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W v B[2012] QDC 12

W v B[2012] QDC 12

DISTRICT COURT OF QUEENSLAND

CITATION:

W v B & M [2012] QDC 12

PARTIES:

W

(Applicant)

v

B

(First Respondent)

and

M

(Second Respondent)

FILE NO/S:

339 of 2009

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

8 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

14 and 15 November 2011, 12 December 2011, 25 January 2012

JUDGE:

Samios DCJ

ORDER:

I order from the total of the proceeds from the sale of the Barellan Point property held in trust by the Court file number BS 849/2010:-

1. There be paid to the applicant the sum of $120,756.57 (70% of $172,509.39);

2. There be paid to the first respondent the sum of $23,318.66 (30% of $172,509.39 less $28,434.15).

3. There be paid to the second respondent the sum of $28,434.15.

CATCHWORDS:

Family law and child welfare – De Facto relationships – adjustment of property interests

Property Law Act 1974 (Qld) s 263,  s 282-286, 289, s 291-296

Cases:

FO v HAF (2007) 2 Qd R 138

Hickey and Hickey (2003) FLC 93-143

Omacini and Omacini (2008) FLC 93-218

COUNSEL:

The applicant represented himself

The first respondent represented herself

Mr Curran of Counsel for the second respondent

SOLICITORS:

The applicant represented himself

The first respondent represented herself

M Lawyers for the second respondent

  1. [1]
    The applicant and the first respondent were in a de facto relationship that lasted for about 14 years from about January 1993 to about March 2007.
  1. [2]
    This is the applicant’s application pursuant to s 283 of the Property Law Act 1974 (Qld) (the Act) for an order adjusting interests in the property of the applicant and the first respondent.
  1. [3]
    The applicant and the first respondent are both 42 years of age. The applicant was born on 18 November 1969 and the first respondent was born on 24 April 1969.
  1. [4]
    They have two children from the relationship. A boy C who is 18 years of age and born on 5 January 1994 and a girl A who is 14 years of age and born on 18 December 1997.
  1. [5]
    Apart from seeking an order that the court declare that a de facto relationship within the meaning of the Act existed between the applicant and the first respondent from January 1993 to March 2007, the applicant seeks an order that a number of “add backs” to the property pool be made by the first respondent. These add backs are:-
  1. (a)
    $30,000 used by the first respondent to finance the operation of the business known as HB Transport;
  1. (b)
    $25,000 because of wastage due to the loss of equity in the manner in which the property at 133 Riverside Avenue, Barellan Point in the State of Queensland was sold;
  1. (c)
    $14,261.40 in arrears incurred by the first respondent in connection with the Barellan Point property;
  1. (d)
    $3,899 due to the applicant having paid this sum from shared investments to remedy the default of the first respondent who enjoyed the sole occupancy of the Barellan Point property since separation;
  1. (e)
    $3,249.75 in outstanding Ipswich City Council rates due to the applicant having paid this sum from shared investments to remedy the defaults of the first respondent who enjoyed the sole occupancy of the Barellan Point property since the separation;
  1. (f)
    $3,546.45 being the sum accrued by the first respondent post-separation against the applicant’s personal Visa account and repaid by the applicant;
  1. (g)
    $4,732.41 being the sum accrued by the first respondent post-separation against the Defcredit joint account and repaid by the applicant;
  1. (h)
    $3,855.30 to match the applicant’s contributions to the interest paid on the loan financing the majority of the investments held by the parties.
  1. [6]
    The applicant seeks in the application that the total of the proceeds from the sale of the Barellan Point property held in trust by the court and the add backs be distributed as follows:-
  1. (a)
    70% to the applicant;
  1. (b)
    30% to the first respondent.
  1. [7]
    The applicant also seeks an order that he is entitled to sole possession and legal and equitable title to the following:-
  1. (a)
    BMW K100 RT motorbike;
  1. (b)
    The furniture and chattels in his possession;
  1. (c)
    Any funds held in bank accounts in his name.
  1. [8]
    The applicant seeks an order that the first respondent is entitled to sole possession and legal and equitable title to the following:-
  1. (a)
    Any furniture and chattels in her possession;
  1. (b)
    Any funds held in bank accounts in her name.
  1. [9]
    The first respondent’s position is contained in a outline of argument I gave her leave to read and file on the commencement of the hearing. Her position is:-
  1. First offer: I would be wanting …

-80% of the funding from the sale of the house ($136,000).

-$25,000 placed into an account for C’s (our son) further education.

-50% of the funds already disposed of by the applicant without my knowledge or consent.

-All costs payable to the court be taken out of the monies before it is divided up between the applicant and the first respondent.

NOTE: All of the superannuation that the applicant has would be left untouched and intact for his sole use in the future.

  1. Second offer: I would be wanting …

-50% of the funding from the sale of the house ($85,000)

-50% of the funding that is related to the applicant’s superannuation for the 14 years we were together.

-$25,000 to be placed into an account for C’s (our son) further education.

-50% of the funds already disposed of by the applicant without my knowledge or consent.

-All costs payable to the court be taken out of the monies before it is divided up by the court.

  1. [10]
    The relationship between the parties since the separation has not been pleasant to say the least. At the time of separation in March 2007 the Barellan Point property was the family home. Upon separation the applicant left the Barellan Point property and by himself moved into a rental property. The children were placed with him by the Federal Magistrates Court in November 2007. Subsequently he located with the children to another rental property.
  1. [11]
    Since November 2007 the children have lived with the applicant until C absented himself in early September 2009 and is currently residing with his maternal grandmother in Bendigo, Victoria.
  1. [12]
    The parties have engaged in proceedings regarding the custody of A and C. There were proceedings in the Federal Magistrates Court in 2007 and proceedings in the Family Court before Murphy J. Murphy J delivered five sets of reasons and in the fifth set of reasons regarding the parties and the children said:-

“The pain and anguish that C and A have been put through would make any sane, normal, loving, caring parent or indeed any other person want to weep.  The mother, via her actions, is putting A through yet more pain and anguish”,

  1. [13]
    A little later his Honour said:

“5 … tragically, it is again necessary to repeat two of the central findings again today.

  1.  They are as follows:
  1. (a)
    A is not at risk of sexual harm in the care of her father.
  1. (b)
    C is not at risk of physical harm in the care of his father..”
  1. [14]
    Murphy J noted that professionals in the case had considered that the children were at very significant risk of emotional harm at the hands of the mother. Murphy J said he was not prepared to permit A to continue to be emotionally abused by her mother.
  1. [15]
    The position is that the first respondent was prevented from having contact with A. On 28 March 2011 final orders were handed down by Murphy J allowing the first respondent only supervised access with A until she is 18 years of age. Sole parental responsibility for both children lies with the applicant.
  1. [16]
    Reference to the living arrangements for the children in this application is relevant to the parties regarding the adjustment of their property interests. In particular the applicant claims he has the responsibility to find $25,000 for A’s schooling. On the other hand the first respondent says since C absented himself the applicant has not provided any financial support for him and is not making the same provision for the future for C as he is making for A. Further, the applicant claims he has made financial provision for the children while he has sole parental responsibility for both.
  1. [17]
    The applicant’s evidence in support of the application is contained in an updated affidavit filed herein on 26 July 2011. The first respondent cross-examined him.
  1. [18]
    The applicant’s application is also supported by an affidavit by his father HRW filed herein on 14 October 2011. The first respondent cross-examined the applicant’s father.
  1. [19]
    The first respondent’s evidence is contained in an affidavit filed herein on 21 October 2009. She was cross-examined by the applicant. She did not update her affidavit which is now over two years old.
  1. [20]
    The applicant is currently employed as a senior software engineer and his remuneration package is $81,000 per annum. He also receives a pension from MSBS of about $11,076 gross per year after his retirement from the Air Force.
  1. [21]
    He states contributions to the relationship were:

Holden Kingswood  $2,500

Furniture   $3,000

Cash in Bank   $10,000

MLC Investment  $5,000

Superannuation  = Unknown value

TOTAL   $20,500

  1. [22]
    At the commencement of co-habitation he had no liabilities.
  1. [23]
    Prior to the commencement of co-habitation he had a Zurich investment which was a 20 year investment.  This was later changed to a MLC investment.  He had approximately $5,000 (very conservative estimate) in this investment at the commencement of the parties’ relationship.
  1. [24]
    At the commencement of co-habitation he was employed as an advanced avionics technician and ranked corporal with the Air Force at the RAAF Base at Richmond.  He earned approximately $30,000 to $40,000 per annum.  He joined the Air Force as a radio technician in around 1986 with the rank as apprentice.  In around December 1987 he was promoted to Airman and in around December 1998 (1988) he was re-graded to Leading Airman.  In around 1992 he was promoted to Corporal and re-mustered to Avionics Technician and around 1993 he was re-mustered to Advanced Avionics Technician with the rank of Corporal.  His salary increased to approximately $40,000 to $50,000 per annum.
  1. [25]
    According to the applicant the first respondent at the commencement of their cohabitation made contributions of minimal value and had superannuation of an unknown amount. At the commencement of cohabitation she had no liabilities. To the best of his knowledge at the commencement of their cohabitation the first respondent was employed as a steward with the Air Force and earned approximated $25,000 to $30,000 per annum. The first respondent continued in this employment until C was born and then had three months maternity leave. She returned to full time work from around April 1994 to December 1994 when she discharged from the Air force. The applicant says that he recalls the first respondent received a cheque in the amount of approximately $7,000 from her superannuation when she was discharged, however, he does not recall if she actually cashed this cheque as he did not see the money appear in their bank account.
  1. [26]
    The applicant states that during the relationship the first respondent and he acquired the assets set out below.

 Description   Date Acquired   Purchased Price

 Toyota Camry   1998/1999   $15,000 

 Property located at   March 1994   $105,000

 4 Hampton Street,

 Browns Plains

 Property at   June 2001   $150,000

 133 Riverside Avenue,

 Barellan Point   

 Motor Bike   2002    $5,000

 1998 Lite Ace Van  2004    $5,000

 Furniture   Various   $10,000

  1. [27]
    The applicant states that during the relationship the first respondent did not make any direct financial contributions to the acquisition of the assets set out above.
  1. [28]
    He states in around March 1994 the first respondent and he purchased a house and land package located at 4 Handford Street, Browns Plains for approximately $105,000 as an investment property.  He used approximately $10,000 of his personal savings as a deposit and they had a mortgage of approximately $95,000.  The property was in his sole name for taxation reasons as they expected to negatively gear the property. 
  1. [29]
    He states that from late 1994 until 1995 the first respondent did not work. However in around December 1995 the first respondent went to work part time working a couple of nights per week at the Penrith RSL until December 1996. He states through this work she gained experience and skills as she was able to run the bar and was able to run entire functions of a couple of hundred of people or more. The first respondent regularly provided advice to the manager of the functions department on awarding work to subcontractors due to the experience she had gained whilst working in the Air Force. The first respondent also trained new functions employees and was often asked to assist in the other areas of the RSL due to her breadth of experience.
  1. [30]
    The applicant states that in around January 1997 the first respondent and he moved from Sydney to Amberley.  He worked there at the RAAF Base Amberley as an Advanced Avionics Technician and was promoted to Sergeant in mid-1997.  He was earning approximately $50,000 to $60,000 per annum.  The first respondent and he rented a house at Amberley via the Defence Housing Authority as he was working for the Air Force and they paid only approximately $150 per week in rent while in the Air Force.
  1. [31]
    In around early 2001 the first respondent and he sold the property at Browns Plains and made a loss. They sold the property as the investment was doing poorly in terms of capital growth, the lack of consistent tenants and it was becoming too negatively geared. The first respondent and he wanted to buy their own home and they could not afford both. When the house was sold they had to pay the bank a penalty payment of approximately $26,000 and had to pay the principal amount of approximately $25,000 on the property.
  1. [32]
    After leaving the Air Force he was able to access the member contributions to the MSBS superannuation which was approximately $50,000. This money was used to pay the penalty payment and the principal loan. Without him sacrificing this very significant portion of his superannuation the purchase of the Barellan Point property which represents virtually the entire property pool, would not have been possible.
  1. [33]
    In total he served in the Air Force for approximately 15 years and accrued 4.5 months long service leave. He received $30,000 in Air Force discharge payments which included 3.5 months of outstanding recreation leave and 4.5 months of long service leave. Of his 15 year service in the Air Force, seven years were prior to cohabitation with the first respondent.
  1. [34]
    In February 2001 the applicant was discharged from the Air Force. He applied and was given permission to remain in the house for six months so that they could find and buy a house. The first respondent and he remained in the Defence Housing Authority house and paid the market rate for rent of approximately $200 per week.
  1. [35]
    He commenced working with Quantas Defence Services in around February 2001 earning approximately $50,000 and $60,000. While working full time he also undertook part time study at the Queensland University of Technology studying for a Bachelor of Information Technology majoring in software engineering which he funded partly himself and with some financial support from Quantas Defence Services.
  1. [36]
    The applicant states in and around 2001, the first respondent and he purchased the property at Barellan Point for approximately $150,000. He made a direct financial contribution of $30,000 as a deposit and there was a mortgage in both names of approximately $120,000. The $30,000 used as a deposit was from his Air Force discharge payments which included 3.5 months of outstanding recreation leave and 4.5 months of long service leave.
  1. [37]
    In and around early 2002 he purchased a motor bike for approximately $5,000 and registered the bike in his sole name. He used the motor bike as transport to and from work.
  1. [38]
    The applicant states that after not working from late 1996 until in around 2004 the first respondent went to work on a casual basis with Mallets Carpet Choice in Ipswich generally working from around 9 am to 2.30 pm.  He is unable to recall the amount of money the first respondent was earning whilst she worked at Carpet Choice.
  1. [39]
    In around 2004 the first respondent and he purchased a 1998 Lite Ace van for approximately $5,000. The van was registered in the first respondent’s name. However they both used the van. They had to extend their loan on the Barellan Point Property by $10,000 so that they could purchase the van. To the best of his knowledge the first respondent sold the van in and around 2007 after separation. The first respondent retained the whole of the proceeds of sale and he does not know to what purpose she applied these monies.
  1. [40]
    The applicant states in around October 2005 he left Qantas Defence Services and worked with Ball Solutions Group until January 2006 as a software engineer. He again earned between $50,000 and $60,000 while employed with Ball Solutions Group. In around January 2006 he commenced working with Boeing Australia earning approximately $58,000 per annum (inclusive of superannuation) and within three months he was earning approximately $65,000 per annum (inclusive of superannuation).
  1. [41]
    The applicant states in around January 2007 the first respondent and he became partners with Mr H (the first respondent’s current partner to whom she has been engaged since about December 2007) in a business venture and contributed $25,000 towards his business, HB Transport by extending the loan on their mortgage. Initially though, because of the time it would take to effect an extension, a temporary business loan was set up to fast track access to the money, but arrangements were made at the time to transfer the debt to the mortgage because of the much lower interest rate. The applicant states the first respondent withdrew another $5,000 from cash savings purportedly to further invest in the HB Transport business but did not tell him of this until after the fact, bringing the total loan to the business to $30,000. He later discovered that she had given the $5,000 to Mr H in the form of a cheque.
  1. [42]
    The applicant states they verbally formed a partnership with Mr H although the applicant has had very little involvement in the business. The business was effectively commenced when the first respondent and he separated and was solely controlled by the first respondent and Mr H and from which he received no income. A letter dated 4 April 2007 a copy of which is exhibited to the applicant’s affidavit KAW-18 is signed by Mr H and the first respondent and gives the applicant notice that he will have nothing further to do with the company. Therefore the applicant claims the first respondent has used joint funds totalling $30,000 for her exclusive use and this sum should be added back to the property pool.
  1. [43]
    The applicant also states that during the relationship the first respondent attended to most of the household duties including domestic chores albeit usually poorly as she did not work on a full-time basis. The first respondent rarely did any chores outside the house other than very occasionally mowing the lawn using the ride-on mower. He states that he recalls the first respondent would do the bare minimum with the household chores. The house was always in a mess and nearly all their clothes were always in the ironing pile or washing. The applicant carried out the repair work around the house and on weekends did household chores including cleaning, washing and gardening work.
  1. [44]
    The applicant states that the current asset pool to the best of his knowledge is $172,509.39. These are the funds held in trust from the mortgagee in possession’s sale of the Barellan Point property. It constitutes the sale price minus the outstanding principal, arrears in mortgage repayments, expenses incurred by the mortgagee and the mortgagee’s solicitors and to pay the first respondent’s creditors unsettled invoices that were included in the realisation of the property.
  1. [45]
    In addition the current asset pool includes his motorbike valued at $1,000 and furniture and chattels valued at $10,000. To the best of his knowledge the current liabilities owed by the first respondent and he or each of them is that he has credit card debts of about $1,000 but the first respondent’s position is not known to him.
  1. [46]
    The mortgagee repossessed the Barellan Point property in April 2009. The applicant states there was a valuation of the property at $390,000. The mortgagee sold the property for $365,000. Hence the applicant’s claims that it was sold well below its true obtainable market value and he asks that the $25,000 shortfall be added back by the first respondent to the property pool.
  1. [47]
    The applicant states the first respondent had the full use and occupancy of the Barellan Point property since separation until the repossession by the mortgagee.
  1. [48]
    The applicant also states he made improvements to the property. The cost of some of these improvements was approximately $5,000. There was no other valuation of these improvements.
  1. [49]
    The applicant also states he made contributions to the welfare of the family both before separation and since separation.
  1. [50]
    The applicant states that at the time of separation he left the Barellan Point property and commenced paying rent at a rate of $225 per week. He says the first respondent and he reached an agreement that she would be responsible for the monthly mortgage repayments of $800 per month and any other costs of maintaining the former marital home as he could not afford to pay both rent and the mortgage repayments.
  1. [51]
    He states with respect to the transport business that the first respondent and Mr H took full financial and operational control of the business at separation.
  1. [52]
    Regarding the “add-backs” claimed by the applicant the $14,261.40 is a figure to be derived from a copy of the affidavit from the solicitor from Minter Ellison which is Exhibit KAW-37 and the exhibit to that affidavit of the solicitor from Minter Ellison Exhibit SES-3.
  1. [53]
    With this claim the starting point is the applicant’s figure of $24,111.78 (see Exhibit KAW-37) to which is added $1,000 deposit making a total of $25,111.78. From this is deducted $12,552.50 for agent’s costs leaving a figure of $12,559.28. To this is added $1,600 for the solicitor’s costs and $102.12 for electricity charges. This brings one back to the figure of $14,261.40 claimed as an add-back.
  1. [54]
    With regard to the add-back of $3,899 the applicant states on or around 31 January 2008 he received a default notice from Westpac as a result of multiple missed payments over the preceding months stating that the loan was in arrears at $2,932.68. On or about 19 February 2008 he instructed his lawyers to contact the first respondent’s lawyers regarding the default notice suggesting that in the event that the first respondent was having difficulty maintaining mortgage payments the applicant would return to the property with the children and take over the mortgage repayment himself. He instructed his lawyers to send a copy of the default notice to the first respondent’s lawyers together with a title search and a copy of the statement for the period 28 November 2007 to 28 May 2008. His lawyers have told him and he believes that they did not receive a response to their letter dated 19 February 2008. On or about 7 March 2008 given that the first respondent had not attended to the payment of the arrears, the applicant sold shares in an investment he held in order to remedy the arrears as he understood that the mortgagee may foreclose if he did nothing in relation to the issue. At the time he paid the sum of $3,899 in order to bring the repayments up to date. He also paid the March repayment to ensure that someone attended to doing so prior to the due date.
  1. [55]
    Regarding the $3,249.75 add-back the applicant states he paid this sum to the Ipswich City Council after the service of the statement of claim to remedy the arrears in rates. At the time he was told by the Ipswich City Council and he believes that no payments were made by the first respondent and if he had not attended to payment they would have obtained a default judgment against them.
  1. [56]
    Regarding the $3,546.45 add-back the applicant states at the time of separation he had a Westpac credit card in his name which was used by the first respondent and himself which had approximately $2,500 outstanding. After separation the first respondent put another $3,546.45 on to the card. This does not include bank charges associated with these purchases/cash withdrawals. The applicant cancelled the card in around April 2007 and carried the debt until around May 2008 and kept the Westpac visa account until around November 2008.
  1. [57]
    Regarding the $4,732.41 Def-credit account the applicant states during the relationship the first respondent and he had a Defence Force Credit Union (Def-credit) account which was in joint names. At the time of separation he had long thought it was closed but was still secretly being operated by the first respondent. His pension was going into this account. He realised that his pension was still being paid into this account when the Defence Force Credit Union called to inform him that the credit card had reached its limit of $5,000. The applicant states the first respondent started paying off the debt by making an initial $500 payment and then $125 payments in the months of September, October and November. All other payments including the final payment were made by the applicant totalling $4,732.41 (which includes the accruing interest).
  1. [58]
    Regarding the add-back of $3,855.30 the applicant states that he has been forced to sell investments in order to meet the expenses of the children and meet the first respondent’s financial defaults. This money matches the applicant’s contributions to the interest paid on the loans financing the majority of investments held by the parties.
  1. [59]
    The applicant states that he is in reasonable health. To the best of his knowledge the first respondent is in reasonable health.
  1. [60]
    Regarding the first respondent the applicant states she is employed on a casual basis four days a week. However when cross examined the first respondent said since the floods in Ipswich (at the beginning of the year) she has not been able to find employment.  However the applicant states she is an active partner in the transport business.  She is cohabitating with her fiancé Mr H and has done so since early March 2007.  The applicant believes Mr H is fully employed.  The first respondent also has the exclusive use of most of the furniture and chattels from the relationship.
  1. [61]
    The applicant states he is physically and mentally capable of finding and maintaining appropriate gainful employment and is currently employed as a senior software developer. To the best of his knowledge the first respondent is physically and mentally capable of finding appropriate gainful employment and is currently working in a factory environment. However when cross examined the first respondent said she has been diagnosed with chronic depression and this limits the amount of work she can do.
  1. [62]
    Nevertheless the applicant refers in his affidavit to the extensive experience the first respondent has had as a steward in the air force and it would seem she was able to also maintain employment as a secretary with Mallets Carpet Choice for a lengthy period of time.
  1. [63]
    The applicant states the first respondent has the physical and mental capacity for appropriate gainful employment.
  1. [64]
    The applicant states his financial commitments to support himself and the children estimated on a weekly basis amount to $1,510.07. To the best of his knowledge, information and belief the first respondent only has general living expenses and rent to pay. She does not have any expenses relating to the children as he pays for all those expenses. The applicant points out that since separation the first respondent has failed to meet all mortgage repayments which resulted in the mortgage going into arrears and ultimately repossession by Westpac. The applicant has brought these up-to-date and also paid outstanding rates but the continued defaults of the first respondent ultimately resulted in the repossession and fire sale of the family home at Barellan Point.
  1. [65]
    The applicant also states that other than the children he has the responsibility to support his father who lives with him in their rental home in Ipswich.  His father assists him with the care of A while the applicant is at work.  To the best of the applicant’s knowledge the first respondent does not have the responsibility of supporting another person.
  1. [66]
    The applicant also receives government assistance in the form of $47.53 per week in family tax benefits from Centrelink. To the best of his knowledge the first respondent receives government assistance however he is unaware how much assistance she receives.
  1. [67]
    The applicant states during the relationship they had a comfortable standard of living. He has been able to maintain a reasonable standard of living for the children and himself since their separation. However their standard of living was affected when the first respondent failed to meet the mortgage repayments and other house related expenses and he was forced to make these payments. To the best of his knowledge the first respondent has also been able to maintain a reasonable standard of living.
  1. [68]
    The applicant states he made the greater financial contribution to the acquisition, maintenance and improvement of their assets at the commencement of and during the relationship. He was responsible for the financial support of the family the majority of the time and contributed all of his income and resources for the benefit of the family during the relationship. He also made a greater financial contribution since the end of the relationship. He states their relationship did not affect the earning capacity of either the first respondent or himself except to the extent that he was responsible for the full-time care of their daughter and their son whilst he was still residing with him.
  1. [69]
    The applicant’s father’s affidavit refers to a period from around September 2001 to around late January 2002 when he stayed with his son and daughter-in-law at the Barellan Point home. He confirms doing improvements to the house with his son. He states the first respondent did not assist saying it was “boy’s jobs”. Mr W Senior noted that the children got their own breakfast, made their own lunches and dressed for pre-school/school on a typical week day. He observed that the daily routine included making the first respondent a cup of coffee and taking it into the lunchroom for her where she would sit watching TV until the kids readied themselves for school. On return from dropping the kids at school she would return to the lounge-room and read Mills and Boon books and watch TV at the same time until it was around 2.00 pm and time to pick up the kids. Once again on return she would return to the lounge-room until the applicant arrived home. He would often hear the first respondent telling the applicant when he came from work about all the housework she had done although Mr W Senior had observed many times over that what she claimed was untrue.
  1. [70]
    He also noted that a lounge on which she used to sit had a huge hole right through. He states the first respondent had six to eight cushions stacked under it to fill it up and placed a blanket over the lounge to disguise this fact. Furthermore there were hundreds of Mills and Boons books stacked around this end of the lounge as well as empty biscuit packets and other old food items such that you could not reach out and touch the lounge from the side or back at the end of the lounge.
  1. [71]
    During his stay he cooked the evening meal at least three nights a week to give the applicant and the kids a break from endless bowls of pasta and overcooked and almost pureed vegetable and potato. He states they all loved the roast pork and the curried sausage and mashed potato among other things that Mr W Senior prepared and cooked. He states the first respondent refused to cook many of these types of meals because “it takes too long and makes too much washing up” to use her words. She did have a dishwasher. He states the first respondent always made sure she helped herself to a meal even of things she refused to cook herself. She always returned to the lounge-room to eat though, she never once sat with the applicant and the children or himself for a meal. He cooked the roast pork for the family one night and two weeks later he decided to cook another. He could not find the frying pan so the kids and he searched the kitchen. One of the children spotted maggots near a small plastic table in the kitchen. This table looked akin to an upside down box. They lifted the table up and found the frying pan hidden beneath, seething with maggots. Mr W Senior states it is clear the first respondent had hidden the pan here so nobody was aware she could not be bothered washing it.
  1. [72]
    Mr W Senior also refers to an occasion when the family went away for a long weekend. He stayed at the home to continue the outside work and look after the dog. On the day that he went to feed the dog which entailed going through the laundry and out the side door he had to virtually wade through soiled clothes on the laundry floor the full length of the laundry. He decided to wash these clothes and started that day. After about six to seven loads he came to a layer inches deep of clothes that had been there so long they were damp, rotten and stuck to the tiles. He used a shovel and scraper and cleaned the floor and half filled a wheelie bin with rotted clothing in the process.
  1. [73]
    He also states on most days he would normally be performing work outside but would regularly come inside to make a cup of tea. However on each occasion that he observed the first respondent in all the time he was there he only saw the first respondent vacuum the floors once, and even with having a dishwasher, the sink and benches were always covered in dirty pots, plates and cutlery etc. He rarely observed the first respondent to do the washing and ironing.
  1. [74]
    He states he could not understand how a woman with such a lovely home could be so lazy and uncaring as to do nothing to keep the house clean and tidy or add warm touches by, say, a vase of flowers or a little decorative ornament here or there. The house lacked almost everything that makes a house a family home. He states there were none of those feminine little touches that mean so much to a man or children when they arrive home at the end of a day’s work or school.
  1. [75]
    He states the fact is, the first respondent did as little as possible even failing to make up a lunch on Christmas day although she told the applicant and Mr W Senior she would take care of it while they were performing some work outside. He states the applicant and he ended up making lunch for the children when they took a break from performing some paving work on the entertainment area in the back yard when they realised that the first respondent had done nothing and was not intending to either. Mr W Senior cooked a roast meal at night.
  1. [76]
    He states while recalling memories from the four-five month period he spent with the applicant and his family, he has tried to recall positive characteristics of the first respondent’s care-giving and spousal qualities but cannot recall any of consequence. It appeared to him that the first respondent’s actions were about satisfying her own needs first and that if the family benefited, it was merely incidental rather than a conscious decision to provide for and show care for her family. He states many times he thought to say something to the applicant about what he was observing, however, decided against this as he believed he could not get involved in a couple’s private affairs. However, in hindsight, he believes given the magnitude of the issues and particularly the effect on the children, perhaps he should have.
  1. [77]
    When cross-examined, Mr W senior admitted leaving ammunition at the house where it may have been accessed by the children.  It was also suggested to him that he had sworn a slanderous affidavit concerning the first respondent.  He was asked why he did not interfere and force some changes into these living conditions if they were that horrific.  He said that he did not feel it was his right or very wise move for him to interfere in his son and the first respondent’s private affairs.  He accepted that the contents of this affidavit was not something that was put forward in the Family Court proceedings.  He agreed he has not sought to contact C since he has moved to Victoria.
  1. [78]
    The first respondent’s affidavit, as I have said, is over two years old. When cross-examined, she confirmed she is unemployed, having lost work because of the floods. She has gone to Melbourne now to seek work. 
  1. [79]
    The first respondent confirms in her affidavit C has gone to Victoria and is living with his maternal grandmother with the consent of the Department of Human Services and the Victorian courts.  She states at this point in time her mother has guardianship of him.  Up to this point the applicant has not once offered her mother any sort of property or monies to aid her in looking after their son.  She is receiving Centrelink benefits and receives approximately $12,000 per annum.  She says that at the commencement of the relationship she brought into the relationship the following:

Holden Astra $10,000

Furniture $3,000

Superannuation unknown

Cash in bank  $3,000

TOTAL $16,000

She also states at the commencement of the relationship she had liabilities totalling approximately $5,000 in relation to her car at the time.

  1. [80]
    The first respondent states at the termination of her employment with the Royal Australian Air Force she received a cheque of approximately $5,000. She paid off the remainder of her car with this and also purchased furniture for the house, including baby furniture and items that were needed at the time. The money did not appear in the joint bank account at the time as it was deposited into a Defcredit account and used for the above reasons, as the applicant well knows.
  1. [81]
    She says during the relationship she made direct contributions to the household monies and she held various jobs while they were together and wages were deposited into their joint account both before and after they moved to Queensland.  Monies that were used for day to day living and household expenses came from one account and as such she feels that she did contribute financially to the acquisition of the property at Barellan Point and the applicant’s motor cycle and the Lite Ace van as well as furniture and other incidentals.
  1. [82]
    She agrees with the purchase of the Hampton Crescent, Browns Plains home was for investment purposes and they lost approximately $20,000 due mainly to the bank having a penalty payment.  She agrees the monies for this penalty payment came from the applicant’s contributions to MSBS’s superannuation, which he gained access to when he left the air force.
  1. [83]
    With regard to the purchase of the Barellan Point property, she agrees it was purchased for approximately $150,000. The initial financial contribution she says of $30,000 came from the joint bank account and the mortgage was in both their names of approximately $120,000.
  1. [84]
    With regard to the motor bike she agrees it was purchased for $5,000 and registered solely in the applicant’s name as he was the only person in the family who could ride it. She states that currently according to websites this motor cycle is worth approximately $4,900.
  1. [85]
    She states from November 1996 she commenced a job with Ipswich Carpet Choice, which started out as a casual position and then moved onto full time. Only in the last 12 months of their relationship (and employment) did she cut the hours back to 9 am to 2.30 pm on a permanent part-time basis for the benefit of the children and their schooling hours.  She was eventually discharged from this position because of interference at work from the applicant and his attitude towards herself at the home.  She earned approximately $20,000 (after tax) per annum while holding this position.
  1. [86]
    She states in 2004 the Toyota Camry which they owned finally “died” and they purchased a Lite Ace van for $5,000. This was registered in the first respondent’s name as she was the driver of it 99% of the time. She states this was sold in April 2007 and the best she could get for it was $500.
  1. [87]
    The first respondent states in around January 2007 the applicant and she became business partners in a transport business with Mr H and contributed $25,000 towards this.  She states this was a business cheque account and not an addition to the mortgage, as the applicant claims.  The first respondent denies taking an extra $5,000, as claimed by the applicant.  She states the applicant was to be a silent partner in the business, as Mr H had the driving and experience skills and the first respondent was to be the bookkeeper and receptionist/secretary.  The first respondent states this business is no longer operating as it was wound up mid 2007.
  1. [88]
    The first respondent states during the relationship she attended to most of the household chores as well as raising the children, as the applicant was rarely home and if he was he was on his computer. He attended QUT part time while this was happening, and for a couple of nights per week he was there and for the rest of the time, studying. Although he did score straight 7s on his final grading, he ignored the family and house while this was happening, to the extent that he did nothing, not even the gardening or mowing of the lawn. He even went to the extent of purchasing the first respondent a jigsaw and sander combination (electric equipment) set for her birthday one year to use for home maintenance. She states while she was caring for the children, house, and working, the household did suffer due to a complete lack of help from the applicant. He expected to be waited on hand and foot so he could achieve the grades he wanted and even after he finished his schooling, he did not pick up any of the household chores or maintenance. As a result of him constantly chastising her over his ironing (although at that time he always had work clothing to wear every day), the first respondent eventually went on strike where his washing was concerned and handed the responsibility of it over to him). The first respondent states that she knows he was insulted by this, but other than his own washing and ironing, he still did not lift a finger to help the family. He actually did build an entertainment area with his father, C (their son), and herself, which ultimately had to be torn apart because they did not allow for drainage and the substandard building of this had resulted in major sinkage in several areas. The first respondent states they both contributed to this equally, with both financial and with the work content. The first respondent states she organised for the retaining wall bricks to be delivered, the outdoor tiles to be delivered, and even the concrete mix and mixer to be on site on the day needed, as well as labour carting both bricks and pavers. She states the applicant expected to have everything he needed on site when he needed it.
  1. [89]
    The first respondent refutes that the applicant did maintenance work around the house at Barellan Point and challenges him to provide some sort of proof of this either in the form of photographic evidence or receipts. Regarding the carpet, the first respondent states this was paid for by herself while working at Carpet Choice in Ipswich by way of salary sacrifice each week.  The cost of this came from herself directly and was more than $2,000 at the time.  This included maintenance (contractors to lay it properly) and underlay as well as the actual carpet.
  1. [90]
    The first respondent states the current assets of the parties are:

property located at Barellan Point $365,000

motor bike $4,900

furniture $8,000

tools   $3,000

TOTAL $380,900

  1. [91]
    Regarding the current liabilities, the first respondent states these are:

 Description Ownership Estimated Value

Mortgage with Westpac joint $152,000

Unpaid tax liability applicant $3,700

Credit card debt applicant $700

Credit card debt first respondent $3,000

  1. [92]
    Regarding the sale of the Barellan Point property, the first respondent blames the applicant for it not being sold before an auction by the bank. The first respondent states she has tried numerous times to engage the applicant in conversation about this through his lawyers, only to have no reply to her correspondence.
  1. [93]
    The first respondent states in July 2008 the applicant instigated an application for property in the Family Court of Brisbane. She states he was found to have lied on his affidavit. She states the applicant was presented with mortgage receipts stating that the first respondent had paid the mortgage and asked for proof of other claims and, when presented with proof of this, the applicant had the case dismissed and offered the first respondent a deal. In accordance with this deal, he was to forward his new address to the first respondent within seven days of the deal and begin property court within a month of the same date. She states the applicant has reneged on the deal, as it took him until August to provide her with his new address and did not start property proceedings until February 2009. This was a bare month because his time became up for property proceedings. She states that while in the Family Court his explanation for this delay was that it had taken him a while to gather all the relevant information which she believes should have been gathered before he forwarded his initiating application. She states he has since written to her a letter written without prejudice stating that he only signed this agreement to shut her up and because it had to be kicked off at some point in time. She states as a result of his negligent behaviour towards the property the house has now been repossessed by Westpac and has been sold via the agents. Further, she states that before the applicant even left the residential address an agreement was made between themselves that they would each pay every second mortgage payment until they both got on their feet and sorted everything else out. She states the applicant has never once paid any monthly mortgage and only when he was forced to do this he paid some arrears to the sum of approximately $4,000. He left the house in March 2007 and the first payment that was missed was in April 2007. She states the applicant has stated before that nothing about this deal was mentioned before mid 2008, and yet the text transcripts tell a different story. She states the transcripts of these texts are true and correct and she still has the hard copy should the court require the information from her.
  1. [94]
    The first respondent states while the applicant was at both work and university, this took up approximately 70 hours per week, she cut back on her working hours to coincide with school times and engaged the children with homework, after school activities as well as housework both inside and outside the house.  She states that the nights the applicant was at uni, the children did not see him at all as he returned home after their bedtime, and as he claims in his first affidavit for Family Court, he had no real bond with the children and the first respondent was their main carer.  He only later changed his mind on this statement when he discovered that “I believe” worked in the Family Court.  He did not take the children to both Scouts and Ju Jitsu, as he claimed in his affidavit point 52.  He was not at home to do this.
  1. [95]
    The first respondent states upon the applicant leaving the home, they made another agreement with regards to the children, which the applicant again did not adhere to. The first respondent states she prevented the applicant from seeing A in May 2007 as she had stated to her that he had interfered with her in an inappropriate manner. She states by this time C had no desire whatever to go to his father’s house on the allotted weekends, and so did not as per their original agreement which the applicant had previously agreed to having been made.
  1. [96]
    The first respondent states on 21 November 2007 Federal Magistrate Bauman ordered that the children spend two weeks with their father and she was not to have contact with them so that they could “bond” with their father.  He also stated that the first respondent was to have it back in his court within two weeks, and due to commitments beyond her control, this did not happen, and so the children stayed with the applicant from that point onwards until it was brought back into court again and she was granted visitation rights.  The first respondent states since the applicant has had the care of the children he has only increased his workload and has in fact had his ageing father look after them apparently as the first respondent used to.  She states the applicant’s father now takes A to and from school while C rode his bicycle and his father apparently does all the buying of food and clothing for them as indicated by the applicant, and his father makes the day to day decisions in the care of the children.  So far as she can tell, the applicant is still not doing anything for the children except for providing money for others to do so.  She states the applicant is under investigation by the Department of Human Services for mental, emotional and physical abuse of C.
  1. [97]
    The applicant has responded to these allegations in his affidavit. He says the allegations raised by the first respondent and elsewhere have all been investigated by various investigative authorities and the courts and found to be wholly unsubstantiated, and that it is in fact the first respondent who has been found to have committed these atrocious acts of psychological and emotional abuse. Specifically regarding the Department of Human Services’ investigation in Victoria, he states that the DHS made an application to the Childrens Court of Victoria and were wholly unsuccessful.
  1. [98]
    The first respondent states that the applicant has complained numerous times that it was her fault that the mortgage was in default, and not once admitted that the deal they made was for each of them to pay on alternating months. The first respondent states she kept up with the mortgage payments for as long as she could on the money that she was receiving from Centrelink and eventually had to use some monies for other expenses that had fallen behind because of the applicant’s inability to acknowledge or contribute to one of his assets and hold up his stated word to her.
  1. [99]
    With respect to the outstanding rates, she states she was not receiving rate notices through the council, as the applicant had, on no less than two occasions, changed her address to one at which she was not living. She states the applicant has always known where she lived and had chosen to instead put down either a false address or none at all. She states that although the applicant states that she had received a copy of the change of address paperwork, it does not necessarily mean she did receive it. The first respondent states the Ipswich City Council is investigating this at the moment, as it was fraud committed against them. She states as she was not receiving rates notices at the time, she found it incredibly hard to pay something she did not know about. She believes the applicant did this for the purpose of property proceedings, and to try to sway the court in his favour by making her look bad. She states through her lawyers she did, however, offer to pay half of the arrears of the council rates and left it up to the applicant to agree with her. She states this was not the first time she had contacted the applicant to discuss the sale of the house, nor the last. She did not receive a response from either the applicant or his lawyers in regard to this and believes that none were sent. She states on occasion, she did receive replies from him about the property, but found the size of the script and the printing to be both hard to read and substandard. She states it is almost impossible to read this and she just took it to mean that he was not interested in her proposal. She states after the applicant had the rates changed to his address, however, (and she was not receiving them) they have slipped further and further into arrears, and she believes this shows that it was not her that was deliberately shirking her responsibilities, as he has claimed.
  1. [100]
    The first respondent states after the agreement was reached in the Family Court in regards to property, she did again commence paying for the mortgage until 24 September 2008.  However, as the applicant had not kept to the agreement he had made with her, she saw no need to put herself further into debt by keeping to another agreement that meant nothing to him.  She was receiving approximately $400 per fortnight from Centrelink and was paying up to $1,000 per month on the mortgage.
  1. [101]
    The first respondent also refutes the applicant’s claim that he did not have the capacity to continue to pay expenses on the former family home. She states the only expenses he had to pay were ones that he had agreed to pay for when he left, and seeing as he earned in excess of $2,500 per fortnight, and in some cases over $5,000, she fails to see why he could not afford every second payment as he had agreed to. The first respondent states if the applicant indeed did not have the capacity to continue with this, as he claims, why then did he not let her apply for the hardship clause with the bank, given them his right address for mailing or even let her sell the house for both of them or even communicate with her about it? She believes he was deliberately trying to make their lives both harder and messier by not communicating or sticking to the agreement he had made in court, thus making her stressed, frustrated and angry at the same time. She states this makes it extremely hard to negotiate anything with him while he behaves like this and she is not sure that she can wait for him to grow up.
  1. [102]
    The first respondent’s position is that she has been paying child support via her Centrelink payments, as they are taken out for her.
  1. [103]
    The first respondent states as early as December 2007 she was willing to sell the property at Barellan Point and the price placed on it then was still reasonable in today’s market. She states the applicant, although he claims to have wanted this over and done with, has done nothing to prove this.
  1. [104]
    The affidavit of the applicant exhibits a copy of an affidavit of Scott Edward Seefeld a solicitor with Minter Ellison the solicitors for Westpac.
  1. [105]
    Mr Seefeld states Westpac held a mortgage over the Barellan Point property. The mortgagors and registered owners of the property were the applicant and the first respondent. The applicant and the first respondent owned the property as tenants in common, each with a one half interest.
  1. [106]
    He states on or about 13 October 2009 the Bank exercised its power of sale under the mortgage and entered into a contract of sale as mortgagee of the property.
  1. [107]
    He states the sale was completed on 12 November 2009 resulting in surplus funds of $179,296.51.
  1. [108]
    He states M had a second registered mortgage over the first respondent’s interest in the property only.
  1. [109]
    By facsimile from M Lawyers to Minter Ellison dated 13 October 2009 M claimed the amount of $102,206.85 pursuant to the second mortgage.
  1. [110]
    Mr Seefeld states he had a conversation with the applicant on around 7 December 2009. Mr Seefeld informed the applicant about the surplus funds and that M had claimed some of those funds. The applicant said to Mr Seefeld words to the effect he objected to the payment of any of the surplus funds to M until this application was finalised.
  1. [111]
    On 8 December 2009 Mr Seefeld sent letters to the applicant and the first respondent informing them of the surplus, that M claims $102,206.85 to be paid from the first respondent’s interest in the property and asked whether they have any objection to payment of half the surplus funds to M.
  1. [112]
    Mr Seefeld sent a letter to M Lawyers on 8 December 2009. In this letter Mr Seefeld stated that half the surplus funds would not be sufficient to cover the amount claimed by M. He noted the applicant’s objection to payment of half of the surplus funds to M.
  1. [113]
    The applicant sent a letter to Minter Ellison dated 11 December 2009. In the letter the applicant states he is seeking a settlement of 70/30 split in his favour and these funds need to be protected. He requested the funds be transferred to an appropriate current trust account.
  1. [114]
    Mr Seefeld informed M of the applicant’s objection.
  1. [115]
    Mr Seefeld states a paralegal in the firm Minter Ellison spoke to the first respondent on about 9 January 2009(10) who said:
  1. (a)
    The estimate of legal fees to her by M lawyers was $30,000, but that they were now claiming over $100,000.
  1. (b)
    She is contesting the fees claimed by M Lawyers; and
  1. (c)
    she objects to payment of the surplus funds to M.
  1. [116]
    Mr Seefeld made arrangements to pay the surplus funds, less some expenses and costs of the Bank, to be paid into court. The sum paid in is $172,509.39.
  1. [117]
    Once the monies were paid into Court Mr Seefeld states the interested parties would be notified.
  1. [118]
    As it appeared neither the applicant nor the first respondent gave M notice of this application I gave notice to M who with the applicant and the first respondent appeared before me on 12 December 2011 when I could only mention the matter because of other court commitments that day. My intention bringing the matter on was to confirm M’s claim and give the parties a date in the New Year to make submissions.
  1. [119]
    On that date I gave M leave to file and read an affidavit by him on this application and ordered M be the second respondent to this application.
  1. [120]
    Although M claimed at one stage $102,206.85 his claim in his affidavit filed 12 December 2011 was for $40,537.01 as at 12 December 2011. This was made up of $26,000 for the costs the first respondent agreed to pay him, $4,275 for interest on the unpaid $26,000 and costs of $10,262.01. M’s claim for $102,206.85 was withdrawn after the first respondent approached the Legal Services Commission.
  1. [121]
    On the date in the New Year (25 January 2012) M’s Counsel referred me to his affidavit filed 3 January 2012 in which he corrects the claim for interest. He says this should be $2,434.15. Therefore, his claim excluding costs is $28,434.15.
  1. [122]
    In addition his counsel claimed costs in addition to the sum of $10,262.01.
  1. [123]
    Included in the sum of $10,262.01 are counsel’s fees as follows:-

Barrister’s Fee – Preparation for hearing $3,300.00

Photocopying (District Court) $282.60

Parking (District Court to inspect file) $32.00

Barrister’s Fee – Conference $440.00

Barrister’s Fee – Counsel’s fee on Brief $3,300.00

  1. [124]
    The additional costs claimed since 12 December 2011 are: $1,100 for M’s costs and $4,488 for Counsel.
  1. [125]
    In FO v HAF (2007) Qd R 138 at paras 51 and 52 Keane J.A. said:

[51] It has frequently been emphasised that the judicial discretion conferred by s 286(1) of the PLA and its analogues in other statutes should not be constrained by pre-determined guidelines.51 It is essential, however, that the matters referred to in the provisions set out above be taken into account, and that they are "seen, in the reasons for judgment, to have been taken into account".52 To this end, the four step approach explained by the Full Court of the Family Court in Hickey v Hickey 53 provides a useful discipline to ensure clarity of thought and transparency of judicial reasons.

[52] The Full Court of the Family Court explained in Hickey and Hickey, 54 in relation to the Family Law Act analogue of pt 19 of the PLA, that the first step in making a property adjustment order is the identification and valuation of the property, resources and liabilities of the parties. The second step is the identification and assessment of the contributions of the parties to their pool of assets and the determination of their contribution-based entitlements in accordance with s 291 to s 295 of the PLA. The third step is the identification and assessment of the factors in s 297 to s 309 of the PLA to determine the adjustment to the contribution-based entitlement. The fourth step in the process is consideration of the result of these earlier steps to determine whether that result is just and equitable in accordance with s 286 of the PLA. While this approach should be understood as a guide to the exercise of the statutory discretion, it also serves to focus attention upon the importance attached by the legislature to the identification of the contributions of the parties to the parties' assets as the basis from which the process of adjustment is to proceed. That process is distorted if one party's financial contribution to the assets of the parties is treated to a large extent as dead money having little or no bearing upon the increase in value of the parties' assets.”

  1. [126]
    Further, regarding add backs the Full Court of the Family Court in Omacini and Omacini (2005) FLC 93-918 at paras 30 and 31 said:

“30. To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:

(a) Where the parties have expended money on legal fees.

…

(b) Where there has been a premature distribution of matrimonial assets.

…

(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC ¶91-092 at 76,644:

‘As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value of matrimonial assets, or

(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(o) to applications for settlement of property instituted under the provisions of sec 79.’

31. As the Full court said in Browne v Green (1999) FLC 92-873 at 86,360:

‘44. We agree with her Honour that the principles stated by Baker J in Kowaliwi certainly do not constitute any form of fixed code. They are no more than guidelines or use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated become a well accepted guideline in this jurisdiction – a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.’”

  1. [127]
    As far as credibility is concerned I preferred the evidence of the applicant and his father to the evidence of the first respondent. I was favourably impressed by the applicant and his father when they gave evidence and when the applicant conducted the proceedings on his own behalf.
  1. [128]
    On the other hand I do not accept the first respondent’s evidence where it is in conflict with the evidence of the applicant and his father. That was because of her reluctance to disclose her superannuation entitlement. In addition the first respondent has not updated her financial circumstances. Her financial position has not been updated since about October 2009 to the present time except for what the first respondent said when she was cross-examined by the applicant at the hearing. Further, I am not satisfied the first respondent has disclosed what Mr H may have contributed to their relationship between the parties’ separation and the present time. Also, the evidence about the first respondent’s earnings since about October 2009 to the present time is limited.
  1. [129]
    However, I find $30,000 was expended to finance HB Transport. In my opinion that is not an add back. In my opinion that payment was a financial loss incurred by the parties in the course of the relationship.
  1. [130]
    Further, I do not accept the applicant can claim as an add back to the property pool the $25,000 he claims is wastage due to the Barellan Point property being sold by the mortgagee in possession. There was a valuation exhibited to an affidavit by the first respondent valuing the family home at $390,000 at 28 January 2009. However, I am not persuaded at a normal sale the family house is likely to have sold for $390,000.
  1. [131]
    With regard to the $14,261.40 arrears although I accept the first respondent agreed with the applicant that she would remain in the Barellan Point property and pay the mortgage and the expenses of the property and did not honour that agreement I do not accept the consequence is an add back. I consider the fact that the first respondent had for some part the custody of the children and needed a home for the children and later remained in the house is a normal incident of the relationship. Further I consider the applicant made payments to preserve the family home so that it could be sold by normal sale. That was a decision he made when he could have left the family home to be sold by the mortgagee in possession.
  1. [132]
    In my opinion the same considerations apply to the $3,899.00 paid to the Bank for arrears on the mortgage. As the applicant and the first respondent could not agree the only solution available to the applicant was to leave the home to be sold by the mortgagee. In my opinion the applicant’s intention was to keep the house when in the circumstances that was not a viable alternative.
  1. [133]
    The outstanding rates of $3249.75 are not in my opinion an add back. Again in my opinion the applicant was paying expenses to keep the family home for a market sale. The first respondent I find was certainly not helping the applicant. However, the payment is not an add back.
  1. [134]
    The $3,546.45 was money the first respondent expended against the applicant’s Visa amount post separation. Again I do not accept this payment is within the jurisdiction for add backs. While this money was expended by the first respondent I consider the payments may have been for the benefit of the children.
  1. [135]
    The $4,732.41 I find was incurred by the first respondent on the defendant’s joint account post separation and repaid by the applicant. However, I do not accept the payment is within the jurisdiction for add backs. Again payments on this account I consider may have been for the benefit of the children.
  1. [136]
    Finally, as to the sum of $3,855.30 claimed by the applicant to represent his contributions to the interest paid on the loan financing the property of the investments held by the parties, I do not accept it is within the jurisdiction for add backs. In my opinion it is an incident of the arrangements between the parties. Further, the applicant sold these investments in part to meet the expenses of the children.
  1. [137]
    Superannuation is not an asset but is a financial resource (see Hickey v Hickey (2003) FLC 93-143 and s 263 of the Act).  In this case the first respondent was suspicious of the applicant’s superannuation not being disclosed whereas it was disclosed in his affidavit material.  On the other hand the first respondent did not disclose her superannuation.  In the end I do not consider there is a case to bring the applicant’s superannuation into account particularly when I do not know what superannuation the first respondent is entitled to.
  1. [138]
    When the parties were together they purchased some jewellery as an investment. The cost of units in the marketing scheme for this jewellery was $6600. From the evidence it seems the first respondent has possession of this jewellery. However, on the evidence I cannot determine a value for it.
  1. [139]
    Therefore, I find at the time of the hearing of this application the property of the relationship consists of the following:

1.

The applicant’s half interest in the funds held in trust from the mortgagee in possession

$86,254.69

2.

The first respondent’s half interest in the funds held in trust from the mortgagee in possession

$86,254.70

 

TOTAL:

$172,509.39

    1. [140]
      In my opinion, the applicant and the first respondent have other items of property in their possession, such as the motor bike and furniture in the applicant’s possession and the van that was in the first respondent’s possession and the jewellery that is in the first respondent’s possession that may be of equal value and should not be brought into account in the assessment of the property pool.
    1. [141]
      I find the liabilities of the applicant are minimal, say $1,000. The liabilities of the first respondent are to the second respondent for $28,434.15 as at 25 January 2012.
    1. [142]
      Despite the liabilities, the parties asset pool is realistically represented by the money paid into trust by the mortgagee in possession.
    1. [143]
      The financial resources of the parties to the date of the hearing of the application are that the applicant is in receipt of gross income of $81,000 per annum employed as a senior software developer. He receives a net salary of approximately of $1,161.08 per week. He also receives an MSBS pension of approximately $130.71 per week and family tax benefit of $47.53 per week. In total he receives approximately $1,329.32 each week in income. His expenses per week are an estimated $1,510.07. The applicant also has as a financial resource superannuation valued at the present time at $71,160.11.
    1. [144]
      As far as the first respondent is concerned in her affidavit filed on 20 October 2009 she said she was unemployed and on a personal support programme with Centrelink and received a New Start allowance. Those benefits were approximately $12,000 per annum. During the hearing she told me that she had been employed in a factory from about March 2010 but because of the floods had lost her work. She has moved to Melbourne to find work.  At best I find she has some superannuation.  However, I cannot determine the amount of her superannuation.  She may have some liabilities to credit cards.  She said at the hearing she is no longer engaged to Mr H.  I do not accept the applicant’s argument that she may inherit from her mother’s estate.  As the first respondent told me her mother is 70 years of age and there are three children in the family and one of them is suffering MS.  She also has a number of grandchildren.  I consider it is speculative what may happen in relation to the first respondent’s mother’s estate.  I accept the applicant’s father does not have any assets of any value and the applicant is unlikely to inherit anything in the future.
    1. [145]
      Regarding any training for employment the first respondent said when cross-examined in the past twelve months she has done first aid courses, a baristas course and a certificate 3 in hospitality. However in her answers she also gave a glimpse as to the issues in the relationship. The relevant questions and answers are:-

    “No.  So it’s been nearly five years since separation, and four since you’ve had the children; that’s correct, isn’t it?—

    Yes.

    So in all of that time what training have you undertaken?  I mean, have you completed a degree?  You have had time enough to do that.  Have you even done that? – No, because I don’t like formal schooling.  You know that, when you tried to force me back to school to become a nurse, which is what you chose for me to do, and I refused to do it.  I have done first aid courses, I have done a baristas course, and I have done a certificate 3 in hospitality.”

    1. [146]
      I find at the commencement of the relationship the applicant contributed directly to the property of the relationship about $20,500. I find the first respondent contributed a minimal sum. Therefore I find the applicant made a contribution of about 10% to the property of the relationship at the commencement of the relationship. ($20,500 x 100/$172,509.39)
    1. [147]
      Further, I find the applicant made a direct financial contribution of $30,000 as a deposit to the purchase of the Barellan Point property. I find this is a contribution of about 15% by the applicant to the property of the relationship. ($30,000 x 100/$172,509.39)
    1. [148]
      During the relationship the applicant worked and studied. I consider because of his commitments he did not give the family and in particular the first respondent the attention they would have liked. However, I consider once he ceased studying his contribution to the family welfare increased.
    1. [149]
      I accept the evidence of the applicant’s father and conclude the first respondent did not contribute to the family welfare as much as possible. I consider the evidence of the applicant’s father indicates the first respondent had withdrawn from the relationship with the applicant by that stage if not sooner. However, I am satisfied when the children were much younger the first respondent’s homemaking and parenting contributions were reasonable.
    1. [150]
      I find the applicant’s earnings were substantially more than the earnings of the first respondent during the period of the relationship. Further I accept the applicant and his father improved the Barellan Point property. The cost of materials I find was about $5,000. I cannot make a finding as to the extent of the increase in value in dollar terms this may have had upon the property.
    1. [151]
      Both the applicant and the first respondent have the capacity to work. However in the first respondent’s case there is a question mark about how much she can work. She claimed to have chronic depression. However there was no medical evidence to support this condition. I find she has the capacity to earn about $20,000 nett per annum if not more.
    1. [152]
      Apart from the financial contributions I have already assessed in favour of the applicant I assess the contributions to the pool of assets made by the applicant and the first respondent by way of other financial contributions and contributions to family welfare are 45% by the applicant and 30% by the first respondent.
    1. [153]
      In the end I assess the financial contributions and contributions to family welfare to be 70% by the applicant and 30% by the first respondent.
    1. [154]
      In my opinion any proposed order on a 70/30 basis in favour of the applicant is unlikely to affect the earning capacity of either party.
    1. [155]
      Child support is not likely to affect either party.
    1. [156]
      Regarding the factors referred to in sections 297 to 309 of the Act both the applicant and the first respondent are 42 years of age and are in reasonable health. I have mentioned the exception with respect to the first respondent.
    1. [157]
      Both are capable of gainful employment. Despite the first respondent’s condition it seemed to me she intended to find work if it were available. Clearly the applicant has the superior income. The qualifications to earn that superior income were gained during the relationship and I accept at some times during the relationship at the expense of the relationship. Neither party has property of any significance other than the pool of assets. The applicant has some superannuation and the first respondent would appear to have some superannuation but has not disclosed the amount of that superannuation. In this application I do not consider the applicant’s superannuation nor the first respondent’s superannuation should be called upon to meet any financial obligation by either party to the other as each would appear to have contributed to their respective policy. Further there is no ground in my opinion to order either party to pay to the other something from their superannuation.
    1. [158]
      Further it would appear on the face of it that the applicant will have the care for A until she turns eighteen. There is clearly a problem for the parties with respect to C who is now eighteen years of age in any event. The first respondent on the other hand has not had the responsibility for the children since about late 2007. The first respondent has not claimed to have the responsibility to support another person whereas the applicant supports his father. Government assistance is available to both parties. In the case of the applicant it supplements his income. In the case of the first respondent it would appear to be her sole source of income except if she were to find work.
    1. [159]
      The applicant became engaged to Mr H and it would appear that it was only during the hearing of this application that she disclosed that she is no longer his partner. However as the applicant pointed out in cross-examination she was still wearing her engagement ring which the first respondent claimed she could not get off her finger. Further the first respondent accepted that she had forwarded to the applicant recently a document using Mr H’s email. The first respondent’s response was that not every break up ends on a bad note.
    1. [160]
      Whatever is the first respondent’s status with Mr H I do not consider any proposed order on a 70/30 basis in favour of the applicant is affected.
    1. [161]
      Both parties are residing in rented accommodation. Neither claimed that the standard of living both are enjoying at the present time is not reasonable. I find the first respondent did contribute to the applicant gaining better qualifications and therefore greater earning capacity. However, I do not accept that contribution was substantial. That is I do not accept the first respondent did a great deal of homemaking or parenting while the applicant was studying.
    1. [162]
      The length of the de facto relationship in this instance has been one of fourteen years. I accept the first respondent withdrew to some extent from engaging in work to bring up the children. While this has taken her out of the workforce for some period of time she continued to work from time to time and was able to hold down a job with Carpet Choice for a substantial period of time in a responsible position. She also had her past qualifications as a steward with the RAAF.
    1. [163]
      Regarding child maintenance it would appear the applicant has had the responsibility for the maintenance of the children except for the circumstance where C has had absented himself to Victoria.  The applicant will have the responsibility of maintaining A until she reaches the age of eighteen years of age.  While the first respondent wishes that the applicant provide a lump sum in trust for the education of C I do not consider it is an appropriate factor to be taken into account in adjusting the property interests of the applicant and the first respondent.  That is because on the evidence I am not satisfied C will necessarily embark on tertiary study and even if he did there is the HECS scheme available.
    1. [164]
      Therefore I consider there is no basis to adjust the contribution based entitlements of the parties.
    1. [165]
      In all the circumstances I consider the apportionment 70% in favour of the applicant and 30% in favour of the first respondent to be a just and equitable adjustment of the interests of the applicant and the first respondent in their property.
    1. [166]
      The applicant claims a declaration be made about the existence of the de facto relationship.
    1. [167]
      I therefore declare pursuant to 319 of the Property Law Act 1974 that a de facto relationship within the meaning of the Act existed between the applicant and the first respondent from January 1993 to March 2007.
    1. [168]
      I order from the total of the proceeds from the sale of the Barellan Point property held in trust by the Court file number BS 849/2010:-
    1. There be paid to the applicant the sum of $120,756.57 (70% of $172,509.39);
    1. There be paid to the first respondent the sum of $23,318.66 (30% of $172,509.39 less $28,434.15.
    1. There be paid to the second respondent the sum of $28,434.15.
    1. [169]
      I also order the applicant is entitled to sole possession and legal and equitable title to the following:
    1. BMW K100 RT Motorbike bearing registration no. XR407;
    1. The furniture and chattels in his possession; and
    1. Any funds held in bank accounts in his name.
    1. [170]
      I also order the first respondent is entitled to sole possession and legal and equitable title to the following:
    1. Any furniture and chattels in her possession; and
    1. Any funds held in bank accounts in her name.
    1. [171]
      I further order:-
    1. Unless otherwise specified in these Orders and except for the purposes of enforcing any payments due under these or any subsequent orders:
    1. (a)
      each party is solely entitled to the exclusion of the other of all property (including choses in action) in that party’s power, possession or control or of which they are the legal and equitable owner as at the date of these Orders;
    1. (b)
      each party is solely responsible for, and indemnifies the other party against any liability to a third party existing at the date of the execution of these orders, which was incurred in their name, whether before or after the date of these orders. Neither party may pledge the credit of the other after the date of these Orders;
    1. (c)
      insurance policies become and remain the sole property of the owner named in the policy;
    1. (d)
      each party is solely liable for, and indemnifies the other against, any liability encumbering an item of property (including choses in action) to which that party is entitled pursuant to these Orders;
    1. (e)
      any joint tenancy of the parties in any real or personal estate is expressly severed; and
    1. (f)
      where an asset is to be transferred to a party pursuant to these Orders, the transferee is responsible for the preparation of all documents necessary to affect the transfer, and any costs, including stamp duty, associated with the transfer.
    1. The parties agree to sign all documents and do all acts and things necessary to give effect to these Orders.
    1. The parties have liberty to apply to the District Court of Queensland in respect of matters relating to the enforcement or interpretation of these Orders upon giving seven (7) days notice in writing to the other party.
    1. If either party refuses or neglects to sign any document or do any thing as may be reasonably required to give effect to these Orders within seven (7) days of the service of a demand upon him or her to sign the document or to do the thing, a Registrar of the District Court of Queensland is empowered to sign the document and to direct anything be done in the name of the party in default to give effect to these Orders.
    1. [172]
      As between the applicant and the first respondent I consider each party should bear their own costs. I do not accept there are circumstances justifying making any other order.
    1. [173]
      As to the second respondent’s costs I consider as he was a necessary party to the proceedings he should bear his own costs of the application. In my opinion his claim was not in dispute in this application. In my opinion the fact that after the hearing on 12 December 2011 he gave a offer to settle to accept what I am prepared to order in his favour should not cause me to order either or both the applicant or the first respondent to pay his costs. That is because the applicant and first respondent were self represented and I consider did not appreciate the consequences of an offer to settle. Further the first respondent never disputed his claim. It was as against the first respondent’s interest in the proceeds paid into court by mortgagee in possession that the second respondent had an interest. He did not have an interest in the applicant’s interest in those proceeds.
    1. [174]
      In any event I would not order payment of the costs claimed by the second respondent as I do not accept they were necessary nor reasonable. Further the appearance on 12 December 2011 was no more than a mention and there was no contest by the first respondent to the second respondent’s claim.
    1. [175]
      Therefore, I make no order as to costs for any party to this application.
    Close

    Editorial Notes

    • Published Case Name:

      W v B & M

    • Shortened Case Name:

      W v B

    • MNC:

      [2012] QDC 12

    • Court:

      QDC

    • Judge(s):

      Samios DCJ

    • Date:

      08 Feb 2012

    Appeal Status

    Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

    Cases Cited

    Case NameFull CitationFrequency
    Browne v Green (1999) FLC 92-873
    1 citation
    Jump To
    Cite 1 - (1999) FLC 92-873
    FO v HAF[2007] 2 Qd R 138; [2006] QCA 555
    2 citations
    Jump To
    Cite 1 - [2007] 2 Qd R 138
    Cite 2 - [2007] 2 Qd R 138
    FO v HAF (2008) FLC 93-218
    1 citation
    Jump To
    Cite 1 - (2008) FLC 93-218
    Hickey and Hickey and the Attorney General for the Commonwealth of Australia (2003) FLC 93-143
    2 citations
    Jump To
    Cite 1 - (2003) FLC 93-143
    Cite 2 - (2003) FLC 93-143
    Kowaliw & Kowaliw (1981) FLC 91-092
    2 citations
    Jump To
    Cite 1 - (1981) FLC 91-092
    Cite 2 - (1981) FLC 91-092
    Omacini and Omacini (2005) FLC 93-918
    1 citation
    Jump To
    Cite 1 - (2005) FLC 93-918

    Cases Citing

    No judgments on Queensland Judgments cite this judgment.

    1

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