8 February 2020 was $226,040. By 11 March 2020 it had dropped to $213,750 by virtue of market forces only. The wife proposed that a midpoint figure of $219,895 be adopted; sensibly, the husband did not cavil with that. I adopt the midpoint figure.

83The only remaining item of dispute related to a debt allegedly owed by the wife to her brother Mr K in the sum of $225,000.

84That debt arose as the wife contracted with her brother in relation to the construction of the home at [D Street], [Suburb E] (“the Suburb E home”) into which she and the children moved in late 2017 or early 2018. A copy of the “cost plus” contract dated 2 February 2016 and providing for a payment to Mr K in the sum of $225,000 was in evidence.

85The contract provided for the wife to pay Mr K that amount “in one lump sum within 14 days upon the earlier of” the sale of the Suburb A home, and six calendar months after practical completion of the Suburb E home. As already noted, the Suburb A home has not yet been sold; practical completion of the Suburb E home was achieved on the wife’s evidence in about July or August 2018, and on Mr K’s evidence, as confirmed by the notice he was required to give to the relevant Council, in March 2018. I accept that Mr K’s evidence in that regard is accurate.

86On behalf of the husband, it was suggested that the fact that no payment pursuant to the contract has yet been made by the wife supports a conclusion that the asserted debt to Mr K is either not genuine at all, or at the very least that the wife will not be pressed for its payment and that accordingly it should be disregarded.[44] The husband pointed out that at all material times the wife has had sufficient funds to make the payment.

[44]Biltoft & Biltoft (1995) FLC 92-614.

87I reject that submission. I accept the evidence of Mr K to the effect that he always understood the primary agreement to be that he would be paid upon the sale of the Suburb A property, and that the term of the contract requiring the wife to pay him six months after practical completion of the Suburb E home, while a necessary inclusion in the contract, was not one which he felt inclined to enforce in circumstances where the wife’s desired sale of the Suburb A property was delayed by virtue of these proceedings.

88I accept that the amount of $225,000 is genuinely owed by the wife to Mr K, and that he has an expectation that it will be paid either on the sale of the Suburb A property, or within a reasonable timeframe after the completion of these proceedings if they do not result in that sale.

89There were other disputes between the parties as to amounts each would contend should be notionally added back for the purposes of calculations in the event that I determine that it is just and equitable to make any order altering property interests. In the particular circumstances of this case, I propose to deal with those disputes separately.

90I find that the existing legal interests of the parties in property and superannuation, and their liabilities, are as set out in the table below. Neither party contended that they held any relevant equitable interest in property.

ITEM	VALUE
HUSBAND
Assets
[Suburb D Property]	725,000
[Suburb C Property]	940,000
[Bank Account A]	461,361
[Bank Account B]	113,494
[Bank Account C]	6
[Motor Vehicle A]	14,700
Household contents and tools	3,510
Coin collection	3,000
Fund in solicitor's trust account	38,359
Total Assets	2,299,430
Liabilities
[Loan Account A]	(460,384)
[Loan Account B]	(791,693)
[Loan Account C]	(1,486)
Total Liabilities	(1,253,563)
Superannuation
[Superannuation Fund B]	1,070,353
Total Superannuation	1,070,353
HUSBAND'S NET ASSETS AND SUPERANNUATION	2,116,220
WIFE
Assets
[Suburb E Property]	2,900,000
[Suburb A Property]	1,550,000
[Suburb B Property]	725,000
[Suburb D Property]	750,000
[Suburb F] [Property A]	570,000
[Suburb F] [Property B]	530,000
[Suburb B Property]	860,000
[Bank Account D]	183,821
[Bank Account E]	316,064
[Bank Account G]	15,304
[Motor Vehicle B]	12,500
Household furniture	12,395
Estimated tax refund	4,030
Funds in solicitor's trust account	21,746
Total Assets	8,450,860
Liabilities
Builder's payment to Mr K	(225,000)
[Loan Account D]	(700,007)
[Loan Account E]	(660,000)
[Loan Account F]	(466,064)
[Loan Account G]	(874)
Total Liabilities	(2,051,945)
Superannuation
[Superannuation Fund A]	219,895
[Superannuation Fund C]	25,081
Total Superannuation	244,976
WIFE'S NET ASSETS AND SUPERANNUATION	6,643,891
OVERALL NET ASSETS AND SUPERANNUATION	8,760,111

91Having determined the existing interests of the parties in property and superannuation, and the extent of their liabilities, I turn now to the relevant factual matters informing the further determinations to be made.

The financial circumstances of the parties prior to the commencement of the relationship

92The parties met and began their relationship in mid-1998.

93At the time, the husband was living in a unit at [E Street] in [Suburb F] which he had purchased some years earlier (“the E Street unit”). The unit was encumbered by a mortgage. The wife was living in a home at A Street, Suburb A, owned by her brother and her parents (“the A Street home”).

94It was common ground that, before the parties met, the wife’s parents had funded the purchase of the block of land upon which the matrimonial home was eventually built (“the Suburb A property”) by the wife and her brother. The wife owned an 83 per cent share, and Mr K owned the balance. The property was purchased for $300,000. Mr K’s interest was transferred to the wife in 1999. The property was unencumbered.

95On the husband’s evidence, he owned a [motor vehicle] which he estimated to be worth at least $20,000, and a [second motor vehicle] which he estimated to be worth at least $12,000, but which was subject to finance. The first motor vehicle was subsequently sold for $16,000, and the second for $5,000. He was employed by [an accounting firm as a junior accountant], and had accumulated superannuation interests worth approximately $33,000.

96The husband had also made an unsuccessful investment in [Company A] through an entity called [Company B], established for that purpose in 1996. During cross‑examination it was established that his loss from that investment had been crystallised before the parties began their relationship.

97On the wife’s evidence, by early 2001 she owned a car worth approximately $10,000, and furniture which she estimated to have a value of approximately $20,000. I accept that at the time the parties began their relationship the wife likely owned that car, or a car of similar value, and furniture. She was working as a business analyst, and had not at that point accumulated superannuation entitlements.

Commencement of the relationship and acquisition of properties

98It was common ground that at about the time when the parties met and commenced their relationship, but before the husband moved into the A Street home, the wife had purchased a property at [F Street], [Suburb G].

99The relationship progressed sufficiently quickly that by August 1998 the parties had arranged to go on a holiday to [Country A] together. Evidence produced at trial confirmed that the deposit for the holiday was paid on 31 August 1998. A hotel bill dated 19 October 1998 and produced at trial pinpointed the timing of the holiday itself.

100While in her affidavit material the wife initially said that the parties began living together in early 2001, at trial she conceded that was inaccurate. In her affidavit sworn on 23 November 2018, the wife said that the husband “came to stay” with her when they had “only been dating a couple of months”, and stayed “for around 3 months until mid‑1999”. To her credit, having had the opportunity to review documents she corrected that in her affidavit sworn on 21 February 2020, saying that on her estimation the husband moved into the A Street property with her in around October or November 1998, staying for approximately three to four months.

101The husband was not able to be precise about when he moved into the A Street property. His best recollection was that it was around the time of the holiday to Country A. While some time was spent at trial exploring that, and in particular by reference to his bank statements still being sent to the E Street unit as late as mid‑January 1999, given the wife’s updated evidence nothing turns on that. I note in any event that documents tendered at trial also showed that the husband’s Telstra account issued on 22 January 1999 was sent to him at the A Street address.

102On 24 February 1999, the wife bought a property at [G Street], Suburb B (“the G Street property”). On the evidence of her accountant, the purchase price was just under $184,000. The husband accepted under cross-examination that he made no financial contribution towards the purchase price for that property. On his recollection, upon which he was not challenged, there was very little equity in the property, the bulk of the purchase price being borrowed.

103In or about May 1999, planning commenced for the construction of a home on the Suburb A property. The design drawings, which were noted as being prepared for both parties, were dated 2 June 1999. The wife acknowledged that the husband was involved in the design process, and that (for example) modifications to what would otherwise have been a standard design were made to accommodate his height. On the husband’s evidence, upon which he was not challenged, he undertook negotiations with the council in relation to various issues regarding the build, including the setback from the street.

104In her affidavit sworn on 23 November 2018, the wife said that the husband “paid for a few relatively minor items through May, June and July 1999 totalling around $3,200 worth of expenses”, and that at the time their relationship was “off and on”. She said that in around August/September 1999, “he stopped contributing towards the house”.

105In his trial affidavit, the husband said that he had, by review of his records, been able to identify payments towards the construction of the home on the Suburb A property totalling $24,460.70 “over 3½ month period in the middle of 1999”.

106Difficulties arose in the relationship. On the husband’s case, the wife proposed that he should contribute $300,000 towards the construction of the home on the Suburb A property. He was unable to do so immediately. That gave rise to a disagreement between the parties, after which the husband moved out.

107On the wife’s affidavit evidence, the husband moved out of the A Street property and into rental accommodation in [Suburb H] in “around February 1999”. At trial, she modified that position to suggest that he had moved out by March or April 1999. In re-examination, it was suggested to her that it might be that the husband had moved sometime between May and November 1999.

108During cross-examination, a series of documents were put to the wife which had the effect of confirming the husband’s evidence as to the payments made by him towards the construction of the home. The relevant dealings were directly between the husband and the wife’s late father, and when the documents were brought to the wife’s attention she did not dispute them. They included payments made in July and August 1999.

109A document was also put to the wife showing that the husband paid $1,691 to a real estate agent on 13 September 1999 for what was shown as “Suburb H rent”. Similarly, the husband’s bank statements showed him undertaking various shopping transactions in Suburb H commencing in September 1999, and the wife’s father repaying to the husband an amount of $21,000 on 4 October 1999 in the circumstances outlined further below. Further documents were put to the wife showing that the husband’s bank statement for the period ended 31 August 1999 was sent to him at A Street, whereas the next monthly bank statement was sent to him at the Suburb H address.

110In August 1999, the wife purchased a property at B Street Suburb B (“the first B Street property”). The husband says that he was present with the wife and her parents at the auction at which that property was purchased. In cross-examination, while saying that she could not recall the husband attending, the wife did not dispute his evidence that he did, albeit she at one point thought that the auction in question might have been in relation to a different property. While understandably neither party gave evidence as to the date of the auction, the wife’s tax return for the year ended 30 June 2000 showed that she acquired the first B Street property on 31 August 1999, and disposed of it on 17 May 2000.

111Notwithstanding the documentary evidence, the wife maintained her position that the husband had moved out of the A Street property and into the Suburb H property in March 1999. I reject that contention, and accept the evidence that he moved in late‑August or early-September 1999.

112The factual dispute in that regard was perceived by the parties to be important both because of what then transpired, and their focus on the duration of the relationship.

113In her initial trial affidavit, the wife, having said that the husband paid for “a few relatively minor items” in relation to the construction of the home on the Suburb A property, went on to say that in around December 1999 the parties “had a discussion during which he told me he did not want to build the house with me anymore”. She went on to say that she had accepted his position , and made it clear to him that “if he was not going to contribute, he would not have any interest in the house”, and that the husband agreed. She went on to say that the husband then sent her a letter setting out what he had paid for, and she reimbursed him. That letter, dated 22 December 1999 and setting out expenses totalling $3,221, is exhibited to her affidavit and sets out a number of accounts in detail, enclosing receipts where possible.

114The husband also sent a letter addressed to the wife and her parents on the same date saying:

“As requested I submit this letter as a legal statement that I hold NO Financial investment or ownership rights in the land or property located at [A Street,Suburb A].”[45]

[45] Wife’s Trial Affidavit filed 27 November 2018, annexure D.

115The wife did not dispute the proposition that the letter was likely written by the husband in response to a request either from her or from her parents.

116By the time those letters were written, the husband had already liaised directly with the wife’s father and had been reimbursed approximately $21,000 by him.

117In cross-examination, the wife admitted that at an early stage of the relationship she had asked the husband to make a contribution of $300,000 towards the costs of building the home on the Suburb A property. She acknowledged that the parties had “agreed to build together”, and that she expected him to contribute “a fair share”.[46] She said the husband was “quite enthusiastic until the time came to pay, and then he withdrew”.[47] The following exchange then occurred:

[MR BANNERMAN]: And so in those early discussions about the building there was a commonality of position between the two of you that this was going to be a house that you would both live in?

[THE WIFE]: Yes.

[MR BANNERMAN]: And that you would both pay for?

[THE WIFE]: Yes, we were both going to pay equally. We were both going to live in it. Absolutely. It was wonderful.

[MR BANNERMAN]: It was going to be – and I don’t like doing that, but your house. The two of you it was going to be your house?

[THE WIFE]: Yes. As equal partners, yes.[48]

[46] Transcript dated 14 April 2020, pg. 17 lines 3 – 9.

[47] Ibid, pg. 17 lines 18 – 19.

[48] Ibid, pg. 17 lines 31 – 42.

118The wife said that the agreement just referred to had been reached on the basis of an assurance by the husband that he had $500,000 in the bank “ready to go”.[49] The husband disputes that. On his evidence, he made no such assurance and was not in a position to immediately borrow the required sum. I accept the husband’s evidence in that regard, noting that in her initial trial affidavit the wife said that when the parties began living together “he told me he also had investments worth around $500,000, but they were ‘all tied up’ in a dispute with his former wife”, albeit she said that later “turned out to be untrue”.

[49] Ibid, pg. 18 lines 27 – 28.

119In early-2000, while still living at the Suburb H property, the husband told the wife that he could now borrow the required $300,000 to contribute to the cost of the construction of the home on the Suburb A property, but required the relevant title for the bank. Having initially adamantly maintained that the parties “didn’t have those discussions”,[50] the wife later acknowledged that they had, albeit maintaining that she had no means of knowing whether the bank would in fact advance the finance requested. She maintained that her father in particular was uncomfortable with what was being proposed by the husband, and accordingly they declined to provide the title and the borrowing did not proceed.

(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.

5.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 3 and 4 above do not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

26 JUNE 2020