ALVAREZ & ALVAREZ
[2019] FamCA 574
•21 August 2019
FAMILY COURT OF AUSTRALIA
| ALVAREZ & ALVAREZ | [2019] FamCA 574 |
| FAMILY LAW – PROPERTY – final property orders – undefended hearing – where the husband has not participated in the proceedings – leave granted for the wife to proceed on an undefended basis – where the husband has prematurely distributed a substantial sum of his superannuation entitlements – where the monies are added back to the net asset pool – where it is just and equitable to make a division of the parties’ assets – consideration of s 75(2) factors. |
| Family Law Act 1975 (Cth) ss 79, 75(2) Family Law Rules 2004 (Cth) r 11.02(2)(c) |
| Bevan & Bevan (2013) FLC 93-545 Chapman & Chapman (2014) FLC 93-592 Kowaliw & Kowaliw (1981) FLC 91-092 Omacini & Omacini (2005) FLC 93-218 Stanford v Stanford (2012) 247 CLR 108 Vass & Vass (2015) 53 Fam LR 373 Watson & Ling [2013] FamCA 57 |
| APPLICANT: | Ms Alvarez |
| RESPONDENT: | Mr Alvarez |
| FILE NUMBER: | MLC | 6287 | of | 2018 |
| DATE DELIVERED: | 21 August 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 29 April 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Fiskin |
| SOLICITOR FOR THE APPLICANT: | Hayes & Associates |
| THE RESPONDENT | No appearance |
Orders
That within 30 days the husband do all such acts and things as may be required to give vacant possession of the property situate at J Street, Suburb K being the whole of the land more particularly described in Certificate of Title volume … Folio … (“the real property”) to the wife.
That pursuant to s 106A of the Family Law Act 1975 (Cth) the Court appoint an officer of the Court to execute a deed or instrument to transfer to the wife at her expense the real property to be held by her on trust for sale.
That the wife do all acts as may be required to effect a sale of the real property and for the purpose of effecting the sale:-
(a)The wife shall have the conduct of the sale;
(b)The selling agent shall be agreed by the parties in writing within 14 days and in the absence of agreement shall be appointed by the President of the Real Estate Institute of Victoria or his nominee;
(c)The method of sale and terms and conditions of sale shall be as agreed between the parties in writing within 14 days of the appointment of the selling agent and if no agreement shall be determined by the selling agent; and
(d)The reserve price shall be as agreed between the parties in writing within 14 days of the appointment of the selling agent and if no agreement be fixed by a valuer appointed by the President of the Real Estate Institute of Victoria or his nominee.
That there be liberty to apply with respect to the terms and conditions of the sale.
That upon completion of the sale, the proceeds of sale be applied as follows:-
(a)Firstly, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage and any other encumbrances affecting the real property; and
(c)Thirdly, the balance then remaining be applied as follows:-
(i)To the wife:
(55% x A) - $18,000
where A = the parties pool of assets comprising the balance of the proceeds of sale after deduction of the expenses in sub-paragraphs (a) and (b) hereof plus $243,823 (being the value of the husband’s superannuation, the wife’s motor vehicle and savings); and
(ii)The balance then remaining to the husband.
That unless otherwise specified herein and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)Each party be solely entitled to the exclusion of the other to all other property including choses-in-action in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the husband);
(b)Monies standing to the credit of the parties in any bank account are to become the property of the account holder;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the owner/beneficiary named thereon;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That within seven days the wife cause a sealed copy of these orders and the Reasons for Judgment dated this day to be served electronically on the husband.
That all extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alvarez & Alvarez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6287 of 2018
| Ms Alvarez |
Applicant
And
| Mr Alvarez |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant wife commenced proceedings in the Family Court of Australia on 6 June 2018 seeking final property orders. The respondent husband has not filed any material in response to the wife’s application. Further, the husband has failed to make an appearance at Court throughout the entirety of these proceedings.
As a result, the wife sought and was granted leave to proceed with her application for final property orders on an undefended basis. These are my Reasons for Judgment with respect to the application for leave to proceed undefended and the wife’s property application.
The parties
The wife, Ms Alvarez, is the applicant in these proceedings. She is aged 57 and resides in Suburb B, Victoria. She is unemployed.
The husband, Mr Alvarez, is aged 60 and his current address is unknown. The wife deposes that she believes he has re-married and currently lives in City L, Country M.
The husband and the wife married in 1980 and separated in March 2016. They were divorced in, 2017.
There are two adult children of the marriage, Ms D aged 33 and Ms H, aged 31. The wife currently resides with Ms H.
Material relied upon
The wife relied upon the following material:-
· Further Amended Initiating Application filed 26 March 2019;
· Affidavits of the wife filed 26 March 2019, 16 January 2019 and 28 November 2019;
· Financial Statement of the wife filed 16 January 2019;
· Affidavit of Ms Hayes filed 23 April 2019;
· Affidavit of Ms Hayes filed 30 November 2018;
· Affidavits of service of Ms F (two) both filed 23 April 2019; and
· Exhibits …1 to …6 inclusive.
Orders sought
The wife seeks final property orders in the terms set out in her Further Amended Initiating Application filed 26 March 2019 as follows:-
(1) That pursuant to Section 106A of the Family Law Act 1975 (Cth) the court appoint an officer of the court or other person to execute a deed or instrument to transfer to the Wife the former jointly owned matrimonial home situate at and known as J Street, Suburb K being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the real property”) to hold the said property on trust for sale and the real property placed on the market for sale on such terms and conditions as may be recommended by a Real Estate Agent operating in the Suburb K area and appointed by the Wife;
(2) That upon completion of the sale, the proceeds of sale be applied as follows:
(a) Firstly, to pay all costs, commissions and expenses of the sale;
(b) Secondly, to discharge the mortgage and any other encumbrances affecting the real property;
(c) Thirdly, the balance then remaining be applied as follows:
(i)An amount of $400,000 to the Wife; and
(ii)The balance to the husband.
(3) That unless otherwise specified herein and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all other [sic] property including choses-in-action in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Husband);
(b) Monies standing into the credit of the parties in any bank account are to become the property of the account holder;
(c) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d) Insurance policies remain the sole property of the owner/beneficiary named thereon;
(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The wife’s application to proceed on an undefended basis
The wife commenced proceedings in the Family Court of Australia on 6 June 2018 seeking final property orders.
In her affidavit filed 30 November 2018, the wife’s lawyer, Ms Hayes, deposes that on two separate occasions she requested an administrative adjournment of these proceedings as a result of difficulties the husband’s then lawyers had obtaining instructions from their client. On 21 August 2018 the wife’s lawyer received correspondence from the husband’s lawyers advising that they no longer act for the husband (Exhibit …1). They did not provide an alternate address for service for the husband.
Upon the wife obtaining the husband’s email address, the wife’s lawyer forwarded to him by email the wife’s Initiating Application, Financial Statement and Marriage, Families and Separation Brochure on 29 August 2018 (Exhibit …1). The wife’s lawyer deposes the husband did not respond to that email.
The wife’s lawyer deposes she sent a further email to the husband on 19 September 2018 informing him that in the event that he does not respond to that correspondence the wife will seek to proceed with her application on an undefended basis (Exhibit …1). The husband replied via email on 21 November 2018, stating:-
Won’t be able to be in Australia until March 2019, thanks
(Exhibit …1)
On 28 November 2018 the wife filed an Application in a Case seeking leave for her application to proceed undefended, and for the husband to pay the wife’s costs.
On 30 November 2018 the matter came before Registrar Mestrovic, who made orders which included the following:-
· the wife’s Application in a Case and affidavit, both filed 28 November 2018, were deemed to have been served on the husband at his email address on 29 November 2018.
· the wife serve a copy of the November 2018 Orders on the husband via email.
· the husband file a Notice of Address for Service, a Response to Initiating Application, a financial statement and any supporting affidavits.
· the matter be listed for telephone mention on 15 February 2019.
· the husband pay the wife’s cost of her Application in a Case in the sum of $1,100.
In her affidavit filed 23 April 2019, the wife’s lawyer deposes that service of the November 2018 orders was effected on 3 December 2018 and again on 20 December 2018 (Exhibit …2). No response was received from the husband to that correspondence.
The matter was listed for a telephone mention on 15 February 2019. On that day Registrar Field made orders (“February 2019 Orders”) providing the following:-
· The matter be listed for hearing in the Judicial Duty List on 29 April 2019.
· The husband appear and/or be represented at that hearing.
· The husband file and serve a Response, an affidavit in support of the orders sought and a financial statement by 15 April 2019.
· In the event of the husband’s non-compliance with those orders the wife have liberty to apply to have her Further Amended Initiating Application proceed on an unopposed basis.
The February 2019 Orders provided for the wife to serve a copy of the orders on the husband at his email address. The affidavit of service of Ms F sworn 21 March 2019 provides that the February 2019 Orders were served electronically on the husband at his email address on 25 February 2019.
On 26 March 2019 the wife filed a Further Amended Initiating Application and an affidavit in support of the orders she seeks, in accordance with the February 2019 Orders. Ms F’s affidavit of service sworn on 17 April 2019 confirms that both of those documents were served electronically on the husband at his email address on 26 March 2019.
In the affidavit of the wife’s lawyer filed 23 April 2019, she deposes that the February 2019 Orders, the wife’s Amended Initiating Application and affidavit both filed 26 March 2019 were served on the husband at his email address in compliance with the February 2019 Orders. The wife’s lawyer deposes that she did not receive a response from the husband in relation to the service of those documents.
At the commencement of the hearing before me in the Judicial Duty List on 29 April 2019, the husband was called by my Court Officer in the Court precincts and failed to answer the call. The husband has filed no material in compliance with the February 2019 Orders. As a result, the wife sought leave for her application to proceed on an undefended basis.
Counsel for the wife submitted that the husband has had notice of these proceedings since November 2018, when he responded to the email from the wife’s lawyer and indicated his inability to attend Court until March 2019. It was submitted that notwithstanding the husband having had several opportunities to engage in the proceedings, he has failed to participate in them. Further, counsel for the wife submitted that the February 2019 Orders provided notice to the husband that in the event of his non-compliance with those orders, the wife would seek leave to proceed with her application on an unopposed basis.
Rule 11.02(2)(c) of the Family Law Rules 2004 (Cth) provides that if a party does not comply with the rules, the regulations or a procedural order, the Court may, amongst other things, determine the case as if it were undefended. An undefended hearing means that the respondent, the husband in this case, does not participate at all; from the Court’s perspective, there is no live issue between the applicant and the respondent.
Having regard to the evidence of both Ms F and the wife’s lawyer, I am satisfied that service of the February 2019 Orders and the wife’s updated material has been effected on the husband in accordance with those orders. I am satisfied that the husband had notice of the hearing listed before me on 29 April 2019 and of the fact that the wife would seek to proceed with her application for final property orders on an undefended basis in the event of his non-compliance with the February 2019 Orders.
I am also satisfied that the husband has had notice of the material relied upon by the wife in support of her application for final property orders. Having regard to those matters, I am satisfied that the husband has been afforded procedural fairness. Given the husband’s failure to appear at the hearing, to engage legal representation or to file any documents in the proceedings, I am satisfied that the wife should have leave to proceed with her application for final property orders on an undefended basis.
The hearing
The wife relied upon the material referred to above and the submissions of her counsel.
Background
The wife’s unchallenged evidence as to the parties’ background is as follows.
At the time of the marriage, the wife was aged 18 years and the husband was aged 20 years. The wife deposes that neither she nor the husband had any assets of significance. The husband was engaged in full time employment as a factory worker and the wife was unemployed.
The husband was employed as a factory worker until 2005. Thereafter he worked on a casual basis until approximately 2012 when he commenced working as a supervisor. That employment continued until he moved to Country M in 2018.
Following their marriage, the wife commenced working for a health care provider. She continued in that employment until the birth of the parties’ first child in 1989. She returned to work briefly but ceased employment approximately five months later following a workplace accident.
The wife was a full time homemaker and parent between approximately 1986 and 1993.
The wife returned to work in 1993 and continued to do so until 2004 when she suffered another workplace injury. The wife received a lump sum payment of $75,000 as a result of her work-related injury, which sum she applied to the reduction of the mortgage secured over the title to the former matrimonial home, the purchase of a vehicle for $28,000 and the purchase of a boat in the sum of $11,000.
In 2009, the wife returned to employment. After suffering another workplace injury, she has not been engaged in paid employment since. In 2016 she received a compensation payment in the sum of $9,000. The wife applied $3,000 of that sum to assist her mother and the balance towards her personal living expenses.
In 1985 the parties purchased a property situate at N Street, Suburb G (“Suburb G”) for the sum of $89,000. The deposit of $8,900 was provided from their joint savings and the remainder was funded by a mortgage. The parties subsequently lived in the Suburb G property with their eldest child and the husband’s parents. The wife deposes that the husband’s parents did not contribute any capital to the purchase of the property but in lieu of rent paid half of the mortgage instalments and half of the household utilities. They also assisted with the care of the parties’ eldest child.
In 1989 the parties sold the Suburb G property for $134,000 and purchased the former matrimonial home, situate at J Street, Suburb K (“the Suburb K property”) for the sum of $125,000. That purchase was funded from the proceeds of sale of Suburb G and a loan from ANZ Bank secured by way of a mortgage.
The wife deposes that the husband’s parents made no contribution to the purchase price of the Suburb K property but continued to pay half of the mortgage instalments and half of the utilities in lieu of rent. The husband’s mother assisted in the care of the parties’ children, which allowed the wife to return to work.
The parties lived at the Suburb K property until their separation in March 2016. Following separation, the husband and his parents continued to occupy the Suburb K property. The husband relocated to Country M in 2018. The husband’s father continues to live at the Suburb K property, his mother having moved to an aged care facility in late 2018.
The wife deposes that throughout the marriage she was primarily responsible for the day to day care of the children, attending to their physical needs as well as their educational and extra-curricular activities.
Legal principles
Property applications are determined in accordance with the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
The High Court considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act in the decision of Stanford v Stanford (2012) 247 CLR 108. At page 121 the High Court stated that “[t]he power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down””. Section 79(2) of the Act provides that a Court should not make an order for property settlement unless it is satisfied that it is just and equitable to do so.
That decision has been considered in detail by the Full Court in Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (“Bevan”) and more recently in Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592.
In Bevan at [73] the Full Court referred to the three “fundamental propositions” laid down by the High Court which should guide trial judges in approaching the task under s 79. They were summarised as follows:-
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(emphasis in original)
Accordingly, in determining competing applications pursuant to s 79 of the Act, the Court is required to:-
·Identify the parties’ respective legal and equitable interests in property;
·Determine whether, in accordance with s 79(2), it is just and equitable to make a property settlement order having regard to the parties’ existing interests;
·Determine all relevant contributions of each of the parties;
·Identify and weigh against each other the matters set out in s 79(4)(a) to (c) inclusive of the Act; and
·Consider the matters contained in s 79(4)(d) to (g) inclusive of the Act and make a determination as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 75(2) of the Act.
The Act does not prescribe the order in which the matters in s 79(4) of the Act are to be considered. The circumstances of individual marriages as to their nature and form differ; how parties have organised and lived within the marriage are factors which may be relevant in the exercise of the discretion pursuant to s 79(2) of the Act.
The Court’s approach may be less compartmentalised than was previously the case and a more “holistic” approach adopted, as was described by Murphy J in Watson & Ling [2013] FamCA 57; (2013) FLC 93-527 at [13].
The parties existing legal and equitable interests in property
The husband’s failure to participate in the proceedings and comply with orders of the Court results in uncertainty as to the extent of the parties’ legal and equitable interests.
The wife deposes that the only significant non-superannuation interest of the parties’ that remains is the Suburb K property. In her financial statement the wife estimates the Suburb K property to be valued at $700,000. The balance owing under the mortgage secured over the Suburb K property is approximately $250,000. Based on those estimates, the parties have equity of approximately $450,000 in the Suburb K property.
It was conceded by the wife’s counsel that the wife is not a qualified valuer and that her estimate as to value is based upon market appraisals from real estate agents obtained by her during the course of the proceedings. Given the wife seeks the sale of the property and an adjustment of the parties’ interests from the proceeds of sale it was submitted that the matter could be determined notwithstanding the absence of admissible evidence as to value. Having regard to the modest pool of assets available for division and in circumstances where the husband is on notice as to the wife’s application, I accept that submission.
Counsel for the wife submitted that the parties’ only other asset of significance is the husband’s accumulated superannuation entitlements. The husband has entitlements in a superannuation account with P Superannuation. He joined that fund on 28 February 1990.
Documents disclosed by the husband’s former solicitor show that as at 30 June 2016 (approximately 3 months after the parties’ separation) the husband’s superannuation entitlements with P Superannuation were valued at $179,869.65. By 19 December 2017, the husband’s entitlements in his P Superannuation fund were valued at $225,823.73 (Exhibit …6).
The wife’s lawyer deposes that the statement produced by P Superannuation as at 25 March 2019 shows that the husband’s entitlements in the fund had reduced to $30,956.62 (Exhibit …5). As a result, counsel for the wife submitted that based on the documents produced by P Superannuation, it would appear that the husband has unilaterally withdrawn approximately $200,000 without the wife’s knowledge or consent.
As a result, counsel for the wife submits that the total amount of the husband’s superannuation entitlements as at 19 December 2017 should be included in the calculation of the parties’ assets available for division. In circumstances where the husband has elected not to participate in the proceedings and is on notice as to these allegations,[1] I accept the unchallenged evidence of the wife’s lawyer with respect to the value of the husband’s superannuation entitlements as at 19 December 2017 and 25 March 2019. I am also satisfied on the balance of probabilities, in light of the documents produced by the superannuation fund, that the husband has withdrawn funds from that account as alleged by the wife.
[1] Affidavit of the wife’s lawyer filed 23 April 2019, paragraphs 10 -11.
The Full Court considered the question of whether it may be appropriate to notionally “add-back” property no longer in existence into the parties’ asset pool, thereafter adjusting the existing property interests having regard to those “add-backs” in Vass & Vass (2015) 53 Fam LR 373. At paragraphs 138 to 139 the Full Court said as follows:-
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan v Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116 — or, more particularly, the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108 ; 293 ALR 70 ; 47 Fam LR 481 ; [2012] HCA 52 — is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered (emphasis in original).
The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.
There are three categories of cases in which the Court has considered it appropriate to add back assets which no longer exist into the asset pool. In Omacini & Omacini (2005) FLC 93-218 they were identified in paragraph 30 and are summarised as follows:-
(a)where one or both of the parties have expended money on legal fees that might otherwise have been available;
(b)where there has been a premature distribution of matrimonial property; and
(c)where one of the parties has embarked on a course of conduct designed to reduce or minimise the value of the property or has acted recklessly or negligently having the same effect (as was described by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092).
Having regard to the wife’s unchallenged evidence as to the diminution of the husband’s superannuation entitlements, I am satisfied on the balance of probabilities that there has been a premature distribution to the husband of his superannuation entitlements which should be taken into account in the adjustment of the parties’ interests. Accordingly, I will include in the calculation of the parties’ interests the husband’s superannuation interests as valued at 19 December 2017, being the most current valuation of that fund prior to the withdrawal.
In the wife’s financial statement filed 16 January 2019, the wife discloses savings of $3,000, as well as a motor vehicle, the value of which is estimated to be $15,000.
Having regard to the above, the parties’ legal and equitable interests are as follows:-
· The Suburb K property $700,000
Less mortgage $250,000 $450,000
· Wife’s motor vehicle $15,000
· Wife’s savings $3,000
· Husband’ superannuation $225,823
TOTAL $693,823
The wife’s application
The wife’s application is that the Suburb K property be sold and that she receive $400,000 from the proceeds of sale. In addition, she will retain her motor vehicle and nominal savings. Based on the pool identified above, the total value of assets to be retained by her is approximately $418,000.
The wife proposes that the husband receive the balance of the sale proceeds, which she estimates to be approximately $50,000 (although this assumes a sale price of $700,000 and makes no allowance for the costs of sale) and his entitlements in the superannuation fund as at December 2017 of $225,823 (the bulk of which he has already drawn). It was submitted that an adjustment in those terms would amount to the wife receiving approximately 55 per centum of the parties’ net asset pool. I do not accept that submission as based on the identified pool of assets, the adjustment proposed by the wife amounts to a 60/40 division in her favour.
Discussion
The first matter to be determined is whether it is appropriate for the Court to exercise its jurisdiction in relation to adjustment of property. The parties were married for a period of approximately 37 years. There are two adult children of the marriage and the parties have acquired jointly-owned real estate during the course of their relationship. Further, the husband’s superannuation interests were accumulated entirely during the period of the marriage. Having regard to those matters, I am satisfied that it is just and equitable to make orders pursuant to s 79 of the Act. I am satisfied that having determined that the relationship is at an end, justice and equity requires that the parties have the opportunity to separate their financial interests. It is necessary for the Court to make orders for this to occur.
As previously observed, it is impossible to confidently assess the parties’ legal and equitable interests or their contributions in circumstances where the husband has failed to participate in the proceedings. The wife’s unchallenged evidence is that the parties have interests valued at approximately $693,000, albeit that that pool does not take into account any costs associated with the sale of the Suburb K property. It also assumes that the Suburb K property is valued at $700,000.
Having regard to those circumstances and given that the wife proposes that the property be sold, in my view the appropriate course is to adjust the parties’ interests on a percentage basis.
The only evidence before the Court as to the parties’ respective contributions is that of the wife. She submits that it is appropriate that there be a modest adjustment in her favour to take into account the contributions made by her to the parties’ assets as a result of the two lump-sum compensation payments received by her during the marriage. As noted earlier, a proportion of the funds received by her were applied directly to the reduction of the mortgage secured over the Suburb K property. In addition, she applied part of those funds to the acquisition of a motor vehicle and a boat for the family. Having regard to that evidence I am satisfied that they are contributions to be taken into account in favour of the wife.
Otherwise, the wife submits that the parties assumed what may be described as traditional roles within the marriage, that is, that she was the primary home-maker and parent and that the husband was the primary income-earner during the marriage.
The wife concedes the contribution made by the husband’s parents in assisting with child care from time to time to enable the wife to obtain employment. Since the parties’ separation, it would appear that the husband has ceased contributing to the mortgage secured over the Suburb K property, notwithstanding the fact that the husband’s parents, and more recently, his father have continued to reside in the Suburb K property. As a result, the wife has made an application to the mortgagee to hold enforcement actions under the mortgage in abeyance pending determination of these proceedings.
I am satisfied having regard to the wife’s evidence that save for the lump-sum contributions made by her as a result of her compensation claims, the parties’ contributions during the course of their long marriage are equal. In my view, there should be a modest adjustment in favour of the wife to take into account those lump sum contributions.
Section 75(2) Factors
The husband is aged 60 years. The wife deposes that he has remarried and remains living in Country M. There is no evidence before the Court as to his current income, employment or financial circumstances.
The wife is aged 57 years. She is currently unemployed and is reliant upon government benefits. The wife’s financial statement discloses that she receives a NewStart Allowance of $315 per week. The wife has a pending application for a disability pension. The wife lives with the parties’ adult daughter.
I am satisfied, having regard to the wife’s evidence as to her work history, compensation claims and current circumstances that she has little prospect of returning to paid employment.
Conclusion
The pool of assets available for division is modest. Counsel for the wife submitted that a 55/45 division in favour of the wife was appropriate having regard to her contributions during the marriage, including the contribution of the lump-sum awards, as well as her inability to obtain gainful employment. Although there is no evidence before the Court as to the husband’s current financial circumstances, it was submitted that he has the benefit of living with his new partner in the Country M. The husband has also had the advantage of drawing upon his superannuation entitlements.
I am satisfied having regard to those matters that there may be a disparity in the parties’ income-earning capacity and that the husband likely has a stronger financial position than that enjoyed by the wife.
Taking into account all of those matters I am satisfied that it is appropriate that there be an adjustment in favour of the wife of 55 per centum of the parties’ interests (including amounts drawn by the husband from his superannuation entitlements). An adjustment in those terms recognises the wife’s lump-sum contributions from her workplace injury claims and also takes into account the fact that she is in receipt of government benefits and is unlikely to return to paid employment.
The wife seeks an order that the Suburb K property be transferred to her to be held on trust for sale. Given that the husband is living in Country M and has elected to take no part in these proceedings, I am satisfied that such order is appropriate.
It would appear that the husband’s father continues to reside at the Suburb K property. Given that circumstance I will make an order that the husband provide vacant possession of that property to the wife within 30 days to ensure that she has the ability to prepare the property for sale.
I will also make orders giving the husband the opportunity to participate in and agree to the terms and conditions of sale, including the appointment of a selling agent, method of sale and determination of reserve price. However, if there is no agreement in writing with respect to those matters within 14 days, the President of the Real Estate Institute of Victoria will nominate a selling agent with those matters to ultimately be determined by the selling agent. In my view, orders in those terms will afford the husband the opportunity to participate in the sale process should he wish to do so, but will ensure that the sale is able to proceed in a timely fashion if he chooses not to engage in the process.
Therefore, I make orders as appear at the commencement of these reasons.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 August 2019
Associate:
Date: 21 August 2019
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