WULANDRI & MILFORD
[2015] FamCA 1049
•27 November 2015
FAMILY COURT OF AUSTRALIA
| WULANDRI & MILFORD | [2015] FamCA 1049 |
| FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the husband and wife were married for approximately six years – Where there are no children of the marriage – Where the husband made greater overall contributions – Where there is no net pool of assets – Where there is a fund representing the proceeds of sale of a property bought by the husband – Where it was found that the husband owes the balance of that fund to his mother – Where no contribution based adjustment to the parties’ property was warranted –Where it is ordered that the parties otherwise retain what they have and what they owe. | |
| Family Law Act 1975 (Cth) ss 75(2), 79, 81, Family Law Rules 2004 r 6.08, 7.09, 11.10, , | |
Stanford v Stanford (2012) 247 CLR 108; and | |
| APPLICANT: | Ms Wulandri |
| RESPONDENT: | Mr Milford |
| FILE NUMBER: | SYC | 155 | of | 2013 |
| DATE DELIVERED: | 27 November 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 26 – 28 October 2015 |
REPRESENTATION
| APPLICANT WIFE: | Self Represented |
| RESPONDENT HUSBAND: | Self Represented |
Orders
The parties shall forthwith do all things and sign all documents to authorise the payment of the balance of the funds currently held in a Term Deposit trust with Jensens Solicitors & Attorneys (Account number … St George Bank) to Ms C Milford or as she may direct in writing.
The wife shall retain all other assets in her name and possession including but not limited to bank accounts, motor vehicles and personal items.
The husband shall retain all other assets in his name and possession including but not limited to bank accounts, motor vehicles, superannuation and personal items.
Each party shall indemnify the other and keep them indemnified in relation to all debts in their respective names.
The Amended Initiating Application filed by the wife on 11 September 2015 and the husband’s Response are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wulandri & Milford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC155 of 2013
| Ms Wulandri |
Applicant
And
| Mr Milford |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings in relation to property settlement. The parties have a small asset pool with the main asset being a sum of approximately $454,000, representing the net sale proceeds of real estate owned by the husband. The wife seeks that the balance of the account be transferred to her. She also seeks that the husband pay her $290,000 and pay her son, Mr F (“Mr F”), $110,540. The husband alleges that he has a debt to his mother in excess of the funds held on trust and seeks that the balance of the account be paid to her in reduction of that debt. Both parties seek that otherwise, they retain the assets in their respective possession.
The parties lived together, off and on, for a period spanning about six years. There are no children of the marriage.
Ultimately, I was satisfied that the parties’ liabilities exceed the value of their assets.
Notwithstanding that they are divorced, for convenience I shall refer to the parties as the wife and husband.
Applications
The wife sought orders in terms of an Amended Initiating Application filed on 11 September 2015.
That Amended Application purported to amend the wife’s Initiating Application filed 18 December 2013. The purported amendments included, for the first time in the proceedings, final orders sought against Ms C Milford, the husband’s mother. Despite those orders sought, Ms Milford was not named as a party in the Amended Application.
Rule 11.10 of the Family Law Rules 2004 provides in part:
FAMILY LAW RULES 2004 - RULE 11.10
Amendment by a party or court order
(1) A party who has filed an application or response may amendthe application or response:
(a) for a case started by an Initiating Application (Family Law):
(i) at any time before the procedural hearing at which the case is allocated the first day before the Judge; or
(ii) if the court gives permission--at a later time;
....
These proceedings were initially fixed for hearing over three days in February 2015. On transfer from the Federal Circuit Court on 9 December 2014 that date became the first date before the judge and an order was made listing the matter for hearing over three days commencing on a date to be allocated. The ultimate hearing dates were allocated administratively. Therefore, months before 11 September 2015, the wife needed the agreement of the husband or the Court’s leave to amend her Application. She had neither. Prior to the filing of the Amended Application, the only role of the husband’s mother in the proceedings was as a witness in the husband’s case. Because of representations about her age, health and convenience, arrangements had earlier been made, after hearing from the parties, to take the evidence of the husband’s mother in the afternoon of the second day of the trial and by telephone. Arrangements were made for her to attend at the office of the former solicitor for the husband and she was cross-examined by telephone but in his presence.
It should be noted that informal amendments to relief sought are usually allowed in most family law proceedings because there can be no real detriment to the other party/ies if changes are made within the scope of the existing claims for relief. However the formalities must be applied in the case of an amendment invoking a new head of jurisdiction and/or purporting to join a new party to the proceedings and/or for the first time affecting the rights of a third party.
It was understandable then that at the commencement of the hearing there was no appearance by or on behalf of Ms Milford. It transpired that she had not been properly served with the wife’s Amended Application. The wife posted a copy of the Amended Application in an envelope addressed to the husband and his mother at Ms Milford’s I Town address. Ms Milford was not personally served, nor was there an acknowledgement by her of service by post. There is no evidence at all about service of the wife’s trial affidavit or Financial Statement on Ms Milford. Therefore, even if leave was belatedly given to the wife to amend her Application, Ms Milford was given no meaningful opportunity to respond.
When these issues arose at the commencement of the hearing and without suggesting that such an application would be successful, I informed the wife that she could make an application for an adjournment of the hearing to enable her to seek to join Ms Milford in the proceedings. After some discussion the wife said she did not seek an adjournment. I ascertained from the husband that he would have strongly opposed an adjournment and it must be said that if the wife had sought an adjournment, in the circumstances of this case, it is highly unlikely that it would have been granted.
For completeness I should note that the wife inferred that Ms Milford was not in control of her own affairs. There is reference in the wife’s material to Ms Milford and “Guardianship”. However, if, as the wife presumably believed, Ms Milford was under a disability, she was required to make special arrangements for service[1] and Ms Milford could only have responded to the wife’s Amended Application by a Case Guardian[2]. Had service been effected in those circumstances, the proceedings would have been stayed until a Case Guardian was appointed.
[1] Rule 7.09.
[2] Rule 6.08.
As it transpired, there was no evidence to suggest that Ms Milford is under a disability requiring the appointment of a Case Guardian.
Putting aside the claims against Ms Milford, many of the terms of the orders expressed in the wife’s Amended Initiating Application are unintelligible. In my view, paragraphs 1, 4, 5, 6 and 7 are unintelligible; paragraph 3 would appear to seek a finding, rather than an order; and paragraphs 10, 11 and 13 may have been intended in the style of machinery orders but paragraph 10 seems inconsistent with paragraph 8. I sought to clarify with the wife the intended meaning of the balance of the orders she sought. Through that discussion I settled with her the following list of orders sought by her:
1.That the husband’s property be taken and sold and that the proceeds of sale be paid to the wife.
2.That forthwith the parties do all things and sign all documents to pay to a nominated bank account of the wife the amount held in the trust account of the former solicitors of the husband.
3.A finding is sought or a declaration that the mortgage purportedly created between the husband and his mother dated 18 April 2011 was a sham.
4.That the husband indemnify the wife against any liability of either of the parties to Ms C Milford.
5.That the husband indemnify the wife against any liability of either of the parties to the estate of the wife’s deceased mother.
6.That the husband forthwith return to the wife $290,000 which was received by the wife by way of inheritance from her mother.
7.That the husband forthwith pay to Mr F $110,540 expended by Mr F for the benefit of the parties or either of them, being funds borrowed by him from his father and grandfather.
The husband sought orders in terms of a Minute included in his Case Outline document dated 14 October 2015 as follows:
1.That the $450,000 plus interest accrued, currently held in a Term Deposit trust with Jensens Solicitors & Attorneys (Account number … St George Bank) be authorized forthwith to transfer all the money held in that account to Ms C Milford being the former mortgagee.
2.That the respondent retains all other assets in his name and possession including but not limited to bank accounts, motor vehicles, and personal items.
3.That the applicant retains all other assets in her name and possession including but not limited to bank accounts, motor vehicles, superannuation, and personal items.
4.That each party retains all other debts in their respective names and indemnify each other in respect of the same.
5.That the proceedings be otherwise dismissed.
Documents Read
The wife initially sought to rely on several affidavits. On 9 December 2014 directions were made for trial including:
…
5.The parties file and serve the evidence of any lay witnesses, that is to be one affidavit only from each deponent, not later than six weeks prior to the first date listed for hearing.
Even then in the course of final submissions the wife referred to a paragraph of her latest affidavit which referred to several earlier affidavits.
Ultimately, the parties relied on the following documents:
Documents relied on by the applicant wife:
·Affidavit of Mr F filed 27 June 2014;
·Affidavit of the wife filed 10 September 2015; and
·Financial Statement of the wife filed 10 September 2015.
Documents relied on by the respondent husband:
·Amended Response filed 3 April 2014;
·Affidavit of Ms C Milford filed 16 August 2015;
·Affidavit of the husband filed 10 September 2015; and
·Financial Statement of the husband filed 16 September 2015.
The Proceedings
The proceedings were commenced in the Federal Circuit Court in 2013. The matter was listed for final hearing over three days commencing on 25 February 2015 and for an interim hearing on 9 December 2014. On 9 December 2014 the proceedings were transferred to this Court and the interim hearing was conducted before me on that day. In addition to interim orders, orders were made for a final hearing to be conducted over three days to commence on a date to be fixed. The final hearing was ultimately fixed to commence on 26 October 2015.
At the final hearing, the parties appeared in person and without legal representation. The parties were both at a great disadvantage in presenting their cases. On many issues there was no probative evidence. The process of taking objections to evidence was time consuming and largely futile. On many occasions material struck out on objection was re-introduced in cross-examination. Neither of the parties had read s 79 prior to the hearing. The parties appeared to be exhausted and emotional. Each of them was reduced to tears at times during the hearing. I should record, however, that the parties were polite and cooperated with time limits imposed on them and otherwise in the management of the trial.
The parties are both intelligent people, the wife with a PhD to her name and the husband having worked as an auditor. English is not the wife’s first language, nor for that matter as I understand it, is it her second or third language. At times the wife was hard to understand and she obviously had difficulty in understanding the proceedings. She did not seek the assistance of an interpreter.
On 28 October 2015, judgment was reserved.
Short History
The wife was born in Asian Country 1 in 1960 and as at the conclusion of the hearing she was 54 years of age. The husband was born in 1957 and he was 58 years of age at the conclusion of the hearing.
The parties lived under one roof from August 2006 and they were married in 2008. They separated not later than December 2012 and were divorced with effect from 16 January 2014.
Children
There are no children of the marriage. The wife has two children from a previous marriage, Mr F who is currently aged 27 and K (“K”) who is 13 years old. K lives with his father. The husband has two children from a previous marriage, namely Ms AR who is currently aged around 28 years and Mr BM who is currently aged around 25.
Cohabitation
The parties lived under one roof at the husband’s rented accommodation at AA Street, Suburb 6 from August 2006 to February 2009. The husband retained that accommodation until 2011 when he bought and moved into a unit at Suburb 5. It is the contention of the wife that the parties continued to live together as man and wife after February 2009.
From February 2009 to December 2010, the wife had accommodation in a DD Street, Suburb 2. In December 2010 the wife moved to a community housing unit in Suburb 4. The wife deposed that the husband lived with her at the Suburb 4 unit from January 2011 to December 2012.
Thus the parties had separate accommodation available to each of them from February 2009.
The husband contends that cohabitation (as opposed to living under one roof) did not commence until August 2008 and that it ceased in May 2010. It is difficult to resolve the evidence about those matters. The wife paid rent to the husband in the sum of $100 per week from August 2006 until February 2009. She said that she stopped paying rent when she discovered that the husband had subsidised accommodation and was himself only paying $70 per week in rent. The husband did not challenge that evidence but responded to the effect that the wife received a rental subsidy from Centrelink. I take it that he intended by that evidence to say that there was no impost on the wife by those payments. Perhaps understandably, the wife did not challenge that evidence or seek to reply to it and the husband did not press her about committing a fraud on Centrelink.
The parties were married in 2008.
The evidence about the timing of the parties’ separation is bizarre. The wife deposed that the parties separated in December 2012. However, on 11 January 2013 the wife gave a statement to the NSW Police[3] including the representation “I have been separated from (sic) since February 2009”. The statement includes an acknowledgment from the wife that the contents are true and that if the statement is tendered in evidence, she will be liable to prosecution if she has knowingly made a false statement.
[3] Annexure B to the husband’s affidavit affirmed 7 September 2015
The husband deposed that the parties separated in February 2009. However, when asked about that in cross-examination he said that he only asserted that date because the wife had given the statement to police to that effect. Although there was a separation in February 2009, which he said came in the form of the wife telling him that she had acquired her own accommodation and if he wanted to live with her, he had to move to the new accommodation with her. The husband said that he still wanted to live with her. He agreed in cross-examination that from February 2009 to May 2010 the parties stayed and slept together, although he said he lived out of a suitcase at the wife’s home and she made him arrive and leave her accommodation, discreetly.
It is the wife’s evidence that for most of the time from 2006 until December 2012, save for a period in 2011 when the husband travelled to Asian Country 3, the parties slept under the one roof (whether at her accommodation or that of the husband) and in the same bed. The husband asserted that he was in Asian Country 3 for one month in 2011. The husband prevaricated in relation the wife’s evidence about their cohabitation. He agreed that after May 2010 they slept under one roof and continued to have sexual relations from time to time. He said that for the duration of an apprehended violence order (“AVO”) granted against him and for the protection of the wife (2010 – 2011), they did not cohabit. He asserted that for many occasions when they did stay together, he paid the wife $100 as her price for him to stay with her. The wife did not agree with that characterisation of the payment.
Each of the parties said that for much of the time between 2006 and 2012 they wanted to resume their relationship with the other and that they loved the other party. There is little or no evidence about the nature of the parties’ cohabitation. There is no evidence about who undertook the domestic chores, for example. The parties maintained separate bank accounts throughout but otherwise, the wife says that the husband was in charge of family finances. The fact of the parties living under one roof for much of the six years and sharing a bed is suggestive of a relationship in the nature of husband and wife. The AVO proceedings, the fact of each maintaining separate accommodation at all times after February 2009 and the respective payments one party to the other for accommodation, argue against that finding. The best I can do is to find that the parties lived together in a domestic relationship for much of the period from August 2006 to December 2012.
Happily, the main focus of property settlement proceedings is on contributions rather than the nature and quality of the parties’ relationship and cohabitation.
Background Facts
In the 1990’s the wife worked as a senior lecturer and undertook post graduate studies at EE University. From 1998 to 2006 the wife also worked as an English – Asian Country 1 interpreter. The husband was employed as an auditor from 2006 to 2012.
The parties met in May 2006.
The fact that the husband was employed as an auditor from 2006 to 2012 sits uncomfortably with the fact that he lived in subsidised housing from 2006 to about 2011. It is my understanding from the husband’s oral evidence and from documents admitted into evidence, that the husband committed a fraud on the housing authority. Action was taken against him by the housing authority but he contends that the resultant debt was ultimately written off.
From 2006 to 2012, the wife received little income from paid employment. Otherwise, the wife said that she “worked full time” for the husband to assist him with his work.
An AVO was made for the protection of the wife, against the husband and it remained in force from November 2010 to April 2012.
The wife said that she and the husband had an intermittent relationship from January 2011 to April 2011 and that they travelled together on business trips for the husband’s work.
In April 2011 the husband purchased a property at FF Street, Suburb 5, NSW (“the FF Street property”). At this time the husband moved from the housing commission unit at Suburb 6 to the FF Street property. There is a dispute between the parties about the source of funds used to purchase the property.
The wife had a car accident on 22 January 2013 which resulted in her suffering broken ribs and according to the wife, Motor Neurone Disability.
In May 2013 wife applied for a further AVO against the husband. The wife said that the husband had been stalking her, including installing a tracking device on her car. There is no evidence that a second AVO was granted.
These proceedings were commenced by the wife on 18 December 2013.
The FF Street property was sold for $635,000 on 14 December 2014. After repayment of the debt of $99,527 owing to the Permanent Trustee, and payment of $6,728 in sale costs, $528,745 remained. The husband intended to pay that to his mother but the wife applied for orders in relation to the net proceeds of sale. Pursuant to orders of this Court dated 9 December 2014, $450,000 of the sale proceeds was held in a controlled monies account in the name of the solicitor for the husband, Jensens Solicitors and the balance of $78,745 was paid to the husband’s mother.
The husband and his mother say that as at October 2015 he owes her about $543,630.
Sadly, in 2014 both of the wife’s parents died. The husband alleged that the wife inherited approximately $40,000 from the sale of her father’s property in Asian Country 1. The wife denies that she has inherited any money or property.
The husband currently lives with his mother at her property at I Town. Ms C Milford is about 86 years of age. The husband contends that he is currently unemployed and receives a Newstart Benefit. He asserts that he is insolvent. He said that he has borrowed over $20,000 from his mother, post separation, to cover legal costs and his living expenses.
The wife has remained in community housing since separating from the husband and except when K spends time with her, she lives alone. She is in receipt of a Disability Support pension based on her own disability.
issues
The issues for determination include:
a)Whether the husband has a business in Asian Country 3, and if so, its value;
b)Whether the husband retains any interest in the GG business and if so, its value;
c)The disbursement by the husband of the funds obtained from his superannuation;
d)Whether there is a debt owed by the husband to his mother arising under a loan agreement dated 18 April 2011;
e)Whether there is a debt owed to the wife’s family for moneys advanced to her from 2006 to 2012;
f)Whether there is a debt owed by the parties to the wife’s son, Mr F;
g)Whether there has been adequate disclosure; and
h)Whether the husband owes his mother over $20,000 which he borrowed since separation for living expenses and legal costs.
Credit and Submissions
The Evidence of the Witnesses
Neither of the parties was a good witness. The wife was clearly hampered by a lack of facility in English. There is reference in the evidence to the wife speaking seven languages. The wife made no request to be assisted by an interpreter and it was my understanding that there are no interpreters available in a dialect that would be of real assistance to her. The wife said that at one point some years ago she worked as an Asian Country 1 – English interpreter. I am not sure of the level at which she worked (NAATI classification etc). Much of her written and spoken testimony was difficult to understand or suggested a meaning not intended by her. Those problems affected the orders she sought, her Affidavit and Financial Statement. Even when I sought to settle the intending meaning of her evidence with her, I was not always confident about the wife’s intentions. I have referred to the formal orders sought. Some of the wife’s written evidence is confusing. As I discuss later in these reasons, the wife’s Financial Statement contains a reference at item 21 “Mortgage/rent” to her having a weekly liability of $350 for “Rent car to [Mr F]”. It transpired that the wife does not pay $350 per week to Mr F or anything like it. The wife said something from which I understood her to believe that Mr F is entitled to some recompense for her use of his car.
There is a similar problem with the wife’s evidence about the moneys she says are owing to Mr F and to her family. The ‘debt’ to Mr F is a calculation made by the wife and/or Mr F as to recompense for Mr F minding his brother when the parties travelled for the purposes of the husband’s work. There were some (unidentified) direct costs and Mr F calculated a costing for his time at $30 per hour. Importantly, he is the asserted creditor but he does not seek the repayment of any debt. The wife’s evidence about her receipt and application of Centrelink benefits and about her maintenance of subsidised housing makes no sense of her contention that throughout those periods the parties were living together as man and wife.
The husband was not a good witness. He deposed to a date of separation of February 2009 but said that in his view the separation occurred in May 2010. When presented with evidence that the parties cohabited after that, he said something like, “oh well, it was later then”. As it transpires the issue of separation is not important but in my view, the husband was not a careful and reliable witness. The husband defrauded a public housing authority and there is reference in the evidence to conduct that suggests other acts of dishonesty in respect of the later stages of his employment. On 24 March 2011 the husband executed a statutory declaration[4] which gives a very different version of the events of February 2009 to his evidence before me. He told me that he was very upset to find out that his wife had obtained separate accommodation. In his statutory declaration he says that in December 2008 the marriage was on the rocks and he asked the wife to find new accommodation.
[4] Exhibit 2
Ms C Milford confessed to having a poor memory about some things but otherwise she was a good witness. She gave direct answers and was not successfully challenged on any issue.
Mr F was a good witness. To my observation he was somewhat embarrassed to be involved in the litigation but without hesitation he gave evidence inconsistent with that of his mother. He was not successfully challenged on any issue.
The Law
The Approach In Proceedings Under Section 79
In the context of these proceedings s 79 of the Family Law Act1975 (Cth) (“the Act”) relevantly provides:
FAMILY LAW ACT 1975 - SECTION 79
Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; or
….
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i)either or both of the parties to the marriage; …
….
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
….
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79 involves two broad enquiries. There is a preliminary aspect of the requirement created by s 79(2) as to whether any order should be made. The proceedings before me do not involve any controversy about that issue in that both parties sought that orders be made. As will be developed later in the reasons, the absence of any net asset invites consideration of making no orders. However, some formality is required to isolate the parties’ finances from those of a third party. Because the husband’s borrowing from his mother was not secured against the title of the Suburb 5 property, this Court intervened by way of interlocutory order, in a way that prevented the normal civil processes that would have been available to her.
The parties’ marriage has broken down and they live separately and apart. About $454,000 of arguably joint funds is held in a controlled moneys account. Both parties have invoked s 79, seeking, apart from other orders, orders about that fund. I note the exhortation in s 81 to as far as practicable, “make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”. In my view it is just and equitable that the parties have relief under s 79.
The second enquiry involves identifying just and equitable orders that will alter the interests of the parties in property. There is no mention of steps or stages in s 79, let alone of the sequence set out in a) – d) below. Despite the guidance in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143, the Full Court has regularly noted that the “three-step” or “four-step” approach merely illuminates the path to the ultimate result.[5]
[5] Norman & Norman [2010] FamCAFC 66 at [60]; Bevan & Bevan [2013] FamCAFC 116.
I will address the following matters:
a)Make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing;
b)Identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties;
c)Identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties; and
d)Consider the effect of those findings and determinations and resolve what order is just and equitable in all the circumstances of the case.
The property of the parties
In determining what order is appropriate, it is necessary to make a finding as to the property of the parties. That involves identifying assets, liabilities and financial resources and their values.
Neither of the parties had prepared a balance sheet for the hearing and there was no recent joint balance sheet. I took the parties through the balance sheet settled by a registrar in September 2014 and through their Financial Statements. Doing the best I can, the joint balance sheet is as follows:
Assets
Owner Description Wife’s value Husband’s value 1 H Funds in Jensen’s Solicitor’s Trust Account (approximately) $454,000 $454,000 2 H Motor vehicle 1 $2,400 $2,400 3 H Home Contents $2,405 $2,405 4 H ANZ Bank account cheque … N/K $100 5 H ING account … N/K $0 6 W Home contents $1,500 $4,000 7 H Asian Country 3 Business $150,000 $0 8 H GG business $80,000 $0 9 W ANZ account … $40 NK 10 W CBA bank account … $0 NK 11 W Collectable books $0 $300 12 W Property in Asian Country 1 NA NK 13 W Inheritance from parents $0 $40,000 14 W Money in account controlled by Mr F $0 $2,000 15 W Money in account for K $0 $17,084 16 H Commsec accounts $0 $103,483.11 Total $690,345 $625,772.11
Addbacks
Owner Description Wife’s value Husband’s value 17 W H superannuation – Mercer cashed in on 15/4/2013 $110,000 $0 Total $110,000 $0
Liabilities
Owner Description Wife’s value Husband’s value 18 H Mortgage to Ms C Milford $0 $543,692.65 19 H Personal loans from Ms C Milford $0 $19,000 20 H ANZ credit card … $5,000 21 W Personal loans from Mr HH $290,000 $0 22 W Personal financial support from Mr F $110,540 $0 23 W Personal loan to ANZ Bank $10,115 24 W ANZ visa credit card debt $4,500 Total $415,155 $567,692.65
Financial Resources
Owner Description Wife’s value Husband’s value 25 3rd Party II Street, I Town $1,242,000 NA 26 W Inheritance from family NA $40,000 Total $1,242,000 $40,000
As to the issues about the balance sheet:
Assets
Item 4:Husband’s ANZ Bank cheque account BSB …
There is no current statement for the account in evidence. It was the husband’s assertion that it is simply a clearing account for his Newstart allowance. He estimated that the account currently held about $100. In a conference with a registrar in September 2014, the account was included in a joint balance sheet at $148 being the balance of the account as at January 2014. I will include the account at $100.
Item 5:Husband’s ING account …
There is no current statement for the account in evidence. It was the husband’s assertion that there are no funds in the account. In a conference with a registrar in September 2014, the account was included in a joint balance sheet at $768 being the balance of the account as at January 2014. I will exclude the account. The husband is substantially in debt and his only income is by way of the Newstart allowance. There is no basis to assume he has any significant savings.
Item 6:Wife’s household contents
There is no valuation evidence of the contents. In the joint balance sheet from September 2014, the contents were assessed by the wife at $1,500 and by the husband at $4,000. I will include the contents at $1,500.
Item 7:Husband’s Asian Country 3 business
It is the wife’s case that the husband has an interest in a business in Asian Country 3 with a value of $150,000. There is no probative evidence that the husband retains an interest in such a business, nor as to its value.
The husband’s response to the wife’s claim was to refer to the fact that he only has a tourist visa for Asian Country 3 and to make an assertion about Asian Country 3 law in relation to owning a business. Of course he cannot give probative evidence about Asian Country 3 law.
There is no direct evidence of the husband owning such a business, nor is there any evidence from which that could be inferred. There is no valuation evidence. I will not include this item in the balance sheet.
Item 8:GG business
The wife alleges that the husband ran a brothel business at Brookvale during the marriage. She found documents dated 2005 that refer to the takings from such a business. She claims that he retains an interest in that business. It is the husband’s contention that he has no interest in such a business. He would say that he had a 10 percent interest before the marriage but was cheated or defrauded by the other owners.
There is no evidence of the existence of the business, nor of its value. The husband offered to transfer any interest in the business to the wife. She was not interested in that proposal. I cannot find that the husband has an interest in such a business, let alone its value. I will exclude this item from the balance sheet.
Item 9:Wife’s ANZ bank account …
There is no current statement for the account in evidence. In her Financial Statement the wife puts the balance of the account at $40. In the September 2014 conference the account was included in the joint balance sheet at $160. I will include the account at a balance of $40.
Item 10:Wife’s CBA bank account …
There is no current statement for the account in evidence. It is the wife’s evidence that the account is closed or has a nil balance. In the September 2014 conference the account was included in the joint balance sheet at $126. I will exclude the account.
Item 11:Wife’s collectable books
There is no probative evidence about the books. They were included in the joint balance sheet in September 2014 with an agreed value of $300. It would be the wife’s evidence that the books have been damaged by mould and have no value. As with many of the items about which there is no agreement, the value in question is insignificant. I will exclude the books from the balance sheet.
Item 12:Wife’s property in Asian Country 1
There is no probative evidence about the property.
The wife denies owning any property in Asian Country 1. Her son Mr F was asked if his mother owned a property in City JJ and he said that it had been owned by his grandparents and given to his mother because she had worked for them. He was asked if his mother still owned the property and he said “as far as I am aware” or words to that effect. Mr F’s evidence is likely to be hearsay. The wife did not pursue that question with her son in re-examination and did not seek leave to adduce further evidence on this issue.
It is the evidence of the wife that her parents are both dead and that there has been a falling out between her and her siblings. That sits uncomfortably with her evidence that her siblings continue to provide her with financial support. The evidence is suggestive that the wife had an interest in a property in Asian Country 1 and or perhaps the proceeds of sale of that property. There is no evidence about the exact address of the property or of its value. I can make no useful finding about this issue. I will exclude the property from the balance sheet.
Item 13:Wife’s inheritance
It is the husband’s contention that the wife has received an inheritance of the order of $40,000 from her parents.
The husband annexes to his affidavit an email he received from one of the wife’s sisters on 3 September 2014. The email includes “[Ms Wilandri] still don’t want to see us until now …. After she received 400 Million Rupiahs from selling one of our parents property…”
I take notice that 400 million rupiah is currently the equivalent of about $A41,000. Given the content of that email, perhaps there has been a conflation of the references to the wife owning property in Asian Country 1 and the claim about $40,000.
In any event, no findings are possible on that evidence. There is no probative evidence about the wife having any funds in Asian Country 1 or elsewhere.
I will exclude this item.
Item 14:Funds in an account in the name of Mr F
Over the period of 2006 to 2012 the wife transferred to a bank account in the name of Mr F, her eldest son, amounts totalling of the order of $133,000. Remarkably, the wife said that she was advised by Centrelink staff to keep her Centrelink moneys separate from her other moneys and that she transferred the money from her account to an account in the name of Mr F. The wife was asked why she did not simply put the money in a separate account in her own name and she could give no satisfactory response. She and Mr F gave evidence that only the wife accessed the account. Mr F gave evidence that only about $2,000 remains in the account. As I understand the evidence from some time in 2013 or 2014, instead of transferring her Centrelink payments to Mr F’s account the wife commenced transferring them to an account in the name of K.
The account in question is in Mr F’s name. He is in a position to give probative evidence about the account. He says that the funds in the account belong to his mother. I will include the account in the balance sheet as an asset of the wife, with a balance of $2,000.
Item 15:Bank account in the name of K
Evidence was given to the effect that after 2013, instead of transferring her Centrelink payments to an account in the name of Mr F, the wife commenced deposits into an account in the name of her other son, K. The husband said he is not aware of the current balance of that account. He noted that there was something of the order of $17,000 in credit in February 2014. Exhibit 30 shows a balance as at that date of $1,200. It is the wife’s evidence that the deposits are intended for K’s education. As was revealed in cross-examination, the many withdrawals from the account suggest that the funds were not exclusively applied to that purpose. The wife then said that she draws on the account for expenses when K is with her. The wife did not produce a current statement of the account.
The evidence is not satisfactory but I will not include this account in the balance sheet. I cannot confidently identify a balance for the account, it is in the name of K and despite K living mainly with his father, the wife has obligations for his support.
Item 16:Commsec accounts in the name of the husband
The wife claims that the husband has or has had the benefit of Commsec accounts with a balance of $103,431.11. Annexure T to the husband’s affidavit seems to be informal interrogatories between the parties. The wife asserts that the husband made a profit over the years from 2006 to 2012 from the claimed amount.
For reasons that I did not fully understand the husband traded shares under a Commsec account in the name of his first wife. Exhibit 6 is an email from the husband to his first wife dated July 2011 in relation to what is asserted to be a Commsec account in her name used to buy shares for the benefit of their son, Mr BM. The email asserts that the husband had already paid Mr BM an amount equivalent to the balance of the account but needed to close the account. Also part of the exhibit is a purchase confirmation in the name of the husband’s first wife for a purchase costing $8,759.94.
It is the husband’s case that the calculation of $103,431.11 was simply an addition of all of the purchases under the account, without regard to the sales; that there were borrowings to off-set the balance and that at no time did he have $103,431.11 in the account. It is the husband’s evidence that he has no Commsec account now.
This item will not be included in the balance sheet.
Add-backs
In other cases there have been circumstances whereby assets that no longer exist have been included in the list prepared at the first stage of the process of identifying a just and equitable division of property. The same logic has been applied to exclude from the relevant list of liabilities, debts that do exist at the date of the hearing. Often legal fees of the present proceedings are treated in that way. There are no circumstances whereby add-backs must be included, nor are add-backs proscribed in all situations. However, they have been authoritatively found to be “the exception rather than the rule…” Cerini & Cerini [1998] FamCA 143.
After separation the husband disposed of his superannuation. The husband cashed in his superannuation for $110,000 in April 2013. It is the husband’s evidence that he had two Commsec accounts that were linked to a Commonwealth Direct Investment Account. He opened the account on 11 January 2013 and in April 2013 deposited the proceeds of his superannuation. He had left his job and lived in Asian Country 3 for six months. He said he applied about half the funds to reduce the mortgages on the Suburb 5 unit and used the rest for living expenses. Ms C Milford deposed that over April, May and June 2013 she received $58,630 from the husband.
Half of the proceeds of the superannuation were applied to a relevant debt and are accounted for. Add-backs are the exception rather than the rule. I will not add back to the balance sheet, about $51,370 which the husband says he applied to his living costs in 2013.
Liabilities
Item 19: Husband’s alleged debt to Ms C Milford from the purchase of the Suburb 5 property
The husband and his mother claim that the husband owes his mother in excess of $543,692.65 by way of mortgage in respect of the Suburb 5 unit. The evidence is that as at 11 August 2015, the husband owed his mother $543,692.65. The wife alleges that there is no debt.
The husband and his mother said that his mother lent him a total of $565,000 to pay for the purchase of the Suburb 5 unit in 2011 and for stamp duty. The loan is evidenced by a mortgage agreement dated 18 April 2011[6]. Under the agreement the husband’s mother agreed to lend the husband $565,000 and the husband agreed to pay interest at a rate, half a percentage point below the Commonwealth Bank of Australia (“CBA”) mortgage rate for owner occupied dwellings from time to time, and if not before, to repay the principal and interest on 31 December 2030. In the meantime, the agreement provided for the husband to pay his mother $280.00 per month.
[6] Annexure G to the husband’s affidavit
It is the wife’s contention that the agreement is a sham. She refers in her affidavit to an intention to call evidence from Ms KK who witnessed the agreement. Ms KK was not called to give evidence. In any event it is apparent from the copies of the agreement in evidence that Ms KK witnessed the husband’s signature and that his mother’s signature was witnessed by Mr LL (the solicitor who presumably drew the agreement and who represented the husband earlier in these proceedings).
The husband gave evidence that the mortgage to his mother was not registered on the title so as to make it easier for him to raise more money when necessary. I note that had the mortgage been registered there would not be the present controversy. I also note that further funds were raised by the husband with the Permanent Trustee on the security of the Suburb 5 unit and that those loans were paid out on settlement of the sale. An order was made on 9 December 2014 providing that after payment of costs of sale and adjustments and the discharge of the registered mortgages to the Permanent Trustee, the net proceeds of sale of the Suburb 5 unit be disbursed as to $450,000 to an interest bearing account in the name of the solicitor for the husband and as to the balance, to Ms C Milford. $78,745 was paid to Ms Milford under that order.
The wife concedes that the source of the funds to purchase the property could have been the husband’s mother. The wife does not assert that she provided the necessary funds. It is her case that the husband should have been able to fund the purchase out of his income.
The wife complains that she was given no notice of the loan. In that regard, the husband agrees. It is the husband’s case that he had no need to inform her as they were separated at that time.
There is evidence that funds from the husband’s mother were applied to the purchase. On 23 February 2011, $65,000 was transferred from the husband’s mother’s NAB account to the husband’s parents’ account from which it was withdrawn. It is the husband’s evidence that he used the $65,000 for a 10 percent deposit on the purchase, to pay legal fees and sundries. On 1 April 2011 $19,900 was withdrawn from the NAB account of the husband’s mother. The withdrawal is endorsed by hand on the bank statement “[Mr Milford’s] Stamp Duty”. On the same day a cheque was drawn to the St George Bank in the sum of $654,223. On 18 April 2011 what purports to be a copy of a St George account in the name of the husband’s mother shows a withdrawal of $480,000 endorsed “[Mr Milford]”.
The wife says that all moneys paid to the husband were moneys intended to be paid to her in repayment for the money she received from her family. This is denied by the husband. The wife’s claim in that regard makes no sense. She does not contend that $480,000 was owing to her parents, in fact it is her evidence that until 2014, she was not aware that she owed any money to her parents.
I note that the agreement between mother and son is dated on the date of the transfer of the major portion of the advance and was contemporaneous with the purchase of the property.
Neither the husband nor his mother were successfully challenged in relation to this evidence. The wife was not a party to the transaction and cannot gainsay the evidence of the husband and his mother. Neither of the witnesses to the agreement was called to give evidence.
I understand that there were proceedings in the Equity Division of the NSW Supreme Court commenced by the wife and there is evidence before me that the wife was unsuccessful in those proceedings. The husband asserts that there was a finding in those proceedings that the loan in question is valid. .
I am satisfied that the husband owes his mother a debt pursuant to their agreement of 18 April 2011 and the debt stood at $543,692.65 on 11 August 2015.
Finally, if not a debt, there is little doubt that the source of funds to purchase the property was the husband’s mother. The high point of the wife’s case is that the husband should have been able to afford to buy the property. That said, it is her argument that the husband applied much of the income to his first wife and to gambling. The wife does not contend that she provided the funds to purchase the property. In those circumstances, the husband could make a case that the purchase was entirely funded by his mother. In a short marriage, the ultimate result for the wife would likely be the same.
Item 20:Husband’s alleged debt to Ms C Milford for personal loans
The husband and his mother claim that the husband owes his mother $20,902 by way of personal loan for legal fees. There is no evidence about when the loan was established, when the advances were made but Ms Milford confirms[7] that she is owed $20,902. In a sense there is no need to confirm the detail of the loan because it is not asserted that the wife was a party to the agreement or that she benefited from the legal costs to which the advance was applied. It is more probable than not that the husband owes his mother $20,902, as they both depose but it is not a debt that should appear in the balance sheet.
Item 21:Husband’s ANZ Mastercard
[7] Paragraph 19 of the affidavit of Ms C Milford.
The husband deposes to a Mastercard debt of $5,347. He does not contend that it is a debt that existed during the marriage. I accept that the debt is owed but it is not a debt that should appear in the balance sheet.
Item 22:Wife’s alleged debt to her deceased parents
The wife asserts that she owes her mother’s estate an amount of $290,000. The wife said that this debt arose from advances made to her by her mother. The wife claimed that between 2006 and 2013 her mother sent her a total of $290,000 in cash to assist her to start up a consultant business. She said the money was brought from Asian Country 1 in increments of no more than $10,000, transported by her relatives and family friends. She said that there were 37 trips by relatives and family friends to Australia over the years. The wife explained in cross-examination that she originally understood that those advances were by way of gift or inheritance. The wife says that in about 2013 or 2014, she was told by her parents and/or her siblings that the moneys advanced were intended to be by way of loan and that they represented the potential inheritance for all of her parents’ children. She says that a loan document was created and executed by her father on 5 April 2014.
Suffice it to say that there is no probative evidence of a loan. The payments were allegedly made from 2006 to 2013. The loan agreement was made after the advances were made, it was executed after these proceedings commenced by her father in relation to an asserted agreement to which he was not a party, an agreement between the wife and her mother.
The wife asserts that the husband acknowledged the debt she owes to her parents and cited a letter she asserted was written by the husband to his father referring to these monies. The letter is annexed to the wife’s affidavit dated 27 June 2014 at Annexure “I”. The husband denies that the letter was written by him. He said that the wife deliberately falsified evidence to support her case. The husband repudiated the document and I cannot find that it is his document. The husband asserted, without complaint, that the style of the letter is inconsistent with his writing. That is not a matter about which a finding can safely be made. However, it is not clear how a letter from the husband to his father came to be in the wife’s possession.
I cannot make a finding that the wife owes her deceased parents or anyone else, $290,000. This item will not be included on the balance sheet.
Item 23:Personal financial support from Mr F
The wife alleges that the husband should pay her son, Mr F the sum of $110,540. The wife and Mr F were cross-examined about this claim. It transpired that the ‘debt’ is really a moral obligation said to be owed by the husband to Mr F. The argument is that because Mr F paid some expenses for his brother, K and minded his brother when the parties travelled for the purposes of the husband’s work, he is entitled to or in any event should be paid the stated sum. The evidence refers to some (unidentified) direct costs. When asked how the balance of the debt was calculated, Mr F said that he costed his time at $30 per hour.
Mr F said that this was an ‘indirect’ debt. For example, he does not seek the repayment of any ‘debt’.
This seems to be more in the style of a claim for damages or recompense. Suffice it to say there is no probative evidence of such a debt.
Item 24:Wife’s personal loan to ANZ Bank
The wife owes $10,115 under a personal loan to the ANZ Bank. There is no evidence to suggest that the loan was taken out with the agreement of the husband, that it existed during the marriage or that the husband benefited from the funds advanced.
I accept that the debt is owed but it is not a debt that should appear in the balance sheet.
Item 25:Wife’s ANZ visa credit card debt
The wife owes $4,500 on an ANZ Bank Visa card. There is no evidence to suggest that the expenses incurred on the card were made with the agreement of the husband, that the debt existed during the marriage or that the husband benefited from the funds expended.
I accept that the debt is owed but it is not a debt that should appear in the balance sheet.
Financial Resources
Item 26:II Street, I Town
It is the contention of the wife that the husband has a resource in the form of his mother’s property at I Town.
The gravamen of the wife’s case on this issue is that over the years, the husband referred to the property as his holiday home and told her that it was “his” and that because they were married, it also belonged to her. She contends that there were representations from the husband and from Ms C Milford from which she understood that the husband and through him, she, had an interest in the property.
The husband’s parents purchased the property at II Street, I Town in 1995, unencumbered. The husband’s father retired in about 1986 and died in 2010. It is the unchallenged evidence of Ms Milford that she and her husband had sufficient funds to buy the property outright.
There is no challenge to the assertion that the husband’s mother owns the property and it is in her name. There is no evidence to support a finding that the husband has any interest in the property. For example, there is no reference to any contribution made by him to the purchase or maintenance of the property.
In the draft balance sheet prepared in September 2014 the wife assigned a value of $1,242,000 to the property as a financial resource. In her Financial Statement she claimed an interest for herself in the property at $450,000, based on one half of a value of $900,000. The husband’s parents had four children but sadly, only two of them are alive – the husband and his sister. I take it that the argument is that the husband could expect to inherit one half of the value of the I Town property.
The husband’s mother is 86 years of age. She suffers poor health, takes medication for her heart and she asserts that her memory is deteriorating. In requesting that she not be required to attend at Court for cross-examination, among other things she referred to the stress imposed on her by these proceedings, deposed to a concern about attending at the hearing and said that she “may be dead before this ends”. I understood that last proposition to be more an expression of despair in relation to being caught up in the dispute between her son and his ex-wife, than an assessment of her life expectancy. The evidence is that the husband’s mother has paid the husband’s legal bills for these proceedings and for proceedings in the NSW Supreme Court in relation to the wife’s claims. There is no evidence about the husband’s mother having made a will, let alone about the contents of the will. There is no evidence to suggest that she lacks testamentary capacity. There is no evidence about the overall financial position of the husband’s mother. Given the advances and loans she has made to the husband, there is no basis for assuming that there would be equal treatment of the husband and his sister in their mother’s estate.
There is no relevant financial resource.
Item 27:Wife’s inheritance of $40,000
It is the contention of the husband that the wife has received an inheritance or will receive an inheritance of about $40,000. This duplicates item 13 above. I cannot find that there is such a resource.
I find that the net assets of the parties are as follows:
Owner Description Value H Funds in Jensen’s Solicitor’s Trust Account (approximately) $454,000 H Motor Vehicle 1 $2,400 H Home Contents $2,405 H ANZ Bank account cheque BSB … $100 W Home contents $1,500 W ANZ account … $40 W Money in account controlled by Mr F $2,000 Mortgage to Ms C Milford (as at 11 August 2015) -$543,692.65 Total ($81,247.65)
Net assets
In terms of the assets and liabilities making up the pool of assets to be adjusted pursuant to s 79, the parties owe $81,247 more than they own.
Contributions
The above calculation renders nugatory any further application of s 79(4).
However, in order to assist the parties in the event that some further step is taken, the obligations placed on the Court by s 79 call for an assessment of the respective contributions by and on behalf of the husband and wife. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets.[8] There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the husband and wife in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of husband and wife.
[8] In the Marriage of Shewring (1987) l2 Fam LR 139.
As to whether the Court should apply the considerations in s 79(4) to the assets globally or asset by asset, the authorities have it the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) FLC 91-814; In the Marriage of Norbis (1986) FLC 91-712; In the Marriage of Zyk (1995) FLC 92-644.
Section 79(4)(a) Contributions
Financial contributions to property, both direct and indirect were made by each of the husband and wife.
The husband worked as an auditor for TNT from 2006 to 2012. His income tax returns[9] from the later years reveal an annual income in excess of $80,000.
[9] Exhibit 15
The husband paid regular amounts to his first wife. Initially that was done by way of him paying the rent for her accommodation, at about $1,200 a month and later the amount was reduced to around $500 per month, until the youngest of their children turned 18. In terms of these proceedings, that represented a diversion of income from this marriage. There is no evidence however, to support the wife’s contention that the husband paid all of his income to his first wife. The husband’s income was of the order of $7,000 a month.
From 2006 to 2012, the wife received little income from paid employment. In cross-examination the wife estimated that she received a total of about $5,000 for architectural drawing between August 2006 and August 2007. She received about $300 from research work undertaken in the course of her PhD studies and $600 from work at a retail store. Some of the wife’s income tax assessments[10] are in evidence. In 2007 her income was $14,104 and in 2009 her income was $14,559. It is likely that those figures include her Centrelink benefits. Doing the best I can, putting aside her Centrelink benefits, the wife earned about $6,000 from paid employment during the period 2006 to 2012.
[10] Exhibit 16
The wife’s claim that she or the husband owe her mother’s estate $290,000 was unsuccessful. That leaves unaddressed the contention that there were injections of funds into the marriage of that order, from the wife’s family. There is insufficient evidence to support the wife’s claim. For example, there is no evidence from any member of the wife’s family or family friend to corroborate the claim that family funds were ferried to the wife from Asian Country 1 in payments of not more than $10,000. Sadly the calculation of contributions will not be of much significance in this case because of the lack of funds but even if there was such a source of funds, any contribution by or on behalf of the wife would only go to balance the husband’s financial contribution. In a case where there is little or no evidence about other contributions, there is no suggestion that the parties’ contributions were equal.
The financial contributions of the husband exceeded those of the wife.
Section 79(4)(b) Contributions
This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
Apart from modest paid employment the wife said that she “worked full time” for the husband to assist him through his probation period with TNT and then with his ongoing work. When asked about that in cross-examination, the wife said that her work involved her answering telephone calls made by the husband to her.
Otherwise, there is no evidence of contributions of this type. For example, the parties did not run a business or renovate property.
Section 79(4)(c) Contributions
This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
There were no children of the marriage. The wife conceded that the husband managed the family finances. Otherwise, there is no evidence about homemaker contributions.
Conclusion on Contribution
The husband’s contributions exceeded those made by and on behalf of the wife.
The other matters in Section 79
Once contributions have been assessed, the other factors in s 79(4) need to be considered. Again, given the lack of funds, this is a meaningless discussion. Had there been a fund to divide, the matters that would influence any adjustment between the parties would include:
Section 79(4)(d)
Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the husband and wife. No such effect was identified.
Section 79(4)(e) - Section 75(2) Factors
(a) the age and state of health of each of the husband and wife;
At 58 years of age, the husband is more than three years older than the wife. The wife is in receipt of a disability support pension. She had a motor vehicle accident and was injured. There is no medical evidence in proper form in relation to her health.
There is no medical evidence filed in the husband’s case.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The wife’s Financial Statement is inaccurate and therefore unhelpful. It records that her income is $373 per week in the form of a disability support pension. The wife deposed that her son Mr F pays $200 per week for her medical and health expenses; that her siblings from overseas pay $700 for her transport and to assist in paying off a loan; and she meets other medical, health and living expenses of $200 per week from her own borrowings. Mr F was asked about his payment of $200 per week and he denied providing that financial support or anything like it.
The wife claims weekly expenses totalling $1,680.65. In her Financial Statement she incorrectly claims that her expenses add up to $2,780.65. In that regard, it could be that she mistakenly combined the items in Part F and Part G of the form.
Under Item 21 “Mortgage payments/Rent” which calls for expenses about accommodation the wife has entered: “RENT CAR TO [MR F] $350.00”. During his cross-examination, Mr F denied receiving $350 per week from his mother for the use of his car. He said that she contributes to the running costs for the vehicle. The wife was pressed about this. As I understood the wife’s evidence, she does not assert that she actually pays $350 per week. Rather she considers that it would be fair for Mr F to receive compensation for her use of his car.
The wife pays $21 per week in child support for K. Under Part H of the form which calls for an estimate of the expenses paid by the deponent for the benefit of others, the wife has entered “$682,339” and the names of the husband’s children and their mother. Presumably expressed in aggregate rather than as a weekly payment, and although it relates to the past rather than current expenditure, that entry is at least consistent with the wife’s complaint that all of the husband’s income was diverted to his first wife and their children.
The evidence about the wife’s assets and liabilities is set out earlier in these reasons.
The wife put into evidence a recent academic paper written by her together with an invitation to present the paper at an international conference. The letter did not offer any remuneration and indeed made it clear that those presenting papers were expected to fund their own attendance at the conference. The wife undertakes voluntary work at the university in exchange for library and other privileges. There is no evidence about the wife having sought any form of paid employment in recent years. The wife relied on a mental health report in other proceedings but did not have admissible, probative evidence to tender in these proceedings. The fact of the wife’s disability support pension suggests there may be impediments to the wife securing paid employment.
As to financial resources the husband has been assisted by his mother with legal costs and other expenses. The wife deposes to being assisted with transport and loan repayments by members of her family overseas. In each case there is reference to an obligation to repay some or all of those advances.
The husband’s income is $307.00 per week in the form of a Newstart allowance. He spends $364.00 per week made of rent of $120 paid to his mother, $19.00 in registration for a motor vehicle, $25.00 per week on an ANZ Mastercard ($100 minimum payment) and $200 on all other payments, including board, food, electricity, telephone and petrol.
The evidence about his assets and liabilities is addressed above. The husband expressed a lack of confidence in returning to the workforce. The husband gave evidence that he is trying to seek employment but that he is “too old” and no one will hire him.
It should also be said that both of the parties have committed a great deal of time, energy and expense to several years of litigation. There were AVO proceedings and proceedings in the NSW Supreme Court as well as these family law proceedings which commenced in 2013. In addition they were both involved in the wife’s parenting dispute with K’s father. It may be that once the litigation stops one or both may have the time and energy for remunerative employment, if such employment is available to them.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
There are no children of the marriage.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
I have set out above, what there is of the evidence in relation to the parties’ expenses.
(f) Subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
Neither of the parties has any superannuation. They are each in receipt of a Centrelink benefit.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
There is no substantial evidence about the parties standard of living. Whether lawfully or not they have each lived in subsidised housing. Each of the parties has travelled overseas in recent years.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
This is not relevant.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
Albeit not by way of a distribution to either party, an order requiring the remaining proceeds of the sale of the Suburb 5 property to be paid to the husband’s mother will make it very much harder for any other creditor to recover a liability owed by either of the parties.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
The wife would argue that she sacrificed her employment aspirations to assist the husband with his work. It is her evidence that the assistance was of a personal nature rather than being related to the husband’s role as an auditor and involved her being available to talk to him on the telephone. The wife’s claims are rejected by the husband. No findings are possible on that evidence. Sadly, the parties have little by way of property or financial resources and there are doubts about their current earning capacities.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The marriage was in place for some years. There is no evidence from which an assessment could be made about the potential earning capacity of the wife. In that regard there was not only this marriage but the wife’s responsibilities for K and her dispute with his father. The husband was employed in a well-paid position and resigned from that employment around the time of separation. It is difficult to say whether the marriage affected their employment.
(l) the need to protect a party who wishes to continue that party's role as a parent;
K is now 13 years of age and he lives mainly with his father. He spends some time with his mother. There is no evidence about it but I suspect that if the wife was offered paid employment, that could be managed around her time with K.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
K lives with his mother from time to time but otherwise, she lives alone. The husband lives with his mother at her I Town property. He pays rent. I have set out above what there is of that evidence.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
There are no children of the marriage.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
Nothing comes to attention here.
(p) the terms of any financial agreement that is binding on the parties.
There is no binding financial agreement.
Section 79(4)(f)
Beyond those referred to above, there are no relevant orders made under the Act.
Section 79(4)(g)
This provision is not relevant.
Conclusion
There is no clear reason on those facts for interfering with the property adjustment warranted on the basis of the parties’ contributions. There are countervailing factors but nothing stands out.
In my view a division of property, in the event that property was found to exist, would favour the husband by a considerable margin. In the circumstances it is not necessary to say more.
Just and Equitable
There is a deficiency in the balance sheet identified for the purposes of s 79. The parties owe more than they own. The funds held by Jensens Solicitors will be disbursed to Ms C Milford.
Otherwise the wife will retain:
Owner Description Value W Home contents $1,500 W ANZ account … $40 W Money in account controlled by Mr F $2,000 Total $3,540.00
She will owe any debts in her own name.
The husband will retain:
Owner Description Value H Motor Vehicle 1 $2,400 H Home Contents $2,405 H ANZ Bank account cheque BSB … $100 Total $4,905.00
He will owe any debts in his name.
Conclusion under Section 79
This was a marriage that spanned six years. There is no net pool of assets. There is a fund representing the proceeds of sale of a property bought by the husband and the husband owes more than the balance of the fund to his mother. The remaining assets are modest and the parties have and assert family and consumer debt. I will order that the fund be disbursed to the husband’s mother and that the parties otherwise retain what they have and what they individually owe. In my view that will reflect a just and equitable division of their property.
I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 27 November 2015.
Associate:
Date: 27 November 2015
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Fiduciary Duty
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Constructive Trust
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Res Judicata
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