Bacosa and Bacosa
[2011] FMCAfam 198
•28 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BACOSA & BACOSA | [2011] FMCAfam 198 |
| FAMILY LAW – Property settlement – wife does not show that family violence caused the making of her contributions to be more onerous – spousal maintenance – needs of wife not made out. |
| Family Law Act 1975, ss.74, 75(2), 75(2)(b), 75(2)(g), 75(2)(m), 79 Family Law (Superannuation) Regulations 2001 Real Property Act 1900 |
| Kennon v Kennon [1997] FLC 92-757 |
| Applicant: | MR BACOSA |
| Respondent: | MS BACOSA |
| File Number: | PAC 1063 of 2009 |
| Judgment of: | Dunkley FM |
| Hearing dates: | 2 and 3 February 2011 |
| Date of Last Submission: | 3 February 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 28 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Judge |
| Solicitors for the Applicant: | H C Stathis & Co Solicitors & Attorneys |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Phang Legal |
ORDERS
That the wife pay to the husband within 3 calendar months of the date hereof by way of property settlement the sum of $52, 245.00.
Simultaneous with the payment in Order 1 the husband shall transfer to the wife, at her expense, the whole of his right title and interest in the home at Property W being the whole of the land contained in the certificate of title folio identifier [omitted].
In the event the wife does not comply with Order 1 within the period stipulated:
(i)The parties shall thereafter immediately list the home for sale by auction and if not sold, for sale by private treaty with a Real Estate agent selected but the husband, using a conveyancer/ solicitor appointed by the husband.
(ii)The reserve at auction shall be $435, 000.00 or other amount agreed by the parties.
(iii)If the home is passed in at auction it shall be listed for sale by private treaty at a listing price of $430, 000.00 and the listing price shall reduce by $5, 000.00 each 3 months until the property is sold, unless otherwise agreed between the parties’s.
On sale of the home the proceeds of sale shall be disbursed as follows:
(a)In payment of real estate agents commission, and auction fees and charges and in payment of conveyancing fees and charges.
(b)In payment to the husband of $52, 245.00 plus interest calculated pursuant to the rules interest to accumulate from 3 months after the date of these orders until the date of payment.
(c)In payment of the balance to the wife.
That in the event that either party refuses or neglects to execute any deed or instrument within fourteen (14) days of being requested to do so then a Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
It is ordered that subject to the preceding the husband and wife are to have the sole right, title and interest in:
(a)Any chattels, goods, furnishings and other property not previously dealt with as part of these orders which are, at the date hereof in their possession respectively;
(b)Any monies, shares, debentures and superannuation entitlements not previously dealt with as part of these orders which stand in their sole name respectively at the date hereof.
The wife’s application for lump sum or periodic spousal maintenance is dismissed.
Within 14 days the wife provide to the husband at the joint expense of the parties copies of all family photographs currently in her possession.
That the wife be responsible for the payment of all rates and utilities with respect to the home at Property W and have exclusive occupancy of the home until order 1 is complied with or contracts are completed for the sale of the home.
IT IS NOTED that publication of this judgment under the pseudonym Bacosa & Bacosa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1063 of 2009
| MR BACOSA |
Applicant
And
| MS BACOSA |
Respondent
REASONS FOR JUDGMENT
This is an Application for Final Property Settlement and an Application for Spousal Maintenance in either a lump sum or periodic amount.
The parties had a long traditional marriage. By that it is meant that for much of their 38 year marriage the wife undertook the major parenting and homemaker role and the husband the role of a financial provider for the family.
The parties had two children [X] born in 1970 and [Y] born in 1982. Both children are now self supporting adults.
Orders sought
By Minute of Order provided at the commencement of the Final Hearing the husband seeks the following orders:
(1). That the parties shall do all acts and things and sign all necessary documents to effect a sale of the property located at and known as Property W, in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier [omitted] (herein referred to as “the former matrimonial property”) by way of consequential arrangement that shall be made for the purposes of effecting a sale:
a)The listing price shall be as agreed between the parties and if there is no agreement the listing price shall be as advised by a valuer nominated by the president of the Real Estate Institute of New South Wales.
b)The former matrimonial property shall be listed by the parties for sale by a private treaty, with a Real Estate Agent agreed to by the parties and if there is no agreement with a Real Estate Agent as nominated by the president of the Real Estate Institute of New South Wales.
c)Instruct H.C. Stathis & Co., to act in connection with the sale of the former matrimonial property.
(2). That in the event that the former matrimonial property is not sold by private treaty within four months from the date the former matrimonial property is listed for sale, the parties forthwith do all acts and things necessary including the execution of all documents necessary for the sale of the former matrimonial home by public auction and in particular:
a)Place the former matrimonial property with the Real Estate Agents as provided for in clause 1(b) above (“the Auctioneer”) for the sale of the former matrimonial property by public auction at the earliest possible date.
b)Execute all documents requested by the Auctioneer for the sale of the former matrimonial property.
c)Request the Auctioneer to recommend a reserve price to be placed on the former matrimonial property for the purpose of the auction sale and accept such recommended reserve price.
d)Pay to the Auctioneer equally, any sums requested for advertising expenses in relation to the auction.
e)Instruct H.C. Stathis & Co., to act in connection with the sale of the former matrimonial property.
f)Co-operate in every way with the Auctioneer in relation to the auction of the former matrimonial property.
g)Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the Auctioneer as to the acceptance of a price less than the reserve price.
h)Execute contracts for sale and all other documents necessary to complete the sale.
(3). Upon the sale of the former matrimonial property, the proceeds of sale be paid in the following manner and priority:
d)Payment of agent’s commission and auction expenses, if any due, on the sale of the former matrimonial property.
e)Payment of legal costs and adjustments in relation to the sale of the former matrimonial property.
f)The net balance to be divided 50/50 between the parties
(4)(1). Orders 4 (2-5) (inclusive) of these Orders are binding on the Trustee of the [C] Superannuation Fund ("the Fund").
(4)(2). The base amount of $56,679 is to be allocated to the Wife out of the Husband's interest in the Fund.
(4)(3). Pursuant to s 90MT(1)(a) of the Family Law Act 1975 ("the Act") whenever a splittable payment becomes payable in respect of the Husband's interest in the Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 ("the Regulations") using the base amount and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders
(4)(4). Order (4)(3) has effect from the operative time.
(4)(5). The operative time for the purposes of Order 4 of these Orders is four (4) business days after the date of service of these Orders upon the Trustee of the Fund.
(4)(6). In the event that the Superannuation split to the Wife pursuant to these Orders can be rolled over into a separate account to the Wife each of the parties is to forthwith do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
(5). That the wife to retain all the furniture currently in the former matrimonial property.
(6). That the wife provide to the husband all original family photographs, or negatives of the family photographs within
14 days of these Orders. The Husband will obtain copies and return the photographs or negatives to the wife within 14 days of receipt of same.
(7). That the Husband retains the Hyundai motor vehicle currently in his possession and remains solely responsible therefore.
(8). That the Husband and the wife be declared the sole, legal and beneficial owners of any other items of personality in their current possession and held in their respective names including proceeds of bank accounts, shares and work entitlements, including superannuation entitlements not otherwise provided for above.
The wife sought orders as set out in her practice direction document as follows:
(1). That in view of the Orders that follow the Applicant Husband be entitled to retain his superannuation benefits and there be no need or requirement for the Court to make any splitting, flagging, or other Order pursuant to Part VIIIB of the Act.
(2). That the Husband pay to the Wife the sum of $6,390.00, within
21 days, being a lump sum payment of spouse maintenance for the wife calculated at $90.00 per week from the date of separation to the date of filing this Application and continuing at $90.00 per week until the execution of Orders 4,5,7, or 8 below.
(3). That pursuant to the Rules the Court dispense with the requirements of any Rule which would preclude the relief sought by this Response.
(4)(1). On or before the elapse of 21 days from the date of this Order the Husband shall execute a Memorandum of Transfer under the provisions of the Real Property Act 1900 to cause 75% of the fee simple in the former matrimonial home to be registered in the ownership of the Wife an in order to effect such Transfer shall provide to the Wife a duly executed Transfer in registrable form to the intent and purpose that 25% of the fee simple in the former matrimonial home shall be vested in the Husband as registered proprietor to that extent and the parties hold their respective shares so arising as tenants in common and pursuant to the trusts and obligations created by these Orders.
(4)(2). That pending further Order the Wife have occupation to the exclusion of the Husband of the former matrimonial home.
(4)(3). As and from the date of the execution of the Transfer referred to in Order 4.1 above the Wife shall indemnify and keep indemnified the Husband in respect of Municipal and Water Rates and charges in relation to the former matrimonial home being the rates and charges already due and accruing due.
(4)(4). That with delivery of the Transfer referred to in Order 4.1 and above, the Husband shall deliver or cause to be delivered to the Wife or her Solicitors the relevant Certificate of Title for the said matrimonial home.
(5). That further or in the alternative to Order 4 above the parties do all acts and things and sign all documents necessary so as to effect a sale of the home for the best price reasonable obtainable in the following manner:
a)List the home for sale by private treaty within twenty one (21) days from the date of these orders with such agent as the parties may agree to appoint and in default of agreement as to agent within fourteen (14) days to any such agent at the President of Real Estate Institute of NSW shall appoint (the agent) the costs and incidental to such appointment to be borne equally by the parties as and when same fall due;
b)The sale price at which the home shall be listed shall be as may mutually agreed upon by the parties or, in the absence of agreement reached within twenty eight (28) days of the date of these Orders shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the NSW Division of Australian Institute of Valuers and Land Administrators (incorporated) (the value) the costs of and incidental to such appointment and valuation to be borne equally by the parties and when all same fall due.
c)The parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):
i)Making the key available to the agent;
ii)Allowing inspection of the home at all reasonable times requested by the agent;
iii)Doing or saying nothing to hinder or prevent a sale being effected;
iv)Ensuring that the home including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
v)Signing all documents requested by the agents in relation to the listing for sale of the home except a contract or agreement for sale which has not been authorised by the parties Solicitors.
d)The parties shall each execute a Contract for Sale in the form prepared by the Solicitors having the conduct of the sale at a price agreed upon by the parties, or in the absence of any agreement, at or above the price nominated by the valuer pursuant to sub-clause 5(b).
e)The wife’s Solicitor shall have the primary conduct of the sale on behalf of both parties provided that the husband’s Solicitor shall be entitled to independently advise and represent the husband in respect of the sale and all matters arising thereon and any costs properly payable to the husband’s and the wife’s Solicitor shall be and form part of the legal costs of the sale and be deducted from the proceeds as provided here.
f)Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the home or to any commission, and any agency agreement shall exclude liability for commission in the circumstances in Order.
g)If the agent shall certify in writing to the parties’ Solicitors that it is reasonably necessary for specified work to be carried out to the home as to assist in effecting a sale and provided the cost of any such work is less than $1,000 either party may cause such work to be carried out and the costs shall be recoverable by that party from the proceeds of sale to the intent and purpose that the parties shall be liable for such cost equally.
(6). That in the event that the home is not sold by private treaty within three (3) months then:
a)The parties shall list the home for sale by public auction with the agent appointed pursuant to Order 5(a);
b)The reserve price for the purpose of such auction shall be such as the parties agree upon within fourteen (14) days after the date upon which the home is first listed for sale in accordance with Order 5(a) or in the absence of agreement a price determined by the valuer appointed pursuant to Order 5(b);
c)In the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the home at a price which is not more than 20% below the reserve price;
d)If the home remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the home for sale by public auction again, on a date nominated by the said agent and at such auction there shall be no reserve price unless otherwise agreed by the parties.
(7). That at any time prior to the parties entering into a Contract for Sale and prior to any auction date of the home, the Wife may elect to acquire the 25% of the Husband in the home in the following manner:
a)The Wife so electing to acquire the home shall notify the Husband in writing of such election and in such notification shall specify the price which the Wife offers to pay (the exercise price);
b)The exercise price shall be a sum of not less than the price determined by the valuer pursuant to Order 5(b) or such amount as the parties may agree to in writing;
c)Upon making such election the Wife shall pay the Husband the said exercise price within forty two (42) days of the date of giving notice as provided in sub-clause 7(a);
d)Upon payment of the exercise price the Husband shall do all acts and things and sign all documents necessary to transfer his interest in the home to the Wife;
e)The exercise price shall be disbursed by the Husband in the following manner:
i)Payment to the Wife of any sum payable to her pursuant to Order 2 or 5(g).
ii)Balance to the Husband.
(8). That in absence of the Wife exercising the election in accordance with Clause 7 above, on settlement of the sale of the home the proceeds of the sale be paid in the following manner and priority:
a)All costs and expenses of sale including legal costs and disbursements as referred to in Order 5(e) above, agents commission, valuer’s fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
b)The amounts required to pay all Municipal and Water Rates outstanding with respect to the home;
c)The balance then remaining shall be divided between the parties as follows:
i)To the wife 75%;
1.To the husband 25% subject to reduction and payment to the Wife of any amount Ordered or payable pursuant to Order 2 and 5(g);
2.Order 9 Following.
(9). The balance referred to at Order 8(e)(ii) shall be held by the Registrar as security for payment of moneys pursuant to Order 2 or 5(g) above.
(10). That pursuant to section 78 of the Family Law Act that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of all items of furniture, furnishing, personality, chattels, jewellery and monies (whether held in cash or in deposit with any bank, building society, credit union, or other financial institution) presently in each party’s possession, custody, or control together with all contributions to or benefits or entitlements arising from membership of any fund or insurance or superannuation whether such insurance be present, contingent, or expectant.
Issues
The issues to be determined are:
i)Is there to be included in the matrimonial pool of assets and liabilities an add back of cash used or retained by the husband? If so in what amount?
ii)The order for property settlement that would be just and equitable.
iii)Is there to be an order for the husband to pay to the wife spousal maintenance? If so is the spousal maintenance payment to be a lump sum or a periodic payment? If a periodic payment for what amount and for what period?
iv)Have the wife’s contributions to the matrimonial property be made “more onerous” by reason of family violence so as to enliven a Kennon[1] adjustment.
[1] Kennon v Kennon [1997] FLC 92-757.
Documents
Husband
a)Husband’s Initiating Application filed 9 March 2009.
b)Affidavit of Husband sworn 2 December 2010 filed 3 December 2010.
c)Financial Statement for the husband sworn 7 January 2011.
Wife
a)Response filed 11 May 2009.
b)Affidavit of wife sworn 8 May 2009.
c)Affidavit of wife sworn 27 January 2011 filed 27 January 2011.
d)Financial Statement for the wife sworn 27 January 2011 filed 27 January 2011.
Exhibits
·Exhibit A: Valuation Report.
·Exhibit B: Westpac Statement.
·Exhibit C: Letter from H.C. Stathis & Co to Ms M dated 13 July 2009.
·
Exhibit D: Letter from H.C. Stathis & Co to Ms M dated
7 October 2008.
·Exhibit E: Assets and Liabilities document.
·
Exhibit F: Bundle of Commonwealth Bank Statements for
Ms Bacosa.
·
Exhibit G: Letter from Ms M to H.C. Stathis & Co dated
22 December 2008.
·Exhibit H: Interim ANZ bank account statement for Mr Bacosa dated 9 November 2010.
·Exhibit I: Benefit Statements from [C] and [A].
·Exhibit J: Document from ING Direct.
·Exhibit K: Letter from [C].
Agreed facts
·Having regard to Exhibit A the former matrimonial home at Property W had a value of $435, 000.00.
·The wife has had sole occupation of the matrimonial home since separation.
Agreed Chronology
·[Date omitted] 1944 wife born.
·[Date omitted] 1949 husband born.
·[Date omitted] 1969 parties marry.
·[Date omitted] 1970 parties son [X] born.
·December 1980 the parties acquire and move into Property W.
·[Date omitted] parties daughter [Y] born.
·1986 the wife receives third party damages claim net $28, 000.00.
·Late 1986 early 1987 the husband receives workers compensation payment net $45, 000.00.
·1989 the husband hits wife who is admitted to [omitted] Hospital with a broken jaw.
·27 December 2007 the parties separate. The wife remains living in the former matrimonial home at Property W. The husband lives in accommodation provided either by his daughter or a lady by the name of Ms W.
Evidence - husband
The home at Property W was purchased in 1983 for $36, 000.00. The parties borrowed $32, 400.00 secured by mortgage from the ANZ bank.
At the time of the marriage the husband had assets which exceeded the value of his liabilities by $800.00.
The wife’s personal injuries money was used to discharge the mortgage over the matrimonial home in 1986.
The husband’s compensation money of $45, 000.00 was used to purchase a motor vehicle for $37, 000.00 with the balance used on improvements to the Property W property.
Except for a period of approximately 18 months the husband worked in the [omitted] industry for the duration of the marriage and did part time work as a [omitted].
The husband continues to work in the [omitted] industry. His current salary is approximately $65, 000.00 per annum.
For the majority of the marriage he worked five and half days a week between 50 and 55 hours per week.
For the majority of the marriage the wife attended to the majority of the household chores and was the main carer for the children and worked from time to time.
During the marriage the husband had a hobby of [omitted]. The wife assisted him with his hobby. The hobby cost him about $2,000.00 a year.
The husband undertook most of the household maintenance and renovation and the yard work relevant to the matrimonial home.
The husband denied an extensive history of family violence although he admitted “slapping” the wife causing her jaw to be broken.
The husband conceded that he had a close personal friendship with
Ms W. He lives at her home from 2-4 days a week and they have travelled together both in Australia and overseas. When they travelled they had intermingled their finances and operated a joint account.
Ms W does not charge him any money for staying at her house. He pays no board or rent. They share the bills with respect to water, electricity and telephone. These living arrangements have continued for about eighteen months.
The husband said that the he lives either with his daughter or with
Ms W and incurs limited expense as a result of those living arrangements.
The husband acknowledged during cross-examination having accrued long service leave from his twenty three years of employment. He produced no statement from his employer regarding this leave. He gave no evidence as to its value. He did not disclose it earlier than during his cross-examination.
He has twenty five to thirty days accrued sick leave. He did not disclose this earlier than during his cross-examination.
He received a travel allowance from his employer of $22 a day. This was not disclosed until he was cross-examined.
He denied that his wife was as intensively involved with his [omitted] hobby as she asserted.
He acknowledged that from time to time throughout his relationship he threatened his wife by saying:
“I will give you a clip”
Although he sought to retract this evidence saying “it was as a slip of the tongue.” His attempted retraction lacked credibility.
He conceded that the closing balance in his ING account was $13, 253.69 as set out in Annexure LB 36 of the wife’s Affidavit sworn
8 May 2009. He acknowledged that he had the sole use of this money and had spent it.
In 2005 he agreed that he withdrew about $26, 000.00 which was used to purchase furniture for himself at a cost of about $10, 000.00 and the balance of $16, 000.00 was split between himself and his wife equally.
He asserted that the parties subsequently reconciled and that the furniture that he had bought was then stored at the matrimonial home.
Wife’s evidence
That she worked prior to the parties marriage, [omitted]. That during the early years of the marriage she was a [omitted] for a variety of companies. For about 3 years between 1977 and 1980, she worked as a [omitted].
She does not now work full time and has not worked for some years, except doing occasionally [omitted] jobs.
She has remained living in the former matrimonial home since the date of separation in 2007. She asserts that throughout the relationship her husband hit her or threatened her with violence. On one occasion as a result of hitting her, her jaw was broken and she was hospitalised.
She is not in good health suffering from high cholesterol, degenerative joint disease of the neck and the spine, dental problems arising from her broken jaw.
She is not in a relationship.
She has made enquiries with St George Bank to obtain a “reverse mortgage” that would enable her to pay out a lump sum to the husband by way of property settlement with the monies to be repaid from her estate on her death. She says she could and would obtain such finances.
Credit
Neither party was entirely candid in their evidence with respect to their homemaking and parenting contributions. This may be because of the residual bitterness that exists between them as a consequence of the ending of their long relationship rather than a formulated premeditated intention to mislead. Each party was not scrupulous with disclosure with respect to their financial affairs. The husband gave less than full disclosure with respect to his relationship with Ms W and his bank accounts. The wife gave less than full disclosure of her recent income and gifts and support from friends and family. She did not disclose receipts and documents which she held relating to the parties overseas trip in 2007. She was throughout her cross-examination argumentative and non-responsive despite several warnings. If she could avoid responding to questions referable to her knowledge of the parties financial affairs she repeatedly attempted to do so.
As a consequence where the parties do not agree about a fact or circumstance for which there is no document to corroborate a position, my reservations about each of the parties’ evidence in those instances is such that I cannot accept it. It is for this reason I have included the index of exhibits. Except for the Agreed Fact and Agreed Chronology, the exhibits provide the only reliable evidence, where the parties disagree.
Matrimonial pool of assets
At the date of separation there was in an ING account controlled by the husband with a balance $17, 253.00. Given that he has had the benefit of this money and concedes that he has used the closing balance referred to in paragraph 32 hereof for his own purposes the whole sum of $17, 253.00 is to be added back to the matrimonial pool of assets. He gave no convincing evidence about what happened to the $17, 253.00 apart from his use of most of it.
As a consequence the matrimonial pool of assets is as follows:
| PROPERTY/ASSETS | AMOUNT |
| Property W (J) | $435, 000.00 |
| Hyundai motor vehicle (H) | $3, 200.00 |
| ING bank account (H) | $5, 094.00 |
| ANZ bank account (H) | $5, 923.00 |
| Commonwealth bank account (W) | $1, 645.00 |
| Cash added back (H) | $17, 253.00 |
TOTAL PROPERTY/ASSETS: | $468, 115.00 |
LIABILITES | |
Nil | 0 |
TOTAL LIABILITIES: | $0 |
TOTAL NET ASSETS | $468, 115.00 |
SUPERANNUATION ASSETS | |
[C] superannuation (H) | $124, 699.00 |
[A] superannuation (H) | $17, 345.00 |
TOTAL SUPERANNUATION: | $142, 044.00 |
TOTAL PROPERTY PLUS SUPERANNUATION: | $610, 159.00 |
H = husband W = wife J = joint
There was not included in the matrimonial pool of assets furniture or the husband’s tools as there was no reliable evidence available with respect to the valuation of either. It is agreed the items exist. I conclude in the absence of evidence as to value, that they are worthless.
The wife’s Counsel conceded that her bank account at the Commonwealth bank had to be added in.
As a consequence the document that became Exhibit E was amended and the table of assets above reflects those amendments. I have made pencil notations on exhibit E as the case progressed to reflect the evidence.
Appropriate orders for a just and equitable property settlement having regard to ss.75(2) and 79
Although the husband had slightly more assets than the wife at the time of marriage to the extent of some $800.00, that was such a long time ago that it is to be of no consequence with respect to the property orders to be made.
The parties had a long marriage. They raised two children. The husband was virtually constantly in paid employment. For significant periods the wife was in full time paid employment and in addition she undertook the majority of the homemaker and parenting role. The husband also made contribution by way of his home maintenance and yard work. He would also assist the wife from time to time with the care of the children when they were younger.
The wife received a third party motor vehicle claim and used the totality of that claim to discharge the parties’ mortgage.
The husband’s workers compensation payment was some $17, 000.00 more than the wife’s third party claim. This was received long ago and was subsumed into the family finances. Although $17, 000.00 is a significant amount I have no evidence as to whether it was for lost wages, percentage disability or both. This plus the fact it was received long ago means it does not assume greater significance for contribution than the wife’s third part pay out.
Consequently I find that both parties have over the long period of their marriage contributed equally in the acquisition, preservation and maintenance of their assets.
Since separation the wife has had the benefit of living in the former matrimonial home.
The husband has however lived virtually expense free in the home of either his daughter or in the home of Ms W.
There is no evidence that the husband’s living arrangements will change into the future.
The husband did not call his daughter or Ms W as part of his case to give evidence. I conclude their evidence would not have assisted the husband.
At the commencement of the proceedings he was using Ms W’s address as his address on his documents. He has given her address to his accountant as means for that accountant to communicating with him.
He concedes living with her 2 to 4 days a week.
Given that she continues to receive a single aged pension he has most likely understated his relationship with Ms W to protect her right to that pension. This is especially so when their living arrangements are considered.
Additionally they have travelled together. They stay with family and friends. They pool their money and resources when they travel. They share household expenses.
Having regard to the above Mr Bacosa is cohabiting with Ms W. That is a fact that must be taken into consideration pursuant to section 75(2)(m).
Mr Bacosa’s health is better than his wife’s. His capacity to earn and income is significantly greater than hers. He earns $65, 000.00 per annum. She has a much more modest income. Mr Bacosa can afford holidays, Ms Bacosa cannot. His standard of living remains unchanged since separation, Ms Bacosa’s has reduced, in that she can no longer afford holidays, and has access to much reduced income.
He is likely to continue to work for some years. He gave no evidence as to a date of retirement.
He has a significant accrued long service leave benefit the value if which he did not disclose. If he retired without using it, it presumably has a cash value.
He has accrued sick leave, the value if which he did not disclose.
He was not frank about his relationship with Ms W.
He did not provide frank disclosure as to his financial affairs.
He has a significant superannuation investment. Its value has grown by $14, 000.00 since separation however the majority of its value was accrued during the parties’ long marriage. The wife has no superannuation.
Neither party has the care or control of a child under the age of eighteen years.
The wife receives Centrelink payments, cash gifts from friends from time to time, and she provides [omitted] services for which she receives small payments. She did not disclose income other than her Centrelink benefit.
The parties’ lack of frankness and disclosure makes the adjustment process for s.75(2) factors more difficult.
If there is a superannuation splitting order made as contended on behalf of the husband the wife has reached her milestones, that is, she is over the age of 55 and is not working and as a consequence could access that superannuation. She does not want a superannuation splitting order. It is not mandatory to make such an order. If a splitting order was made as sought by the husband the wife could in all likelihood not afford a home. By not making an order to split superannuation the wife can retain the home, thereby giving her accommodation. The husband has accommodation, or can buy his own using as a deposit the cash payment to be ordered, or if he retires his superannuation.
It is submitted on behalf of the wife that there should be a further adjustment for her having regard to the decision in Kennon.[2] There is evidence of domestic violence during the course of the marriage that the wife suffered at the hands of the husband. On one occasion during the parties’ marriage the husband broke the wife’s jaw. There was another occasion of domestic violence giving rise to an Apprehended Violence Order Application. There is the husband’s evidence that he would from time to time verbally threaten “to clip her.” The wife, however, has not established a causal connection between this violence and the making of her contributions. She has not established that the violence made the making of her contributions more “onerous” [3]. She has led no evidence to quantify any additional medical costs nor has she established the violence “had a significant adverse impact upon [the wife’s] contribution to the marriage”.[4] No “additional weight”[5] will be attached to her contribution.
[2] Ibid.
[3] Ibid as per Baker J.
[4] Ibid as per Fogarty & Lindenmayer JJ.
[5] Ibid as per Baker J.
The wife last worked in 1991 or 1992. She continues to retain her skills as a [omitted]. She gave evidence of recent times she had done [omitted] work for family and friends who provided her with cash gifts or payment in recompense. She was a [omitted] at the commencement of the parties’ relationship. Her skills as such are undiminished. Her capacity to work for long periods on any one day given her spinal injury is more likely than not diminished. The extent of this diminution is not possible to determine as no evidence was led as to the percent of disability that she suffered from or as to the impact of the day to day symptoms on her ability to work.
Clearly her capacity to earn an income is significantly less than the husband’s. Section 75(2)(b) is relevant with respect to an adjustment to favour the wife.
The husband’s standard of living is higher than that of the wife’s.
She lives within the means of a small pension augmented by gifts and income from family and friends.
The husband is able to take holidays both within Australia and overseas. He does not need to be anywhere near as frugal as the wife. As a consequence section 75(2)(g) will be relevant.
Considering and balancing the various subparagraphs of s 75(2) a 13 percent adjustment in favour of the wife is appropriate. As a consequence the nett matrimonial pool of assets is to be divided as to 63% to the wife and 37% to the husband.
Pursuant to this adjustment:
·63% of the pool of assets totalling $610, 159.00 is $384, 400.00.
·37% of the pool of assets totalling $610, 159.99 is $225, 759.00.
If the wife retains the matrimonial home and her bank account, she will have assets with a value of $436, 645.00. She will therefore need to make a cash payment to the husband of $52, 245.00.
The husband would therefore have:
·Hyundai motor vehicle $3, 200.00.
·ING bank account $5,094.00.
·ANZ bank account $5, 923.00.
·Cash add back to the pool $17, 253.00.
·Superannuation $142, 044.00.
·Cash payment from the wife $52, 245.00.
·Total: $225, 759.00.
The wife will be allowed a period of time being 3 months to organise her “reverse mortgage” so as to pay the husband. If she fails to do so the house will be sold and machinery orders will be made to cause this.
Having regard to the above outcome, the property orders are just and equitable and no further adjustment for justice or equity will be made.
Spousal maintenance
In the last 12 months the wife’s savings have increased to $3,000.00. She asserts that this is as a result of friends helping her with gifts and payments for [omitted] work she has undertaken for them.
She undertook [omitted] work during the relationship. Despite her age and medical condition there is no evidence that she does not retain her capacity to do this work especially considering her admission that she has done some work of this type of nature for friends since separation.
Additionally she concedes having paid some of her legal fees by instalments from her own monetary resources garnered post separation.
The husband’s disclosed income and expenses are nearly equal. His ability to pay is limited. He was not challenged with respect to either.
The wife has been able to support herself adequately albeit she has needed to be more frugal and cautious than the husband. Her weekly expenses are quantified as $237.00. Her weekly income is less clear given she did not disclose the “gifts” from family and friends nor the income from [omitted]. This lack of disclosure causes me to conclude it was deliberate so as to maximise her application for spousal maintenance. Given this non disclosure I am satisfied that her income without her pension is likely to exceed her expenses.
As a result of the property orders the wife will have a home with a small but increasing mortgage due to it “reverse” nature. Her health enables her to work. She supports only herself. She has no superannuation.
The wife has, therefore, not made out a need for spousal maintenance.
No order for either lump sum or periodic maintenance will be made.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Date: 24 March 2011
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