Anderson and Anderson

[2016] FCCA 302

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDERSON & ANDERSON [2016] FCCA 302

Catchwords:
FAMILY LAW – Property dispute – parties’ proposals only 5 per cent apart in relatively small property pool – lengthy relationship – contributions equal – future needs considerations slightly in favour of the wife – wife to receive 55 per cent of the property pool.

Legislation:

Family Law Act 1975, s.75(2)

Cases cited:
Stanford & Stanford [2012] HCA 52
Kennon & Kennon (1997) 139 FLR 118

Applicant: MS ANDERSON

Respondent: MR ANDERSON

File Number: MLC 9097 of 2014

Judgment of: Judge Burchardt

Hearing date: 10 December 2015

Date of Last Submission: 10 December 2015

Delivered at: Melbourne

Delivered on: 8 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Nicholson

Solicitors for the Applicant: Lampe Family Lawyers

Counsel for the Respondent: Mr Hutchings

Solicitors for the Respondent: Hartleys Lawyers

ORDERS

(Amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 30 March 2016.)

1. The husband forthwith do all such acts and things and sign all such documents as may be required to:

   (a)Transfer to the Wife, at the expense of the Wife, all of his right title and interest in: the property situate at and known Property A (“Property A”) and thereafter:

   (i)The Wife indemnify the husband in respect to the mortgage and all rates, taxes and outgoings with respect to Property A; and

   (ii)The wife have sole occupation of Property A.

2. Within 60 days hereof (“the date”) the husband pay to the wife with the sum of $73,933.55 $55,883.55, (“the payment”) and $1,800 pursuant to the Order of the Court dated 11 March 2015.

3. Contemporaneously upon the payment:

   (a)Any interest, which the Wife may have in, the real property situate at and known as Property B (“Property B”) vest absolutely in the Husband.

   (b)The husband do all such acts and things and sign all such documents as may be required to transfer to the Wife, at the expense of the Wife, all of his right title and interest in the real property situate at and known as Property C (“Property C”); and

   (c)The Wife:

   (i)Indemnify the husband in respect to the mortgage and all rates, taxes and outgoings with respect to Property C and Property A and refinance any such mortgage so as to discharge the Husband from any liability in respect thereto (“the refinance”);

   (ii)Do all such acts and things as may be required to remove, at her expense, the caveat registered by her over Property B.

4. In the event that the whole of the payment has not been made by the date then Property B be forthwith sold altogether out of Court (“the Property B sale”) and the proceeds of sale be applied:

   (a)Firstly to pay all costs, commissions and expenses of the sale;

   (b)Secondly to discharge the mortgage and any other encumbrance affecting the real property;

   (c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10% per centum per annum adjusted monthly from the date to the wife;

   (d)Finally the balance to the husband.

5. That pending the payment or the completion of the Property B sale:

   (a)The Husband have the sole right to occupy the real property and that during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders;

   (c)Neither party encumber or further encumber the real property without the consent in writing of the other party, save as to give effect to the payment as provided for herein.

6. In the event that the Wife fails to refinance Property C by the date so as to discharge the Husband from any liability in respect thereto then Property C be forthwith sold altogether out of Court (“the Property C sale”) and the proceeds of sale be applied:

   (a)Firstly to pay all costs, commissions and expenses of the sale;

   (b)Secondly to discharge the mortgage and any other encumbrance affecting the real property;

   (c)Finally the balance to the wife.

7. That pending the refinance or the completion of the Property C sale:

   (a)The Wife have the sole right to occupy the real property and that during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders;

   (c)Neither party encumber or further encumber the real property without the consent in writing of the other party, save as to give effect to the refinance as provided for herein.

8. The base amount of $113,664.00 is allocated, as required by s.90MT(1)(a) of the Family Law Act1975, to the Applicant Wife MS ANDERSON out of the interest held by the Respondent Husband MR ANDERSON in the (omitted) Superannuation Plan.

9. Whenever the Trustee of the (omitted) Superannuation Plan makes a splittable payment to the Respondent Husband, the Trustee shall pay the Applicant Wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement the Respondent Husband would have had but for these orders.

10. Order 8 and 9 has effect from the operative time.

11. The operative time being the fourth business day after the date of service of these Orders on the Trustee.

12. Orders 8 to 11 inclusive bind the Trustee of the (omitted) Superannuation Plan.

13. The parties do all things and sign all documents necessary to pay to the Wife the proceeds of sale of the (omitted) shares currently held by the Husband’s solicitors on trust for the parties.

14. Unless otherwise specified in these orders 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 superannuation save as provided for herein, work related entitlements and other property including choses-in action owned by or in the possession of such party as at the date of these orders, save that:

    (i)The wife shall be deemed to be in possession of:

    1.   The chattels in Property C; and

    2.   The 2010 (omitted) Holden (omitted) motor vehicle;

    3.   The sale proceeds of the (omitted) shares;

    (ii)The husband shall be deemed to be in possession of:

    1.   The Holden (omitted) 2001 motor vehicle;

    2.   The 1996 (omitted) Boat;

    3.   The Husband’s motorbikes;

    4.   The windsurfer, tools and camping equipment;

    5.   The Jetski; and

    6.   The husband’s 2012 sports wagon and 2002 station wagon.

    (b)Insurance policies remain the sole property of the owner named thereon;

    (c)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;

    (d)Any joint tenancy of the parties is hereby expressly severed.

15. That the Initiating Application of the Wife filed 9 October 2014 as amended on 25 November 2015 and the Response of the Husband filed 11 December 2014 as amended 2 December 2015 be otherwise dismissed. 

16. Pursuant to Rule 21.15 of the Federal Circuit Rule 2001 the Court certifies that it was reasonable for the parties to employ an advocate.

    AND THE COURT NOTES THAT:

AThe Respondent Husband and the Applicant Wife intend that these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9097 of 2014

MS ANDERSON

Applicant

And

MR ANDERSON

Respondent

REASONS FOR JUDGMENT

Introductory

1. This case should never have required a judgment.  On the day of the trial, the parties managed to agree final parenting orders in respect of their two children under the age of 18.  The parties agreed that their superannuation should be equalised.  The dispute as it now remains,  subject to some issues to do with who should retain particular chattels, is whether the property pool should be split equally between them or 55/45 in favour of the wife.  In circumstances where the parties were married for over 23 years, both these proposals might be thought to be within an acceptable range.

2. For the reasons that follow, I have decided that the property pool should be divided 55 per cent to the wife and 45 per cent to the husband.

Agreed or uncontroversial matters

1. The wife was born on (omitted) 1966, and the husband was born on (omitted) 1963.  They commenced cohabitation in (omitted) 1987 and married on (omitted) 1988.  They separated under one roof in July 2011 and final separation occurred on 18 November 2011 when the husband vacated the matrimonial home.

2. The parties have four children, W, born (omitted) 1993, X, born (omitted) 1995, Y born (omitted) 2001 and Z, born (omitted) 2005.  Z is autistic, and it should be noted that the parents do not agree as to the extent of his disability.  No expert evidence was placed before the Court.  There seems to be no disagreement that Z is presently in primary school with the benefit of an integration aid and his future remains, at best, unclear.

3. According to the family report dated 12 November 2015, X, who is an (occupation omitted), lives with his father, and W lives with his partner and child elsewhere in Melbourne.  Both the older sons have a close relationship with both parents and their younger siblings.

4. Y has become estranged from her father and does not presently wish to see him as it is her perception that he abandoned her following separation.  Z will spend time with his father pursuant to the orders made by consent on 10 December 2015, which is essentially for each alternate weekend from conclusion of school Friday until 7 pm Sunday and each Thursday from the conclusion of school until 7 pm.

5. During the marriage, both of the parties worked most of the time.  Notwithstanding her role as the primary carer of the children, the mother worked for many years for (employer omitted) until she was made redundant in April 2011.  She does not appear to have any particularly developed employment skills.

6. The husband worked as a maintenance fitter in the (occupation omitted) (for many years for (employer omitted)) until he was made redundant in June 2012.  At that time he received a redundancy payment from (employer omitted) of $139,314.

7. Additionally, the husband accessed in December 2012 the sum of just over $85,000 gross in superannuation and just over $69,000 net.  He did not disclose this payment to the wife until orders were made by the Court on 11 June 2015.

8. During the currency of the relationship, the wife inherited approximately $35,000 from various sources.

9. In 2008, the husband inherited his mother’s home at Property B in (town omitted).  He continues to own that premises, where he now lives, and it is mortgage free.

10. Against this background, it is appropriate to turn first to the initial issue identified by the High Court in the case of Stanford & Stanford [2012] HCA 52. This requires the Court to determine what the parties’ legal and equitable interests are and to determine whether any adjustment to property interests ought to be made.

11. This is, however, one of the very many cases which were foreshadowed, indeed in the decision in Stanford, where it is clearly appropriate that there be an adjustment to the parties’ property interests.  The basis upon which they conducted their financial affairs has totally changed by virtue of their separation and each of the parties wish an adjustment to take place.  It is plainly appropriate that this occur.

The pool

1. The assets and liabilities of the parties are as follows:

   a)Property C, (town omitted), $545,000; 

   b)Property A, $125,000; 

   c)Property B, (wholly owned by the husband) $460,000; 

   d)jet ski, value disputed;

   e)husband’s (omitted) Holden (omitted), value disputed;

   f)husband’s (omitted) Holden (omitted), value disputed;

   g)boat, value disputed;

   h)motorbikes, value disputed;

   i)kite surfing, camping equipment, $3,300;

   j)husband’s household contents, value disputed;

   k)husband’s tools, value disputed;

   l)(omitted) shares, $11,531

   m)(omitted) staff travel entitlements, value disputed;

   n)wife’s 2010 Holden (omitted), value disputed;

   o)wife's household contents, $5000;

Liabilities

1. Joint home loan mortgage for matrimonial home, $203,000.

Superannuation

1. As I understand it, the amount claimed as an adjustment to superannuation by the wife’s outline of case document, namely $113,664, is almost identical to that proposed in the husband’s response ($113,596), so the exact superannuation assets of the parties are not relevant.

The Pool

1. Insofar as a number of matters are disputed, no expert evidence has been called by either side.  The husband’s 2012 sports wagon, like the jet ski, was ordered to be sold.  It was bought for $36,000, according to the husband, in January or February 2013, and he turned down offers, as it has emerged during his re-examination, of $20,000 to $21,000 because he wanted $25,000.  In the circumstances, I propose to accept a figure of $21,000 as the value of that vehicle. I will accept the husband’s estimate of $3,000 to the jetski as an admission against interest.

2. Neither of the other two vehicles is the subject of any expert evidence either.  The Holden (omitted) I will accept at $3,000, this being in the husband’s possession and this being his asserted value for it, which I will take as a concession against interest.  Likewise, the Holden (omitted) in the wife’s possession; I will accept her estimate as a concession against interest in the sum of $19,650.  Likewise, I will accept the estimates as to the household contents and tools and equipment in the husband’s possession as $3,000 on the basis of his assertions as concessions against interest. I apply the same methodology to the wife’s household contents.

3. The parties’ boat is estimated by the husband to be worth $18,000 and by the wife to be worth $20,000.  I will accept the husband’s estimate as a concession against interest.

4. So far as the motorbikes are concerned, I accept that three of the four motorbikes belong to the children of the relationship.  The husband’s motorbike is a very old one, which according to him he owned before the relationship commenced.  I will accept his estimate of $2,000 as a concession against interest.

5. Finally, the (omitted) staff travel entitlements are not, of course, anything more than a chose in action.  Nothing was said about them in evidence before me.  Counsel for the wife’s claim to these entitlements as set out in her outline of case document was expressly abandoned by her counsel in opening the case.

Contribution issues

1. As earlier indicated, the parties were married for a long time.  The husband made the bulk of the income, as his work as a (occupation omitted) was well paid (in excess of $100,000 at the time of his retrenchment).  The wife was the primary carer of the four children, and in the case of Z, this would have imposed a special burden.

2. In her affidavit material, the wife had much to say about alleged violence and misconduct on the husband’s part.  These were not, however, pursued in cross-examination, and the wife has not sought to conduct a Kennon & Kennon (1997) 139 FLR 118 case. I am not able, given the historical nature of the allegations and the fact that these were not pursued in cross-examination, to make any findings as to the extent to which those matters are made out in any event, save that the wife did obtain an Intervention Order against the husband on 16 October 2014.

3. The husband sought to stress in his evidence and in final submissions the fact that at the commencement of the relationship, he had $20,000 in savings (something not disputed), and his parents had also contributed a further $15,000 towards the purchase of the first family home which the parties bought in (town omitted) in 1987 for approximately $85,000, with a mortgage of $50,000.  Given those figures, it seems reasonably clear that the husband’s assertion is correct.  That house in (town omitted) was subsequently sold, and the parties bought the land at Property C, upon which the matrimonial home was ultimately built.  It seems to be common cause that the parties, and the children who had by then arrived, lived rent and expenses free with the wife’s grandparents for approximately three years from 1996 to 1999 while the house was built.

4. I have passed over some minor matters including an inheritance from the husband’s father of $20,000 in 1996, which he applied to buy a family motor vehicle. 

5. In my view, while, at one level of analysis, the initial contributions of the husband clearly were of significant benefit to the parties in purchasing their first home, this is, to my way of thinking, evened up by three years worth of rent-free accommodation which can be allotted to the wife’s side of the ledger, so to speak.

6. Much has been said over the years as to the question of initial contribution and as to whether or not this is, so to speak, washed away by time.  In my view, each case must be considered in the light of its own particular facts and circumstances.  In my view, the disparity in initial contributions, to the extent that it obtained (because the wife also had some contribution at that time) is merely one of the relevant considerations.

7. The only other area of significant factual controversy between the parties as to contribution was the extent to which the wife may have cared for the husband’s mother in her latter years.  It was put to the mother in cross-examination that she had vividly exaggerated the amount of such contribution.  She denied that this was the case.  I will return to the oral evidence given by the parties in due course, but what is decisive in this regard, in my view, is the affidavit of Mr A affirmed 3 December 2015.

8. Mr Anderson’s affidavit roundly disputes the wife’s asserted involvement with his mother in her later years and asserts that the husband was the person far more involved with his mother.  Mr A was not required for cross-examination, and his affidavit was formally read into evidence.

9. Given that Mr A’s evidence is unchallenged, I am entitled to, and do, give it considerable weight.  Thus, while I accept that the wife may have had some involvement with the husband’s mother, it was nowhere near as great as she said.

10. It is sufficient for these purposes to say that the parties’ contributions, taken overall, must be assessed as equal.  It is not, of course, a question of starting from any presumption as to equality of contribution and then deviating according to particular matters.  It is a matter of looking at the totality of the parties’ contributions and evaluating them.  In my view, a fair evaluation of all the competing qualities in this very lengthy relationship, in which both sides did their best, must be taken to be equal.

11. At this point, for reasons which I hope will become obvious, it is appropriate to turn briefly to the oral evidence given at Court.

The Evidence of the Wife

1. The wife adopted her affidavits and financial statement as true and correct.

2. Under cross-examination, the wife conceded that the husband had a power of attorney for his mother.  He only had to do banking and the like for her in later years.  As earlier indicated, she said she had not exaggerated her role in the grandmother’s care.  She confirmed she wanted all of the (omitted) shares and that the home mortgage had increased relatively recently.  She was of the opinion that the jet ski could be released through a third party.

The Evidence of the Husband

1. The husband is employed as a (occupation omitted).  He adopted his affidavits and financial statement as true and correct.  When asked in evidence-in-chief why the jet ski had not been sold, he said he had texted the wife because he was having trouble selling the car.  She wanted the jet ski.  He had advertised the car for sale, but it had not sold.  He had told her solicitor to sell the (omitted) shares.  (They have been sold, and the agreed value represents the sale price of the funds held by the husband’s solicitors).

2. Under cross-examination, the husband conceded that his financial statement sworn 11 December 2014 had failed to refer to the $85,000 worth of superannuation he had already cashed in.  Indeed, that was only revealed after Court orders, notwithstanding that it was paid in 2012.  The husband conceded the wife should have been told about the $69,000 net he had received.  He said he failed to disclose the superannuation payment “for certain reasons”.  He conceded he had not paid child support but said he had paid the mortgage on the home loan.  The Child Support Agency garnisheed certain funds from him.

3. The husband was cross-examined about his employment.  His answers were argumentative and non-responsive at times.  In the end, it appears to be the case that he was unemployed from about June 2012 until March 2013.  He had taken a three-week holiday in (country omitted) at the end of 2012, paid from his redundancy payment.

4. The husband was cross-examined about his failure to comply with the orders enabling him to spend time with his children.  He said he was simply not able to do so.  He was not able to attend the Conciliation Conference that was earlier rendered abortive as a result.  He was ordered to pay $1880 as a result but is unable to pay it.  He is now working.

5. The husband was cross-examined about his mental health.  (I have not traversed the husband’s significant episodes of depression following his retrenchment and the breakdown of his marriage, but they are all in the affidavit material).  He was under care for his mental health for four weeks.

6. When cross-examined about the failure to sell the (omitted) Commodore (omitted), following orders made by the Court on 11 June 2015, his answers were unconvincing.

7. The husband confirmed that he now pays $300 per week in child support, and this was being paid since he started his new job on 5 August 2015.  He said he always paid child support while he was employed.

8. The husband has been through a period of probation in his new employment and is a permanent employee.  The husband’s bitterness about the wife was evinced by his answer to the effect that she was “acquiring everything I’ve worked for for the last 25 years”.

9. In re-examination, the husband said he had not disclosed his superannuation payout because he was unwell.  He was depressed and confused.  He confirmed that he wanted $25,000 for the car but had been offered $20,000-$21,000.

Future Needs – The s.75(2) Factors

1. It is undisputed that the husband now has an income of $77,000 per annum, and he appears to be in permanent ongoing employment.  The wife is employed as an (occupation omitted) and earns $54,964 per annum.  She also has, as I understand it, the use of a car as a result of that employment.

2. The wife will have the ongoing responsibility for the care of Y until she turns 18 (on (omitted) 2019).  She will further have the burden of the primary care of Z on what is anticipated to be an ongoing basis.  There is no expert paediatric evidence as to Z’s prognosis, but given that he has been formally diagnosed with autism, as I understand it, it is more probable than not that the commitment his mother will need to make to him will subsist after he is 18 years old. Even though it is not possible to say with certainty either for how long or to what extent such additional commitment will continue, nonetheless, it is a not insignificant matter.

3. Both parties have health difficulties.  It is clear that the father has suffered, as the family report notes at paragraph 6, from a mixed anxiety depressive disorder severe depression condition and has required four weeks in PARC in 2015.  I note, however, that he is now in full-time employment.

4. Given that the material suggests very strongly that the husband’s mental ill health was associated with the breakdown of his marriage and his redundancy from previously secure employment over many years, it is reasonable to suppose that, since he now has a job and will achieve a certain measure of finality by the conclusion of these proceedings, it is at least more probable than otherwise that his future will be reasonably sound.

5. The wife has had her own health scares, described in the affidavit material, which it is not necessary to rehearse further.  It is encouraging to note that the tumours discovered in 2014 were benign, although the wife’s assertion that she still suffers fatigue and pain under her right arm has not been challenged.

6. I note that the wife’s current employment position is a temporary 12-month contract role, but since this matter was not taken further, either by her or in cross-examination, I will assume that she will be able to obtain employment at at least that level on an ongoing basis.

7. I note that the wife’s redundancy payment of in excess of $50,000 has, like the husband’s redundancy payment in 2012, essentially been applied to household expenses.

8. Assessment of future needs is inevitably a matter of calibrating all the relevant circumstances and involves, equally necessarily in a case like this, matters of impression.

9. In my view, the totality of the relevant circumstances supports the conclusion for which the wife contends.  She has always had a substantially lesser earning capacity than the husband.  While he has had mental health problems and may continue, to an extent, to do so, the fact is that he has secure, ongoing employment at approximately a 50 per cent higher earning rate than that of the wife.

10. Furthermore, the wife will be responsible for the care, effectively almost full time, of Z, on what, as I have found, will be an ongoing basis, and certainly the sole care of Y for some years to come.

11. The disparity in the parties’ ages is not great, and their working lives might well be thought likely to be of roughly commensurate length.  Taking all these matters together, a slight adjustment in the wife’s favour is, in my view, appropriate, as she seeks.

Just and Equitable

1. As I indicated at the commencement, both of these parties’ proposals might reasonably be thought to have been within the range.  In my view, taking into consideration all the matters to which I have referred, the outcome I have indicated is indeed just and equitable.

The Mechanics of the Resolution of the Matter

1. The wife has sought to retain the jet ski and, as I understand it, still seeks the sale of the Holden (omitted) and seeks to retain all the money occasioned by the (omitted) shares.

2. To my way of thinking, the husband should retain the car that was ordered to be sold at the value I have indicated.  If he wishes to sell it, that is a matter for him.  He should also retain the jet ski.  There is no serious suggestion that the wife would use it.  It is not worth a fortune, on anybody’s valuation, in either event.

3. Ready cash is at a premium in cases like this, and in my view, the wife should retain the funds from the sale of the (omitted) shares.

4. The superannuation splitting order will be made as the parties seek.

5. It appears to be the wife’s position, as proposed in her draft orders, that she retain Property A at (town omitted), and refinance the mortgage on the former matrimonial home.

6. The value of the non-superannuation pool on my findings is $1,016,481.  55 per cent is $559,064.55.  The parties will have to confer as to how these figures impart on their proposals.

7. I have drawn the orders proposed by the wife as draft orders but will give the parties an opportunity to study these reasons for judgment. 

   
   

   I have not entirely disposed of the matter in the fashion that the wife sought, and she may need to reconsider whether her endeavours to keep the (town omitted) property are really within her power.

Conclusion

1. This was always a case within a very short compass.  I am indebted to both counsel for the economical way in which they traversed the areas in dispute.  These reasons for judgment have endeavoured to bring a similar economy to those areas in dispute between the parties.  I have had regard, of course, to all of the affidavit material filed, but in my view, the scope and scale of the dispute is such that the issues have been sufficiently delineated.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 8 March 2016