Bailey and Bailey

[2015] FCCA 10

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAILEY & BAILEY [2015] FCCA 10

Catchwords:
FAMILY LAW – Property – consideration of limited information available and the veracity of the witnesses – long-term relationship and contributions by each party of a financial and non-financial nature – separation five years prior to trial and continued significant contribution by one party to the accommodation of the other party – just and equitable distribution in light of such contributions.

Legislation:  
Family Law Act 1975 (Cth), ss.79(4), 75(2), 79

AB & GB (No.2) [2005] FMCAfam 402
NHC & RCH (2004) FLC 93-204
Pastrikos and Pastrikos (1980) FLC 91-987
Whitely and Whitely (1996) FLC 92-684
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere  and Lee Steere (1985) FLC 91-626
Russell and Russell (1999) FLC 92-877

Applicant: MS BAILEY

Respondent: MR BAILEY

File Number: TVC 634 of 2012

Judgment of: Judge Coker

Hearing date: 31 July 2014

Date of Last Submission: 31 July 2014

Delivered at: Townsville

Delivered on: 13 January 2015

REPRESENTATION

Applicant: Appearing in person

Respondent: Appearing in person

ORDERS

1. That the property at Property [A], [A], in the State of Queensland, more particularly described as Lot [omitted], be sold and the Husband and Wife forthwith do all acts and things and sign all necessary documents to effect such sale and the sale be conducted in the following manner:

   (a)That the property be listed for sale by private treaty no more than 14 days from today with such agent as the parties may agree to appoint and in default of agreement as to agent, then with such agent as nominated by the Husband.

   (b)The sale price which the property shall be listed shall be mutually agreed upon between the parties, or in the absence of agreement, shall be the price nominated as the fair market value thereof by the real estate agent commissioned to sell the property.

   (c)The parties shall co-operate in every way with the agent including without limiting the generality of same:

   (i)allowing inspection of the property at all reasonable times as requested by the agent;

   (ii)doing or saying nothing to hinder or prevent the sale being effected;

   (iii)ensuring that the property, including the grounds, is in a neat and clean condition at all time of inspection by the agent and prospective purchasers.

   (iv)Signing all documents requested by the agents in relation to the listing for sale of the property.

2. Both parties shall each execute a contract of sale in a form prepared by the solicitors having the conduct of the sale or by the real estate agents if the parties agree to the agent preparing the contract, at a price agreed upon by the parties or in the absence of any agreement, at or above the price nominated by the agent pursuant to Order 1 (b) herein.

3. That upon completion of the sale, the proceeds of the sale are to be applied as follows:

   (a)The amount required to discharge mortgage number [omitted] in favour of the Commonwealth Bank of Australia and secured over the property at Property [A], [A];

   (b)To pay all costs, commissions and expenses of the sale including any real estate agents commission or fees and legal costs and to pay any council and water rates outstanding in respect of the property;

   (c)By payment of 60 percent of the balance to Wife; and

   (d)By payment of 40 percent of the balance to the Husband.

4. That in the event of the property being sold for an amount less than that required to pay all liabilities attaching to the property, then the parties shall be equally responsible for the payment of any shortfall.

5. That in the event of either party refusing or neglecting to sign within 48 hours of a written request to do so any documents or do any act necessary to effect the terms of these orders, the Registrar of this Court is hereby appointed to execute any such documents on behalf of the defaulting party and the party in default is ordered to pay all reasonable solicitor or own client costs incurred by the defaulting party.

6. Pending the sale of the former matrimonial home, the Wife shall have the right to continue to occupy the residence but shall vacate the property no less than 3 days prior to the settlement of any sale.

7. Pending the sale of the property pursuant to these Orders, the Husband shall be responsible for the payment of outgoings in relation to the property, including but not limited to, mortgage payments at such rate as may be agreed to by the bank including, if agreed, at an interest only rate, and any rates, taxes or other outgoings as may reasonably be required to be paid pending sale.

8. That the Wife reimburse to the Husband from any monies received pursuant to Order 3(c) herein, an amount equivalent to one half of the outgoings paid by the Husband pursuant to Order 7 herein.

9. That the Husband transfer to the Wife all of his right, title and interest in and to the Hundai Getz motor vehicle.

10. That the Husband retain responsibility for the payment of any liabilities attaching to the Hyundai Getz motor vehicle and indemnify the Wife in relation to that motor vehicle.

11. That the Wife transfer to the Husband all of her right, title and interest in 2009 Toyota RAV4 motor vehicle and the Husband indemnify the Wife in relation to any liability attaching to that vehicle.

12. That in accordance with Section 90MT(1)(a) of the Family Law Act 1975:

    (a)whenever a splittable payment becomes payable in respect of the Husband’s interest in [S] Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount, at the date of these Orders, in the sum on $25,000.00 and that there be a corresponding reduction to the entitlement the Husband would have had in the [S] Superannuation Fund but for this Order.

    (b)The Trustee of the [S] Superannuation Fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001;

    (c)These Orders bind the Trustee of the [S] Superannuation Fund and these Orders take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee, provided however that if the Trustee has not been afforded procedural fairness then the operative time be 28 days from the date of service of this order;

    (d)Each party and the Trustee have liberty to apply on seven (7) days written notice to the other parties in relation to the implementation of the Orders affecting the Husband’s interest in the said [S] Superannuation Fund.

13. That save as set out above, each party retain as their own property absolutely, all bank accounts, insurance policies, superannuation entitlements, furniture and contents, shares, personal effects or other assets currently in the possession, power or control of that party, which assets shall from the date of this order become the sole and absolute property of that party.

14. That save as set out above, each party shall be solely liable for any credit card, taxation liability or other personal debt standing to that party’s name as at the date of this order and shall indemnify the other in relation to same.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT TOWNSVILLE

TVC 634 of 2012

MS BAILEY

Applicant

And

MR BAILEY

Respondent

REASONS FOR JUDGMENT

INTRODUCTION AND APPLICATIONS:

1. On 14 June 2012, Ms Bailey, whom I shall refer to as “the Wife”, filed an Application in this court seeking orders in relation to property settlement.  The orders were comprehensive and dealt with issues including the payment of spousal maintenance, as well as the payment of various other sums of money that the Wife indicated would be required by her, so as to provide for herself, leading up to the sale of the former matrimonial home, situated at Property [A], [A].

2. The Wife then went on to put forward proposals in respect of the sale of that property and the arrangements to be into effect in that regard.  The Wife then detailed proposals in relation to the payment out of various liabilities and obligations attaching to the property, including legal costs and disbursements, the discharge of the mortgage outstanding to the Commonwealth Bank and then sought the division of property on the basis of 80 per cent/20 per cent in her favour. 

3. The Wife also sought various orders in relation to the execution of documents and an order pursuant to the provisions of section 106A of the Family Law Act, in the event of the Husband or she failing to execute documents. Additionally, the Wife sought the payment of a base amount of $25,000 out of the interest held in the Husband’s superannuation account and orders pursuant to section 90MT1(A) of the Family Law Act with regard to the splitting of superannuation.

4. The Wife sought orders, also, in relation to various chattel items including a 2009 model Toyota RAV4 motor vehicle and a 2008 Hyundai Getz motor vehicle.  The Wife sought, at that time, that the Husband retain the interest in the 2009 Toyota RAV4 motor vehicle which was in possession and that she retain all right, title and interest in and to the 2008 Hyundai Getz motor vehicle.

5. There were also, then, orders sought with regard to responsibilities in relation to payment of various liabilities and in that regard, the Wife proposed that the Husband be responsible for and indemnify the Wife in relation to the debt currently attaching to the Hyundai Getz motor vehicle, the payment of Commonwealth Bank credit card liabilities in joint names and the payment of personal loan accounts held in joint names. Finally, the Wife then proposed that each party retain, to the exclusion of the other, all furniture and other chattel items in their possession as at the time of any orders being made. 

6. The Husband responded to the Wife’s Application of 14 June 2012, quite some significant time later, on 8 February 2013.  The orders sought by him can be summarised as follows:

   ·That the property at Property [A], [A] in the State of Queensland be sold and the proceeds, after payment of all debts, be distributed to the Wife.

   ·That the Husband retain his interest in superannuation.

   ·That the Wife transfer her right, title and interest in the Toyota RAV4 to the Husband.

   ·That pending the sale of the matrimonial home, that the Husband be responsible for rates existing on the property, with the exception of water rates that shall be paid by the Wife and that until the matrimonial home was sold, that the Husband be responsible for all mortgage repayments and electricity expenses associated with the home and finally,

   ·That pending the sale of the home, the Husband be responsible for paying for the minimum monthly repayments on the personal loan and credit card debts owing. 

7. The Wife, at the commencement of the hearing of this matter, provided in a Case Outline filed on 22 July 2014, far more comprehensive details of the orders that she proposed in relation to property settlement.  The orders were some 10 pages in length and detailed what she sought.  Attached to these reasons and marked with the letter A is a copy of the final orders sought by the Wife. Quite simply however, they can be summarised as follows:

   (a)That the property at Property [A], [A] be sold and that the costs associated with sale be apportioned 25 per cent to the applicant and 75 per cent to the respondent, as and when such payments fall due.

   (b)That the property be listed for a sale price of $420,000 or higher, and if any such offer is received over and above $420,000, that it be accepted by the parties.

   (c)That the parties cooperate in relation to the sale of the property. 

   (d)That the proceeds of sale be utilised toward the payment of the mortgage, agent’s commission, payment of legal costs and outlays, and payment of any other municipal or water rates that might be outstanding as well as a repayment of moneys expended by each party and thereafter, a distribution of the remainder 95 per cent to the Wife and five per cent to the Husband.

   (e)Orders were then proposed with regard to the alternate arrangements in relation to sale, if not able to be effected earlier on and that, in the meantime, the applicant Wife have right of occupation of the home and that the Husband pay all instalments in relation to loan outgoings and other expenses associated with the property. 

   (f)That in the event of the property being sold for an amount less than that required to pay all liabilities attaching to the property, then, that the Husband is to be responsible for all such payments.

   (g)That the Husband pay the Wife $250 per week by way of spousal maintenance for a period of two years from the date of the orders.

   (h)That the Husband retain responsibility for the payment of any liabilities attaching to the Hyundai Getz motor vehicle and indemnify the Wife in relation to that motor vehicle and that the Husband sell the 2009 Toyota RAV4 motor vehicle and that the parties receive one-half of the value of sale.

   (i)That the parties incur no further debt in relation to joint accounts and that the Husband indemnify the Wife in relation to any amounts required to be paid in relation to those accounts.

   (j)That the Wife otherwise retain the Hyundai Getz motor vehicle, subject to the Husband’s liability to continue to maintain payments in relation to the vehicle and retain her interests in a South African retirement annuity plan, a Westpac Bank savings account and all furniture at the former matrimonial home and that the Husband retain any proceeds of the Commonwealth Bank of Australia account previously held.

   (k)Additionally, that there be a superannuation split of the Husband’s superannuation with a base amount fixed at $49,000 to be allocated to the Wife and for the Husband to retain the balance, estimated at approximately $6000.

   (l)That the Husband indemnify the Wife in respect of all liabilities to pay tax, including income tax, goods and services tax, capital gains tax, penalty taxes and other taxes or interest which may arise in respect of any future taxation returns lodged on behalf of the Husband and that the parties otherwise retain interest in property in their possession. 

8. The Husband did not file any outline in relation to the proceedings, but indicated that he was agreeable to a settlement which would require him to pay off the debt associated with the Wife’s retention of the Getz motor vehicle and further, that the Wife continue to have occupation of the home at [A] until December of 2015, with the Husband paying the rates attaching to the property and interest only payments in relation to the mortgage, up until the sale of the property at or before of December 2015.

THE EVIDENCE:

1. Both the Husband and the Wife were self-represented and, with respect, that led to a number of particular difficulties in relation to the proceedings.  Quite simply, whilst the Wife’s orders were extensive, they were also somewhat difficult to interpret, in that there appeared to be quite a deal of crossover with regard to what was proposed by the Wife.

2. More particularly, the distinct impression that I gained, was that the Wife’s attitude in relation to the proceedings, was one of entitlement and that it was the case that she simply required the Husband to be responsible for all and any liabilities attaching to property and that she have an opportunity to retain all property, or the vast bulk of property, without any consideration of the length of the marriage or, in fact, the contributions made by the Husband. 

3. There appeared, to be little incentive on the part of the Wife to settle, noting that the parties separated in 2009 and some five years later, there was still continued occupation by the Wife of the residence in [A] and continuing steps being taken by the Husband to make payments in relation to outgoings in respect of the property. 

4. Further, I gained the distinct impression that the Husband was, unfortunately, somewhat worn down by the proceedings before the court.  He simply wanted to have the matter at an end and whilst he indicated that he was hoping for some form of resolution in relation to the matter, he was willing to concede significant issues in favour of the Wife. For example, whilst he indicated that he was not in a position to pay spousal maintenance, he noted that he would continue to pay household mortgage payments, but at the rate of interest only. 

5. He also did not seek to retain the RAV4 motor vehicle, but rather to sell that vehicle and to pay off debt that the parties had, but also to use what proceeds might be received for the purposes of purchase of a motor vehicle for the parties’ daughter, [X].  [X] is aged 19 years and resides, at the present time, with the mother.

6. Since separation occurred in or about late December of 2009, the Husband has continued to make payments in relation to the property.  The Husband indicated that he did not consider the Wife’s proposal in relation to property settlement to be fair, for example. For example, a 95 per cent/5 per cent split in her favour, as well as the receipt of the vast bulk, if not virtually the entirety of superannuation entitlements. 

7. He proposed, rather, that there should be an 80/20 split of the proceeds of sale of the matrimonial home and an equal division of superannuation entitlements.  The Husband noted, in particular, that that arose from various payments made by him and the need for him to be, as he put it, reimbursed for work that had been done or payments that had been made because he did not, “work for free”.

8. I had the opportunity of seeing each of the parties in the witness box briefly.  It was an interesting experience.  The Wife sought to give an opening in relation to proceedings and I allowed her to do so.  She indicated what she wanted, which was virtually the entirety of the assets of the parties.  She emphasised that the Husband had not complied with orders to pay rates and that proceedings had begun in relation to recovery by the local council.  She also indicated that the Husband had drawn down from the home loan and that there was therefore no equity currently available to draw from.

9. The Husband’s position, however, was to emphasise that he had made payments on a regular basis, considerably in excess of the payments required pursuant to the loan obligations, and had then drawn down against them to make various other payments that were required to be made, including payments with regard to school fees for [X] and the like.

10. The Wife also, in her opening, emphasised that she had a medical condition that prevented her from performing significant manual labour and annexed to her trial affidavit was a letter or report under the hand of Dr V, making reference to the fact that the Wife suffers from rotator cuff tendinopathy in both shoulders as well as having, at least in the past, suffered from bilateral carpal tunnel syndrome, which was brought about as a result of doing heavy lifting work, but which has settled since she ceased performing such work.

11. The Wife also emphasised the fact that the Husband had a high income, referring to a taxable income last financial year, of $136,000. 

12. The Husband did not seek to cross-examine the Wife.  She was called for the purposes of confirming her employment, where she indicated that she worked part time as an [omitted] at the rate of about 10 to 15 hours per week and received approximately 400 to 450 dollars net per week.  The Husband noted that he generally accepted the Wife’s evidence in relation to the relationship and the like.

1. The Husband was then called.  He confirmed that he worked as a [omitted] and confirmed the short affidavit that he had filed with his response, in February of 2013.  The Wife then cross-examined the Husband, though not at great length.  She inquired as to what his income was for 2013/14 and he indicated that he was unable to say because his current fortnightly income depended on the hours that he worked, which could fluctuate between two days or seven days per week, dependent upon what work was required by his employer.

2. He indicated that he did not accept that he had drawn down an amount totalling almost $76,000 from the home loan account because, as indicated before, he had drawn the additional payments on occasions that had been made by him for the purposes of payment of rates, school fees, the Wife’s car expenses and the like.  He also acknowledged, when asked, that he had drawn $8700 from a personal loan account to clear other accounts and, as he noted, to pay [X]’s school trip in May.  He provided, he said, moneys for her to do those various things.

3. The Husband was questioned by the Wife about drawings from hotels and various amounts that had been taken by him and what they had been utilised for.  He indicated that there were occasions where he went to the pub to have a meal and that he drew moneys for the payment of such expenses and to have a few drinks.  He also was questioned as to why he had not paid in full, all expenses as ordered to be paid. He responded as he had done before, that he had simply not been able to do so on occasions where there was not enough work for him to have more than one or two days and, where there was not enough even to pay the house payments that he was making, he had to try and balance what he received with what he could pay.

4. The Husband was asked whether he had any assets that he had not disclosed and he indicated that the only thing that perhaps was not disclosed was any interest he had in tools of trade that were in his possession, though they would not be new items of equipment, and were simply required by him for the purposes of earning income. 

5. It was interesting that whilst the Husband was cross-examined by the Wife and he chose not to cross-examine her, I was far more impressed with the Husband than I was with the Wife. Quite frankly, the impression that I gained from the Wife in relation to this matter was that, as I have said, she had an attitude of entitlement and that she was the one who had done virtually all that was required during the marriage, having contributed financially and non-financially with respect to the care of children and that the Husband’s position was not to have, in any real or proper way, contributed to the assets accumulated by the parties. 

6. It, of course, failed to take into consideration that the marriage or relationship was a significant one.  They were together for a period of nearly 20 years.  Each worked. The Wife brought two children of a previous relationship into the marriage and the father adopted them and his unchallenged evidence in his short affidavit was that he had taken significant responsibilities with regard to the education of those children and of expenses paid. 

7. There was also little recognition by the Wife of the fact that the Husband was employed during the entirety of the relationship, and whilst the Wife suggested that the Husband’s employment, particularly in South Africa, had not been highly remunerative, it is difficult to accept that there was no contribution made by him and, of course, there is little evidence of what might have been the income earned by the Wife through various endeavours operated by her in South Africa.

8. Certainly, it appears clear that the Wife brought a significant amount into the relationship but I am certainly not inclined to the view that the Wife’s contributions so significantly outweighed the Husband’s contributions that they should not be given any weight in relation to entitlements. 

9. Obviously, there are difficulties that arise. The fact is that there is little information available with regard to the assets of the parties and it is necessary for the Court to make a number of assumptions in relation to the asset base and how arrangements might properly be made with regard to various payments and entitlements that the parties have. 

10. There is, for example, virtually no information as to the value of the property, nor is there any clear indication of liabilities attaching to the home at [A]. There is no clear evidence as to the entitlements that the Husband has in superannuation nor, in fact, are there clear indications of the Wife’s financial circumstances.  She makes reference in her material to property totalling $227,000 but that is comprised almost entirely of an assessment of the home valuation at $220,000.  There is also reference, of course, to limited superannuation entitlements, but again, there is little information provided in that regard or with respect to bank account or other entitlements.

11. The Wife, in her financial statement, indicates that she has a one-half responsibility in relation to the liability attaching to the home at [A] and places that at $180,000.  I make reference specifically to that sum because the Wife suggests that the liability at the time of filing her Application, June 2012, is $360,000 and then, in her outline, notes that the current liability attaching to the home is $332,828.19, a very specific notation, as at 15 July 2014.

12. It is noteworthy, therefore, that whilst there are suggestions of the Husband drawing down against the liability, there is in fact a reduction of nearly $28,000 in relation to what the Wife’s own evidence would indicate the liability was at the commencement of these proceedings.  I make reference to that particular point in relation to the matter specifically relating to the veracity and reliability of the evidence sought to be relied upon in relation to the proceedings.

13. Suffice it to say that I was far more impressed with the Husband in relation to these proceedings than the Wife, not in the sense of one party or the other being dishonest in relation to what might or might not have been the contributions made or the entitlements that either might have, but rather, simply from the perspective of the Husband having a more level and equitable position in relation to contributions and entitlements than might possibly be drawn from the position taken by the Wife, in relation to these proceedings.

14. Such assessments obviously become of significance in relation to the determination of the entitlements of each of the parties and I shall come to that in a little while. 

THE LAW:

1. I turn now, as I must, to a consideration of the issues of both the law and the application of the evidence to same. Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 provides that:

   The court shall not make an order under this section unless it is satisfied that in all the circumstances, it is just and equitable to make the order.

2. Section 79(4) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:

   (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 property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

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

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

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

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

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

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

3. The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos (1980) FLC 91-987; In the Marriage ofLee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage ofClauson (1995) FLC 92-595 and In the marriage of Whitely and Whitely (1996) FLC 92-684). The process ordinarily involves a multiple part procedure.

4. The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.

5. In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings is just and equitable (see section 79(2)). It is the justice and equity of the actual orders that the court must consider, Russell v Russell (1999) FLC 92-877.

6. The relationship between the husband and the wife has broken down irretrievably.  The parties clearly seek to sever their financial ties one with the other, though from the husband’s perspective at least, he says there should be some timeframe in place for there to be a sale of property rather than what might sometimes be referred to as “a fire sale”.  To not effect a financial settlement and a severing of the financial ties would be an unacceptable result and would not do justice and equity as between the parties.  I am satisfied that in all the circumstances it is not only just and equitable but essential that an order be made.

7. Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.

8. In the Marriage of Ferraro, the Full Court said:

   A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in s79 proceedings.  That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paras (a) to (c) of s79(4), and then to consider the matters in paras (d) to (g), more especially para (e) which takes up by reference the provisions of s75(2) and which are generally referred to as the “section 75(2) factors”.

9. It should be noted that the wife’s application sought a very significant apportionment of any property in her favour.  I will obviously address the issues of contribution, both financial and non-financial by the parties, during the discussion of this matter, but would also note that the wife sought some adjustment for what might be referred to as “a wastage argument” against the husband, or perhaps a failure to disclose fully and frankly all information with regard to his financial circumstances.  I would simply find in that regard that there is no basis upon which it could be considered that there has been wastage or deceitful actions on the part of the husband, and I am not satisfied that any adjustments of that nature are required. 

DISCUSSION:

1. The first of the four steps to be followed therefore is to ascertain as best one can, the property or assets of the parties.  Unfortunately, there is little information in that regard and certainly little of any real assistance in respect of the value of assets.  However, in light of the fact that there appears to be a general agreement that the principal asset, the property at Property [A], [A] is to be sold and orders are required which reflect how that is to be effected and the distribution of any equity, identification of the assets and valuation as best it can be done, is perhaps all that is required. 

2. The assets as best they can be identified are as follows:

   1.The home at Property [A], [A].

   2.The Hyundai Getz motor vehicle.

   3.The Toyota RAV4 motor vehicle.

   4.The wife’s South African Retirement Annuity Plan.

   5.The husband’s superannuation valued at approximately $50,000.

   6.Chattels and personal items in the possession of each party.

3. The best information as to the parties’ liabilities arises from the wife’s material indicating that the liability attaching to the home at Property [A], [A], is approximately $330,000. There is reference otherwise to liabilities attaching, for example, to the Hyundai Getz motor vehicle but there is no information as to what that liability might be.

4. It is of course impossible to specifically assess the value of the assets of the parties but in light of the need to sell the [A] property and clear debt, an appropriate and more particularly, just and equitable resolution can be reached through the making of orders which reflect entitlements of each party to a property distribution.

5. The second step is to assess the contributions of each of the parties, financially and non-financially, during the relationship and subsequent to separation.  The stance of the wife was determined in the extreme.  As I commented in relation to the evidence, the wife’s position was one of “entitlement”.  From her perspective, her contribution both financial and non-financial outweighed any contribution by the husband to the extent that she, for example, suggested that she was entitled to 95 percent of the equity, if any, in the home at [A], as well as 90 percent of the husband’s superannuation, the retention of the Hyundai motor vehicle without any responsibility for the continuing liabilities, the sale of the RAV4 motor vehicle and the equal distribution of the amount that might be received from the sale, and a payment of $250.00 per week by way of spouse maintenance for a period of two years. 

6. Quite literally, the wife wanted it all and saw the husband as having no entitlements to any real extent, but continuing obligations in respect of provision for the wife, not only with regard to provision of accommodation, but additional provision for spouse maintenance and other liabilities.

7. From the husband’s perspective, there was a conciliatory approach taken at all times, and I gained the distinct impression that the husband’s attitude was to accede to much if not all of what was sought by the wife, in order to enable him to simply end the relationship and walk away with some small provision for the future.  As I said in comments with regard to the evidence of the parties, my assessment was that the husband was willing to take a more level and equitable position in respect of a property settlement. 

8. The relationship was one of considerable duration.  In all, the parties were together for more than 20 years.  There were certainly some occasions where because of work or other commitments they lived separate and apart, but they did maintain a marital relationship, particularly in light of the fact that the husband when living apart from the wife, still forwarded monies to provide support for she and the family. 

9. The wife made an initial contribution of a financial nature to the relationship.  However, for the entirety of the relationship each contributed financially and non-financially to the needs of the household.  Whilst it may have been the case that there was an initial financial contribution, it was also clear that the husband contributed financial and non-financially to the wife’s children’s needs, they being children of a previous marriage and that is a factor that weighs significantly in favour of the husband.  Quite simply, both parties contributed to differing degrees and in different ways, both financially and non-financially, and whilst there may be an ebb and flow between each party’s contribution, it is difficult to find other than that it was a generally equal contribution.  I am satisfied that an appropriate starting point with regard to contribution during the relationship is 50:50.

10. The parties had been separated for five years.  During that time the wife has remained in occupation of the former matrimonial home and the husband has been primarily responsible for the payments that have been required to be made in relation to the property.  The suggestions made by the wife that the husband has failed to properly contribute or to meet obligations arising in relation to the property, and otherwise generally, fall flat, especially when one considers that the wife is the one who has remained in occupation of the residence, albeit with the responsibility for the care of the parties’ daughter, [X].  The husband has met his obligations and in fact provided support over and above what might necessarily have been expected, particularly when it is recognised that he has then had to otherwise provide himself with accommodation whilst meeting the general outgoings in respect of the wife’s continued occupation of the residence at [A].

11. Additionally, the wife’s suggestion to the fact that the husband has drawn down monies and therefore depleted the parties’ pool of resources available, fall flat when it is noted that between 2012 and 2014 the mortgage liability has reduced and the husband’s evidence, which I accept, is that he made payments greater than those which might be necessary and then drew down against those additional payments when he found it necessary to do so, and generally for purposes which provided assistance to the wife or [X].

12. I would specifically find that the husband has not wasted the parties’ assets, has not increased liabilities over and above what they would normally have been, and generally has contributed amounts which would be considered greater than what might otherwise have been ordered, especially in circumstances where the wife continued for more than five years to occupy the former matrimonial home and the husband met the obligations with regard to the mortgage, and to a significant degree, other outgoings relating to the property.  I would, generally, have considered that if anything an adjustment in relation to post-separation contribution would have been made in the husband’s favour, but in light of the husband’s stance in relation to this matter and it is conciliatory in the extreme, I do not intend to effect any adjustment with regard to contribution post-separation.

1. The prospective element of any consideration as to property settlement is dealt with by consideration of those matters that arise pursuant to the provisions of section 75(2) of the Family Law Act. Section 75(2) is in these terms:

   The matters to be so taken into account are:

   (a)  the age and state of health of each of the parties; and

   (b)  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)  whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)  commitments of each of the parties that are necessary to enable the party to support:

   (i)  himself or herself; and

   (ii)  a child or another person that the party has a duty to maintain; and

   (e)  the responsibilities of either party to support any other person; and

   (f)  subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)  any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)  where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)  the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

   (j)  the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)  the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)  the need to protect a party who wishes to continue that party’s role as a parent; and

   (m)  if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and

   (n)  the terms of any order made or proposed to be made under section 79 in relation to:

   (i)  the property of the parties; or

   (ii)  vested bankruptcy property in relation to a bankrupt party; and

   (naa)  the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)  a party to the marriage; or

   (ii)  a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

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

   (o)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)   the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)  the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

2. Of particular significance here are issues with regard to a disparity in future income-earning capacity and perhaps consideration of issues with regard to the health of both of the parties, though as I noted during the trial, there is no real evidence other than contentions contained within affidavits as to each party’s state of health.  There is also a need to consider the future responsibilities in relation to the parenting of [X], though it is noted that she is a child over the age of 18 years.  In that regard, however, I am satisfied on the limited evidence that has been provided that each party has provided support for [X] to a level commensurate with what would be appropriate and I do not consider that any adjustment in relation to her needs would arise. 

3. The major consideration therefore to look at with regard to any future adjustment of property entitlements relates to the disparity in future income-earning capacity.  The husband has skills and is able to utilise them.  He has had in the past highly remunerative employment and, whilst it is acknowledged that there are employment difficulties at the moment, it would be likely that remunerative employment would continue to be available to the husband and that that employment would be of greater value than what might be available to the wife.  I am satisfied that that particular factor should be considered and that it would provide for an adjustment of perhaps 10 percent in favour of the wife, noting the apparently limited extent of the assets available for distribution. 

4. In the circumstances, though as I have indicated it will be difficult to assess a distribution other than in a generalised way, I am satisfied that an appropriate distribution, in totality, would be upon an apportionment of 60 percent to the wife and 40 percent to the husband. I am satisfied that that reflects a just and equitable distribution between the parties. 

5. What is required then is to assess how that can properly be facilitated in light of the limited financial information available in respect of this matter.  As best I can assess, the appropriate means of effecting a settlement would be to order the sale forthwith of the home at Property [A], [A], and upon the payment of all liabilities attaching to the property, that the equity, if any, be distributed 60 percent in favour of the wife and 40 percent in favour of the husband.  I am further satisfied that the parties should share equally in the costs associated with the sale of the property, but that in the circumstances the husband should be initially responsible for any necessary outgoings, but to be reimbursed from any equity to be received by the wife.

6. Should the situation arise with respect to a liability remaining after the sale of the home, then and in that event, the parties should also be equally responsible for the payment of any shortfall. 

7. In light of the difficulties in assessing the husband’s superannuation entitlements and the wife’s retirement annuity plan, I am satisfied that the appropriate consideration of those aspects of the matter can be determined by ordering an equal division of the husband’s superannuation entitlements and a transfer to the wife of an amount equivalent to 50 percent of the husband’s superannuation.  However, as there appear to be a number of policies held by the husband, and some concerns as to what those policies might be worth, I intend simply to order that an amount of $25,000.00 be split from the husband’s [S] entitlements.

8. I intend also to order the transfer by the husband to the wife of all his right, title and interest in and to the Hyundai Getz motor vehicle, in the possession of the wife, and that the husband continue to effect the payments in relation to that vehicle until it is paid out, but that such payment be in lieu of any other spousal maintenance that may have been sought by the wife.  Additionally, I see no basis upon which it could or should be ordered that the 2009 Toyota RAV4 motor vehicle be sold but rather intend to order that the husband retain that vehicle and that the wife transfer to the husband all her right, title and interest in the vehicle, but that the husband indemnify the wife in relation to any liability attaching to the vehicle. 

9. Finally, noting that the property may take some time to sell, I intend to order as suggested by the husband, that he be responsible for interest payments in relation to the mortgage attaching to the [A] property but in light of the fact that the wife will continue in occupation of the property, that the wife be responsible for one half of those interest payments, again to be reimbursed to the husband from any entitlement that the wife might receive from the sale of the home.

10. Finally, and so as to avoid possible dispute as to the list price of the [A] property, I am satisfied that the home should be listed for sale with a real estate agent in [omitted] agreed to between the parties, and failing agreement as nominated by the husband.  Further, and again to avoid dispute, I intend also to order that the property be listed for  a price agreed by the parties and failing agreement as may be nominated by the agent commissioned to sell the property.  The wife is to facilitate all proper opportunity for inspection of the property and in the event of the agent providing evidence that the property is not being made available for marketing in an appropriate and proper manner, then that the husband have liberty to apply to seek orders with regard to the vacant possession of the property for the purposes of him facilitating sale.

11. The orders of the court are as outlined at the commencement of these reasons.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Coker

Associate: 

Date:  13 January 2015