B v M[2012] QDC 79

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application pursuant to Part 19 of the Property Law Act 1974. The applicant and the respondent, whom I shall refer to as the applicant and the respondent, so they are not identified in these reasons, were in a de facto relationship for about 13 years.

2. [2]
   The relationship commenced in about August 1995 and ended on the 3rd of September 2008. The applicant seeks a just and equitable distribution of property. Further, or in the alternative, she seeks an order that the combined property of parties, or either of them, shall be adjusted so the applicant be awarded 65 per cent thereof.

3. [3]
   The respondent, in his affidavit, says that pursuant to the Act, the combined property of the parties, or either of them, should be adjusted so the applicant can be awarded 60 per cent thereof. Neither of the parties have expressly stated what order they would seek to be made by the Court.

4. [4]
   During submissions, reference was made to attempts to settle the dispute, however I consider neither party was prepared to state expressly the order, or orders they would seek to be made today.

5. [5]
   The applicant was born on the 10th of April 1971 and is now 41 years of age. The respondent was born on the 13th of September 1967 and is now 44 years of age. The applicant and the respondent have four children from the relationship. Those children are aged 15 years, 14 years, 13 years and 11 years respectively.

6. [6]
   The respondent has married on the 4th of April 2009. The applicant has the custody of the four children. When they lived together, the applicant and the respondent lived in bank provided accommodation. They had been in such accommodation at 12 Bernborough Street here in Goondiwindi for five years when they separated.

7. [7]
   Since separation, the applicant purchased land on the 28th of May 2009. She borrowed a hundred thousand dollars from her parents and borrowed more money from a financial institution so she could build a house on the land. She and the children moved into the house on 13 August 2010. On the other hand, the respondent's wife borrowed money and purchased a house at 13 Pitt Street Toowoomba in April 2009.

8. [8]
   The respondent does not have an interest in that house. The mortgage on that house is met by his wife. Both the applicant and the respondent are in good health. The applicant is employed and earns $42,000 gross per annum. The respondent had been employed as a bank manger with the National Australia Bank for approximately 25 years, ending in March 2009.  He has since been employed both by Suncorp and has worked for First Choice Finance.  He has been made redundant from Suncorp and has made numerous applications for employment.  He now works for the Salvation Army as a financial counsellor earning $47,000 gross per annum.

9. [9]
   His wife is a nurse, and her annual income is $81,726; she is in good health and has no special needs, she does not support any dependants.

10. [10]
    As I said, the applicant has the primary care of the four children. Obviously, the separation has been difficult, tension still exist, I believe, between the applicant and the respondent. The applicant contended in her affidavit that the respondent spent little time with his children, both before the separation and since the separation. However the respondent says while having his obligations to his work, spent as much time with the children as he could.

11. [11]
    It seems to me from the affidavits that have been filed, that the property of the applicant and the respondent accumulated during their relationship, comprised basically of shares and superannuation with respect to both of them. They have liabilities. The affidavits do not deal in detail with the financial circumstances of a margin lending facility. I do not know what the present position is with respect to it, except that it seems to be of some ongoing concern for the applicant, that she may have a liability that she cannot control.

12. [12]
    On the evidence before me, it seems neither party contributed substantially to the relationship when it was formed. There was a motor vehicle and furniture contributed by the applicant.

13. [13]
    The respondent contributed a motor vehicle worth about $1,000. The Toyota Camry and furniture contributed by the applicant was worth about $24,000. They had some superannuation, but not of a significant amount. They had a small amount of liabilities.

14. [14]
    I do not think I can conclude on the evidence before me that the applicant should be entitled to a particular percentage of any property pool for the initial contributions. They seem to have had some assets which do not figure in recent times. I can only assume the motor vehicles and the furniture were basically wasted through use, and no longer represent anything of tangible value. They were consumed in the relationship.

15. [15]
    The applicant worked throughout the relationship, as did the respondent. When times were good, they purchased shares through facilities made available to them through the bank, and they contributed to their respective superannuation accounts.

16. [16]
    The applicant, I accept, did the majority of the household tasks, including cleaning, grocery shopping, washing, and cooking. Further, from the time the children were born, she remained at home for a short period on paid maternity leave to care for them and look after the home. Also during the relationship, she was the primary carer for the children, and she dedicated herself to their care, welfare, and development. She did a lot for them.

17. [17]
    The respondent agrees the applicant was the children's primary caregiver, and attended to the domestic requirements of the home; however, he says he helped out with the children as much as he could, and I accept that is so, and nevertheless, the conclusion I reach on the evidence is that the applicant provided a significant amount of care and welfare for the children, as it happened to be in their relationship.

18. [18]
    The respondent, though, was earning a substantial sum of money, over and above what the applicant could earn. I accept the applicant sacrificed herself to ensure the respondent did as well as he could in employment, and he was, by nature of circumstances, the more substantial breadwinner in terms of money coming into the house.

19. [19]
    It seems the respondent has assisted his mother to purchase a home. I conclude the respondent has no interest either in the home of his wife, nor in his mother's home except he is a joint borrower; of course, he would be liable, if his mother defaulted. I cannot conclude on the evidence put before me that the respondent has any financial interest in either of those homes.

20. [20]
    Basically, the position is, there are shares, some in the name of the applicant, some in the name of the respondent; a small parcel of $2,200 Tatts shares in joint names. There is superannuation. The applicant in her first affidavit said hers was about $99,261. She claimed the respondent's was $160,576 of a preserved component, and the non-preserved component was $21, 792.

21. [21]
    There was a margin lending liability of $10,759 at the time of separation, according to the applicant, and a loan to the NAB bank of $6,779 at the time of separation.

22. [22]
    The respondent in his affidavit says that he basically agrees with the shares, although the Henderson Group shares are valued by him at $604. There are 212 of those shares.

23. [23]
    He says the financial resources are the applicant's superannuation of $99,261, and his NAB superannuation of $182,368. He also says that the margin loan is $10,850.86; the NAB loan is $10,520, and the NAB credit card was $10,000. That's at the time of separation.

24. [24]
    The applicant in her second affidavit says that following separation, the respondent expended moneys that were moneys accumulated during the relationship. A number of these moneys are set out in paragraph 36 of her affidavit; however, some of those moneys cannot be considered as assets of the relationship, for example, $100,000 from the new margin lending facility was seen to be something created after separation. It's a new facility, and I do not think I can bring it into account.

25. [25]
    The applicant also mentions a $317,000 loan for the purchase of the respondent's mother's home. I cannot take that into account. There might have been a deposit of $29,500, however, I cannot conclude that the respondent provided that money.

26. [26]
    Another example is $33,368.22, this is monies obtained by the respondent on his resignation from the National Australia Bank. That was for a period of 25 years of work with the bank. The relationship was something of 13 years. I am unable to conclude what portion can be said to be created by the relationship, and in any event, I consider it is a resource rather than an asset.

27. [27]
    There is also another sum of money of $22,172.88. Again, I cannot conclude that this ought to be an asset that would seem to be a part of his superannuation. It may have been expended on meeting his commitments, including his commitments to child welfare.

28. [28]
    In any event, paragraph 37 of the applicant's second affidavit though also says, there were cash withdrawals from the margin lending facility. She says, "The equity of this facility was the result of assets acquired during the relationship."

29. [29]
    I accept that in addition to the shares there should be added to the property pool a sum of $12,984 which was the respondent's AMP Advantage Policy, which would appear to have been redeemed. Also, there should be added to the property pool $7,500 which was a purchase money at a retail establishment. While the respondent was entitled to make that purchase, I conclude on the evidence before me, he did so out of monies that were built up from the relationship and should be added back to the property pool.

30. [30]
    Turning again to paragraph 37 of the applicant's second affidavit, those cash withdrawals amount to $22,500. I consider they should also be added to the property pool.

31. [31]
    Now, I should say that in an application of this kind, there is a four step procedure in F O v. H A F [2006] QCA 555. In the judgement of Justice of Appeal Keane at paragraph 52, he said, "The full Court of the Family Court explained in Hickey and Hickey in relation to the Family Court Act analogue of part 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.

32. [32]
    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 section 291 to section 295 of the PLA.

33. [33]
    The third step is the identification and assessment of the factors in section 297 to section 309 of the PLA, to determine the adjustment to the contribution based entitlement.

34. [34]
    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 section 286 of the PLA."

35. [35]
    In this case, I have sought to identify and value the property resources and liabilities of the parties earlier in these reasons. I have also sought to identify and assess the contributions of the parties to their pool of assets and the determination of their contribution based entitlement in accordance with section 291 to section 295 of the PLA.

36. [36]
    That is, I am proceeding that there were no initial contributions of any proportion. They have been wasted and used in the course of the relationship. However, bearing in mind the factors in section 291 to 295, I have accepted that both parties worked and contributed to amassing the shares and the Advantage Saver account of $12,984 and the other monies that I said should be added to the property pool.

37. [37]
    I act on the basis that the applicant has made the more substantial contribution to family welfare than the respondent, and I accept that if an order is made it will not have any effect on the earning capacity of the parties.

38. [38]
    I also accept that the respondent has made child support payments, but it does appear his resources are now exhausted particularly because of monies he has paid to lawyers in proceedings because the parties have been unable to agree.

39. [39]
    Dealing with the third step, I have mentioned both are in good health. I've mentioned the work that they both do and appear to be able to do and continue to do in the future, in my opinion. I accept that it is the applicant who is caring for the children for the substantial part and will do so into the future. The children are still quite young, and she will be adopting that role for quite some time while she tries to work fulltime.

40. [40]
    Of course the respondent has a commitment to his mother, however, at this stage that does not appear to be a one that would weigh heavily in the assessment of the contributions of the parties to their property.

41. [41]
    In the end, both parties are fairly close to what they say should be the percentage adjustment. I come to the view that the adjustment should be 65 per cent, in all the circumstances, in favour of the applicant and 35 per cent, of course, to the respondent.

42. [42]
    However, it is necessary to bear in mind what is the property pool and what might be the remaining liabilities. The respondent questioned whether there was jurisdiction to deal with superannuation in these proceedings. The Property Law Act provides, in Section 263, that superannuation is a financial resource. The law, as I understand it to be, in the Family Court, is that superannuation, because of the specific legislation in that Court, has been treated as an asset.

43. [43]
    In that regard, I refer to Hickey and Hickey and the Attorney-General for the Commonwealth of Australia Intervener [2003] Family Law cases 93-143. 

44. [44]
    Now, in this case, I come to the view that the property pool is restricted to the shares and the AMP Advantage account, the $7,500 spent at the retail establishment and the $22,500 representing the cash expenditure the respondent has made since separation referred to in paragraph 37 of the applicant's second affidavit.

45. [45]
    The shares, I conclude, should be valued at $77,809. In arriving at that figure, I have allowed the $604 for the Henderson Group shares. Added to that should be the $12,984 for the AMP Advantage Saver Account. Added to that should be $7,500 for the expenditure at the retail establishment and added to that should be the $22,500 cash payments made by the respondent.

46. [46]
    That is a total of $120,793. Subtracted from that should be $2,200 which both parties agree is the applicant's liability of those shares at the time of separation and a further deduction of $10,759 which is what the applicant says is the respondent's liability for shares at the time of separation.

47. [47]
    That then makes the figure $107,834. 65 per cent of that figure is $70,092.10. I calculate, and there may have been changes but they have not been evidenced in the affidavits, the applicant owns $28,324.16 in shares in her name and therefore I deduct that from the $70,092.10 and I arrive at a figure of $41,187.60 which I conclude is the applicant's interest in the property of the parties.

48. [48]
    Now, as I said, the parties have been unable to agree and the respondent told me he has no cash resources. He said he might be able to pay money from his superannuation to the applicant's superannuation. That did not seem to be acceptable; that was not accepted by the applicant. The applicant was seeking a cash payment, I took her, in addition to money paid to her superannuation. If I'm wrong on that, then she was seeking a cash payment.

49. [49]
    How the parties are going to resolve the differences, I do not know. I have accepted the applicant's evidence in her affidavits, in preference to the respondent's statements in his affidavits where they conflict with the applicant's statements in her evidence.

50. [50]
    My reason for doing so is that I accept the respondent has not been honest and reliable in his loan application that he jointly made with his mother and the circumstances of where he has incorrectly stated matters referred to in the applicant's affidavit. The misrepresentations in that loan application are set out in paragraph 23 of the applicant's second affidavit.

51. [51]
    In the circumstances, I order the respondent to pay the applicant the sum of $41,187.60. I will hear the parties as to any other form of orders that they seek. The ones in joint names, well I will order that the applicant and the respondent forthwith sell the shares in joint names and credit the proceeds to any loan secured in relation to those shares. So, I order the applicant and the respondent forthwith sell the shares in joint names and credit the proceeds to NAB account; number 082829, account number 486185577. And the balance thereof, I'll add to that order about the sale of the shares and the balance thereof be met by the parties in equal shares so the account can be closed, and liberty to apply.

52. [52]
    All right, well that takes care of those shares. I'm ordering a lump sum be paid by the respondent to the applicant in the sum of $41,187.60.

53. [53]
    I order the applicant and the respondent forthwith sell the shares in joint names and credit the proceeds to account NAB number 082829, account number 486185577, and give you liberty to apply. Liberty to apply means that either of you can apply to the Court to have further orders made, or to amend orders to suit your circumstances.

54. [54]
    So if after today, you still can't agree on something, then the Court may re-list the matter, and I may be asked to re-list it in Brisbane, and I know that's inconvenient, but that's the only way I can deal with it, and then you'll have to make your case to me in Brisbane, and I may or may not make any order.

55. [55]
    But my advice to you both is, if you can, try and sort these things out yourselves, I know you've tried, but you really have to succeed if you're not going to be spending money on lawyers. Because even after today, you might elect to go and see lawyers, and the mill just keeps turning over.

56. [56]
    I order that each party pay their own costs of the application.