B and B
[2003] FMCAfam 157
•6 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B | [2003] FMCA fam 157 |
| PROPERTY – Contributions following the parties’ reconciliation and informal property settlement – future needs – care of parties’ thirteen year old child – consequences of one party receiving award of damages pursuant to Equal Opportunities complaint after separation. Family Law Act – ss.75, 79 Lee Steerev Lee Steere (1998) FLC 91-626 |
| Applicant: | G B |
| Respondent: | T J B |
| File No: | ADM 3189 of 2002 |
| Delivered on: | 6 June 2003 |
| Delivered at: | Darwin |
| Hearing date: | 1 & 02 May 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Berman |
| Solicitors for the Applicant: | Tindall Gask Bentley |
| Counsel for the Respondent: | Mr Morcombe |
| Solicitors for the Respondent: | Lesley Hastwell & Associates |
ORDERS
That within forty five (45) days of the date of these orders the husband pay to the wife the sum of FIFTY FIVE THOUSAND SEVEN HUNDRED AND TWENTY ONE DOLLARS AND THIRTY FIVE CENTS ($55,721.35).
That contemporaneously with the payment referred to in order 1 hereof the wife transfer to the husband the whole of her right title and interest in respect of the property being Lot 71 in Deposited Plan 625 in the Area named , Hundred of Y and being the whole of the land described in Certificate of Title Volume 5217 Folio 728 and being the whole of the land known as and situate at 63 P Road, P in the State of South Australia (herein referred to as the “former matrimonial home”).
That in the event that the husband fails to comply with order 1 hereof the parties execute all necessary documents and do all necessary things to place the former matrimonial home on the market for a price of not less than TWO HUNDRED AND SIXTY EIGHT THOUSAND DOLLARS ($268,000.00) and that pending the sale of the former matrimonial home the husband be entitled to sole occupation of the property and shall pay all rates, taxes, mortgage payments and house insurance as they fall due and upon the sale of the former matrimonial home the proceeds of sale be paid as follows:
(a)Firstly, to pay the costs, commissions and expenses in relation to the said sale;
(b)Secondly, to pay the amount owing to H P Limited in respect of the mortgage registered in its favour over the former matrimonial home;
(c)Thirdly, to pay the balance as to 70% to the wife and 30% to the husband.
That contemporaneously with the sale of the former matrimonial home the husband pay to the wife the sum of FIVE THOUSAND SEVEN HUNDRED AND NINETY FIVE DOLLARS ($5,795.00).
That the wife is declared the sole beneficial owner of the Singer sewing machine, brass bed and one half of the compact disks collected by the parties during their marriage. These items are to be collected by the wife at her own expense within forty five (45) days of the date of these orders.
That the wife be responsible for the payment of the school fees to St A College in the sum of NINE THOUSAND THREE HUNDRED AND FORTY THREE DOLLARS ($9,343.00) and indemnify the husband and keep him indemnified from all liability in respect of the said debt.
That the wife be responsible for the debt to the Australian Guarantee Corporation Limited account number 0001972813 and indemnify the husband and keep him indemnified from all liability in respect of the said debt.
That the husband be responsible for the debt to the CPS Credit Union account number ********* and indemnify the wife and keep her indemnified from all liability in respect of the said debt.
That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;
(b)Each party hereby forgoes any claim they may have to superannuation benefits belonging to or earned by the other;
(c)All insurance policies to become the sole property of the beneficiary named thereunder;
(d)Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
All applications be otherwise dismissed.
All material produced to the Court pursuant to subpoena be returned within 28 days of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT A |
ADM 3189 of 2002
| G B |
Applicant
And
| T J B |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the settlement of matrimonial property. The applicant in the proceedings is G B “the wife”. The respondent is T J B “the husband”.
The parties married on the 20th of December, 1980. They are the parents of two children, U T B, who was born on the 8th of October 1984 and A J B, who was born on the 23rd of February 1990. Although U continues to live with the wife, she is now self-supporting and is undertaking a hairdressing apprenticeship. A too lives with the wife and has done so since the parties separated. She currently attends St A College. There is no dispute between the parties that A should continue to live primarily with the wife, although there are issues concerning her ongoing financial support and the payment of her school fees. Because of her responsibility to provide a home for A in future and because of what she says is a past history of unreliability and unwillingness to pay child support on the part of the husband, it is the wife’s position that these are factors that call for a greater distribution of the assets of the marriage in her favour.
The parties finally separated on the 5th of June, 2001. Thus the marriage between them was one in excess of 20 years. However, matters between them are complicated by the fact that they had earlier separated, for a period of about 18 months, from April of 1991. As a result of this separation, the parties liquidated the assets of their marriage up to that stage and divided the proceeds equally between them. This agreement was not recorded by court order and, in a formal sense, the parties did not take steps to end their marriage. When they reconciled, in the latter part of 1992, it is the wife’s position that she was able to reinvest the entire value of the funds she had earlier received, back into the reconstituted marriage, whereas the husband was not. It is the wife’s position that this is another factor that should lead to her receiving a greater amount of the assets of the marriage than the husband.
The husband is an electrician by occupation. The wife is a trained counsellor. However, at the present time, she is unable to pursue this vocation as a result of difficulties she has had following her being assaulted in her workplace in 1998. She is presently working as a liaison officer at the W U M. In 1998, when she was assaulted, she was the state manager of an A F S U. Due to what followed in her workplace after the assault, the wife was able to make a complaint to the Human Rights and Equal Opportunity Commission, alleging that she had been the victim of unlawful discrimination. Her complaint was ultimately resolved by payment to her of the sum of $30,000.00, which she received in November of 2001, after the parties had separated. She also received a payment from WorkCover of $14,962.40, in July of 2001, again after the parties had separated, in order to reimburse her for holiday leave and sick pay that she had earlier taken. This leave was related to injuries received by her following the assault and, as such, compensable under the relevant Workers’ Compensation legislation. It is the husband’s position that both these sums should be taken into account, as assets of the marriage, when a division of property is made between the parties. The wife vehemently opposes this position and points to the fact that she has spent both sums, in order to re-establish herself in the period following the parties’ separation and also to support the two children of the marriage.
Although the parties both undoubtedly worked very hard during what was a lengthy marriage, at the end of the marriage between them, they do not have substantial assets available to divide between them. Primarily, they each have a car, a modest amount of superannuation and their major asset, the former matrimonial home situated at 63 P Road, P. They also have several significant debts, not the least of which is the mortgage on the P Road property, currently standing at about $196,000.00. At separation, the amount owing was $199,000.00. The husband has lived in this property since separation and has paid the mortgage in respect of it. The parties agree that the property is currently worth $268,000.00, although due to matters that have arisen between them since separation, this has been a bone of contention between them. The husband wishes to retain the property for himself and pay out the wife in respect of her entitlement to it. The wife currently argues that both equity and the reality of the parties’ financial circumstances, dictate that the property should be sold as soon as possible.
The P Road property was built in the late Nineteenth Century. It has been partially renovated. It has potential. No work has been done on the property since the parties separated. The husband is a skilled tradesman. He has friends who are skilled tradesman and contacts in the building trade. It is the wife’s position that it would be comparatively easy for the husband, both personally and through his connections, to complete the renovations and so increase the value of the property. Something which he has chosen not to do to date. Through the submissions of her counsel, the wife argues that since separation, she has assumed a greater burden than the husband of financially supporting both U and A and of servicing the parties’ joint debts, on the understanding, either tacit or spoken, that the husband would undertake the necessary renovations at the P Road property and so increase its value, for their mutual benefit. She accuses him of duplicity in this regard and argues that it would be grossly unfair to allow the husband to benefit from his conduct through the Court making orders resulting in him retaining the property. It is the husband’s position that since separation, he has been struggling to meet his existing liabilities and has not had access to surplus funds for renovations. He says that it has always been his wish, a wish clearly communicated to the wife, to keep the property.
Although, when the parties separated, they were on reasonably amicable terms, that is not the position now. It is the wife’s position that the husband has not been frank about his current financial position and in particular about his level of remuneration in his present position. She believes that the husband is in a superior financial position to her, a situation that is likely to persist for the foreseeable future. This is another factor, she believes, that should lead the Court to the determination that it is more appropriate that she should receive a significantly larger proportion of the matrimonial assets than the husband. She says that if the Court accepts her position in this regard, it will then become apparent from the evidence as a whole, that the husband will not be able to raise sufficient funds to pay the necessary amount due to her and as a result the Court will have no other option but to order the sale of the P Road property. Needless to say, the husband does not accept this position.
These, in brief are the major issues in dispute between the parties. Taking the various factors that the wife argues are in her favour, it is her final position that, after the sale of the P Road property and the accounting of the parties various joint debts, the parties net matrimonial assets (not including her WorkCover and HREOC payments) should be divided 75/25% in her favour. She reaches these figures by allowing herself a superior contribution of 10% over that of the husband during the marriage, chiefly in the form of the assets she injected back into the marriage following the parties first reconciliation and a further weighting of 15% in her favour because of her greater Pive needs.
It is the husband’s position that the parties’ contributions during the marriage were essentially equal. He does not accept the wife’s evidence in respect of the circumstances surrounding their first reconciliation. He concedes that the Court should make some allowance in the wife’s favour because in future she will have responsibility for A’s day to day care. However, in his submission, the allowance should be somewhere in the vicinity of 5%. As has already been indicated, it is his position that both the wife’s WorkCover payments and HREOC award should be added back into the parties’ pool of assets. Accordingly, at the end of the day, it is his position that the parties’ net assets should be divided 55/45% in favour of the wife. These are the parameters of the matters in dispute between the parties.
The law applicable to applications for property division
Section 79 of the Family Law Act defines the Court’s powers in determining applications for property settlement. The approach to the determination of an application under section 79 is well established by authority[1]. The process involves a four-part procedure. First, the identification of the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, an evaluation of the contributions made by the parties as defined in section 79(4)(a) to (c) inclusive. Thirdly, an evaluation of the matters contained in section 75(2), in so far as they are relevant. Finally, in determining what order the Court should make under section 79, the Court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the Court must consider[2].
[1] See Lee Steerev Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-335 and Clauson v Clauson (1995) FLC 92-595
[2] See Russell v Russell (1999) FamCA 1875
The evidence
As directed, each of the parties filed an affidavit containing his or her evidence in chief, together with a statement of their respective financial circumstances. No other witnesses were called. Both parties were represented by counsel throughout the proceedings and, as a result, each was skilfully cross-examined by counsel for the other party.
Each party tendered, with the consent of the other, a valuation report that he or she had obtained in respect of the P Road property[3]. These two valuations differed, but as ordered by the Court, the relevant valuers had conferred and, following this conference, the parties themselves were able to agree, for the purposes of these proceedings, that a value of $268,000.00 should be attributed to the P Road property. However, no formal evidence was led from either the parties themselves or the valuers they had each retained, as to the exact cost of any necessary renovations that either party proposed for the property.
[3] In the wife’s case a report of Mr R H Brook dated 29 January, 2003; in the husband’s case a report of Mr D Sander dated 16 January, 2003.
Mr B, the valuer retained by the wife, was asked to express an opinion as to the likely increase in the value of the property, if some renovations were completed to it. These renovations included the replacement of floor coverings and improvements to a shed and laundry. It was Mr B’s view that if these works were completed, it would add another $20,000.00 to the value of the property. However, this was not a matter that was the subject of agreement between the parties and the wife did not call Mr B to be cross-examined by counsel for the husband.
Although I accept that the P Road property has scope for improvement and those improvements will almost certainly increase its value, I have heard no evidence of the likely costs of those renovations. Accordingly, any increase in the net value of the property, by reason of such renovations, is a matter of conjecture. The value of the property must be regarded as being $268,000.00. As a result, there are grave risks associated with the Court trying to quantify the benefit to the husband of him being able to retain the property and later complete any renovations.
To their great credit, the parties were able to agree as to the value of all their other assets and the extent of their joint liabilities.
The wife presented as a methodical and orderly person. She has an employment history that includes time spent as an accounts clerk. In the period since the parties separated, she has keep exact records of all her expenses and how she has spent the proceeds of her WorkCover payment and some of her HREOC payment. The husband conceded that during the marriage, it was the wife who maintained the family’s accounts and kept the relevant records. I formed the impression that she was very careful with money.
The husband presented as more lackadaisical, so far as financial matters were concerned. At times, he appeared to want to portray himself as a complete naif where money was concerned. However, I think this is far from the truth. One example of this was his uncertainty regarding his present level of remuneration. He is currently employed as an electrician by A S and has been so employed for about 18 months. A S has the contract to provide electrical maintenance work at A U and the husband is required to work exclusively on properties owned by the U. This involves him being available on an on-call roster every third week. He is also a team leader. Being on-call results in the husband being entitled to a financial allowance, as does being a team leader. As a result of being on-call, the husband also receives overtime payments from time to time. A S also provides the husband with a motor vehicle, which is available for his own use outside of working hours.
Obviously, in proceedings such as these, the husband’s exact level of remuneration was a matter of particular interest to both the wife and the Court. However, the husband was unable to provide any documentary evidence, such as a wage slip or group certificate, indicating what his level of payment was. The husband was unclear about his level of base salary; did not know how much, if any, his employers paid into his superannuation fund; did not know how much overtime he received on average each week; and, after extensive cross-examination, was able to concede that he thought that the figure of $41,000.00 per annum was “about right” so far as his base salary was concerned. Over all, he deposed that he had no exact idea what figure would be paid into his bank account each pay period for the work that he performed. This was in marked contrast to the wife, who seemed to be aware of every dollar she received and how it was spent.
It seems to me unlikely that the husband would not be able to give evidence of the value of the various items he receives in his salary package from A S. However, although unclear about his level of income, the husband was at pains to depose that he has the ability to borrow funds to pay out the wife in respect of her interest in the P Road property and that, in addition, he would be able to manage the increased level of repayments required of him. The husband indicated that he had made representations to the parties’ present mortgagee in this regard and had been assured that he could borrow an additional $50,000.00. It seems unusual that any prudent lender would make such an assurance, without some evidence regarding the proposed borrower’s level of income.
This uncertainty about the level of the husband’s income has deepened suspicions between the parties. The wife, in her evidence, appeared somewhat antagonistic towards the husband. She is wishing to get on with the remainder of her life as quickly as possible, whilst the husband presented as someone who is still coming to terms with the end of his marriage and its financial consequences.
Another matter of contention between the parties is the husband’s attitude towards the payment of child support for A . It is the husband’s position that he has always been willing to pay the appropriate assessed level of child support for A and contribute towards her school fees and other education expenses. However, when the wife did apply for an administrative assessment of child support for A , in December of 2002, the husband was assessed on a provisional taxable income for the 2001/2002 child support year of $21,371.00. This figure is patently wrong, as the husband conceded in his evidence. This issue of child support has done nothing to dampen suspicion between the parties and the husband’s reticence in regards to correcting the misapprehension of the Child Support Agency, confirmed my impression that he has not been as forthcoming as he might have been, regarding his financial affairs, particularly in the period after the parties have separated.
Accordingly, overall were there is a dispute between the parties regarding the evidence, I have on balance preferred the evidence of the wife over that of the husband. However, one of the major issues in dispute between the parties regards the circumstances surrounding the reconstitution of their financial affairs following their reconciliation and in particular, who of them was able to reinvest the greater sum back into the marriage following their separation of about 18 months. These events took place over 10 years ago. There is a paucity of documents in regards to these matters and naturally memories will have faded as to the exact details of what occurred at that time. I also suspect that, in the current acrimonious circumstances of the parties, this will have the natural consequence of causing both parties, but particularly the wife, to reconstruct their evidence through the prism of their hostility for the other party. One of the areas in dispute between the parties is exactly when their marriage resumed and what consequences this had for their financial affairs. In this day and age, it can be notoriously difficult to attribute, with any degree of certainty, the exact date on which a particular relationship begins or is resumed between two parties. Life does not always impose such clear points of demarcation, as those imposed by the celebration of a marriage. It will be necessary to examine in greater detail the circumstances surrounding the parties’ reconciliation at a later stage in these reasons for judgment.
However, having found in a general sense that I prefer the evidence of the wife over that of the husband, I have no reason to believe anything other than that both parties are decent and hard working people, who dearly love their children. It is also clear to me that during their marriage, both parties worked to the full extent of their respective abilities and pooled the income they received in order to achieve the maximum benefit for their family. This is not a case where one party has wasted resources or where one parties’ contribution can be shown to be conspicuously lacking. Sadly, one of the consequences of the end of the marriage between the parties, is that inevitably they will each suffer a diminution in their standard of living, as two households now exist, where previously there was one.
In these reasons of judgment, findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses. In what follows, statements of fact constitute findings of fact.
a) Chronology and background
The husband, aged 44 was born on the 18th of September, 1958. The wife, aged 41 was born on the 18th of July, 1961. The parties met in the late 1970’s in A . They did not live together before their marriage on the 20th of December, 1980. However, the parties purchased a vacant block of land at A V in the 12 to 18 months prior to their marriage. The purchase price of the land was $7,500.00, which was secured by way of a joint deposit, from their mutual savings, of $2,500.00 and the balance by way of a mortgage from the Bank of South Australia. The parties were able to discharge this mortgage by the time of their marriage or shortly afterwards.
The husband is a qualified electrician. He completed his apprenticeship at G M H in 1980. After completing her secondary education, the wife completed a certificate course in garment design and construction. When the parties married, she was working as a machinist at L S.
At the commencement of their marriage, apart from the A V land, neither party had any other asset of a significant value. The husband owned a car worth approximately $3,500.00. The parties purchased furniture from their joint incomes during the early years of their marriage.
Throughout the marriage, the husband has worked as an electrician for various employers. The wife abandoned her career in the fashion industry in the early 1980’s and has pursued employment in the human services area for the past 21 years. She has completed training in child protection and more recently has completed an Associate Diploma in Human Resources and a Bachelor of Arts (Counselling) in 1997.
The parties built a house on the A V land. The house being completed in June of 1985. In order to finance the construction of the house, the parties borrowed $58,000.00 from the ANZ Bank, by way of a first mortgage. The parties lived at the property, located at 17 S D, A V until April of 1991, when they separated for the first time.
The husband was retrenched from G M H at sometime in 1986. He asserts that he received a retrenchment package of approximately $18,000.00, which sum was invested in improvements at the A V property. The wife deposes that the sum was closer to $10,000.00 and that it was used for the family’s general living expenses, as the A V property was fully completed and needed no additional work. No documentary evidence is in existence to establish the exact amount of the husband’s retrenchment package. However, it was clearly a substantial sum at the time and was invested in the family. It cannot be disregarded, although it was received many years ago and has long since been consumed.
b) The circumstances surrounding the parties reconciliation
There is no dispute between the parties that they separated in about April of 1991 and the separation lasted approximately 18 months. They reconciled after undergoing an exhaustive counselling process and during this process gradually began the process of joining their relationship back together. At some stage in 1992 the husband began staying overnight for increasing periods of time with the wife and the two children of the marriage, at premises she was renting in N A . The reconciliation was complete by the end of December 1992, when the parties moved into a property registered in their joint names situated at 293 A Street, G and resumed their married life together. However, prior to this date, it is clear that the parties began to resume their financial relationship with one another. As I observed earlier, life does not always provide ready demarcation points, by which it can be easily determined when a relationship has been resumed.
There is also no dispute between the parties that they agreed to sell the A V property, when they separated and divide the proceeds equally between them. Where the parties differ is what precisely were the proceeds of sale and how they each dealt with the sum received individually by each of them. It being the wife’s position that she contributed all the monies received by her from the sale of the A V property, back into the purchase of 293 A Street, G. Whereas the husband used his money for other purposes and contributed nothing or very little. This is the basis of the wife’s assertion that her financial contributions during the marriage have been superior to those of the husband.
No documents are available in respect of the sale of the A V property by the parties. The husband deposed in his affidavit of evidence[4], that the property was sold for approximately $108,000.00 and after payment of the mortgage and other expenses, a sum of $37,000.00 was divided equally between the parties. However, in cross-examination, he indicated that a sum of around $24,000.00 was realised. It is the wife’s position that the property was sold for $120,000.00 and a sum of $60,000.00 was realised resulting in each of the parties receiving a sum of $30,000.00. She has never resiled from this position. There is an element of uncertainty about the husband’s evidence, however he is adamant that the sum that each of them received was not $30,000.00, but was significantly less.
[4] See husband’s affidavit of evidence at paragraph 19
Following this first separation, the husband moved in with his parents, whilst the wife and children moved to rented accommodation, first in P and then in N A . It seems that the wife was wanting to purchase a property in which she and the children could live. With this in mind, she became interested in vacant land at A Street, G, on which land a house could be built. She negotiated a “house and land” package through Delfin Reality Pty. Ltd. The South Australian Urban Land Trust was the actual vendor of the land. It seems that the wife was entitled to participate in a scheme to buy the land because of her limited means and the fact that she was a single parent. Once again, the documentation in respect of the purchase is far from complete and relates to the purchase of the land rather than the subsequent construction of the house. From the documents available, it can be gleamed that the wife signed a contract note to purchase the land on the 28th of November 1991, for the sum of $24,000.00. This purchase was secured by the wife paying a deposit of 5%, with the balance due on settlement, which was scheduled for the 13th of July 1992.
The wife assigned her interest in the contract note to herself and the husband on the 18th of September 1992 and the settlement date was rescheduled to the 22nd of September 1992. This act seems to indicate that the parties’ reconciliation was well advanced by September. It also seems to be the case that the resumption of a serious relationship between the parties called into question the wife’s entitlement to take part in the scheme to provide mortgage finance to single people and this was a factor in delaying the settlement, as it was apparent to all concerned that the husband would have some interest or other in the G property, with the acquiescence of the wife.
The only settlement statement available is in respect of the purchase of the land by the parties on the 22nd of September 1992. It is addressed to both parties and indicates that, in addition to the deposit of $1,220.00, the sum of $4,571.17 was required to complete the purchase. The balance of $20,466.00, being advanced by the State Bank of South Australia by way of a mortgage advance. It is the wife’s position that she paid both the deposit and the sum of $4,571.17.
Presumably between September and December of 1992, a house was constructed on the land at G. Monies had to be advanced to complete the construction. It is the wife’s position that she advanced the sum of $19,209.00 to complete the house. She is specific in her affidavit of evidence[5], as to how this amount of money was allocated between construction costs, the costs of fitting carpets and installing fences and so on and that it came from her. In her evidence, she indicated that she had a good memory for such things.
[5] See wife’s affidavit of evidence at paragraph 18
The husband, in cross-examination, indicated that he did not agree with the wife’s evidence as to how the construction of the G house was financed, but conceded that as he “was not there”, he did not know how she spent the money. He also alluded to the fact that the wife had received a sum of money from a source which he was not prepared to identify in Court. He was not cross-examined about this mysterious source. However, regardless of what it was, it must be accounted on the wife’s side of the ledger in these proceedings.
As I have already indicated, it seems clear that the parties were well advanced on the path to reconciliation by September of 1992. The wife would have hardly assigned her interest in the land, if they were not. Such a gesture would have only needlessly complicated her life, if the Ps of a full reconciliation were not good. It jeopardised her preferential finance for the purchase of the property. Similarly, the husband would not have completed the wiring on the G property, which he did whilst it was being constructed, if he did not think the marriage would be resumed. It seems that from at least September 1992 onwards, the parties began to resume their financial relationship with one another. The husband was spending more and more time with the wife and the children in the wife’s rented accommodation in N A . The parties were still undergoing counselling to assist them with their relationship and the husband was maintaining other accommodation, but in a real sense their relationship had resumed.
The husband concedes that he used part of his proceeds of the A V property to buy a car. He lent other small sums to relatives, including his sister-in-law. The husband refutes the suggestion made by the wife that he frittered away the rest of the proceeds from the A V sale that he received. By implication, it seems to be his position that at least some of his funds, went to joint living expenses, in the period leading up to the parties complete reconciliation in December of 1992.
The husband clearly made a contribution to the G property, in the form of the wiring he did on the property. However, he concedes that the wife was the instigator of the purchase of the property and had access to funds, both from the sale of the A V property and the unspecified other source, which she put into the G property. Certainly, there is a greater precision about the wife’s evidence in regard to the acquisition of the G property than there is in the husband’s evidence. She is clearly a person who is careful about money. On balance, I accept her evidence that she injected a significant sum of money into the construction of the G property and that it was significantly greater than the sums available to the husband at the same time. She was also able to purchase a modest car for the sum of $5,000.00 around this time. Later, this car and the husband’s car, worth approximately $12,000.00 were traded in on another vehicle, which the parties still retain, although it is currently in the possession of the husband.
c) Other contributions during the marriage
As I indicated at the outset, both parties have worked hard during the marriage and pooled the income they received for common purposes, during it. The husband was continuously employed as an electrician during the marriage. Following his termination with G M H, he was self-employed for a short period. He then commenced employment at A U, where he remained until 1990. I accept that during this period, he did additional electrical work, on a private basis, outside of his normal work hours to augment the family’s income. I also accept that during his time at G M H, he worked additional shifts. In 1991, the husband worked for an air conditioning firm but returned to A U in June of 1991. He has worked at the U for many years, although in a formal sense, his current employer is A S, who have been employing him for the last 18 months, since they took over the U contract.
The wife too has been engaged in the paid workforce for the majority of the marriage. She worked on a full time basis, up until shortly prior to the births of both U and A . She was absent from the paid workforce for a period of approximately 6 months following the birth of each child. During her working career, the wife has had a variety of positions, including as a development care worker; a nurse’s aide; a sales representative and more recently as a counsellor and liaison officer. She has also undertaken tertiary study to acquire qualifications that she has used in her employment. She is a determined and accomplished person.
The respective salaries of the parties fluctuated from time to time.
I accept the wife’s evidence that, to all intents and purposes, during the marriage the respective incomes of the parties were essentially equal.
The wife is clearly devoted to U and A . She deposed in her affidavit that she was the principle home-maker and provider for the children during the marriage[6]. The husband does not deny this assertion. The husband also agrees that the wife attended to most of the family’s financial matters, such as the payment of bills, during the marriage. The husband is a skilled tradesman. I accept that during the marriage he did work at various of the properties owned by the parties. This work included laying slate; installing combustion heaters; building pergolas; fencing; concreting and making a fernery. The husband also did most of the gardening.
[6] See wife’s affidavit of evidence at paragraph 36
In 1994, the parties purchased the property at 63 P Road, P. This purchase was financed by the sale of the G property, which netted approximately $92,000.00. The balance of the purchase was provided by the Westpac Bank, although the parties later re-financed the mortgage with Howard Pacific. Later, during 2001, the parties extended their mortgage with Howard Pacific to finance renovations at the property. These renovations are not completed at the present time.
d) Events following separation
The parties separated in mid 2001, although they later took a family holiday together to Bali. On separation, the wife moved to rented accommodation in H B. U and A have lived primarily with her since separation. The husband has continued to live at the P Road property up until the current time. Neither party has re-partnered.
At the present time, U is doing a hair dressing apprenticeship. No doubt she is modestly paid. She pays her mother $30.00 per week in board. This has been the position since May of 2002. I would not expect this sum to cover all of U’s living expenses provided by the wife. Following separation, for the first 6 months or so, A saw her father more often than she does now. At the present time, she spends approximately 3 nights per fortnight with him, usually from after school on Friday to the commencement of school the following Monday of each alternate week. At an earlier stage, there was contact in the other week on a Tuesday evening. However, this has ceased.
A has spent some periods of contact with her father during school holidays. She spent a week with him in the Christmas holidays. There is not an equal sharing of school holidays between the parties.
The provision of financial support for the children, but particularly A , has been a bone of contention between the parties. Following separation, the parties had responsibility for a number of debts. In addition, due to the sequelae suffered by the wife following the assault, she was in receipt of WorkCover payments from time to time. In all these circumstances, I accept that in the period following separation, the parties were under some considerable financial pressure.
The parties’ major debts were as follows. Both U and A attended St A, a private school. During the marriage, the parties fell behind with the fees and the school was prepared to accept a deferral of payment. The current debt is $9,343.00. The annual fees for A are in the range of $1,500.00 to $2,000.00. The wife has been paying approximately $50.00 per fortnight in respect of the school fees. The parties also had a debt at separation to AGC. In June of 2001, it stood at $2,050.57. The husband held a Westpac Visa card at separation. The parties had used this card to fund joint purchases. At separation, an amount of $9,119.44 was owed in respect of this credit card. The parties also owed a loan of approximately $5,348.00 to the CPS Credit Union at separation.
The parties were on good terms following separation. They agreed between themselves that the husband would assume responsibility for the Visa card debt and the debt to the CSP Credit Union. He has been paying approximately $500.00 per month towards these debts. Due to the level of interest associated with them, he has not made any significant inroads into them. It was also agreed that the wife would assume responsibility for the school fees and the debt to AGC. She too has not been able to significantly reduce these debts and, so far as the school fees are concerned, there has been an increase in the amount owed. The husband indicated in his evidence before me that he would be prepared to pay half the school fees from now on. However, the position is that to date, since separation, he has made little contribution to the costs of A’s education, apart from a modest contribution towards the purchase of her books, at the commencement of this year.
It is the husband’s position that he and the wife agreed that she would not seek child support, if he continued to pay the mortgage payments on the P Road property and assumed responsibility for the visa card debt and the debt to the CPS Credit Union. The wife does not accept this proposition, although it is clear that she did not formally apply for child support until December of 2002, almost 18 months after the parties had separated. There remains considerable dispute between the parties as to what they agreed would be their approach to the division of their assets and liabilities on the end of their marriage. I also suspect that the husband had a great deal of difficulty in accepting that the marriage between the parties was over. No doubt this did not assist him in making decisions about property matters. Central to this area of dispute is the basis upon which it was agreed between the parties that the husband would continue to live in the P Road property.
At separation, an amount of $199,000.00 was owing by the parties to Howard Pacific, in respect of the mortgage on the P Road property. By December of 2002, this amount had been reduced to $196,677.00. There is no dispute between the parties that the husband has made all payments in respect of the mortgage since separation, although as is clear, he has also had the benefit of living in the property. Originally, following separation, the parties negotiated with Howard Pacific, to pay the interest only in respect of the mortgage, for a period of 2 years. It is the wife’s position that this agreement was reached in order to ease financial pressures on the husband, so that he could attend to completing the renovations on the property in order that its value could be increased, to their mutual benefit. Presumably, on the completion of the renovations, the property would be sold. The husband refutes this suggestion and maintains it was always his position, clearly conveyed to the wife, that he wished to retain the property for himself. However, after some months, he resumed paying the normal mortgage instalments due to Howard Pacific. His reason for doing so being that there was not a significant difference between the interest only and the normal payments and as a result, he could not see the point of continuing to make the reduced payments.
In this age of computerised accounting, the wife has maintained exhaustive spreadsheets of all her expenditure in the period from separation until December of 2002. This includes her expenditure in respect of A for school fees, transport, clothing and lunch money. It is her position that in the period since separation, she has assumed a greater burden of financially supporting A and because of her straightened financial circumstances, exacerbated by the fact that she has had to pay rent of about $600.00 per month, her contribution towards the support of A has been a significant one, in difficult circumstances.
As has already been indicated, the wife did not seek a formal assessment of child support until comparatively recently, in December of 2002. For reasons that have not been provided to me, the current assessment of the Child Support Agency is based on a taxable income for the husband of $21,371.00. This is clearly wrong and again, for reasons that have not been conveyed to me, neither party has taken any steps to correct the assessment. This assessment has resulted in the husband being assessed to pay a monthly amount of child support for A of $144.50. To date, the husband has paid $535.00 in child support, the last payment being on the 2nd of May 2003.
In his evidence, the husband indicated that he was willing to pay child support assessed on his correct income. He also indicated that he was willing to pay one half of all the expenses related to A’s education. To date however, his resolve has not produced any significant financial support for the wife in respect of A’s needs. In all those circumstances, I accept the wife’s argument that she has made a significant contribution towards the care of Ain the period since the parties separated, without any commensurate contribution on the part of the husband.
e) The parties current financial positions and Ps
The husband is aged 44. He is in good health. He has been qualified as an electrician since 1980 and has continuously worked as an electrician since that time. He has worked at the U of A since 1991. He seems to enjoy working there. In a formal sense, the identity of his employer changed approximately 18 months ago and he is now employed by A S. He is a permanent employee of A S.
Since the contract to provide electrical services at the U has changed, the husband’s career seems to have advanced. He is now a team leader. He has also been provided with a motor vehicle, which he can use privately. His employers pay the registration and service and he is allowed fuel, for his own use, within a 40 kilometre radius of the U. If he travels outside this radius, he is required to pay for fuel. It seems that he is not able to use the vehicle during his holidays. However, on any view, the use of the vehicle is a considerable benefit for him. The husband is also on a roster, which enables him to receive a call out allowance and some overtime, every third week. As has already been discussed, the husband was somewhat unclear about his actual level of remuneration. However, at the very least, he earns a base salary of $41,000.00 per annum. He described himself as being “comfortable at the moment” on a week to week basis. He also indicated that he believed that he would be able to comfortably pay any additional amount of child support assessed for A .
Although, on the one hand, the husband was at pains to paint a picture of himself struggling to pay the mortgage and the monthly sums due to Visa and the CPS Credit Union in the months following separation, on the other hand, he was also wanting to paint a picture of himself that would allow me to reach the conclusion that he could comfortably service the extended mortgage on the P Road property that would be necessary if he was to pay out the wife. There is a certain tension between those two positions.
The wife is aged 42. She appeared to be in good physical health. However, as a result of the assault on her person, whilst she was at work at the A F S S in 1998, she deposes that, at the present time, she is unable to resume her prior employment as a counsellor. This is a position for which she is qualified following a course of study at a tertiary level. At present, she is employed as a liaison officer at the W U M on a salary of approximately $36,000.00 per annum. She believes that she would be able to earn a greater salary, if she resumed work as a counsellor.
No formal evidence was provided by the wife in support of her contention that she can no longer work as a counsellor. No doubt, the assault on her was very traumatic but happenings in her workplace after the assault and her subsequent interactions with her fellow employees there, seem to have been more traumatic for her. I have not been provided with a full history of the matter, but it seems that her assailant was dismissed and this caused a high level of unwarranted resentment against her in the workplace. She felt compelled to seek redress against her employers in the Human Rights and Equal Opportunity Commission. The complaint took several years to be finalised. This was stressful for her. She took time off work in the form of holidays and sick leave. She also sought worker’s compensation payments to reinstate her holiday and sick leave entitlements so used. Ultimately, both matters were resolved in her favour. In August of 1999 she received the sum of $5,000.00, which represented lost wages for the period 9 November 1998 to 11 January 1999. This sum has long since been consumed by the parties during the course of their marriage, for general expenses. In July of 2001, after the parties separated, she received a further sum of $14,962.40 from WorkCover, being a reimbursement of holiday and sick leave taken by her during the period of the marriage. This sum was used by her to equip her rented accommodation with furniture and whitegoods for herself and the children, following the parties’ separation. In November of 2001, she received the sum of $30,000.00 in settlement of her complaint to the Human Rights and Equal Opportunity Commission. I have not been provided with any details as to how this sum was calculated. The wife describes it as being compensation for the assault upon her by way of general damages. It is her position that the award does not include any sums calculated by reference to loss of income on her part. I accept this evidence.
It is the wife’s position that in the period since she received the sum of $30,000.00, it has been used by her to support both herself and the children, in the straightened financial circumstances, in which she found herself following the parties’ separation. It is her position that it would be inequitable for the Court to take into account this payment, as it relates to damages received by her for the assault upon her and the resulting nervous shock[7]. Essentially, she argues that this money is compensation for damages sustained personally by her and which did not effect the husband. It is her position that the husband did not provide her with emotional support following the assault and the legal proceedings that followed.
[7] See the wife’s affidavit of evidence at paragraph 32
At the present time the sum of $30,000.00 cannot be located in an identifiable form. It has been used. I accept the wife’s evidence that it has been used by her in general living expenses for herself and the children. It is the husband’s position that both the sums received by her following separation, should be added back into the parties’ joint pool of assets.
There is no doubt that the past 4 or so years of the wife’s working career have been difficult for her. They represent the first serious setback she has had in her career. Otherwise, whilst combining work and home making, she has been able to improve her qualifications in areas that have interested her and so has been able to advance her career. She would like to return to her previous employment as a counsellor. I accept that she does not feel able to do so at present.
I have no medical evidence in regards to her prognosis. I hope she will recover quickly. As I say, she seemed to me to be a determined and enterprising person. Certainly, she is proud that she struggled on her own to success in her HREOC claim. In these circumstance, I have no reason to believe that she does not have very many successful years before her in the work force.
The assets and liabilities of the parties
To their great credit, the parties have been able to agree as to the value and extent of the vast majority of their assets and their liabilities. The major area of disagreement between them is whether or not the wife’s WorkCover and HREOC payments should be included. Given that the pool of assets is comparatively small, the inclusion of these sums has major ramifications for the parties concerned.
There is no doubt that an award of damages for pain and suffering may be regarded as property for the purposes of an application under Part VIII of the Family Law Act 1975. However, in determining the relevance of such an award, the Court must have regard to the circumstances relating to that award[8].
[8] See Williams v Williams 10 Fam LR 355 at page 356
In the present case, the husband did little, if anything, to contribute towards the acquisition or indeed the conservation of the award of either the HREOC or WorkCover payments. The wife was the unfortunate victim of the assault and suffered the pain of its consequences. She had to work through the difficulties that followed her at work. There is no evidence that the husband had to shoulder a greater burden of responsibility for home duties following the assault or that the wife did not continue to contribute income to the family, because of what had happened. True it is that she was in receipt of WorkCover payments for periods of time following the assault. During the marriage, these sums were contributed to the family. The sum she received from WorkCover, following separation, was to reimburse her for holiday and sick pay that she had taken whilst incapacitated for work. As a result of these actions, she lost her entitlement to take paid leave, so that she could continue to contribute income to the family. There is no evidence that the fact that the wife had been assaulted had any direct bearing on the family itself. In my view, the HREOC award is an award that is personal to the wife. It was acquired following separation, although clearly the entitlement to that right arose during the marriage. Most tellingly of all, the award has been used by the wife. In my view, it cannot be found that she has applied the monies carelessly or selfishly. The monies were used to support herself and the children, when she was in straightened financial circumstances. For all these reasons, I do not believe that it is appropriate to add back either the WorkCover payment or the award of damages made as a result of the HREOC complaint.
Accordingly, I find that the assets and liabilities of the parties available for distribution between them are as follows:
Assets
63 P Road, P
$268,000.00
Holden motor vehicle (in possession of husband)
$ 5,000.00
Hyundai motor vehicle (in possession of wife)
$ 11,000.00
AMP shares (husband)
$ 979.00
AMP shares (wife)
$ 350.00
Tools (in possession of husband)
$ 1,000.00
Husband’s superannuation (Cebus)
$ 20,343.00
Husband’s superannuation (Connect)
$ 2,197.00
Wife’s superannuation
$ 15,657.00
TOTAL
$324,526.00
Liabilities
Mortgage as at 27 December 2002
$196,677.36
Husband’s visa card
$ 9,200.00
CPS Credit Union
$ 5,348.00
AGC
$ 2,050.00
Outstanding school fees
$ 9,343.00
TOTAL
$222,618.36
Accordingly, at the present time an amount of $101,907.64 is available to be divided between the parties.
Assessment of contributions - Section 79(4)(a) to (c)
I now turn to the second of the steps in the exercise under section 79, namely an assessment of the parties’ contributions within the context of section 79(4)(a) to (c). These provisions are as follows:
Section 79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, 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;
(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;
(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 home maker or parent.
It is the husband’s position that the contributions of the parties, in their various capacities during the marriage, have been essentially equal. It is the wife’s position that her personal conservation of her share of the proceeds of sale of the A V property and their subsequent re-injection into the parties’ funds upon their reconciliation in 1992, are of such significance that they merit special weight. In her submission, they form the basis upon which the parties were subsequently able to obtain the P Road property, which is their most significant asset. It is also her position that her contributions as a home maker and parent in the period since the parties separated outweigh those of the husband to such a degree that they call for an assessment of a greater contribution in her favour, pursuant to section 79(4)(c)[9]. In the wife’s submission, the combination of these two factors calls for a distribution of property in her favour of 60/40%.
[9] In this regard see Williams & Williams (supra) at page 356
Were it not for these two issues, I would have little difficulty in reaching the conclusion that the contributions of the parties during the marriage were essentially equal. Both worked long and hard during the marriage and their incomes were pooled. However, the wife’s injection of funds back into the marriage following the parties’ separation is a significant matter. The question is what weight should be given to it, particularly now that it is over 10 years since the contribution was made and bearing in mind the significance of the fact that the husband also contributed to the parties’ assets on the resumption of their relationship, in the form of his motor vehicle and the wiring he did at the G property.
In this regard, I bear in mind what is said by the Full Court of the Family Court in Quaresimini & Quaresimini[10]:
“The section 79 exercise is not a pure accounting exercise. It is an exercise in identifying the various matters to be considered under section 79 and weighing them up against the other before reaching what is an appropriate order to be made, which order may not be made unless it is just and equitable. The manner in which disparate contributions have to be measured, especially initial capital contributions, has been the subject of much discussion.”
[10] See Quaresimini & Quaresimini (1999) Fam CA 1314
Recently in Pierce & Pierce[11]; Ellis, Baker & O’Ryan JJ made reference to several of the authorities. Their Honours said at FLC 85,811:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight should be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions both of the husband and the wife. In considering the weight to be attached to the initial contribution, in this case the husband, regard must be had to the use made by the parties of that contribution.”
“…there is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with ‘a particular contribution’. It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome which is both appropriate and just and equitable. In some cases particular contributions may be outweighed or equalled by other ones. In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.”
[11] See Pierce & Pierce (1999) FLC 92-844 at page 85,811
In this case, the wife’s careful application of funds following the parties’ first separation allowed them to acquire the G property. In the light of subsequent events, this was a significant matter. However, from at least September of 1992 onwards, the husband was also contributing, in various capacities towards the greater good of the family. It is also clear that in the eighteen months or so since the parties separated, a significant burden of providing for both children, but particularly A , has fallen on the wife’s shoulders. She has exhausted her WorkCover payments and the award of damages she received, to this end. To my mind, the combination of these two factors calls for an assessment of the contributions of the parties pursuant to section 79(4)(a) to (c) as being 55/45 per cent in favour of the wife.
Section 75(2) factors
I am now required to consider the various matters set out in section 75(2) and in particular, to consider whether any further adjustments should be made in favour of either party.
Both parties are in their early or mid 40’s and both are in the paid workforce. The husband has useful trade qualifications that have ensured that he has been in regular employment throughout his working life to date. He is presently in permanent employment and enjoys a secure and comfortable wage, with significant benefits associated with his employment. I have no reason to believe that he does not have many years of employment before him and will be able to maintain a comfortable standard of living for himself in the future.
The wife has tertiary skills in counselling, which she is not presently utilising. She is an intelligent and resourceful woman. Although she has suffered a set back as a result of the assault and what followed, I believe that she too will be able to remain in the workforce for many years to come and will be able to maintain herself. In the short to medium term, it is likely that the husband will enjoy a higher salary than the wife. Although, it cannot be guaranteed with complete certainty, I would expect that the wife will be able to improve her salary in future. After all, this is what has occurred in the past and at times she has earned a higher salary than the husband. No medical evidence has been provided to me to indicate that the wife will not be able to apply herself to her career in the long run. I bear in mind what was said by the Full Court in Clauson & Clauson[12]:
“It has long been recognised that in most cases the most valuable “asset” a party can take out of the marriage is a substantial, reliable, income-earning capacity.”
In this case, it seems to me that both parties have a reliable income earning capacity. The husband has his trade. The wife has long experience in human services and has tertiary qualifications associated with such work.
[12] Clauson & Clauson (1995) FLC 92-595 at page 81,911
In the overall context of this case, one of the most important factors in favour of the wife is the fact that she will have the care and control of A . A is 13 years of age. She is attending a private school. It is anticipated that she will complete year 12. As the parties each know, the burden of providing a private education and all the other matters ancillary to that, is a heavy one. This burden will fall heavily upon the wife’s shoulders, as she will be responsible for providing the bulk of the day to day care of A . It is a burden that will continue for the next five years. It will mean that the wife will have to carefully budget her financial resources for the next few years. She has already shown that she has a considerable level of discipline in this regard. However, the significance of the responsibility for the day to day care and control of A means that there must be an additional distribution of the parties’ property in the wife’s favour.
The wife, of course, will not bear the financial responsibility for maintaining A alone. She will be entitled to claim child support from the husband, as indeed she has done. The wife is extremely critical of how the husband has responded to the issue of A’s financial support, which she believes has been cavalier to say the least. However, the fact remains that she did not seek a child support assessment until comparatively recently. In addition, she has done nothing to correct the misapprehension of the Agency in respect of the assessment that has been made already.
The husband is a PAYG taxpayer. There is no evidence that he has attempted to organise his affairs in such a way as to avoid child support. I can see no reason why the wife would not be able to correct the existing assessment of child support and any reason once such an assessment is made that the husband will not comply with it. Up to date, it seems to have been the position that no child support has been sought and the husband has not gone out of his way to pay any child support to the wife. He is to be criticised for ignoring the financial needs of his children, however it seems to me that he has taken advantage of the indulgence of the wife and some laxity in the assessment it self. Both these matters can be corrected and in future the husband will not be able to escape payment of child support. This is clearly not a case where the husband has concealed assets or sources of income. As I have found, he has not been particularly forthcoming about the extent of his salary package with A S. However, given his position as a wage earner, he is simply not in a position to conceal the details from either the wife or the Child Support Agency in future.
As a result of section 79(4)(g) of the Family Law Act, the Court is required to take into account in considering what property order to make, any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided or is to provide, for a child of the marriage. This provision is in terms which are identical to paragraph (na) of section 75(2). As the Full Court of the Family Court remarked in Clauson[13]:
“the weight to be attached to a child support assessment will vary with the circumstances of each case, including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future.”
[13] See Clauson (supra) at page 81,911
In this case, A’s needs are likely to be greater than average because of her attendance at St A. The husband has said in his evidence that he is willing to pay half the school fees in addition to any assessment of child support. Such an assurance is easy to make in the context of proceedings such as these and much harder to enforce in future. The husband’s track record in respect of the issue of school fees has not been good to date. This seems to me to be another factor that favours the wife.
The difficulty in this case is that the financial needs of both parties are great, but the pool of property available to be distributed between them is small. As I have already observed, two households cannot live as cheaply as one. Obviously there must be a duplication of accommodation. The husband would dearly like to retain the former matrimonial home. I can well understand why. It is his home. He is attached to it. Perhaps, in future, he would like to realise its full potential. It would be expensive and inconvenient for him if the property has to be sold. No doubt the wife has aspirations of her own as to where she wishes to live in future. She did not strike me as the sort of person, who would be content to live in rented accommodation indefinitely. Certainly that has not been the case in the past, especially as the circumstances of as the first separation testify. In short, both parties aspire to own their own homes in future and to this end, both parties seek sufficient of their present matrimonial capital to realise this ambition. The “bottom line” so far as the husband is concerned is that he wishes the Court’s orders to be expressed in such a way that he can retain the P Road property. He can extend the existing mortgage by $50,000.00 and believes that he has sufficient income to service such a mortgage, as well as his existing liabilities.
It is all very well to talk in percentage terms so far as orders are concerned, but at the end of the day, what matters to the parties is what the orders mean in dollars and cents and what effect they have on their long term aspirations. In cases, such as this one, where the pool of assets available to be distributed between the parties is small, the proper adjustment, in respect of factors after contribution, often becomes more critical. Pursuant to section 75(2)(g) of the Family Law Act, it is legitimate for me to consider what is a reasonable standard of living for both parties. It is clearly the husband’s position that it is reasonable in all the circumstances for orders to be made that would enable him to retain the P Road property. However, I must be careful not to ignore the factors under section 75(2) which favour the wife because of the husband’s understandable aspiration to retain the former matrimonial home. Again in Clauson[14], the Full Court remarked of:
“a tendency to assess section 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the section 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.”
[14] See Clauson (supra) at page 81,911
Having regard to the matters in section 75(2), in my view, it is appropriate to make a 15% adjustment in favour of the wife, principally because she will have the care of A for the next five years and I have no doubt that this will be an onerous responsibility for her, particularly since A is attending a private school. The husband is in secure employment and is likely to have a slightly higher wage that the wife over the next few years. The pool of assets is small and I must bear in mind that small percentage shifts, although not having great significance so far as monetary value is concerned, will have enormous significance for the parties themselves.
Conclusions – just and equitable
This is a perplexing case because of the tight financial circumstances in which the parties find themselves at the end of their marriage. I have formed the view that justice and equity require the wife to receive 70% of the parties’ net assets. This includes a modest allowance for the property she reintroduced back into the parties’ relationship in 1992 and for her significant contribution, during difficult circumstances, between the date of separation and trial, a period in excess of 18 months. During this period, she exhausted her finances and received little, if any, support from the husband, who seems to have been largely oblivious of her needs and particularly those of U and A . In my view this was a significant period of time, during which the wife expended her financial resources and the husband had the benefit of living in the former matrimonial home. It was also the period of time during which the wife had sole financial responsibility for providing for A .
The parties both leave the marriage with their ability to earn a living largely intact. The husband in particular has a trade and is secure in his present position. A , the parties’ thirteen year old daughter will live with the wife in future. The burden of providing for her needs until she finishes secondary school will be a heavy one, and will largely fall upon the wife. The parties’ pool of assets is small and any percentage shifts have great significance for the parties themselves. The husband has said he will assist with A’s school fees and other expenses. However his record to date has not been good. The combination of these factors has led me to the result that there should be an allowance of 15% by reason of section 75(2) factors.
There will have to be some consequential orders to deal with the parties’ debts. It seems appropriate to adopt the approach taken by the parties in respect of their various debts. That is the wife assume responsibility for the school fees and the debt to AGC and the husband assume responsibility for the Visa card and CPS Credit Union debts.
I will make orders that will give the husband the opportunity to retain the former matrimonial home, if he is able to realise the exact sum required to be paid to the wife to give effect to these orders within a period of 45 days. However, if he is unsuccessful in this endeavour, the property will have to be sold.
Seventy percent of the net assets of the parties is represented by the sum of $71,335.35. The wife has currently in her possession assets in the form of her motor vehicle, AMP shares and superannuation to the value of $27,007.00. It is appropriate that she should assume responsibility for the outstanding debt to AGC and to St A College. These two debts amount to $11,393.00 in total. Accordingly, at the present time the wife has in her possession a net amount of assets to a value of $15,614.00.
In the event that the husband retains the ownership of the former matrimonial home, he will have in his possession, in the form of the real property; together with his motor vehicle; AMP shares; tools and superannuation; assets to a value of $297,519.00. However, from this sum must be deducted the current liability for the mortgage and his liability to Visa and the CPS Credit Union. In total an amount of $211,225.36. This leaves the husband with a total net amount of assets to the value of $86,293.64. Accordingly, in order for the wife to receive an amount equal to 70% of the parties’ assets after deductions of their liabilities, it will be necessary for the husband to pay to the wife the sum of $55,721.35. I propose allowing the husband the period of 45 days in which to realise this sum. However, in the event that he is not able to realise the amount, the P Road property must be sold. The parties should share the benefit or detriment in any increase or decrease in the amount realised upon the sale of the property in the percentage of 70/30% in favour of the wife. This means that, in order to balance the other assets and liabilities of the parties in this proportion it will be necessary for the husband to pay to the wife the sum of $5,795.00, when the net proceeds of sale have been realised.
In my view, given all the circumstances of this case, a division of the assets and liabilities of the parties, which results in the wife receiving 70% of those assets represents a just and equitable result.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 6 June 2003
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