Barr and Hodge
[2007] FMCAfam 522
•24 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARR & HODGE | [2007] FMCAfam 522 |
| FAMILY LAW – Property – significant capital contributions by the wife – significant post separation contributions by the wife – exclusive occupation. |
| Family Law Act 1975 (Cth), ss.75(2), 79 |
| Ferrero & Ferrero (1993) FLC 92-335 |
| Applicant: | MS BARR |
| Respondent: | MR HODGE |
| File number: | PAM1529 of 2006 |
| Judgment of: | Henderson FM |
| Hearing dates: | 27 and 28 June 2007, 2 July 2007 |
| Date of last submission: | 2 July 2007 |
| Delivered at: | Parramatta |
| Delivered on: | 24 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Obradovic |
| Solicitors for the Applicant: | Navarro & Associates |
| Respondent: | Appearing in person |
ORDERS
Within 21 days of today’s date the husband vacate the property, being the former matrimonial home at Property A, and give the wife exclusive occupation thereafter of that property.
The wife thereafter be appointed as trustee for sale of the property with sole discretion as to agents appointed to sell the property, the sale price of the property and solicitors to act on the sale.
The husband to do all acts and things necessary, give all necessary consents and sign all documents necessary to bring into effect orders 1 and 2 herein
Within three months of having received exclusive occupation of the property, the wife is to have the property placed on the market for sale at the best price reasonably obtainable with an agent of her choice, having notified the husband of the sale price, the agent she has chosen to market the property with and the solicitors to act on the sale.
From the sale proceeds the wife to do the following:-
(a)discharge the mortgage on the property;
(b)pay agents commission, the usual conveyancing adjustments and solicitor’s costs;
(c)pay to herself 80% of the balance;
(d)the remainder thereafter to be paid to the husband.
The husband forthwith sign all necessary documents and do all acts and things necessary to transfer to the wife the Hyundai motor vehicle, registration number Vxxx and registered in his name.
The wife do all acts and things and sign all necessary documents to transfer the Ford vehicle registered in her name and situate at the former matrimonial home to the husband upon the husband’s request in writing to the wife to do so.
Thereafter each party is entitled to retain all items in their possession or name including but not limited to superannuation, motor vehicles, money in any financial institution and all personal property.
The wife have liberty to re-list this matter on 48 hours notice in the event the husband fails to comply with any orders of this court including vacating the property or signing all or any necessary document to bring into effect orders 1, 2 and 3 herein.
IT IS NOTED that publication of this judgment under the pseudonym Barr & Hodge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1529 of 2006
| MS BARR |
Applicant
And
| MR HODGE |
Respondent
REASONS FOR JUDGMENT
The matter of Barr and Hodge was an application for final property orders filed by the wife. The matter was listed for hearing on 27 and
28 June 2007and proceeded to a third day of hearing. The matter concluded on 2 July 2007.
Ms Obradovic of Counsel represented the applicant wife and the husband was self represented.
Evidence
The evidence for the parties was as follows:
For the Applicant wife I read the following:
a)Amended Application filed 23 May 2007
b)Updated Financial Statement filed 23 May 2007
c)Affidavit filed 23 May 2007.
d)Affidavit of the wife’s solicitor, Adriana Ester Navarro, sworn 18 April 2007.
e)Affidavit of Mr R, a real estate agent from Axxx Realty, sworn 26 June 2007.
f)Affidavit of Mr M, a valuer who valued the former matrimonial home, sworn 26 June 2007.
I did not read the affidavit of Dr P or the affidavit of the wife’s mother. They were not necessary in the proceedings.
The wife tendered to me the following Exhibits:
a)Wife’s Exhibit 1: Loan account in the parties’ names at St George Bank dated 13 January 1999 showing the parties were in arrears of their mortgage as at that date.
b)Wife’s Exhibit 2: A search of the Maritime Database in relation to boats owned by the husband being a vessel known as S. That search revealed that the vessel known as E is not in registered in the husband’s name. I do not accept the wife’s assertion that the husband owns the E boat.
c)Wife’s Exhibit 3: A card the wife asserts is in the husband’s handwriting and was given to her by the husband for her birthday. The card has the words “To Ms Barr New car and me. What else do you need ay? Love Mr Hodge”.
d)Wife’s Exhibit 4: A letter from Axxx Realty dated 24 May 2006 in relation to the value of the home as appraised by them at that time.
e)Wife’s Exhibit 5: A bundle of documents from the St George Bank for the period 12 January 1999 up to November 2003, showing payments by the wife of the mortgage and other outgoings in relation to the property and family expenses.
f)Wife’s Exhibit 6: Tax Assessment for her income ending June 2003 and June 2004, together with a pay slip of 9 November 2004 and a pay slip of 31 January 2007.
g)Wife’s Exhibit 7: A letter from Dr P in relation to the wife’s thrombosis.
h)Wife’s Exhibit 8: A letter from Axxx Superannuation Board advising that as at 24 May 2007 the husband had no superannuation entitlement.
i)Wife’s Exhibit 9: Four pages of the documents produced under subpoena from Cxxx Hospital relating to the husband’s admission to hospital in July 2006.
The wife was examined and cross examined by the husband.
The wife’s Counsel tendered to me an outline of written submissions which were given to the husband at the conclusion of the case, together with a minute of orders sought by the wife.
For the Respondent husband I read the following:
a)Response filed 6 July 2006
b)Financial Statement filed 6 July 2006
c)Affidavit filed 6 July 2006.
The documents for the husband were prepared at a time that the husband was represented by Russell McLelland Brown Lawyers.
The husband tendered to me the following Exhibits:
a)Husband’s Exhibit 1: Bundle of photographs of work the husband asserts he did at the home showing the attractive gardens at the parties’ property and various walls built by the husband.
b)Husband’s Exhibit 2: The registration papers in respect of the Hyundai motor vehicle which the wife asserts is her motor vehicle although registered in the husband’s name, together with letters from the wife asking the husband to send documents to her so she can register the car, and a bundle of letters to the Roads and Traffic Authority in relation to the motor vehicle.
c)Husband’s Exhibit 3: A letter dated 25 June 2003 directed to the husband concerning a pay out of a loan in respect of the Hyundai motor vehicle.
d)Husband’s Exhibit 4: A letter dated 13 June 2003 verifying the husband received the sum of $25,273.75 from an Mxxx policy number which monies were deposited into his I account.
e)Husband’s Exhibit 5: A notice from Centrelink concerning the husband’s son, T’s, income in payments.
f)Husband’s Exhibit 6: Rediteller receipts obtained by him on 28 June 2007 showing the balance of his savings account of $7.76 and a credit card in debt of $10,631.00, and a mineral claim dated 21 June 2002 in the name of Mr H.
The husband was examined and cross examined.
The parties’ respective applications
The orders the husband seeks are simple. They are that:
a)The parties’ home be sold and that the proceeds of sale be divided equally between them;
b)I permit him six months, at least, to remain in the home to have the home readied for sale and to permit the sale to take place in an orderly fashion.
The wife, who is the Applicant, has a very different application. She seeks that:
a)I forthwith order the husband to vacate the property so that she can put the property back into a reasonably well maintained state so that the parties will maximise their sale price;
b)That the wife be solely responsible for the sale;
c)The proceeds of the sale be dispersed as follows:
i)To discharge the mortgage;
ii)In payment of the usual conveyancing and solicitor costs;
iii)The wife receive 90% of the balance of the proceeds of the sale and the remainder to the husband.
It is important that the history of this matter is documented correctly as there are significant factual disputes between these parties, not the least of which is the date of separation.
The husband asserts the parties separated in 2000 but continued to live under the one roof.
The wife asserts the parties did not finally separate until November 2004 when she left the matrimonial home and left the husband at the home.
The wife’s case is that she has made significant capital contributions over and above her income during the relationship and that her post separation contribution by way of paying the mortgage on the home and at times rates and taxes on the home is so significant that she ought to now receive the bulk of the net equity in the home.
The wife asserts her entitlement to a large percentage of the home is furthered supported by evidence that the husband has allowed the home to fall into a state of disrepair during his exclusive occupation of almost 3 years and thus diminish its value. This assertion is supported by the evidence of Mr M, valuer, and Mr R, real estate agent.
The wife says that the husband’s exclusive occupation of the home since separation has caused significant diminution in the property’s current value and that the wife has maintained the husband living in that home by way of making mortgage payments and other payments since separation .
The husband agrees that since the wife left the former matrimonial home she has made mortgage repayments on the property, but he asserts he has maintained the property and paid other outgoings
The husband’s son T lives with him in that home, as does a friend Ms C. Neither of those parties pay rent to the husband or the wife for occupation of the property.
The husband concedes that in October 2006 he withdrew his then current superannuation with Axxx and received the sum of $104,000. This was in direct contravention of orders entered into by consent between the parties on 7 July 2006 that he would not draw down on any superannuation. The husband says he has expended all the superannuation drawn down by him as at the hearing date.
Chronology
The wife was born in June 1953
The husband was born in October 1954.
In 1988 the parties meet. At that time the wife owned a property at Cxxx and vacant land at Oxxx. The husband owned a property at Bxxx with his then wife and the mother of his son T. The husband’s occupation was in the Mining Industry.
In 1988 the wife received $11,000 in a compensation payout for injuries sustained by her prior to meeting the husband.
In 1989 the wife asserts the parties first cohabitate for a period of 17 months in a rental property at Bxxx just down the road from the husband’s matrimonial property. The husband disputes this length of cohabitation but admits the parties co-habitated for some time.
In 1989 the husband and his then wife sell their property at Bxxx and the husband asserts he receives about $6,000 to $7,000 from that sale. As the evidence came out at the hearing I accept this is a correct estimate.
In 1991 the parties cease to cohabitate, but the wife asserts that they continued their relationship and, most importantly, their economic relationship with each other. The husband remained at Bxxx and the wife returned to her home at Cxxx.
In 1992 the wife commenced working for a University in Sydney and then V.
In 1992 the husband was involved in a significant motor vehicle accident and had 13 months off work.
In 1995 the wife sells her property at Oxxx and receives net $49,000.
In 1996 the parties purchase Property A, which home was purchased by way of a bridging loan and the wife asserts she contributed $11,000 being the balance of the sale proceeds of Oxxx.
The parties commence to live together again at Property A in 1996. Prior to that time the wife was living in a property at Cxxx and the husband in his rental accommodation at Bxxx.
The wife asserts that in 1996 she commenced making sole contributions towards the mortgage.
In 1997 the parties separate for a short period of two weeks then reconcile.
In 1998 the parties marry.
In 1998 the wife sells her property at Cxxx and nets $93,000 from that sale which sum she deposits into the mortgage account of Property A.
In November 2004 the parties separate. The husband remains living in the matrimonial home.
In 2006 the parties are divorced.
Wife’s financial contributions and evidence
The wife asserts that the parties initially cohabitated together for 17 months from 1 December 1989 at K Street Bxxx, and then later at
C Street, Bxxx, a property rented by the husband. The wife maintained her home at Cxxx which property she had received from her property settlement with her former husband.
In April 1991 the parties separated and she moved back to her home at Cxxx but the parties continued to have a relationship, stayed at each others home regularly, contributed to each other’s outgoings and expenses. The wife concedes the husband made an indirect contribution to the maintenance and renovation of her home at Cxxx. The husband with the assistance of the wife built a deck, painted rooms at the home and carried out other handyman work. The husband re-grouted some tiles and mowed the lawns and did gardening. The wife paid for the costs of materials. The parties spent weekends together at each of their homes or afternoons and assisted each other in the care of their children at times.
The wife admits there were a number of separations during their relationship, once in 1989 for a day and then for a week during that year, and for 2 weeks between July 1995 and 4 August 1995 when the wife went to the Northern Territory, and for six weeks in 1997.
The wife asserts that she and the husband lived together as man and wife from the time they moved into Property A in 1996. They had sexual relations, shared the same bedroom, cared for each other, maintained their homes, and paid joint bills up until separation in November 2004.
In late 1988 the wife asserts she gave the husband $5,000 from the $11,000 she received in October 1998 being a lump sum compensation payment. The husband agreed in cross examination that this was probably correct.
The wife sold her land in Oxxx in 1995 and received $49,000. The wife effectively spent that money in improving her home at Cxxx, on holidays for herself and the husband, gave some money to her children, and retained $11,000 in an interest bearing account.
The parties then determined to purchase a property in 1995/1996 at Property A for $210,000. The wife contributed $11,291.78 being the proceeds of sale of the land at Oxxx into the purchase of Property A. Otherwise, the property was purchased by way of a bridging loan.
The wife asserts that when she and the husband separated in 1997 for six weeks she maintained her half share of payment on the Property A property, but that the husband did not and the mortgage went into arrears. Wife’s Exhibit 1 indicates that the home loan was in arrears in 1999 however there are no documents in respect of 1997. The wife left the husband in 1997 due to his violence and poor behaviour and took out an AVO against him. However, the wife returned to live with the husband after 6 weeks.
The wife has continued to make all contributions towards the mortgage from 1996 and the husband conceded this was correct. The husband said this was their arrangement in that the wife paid the mortgage, he paid food and lifestyle costs and they jointly paid bills.
The wife asserts she paid all electricity bills, council rates, water rates and telephone bills during the relationship. The wife says the husband’s contribution to the property was payment by food and for outings, but otherwise the husband kept the income he earned and he spent it on what he wished which was sailing, his boats, motor bikes, cars, model train collection, model car collection, and alcohol.
Wife’s Exhibit 5 is some of her St George Bank account statements from 1999 to 2003. Those statements show a regular payment of $450 a week for the mortgage. The records also show the wife paying for pharmaceuticals, gas, electricity, telephone and rates, for food and the CGU Insurance in 2003.
The wife was earning around $750 in 1999 which over the years increased to around $950 per week. I accept the wife’s evidence that the remainder of her income after the mortgage payments was spent on family expenses and that she retained only a modest amount of her income for her own use.
I accept the wife’s evidence which was agreed by the husband that she has maintained the mortgage payments on the home since the home was purchased and that it was the husband’s task to make other payments. However, I also accept the wife’s assertion that the husband did not always keep his end of the arrangement as it is clear the wife also paid for food, electricity, rates, telephones and taxes.
There is no such clear documentary evidence from the husband regarding the expenditure of his income which I accept may have amounted to $100, 000 a year at times.
From the photographs attached to the wife’s affidavit it is clear that the home was in a well maintained and well cared for state at separation in November 2004. The gardens were immaculate. There were a number of well maintained roses and trees, the lawns were well maintained, the interior of the home was neat, clean and nicely decorated. There were many photographs attached to the wife’s affidavit of friends and relatives at the home enjoying the pristine swimming pool and the husbands and wife’s hospitality.
In one aspect I found the wife’s evidence difficult to accept as given. The wife did not give the husband much credit for his role in maintaining the home up to separation. I find that the wife could not have maintained the home to the high standard exhibited in her affidavit without considerable effort and involvement from the husband and that is the finding I will make.
It is clear from the photographs tendered by the wife and husband that much work was done on the home by the parties, and that the husband was quite skilled at manual labour. His skill saved the parties many thousands of dollars in not having to have tradesmen attend to the maintenance and renovation of the home.
The wife’s capital contribution of $93,000 from the sale of her Cxxx property in 1998 was of a significant assistance to these parties in reducing their mortgage and weekly repayments.
There is no doubt the husband had made some contribution to that sum of money in that he did assist the wife maintain the Cxxx home. However, his contribution would be extremely modest compared to the wife’s. Cxxx was a property owned by the wife prior to the marriage, the husband never lived in the home and his contribution is limited to maintenance and renovation work.
Similarly the $11,000 the wife put into the purchase of Property A clearly came from property owned by her prior to the relationship namely the Oxxx land to which the husband made no contribution.
This makes her capital contribution directly to the acquisition of properties in the vicinity of $104,000 during the time the parties lived in Property A up until 1998.
The third capital contribution made by the wife came in July 2001 when she received $30,000 from her brother’s estate. I accept the wife’s evidence that she spent the entirety of this money on the house including replacing the fence, purchasing a sand filter for the pool, a lounge, outdoor lights, plants, landscaping, electricity bills, bought boat gear for the husband’s boat “S”, paid off debts, upgraded items in the home such as the dishwasher etc. As at July 2001 both parties were working and earning income.
The husband was made redundant in May 1999 and he received in the vicinity of $70,000. The home mortgage was in arrears in the first half of 1999 as set out in Wife’s Exhibit 1. However the husband did not use any of his redundancy money to reduce the mortgage, but paid debts and purchased more motor vehicles and motor bikes. The husband purchased a motor bike for himself and the wife asserts this cost $20,000, but I find the cost was as asserted by the husband, being $15,000, which bike is still in his possession today. The parties went on a holiday which the husband paid for.
The husband commenced Gxxx Transport after he was made redundant. He bought a 12 pallet truck with some of the money from the redundancy. The husband told the wife the truck cost $14,000. The husband bought a computer and other office items which he said cost around $4,000 to $6,000. The wife asserts that the husband otherwise used that money for his own purposes and that she is unaware of the disposition of that money.
The husband became very ill in 2001 when he was diagnosed with an enlarged heart. His business ceased to trade and he was granted a disability pension in 2002. From that time onwards the parties’ relationship significantly deteriorated. The husband was not earning the income he had previously earned to support his lifestyle and the parties were relying on the wife’s income and his disability pension to support themselves.
The husband’s evidence is that there was always plenty of money until he fell ill in 2001. Until the husband fell ill he asserts the parties did not need to skimp on anything. That evidence is inconsistent with Wife’s Exhibit 1 which is a letter dated 13 January 1999 from St George Bank which makes it clear the parties were in default of their mortgage in January 1999 and thus there was not plenty of money around as the husband contends.
The husbands’ assertion and Exhibit 1 is further support for the wife’s evidence that it was she who made the mortgage and other necessary payments and that she had difficulty in getting money from the husband to assist her in maintaining the house payments. The husband could only maintain there was plenty of money around if he kept his money for his own purposes and relied on the wife to keep up the necessary family payments.
The wife left the matrimonial home in November 2004 and took very little with her. The husband has remained in the home since that time.
The wife asserts that the husband was violent to her during the relationship and hit her with an iron bar in 2003. I accept this violence occurred particularly after hearing the husband’s evidence on the issue. I do not accept the wife’s submission this violence made her role more difficult. The parties only lived together for one year after that event.
There are three issues of real concern in this matter:
a)Firstly, the significant deterioration in the value of home since the wife left due to neglect and a lack of maintenance supported by the affidavits of Mr M and Mr R.
b)Secondly, the significant capital contribution made by the wife to the assets of the marriage over and above her income during the marriage.
c)Thirdly, the wastage by the husband of significant funds received by him during the marriage being from his redundancy in 1999, cashing in of his Mxxx entitlement in June 2003 of $25,273 and contrary to orders made by consent in July 2006 cashing in and wasting of his superannuation entitlement of $104,000 since October 2006.
Affidavit of Mr M
Mr M is a property valuer who gave evidence by telephone. He was retained by the wife and cross examined by the husband.
The husband filed no evidence of valuation in these proceedings.
Mr M’s evidence and valuation of the property was as follows:
Land Value $210,000
Improvement $90,3000
$300,000
This assessment relates to the existing condition of the property.
Mr M went on to say at paragraph 7 of his report:
Expenditure of $40,000 to $50,000 would result in a possible sale at $400,000 to $420,000.
Mr M was unable to access the interior of the home despite repeated requests to the husband by Ms Navarro the wife’s solicitor, repeated requests by Mr R, Real Estate Agent for access and requests by Mr M himself. Mr M relied upon Mr R’s description of the internal condition of the home. Mr R had been able to inspect the inside of the home on 27 March 2007and has filed an affidavit in the wife’s case.
The husband did not co-operate at all with any request for Mr M to inspect the property internally and he was able to have a visual inspection of the exterior of the property only. That evidence became clear from Mr Hodge’s cross examination which only served to highlight the difficulties Mr Hodge put in the way of anyone coming to inspect the inside of the home.
Mr M describes the property as thus:
(The home) is a double storey, brick veneer home of about 248 m2 inclusive of front verandah.
Mr M was told that the ground floor was comprised of a front verandah, entry hall, lounge room, dining room, kitchen/family room, rumpus room, outdoor living (skillion - metal clad), laundry with shower and toilet, and a study. Upstairs were four bedrooms, an ensuite, a bathroom and a toilet. Other improvements included a double hardiplank garage, skillion lean-to at front of garage, fibreglass pool, colorbond fencing, concrete drive and paths.
Mr M said in oral evidence Mr R told him that the interior was in poor condition and was commensurate with the exterior condition which was described in Mr M’ report as follows.
· Grounds are over grown with rubbish, car bodies, and car parts strewn over the whole of the property.
· Guttering and downpipes are rusted out.
· Roof is covered with moss.
· Pool is black with algae and dirt.
· Property has been badly neglected.
Mr M accepted from Mr Hodge that moss on the tiles was only a cosmetic matter and did not affect the value.
Mr M attached photographs of his inspection of the property in May 2007 along with photographs he had received from the wife of the property just prior to separation. The photographs of the property just prior to separation were accepted by the husband as true and correct depictions of his property at that time. It is difficult to describe in words the beautiful condition of the home and garden in early 2003 and at separation in 2004 and its condition today.
The condition of the property when seen by Mr M was nothing short of a disgrace. There were three cars parked on the grass; there are two or three other cars in the driveway; there is a truck out the front of the house; there is rubbish throughout the grounds of the property; there is a fridge outside; there are tins, boxes, pipes piled up next to a shed . The pool is a green swamp. The husband’s oral evidence was that the pool had not been cleaned since the wife left in November 2004; there is a bare area which in evidence, the husband said was a chook pen, which is scattered with debris and cut down trees. There are 50 or more push bikes piled up against the back fence which the husband said in evidence were his son T’s bikes. The lawn and gardens are overgrown with weeds and many plants appear dead. This is in stark contrast to the condition of the home when the parties lived together.
Mr M went on to say in his report that the home is practicably unsaleable in its present condition without at minimum a removal of rubbish , car parts and bodies from the yard.
Affidavit of Mr R
Mr R swore an affidavit on 26 June 2007. It is clear when Mr Hodge cross examined Mr R that they were well acquainted. Mr R was appointed in conjunction with M Real Estate to sell the property. Orders were made by me in February 2007 that the property be placed on the market for sale and that the property be sold. Little has happened in that regard, and for reasons which I will refer to later, I find the fault for this to be solely at the feet of the husband.
Mr R has been trying since his inspection in March 2007 to enter the property and has written to the wife’s solicitor on three occasions in relation to inspections by prospective purchasers and the valuer and his failed attempts to contact the husband directly.
Mr R attached a letter he wrote to the wife’s solicitor after his inspection on 27 March 2007 where he described the property as thus:
We have now with Mr M of M Real Estate inspected the property and our findings are:
1. The property does not present its self as being the best to see.
2. There is a lot of “stuff” around both inside and outside.
3. The yard could do with a good clean up.
4. The inside of the house has a lot of personal belongings all around and through out the house.
5. The pool needs a cleaning, as does all the gardens.
6. There is a water leak in the ceiling upstairs coming from the sky light which has badly damaged the inside ceiling.
Mr R gives a value, in that letter, of between $330,000 and $360,000. Mr R estimates some $40-50,000 would be needed to be spent on the property to get it up to scratch. Photographs were attached.
Mr R’s letter also says “Mr Hodge has stated that he is not going to be doing anything at all to the property”. Indeed, that is precisely the finding I have made in this matter.
On 23 May 2007 Mr R wrote another letter to Navarro & Associates updating them on the progress of the sale. A contract for sale was received by them on 4 May 2007 and they had endeavoured to contact Mr Hodge to organise photos and keys for access. Mr Hodge rang them on 18 May 2007 saying he had been away but that they could see the home on 21 May 2007. On 21 May 2007 Mr R attempted to contact Mr Hodge but to no avail. Mr R said he had an appointment with Mr Hodge and the valuer on 25 May 2007 at 12 noon however they were denied access on this occasion. Mr R confirmed in oral evidence that the events described in his letter had occurred. Mr Hodge also agreed with the series of events described by Mr R.
The third letter from Mr R sent to the wife’s solicitors, dated 29 May 2007, concerned Mr Hodge’s lack of cooperation in allowing any inspections of the home.
Mr R concludes the letter by saying:
We will continue to endeavour to get the property inspected but do not hold much hope in getting access. As Trained Professionals, we would also need to be conducting the Inspections with the prospective purchasers in order to do a proper job. To be assessing the people and conveying the right information to the parties that is relevant to them.
In the body of his affidavit, Mr R says:
Mr Hodge has not allowed inspection by any prospective purchasers since the property was listed for sale in late February 2007.
Mr R said in his oral evidence he had had 2 possible purchasers in the past but had been unable to get access for them and just told them to drive by and has not heard back from them. Various appointments as set out in his letters to Miss Navarro’s’ office had been put off, he cannot get in contact with anyone at the home no matter whether he tries to do so by telephone or personal attendance . Mr R said he has had 2 inspections of the home in May 2006 and March 2007 but has been otherwise unsuccessful in gaining internal access.
Mr R described the condition of the home from his inspection in March 2007 as follows ,:
a) The whole house is cluttered with boxes and bags,
b) There is a distinct odour, unpleasant and pungent,
c) Paint on the handrails of the stairway is chipped and needs sanding and repainting,
d) The ceiling is collapsed from a water leak above the stairway,
e) The bath is in need of cleaning as there is a black body of scum built up,
f) There is mildew in the shower,
g) There is a build up of dust around the skirting boards,
h) The son’s bedroom: unable to open door due to build up of belongings, with stuff left on the floor,
i) There are decorative panes on the windows missing,
j) There are rodents, we stood on a dead mouse which looked like it had been there for a while,
k) It is not possible to walk straight into the lounge from the hallway, as there are too many boxes and other times covering the floor and piled up, preventing direct access,
l) It seemed like very little or any house cleaning has been done for a long time, the kitchen benches are full of stuff, dirty dishes, etc,
m) There are piles of clothes and papers on chairs, on tables, etc,
n) The guttering on the outside rear of the house has been taken off
o) The pool area is green black with mould around it and dirt.
In my opinion, the property can be sold the way it is but the vendors would not get the best value for it.
Mr R was asked whether Mr Hodge gave him a reason for not allowing access for the valuer and prospective purchase. He replied. “Mr Hodge said I was not working for him and I was working against him. That is why I couldn’t get in”.
In cross examination, the husband put it to Mr R that Ms C’s mother had had an operation at around the time he sought access for the valuer and that was Mr Hodge’s reason for not making the home available. Mr R could not comment. In any event as Ms C is not the husband’s de facto she has no part in the proceedings and this issue is of no relevance.
In cross examination Mr R confirmed he had seen the property on 24 May 2006 and had told Mr Hodge at that time that he needed a new ceiling, needed to correct the guttering, clean up the yard, and that that the home needed to be cleaned up inside and the pool cleaned . Mr R‘s evidence was that the home was in much the same state in May 2006 as it was in March 2007. There was little change to the condition of in the property.
Mr Hodge said whilst cross-examining Mr R that he had received an offer to purchase the home for $412,000. Mr Hodge had not let this offer be made known to Mr R or the wife and I reject that evidence. It was made up on the run.
Mr R was asked what he required to be able to market the property to the best of his ability. He said he would really like to have a key to the home but, if he could not have that, he would like to have specific viewing times and the ability to ring up and make a viewing time by appointment. He would like the home to be clean and tidy as first impressions are very important.
He further said the arrangement he had with Mr Hodge that he could contact him and get access at any time has just not come to fruition on any occasion. Mr Hodge has refused to give Mr R a key, make specific appointment viewing times or any inspection times at all.
Mr R said that the things that needed to be done to get this home into a fit state for sale were follows:
a)Personal items removed and the home to be uncluttered.
b)Good access to all rooms
c)A good thorough clean
d)Repair the roof and the water leak
e)Whilst the home could get away without a repaint, the floor coverings certainly need replacing.
The husband’s financial contributions and evidence
When the husband was cross examining the wife and her witnesses he, at times, tended to give his own evidence.
The husband put to the wife that he earned $100,000 per annum. The wife said she knew very little about his income as he kept most of his money to himself. The wife agreed that the husband did pay for holidays, food and outings at times, and that he did a fair amount of work around the house at Cxxx but that she paid for all the materials.
The husband conceded in his cross examination of the wife that the wife had made the mortgage repayments on the Property A property which continues today.
The wife agreed that the husband fixed cars and fixed other things around the home, but that she paid for the electricity bills, phone bills, water rates, council rates, septic tanks. The husband paid for food, the wife paid for contents and house insurance.
The husband then said to the wife “Well where did all my money go?” The wife said “I don’t know, you spent it”. The wife admitted that the husband discharged the loan on the Hyundai motor vehicle from his Mxxx payout which payout he asserted was about $8,000.
The husband asserted the date of separation was 2000 under the one roof which the wife denied. The husband could not shake the wife in cross examination and she was adamant the parties separated finally when she left the home in November 2004.
The husband admitted that he and the wife have had a lot of verbal fights but denied physically harming the wife.
The husband was adamant that he and Ms C were not a de facto couple but merely shared the home.
The husband asserted that once he paid out the loan on the Hyundai of $8,000 the remainder of the money from Mxxx was paid into the home, on holidays and paying off debts. The husband said when cross examining the wife that he received $120,000 from his redundancy, not $70,000 as the wife asserted and that all this money was paid into the household. In his oral evidence he conceded he probably received $70,000 as the wife asserted and that his memory of dates times and amounts was not really very good.
I accept the husband’s evidence that his memory of dates, times and amounts is not very good and thus in the absence of the husband supplying a supporting document, where there is a contest, the wife’s evidence must be preferred to that of the husband.
The husband denied that the parties’ commenced cohabitation in 1988 and, in his oral evidence, maintained that the parties only commenced cohabitation in 1996 when they purchased their property at Property A. The husband admitted in his affidavit that the parties commenced a relationship in 1988 and that the applicant and her son moved into his property at Bxxx in 1989. The husband then asserted that the parties had an off and on relationship for six years and were seeing other people during that period of time and they did not live together again until they purchased Property A.
However, despite this claim that the parties were only friends the husband asserts in his affidavit and orally that he did substantial work to the wife’s property at Cxxx: mowing the lawns, replacing and repairing the rear deck, roof repairs, painting the house throughout on two occasions, re-doing the plumbing, re-grouting the bathroom, fixing appliances and fixing the kitchen. In oral evidence the husband’s recollection of these activities and contributions were much more limited than as described in his affidavit.
The husband also asserted he paid for the materials required to do the work and that he and the wife discussed selling the Cxxx property in 1996. Yet the husband maintained that the parties were not living together and did not have an economic, co-dependent relationship. I found the husband’s evidence on this issue unconvincing. I accept the submission of the wife that it is simply inconsistent with the husband’s evidence of the work he asserts he did in Cxxx, that he and the wife were not in a relationship of economic co-dependence at that time and I accept the wife’s evidence that the parties have had a relationship of economic co-dependence and have co-habitated since 1989 until separation in 2004.
In his oral evidence the husband listed his current assets and described his working life. He said he had been working in the Mining Industry for 30 years, had earned good money, and had had a good social life whilst he was working and that there was always plenty of money.
The husband still owns a one third share in the S boat worth about $2,000. The other owners are his son T and a friend of the husband.
The husband owns an old Jaguar worth $1,000, a 1970s tip truck valued at $1,000, a motor bike worth now between $6,000 and $8,000 purchased for $15,000 in 1999 when he was made redundant , a car and train collection which he owned prior to 1986, a BMW motor bike worth $500 to $1,000, and a Yamaha bike worth $1,000.
Regarding the E boat, the husband’s evidence was that the boat had been offered to him but he did not accept it. The husband asserts that he does not have an opal mine and I accept the husband’s evidence on that issue and the E boat.
In his oral evidence, the husband asserted that the wife’s estimate of the husband receiving about $70,000 net from his redundancy was probably about right and that as part of the redundancy he had sold some BHP shares which he had obtained through his employment and used that money to purchase the motor bike.
The husband was then asked what he did with the remaining $55,000 from the $70,000 he received. He stated he had purchased his truck for $20,000 and $4,000 to $6,000 had been spent on other bits and pieces to set up the business Gxxx Transport including purchasing a computer; he had replaced an engine in a car for $5,000, purchased solar heating for the swimming pool and pumps for $4,000, the parties went on a cruise and the rest of the money went into the house.
The husband agreed he ceased trading as Gxxx Transport in 2002 due to his ill health.
In October / November 2006 in contravention of the orders made by me in July 2006 the husband cashed in his superannuation with Axxx and received $104,000. The husband’s evidence as to his reasons for so doing was as follows. He said he was aware the orders had been made restraining him from cashing in his superannuation. The superannuation was his, he had it long before he met the wife and he needed the money.
The husband told the Court he spent the money as follows :
a)Paid out $10,000 on his credit card which is currently in debit of $10,000.
b)Bought a car for $4,000 which no longer runs or is registered.
c)Bought a tip truck for $2,000, which is unregistered, for his son.
d)He gambled $50,000.
e)He lent $5,000 to friends.
f)He paid his mother $5,000.
g)Spent $10,000 on alternative medicine treatment for his serious and significant health problems including diabetes, hypertension, and gross overweight. The husband considered gastric banding but had spent all the money. The husband further said his health is as good now as it will ever be.
The husband asserted he has paid the water rates and the power bill on the house since separation but produced no receipts for even one account he said he has paid. He admitted the wife has paid council rates since separation.
The husband agreed that he managed his own money during the marriage and that he and the wife had separate accounts. Neither had access to the other’s money. The husband said he paid about $500 a week towards food and the household during co-habitation. This is a similar sum to that which the wife paid towards the mortgage. However the wife paid electricity bills, phone bill, rates, and taxes in addition which is supported by Wife’s Exhibit 5.
The wife agreed with the husband’s evidence that he purchased motor vehicles during the marriage; including the Hyundai and that he paid the monthly loan repayments on that car from his income.
The husband asserted that whilst they lived together at Property A, they shared in maintaining the inside and outside of the home but that he did all painting, pool maintenance, gardening, attending to the roses, landscaping, mowed the lawns, maintained the cars and did the majority of the cooking and shopping. He asserted that they shared the washing and ironing and that the wife did the cleaning.
In relation to the wife’s property at Cxxx, the husband said he did the following:
a)Paid for things like bolts and nails that he needed to used to repair things.
b)Put a clothes drier in.
c)Totally rebuilt the deck.
d)Put a chook pen out the back.
e)Fixed some leaky taps.
The husband claimed that the Cxxx property needed quite a lot of work and said that home was in much the same state as the parties home is now.
The husband maintained that one of wife’s children lived with them for some time which is true. However the husband’s son T also lived with them for a period of time. The husband admitted that he had no idea what the wife did with the proceeds of the sale of her property at Oxxx and conceded that she probably did put it into the Property A property. He conceded it was possible he asked the wife for money in 1988, and that it was possible she gave him $5,000. The husband stated that he netted approximately $6,000 to $7,000 from his property settlement with T’s mother which sum is admitted by the wife.
The husband said very little has changed financially with him since he filed his statement of financial circumstances in July 2006 other than his cashing in of his super.
When pressed on his evidence of gambling $50,000 or more of his superannuation in 2006 the husband said he spent $30,000 in one day gambling on the Melbourne Cup in 2006. Otherwise he used poker machines. The husband said:
When I found out I was going to loose the house, then I gambled thinking I could make money. No one wants to lend an unemployed person money. I had no ability to borrow. And she wasn’t going to get the money.
The husband was pressed as to why he did not just pay off the mortgage on the matrimonial home. The mortgage was about $108,000 at the time he received his superannuation payout of $104,000. The husband replied that that would not do him any good:
There was no point. I was going to loose it anyway.
The consent orders of 7 July 2006 also provided that the husband was to give the wife access to the property at Property A for valuation purposes. The husband has only permitted the interior of the home to be inspected once by Mr R, the real estate agent since the orders were made and would not permit inspection of the property for the wife’s valuer Mr M. The husband has not complied with his obligations under the 7 July 2006 consent orders in at least 2 respects. He has cashed in and spent his superannuation and has denied inspection of the property as requested by the wife.
Orders were made by me on 17 February 2007 that the husband and wife do all acts and things to sell the home at Property A. It is clear from the evidence of Mr R that the husband has failed to comply with those orders as well. Part of the necessary actions of the occupier of a property when a property is to be sold is to give the Agent and prospective purchaser’s access to the property and permit inspections. .The husband said in evidence that he has complied with the orders of 17 February 2007. It is clear he has not.
Much was made that Ms C was the husband’s de facto. Nothing turns on this point. Whether she is or she is not is not a matter I need to decide. Ms C has no income or resources; she is disabled and is not an economic resource for the husband.
The husband agreed the property was not in the tip top condition it used to be. He agreed that the photographs in the wife’s affidavit depicted the condition of the home prior to separation and also depicted the home in its current condition. The husband said he never thought of spending any of the $104,000 from his superannuation on maintaining the home or getting it back into tip top condition.
The husband said another reason he did not use his superannuation to discharge the mortgage was because he admitted he was upset in late 2001/ early 2002 as he did not think the wife was looking after him as well as she should have, and that he was not going to pay the mortgage outright because he did not want the wife to get the benefit of his money.
The husband would not admit the parties were in arrears of their mortgage in January 1999 as demonstrated by Wife’s Exhibit 1. He asserted that they always had plenty of money. It may be true that the husband had plenty of money as he was not paying his full share of the cost of running the household and that he left that task to the wife as she asserts. The wife had a more limited income than the husband. The arrears accrued after the wife had paid $93,000 from the sale of her Cxxx property into the mortgage in 1998 and is further evidence to support the wife’s case that she paid the bulk of the outgoings on the home including the mortgage and that apart from purchasing food the husband spent his income as he saw fit.
The husband gave evidence that he worked hard, that he worked on the boat S and that he spent money on the boat. This is exactly what the wife said. That the husband spent money as he chose and as he determined was appropriate and left her to manage the home finances.
The husband’s oral evidence in support of paragraph 43 of his affidavit that he received $60,000 to $70,000 for a broken wrist in 1992 by way of compensation for a work related injury, when the injury occurred and when he returned to work, was completely unsatisfactory. The husband said he had his accident in 1989/1990 and got his money in 1992. He then admitted after some cross examination that it was probably was not a lump sum but that it came in “dribs and drabs”. The wife said he had a work related injury in 1992 and that all he received was his back pay and some medical expenses. On this issue the wife’s evidence is preferred. I do not accept the husband received a lump sum of $60,000 to $70,000 in 1992. The husband had no documentary evidence or recollection of these events. The husband said:
Don’t ask me dates or times when I last worked. I can’t remember those things but I know I did them.
The husband maintained the parties separated in 2000 but continued to live under the one roof. However he complained bitterly that the wife did not care for him when he became ill in late 2001 such that she would not make him lunch or a cup of tea even when she returned home at lunch time to check on him. That evidence supports the wife’s assertion that the parties did not separate under the one roof and continued to live together until physical separation in November 2004 and were living together as man and wife in late 2001 early 2002. If the parties were separated then why was the husband so bitter that the wife would not care for him and why would the wife come home at lunch time to check on him if they were separated?
The husband sent the wife a Valentine Card in 2001, a year after he asserts the parties separated. In 2004 the husband wrote “Happy 15th” on a card he wrote to the wife along with a particularly unique drawing by him. The wife attached to her affidavit many love messages, cards, and notes of affection from the husband to her for the period of 1988 to 2004. I accept each of those cards and letters are expressions of endearment from the husband to the wife and are completely inconsistent with the husband’s oral evidence of separation under the one roof from 2000.
I reject the husbands’ evidence on the date of separation. I find the wife did care for the husband when he was ill and that without the wife’s income and assistance the husband’s health would not have recovered to any level, let alone the level to which it has recovered today.
The wife asserts the Hyundai motor vehicle which she has possession of was a gift to her from the husband for her 50th birthday in 2003. The husband denies this assertion as the vehicle is registered in his name. I accept the wife’s evidence that the Hyundai motor vehicle was a gift to her from the husband and I will make orders that it be transferred into her name. Wife’s Exhibit 3 is a birthday card from the husband to the wife which reads:
To Ms Barr new car & me what else do you need ay, love Mr Hodge
The husband gave evidence he gave the wife many cards over the years. He never signs cards Mr Hodge, but with initials BL followed by a picture of an eye, which he said is for Captain Bligh. That may be correct however, his name is Mr Hodge and it does the husband no good to deny he bought that car for her birthday.
I accept the husband’s evidence that he made monthly payments for the car and the balloon payment to pay off the loan in June 2003 from his redundancy payment as set out in husband’s exhibit 3.
The husband denied that he knew the wife wanted the Hyundai car transferred to her until he read her affidavit filed 23 May 2007. That evidence is completely inconsistent with the pleadings. The husband sought an order in his Response filed July 2006 that the car be returned to him and in the wife’s affidavit of 30 March 2006, at paragraph 40, she asserted the car was hers. The husbands’ oral evidence to me demonstrates the husband was not being truthful to the court.
The husband has done absolutely nothing to produce documents to this court to assist his case or the court to make findings in relation to which parties’ evidence is to be preferred.
The husband said he has never received any affidavits, applications or financial statements by mail or by any other means including when he was represented. According to him he has never received any filed document and the Court has made copies of documents available to him on each occasion he has come to Court. I do not accept that evidence. This evidence is merely the husband justifying his failure to respond appropriately to the wife’s application and bring financial documents to Court for inspection.
When the husband said he had never received the wife’s affidavit of
30 March 2006, a series of questions were asked of him including why it was that he filed a Response and an affidavit on 6 July 2006. It was put to the husband that had he not read the wife’s affidavit it would not have been responded to. Reluctantly the husband had to agree that perhaps he had read that affidavit but claimed that he could not remember anything of it.
It is clear from the husband’s own evidence that he first became ill in late 2001. The husband maintained that the serious deterioration of the home has come about due to his ill health. However, his ill health was far worse in 2001 than it is today according to the husband’s own evidence.
Secondly from the photographs annexed to the wife’s affidavit showing the condition of the home in 2003 and 2004 the husband and wife were clearly able to maintain the home to a high standard despite his illness. The husband’s evidence on this point is most difficult to reconcile with the facts. I do not accept that the significant deterioration of the home during the husbands’ occupation has come about solely due to his ill health. The husband has given up maintaining the home as he did not want the wife to get any benefit from his effort which is the same motive he gave in his wasting of the $104,000 superannuation he cashed in and spent since October 2006.
The husband has just given up the ghost since separation, and has taken an attitude, which is unfortunately common, that as the wife left him he can remain in the home and let the home deteriorate as he sees fit. This is most distressing when one compares, the well maintained and lovingly maintained home the parties had created prior to separation.
I do not accept the husband’s evidence on any issue of contest between him and the wife. I am not confident that the husband will abide by any order the Court may make as he has flagrantly flouted the orders of 7 July 2006 and 17 February 2007. The husband failed to give the Court any reason why he would now comply with orders made by the court in the future having failed to do so in the past.
Exclusive occupation
The wife’s seeks exclusive occupation of the property for the purposes of the sale. That application is irresistible on the evidence. The husband has been in sole occupation of the property since November 2004, has failed to maintain the property in good order or condition, has not made any mortgage payments or contributions towards the mortgage since separation, has not permitted the wife’s valuers to attend the property for the purpose of valuation or permit agents to bring people to the property for purposes of sale of the property, consequent upon orders made in July 2006 and February 2007.
The only way this property will be sold is if the wife takes total control of the sale, determines whether she will or will not repair the property prior to sale, and liaises with the agents of her choice permitting inspections and the like. The husband has no intention of assisting in the orderly sale of the home. He has frustrated the wife at every turn in this regard. The husband’s intention became clear from his evidence, his conduct of the proceedings, and the attitude he has taken. He said in oral evidence “the wife left why should she get it?”
The husband could not concede that if the boot was on the other foot, and he had been paying the mortgage, the wife had let the home fall into disrepair and made no attempt to co-operate in an orderly sale, that it would have been just and equitable for the wife to vacate the home and that he be made responsible for the sale. The husband has frustrated the wife on every occasion in her attempts to have this home sold and had disobeyed at least three court orders in relation to permitting inspection, not drawing down superannuation, and doing all acts and things necessary to cause the property to be sold. The husband has had his opportunity to co-operate and has not done so and I find he will continue to frustrate the wife receiving her share of the proceeds of sale.
The wife’s application for exclusive occupation must succeed and I will make an order that the husband vacate the home within 21 days. If the husband does not vacate the home in accordance with this order, I will give the wife liberty to re-list this matter before me on 48 hours notice in relation to enforcement. It was made clear to the husband on the last day of the hearing that the court has the power to order him to vacate the home and for the court to order an enforcement of that order by way of him being evicted forcibly from the home if that becomes necessary. I informed the husband that when he left the court he should start the process of finding another place to live as it was an inevitability that the home would be sold in the near future.
Having determined the wife will have exclusive occupation of the home pending sale, I will also give the wife exclusive conduct of this sale. I have complete confidence that she will have this home brought up to a level where the sale price can be maximised and that she will ensure that she and the husband will obtain the best price reasonably obtainable having regard to the significant deterioration of the home since the husband has remained in sole occupation .
The law
The husband was taken through the assets and liabilities as asserted by the wife and agreement was reached as follows.
ASSETS Matrimonial home if cleaned and repaired $390,000 Hyundai $3,000 Ford vehicle $1,000 Mr Hodge’s Furniture – estimated $955 Yamaha motor bike $8,000 Suzuki 1100 Tourer $500 Suzuki motor scooter given away by the husband $100 Second hand BMW Police Bike $1,000 Jaguar $1,000 S boat $2,000 Cars, trains, bikes collection Unable to be valued Garage full of tools $500 Wife’s shares $564 Wife’s Superannuation $34,650
In his response filed 6 July 2006 the husband sought an order that he receive 60% of the wife’s superannuation. This was at a time when the husband had $104,000 in his Axxx superannuation account. I will not make a splitting order although the husband sought such an order for reasons that will follow.
There is a total asset pool of $409,159 and in addition the wife’s superannuation of $34,650.
This is a property application. I am required under the law to take a four-stage approach under s.79 of the Family Law Act 1975 (Ferrero & Ferrero (1993) FLC 92-335).
The first stage is to identify the matrimonial property, its value and nature.
The second stage is to assess the value of the parties' contributions expressed as a percentage of the value of their assets to the acquisition, maintenance, conversation and renovation of their matrimonial property, having regard to the factors under s.79(1)(a), (b) and (c).
a)Section 79 (1) (a) is an assessment of the parties direct financial contribution.
b)Section 79 (1)(b) is an assessment of the indirect contribution and
c)Section 79(1)(c) is an assessment of the value of each parties' contribution as a parent and homemaker during the marriage.
The third stage under s.79(4)(e) is to determine whether, having regard to the factors under s.75(2), I ought vary the assessed percentage entitlement of either party to take into account their future needs
The fourth stage is to look back at the consequences of the proposed orders to determine if they are just and equitable in all the circumstances.
Findings made in relation to contributions by the parties
I accept the wife’s evidence that she gave the husband $5,000 of monies she received by way of compensation claim in 1989.
I accept the wife contributed $11,000 to the purchase of the property at Property A on the sale of land at Oxxx owned by her before the relationship.
I am satisfied that the wife has contributed $93,000 being the net proceeds of the sale of her Cxxx property, however, I accept that the husband had made some contribution to the end value of that property by upkeep and renovation . I would asses that contribution to be no more then 1%.
I accept the wife’s evidence that she contributed her inheritance of $30,000 from her brother’s estate to the matrimonial property and on family expenses.
I accept that the husband paid out the Hyundai loan of $8,000 from the $23,000 payout of his Mxxx superannuation in 2003.
I accept the husband’s evidence that some of the $70,000 redundancy money he obtained when he left his employment in 1999 was used for family purposes such as a holiday, and doing work around the home. However I am not satisfied that the entirety of that amount was expended by him on matrimonial expenses. Significant moneys were expended in setting up Gxxx Transport business, which business failed some three years later in 2003. However the husband earned money from that business which was in part used for matrimonial purposes. The wife also has some share in the redundancy money as some part of that redundancy entitlement accrued during the relationship of 15 years. I would asses her contribution to that redundancy payment at no more than 1%.
In relation to the husband’s assertion that he received $60,000 from a payout from a motor vehicle accident in 1992, I reject that assertion. There is simply no evidence to support that the husband was paid that sum of money, and any monies paid to him would have been by way of wages foregone due to his being unable to work for some 13 months.
I find that the husband has spent $104,000 of his superannuation benefit, which was in large part accrued during the relationship. It would appear that such monies were expended for his own purposes, and not on the maintenance or renovation of the former matrimonial home and has wasted that asset.
Looking at the matters under section 79(4)(a). I must asses the financial contribution made directly or indirectly by a party to the marriage to the acquisition conservation or improvement of any of the property of the parties. I find that the parties contributed their income towards the maintenance of the home, the outgoings of the home, and family expenses. The mere fact the wife paid the mortgage does not diminish the fact that the husband paid for the food during the marriage. Each of those expenses needed to be paid by the parties.
However, the wife has made two categories of superior direct financial contributions over and above the husband. The first is her capital injection of $144,000 (a total of Cxxx Property, Oxxx Property, brothers inheritance ) to the assets and her payment of many household expenses such as electricity, telephone, rates and taxes in addition to the mortgage during the relationship over and above those paid by the husband.
I find that on a direct financial contribution basis the wife’s contribution over and above the husband’s to be 15%.
In relation to indirect contributions, under section 70(1) (b), I find that the partiers made similar contributions to the maintenance of the home and that the home was a well maintained and cared for home up until separation in 2004. I reject the wife’s assertion that the husband did virtually nothing around the home. The wife could not have maintained the home to that level it was maintained without significant assistance from the husband. Therefore, I make no adjustment up to separation.
Post separation, however, the husband has had the benefit of occupation of the home and the home has seriously deteriorated both in appearance and in value due to his neglect.
In relation to section 79(1)(c) the parties contribution as parent and homemaker I find both parties had a child or children live with them at various times. I see no difference in their role as parent and homemaker during this marriage, and I accept the husband’s assertion that he did most of the cooking, it was something he loved to do, the parties had many parties with family and friends and I find their contribution to be equal.
In relation to section 79 (4)(d), that is, the s.75(2) factors, I find that neither party is in good health. The husband does not work and has been on a disability pension since 2002 and that will continue. The wife, to her credit, does work. Therefore, in one sense, whilst the wife has significant health issues they have not seriously diminished her capacity to work and the husband’s s.75(2) factors are greater than the wife’s. I will allow the husband 5% for that factor.
What I must now address is the post separation contribution made by the wife to the matrimonial home, over and above her contribution during the marriage. The wife’s post separation contribution has been significant. She has continued to pay the mortgage on the home and has paid council rates and water rates on most occasions. This has allowed the husband to remain in the home, have his son live with him, and his friend Ms C. In return the husband has ensured that the home has fallen into a state of disrepair, he has not allowed people to attend the property for the purposes of inspection or for the purposes of sale.
I find the wife’s post separation contributions to be significant and I allow her 10%.
This then gives the wife a 70% entitlement to the matrimonial property. There is also her superannuation to consider. The husband wasted $104,000 superannuation in 6 months in circumstances where the wife had an entitlement to part of that money perhaps approaching 50%. In those circumstances I will not make a splitting order of the wife’s superannuation in favour of the husband. The wife is still disadvantaged by the husbands’ actions in relation to his superannuation
The fourth stage is whether these orders are just and equitable in all the circumstances.
A significant factor weighing on my mind in this matter is that I have now given the wife exclusive occupation of the home and total control of the sale as trustee. The wife will be required to spend money to have the property brought up to standard such as repairing the roof, having rubbish removed from the garden and the garden put in some state of repair, re-carpeting of the home. This will also require significant energy and effort on her part.
In the circumstances of the husband wasting $104,000 of his superannuation and the wife’s effort and cost in having the home prepared for sale which may on the evidence amount to $40,000 to $50,000 I will further adjust the wife’s entitlement by a further 10%.on the basis of justice and equity
This results in the wife receiving 80% of the net proceeds of sale and her superannuation and the husband 20%. I am unable to assess the precise money each party will receive as the likely sale price is unknown. I will make an order the parties keep the assets in their name or possession other than as I have determined by these orders which for the husband is cars and motor bikes worth in excess of $12,000 on his own evidence. I find that these orders are orders that are just and equitable in all the circumstances.
Therefore, I make orders in accordance with those as set out at the commencement of this judgment
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: D.Ferreira
Date: 24 July 2007
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