JJW v REM[2013] QDC 242

DISTRICT COURT OF QUEENSLAND

1. [1]
   The Applicant has sought an adjustment of the parties property following the end of their de facto relationship, pursuant to Ch. 19 of the Property Law Act 1974 (“the Act”).

The Originating Application

2. [2]
   The applicant in an Originating Application filed on 16 November 2012 sought appointment as Trustee for Sale of properties at Lot 9 Boulder Road, Finch Hatton and 20 Oliver’s Road Finch Hatton (“the properties”); vacant possession to be delivered-up and the removal of certain chattels from the properties, by the respondent; the expenditure of a sum of money to effect repairs and maintenance at the Oliver’s Road property; an injunction restraining the respondent with respect to dealings in certain property; orders with respect to the disposition of the proceeds of sale and the parties retention of certain property in their respective possession.

3. [3]
   The properties are the principal assets of the parties. The property at Boulder Road is described as Lot 9 on Group Titles Plan 102628, County of Carlisle, Parish of Pelion, Title Reference 50076659 comprising 10 acres of vacant land; the property at Oliver’s Road is described as Lot 2 on RP 735726, County of Carlisle, Parish of Pelion, Title Reference 21129086 comprising an area of 65 acres, registered in the name of the respondent only, and has a dwelling house erected on it.

The contentions of the parties

4. [4]
   The applicant says that by virtue of her contributions and current circumstances that at least an equal division of property between them is the just and equitable outcome.

5. [5]
   The respondent says that there should be no property settlement in the applicant’s favour and that she should transfer to him the title she holds in the property at Boulder Road.

Orders sought at the hearing

6. [6]
   The applicant at the conclusion of the hearing sought the following Orders: That the properties be sold, with vacant possession and repaired or subject to such maintenance as is necessary to prepare them for sale and that the balance of the net proceeds of sale after payment of mortgage and repair and sale costs and expenses, be apportioned 60% to the applicant and 40% to the respondent, subject to any costs orders being deducted from the respondent’s share, together with an injunction restraining the respondent from dealing in or in respect of the properties and preserving them and identified fixtures.

7. [7]
   The respondent during the hearing and in his written submission indicated that he would seek Orders to the following effect: The respondent seeks an apportionment of 80% to himself and 20% the applicant, which is an adjusted position from his original claim at the commencement of the proceedings that the applicant simply retain personal property in her possession and turn over her interest in the Boulder Road property to the respondent. However, in the course of testimony the respondent said he wanted to retain the properties, all other property in his possession, including any debts in respect of the properties. He was not going to ask the court to order the applicant to pay money to him.

History of the proceeding and interlocutory orders

8. [8]
   This matter proceeded to a hearing in the Family Court before Justice Bell in 2012. His Honour made findings, with respect to the length and end-date of the parties’ de facto relationship, in favour of the period contended for by the respondent namely that they were in a de facto relationship for the period 1992 to October 2007. The applicant had contended that the relationship subsisted until 2010.

9. [9]
   The finding by his Honour gave rise to a jurisdictional point: that is, the family Court could continue to hear and determine the property apportionment provided the parties consented. The respondent did not consent. Hence this Court became seized with jurisdiction to determine the property apportionment and the applicant filed the Originating Application.

10. [10]
    Despite that occurring, the respondent maintained the jurisdictional point until near the end of the hearing before me, and despite his explanation in the course of oral submissions on the last day of the hearing, an explanation that I reject, I consider his persistence as an act of hypocrisy and deliberate obfuscation with the legal process. There has never been any doubt that this court had and has jurisdiction to hear and determine this proceeding.

11. [11]
    On 14 June 2013, after a contested hearing, Judge Baulch SC granted leave to proceed out of time, to the applicant and the respondent’s application filed on 09 January 2013 was dismissed. On 23 July 2013 Judge Shanahan made Directions Orders for the trial. In the week preceding the trial, Judge Kingham refused an interlocutory application brought by the respondent seeking orders requiring further disclosure by the applicant.

Preliminary matters

12. [12]
    At the hearing I refused, on grounds of relevance, an application by the respondent to read an affidavit deposed by his son (a young teenage child of the parties who resided with and under the care of the respondent) and to call the child to give evidence in his case.

13. [13]
    Mr Fellows objected to a number of parts of the respondent’s affidavit materials. I struck out matters that I considered were irrelevant, scandalous or vexatious or that challenged orders made in interlocutory proceedings or in the Family Court, particularly a part of the respondent’s material where he took issues with the decision of Kingham DCJ about disclosure. I will have something further to say about that in the course of the judgement.

Relevant Personal and Relationship History

14. [14]
    The parties were in a de facto relationship from 1992 to October, 2007 and thereafter until early 2010 there was a period of mutuality and cooperation between them, although the evidence before Bell J was not sufficient to establish that the relationship had resumed.

15. [15]
    At the date of hearing the applicant was aged 47 years (DOB 13 February 1966) and the respondent was aged 52 years (DOB 26 October 1960). The parties have three children of their relationship, B (DOB 19 November, 1997) who lives with the respondent, Br (DOB 06 October, 1999) and C (DOB 16 October, 2001). The girls live with the applicant.

The respondent’s self representation

16. [16]
    The respondent was self represented. He was informed by me in a case review hearing in the week preceding the hearing that he would be at a significant disadvantage in acting for himself, particularly in respect of matters of law. He responded that he understood and would continue to act for himself. He was given information by me and assisted to the extent that is permitted by a judicial officer, in the conduct of his case at the hearing. Issues, as they evolved during the hearing, were identified for the respondent’s benefit on several occasions. The respondent cross-examined the applicant and her mother and made written and oral submissions at the hearing. He had filed affidavits in proper form and had made and conducted, or responded to, whilst self represented, several interlocutory applications. In the hearing in the Family Court he had appeared and acted self represented in that hearing. The hearing before me was, in essence, a re-run of the property apportionment case that had been heard by Justice Bell.

The Adjustment Methodology

17. [17]
    The Act requires me to:

1. (a)
   identify and value the property, including assets, liabilities and financial resources of the parties at the date of the hearing;

1. (b)
   identify and assess the parties' contributions to the property, financial resources and family welfare, by reference to ss. 291-309 of the Act(at a percentage net value;

1. (c)
   identify and assess other relevant matters and adjust entitlements as required; and

1. (d)
   determine, pursuant to s. 286 of the Act, what order, if any, is just and equitable in the circumstances of the case: NFO v PFA [2005] QSC 176 at [14]; Phillips & Phillips [2002] FLC 93-104 at [66].

18. [18]
    The court may approach the adjustment of property entitlements either globally or on an asset by asset basis. The global approach is more usually adopted. It is said to be more “convenient”: Norbis v Norbis (1986) 161 CLR 513 at 523. However, an asset by asset approach may be adopted if that is more appropriate in the particular circumstances of a case. Lenehan v Lenehan (1987) 11 Fam LR 615; NFO v PFA (supra).

Valuation of Assets

19. [19]
    There is no formal valuation evidence or indeed any need for such evidence in this case. The submissions of the parties call for the sale of the real property on the one hand (the applicant) or the retention of the real property on the other (by the respondent); and the retention by the respective parties of the personal property in their possession. If there is a sale of the properties, then the market will determine the values.

The Asset Pool

20. [20]
    The property pool available for adjustment as between the parties at the end of the hearing, is focused on the properties at Finch Hatton.

Evidence

Applicant

21. [21]
    In her Statement and her Affidavits, the applicant’s evidence-in-chief was to the following effect. Firstly, in her Statement:

22. [22]
    At the commencement of the relationship she made a net contribution of $107,000.00 and the respondent, to the extent that she was aware, made a net contribution of $62,000.00. The mortgage debt on the Oliver’s Road property was $18,208.00. The value of her superannuation was $13,214.86.

23. [23]
    The applicant deposed that the respondent had made insurance claims on QBE over a period of four and a half years which had yielded an income to him of $103,594.10.

24. [24]
    She is employed at Mackay Sugar Limited on a salary of $26,998.00 per annum. She paid a net sum of $78,000.00 from the sale proceeds of a property at Prince’s Road (which she deposed was sold for $145,000.00) into an ANZ Mortgage Offset Account. The respondent had borrowed $100,000.00 (secured on the Oliver’s Road property) from the ANZ to purchase share portfolios. Their bank accounts were not intermingled and they shared all living expenses.

25. [25]
    Secondly, in her Affidavit of 19 November 2012:

26. [26]
    With respect to the respondent’s capacity to work is concerned, the applicant deposed that the respondent “objects to obtaining formal employment… does not want to pay tax and does not want to be dictated as to the hours he must attend at work” (paragraph 26).

27. [27]
    The applicant then identified the major property assets as follows:

1. (i)
   Oliver’s Road, Finch Hatton $450,000.00;

2. (ii)
   Boulder Road, Finch Hatton $35,000.00;

3. (iii)
   Motor vehicles, tractor, motorbike and chattels at Oliver’s Road;

4. (iv)
   The applicant’s small share portfolio;

5. (v)
   The respondent’s large share portfolio; and

6. (vi)
   The applicant’s superannuation of  $12,000.00.

28. [28]
    Thirdly, in her Affidavit of 19 August 2013:

29. [29]
    The applicant denies that the respondent carried out any maintenance or improvements on the Boulder Road property. She says that she pays child support of $80.00 per month.

30. [30]
    The applicant deposed further in respect of the respondent’s capacity to work, that he “could of” (sic) obtained employment, but he told me that it was important that he did not engage in employment. He was constantly concerned that he might be observed which would have the effect of reducing his compensation payment; and the respondent believed he might be under surveillance (paragraph 2.6).

31. [31]
    In cross-examination, the respondent challenged the applicant’s claim that she had deposited the proceeds of sale of her house into a joint account. He challenged the sale price. With respect to the latter, the applicant explained that in an early affidavit she had thought it was $120,000.00 and only later discovered it was $145,000.00.

32. [32]
    The respondent made allegations that the applicant had deliberately hidden or disposed of money. He was told by me that such serious allegations would require sworn evidence. Hence the respondent filed an affidavit prior to court commencing on the second day of the hearing, on 28 August 2013.

33. [33]
    In this affidavit he persisted with his claim that the applicant’s solicitor had not disclosed all bank accounts, despite the decision of Kingham DCJ to the contrary. Her Honour expressed the position very clearly:

“I’m not satisfied that there are any documents in existence or I’m not satisfied that they’re … in the possession or under the control of JJW”

34. [34]
    That should have been the end of the respondent’s allegations of non-disclosure by the applicant. Unfortunately, it was not.

35. [35]
    He also persisted with other completely unsubstantiated allegations about money issues and non-disclosure. Hence the Affidavit did not offer a shred of evidence to support such serious allegations. I am satisfied that there is no such evidence and that the respondent has set out on a deliberate course of scandalous allegations without the slightest concern for the truth.

36. [36]
    Other matters the subject of cross-examination dealt with the following, each being a matter of:

• In paragraph 75 the respondent alleged that the applicant had divested about $30,000.00 from bank accounts to family members. In Exhibit 7, the applicant’s solicitor informed the respondent by letter, dated 17 July 2013, that the applicant had no knowledge of the funds allegedly divested and requested the respondent to provide evidence with respect to his allegation.
• Exhibit 8 is a letter from the applicant’s solicitor to the respondent, dated 05 July 2013, which, inter alia, stated the following:

“If you continue to assert that our client holds other accounts not previously disclosed, you are welcome to issue subpoenas to the respective bank/s at which you allege our client holds accounts.”

and

“We further note that we have received no updated disclosure from you and look forward to receipt of same as soon as possible.”

• Exhibit 9, a letter from the applicant’s solicitor to the respondent dated 24 August 2011; and Exhibit 10, a further letter dated 08 August 2011, both enclosed financial documents including bank statements. There are also numerous other letters from the applicant’s solicitor to the respondent disclosing documents (for example, Exhibits 3 to 5, sent in August 2013).
• Exhibit 11 comprises a bundle of ANZ Bank statements from an Access Advantage account in the name of the applicant; and Exhibit A is a summary extracted from those bank statements. The latter analyses transactions from 25 October 2007 to the current date, in that bank account with respect to withdrawals or deposits to and from other family members. That analysis shows there was a total in six years of $11,696.50 withdrawn and $4,600.00 deposited. Of that total $4,476.50 was withdrawn for Mrs W and $3,750.00 was withdrawn for the applicant’s brother DW. Others family members received the balance, mainly in smaller sums. Payments were deposited from DW - $3,000.00; and from others, $1,600.00. Family members bought the applicant a car and paid her legal costs.

37. [37]
    In paragraph 43 of an Affidavit, the respondent referred to there having been no substantial financial contributions made by the applicant. In paragraph 2.22 of one of the applicant’s Affidavits she deposed to not having sold shares, not having deposited any money (in the context of large sums) to her mother and that a trip or trips overseas for her and her children were paid for by her mother and brother.

38. [38]
    The respondent raised an issue about a Daihatsu motor vehicle and its deteriorating condition. The applicant said that the police had taken possession of it when ownership was disputed and its condition deteriorated whilst parked in a police compound. Despite this line of questioning, the respondent agreed subsequently in his own cross-examination that the police had taken possession of the motor vehicle and that the Magistrates Court had determined that the applicant owned it.

39. [39]
    The respondent accused the applicant of lying about matters. He said that she sold shares, that she dealt with the Daihatsu motor vehicle and that she took $22,000.00 of a tax distribution, the latter not really being explained with any particularity. Further the respondent in his Affidavit in response, filed 19 August 2013, exhibited a hand written letter dated 13 March 2002 under the hand of the applicant. He referred to this as being a letter that demonstrated that the applicant knew of his incapacity to work. However, as I have observed elsewhere the evidence of the applicant was that she wrote what the respondent told her to write, the letter being about the respondent wishing to retain his Commcare benefit. I accept her evidence about this.

40. [40]
    The respondent was cross-examined about his receipt of $103,000.00 from QBE in respect of insurance claims and the fact that only $50,000.00 remained, the balance being unexplained by any independent or documentary evidence.

41. [41]
    There were questions about the purchase of some shares, but the applicant said that the respondent bought them in her name and she did what he told her to do.

42. [42]
    One of the extraordinary allegations made in the course of the respondent’s cross-examination was about the applicant’s cycle racing and training regime in or about the period 1992-1997. The respondent’s questions were asked in the context of the applicant indulging herself in sport and recreation and, it seems to me, suggested that the activity was at the expense of the applicant being a home maker and child carer. However, as became clear in re-examination and in the respondent’s own testimony, he was her coach, riding companion and drove her to cycling events. He even agreed that the activity was a “team effort” that he had supported.

43. [43]
    That cross examination typified the approach of the respondent to this litigation in this proceeding: he made baseless allegations despite being well aware of that fact. The actual facts of the matters must have been known to him but he decided to ignore the truth and present his case on a lie.

Mrs W

44. [44]
    Mrs W is the mother of the applicant and gave evidence, by consent, from Portugal. In her affidavit Mrs W deposed to the following: she was the beneficiary with her late sister of a life interest in one half of her own mother’s estate and on the death of her and or her sister their respective shares would be distributed to any of their respective children that survived either one of them. She has two children, the applicant and the applicant’s brother.

45. [45]
    The proceeds of the will are in a trust managed by Perpetual Trustees. In 2000 she requested the Trustees for use of a portion of the funds held in the trust to purchase a home where she could live. The amount provided was for a home that did “not exceed of $150,000.” The property at 11 Swan Street, Slade Point was purchased for $145,000 in 2000. The registered proprietor is Perpetual Trustees. She has lived in the house since that time.

46. [46]
    She and her husband live apart. Because of her own financial difficulties and with her children’s knowledge and concurrence, she has enquired with the Trustee about winding up the Trust and distributing the proceeds to herself for her support. As at 31 December 2012 the Trust value was $578,079.29. She is not permitted by the Trustees to rent the Swan Street property as it was purchased for her to live in.

47. [47]
    In so far as her health was concerned, she deposed that she did not suffer any dementia or have deep vein thrombosis. She exhibited a letter from her general practitioner, who wrote on 15 March 2013 that Mrs W had been a patient at her practice for 17 years and was “… currently in good health for her age and is about to go on a two month European hiking holiday. Angela has good cognition and certainly has no evidence of dementia.” At the time of the hearing Mrs W was in Portugal, inferentially on her hiking holiday through Europe.

48. [48]
    In evidence-in-chief by leave, she denied she owned property in Portugal. She did not recall receiving money larger than $2,000 from her daughter. She specifically recalled a $1,000 repayment which was for legal fees.

49. [49]
    In cross-examination she said that she had loaned to the applicant a large sum of money – in excess of six figures – for payment of legal fees for a series of legal proceedings between her daughter and the respondent.

Respondent

50. [50]
    In his Statement and Affidavits the respondent deposed to the following effect:

51. [51]
    He suffered a workplace injury in about 1981. He says that he broke his back in three places. He was employed until he was forced to retire in 1996 and is now on an invalid pension.

52. [52]
    In June 2007 he and the applicant borrowed $100,000.00 from the ANZ Bank. The loan was in his name only. The money was used to buy two separate share portfolios. He claimed that the applicant used about 75% of those funds to purchase shares.

53. [53]
    He stated that in 1994-1997 the applicant was engaged in cycling and that she “…did not seek or maintain gainful employment or make any significant contribution to the family unit.”

54. [54]
    He denied that after the sale of the applicant’s house at 25 Prince’s Road, Mackay in 2001 that any proceeds went into the ANZ Mortgage Offset Account.

55. [55]
    He claimed that the purchase in 2001 of 11 Swan Street, Slade Point by, he says “the applicant”, was through her “influencing trustees of her deceased grandmother’s estate” to do so; and that the applicant has and does maintain control over the property. He claimed that this was one of the matters that the applicant had not fully disclosed.

56. [56]
    He alleged that the applicant divested over $30,000.00 to her mother and other family members, took cash from the respondent’s ANZ Bank account and from a joint tree venture, unilaterally transferred 50% of the Boulder Road property into her name, disposed of a Daihatsu motor vehicle and sold off most of her share portfolio.

57. [57]
    He alleged that “since termination of the relationship the applicant has spent approximately $60,000.00 on unnecessary and unwanted litigation against the respondent.”

58. [58]
    He claimed that he was “the primary care provider for the applicant’s children from a prior marriage and the three children of the de facto relationship with the applicant.”

59. [59]
    He claimed that the applicant had been repeatedly investigated for child abuse and neglect of children by State government departments.

60. [60]
    The period post de facto relationship from 25 October 2007 to January 2010 was described as “a parenting friendship”.

61. [61]
    In his affidavit of 29 January 2013, the respondent deposed to the following:

• “The applicant has given false and misleading evidence to the District Court” (paragraph 13).

• “The applicant has changed her story and values in regard to the sale of 25 Prince’s Road, on many occasions” (paragraph 22).

• “The applicant and her solicitors have deliberately not made a full and frank disclosure of her interest in the property at 11 Swan Street” (paragraph 24).

• “Since February 2010, the applicant has spent approximately $60,000 on unwanted litigation against me, without making any reasonable attempt to negotiate a settlement or understanding” (paragraph 38).

• “The applicant and her solicitors have deliberately not made a full and frank disclosure of her substantial contingent interest in her grandmother’s estate” (paragraph 40).

• “The applicant and her solicitor have attempted to divest their interests in her deceased grandmother’s estate since final separation” and did not advise the Family Court or this Court (paragraph 41).

• “The applicant has sold significant amounts of shares that were purchased in the period July 2007 to 2009” using the $100,000.00 loan (paragraph 43).

62. [62]
    In his “Affidavit in Response” of 19 August 2013, the respondent deposed as follows:

• “The applicant was capable but refused to try and obtain employment while in Townsville until 1997, and chose to pursue her push bike hobby and live off my compensation payments. The applicant lived off my workers’ compensation payments until October 2007” (paragraph 10).

• “From December 1992 to 1997, the applicant refused to work, but chose instead to pursue her hobby and ride push bikes all over the East coast of Australia from Darwin to Adelaide. The applicant committed no energy to the family. The applicant rode and trained up to 8 hours a day, 6 and 7 days a week” (paragraph 38).

• “In response to [paragraph 29 of the applicant’s Affidavit of 19 November 2012], the applicant continues to supply false and misleading information” (paragraph 40).

• “The applicant, her solicitor and her counsel have deliberately failed to disclose the full extent of her assets” (paragraph 74).

• The applicant’s mother suffers from a serious heart condition, suffers from the onset of dementia and also suffers from deep vain (sic) thrombosis, is not expected to live very long.”(paragraph 76)

63. [63]
    In cross-examination the respondent expressed the belief that the applicant “had substantial property” and had “taken” about $100,000.00, impliedly from the joint asset pool.

64. [64]
    The respondent maintained his hypocrisy in cross-examination. He had not obeyed a Family Court Order to undergo drug testing. He said he had the money to do so but had told the court he didn’t have the money to afford the testing.

65. [65]
    He agreed that he had wanted the children to give evidence in the series of proceedings; that Willis FM (as she then was) had been critical of this; he agreed that Benjamin J had determined that the applicant should have the care of the children (although Brodie has since gone to live with his father). Yet he acknowledged that he had disputed that decision in the hearing that proceeded before Bell J in the Family Court.

66. [66]
    He was cross-examined about his financial resources and capacity to buy out the applicant’s interests. I will deal with those matters separately. He prevaricated about whether he knew the properties were at risk of being sold. He said friends would lend the money; or a friend of his son’s friends. No details were given.

67. [67]
    The respondent was cross-examined about his failure to disclose monetary interests. Exhibit 15 (QBE summary) shows payments of $103,000.00 being received over a two year period between 23 July 2010 to 01 May 2012, a sum of $53,000.00 had gone. There was no documentary evidence that supported the respondent’s testimony that those monies were expended on repairs to the property.

68. [68]
    He claimed that he had expended money on repairs in the 12 months since the Family Court judgment, but could produce no receipts or other documents to support such expenditure. Indeed, the bank records showed withdrawals of about $6,000.00.

69. [69]
    The respondent had maintained persistently, almost belligerently, a view that the applicant had not fully disclosed relevant documents to him. He also had maintained and asserted – unfairly, unreasonably and without a shred of evidence – that the applicant’s solicitor and counsel and acted fraudulently and improperly. This is despite evidence in the bank accounts that had been disclosed to him. There are examples of this evidence that contradicts the res, in the summary extracts from accounts at exhibits 16 and 17.

70. [70]
    The respondent’s own cross-examination of the applicant had not extended to cover a number of allegations made by him in his Affidavits. Mr Fellows therefore canvassed some of those.

71. [71]
    In the applicant’s Affidavit of 19 November 2012 – deposed 10 months before this hearing and after the same issues as aired in this proceeding had been the subject of evidence in the Family Court – the applicant’s evidence was that she had made family and living costs contributions up to the end of 2009 (paragraph 7) and the sale price of her house at Princes Street, Mackay had been $145,000.00 (paragraph 15). The respondent agreed that he had known those matters since the transfer document was disclosed to him about a year ago, despite the fact that he nevertheless maintained in cross-examination of the applicant at this hearing, allegations to the contrary.

72. [72]
    The issue about disclosure and the respondent’s repeated allegations of fraud and improper conduct made against the applicant’s solicitor and counsel (maintained despite the decision of Kingham DCJ and the documentary evidence of disclosure made on behalf of the applicant) finally reached the point of intolerable absurdity when the respondent, after the luncheon adjournment on the second day, sought to rely on a document relevant to the sale of the Warwick property, that he had never disclosed to the applicant. He said it had been kept in his motor vehicle.

73. [73]
    Mr Fellows objected to the production of that document and I refused leave to adduce it or its contents in evidence. Mr Fellows submitted that the respondent had acted unconscionably and was in contempt of court by reason of rule 245(1)(b) Uniform Civil Procedure Rules 1999; and otherwise in respect of the allegations, withdrawn by the respondent in the course of the discourse about these issues, of fraud on the part of the applicant’s solicitor and counsel. Mr Fellows reserved his position to raise that matter again.

74. [74]
    The respondent agreed in cross-examination with propositions in respect of the following matters, namely;

• Paragraph 22: he controlled the receipt of money ($53,503.00 from the sale of shares) rather than the applicant, as he had alleged.
• Paragraph 23: the receipt of $103,594.00 from QBE claims. He had no evidence to refute this.
• Paragraph 25: he agreed with that paragraph: that is, he had the benefit of all property at separation excluding a small parcel of shares.
• Paragraph 26: he claimed he was not capable of working, but conceded had done hard work on the Finch Hatton properties.
• He agreed that he had sworn an Affidavit in the Family Court but only affirmed the same Affidavit in this Court.
• Paragraph 30: he agreed that there was an ANZ loan in both names to purchase the Oliver’s Road property and a Mortgage Offset account opened to offset interest on that property loan.
• Paragraph 31: he denied that the appellant deposited $78,000.00 into the Mortgage Offset account.
• Paragraphs 32 and 33: he agreed that money from the offset account was used to purchase the Boulder road property and chattels.
• He agreed that the issue was whether the applicant had deposited money in the Mortgage Offset account or not.

75. [75]
    He was cross-examined about drug use. He admitted that a photo had been tendered to the Family Court which allegedly shows the applicant involved in a drug deal or in drug use. He agreed he had altered the photograph to omit both himself and a friend from appearing in it.

76. [76]
    In an Affidavit filed in the Family Court proceeding, he agreed he had exhibited another photograph alleging it showed the applicant making a drug deal, but that the photo was “misdescribed”.

77. [77]
    Those photographs appear in exhibits 19 and 20 (extracts of documents filed in the Family Court). The respondent agreed he had manipulated the photographs and did not tell the Family Court that he was present when those photographs were taken.

78. [78]
    In cross examination with respect to the applicant’s Affidavit of 19 August 2013, the respondent:

• Paragraph 2.1 – a reference to Bell J’s judgment. He had no serious disagreement.
• Paragraph 2.5 – vehicles bought by him during the relationship and the Warwick land subdivision. He said the vehicles were part of the property settlement with a former wife.
• Paragraph 2.6 – with respect to his compensation claims and not wishing to work, he agreed that he had carpenter and building trade qualifications.
• Paragraph 2.9 – remained unconvinced about the applicant not having purchased the Swan Street property.
• Page 12 at paragraph (a), there is a photograph of him on a motor cycle and a statement that he and the applicant took a 2 week motorcycle trip to the Daintree in NQ. He merely denied the last sentence in the paragraph, namely “At no time did the Respondent complain of any illness or pain.”

The Asset Pool

79. [79]
    The applicant submitted that at the termination of the relationship the asset pool was as follows:

1. (i)
   The Boulder Road property - $80,000;

2. (ii)
   Oliver’s Road property - $400,000;

3. (iii)
   Shares – applicant - $20,312;

4. (iv)
   Shares – respondent - $21,635;

5. (v)
   Chattels - $32,600;

Total: $574,547

Chapter 19: relevant considerations

Subdivision 3:

80. [80]
    With respect to initial contributions of parties to property or financial resources, the significance of these diminishes over time. That is the case here where the de facto relationship subsisted for a long time, to the extent that such time is measured in cases such as this: Pierce and Williams [1999] FLC 92-844.

81. [81]
    The multitude of cases decided pursuant to s 79 of the Family Law Act 1974 (Cth), which reflect similar matters that are required to be taken into account pursuant to subdivision 3, recognize that the norm in respect to contributions is one of equality as a starting point, although individual cases may reflect different outcomes: Re: McLay [1996] 20 Fam LR 239.

Section 291: Contributions to Property or financial resources

82. [82]
    The applicant had her own house. The net proceeds of sale were applied to the benefit of the family. There is nothing comparable contributed by the respondent and thus no contribution pursuant to s 291 by him.

Section 292: Contributions to family welfare

83. [83]
    The respondent has had exclusive use of the family property, to the exclusion of the applicant, since separation. His expenditure on mortgage payments and outgoings is balanced by his exclusive possession of the properties. There is no contribution to be taken into account pursuant to s 292.

Section 293: Future Earning Capacity

84. [84]
    There is nothing in this case that raises issues pursuant to s 293.

Section 294: Child support

85. [85]
    The applicant pays child support. The respondent does not pay and is never likely to pay any child support.

Section 295

86. [86]
    There is nothing in this case that raises issues pursuant to s 295

Subdivision 4: Other matters – (ss 296 to 309)

87. [87]
    The court must consider s 296 matters in subdivision 4, “to the extent that they are relevant”. I can deal with those in a compendious manner rather than under individual headings.

88. [88]
    The age and health of the parties is not a relevant matter. The applicant has a modest income and earning capacity. I have made observations about the respondent’s capacity to work, further in this judgment. I have also reference to the inheritance issue: there is no certainty about any inheritance vesting in the applicant and that is especially so if the Trustee allows Mrs W to use the Trust Fund for her support, a matter with which both the applicant and her brother concur; and the respondent has the care of a child who will be 16 later this year and the applicant has care of two children who will be 12 and 14 respectively later this year and accordingly the applicant has a greater commitment to the care of children. I have already referred to the relationship of 15 years being, for the purposes of this proceeding, a long relationship. Sections 301, 302, 303, 304, 306 and 307 are not relevant in this case.

89. [89]
    With respect to s 309, I do not think that the applicant should have to share the unexplained debt - the expenditure of moneys that has not been substantiated by any evidence, including independent or documentary evidence with the respondent - in any apportionment of assets in this case.

(a)  The respondent’s capacity to work

90. [90]
    The respondent maintained that he was incapacitated from work and could not work for an income. I do not accept his evidence. I believe that he has a capacity to work but simply elects not to do so. The affidavit material is replete with references to his capacity, expressed in his own way:

91. [91]
    In his first affidavit he says:

• He “concreted under the house, repainted and remodelled the front and back yards”;
• He “carried out tree planning and scrub clearing in the last five years”; and
• He “carried out all maintenance repairs and improvements.”

92. [92]
    In his second affidavit, he said that:

• He made “extensive renovations and improvements”;
• “Concreted under the house, repainted and remodelled inside the house and the front and back yards”; and
• Had “completed the only access road and carried out substantial maintenance to the property” and planted over 6,500 hardwood trees.”

93. [93]
    In his affidavit filed in the Family Court (Exhibit 18 in this hearing) dated 08 September 2011, the respondent sent an email dated 28 December 2008 that contained the following:

“I’m building some rooms in an old Queenslander for a friend …. he had the last week off work so we took the time to full advantage of the time we had … working 14 hour days…”.

94. [94]
    There is a large collection of photographs in an Affidavit of the applicant. Some of them show the respondent working on the properties, either in building, farming, land care or other tasks. Those photographs seem to indicate at the least that the respondent has a greater capacity for work than he says he has. They also give substance to the applicant’s depositions about the respondent’s reluctance to engage in paid employment.

(b)  Respondent’s capacity to buy out Applicant’s interest

95. [95]
    The respondent made what I consider to be an incredulous claim from the witness box in the course of cross-examination: that he could raise money from friends to buy out any share of the applicant in the properties. When pressed in cross-examination, he referred to the friends or the father or parents of friends of his teenage son. All of this emerged in the context of there having never been any other sworn or documentary evidence to raise such a possibility.

96. [96]
    I reject this evidence as a desperate lie that is without foundation. The respondent has no prospect of raising money for that purpose, in my view. I am sufficiently confident of that because he does not work, has no known prospects of repaying any loan and there is not a shred of evidence to support his testimony about that claim.

(c)  The inheritance issue

97. [97]
    The respondent has always included in his assessment of the asset pool the total value – as he understood it to be – of the bequest made in the Will of Mrs W, in favour of her two daughters. The persistence of this assertion, made in the face of the evidence and explanations made in correspondence to him from the applicant’s solicitor, has skewed the position taken by the respondent in the proceedings as to apportionment – bearing in mind that at the outset he credited the applicant with receiving no property of any significance

98. [98]
    The respondent’s position about the inheritance conveniently ignores the fact that there are two beneficiaries in the will of Mrs W who would share equally: the applicant and her brother. The testator is alive. There is no evidence that she is ill or otherwise destined to decease in the short or medium term. She is aged 72 years. Life expectancy in Australia is 84 years. She travels overseas independently. She gave evidence in the hearing by telephone and appeared to me to be competent, alert and articulate.

99. [99]
    Nevertheless, the respondent relied on the judgment in Milankov v Milankov (2002) FLC 93-095. The respondent considered that case to reflect similar circumstances to his. However, in my view Milankov is distinguishable. It was a vastly different case involving trust structures that purported to give third parties control of the considerable property interests the husband (the respondent in that case) owned. The judgment of the trial judge was made in the context that this being a “charade” which, upon the termination of the court proceedings, it considered would vanish, with the property being restored into the hands of the husband. That is the factual context in which the trial judge used the term “enmeshment”, which in some way that I find inexplicable seems to have attracted the attention of the respondent here. The respondent’s case here is not such a case as was determined in Milankov and that decision does not assist the respondent at all.

Submissions

Applicant

100. [100]
     Mr Fellows submitted that the respondent had not been a credible or reliable witness and that the applicant and Mrs W should be accepted. He reserved the question of costs orders. He submitted that final orders should take the following form:

1. (a)
   That the applicant be appointed forthwith as Trustee for Sale of the properties;

2. (b)
   That within 28 days of the date of the Orders the respondent vacate and deliver to the applicant undisturbed possession of the properties; and subject to a restraining order, remove from the properties his vehicles, equipment, furniture and personal effects;

3. (c)
   That pending compliance with (b) above, the respondent keep the properties in good order and condition and deliver the same to the applicant in good order and condition;

4. (d)
   The applicant appoint a real estate agent(s) for the marketing of the properties for sale;

5. (e)
   The applicant expend up to $10,000.00 (or such other sum as agreed with the respondent) to effect any necessary repair and maintenance to the property at Oliver’s Road;

6. (f)
   In the event of the respondent not complying with orders in (b) above, the applicant be entitled to incur such reasonable expenses as are necessary to take possession of such chattels; and to sell or otherwise dispose of them and apply monies received towards the costs incurred in taking possession of them;

7. (g)
   That the properties be sold by private contract or auction at such prices as may be advised by the real estate agent(s);

8. (h)
   The proceeds of sale be paid in priority of the mortgages, costs and expenses of sale; reimbursement of the such costs as may have been incurred by the applicant on repair and maintenance of the properties and in taking possession of  chattels; and the balance paid into the trust account of the applicant’s solicitor;

9. (i)
   That the balance monies be apportioned 60% to the applicant and 40% to the respondent, subject to (j) below;

10. (j)
    That any indebtedness of the respondent with respect to any costs order made against him be deducted from the 40% apportionment before payment of any balance sum to him; and

11. (k)
    An injunction restraining the respondent from extending his current indebtedness to the ANZ bank, mortgaging the properties or fixtures or otherwise dealing with the properties, removing fixtures, fittings or trees from the properties, it being specifically declared that the generator and batteries providing power to the Oliver’s Road property and the trees growing on either property are fixtures, or impeding the applicant or her agents appointed by her to give effect to the Orders.

Respondent

101. [101]
     In his outline of submissions the respondent explained why he took the jurisdiction point: as at 29 January 2013 he submitted that the applicant, her solicitor or her counsel did not advise the court of her interest in her grandmother’s estate; and as at 11 February 2013, the applicant sought orders requesting a property settlement that did not include her interest in her grandmother’s estate.” I have already made a finding about that explanation.

102. [102]
     The respondent substantially predicated his submissions on the assertion that the applicant had a significant contingent interest (from her mother’s Will) and that she would have a significant change in financial circumstances when her mother passed away. This position has been taken throughout the proceeding despite the fact that Mrs W is alive and by all accounts perfectly well and is not contemplating her own decease any time soon.

103. [103]
     The respondent also submitted that he had paid outgoings on the Oliver’s Road property (a matter not disputed by the applicant), who points out that the respondent had exclusive possession of the property and lived in it through the period of those outgoings. The respondent persisted, in his written submission, that the applicant had not made timely or full disclosure. He submitted that the applicant had not, at the filing of the originating application on 16 November 2012 disclosed any interest as a beneficiary under her mother’s will. This ignores the fact that she acquitted her disclosure obligation by disclosing that matter in subsequent material. The respondent claimed, without any reference to evidence, of which there is none, that the applicant’s finances were intermeshed with those of her mother. He submitted that his financial and property contributions were substantially (his emphasis, not mine) larger and ongoing through the relationship.

104. [104]
     Taking all those matters into account the respondent submitted that he should receive 80% of the asset pool.

Credibility

105. [105]
     When he commenced his oral submissions, the following exchange took place between the respondent and me:

106. [106]
     The respondent has been untruthful in a number of respects in his Affidavits. He also exaggerated a number of matters that were alleged in the Affidavits, in my view wilfully. I make those findings on the basis of his own conduct – the withdrawal, albeit reluctantly, of his scandalous and unsubstantiated allegations against the applicant’s solicitor and counsel - and the documentary evidence before me by way of tendered exhibits or exhibits to Affidavits, that is not challenged by any evidence to the contrary and only maintained by the respondent’s unwillingness to accept the truth of evidence that is contrary to the position he believes and is reluctant to let go. These include his persistent assertions about the appellant having failed to disclose documents, his insistence that she has divested herself of assets to family members, and his allegations made against Mrs W, particularly her health status and the property ‘in Portugal’. He also failed to meet his obligation with respect to disclosure, despite his pious position with respect to the applicant’s discharge of her obligation so to do. He persisted with the unfounded and patently incorrect allegation that the applicant controlled the Trust, whereas in truth the Trustee’s obligation was to Mrs W and the Trustee controlled the Trust.

107. [107]
     He avoided his duty to substantiate his claims to have expended monies (the $53,503) on expenses such as repairs and maintenance, producing no documents to support that claim. In my view he obstructed the proceedings brought by the applicant, on the face of things at significant financial cost to her, by not consenting to the jurisdiction of the Family Court that had heard the evidence that was the subject of the hearing in this court, objecting to the jurisdiction of this court and opposing the application to extend time to file the application in this court.

108. [108]
     More particularly, he demonstrated in testimony that he was loose with the truth and careless or reckless in the way that he made allegations concerning matters affecting the applicant. I have been left with a profound and explicit view of his credibility: he is dishonest, devious and manipulating and cares nothing about deceiving the court. His manipulation of photographs that were tendered as exhibits in another court and which he admitted in this hearing were deliberately altered to create a deception, underlines the gravity of that finding. In my view the evidence of the respondent deserves little credit at all. He has also placed himself at very considerable risk of further proceedings being instituted concerning the level and depth of his dishonesty.

109. [109]
     I reject a substantial part of the evidence of the respondent and most certainly reject it where it is in conflict with the evidence of the applicant. I accept that the respondent for a period of time during the course of the relationship contributed to the care of the children, to the enhancement of property and the resources shared by the parties in their de facto relationship. To that extent, a matter which is acknowledged frankly by the applicant, there must be an apportionment of property to him but his conduct, and more particularly my rejection of his evidence where it conflicts with the applicant and Mrs W, will further reduce, from that which I consider on the evidence as a whole to be just and reasonable, the apportionment to him, from his level of expectation as expressed in submissions to the court.

110. [110]
     On the other hand, I considered the evidence of the applicant to have been measured, careful and frank. She readily made concessions and did not obfuscate in the course of cross-examination. I believed her and I am prepared to act on her evidence in preference to that of the respondent, without reservation. Mrs W was a careful and I believe frank witness and I accept her evidence without question.

‘Just and Equitable’

111. [111]
     In this final step in the process of identifying and valuing the assets of the parties, matters of contribution and other relevant factors are important. It is the "order" that is made which must be just and equitable, not just the underlying percentage division of the net value of the parties' assets: Russell v Russell (1999) FLC 92-877 (at 86,439) (my emphasis). Nevertheless, the determination of what is just and equitable remains a broad discretionary consideration for the Court.

112. [112]
     The principal assets are the properties at Finch Hatton. There is little practicality or benefit in apportioning personal property, for the reasons I have referred to.

113. [113]
     The applicant submitted that she had been the primary carer and home maker in the family and had been employed since 2007. The respondent had never formally been employed. The family was supported by her wages, rent received on Prince’s Road, Centrelink payments and cash for work which the respondent did from time to time. She submitted that post-separation the respondent had had the use and benefit of the properties, motor vehicles, furniture and farm plant and equipment.

114. [114]
     The respondent’s submissions in respect to the just and equitable ground, to which I have referred, would seem to be his having paid outgoings on the Oliver’s Road property, and what he claimed to be his more substantial and property contributions.

Non-disclosure and contempt

115. [115]
     Mr Fellows, as I have observed, raised the issue of contempt in the course of the proceedings. This followed the non-disclosure of a financial document by the respondent, a matter of no little significance when one considers the persistent allegations, made in the face of evidence and a judicial decision to the contrary, by the respondent about non-disclosure by the applicant. I had not taken any action in the course of the proceedings, it being counter-productive so to do in my view. However, the conduct of the respondent bordered on contumelious in the way in which he conducted his case, although he was not impolite or badly behaved towards the court and otherwise conducted his case without rudeness.

116. [116]
     I will hear the parties further about non disclosure and contempt.

117. [117]
     However, in the Orders I have determined that the practical steps required to give effect to them are best achieved by the applicant as Trustee for Sale of the properties. I do not consider it appropriate in the circumstances to give the respondent any leading role in the execution of the orders, although I expect him to comply with the Orders. The protection that I have provided in the Orders is in my view justified and necessary.

Decision

118. [118]
     The power to make a property adjustment is wide and discretionary and is not fettered by considerations of the legal or equitable interest of one or other of the parties.

119. [119]
     I have determined the apportionment on the evidence. Insofar as the percentages of the apportionment are concerned I have balanced, in effect, the apportionment to the appellant against the unexplained use of monies by the respondent. Perhaps that is better expressed in this way: If Mr Fellows calculation of gross sale proceeds is reasonably correct at $450,000.00 and one deducts about $103,000.00 of indebtedness to the bank, the proceeds available for apportionment would be $350,000.00. At a 60:40 apportionment, the appellant would receive $210,000.00 and the respondent $140,000.00 – a difference of $70,000.00, which equates to about 63% of the monies used, but unexplained by the respondent.

Civil Proceeding

120. [120]
     The applicant filed a civil proceeding at the time this application was filed. This was done to provide a fall-back position in the event that the court did not grant leave to proceed out of time in this matter. Mr Fellows invited me to strike out the other matter (Mackay File 107/12) unless he advised otherwise. He has not done so, of course. Accordingly, I will strike out that proceeding by oral order when this judgement is delivered.

Costs

121. [121]
     Mr Fellows had reserved any application about costs, deferring such application, if it was to be made, until after judgment. His concern is attributable to the manner in which the respondent has conducted the proceeding and his refusal to accept clear evidence that was contrary to his preferred allegations and his persistence in making them. It also reflects the repeated serious but totally unsubstantiated and baseless allegations of fraud and improper conduct made against him and his Instructing Solicitor.

122. [122]
     Accordingly, I will hear from the parties with respect to costs.

Orders

1. That the real property assets are to be sold and the net proceeds apportioned 60% to the applicant and 40% to the respondent. The detail of this Order and other associated or concurrent Orders are as per attached draft.
2. That the parties retain the personal property currently in their respective possession.
3. I will hear the parties with respect to costs.
4. I will hear submissions as to any orders that relate to the conduct of one or other of the parties in the proceeding.