Barber and Barber

[2016] FCCA 1783

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARBER & BARBER [2016] FCCA 1783

Catchwords:
FAMILY LAW – Final property adjustment – competing property adjustment applications – contributions – finding of equality of contribution – assessment of section 75(2) factors.

Legislation:

Family Law Act 1975, ss.44(3), 75(2), 79(4), 81, 106A

Evidence Act 1995, s.69
Federal Circuit Court Rules 2001, Part 14, Part 24
Child Support (Assessment) Act 1989

Cases cited:
Re F Litigants in Person Guidelines (2001) FLC 93-072
Pierce & Pierce [1998] FamCA 74
Omacini & Omacini [2005] FamCA 707
Kowaliw & Kowaliw (1981) FLC 91-092

Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338
Burgoyne & Burgoyne (1978) FLC 90-467
Kennon & Kennon (1997) FLC 92-757
Stanford v Stanford [2012] HCA 52
Mallet & Mallet (1984) 156 CLR 605
Wirth v Wirth [1956] HCA 71
R v Watson; Ex parte Armstrong [1976] HCA 39
O’Dempsey & Van Raay (1990) FLC 92-178
Cosgrove & Cosgrove (1996) FLC 92-700 (unpublished); Cosgrove & CosgroveNo.2 (1996) FLC 92-701
FM & FM (1997) FLC 92-738
Re AM (Adult Child Maintenance) (2006) FLC 93-262

Applicant: MR BARBER

Respondent: MS BARBER

File Number: PAC 876 of 2014

Judgment of: Judge Harman

Hearing date: 15 April 2016

Date of Last Submission: 15 April 2016

Delivered at: Parramatta

Delivered on: 15 April 2016

REPRESENTATION

Counsel for the Applicant: Mr O’Brien

Solicitors for the Applicant: Brydens Lawyers

The Respondent appeared in person

ORDERS

1. The Respondent wife, Ms Barber, shall pay to the Applicant husband, Mr Barber, no later than 5:00pm 3 June 2016 the sum of $220,000 and in that regard, time for payment shall be of the essence.

2. Upon Ms Barber paying or tendering to Mr Barber the sum of $220,000 at or before 5:00pm 3 June 2016:

   (a)Mr Barber shall do all things, sign all documents and give all consents authorities and instructions as are necessary to transfer to Ms Barber the whole of his right, title and interest in the parcel of real estate, Property M in the State of New South Wales (omitted), being all that parcel in Certificate of Title Folio Identifier (omitted); and

   (b)Ms Barber shall indemnify Mr Barber and hold him forever harmless with respect to all and any liabilities encumbering to, relating to or attaching to the Property M property, including but not limited to, any fees outstanding to secure a discharge of mortgage encumbering or previously encumbering the property, council rates, water rates and other service and utility fees.

3. In the event that Ms Barber should fail, neglect or refuse to pay the sum of $220,000 to Mr Barber by 5:00pm 3 June 2016 then each of Applicant and the Respondent shall do all acts and things and sign all documents necessary so as to cause the property at Property M (the “property”) being the land comprised in Certificate of Title Folio Identifier (omitted) to be sold and for the purposes of effecting that sale the parties agree:

   (a)The property shall be listed for sale by way of private treaty;

   (b)The listing price for the property shall be as agreed between the parties and if there is no agreement as advised by a valuer nominated by the President of the Real Estate Institute of New South Wales;

   (c)The said property shall be listed for sale by private treaty with such real estate agent or agents as may be agreed upon between the parties and failing agreement such real estate agent or agents as are nominated by the President of the Real Estate Institute of New South Wales;

   (d)In the event that the said property has not been sold by or before a date six (6) months from the date the property is listed for sale then the parties shall make all such arrangements and do all such things and sign all documents as may be necessary to procure a sale by public auction upon the following terms:

   (i)The auctioneer shall be as agreed between the parties;

   (ii)Failing agreement, the auctioneer shall be nominated by the President of the Real Estate Institute of New South Wales;

   (iii)The auction shall take place within six (6) weeks after the deadline for the sale by private treaty;

   (iv)The reserve price shall, unless otherwise agreed upon between the parties, be as proposed by the auctioneer.

   (e)In the event that the said property has not been sold on or before a date six (6) months after the date of its listing for sale, then where the said property is not sold by public auction in accordance with Order 3(d) then the parties agree that they shall cause the property to be resubmitted to sale by private treaty with the a real estate agent agreed upon by the parties or as nominated by the President of the Real Estate Institute of New South Wales as provided for in Order 3(a) at a price agreed upon between the parties or in default of agreement as to a selling price for no more than seven (7) days, at a price to be determined to be a fair market price by the President for the time being of the New South Wales division of the Australian Property Institute, or their nominee as provided for in Order 3(b) whose decision shall be final and binding upon the parties.

4. Upon the sale of the property the proceeds of sale shall be disbursed in the following manner and priority:

   (a)In discharge of the mortgage presently encumbering the property;

   (b)The costs, expenses, commissions, advertising fees and disbursements of the agent and/or auctioneer conducting the sale of the property;

   (c)The costs and fees of any legal fees and expense arising from the sale of the respective property;

   (d)In payment to the Applicant of 40% of the proceeds of sale;

   (e)The balance thereafter to the Respondent.

5. As between the Applicant and Respondent and subject to the above Orders, the Applicant and Respondent shall each respectively retain all interest in and entitlement to:

   (a)All personal property now in his/her respective possession or control;

   (b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;

   (c)All interests in any business, life insurance policies and superannuation funds standing in his/her sole name respectively.

6. Except as any provision of the paragraphs comprising this Order provide to the contrary:

   (a)The Applicant hereby indemnifies the Respondent from and in respect of all actions, claims, suits and demands as may be made against the Applicant in relation to all liabilities in the name of the Applicant or in his name jointly with any other person;

   (b)The Respondent hereby indemnifies the Applicant from and in respect of all actions, claims, suits and demands as may be made against the Respondent in relation to all liabilities in the name of the Respondent or in her name jointly with any other person.

7. Except as any provision of the paragraphs comprising this Order provide to the contrary, each of the Applicant and the Respondent release the other from all debts owing from one to the other.

8. In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

9. All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

IT IS NOTED that publication of this judgment under the pseudonym Barber & Barber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 876 of 2014

MR BARBER

Applicant

And

MS BARBER

Respondent

REASONS FOR JUDGMENT

1. These are proceedings relating to issues of property adjustment. 

2. The parties to the proceedings are Mr Barber, the Applicant husband, and Ms Barber, the Respondent wife. 

3. The parties were previously married. They have been divorced, albeit quite recently. The Application for property adjustment is brought within the time limit provided by the Family Law Act 1975.[1]

   [1] Section 44(3) Family Law Act 1975.

The parties’ proposals

1. The Amended Application of Mr Barber, upon which he moves at Trial, seeks Orders for the sale of a parcel of real estate at Property M. It would appear to be agreed that the Property M property is the substantial asset of the relationship. Mr Barber seeks a distribution of the proceeds of sale, after payment out of various expenses, as to 60 per cent of the nett proceeds in his favour and as to the remaining 40 per cent in Ms Barber’s favour.

2. Ms Barber, by her Response filed 20 November 2014, seeks that Mr Barber’s name be removed from the Title of the property. I am satisfied that Ms Barber’s position is that she should retain the home with an unencumbered interest in fee simple and that Mr Barber would transfer his interest in the property to her without payment or further adjustment.

Material considered

1. In dealing with the proceedings today, I have read and considered each of the following documents. 

2. In the case of Mr Barber:

   a)His Initiating Application filed 29 August 2014;

   b)His Amended Initiating Application filed 29 January 2016;

   c)His Affidavit filed 29 January 2016;

   d)His Statement of financial circumstances sworn 29 January 2016;

   e)An Affidavit of Mr C, valuer, filed 11 March 2016; and

   f)A Case Outline document prepared jointly by Counsel and solicitor for Mr Barber.

3. Mr Barber has been required for cross-examination and has been cross-examined. 

4. In the case of Ms Barber, I have read and considered each of the following documents:

   a)Her Response filed 20 November 2014;

   b)Her Affidavit filed 4 March 2016;

   c)Her Statement of financial circumstances filed 20 November 2014.

5. Ms Barber has been required for cross-examination and has been cross-examined. 

6. There are also a number of Exhibits tendered in the proceedings comprising Exhibits:

   a)A1 to A4, various documents as marked from the Child Support Agency;

   b)Exhibit A5, a statement from the (omitted) Bank with respect to an account in the name of Ms Barber;

   c)Exhibit R1, further material from the Child Support Agency.

7. As the Exhibits might suggest, issues of Child Support are of some real significance between these parties. I will return to those issues shortly. 

Conduct of the trial

1. Mr Barber is competently represented by Counsel and a solicitor. Mr Barber’s material has been well prepared. It addresses matters of relevance and annexes relevant material corroborative of allegations that he raises. There are certain aspects of those annexures which are challenged by Ms Barber. However, the majority are not challenged. Such controversy as has been raised with respect to those documents has certainly not been addressed through any cross-examination of Mr Barber.

2. Ms Barber appears on a self-represented basis and with the assistance of an interpreter. Shortly prior to the lunch adjournment I had interrupted the proceedings to seek the indulgence of Counsel for Mr Barber, urging them to take instructions from him, (he then being under cross-examination), to ascertain whether he would consent to an adjournment of the proceedings to enable Ms Barber to make further inquiries as to whether some legal assistance might be provided to her. I had done this as it was readily apparent by that point that Ms Barber was, to put it as euphemistically as one might, struggling with the process. 

3. Ms Barber is from a non-English speaking background. She has had the assistance today of an interpreter provided by the Court. She has not had legal advice let alone representation. Her material is poorly prepared and, again, without intending to be pejorative to her in those circumstances, her material is incompetent. Ms Barber’s material does not address matters which are relevant to the determination that the Court must make. Indeed, the Affidavit, to a large extent, does not contain evidence or evidence that is admissible.

4. My Re F Litigants in Person Guidelines (2001) FLC 93-072 were discharged prior to the Trial commencing. I have some real concern as to the utility of providing a 40 to 45 minute summary of the Trial process and the Rules of evidence that bind the parties in the conduct of their Trial immediately prior to commencing a Trial, particularly in property adjustment proceedings where the Rules of evidence apply strictly.

5. Ms Barber, embarking upon a Trial with the serious possibility that Orders might be made for the sale of the home in which she resides with several of the children of the relationship, would not be in an emotional or psychological state to take on board that which the Court advises as to the conduct of the Trial as the Trial is commencing. Certainly, it was clear and apparent through the conduct of the Trial, that very little difference, if any, was made through discharge of those obligations.

6. The difficulties faced in a case as this are emblematic of those which the Court faces, with litigants in person representing up to 40 per cent of those who appear before this Court and in many other State and Federal Courts. Perhaps the time has come for a dialogue to occur within the Courts, and perhaps without, as to amendment of process or provision of other resources to address those difficulties. It is stressful for litigants. It is stressful for those conducting Trials before the Court when faced with those difficulties, particularly when, as Counsel and solicitors for Mr Barber have done in this case, they have been entirely fair, appropriate and conscious of their duties to the Court and to society at large, a duty broadly to upholding the rule of law, and perceptions of justice. It is simply impossible for that to be done with any efficacy in circumstances such as these. 

7. These are matters, perhaps, for other fora and other times and perhaps for others than first-instance Trial Judges to lead the discourse. They are matters of funding, matters of politics and matters of Court structure and design. 

8. I am concerned, however, that these difficulties, a lack of understanding and competence, have impacted upon at least the perception of Ms Barber as to the administration of justice as applied to her affairs. There is nothing that can be done in that regard other than to hear and determine the case in accordance with the protocols provided by the Trial process and by considering such evidence as is presented.

Evidence

1. To the extent that there is controversy and dispute between the parties with respect to evidential issues, I make clear from the outset that I prefer and accept the evidence of Mr Barber. That is not on the basis purely that it is expertly prepared by the solicitors for Mr Barber and sets out his case eruditely and concisely. It is because his evidence is plausible, internally consistent and supported by corroborative documents from independent third-party sources. Also, Mr Barber has not been challenged by cross-examination on the majority of his evidence and is entitled to its acceptance.

2. Ms Barber has not, in the material that she has filed with the Court, led any evidence, or any substantial evidence, in admissible form. It is easy to glean, from a brief consideration of the material filed by Ms Barber, the difficulties that she faces. Her Affidavit is 11 handwritten paragraphs in length. It just extends beyond one half of one page. It simply refers to documents which are then annexed, with very little indication of how one might make use of or interpret those documents. 

3. Ms Barber has done her best to conduct her affairs before this Court. I am conscious to ensure that she is, as it were, given the benefit of the doubt wherever possible. That is one of those things very much like the fabled “leg before wicket” rule (whereby, in popular opinion, doubt favours the batsman). Such a rule does not exist in reality but is often discussed as real. 

4. Whilst the Court must do its best to accommodate self-represented litigants, such accommodation must recognise that due process is due and afforded to both parties. To make accommodations in favour of a self-represented party as against a legally-represented party, purely because one has the benefit of competent Counsel and the other does not, is to do an injustice and deny due process, to the legally-represented party. 

5. The same rules apply to both parties, whether those Rules be the Rules of evidence, the Rules of Trial conduct, or otherwise. To that end, the tensions that are created by the difficulties of incompetent preparation and presentation cannot be readily overcome. That one party knows, understands and follows the rules and the other does not is no basis for departure and to depart in those circumstances is unjust.

6. The evidence of Mr Barber is concisely addressed to relevant issues.  That evidence has been used to compile a chronology (contained within the Case Outline document filed by those representing Mr Barber) and I adopt and incorporate that chronology of events here as the findings of the Court. 

Date	Details	Reference
(omitted) 1952	The applicant was born and is currently aged 64 years of age.	[2] CB
(omitted) 1956	The respondent was born and is currently aged 60 years of age.	[3] CB
1974	The parties met.	[4] CB
1977	The parties commenced co-habitation.	[5] CB
1977	The respondent worked at (employer omitted) on a casual basis for one year.	[15] CB
1977	The father worked as a (occupation omitted) with (employer omitted) and then beings (sic) work with (employer omitted) in (omitted).	[14] a. and b. CB
(omitted) 1978	The parties’ first child, Mr B was born.	[9] a. CB
(omitted) 1978	The parties married.	[6] CB
(omitted) 1983	The parties’ second child, Mr A was born.	[9] b. CB
1983	The father ceases working at (employer omitted) and begins working self-employed as a (occupation omitted).	[14] c. CB
1983-1984	The applicant receives an $11,000 lump sum payment due to a back injury, which was applied to house payments and a truck for the business.	[19] CB
11/12/2011	The parties purchase the property known as and situate at Property M for $121,000.	[51] CB
(omitted) 1994	The parties’ third child, Mr N was born.	[9] c. CB
(omitted) 1997	The parties’ fourth child, Mr M was born.	[9] d. CB
(omitted) 1998	The parties’ fifth child, Mr E was born.	[9] e. CB
1998	The parties’ separate and the applicant leaves the former matrimonial home yet continues to pay for the mortgage until it is discharged.	[7] CB
1998	From Separation, the applicant has financially assisted the Respondent by: a.    Regularly paying for groceries; b.    Paying for motor vehicle registrations, insurances and maintenance; c.    Paying the Respondent’s telephone bills; d.    Paying the respondent with cash for day to day expenses e.    Paying child support as required; f.     Paying for school fees, TAFE fees, school uniforms, school photos, children’s vehicles, maintenance of children’s vehicles, insurances and payment of extracurricular activities for the children.	[30] CB
1999	The applicant begins working as a (occupation omitted) for (employer omitted).	[14] d. CB
2004	The applicant begins working as a (occupation omitted) for (employer omitted).	[14] e. CB
2013	The wife receives an inheritance in the sum of $45,000	[70]

1. What will be readily apparent from the above chronology is that these parties separated a significant time ago, in 1998, some 18 years ago. Real difficulties are created, even accepting that the assessment of contribution is not a mathematical exercise, in accurately assessing the contributions that these parties have made with such a gap between separation and hearing. Those difficulties are substantially embodied by the issues regarding Child Support raised in this case.

1. Mr Barber’s evidence is that he continued to service the mortgage encumbering the matrimonial home at Property M from separation in 1998 until 2010 when the mortgage was discharged. That mortgage at the time of separation had an outstanding balance of approximately $121,000. At all relevant times Mr Barber was without occupation of the home. Ms Barber and the children of the relationship occupied the home.

2. Mr Barber also asserts that at various times and in addition to payment of the mortgage, he met certain other payments benefiting Ms Barber and the children such as council and water rates, home and contents insurance, water, electricity, gas and other utilities, payment for and erection of a pergola or verandah at the home, installation of a new hot water system and air conditioning system, upkeep and maintenance of the property in the nature of gardening and other works, steam cleaning carpets, purchasing items for the home to replace items as they broke (such as microwaves, televisions, fridge and water chiller), as well as paying Child Support, not necessarily as assessed, but paid. A number of assessments have clearly issued at different times since these parties separated. Some of those assessments are demonstrated by the Exhibits tendered in the case.

3. It is suggested by Mr Barber that these payments have, at various times, been made by deduction from Mr Barber’s income, wages and salary and at other times paid in cash. 

4. Mr Barber also asserts that he has made payments with respect to school fees and other items for the children and the family. Those payments extend to and include the allegation by Mr Barber that he has purchased groceries for the household comprising the mother and such of the children as continued to reside within the home, motor vehicle payments (in relation to registration, insurance and maintenance), phone bills and the provision of cash from time to time.

5. Mr Barber also gives evidence, as to which he is not challenged, of various motor vehicles that he has purchased or provided the use of at different times. There is concession made by Ms Barber with respect to at least one vehicle which was purchased for one of the adult children and ultimately taken away to be repaired and, upon it becoming apparent that repairs would exceed the value of the vehicle, the vehicle being sold by Mr Barber. To the extent that Mr Barber is criticised for this, I do not accept that a criticism validly lies. The vehicle was provided and if costs of repair exceeded its value, it would appear an entirely appropriate commercial decision to make.

6. Ms Barber denies some or all of the above statements. In submissions, Ms Barber asserted that for quite some years she was attending to payment of the mortgage over the home, pointing to an entry “concession” in relation to interest accumulated with respect to the mortgage as evidence of her payments, she having been in receipt of an income-tested pension or benefit and pointing to these as being the basis of the concession. The bank statements demonstrating those entries are annexed to Mr Barber’s material. Whether the entry “concession” in fact refers to that alleged by Ms Barber or not cannot be ascertained. That assertion by Ms Barber is, however, contrary to her evidence on oath.  That evidence is contained within the Response filed 20 November 2014 which commences with the statement:

   I would like the court to recognise that my agreement with my ex-husband going back over 16 years has been that the child support payments would be directed to paying off the mortgage till December 2010 which in turn makes me the majority owner of the household.

7. Whether that statement is intended to suggest that the husband made payments to Ms Barber and she attended to payment of the mortgage using those payments or whether the husband made the payments in lieu of Child Support, or a combination of the above, cannot be ascertained. However, it need not be ascertained.

8. What is clear and apparent from the evidence and Mr Barber has not been challenged with respect to the majority of his evidence, is that Mr Barber has since the separation of these parties in 1998, particularly until the discharge of the mortgage in 2010 and in reality until 2013, made extraordinary contributions towards the household comprising the wife and such of the children as were under the age of 18 years from time to time and extending to those who have attained their majority to the extent that they have difficulties that impede their ability to participate in paid employment or support themselves.

9. The extent of contribution made by Mr Barber in this regard perhaps gives some basis for his evidence at paragraph 25 of his Affidavit as to his post-separation accommodation. He states:

   From when I vacated the property I would sleep in my four (4) wheel drive for many years. I would then stay at different hotels/motels. I recall one of them included the (omitted) [at which hotel the husband presently resides].

10. That assertion also has some relevance in relation to one of the financial contributions made by Mr Barber since separation. Mr Barber has annexed receipts to his material demonstrative of his payment of electricity accounts. Ms Barber asserts that these are and must be Mr Barber’s electricity accounts. Accepting Mr Barber’s evidence, which he is unchallenged that he had lived in his car for some years and has otherwise stayed in hotels or motels, he would not have had an electricity account in his name other than the former matrimonial home. Thus, I accept Mr Barber's Affidavit evidence, corroborated by his own evidence on oath and as to which he is again unchallenged that he has attended to payment of those accounts on behalf of his wife and children.

11. The only serious challenge to Mr Barber’s evidence as to the payments that he alleges arises from interaction with the Child Support Agency. One of the documents tendered in the case by Mr Barber is correspondence from the Child Support Agency dated 16 August 2004 referring to a debt at that point in time of $34,024.92. 

12. Other documents that are tendered in Mr Barber’s case, including those comprising Exhibit A3, make clear that payments of Child Support were certainly being made by Mr Barber, whether payments at the full rate of an assessment or not. That is not to discount Mr Barber’s evidence that payments were also made by him in cash directly to Ms Barber, an allegation that is denied by Ms Barber.  But clearly some payments were consistent with his evidence being made by Mr Barber directly to the Agency.

13. Exhibit A4 comprises a letter addressed to Mr Barber from the Child Support Registrar dated 14 September 2004, some short time after the above letter regarding arrears. That correspondence suggests that the Child Support liability as assessed by and registered for collection with the Agency was concluded on the basis that a request had been made by the wife for Child Support collection and assessment to cease. I accept that document on its face as accurately reflecting the circumstances at that time. It is a business record. Whilst section 69 of the Evidence Act 1995 admits the document for the purpose of proving the record rather than proof of its contents, I accept that it is corroborative of the evidence of the husband. I accept that related within the document as accurate. Further, I accept that this “forgiving” of Child Support arrears by the wife was on the basis and in recognition of the husband’s payment of the mortgage as or in lieu of Child Support as assessed.

14. It should also be noted that the arrears which are suggested and referred to in the correspondence Exhibit A1 are not arrears that accrued as a consequence of absence of payment by Mr Barber.  The documents comprising Exhibit A3 certainly confirm that shortly prior to that correspondence issuing to him, Mr Barber was not only making payments to the Child Support Agency but was in credit. 

15. What is clear from a statement of account issued to Mr Barber, 20 August 2004, contemporaneous with the letter regarding arrears of 16 August 2004, is that the then arrears accrued as a consequence of a change of assessment application. A determination would appear to have been made on or about 16 August 2004 and which increased the then Child Support assessment to a far higher rate, such that arrears of $34,000 were instantaneously created by the change of assessment decision and its publication.

16. On that basis, I accept Mr Barber’s evidence as regards his history of assessment and payment of Child Support. It is entirely consistent with the documents produced by the Registrar. The only serious contest with respect to those documents and their accuracy is for Ms Barber to point to different reference numbers being contained within those documents or various of them. Why that is so, I do not know but in any event, I accept that the assessed liability is always as between these parties and always with respect to these children. 

17. At its lowest the evidence would demonstrate that Mr Barber has both serviced the mortgage, whether by direct payment or by payment to Ms Barber through Child Support and her attending to payment (as Ms Barber asserts in submissions but not in her sworn evidence) for a period of some years post separation, together with the payment of other significant expenses and liabilities. These are significant post-separation contributions.

18. There are five children of this relationship in total. The four eldest are over the age of 18 years. Certainly, Ms Barber, albeit with some deficiency in the form of evidence asserts that those five children are dependent upon her to some extent. 

19. The three youngest children, 22, 18 and 17, (although the 17-year-old will later this year turn 18), are suggested to have a degree of dependence financially physically or both. Even accepting that at its highest, it is not something which significantly impacts upon the determination I must make. It is, however, relevant and does warrant further attention and I will deal with it in considering both contributions and 75(2) adjustments in due course.

20. The other aspects of the evidence which are largely uncontentious, particularly as Mr Barber has not been challenged with respect to his evidence, is that these parties entered the relationship with little to their names. Mr Barber owned a motor vehicle of unknown value, a very modest amount of savings and a few items of household contents.  I do not suggest that this would, nor is it agitated to be, a basis for adjustment for “initial contribution” by reference to authorities such as Pierce & Pierce [1998] FamCA 74 and Omacini & Omacini [2005] FamCA 707.

21. Early in the relationship Mr Barber received a lump sum payment by way of compensation for an injury he had sustained at work. That payment was approximately $11,000. I accept that asserted by Mr Barber, that he contributed those funds to the relationship. 

22. During the relationship Mr Barber has been in continuous paid employment. There was a period of time, continuing until shortly after the separation of these parties, that Mr Barber operated as a sole trader. Ms Barber has in submissions submitted that she had some role to play in reducing assessed income tax liabilities of that enterprise through income splitting or otherwise. There is no reliable evidence before the Court, but even accepting the bald assertion, that fact would not suggest any significant basis for adjustment of contributions.

23. During the relationship Ms Barber had some limited participation in paid employment. That said I make clear that Ms Barber has worked hard throughout the relationship. She has raised five children. That is not a contribution to be dismissed or sneezed at, particularly when it is suggested that the youngest child, soon to turn 18, has been diagnosed with autism, although whereabouts upon the spectrum he is suggested to fall is unclear. I accept that the care of the five children, such of them as were minors or dependent upon the wife from time to time post-separation, has severely impacted Ms Barber’s capacity to participate in paid employment. It is a significant issue. It is an issue that will continue to impact Ms Barber and her financial position.  It is a reality that must be balanced against the contributions that have been made by Mr Barber throughout the relationship as well as the remarkable contributions made by him post separation.

24. There is also little or no dispute that post separation and in 2013 or thereabouts, Ms Barber received a modest inheritance from a deceased family member. How those funds have been dealt with or whether they are retained is unclear. Ms Barber’s evidence in that regard, together with her disclosure of documents that would corroborate the receipt and expenditure of those funds is somewhat inadequate. The cross-examination of Ms Barber was substantially and eruditely limited to that area.

25. What is known is that Ms Barber received a modest sum of money. That sum was deposited into an account with the (omitted) Bank. There was then a withdrawal of a remarkably similar sum as was deposited. It is asserted by Mr Barber that the bank statement would suggest that the withdrawal was in cash. Ms Barber asserts that it was by cheque.

26. What is curious is that there is then a deposit of $7,500 to an account with the (omitted) Bank. There is nothing to indicate if the withdrawal from the (omitted) Bank was in fact by cheque or whether the cheque was cashed in the meantime to produce the smaller amount. Not a great deal turns upon it save that clearly, Ms Barber has had the benefit of those funds however they may have been retained or expended by her since receipt. I do not suggest that a Kowaliw & Kowaliw (1981) FLC 91-092 issue arises. If the funds have been expended, I accept that they have in all probability been expended for purposes relating to maintenance and upkeep of Ms Barber and the children. It simply cannot be determined whether any funds are in fact retained.

27. The above employment histories have some relevance, particularly as another significant asset of the parties, treating the parties jointly and severally for one moment, is the superannuation entitlements of Mr Barber. They have a value of approximately $76,520 and are held with the (omitted) Superannuation Fund. It is an accumulation interest. A statement corroborating that figure or its approximation is provided and it would appear relatively clear that that fund has accumulated substantially, if not solely, post separation. That does not exclude the fund from consideration. But the lengthy separation of these parties during which period that fund has accumulated, is of some relevance to the exercise of discretion as is Ms Barber’s practical preclusion from paid employment (and thus accumulation of superannuation) as a consequence of her child care and child rearing responsibilities.

28. The assets of the parties, I am satisfied, by reference to the above evidence comprise those set out within the Balance Sheet provided in the Case Outline document filed in Mr Barber’s case. I incorporate that balance sheet herein.

Ownership		Description		Wife’s Value	Husband’s Value
ASSETS
1	J	Property M		$550,000
2	H	(omitted) Bank		$10,000
3	H	1000 Shares in (omitted)		$1,300
4	H	(omitted) Ford Territory Motor Vehicle		$7,500
5	H	Household Contents		$500
Total
LIABILITIES
8	H	Household Contents		-$3,000
Total
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife’s Value	Husband’s Value
9	H	(omitted) Super	Accumulation Interest	$76,520
Total

1. In addition to those assets, there is also a motor vehicle retained by Ms Barber, modest as it is, with a value of $5,000. There is the possibility that funds might remain with respect to the (omitted) Bank account. I do not include it as an asset at this time as I am not satisfied that it is necessary to do so to do justice and equity as between these parties, nor does the evidence permit any safe finding to be made as to the existence or value of funds. That is not to suggest that it is not the obligation of a litigant to produce full and proper disclosure in accordance with Parts 14 and 24 of the Federal Circuit Court Rules 2001 and the common law obligations discussed in Black & Kellner (1992) FLC 92-287, Weir & Weir (1993) FLC 92-338, and a lengthy line of authorities of like nature. It is simply that I have no concrete evidence that gives a figure and by reference to authorities such as Burgoyne & Burgoyne (1978) FLC 90-467, it is thus difficult to proceed further with any accuracy or certainty.

2. The parties are not young. I do not refer to that reality to be offensive to them, simply to reflect their evidence. Ms Barber is 60 and will turn 61 later this year. Mr Barber is 64 and will, in a few weeks’ time, turn 65. 

3. Mr Barber has a number of health problems that he has referred to in some detail in his evidence. I accept his evidence of those conditions, the prognosis, the likely impact of those conditions in limiting or cutting short his working life and the costs that he will incur in meeting, particularly, a number of treatment plans that have been provided to him. Mr Barber clearly has some need to address his health at this time. His health has been far from good in recent years, not surprisingly, given that he has worked hard all of his life in manual labouring positions and has, since separation, subjugated his interests predominantly to those of ensuring that the household comprising the wife and his children have been met.

4. The wife is not in paid employment. She has not been in paid employment for many years as a consequence of her caring responsibilities to the children of the relationship. Again, without intending to be at all pejorative of Ms Barber, she has no realistic prospect of re-entering the workforce in the foreseeable future, if at all. 

5. Ms Barber will not have retirement income available to her from superannuation accumulated in her own name to date and no order is sought by her with respect to superannuation splitting.

6. I do not propose to discuss the evidence in more detail. The chronology of events incorporated above effectively summarises the areas of significance and the findings made in accordance with each of the allegations within the chronology. I have otherwise considered all of the evidence contained within the Affidavit material filed by the parties and that which has flowed from the cross-examination.

7. There is one area which must be touched upon, however. Ms Barber, by her Response at paragraph 5, as well as that set out under the heading “Interim or Procedural Orders Sought”, has urged the Court to, “take into account the domestic violence record of Mr Barber and the fact that I have suffered physically and mentally for the sake of keeping my children and myself with a home that would one day belong to my children’s future”. To the extent that one might apprehend a Kennon & Kennon (1997) FLC 92-757 argument, I make clear that:

   a)There is no evidence whatsoever that would support the allegations made. Certainly, there is evidence, Mr Barber concedes it, that his departure from the matrimonial home in 1998 occurred following Police intervention. However, Mr Barber gives a contrary and plausible version of events, as to which he was not cross-examined and I accept his version of events;

   b)There has been ample opportunity to lead evidence with respect to family violence. There is none led and, certainly, there is no evidence led that would suggest physical or mental impact upon any person of any behaviour by any person;

   c)The actions of Mr Barber - although it is the least relevant of the considerations which cause me to dismiss the allegation, it is dismissed on the basis that there is no evidence led in support of it - are entirely inconsistent with Mr Barber’s behaviour post separation. If Mr Barber was a perpetrator of coercive and controlling family violence, one would not expect that he would subjugate his interests by sleeping in a car and staying in somewhat substandard hotel accommodation for the last 17 years so as to free up income to meet the expenses of the household in which he no longer lived. It would also not be supported by his behaviour whilst so doing. One might expect that if Mr Barber had as he has been accused but as to which I am satisfied there is simply no evidence to support a finding, engaged in significant coercive and controlling family violence, that he would not then voluntarily continue to service the mortgage over the home, provide motor vehicles for the use of the wife and children, pay other expenses such as council, water rates and utilities, and provide the financial largesse which, on his evidence, unchallenged as it is, he has provided.

1. I propose to turn to the legislative pathway which I must follow. As indicated, however, further discussion of the evidence by reference to the legislative pathway and for illustrative purposes is not intended to suggest that the evidence has not been taken into account in its totality. It most assuredly has been. All of that contained within the evidence, to the extent that it is largely, if not singularly, comprised of the well-prepared Affidavit of Mr Barber, is that which I have considered. Findings of fact are made in accordance with that Affidavit.

Legislative pathway

1. As the High Court of Australia has been clear in Stanford v Stanford [2012] HCA 52, to a large extent repeating and reaffirming that which had been discussed in Mallet & Mallet (1984) 156 CLR 605, the Court must commence by ensuring that all that is done in the proceedings is just and equitable. That is subject to the limitations described above, in light of the wife’s self-representation, including in preparation of her material which has not assisted her cause.

2. The High Court in Stanford v Stanford eruditely re-stated the approach the Court must take in paragraphs 35 to 46, and I incorporate those paragraphs herewith:

   The operation of s 79

   35. It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

   36. The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition - . It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.

   37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

   38. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:

   “The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down”.

   39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s 79 is whether those rights and interests should be altered.

   40. Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

   41. Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to "the need to preserve and protect the institution of marriage" identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

   42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).

   43. By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just.

   44. When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together. Common use of some assets may very well continue, as it did here when the husband made provision for the wife's care and accommodation. Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually. And if one of the parties has become incompetent it is not to be assumed that the other party lacks the will and ability to make those necessary or desirable adjustments.

   45. Contrary to the submissions of the husband in this Court, there may be circumstances other than a voluntary separation of the parties marking the breakdown of their marital relationship in which a court may be satisfied that it is just and equitable to make a property settlement order. For example, demonstration of one party's unmet needs that cannot be answered by a maintenance order may well warrant the conclusion that it is just and equitable to make a property settlement order. It may be that there are circumstances other than need.

   46. As has already been emphasised, nothing in these reasons should be understood as attempting to chart the metes and bounds of what is "just and equitable". Nor is anything that is said in these reasons intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable. In particular, as the Full Court pointed out - in its first judgment in this matter, the magistrate erred in not taking account of the consequences that would follow for the husband if a property settlement order were to be made in the terms which were sought on behalf of the wife. The husband would be required to sell the matrimonial home, in which he was still living, despite the needs of his wife then being met by the provision of full time care, a further provision of money against future contingencies and the possibility, if needed, of making a maintenance order.

3. I must be satisfied, at the outset, that it is just and equitable for the Court to assume jurisdiction and proceed to make any Order. In that regard, I am particularly conscious of that which fell from the plurality of their Honours in Stanford v Stanford and as set out above.

4. These parties separated some significant time ago. They each seek to disengage their financial connection with each other. The only asset of substance, which they own in joint names, is the matrimonial home which, clearly, as became apparent during cross-examination, was owned by the parties as joint tenants at separation. The joint tenancy has been severed on the application of Mr Barber utilising the provisions of the Real Property Act. Whilst Mr Barber was criticised by, or criticism inferred from Ms Barber’s cross-examination, severance of the joint tenancy was an entirely appropriate action when the parties were separated and not yet divorced. Further, the action was entirely appropriate if one accepts that which Ms Barber asserts in her Response, that the parties had for some 16 years, an agreement that Mr Barber would continue to service that mortgage whilst Ms Barber and the children lived in the home.

5. If Mr Barber had passed away in that period, particularly as the parties have not divorced, the entirety of his interest in the property would have passed to the joint tenant, Ms Barber. That would not appear entirely inconsistent with Mr Barber’s position. He indicated during cross-examination, poignantly, that it is his desire and intent that he will, on his passing, leave his property to the children of this relationship. The property would, however, without severance of the joint tenancy, have passed to Ms Barber, possibly thus frustrating his intent.

6. The parties each seek an adjustment of interests in property. 

7. The parties agree that their relationship is over, and thus section 81 of the Act would guide the Court towards ensuring that Orders are made, if it is appropriate and just and equitable for jurisdiction to be assumed and exercised which end the financial relationship of these parties. On that basis and particularly by reference to paragraph 42 of Stanford v Stanford, I am satisfied that it is appropriate and just and equitable for the Court to proceed. 

8. I must then ascertain the pool of property available to divide between these parties. As indicated above, I accept that the “pool” comprises the assets set out in the table adopted from the Case Outline document filed on behalf of Mr Barber, together with the wife’s motor vehicle with a value of $5000. All of the assets and resources of the parties are held in their individual names, save for the matrimonial home. 

9. I must then turn to contributions. In addressing contributions, I must have regard to each of the different types of contribution which are acknowledged and recognised by section 79(4) of the Act. I incorporate the section herein:

   (4)  In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a)  the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)  the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)  the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e)  the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)  any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g)  any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

10. The parties have each made contributions up and until the date of their separation. The parties have each made contributions post separation. 

11. I am urged, in the case of Mr Barber, to make a substantial adjustment, at least 10 per cent, in his favour to accommodate the contributions that he has made of a financial nature post separation. I certainly acknowledge those contributions. They are remarkable. They are significant. They are, however, contributions which must be balanced against those made by Ms Barber.

12. I am satisfied that these parties, up and until the date of their separation, had contributed equally. Mr Barber made by far and away the bulk of financial contributions. Both parties contributed as homemakers. Ms Barber providing the bulk of parenting contributions.

13. Post separation, I am satisfied that the above pattern has largely continued. Mr Barber has, notwithstanding that he has not been part of the Property M household, contributed to and made the overwhelming financial contribution. Ms Barber has contributed and made the overwhelming parenting contribution. Both and I am not satisfied that I need to turn to mathematising the extent of their contributions, have contributed to the household through effecting repairs, improvements and modifications.

14. I accept the argument that is advanced on behalf of Mr Barber that one could not assess his overall contribution as less than equal. Mr Barber has certainly subjugated, perhaps his health and certainly his creature comforts and material well-being, to the benefit of the family. Even though the family has been separated, Mr Barber, until 2013, continued to be regularly involved with the family unit and particularly with the five children. Something would appear to have occurred, an incident between Mr Barber and one of the then adult children, in or about 2013, which brought that to an end. However, Mr Barber’s exertions and contributions were remarkable.

15. I accept that an adjustment might well be made in Mr Barber’s favour in relation to contributions. I am satisfied that Mr Barber’s contributions could be assessed as not less than 55 per cent, possibly up to the 60 per cent that he urges the Court to find, if contributions were considered on a purely financial basis (although I am satisfied that a more conservative range of perhaps 50 to 55 per cent would be more apt to be applied). But, I must balance the remarkable contribution of a financial nature made by Mr Barber against the perhaps equally remarkable parenting contribution made by Ms Barber. In doing so, I am satisfied that the lower end of that range should be where I fix the contributions of these parties, namely, equal.

16. Ms Barber has, without employment skill, with the impediment of English as a second language and with all that those two factors mean to Ms Barber’s past, present and future employability, continued to run the household, albeit with remarkable financial assistance from Mr Barber. Ms Barber has continued to provide care, support, nurture and sustenance to the children of the relationship under the age of 18 years, and in relation to the two adult children continuing as part of the household, I accept, at least some degree of need for ongoing assistance and provision.

17. There is a good body of case law[2] which make clear that an obligation to provide support to a child, even when they have reached their majority, need not be founded solely or necessarily in a legal obligation. A significant contribution continues to be made by Ms Barber to the support and assistance of the 17-year-old child of the marriage. Support is also provided by Ms Barber to the two adult children suggested to have some degree of emotional disturbance, without intending to criticise them for it. That contribution is also significant. 

    [2] See for example O’Dempsey & Van Raay (1990) FLC 92-178; Cosgrove & Cosgrove (1996) FLC 92-700; Cosgrove & CosgroveNo.2 (1996) FLC 92-701; FM & FM (1997) FLC 92-738; Re AM (Adult Child Maintenance) (2006) FLC 93-262.

1. Thus, I propose to proceed on the basis of finding the parties’ contributions at this time equal.

2. There is then the issue of adjustments pursuant to section 75(2) of the Act. There are a number of factors which would support either party in seeking an adjustment. I am conscious that the adjustments are not to be mathematised. They are to be dealt with in a global fashion by taking all into account and balancing those factors which favour either party against those which do not favour them. I will touch upon each of the factors separately.

Age and state of health of the parties

1. Ms Barber is in better health, it would seem, than Mr Barber. She is also slightly younger. However, neither of these parties are in a position whereby their ability to participate in life or paid employment is severely impacted by those minor differences at this time.

Income, property and financial resources of each of the parties together with their capacity to participate in gainful employment

1. I will deal with each of those factors separately.

2. Mr Barber certainly has greater income than Ms Barber but not substantially. He is part of that growing body of the Australian populous who might be described as the “working poor”. Mr Barber works hard and has worked hard all of his life. He earns a modest income, just under $1200 per week, less than average weekly earnings. For all of his exertions throughout his entire adult working life he has, for the last 16 or so years, subjugated his material comforts to the contributions that he has made to his children and the family. This has seen him living in a car and in hotels and motels at very modest expense and so that he is able to continue the contributions that he desires to make and has made to his children.

3. I am not satisfied that the disparity in income between these parties should have any significant weighting, although it does, to some slight extent, favour Ms Barber.

4. I am also conscious that Mr Barber has greater financial resources than Ms Barber in the form of his superannuation contributions. They have accumulated post separation but that does not warrant their exclusion or quarantining from the pool of property to be considered. The Court must have regard to the assets, liabilities and resources of the parties at the date of Trial. However, I am satisfied that, as a section 75(2)(b) or 75(2)(o) adjustment, there should be little or no impact of those superannuation contributions. That has regard to both the facts and circumstances of their accumulation, as well as the reality that, certainly, some modest inheritance had been received by Ms Barber post separation, funds in cash as opposed to the almost “bit-coin money” that superannuation represents to a party such as Mr Barber who cannot access these modest funds until they reach a trigger to release those funds to them.

5. Those triggers are not far away, it would seem, for Mr Barber. He will soon reach 65 and that would likely trigger his ability, subject to retirement from the workforce, to access those funds. Those funds, together with that which he will receive as a cash payment from the home, whether through his interest being purchased or the home sold, may well, subject to where he desires to live, enable him to purchase modest accommodation to eke out the remainder of his existence, although one would hope that it would be long, trouble-free and happy. The financial resources of and available to Mr Barber, however, on that basis, provide some slight support to an adjustment in favour of Ms Barber. If Mr Barber retains the funds, modest as they are, they will soon, in his hands, vest.

6. The physical and mental capacity of the parties to participate in paid employment does not result in any differentiation. These parties are both physically and mentally capable of paid employment. However, there is the additional factor of reality for Ms Barber. She is not a young woman. She is 60, soon to turn 61. She has not been in paid employment for most of her adult life. Her employment skills, combined with her difficulties with spoken English, mean that, in reality and without substantial re-training, (which would not likely be completed before she would reach minimum retirement age), she is unlikely to participate in paid employment or accumulate retirement income. That provides, again, some slight support in favour of an adjustment to Ms Barber.

Whether either party has the care or control of a child under 18 years

1. Ms Barber does, for some few months to come. That again provides some modest support for an adjustment in favour of Ms Barber, although the period for which the child’s minority will subsist must limit that adjustment.

Commitments of each party necessary to enable them to support himself or herself or any other child that the party has a duty to maintain

1. Again, I am conscious of the body of jurisprudence that opines that a duty to maintain a child does not necessarily cease upon the child turning 18 and need not be founded in a legal obligation such as the Child Support (Assessment) Act 1989. Those realities, as regards the three children of the relationship who continue to reside in the home, provide some little support to Ms Barber.

Responsibility of either party to support any other person

1. Other than as already addressed above there are no such responsibilities.

The eligibility of either parent to receive a pension, allowance or benefit from the Commonwealth or any superannuation fund

1. Ms Barber presently receives a modest stipend from the taxpayer in the form of a Centrelink benefit. It is very modest. It places her well and truly below the poverty line. She has, as is put in submissions, albeit not in sworn Affidavit evidence, some possibility of obtaining assistance from adult children who have paid employment. That is particularly so as regards Ms Barber’s plea that she be permitted to retain the home and afforded the opportunity to purchase Mr Barber’s share of the home.

2. I do not propose to temper the determination of percentage division of assets by reference to “borrowing capacity”. The appropriate adjustment of property will be determined by reference to contribution and section 75(2) adjustments. However, I do propose to afford an opportunity for purchase, if it can be achieved. The period will be relatively modest, a period of a little over six weeks, and it will be expressed as a provision as to which time is of the essence.

3. If, at the expiration of that period, which would expire 3 June 2016, Ms Barber has not been able to tender funds to Mr Barber to discharge her obligations under the Orders, then Orders will provide as sought by Mr Barber to effect a listing for sale and disposal of the property and a division of the proceeds of sale on a percentage basis.

Where the parties have separated, a standard of living that in all the circumstances is reasonable

1. It is very much a question of how one determines “reasonable” for these parties. Mr Barber’s standard of living has been anything but reasonable by reference to what might be considered from a comfortable, middle-class perspective since he separated. Ms Barber’s standard of living has similarly been less than that standard. Each ekes out existence with meagre financial resources. They will each be in a position to retain or obtain accommodation, (whether that which presently exists in the case of Ms Barber or, in the case of Mr Barber, in all probability subject to his relocation interstate, able to purchase property). This factor does not otherwise assist in determining section 75(2) adjustment.

2. I should also be clear, lest it be suggested to have been overlooked and as would be apparent from the transcript of evidence, that the value of the home as accepted by me at $550,000 is determined by reference to the only evidence of value that is admissible in these proceedings, being the Affidavit filed in the husband’s case by Mr C. Ms Barber had provided a brief one paragraph sales opinion from a real estate agent. It is not, however, admissible evidence of value. Accordingly, Mr C’s evidence is the basis upon which the value of $550,000 is accepted.

To the extent to which payment of maintenance is to be considered, the extent to which there has been an increase in the earning capacity of either party, or would be, through completing courses of education or training

1. That is not raised by either party, nor would it appear feasible.

The effect of any proposed order upon creditors

1. It would seem that a substantial creditor exists in the nature of the local authority to whom substantial arrears of council rates are owed. That is addressed in the evidence of Mr Barber, although Ms Barber is silent as to it. Certainly, Ms Barber will assume that liability if she purchases Mr Barber’s interest in the home and no account will be made of the liability. If the home is to be sold, it will be paid off the top as it were and the creditor will thus be protected. Otherwise, it is not of assistance in determining any adjustment.

The extent to which either party has contributed to the income earning capacity, property or financial resources of the other party

1. I am not satisfied that this consideration applies in this case, yet there is perhaps and it would be relevant to be taken into account by reference to subsection (o), a converse consideration, i.e., the impact upon Ms Barber’s earning capacity and ability to earn income as a consequence of her subjugation to the role of homemaker and parent throughout the relationship. Thus, she has foregone her opportunity to earn income, acquire employment skills, utilise those skills and maintain employment or accumulate retirement income. That lends some slight support to Ms Barber and an adjustment in her favour.

The duration of the marriage and the extent to which it has affected the earning capacity of either party

1. This supports Ms Barber receiving an adjustment. Her income-earning capacity has been affected by the relationship. Ms Barber has been absent from the workforce now for something approaching 35 years as a consequence of her subjugation to caring duties. Ms Barber is, for all intents and purposes, unemployable.

2. Ms Barber’s subjugation to her role as a parent has been complete and has financially disadvantaged her not only in the past (as regards income and employment opportunities lost) but into the future as her non-participation in paid employment in the last 35 years leaves her with not only no present income but no retirement income and no prospect of earning income. Ms Barber has the aged pension to look forward to as her sole source of income.

The need to protect a party who wishes to continue their role as a parent

1. Ms Barber’s role as a parent to a minor child will end shortly when the youngest child turns 18. She will continue in a caring role, although not as a parent to a child as legally defined. Thus, I am not satisfied any substantial adjustment would be enlivened by that section.

Whether either party is cohabiting and the financial circumstances of that cohabitation

1. Neither party is cohabiting within that intended by the section, i.e., in a marriage or marriage-like relationship.

The terms of any proposed order upon the property of the parties or any vested bankrupt property

1. This is not relevant. Similarly, subsection (naa) would not be enlivened.

Any child support that is paid and/or liable to be paid

1. The intention of section 75(2) of the Act is to be prospective. Certainly, Mr Barber has, at all times met his obligations as a financial provider for his family. He has done so to an extraordinary extent. His past payment is taken into account with respect to contribution. There is nothing that would count against him as regards his future Child Support obligations and thus it does not affect an adjustment either way.

Other facts or circumstances

1. I have already touched upon this and addressed specifically the factors which I propose to take into account. Balancing all of those factors, some of which favour Mr Barber, some, perhaps more, of which favour Ms Barber, I am satisfied that an adjustment would be warranted in Ms Barber’s favour in a range of 10 to 15 per cent.

2. On the basis of the conservatism that I have demonstrated as regards the finding of contribution for Mr Barber, placing that contribution at the bottom of the range that I have assessed as reasonable, I propose to similarly adopt the lower figure, 10 per cent and thus will make an adjustment in Ms Barber’s favour for that amount. That adjustment will apply to the matrimonial home. The balance of assets will be retained by the party who presently holds them and for the reasons given above. 

3. I propose to make Orders that will effect a 60/40 division of the matrimonial home, unencumbered as it is, in favour of Ms Barber.  Whilst this will see a slightly higher percentage division of the total pool to Mr Barber (though still less than 50%), I am satisfied that this falls within the range of just and equitable adjustments and outcomes discussed above and is just and equitable as between the parties.

4. I am satisfied this percentage division of the home and overall division of property between the parties is just and equitable, addressing and providing for the contribution made by each as well as the relevant, identified section 75(2) considerations.

5. I will, as indicated and for the reasons given, allow an opportunity, albeit with time of the essence, for Ms Barber to explore whether, with the adult children of the relationship, she is in a position to borrow funds that would permit payment to Mr Barber of 40 per cent of the equity in the home. 

6. On the basis that the property has a value of $550,000, 40 per cent thus represents $220,000. I will make an Order for payment of that sum by 3 June 2016, failing which Orders will be made in accordance with paragraphs 1 to 6 of Mr Barber's Amended Initiating Application, providing for the listing and sale of the home and, upon completion of the sale, payment out of council and water rates, any amount which might still be necessary to secure a discharge of mortgage, (although clearly the debt has been paid in full), costs of the conveyance and listing, and thereafter a payment to Mr Barber representing 40 per cent of the nett proceeds of sale and the remainder to Ms Barber.  Certainly, if the property was sold at $550,000 or any lesser amount, Mr Barber would receive less than $220,000.

7. I am satisfied that it is appropriate that, upon sale, there be a devolution to a percentage division rather than a sum certain, as the possibility, raised by Ms Barber perhaps more so than Mr Barber, that the home may realise a lower sale price is something which should be shared between the parties in the proportions of division of the proceeds which I intend. That will see Ms Barber bearing a slightly higher level of responsibility for those debts, which is offset against the benefit of use and occupation of the home since separation in 1998.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 14 July 2016