Blackwell and Trantor
[2014] FCCA 1667
•30 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLACKWELL & TRANTOR | [2014] FCCA 1667 |
| Catchwords: FAMILY LAW – Property – application for settlement of matrimonial property – assessment of the asset pool – contributions of the parties – consideration of factors under Family Law Act 1975 (Cth), s.75(2) – whether any adjustment should be made – where parties had consented to an interim property order – asset pool – whether amounts should be added back – waste. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 80 |
| Cases cited: AJO & GRO [2005] FamCA 195 Clauson & Clauson (1995) 18 Fam LR 693; FLC 92-595 Ferraro & Ferraro (1993) 16 Fam LR 1; FLC 92-335 G & G [2006] FamCA 877 Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143 Kowaliw & Kowaliw (1981) FLC 91-092 McLay & McLay (1996) 20 Fam LR 239; FLC 92-667 AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134; FLC 93-218 Polito & Polito [2009] FMCAfam 511 Stanford v Stanford [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518 |
| Applicant: | MR BLACKWELL |
| Respondent: | MS TRANTOR |
| File Number: | SYC 2006 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 9-10 May, 11 October 2013 |
| Date of Last Submission: | 11 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Clifton |
| Solicitors for the Applicant: | Miles Holt |
| Counsel for the Respondent: | Ms McMahon |
| Solicitors for the Respondent: | Jack Rigg Solicitors |
ORDERS
The Respondent Wife is to pay to the Applicant Husband by way of settlement of property the sum of $113,908.00 within three (3) months of the date of this Order.
THE COURT NOTES THAT the Respondent has previously paid to the Applicant the sum of $45,000.00 in accordance with an Order under s.80(1)(b) of the Family Law Act 1975 made by consent on 8 August 2012.
The Respondent is declared to be solely entitled to the real property situate at and known as Property A in the State of New South Wales.
The Applicant is to do all things and sign all documents as may be necessary to transfer the registration of the Mazda motor car registered number (omitted) into the name of the wife within one (1) month of the date of this Order.
The Respondent is declared to be solely entitled to the said Mazda motor car registered number (omitted) to the exclusion of the Applicant.
The Applicant is declared to be solely entitled to Mercedes Benz motor car registered number (omitted) to the exclusion of the Applicant subject to his indemnifying the Respondent and keeping her indemnified against any debt currently owing in respect of the said motor car.
The Applicant and the Respondent are otherwise declared to be solely entitled to all property possessed by them or registered in their sole name including but not limited to shares, bank accounts and superannuation funds.
The Applicant and the Respondent are to indemnify each other and keep other indemnified against debts standing solely in their respective names.
In default of the Respondent paying the said sum of $113,908.00 to the Applicant within three (3) months of the date of these Orders then the Respondent must do all acts and things and execute all deeds, documents and instruments necessary to cause the real property situate at and known as Property A in the State of New South Wales to be sold at a price to be agreed between the parties and failing agreement at a price to be determined by the President of the Real Estate Institute of New South Wales or his or her nominee and that in order to give effect to this Order:
(a)The Respondent is to have the authority to conduct the sale of the property including appointing a real estate agent or agents to conduct the sale and appointing a solicitor to act for the vendor in relation to the sale;
(b)The sale is to be either by private treaty or by public auction and that the method of sale is to be determined by the Respondent;
(c)The following amounts are to be paid out and disbursed by the Respondent from the proceeds of sale in the following priority:
(i)All costs, expenses, advertising fees, commission and disbursements of the agent or auctioneer conducting the sale;
(ii)The costs and fees of any solicitor acting for the vendor in respect of the sale;
(iii)All sums necessary to discharge any mortgage, encumbrance or charge registered against or secured against the title of the said property;
(iv)All municipal and water rates including any arrears relating to the said property;
(v)The amount of $113,908.00 payable to the Applicant under Order 1 above TOGETHER WITH interest at the rate prescribed by Rule 22.01 on all of the said amount that remains unpaid on a date three (3) months from the date of this Order until the date of payment; and
(vi)The balance to the Respondent.
The Applicant and the Respondent are to do all acts and things and give all consents and sign all documents and execute all deeds or instruments necessary to give effect to these Orders.
If either party refuses or neglects to execute any deed or instrument or sign any document necessary to give effect to these Orders then the Registrar or a Deputy Registrar of this Court is appointed under the provisions of Section 106A of the Family Law Act 1975 to execute the deed or instrument or sign the document in the name of the person who refused or neglected to execute the deed or instrument or sign the document and to do all acts and things necessary to give validity and operation to the deed or instrument or document.
If either party seeks an order for costs that party must file and serve an Application in a Case and an affidavit setting out the amount of costs and disbursements claimed and the basis upon which those costs are claimed within one (1) month from the date of this Order.
IT IS NOTED that publication of this judgment under the pseudonym Blackwell & Trantor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2006 of 2012
| MR BLACKWELL |
Applicant
And
| MS TRANTOR |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for orders for adjustment of property between the Applicant Husband and the Respondent Wife. The Application was initially heard over two days, on 9th and 10th May 2013, but re-opened on the application of the Husband on 12th August 2013. Further evidence was heard on 11th October 2013 and further submissions were made by counsel for the parties.
The Husband, by way of a document headed Case Summary Applicant Husband handed up in Court on 10th May 2013 seeks orders that:
a)The Wife should pay him the sum of $291,250.00 by way of settlement of property; and
b)That the Wife be declared the sole owner of the property at Property A subject to her assuming responsibility for the mortgage over the property.
The Wife, in a document headed Respondent Wife’s Outline of Submissions handed up by her counsel on the first day of the hearing, seeks orders that:
a)Within 2 calendar months, the Respondent Wife pay to the Husband by way of settlement under s.79 of the Family Law Act 1975 (Cth) the further sum of $74,939.00 (noting that the Husband has already been paid the sum of $45,000.00 on an interim basis);
b)In default of the Wife making the above payment, she is to do all acts and things necessary to submit the property at Property A for sale and pay the amount due to the Husband out of the net proceeds of sale;
c)The Husband is to transfer to the Wife ownership and registration of a Mazda motor vehicle registration number (omitted); and
d)The parties otherwise be declared the owner of all property in their respective name or possession.
Background
The Husband was born in (country omitted) on (omitted) 1952.
The Wife was born in Australia on (omitted) 1963.
The parties commenced living together in (omitted) 1998.
The parties were married on (omitted) 2001. They have since divorced.
There are no children of the marriage. The Wife has two children from her previous marriage, both of whom are adults.
The Husband commenced employment as (occupation omitted) of (employer omitted) equipment in (omitted), New South Wales, in August 2000.
The matrimonial home at Property A was purchased for $348,000.00. The parties paid a deposit of $127,000.00 and secured the balance of the purchase price with a mortgage of $257,000.00.
On 4th December 2006 the Husband purchased a new Mazda motor car for $32,243.00 subject to a lease.
The mortgage over the matrimonial home was paid out on 22nd February 2010.
The parties separated on 5th August 2011 but remained living under the one roof in the Property A property.
The Husband paid out the “balloon” payment of $5,500.00 on the Mazda motor car in November 2011.
Procedural History
The Husband commenced proceedings on 5th April 2012 by filing an Application for both interim and final property orders, supported by an affidavit and a Financial Statement. The Application was returnable on 21st May 2012.
The Wife filed a Response, and affidavit and a Financial Statement on 18th May 2012.
On 4th June 2012 the parties were directed to attend a Conciliation Conference with a Registrar of the Court. The Conference took place on 18th June but no settlement was reached.
On 19th July 2012 the Husband filed an Application in a Case supported by an affidavit sworn the day before. In that application he sought an order for sole use and occupation of the former matrimonial home or, in the alternative, that the Wife should pay to him the amount of $500.00 per week until final orders were made.
On his affidavit the Husband described an altercation which he said had taken place between the wife and himself on 13th July 2012. The Application in a Case was returnable on 6th August.
On 6th August 2012 the Application for final orders was listed for final hearing on 9th and 10th May 2013. The Application in a Case was adjourned until 8th August.
On 8th August 2012, the parties entered into Interim Consent Orders providing that:
1. Pursuant to s. 80(1)(b) that the Court Orders the periodic sum of $5,000.00 from the Wife to the Husband commencing on Friday 17th August 2012 and continuing each and every month on the 17th day of each month until 17 April 2013.
2. In order to facilitate this Order that the payment be made by way of Electronic Funds Transfer from the Wife to the bank account nominated by the Husband.
3. That these Orders constitute part payment of the sum proposed by the Wife in her final orders, (number 1) in her Amended Response dated 2 July 2012. As such, all payments made shall be taken into account in the final property orders.
4. For the duration of the payments the Wife to have sole occupancy of the former matrimonial home property known as Property A.
The final hearing took place on 9th and 10th May 2013. The Husband and Wife gave oral evidence. The Husband was recalled on 10th May to give further evidence.
Counsel for the parties prepared written submissions. The Submissions by Counsel for the Applicant Husband that were received on 27th May 2013. The Submissions on behalf of the Respondent Wife were filed on 20th June 2013.
However, on 25th July 2013 the Husband filed an Application in a Case returnable on 6th August 2013, seeking leave to reopen the proceedings. The Application was supported by an affidavit sworn on 22nd July 2013, in which the Husband deposed that he had been informed by his employer at a staff meeting on 12th July that the company had been sold and that he and the other employees would be unemployed in about ten weeks’ time.
On 12th August 2013 the application to reopen the case was granted and the Applicant was given leave to read his affidavit of 22nd July 2013. The Application was listed for further hearing on 11th October 2013.
On 11th October 2013 the hearing recommenced. The Applicant was cross-examined by Ms McMahon of Counsel. The Respondent was not required for cross-examination.
The evidence was closed and Counsel for the parties made oral submissions.
The proper approach to determination of a property application
The way a court approaches a property application under s.79 of the Family Law Act 1975 (Cth), is, first of all, to follow the principles set out by the High Court of Australia in Stanford v Stanford.[1]First, the Court must consider the requirement in subsection 79(2) of the Act that prescribes:
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.
[1] [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518
The High Court held that the Court must first identify the existing legal and equitable interests of the parties in the property (at [37]). Although s.79 confers a broad power on a court to make a property settlement order, “it is not a power that it to be exercised according to an unguided judicial discretion” (at [38]).
The third principle, and perhaps the most important, is:
…whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial contributions) set out in s.79(4).[2]
[2] [2012] HCA 52 at [40]
Thus, the decision in Stanford means that the Court must consider the requirements of s.79(2) before embarking on the four-step process set out in Hickey & Hickey[3].
[3] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a Court when determining a property application:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties …and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters…including…the matters referred to in s.75(2) so far as they are relevant…Fourthly, the Court should…resolve what order is just and equitable in all the circumstances of the case.[4]
[4] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143 at [39] per Nicholson CJ, Ellis & O’Ryan JJ
It is neither contradictory nor redundant to consider again whether a proposed order is just and equitable under s.79(2), because the Court is considering the matter after having undertaken the three previous steps referred to in the decision.
Evidence and Submissions
The Husband relied on the following documents:
a)his affidavit of 5th April 2012;
b)his affidavit of 18th July 2012;
c)his affidavit of 29th April 2013;
d)his affidavit of 25th September 2013; and
e)his Financial Statement filed 29th April 2013.
The Wife relied upon the following documents:
a)her affidavit of 17th May 2012;
b)her affidavit of 3rd August 2012;
c)her affidavit of 30th April 2013;
d)the affidavit of her father, Mr S, of 29th April 2013; and
e)her Financial Statement of 17th May 2012.
The Husband gave oral evidence on 9th and 10th May 2013, and again on 11th October 2013.
The Wife gave oral evidence on 9th and 10th May 2013.
Mr S was not required for cross-examination.
My impression of the Husband, taken from my notes made on 9th May 2013, was that he was not an impressive witness. His answers in cross-examination by Ms McMahon of counsel (who appeared for the Wife) were confused and evasive. It was apparent from his cross-examination on 9th May 2013 that there was a discrepancy between his affidavits of 5th April 2012 and 29th April 2013. On one occasion he said that he wrote cheques for $70,000.00 but was not sure if they went to the Respondent; he admitted that he did not know where the money went.
Similarly, when the Husband was cross-examined by Ms McMahon about his Financial Statement his answers were such that his Financial Statement was clearly unreliable and was therefore discredited.
By comparison, my notes of the cross-examination of the Wife by Ms Clifton of counsel (who appeared for the Husband) on 9th May were that her evidence sounded genuine. When her cross-examination resumed on 10th May 2013, my contemporaneous notes were that the Wife was a much more plausible witness than the Husband and her answers had the “ring of truth” about them.
Submissions
Counsel for the Husband submitted that the matters in issue between the parties were:
a)The extent of the parties’ initial contributions;
b)The issue of financial loss in the marriage;
c)The extent of direct contributions and contributions to conservation of the matrimonial home made during the marriage;
d)Contributions to superannuation funds both during the marriage and after separation;
e)Whether the initial imbalance in the contributions has been eroded;
f)The credibility of the Wife – whether there has been a windfall;
g)The weight to be attributed to s.75(2) issues; and
h)If a further adjustment is required to produce a just and equitable result.
Ms Clifton referred the Court to the decisions of Ferraro & Ferraro[5] and McLay & McLay[6]as to the steps that the Court should take when dealing with applications under s.79 of the Family Law Act. In my view, with respect, those decisions that suggested that the correct to be followed was to undertake a “three steps” approach no longer represent authorities that should be followed. Those decisions have been overtaken first by the decision in Hickey[7]as modified by the decision of the High Court in Stanford.[8]
[5] (1993) 16 Fam LR 1; FLC 92-335
[6] (1996) 20 Fam LR 239; FLC 92-667
[7] supra
[8] supra
It was submitted that the Husband’s initial contribution was $78,669.00 in 1998 as savings in 1998 invested as shares in a company called (omitted) together with a further $7,000.00, making a total of approximately $85,000.00. The Wife’s total initial contribution amounted to $134,315.00.
It was conceded that of the Husband’s initial contribution, an amount of $75,914.00 was a financial loss. The Husband’s company, (business omitted), never entered voluntary administration or liquidation but, rather, was a business venture that had not been successful.
The submission is that this was a financial loss that was to be shared equally between the parties (see Kowaliw & Kowaliw[9]) and there was no evidence of “waste” due to gambling, drug or alcohol addictions (see Polito & Polito[10]
[9] (1981) FLC 91-092
[10] [2009] FMCAfam 511
The marriage can be characterised as a medium term relationship, from 1998 to 2011, of some 13 years and could not be described as a short marriage (G & G[11]). The Husband’s contributions during the term of the marriage diminished the weight of the Wife’s initial contribution.
[11] [2006] FamCA 877)
It was submitted that the s.75(2) factors favour the Husband. He is now unemployed and receives a Centrelink pension which was to start in January 2014. He has a debt of $3,000.00 and ongoing payments of $700.00 a month. He has a negative equity in his car.
By comparison, it was submitted, the Wife is living in the former matrimonial home, which is now unencumbered. Her car is unencumbered.
The Husband seeks an amount of $340,000.00 together with the $45,000.00 he has already received as a result of the earlier interim orders.
At the end of the submissions, Ms Clifton tendered in evidence without objection an updated balance sheet, showing a gross asset pool of $1,209,406.00 less liabilities of $46,710.00, leaving a net asset pool of $1,162,706.00.
It was submitted by Ms McMahon for the Wife that the Husband had incurred expenditure which should properly be added back into the property pool. She submitted that the Full Court of the Family Court in AJO & GRO[12] had identified three categories of expenditure which could notionally be added back into the asset pool, including where one of the parties has embarked on a course of conduct designed to reduce or minimise the effective value or worth of the matrimonial assets.
[12] AJO & GRO [2005] FamCA 195;
The Wife contends that the Husband has wasted financial resources since separation and that these should be added back to the asset pool. These wasted resources are in respect of Internet dating sites and extravagant meals out with his “dates”. The Husband was taken in detail through his credit card statements. The Husband conceded that he had used many Internet dating sites including (omitted), (omitted) and (omitted). The sum total is in the region of $17,000.00.
This, it was submitted, was not inconsequential spending by the Husband and had the effect of diminishing the asset pool. The Husband had stopped voluntarily contribution to his superannuation fund in or around the middle of 2012. Also, during late 2011 and 2012 the Husband was still living with the wife and not contribution to the household expenses.
It was further submitted that paying money to Internet dating sites and taking women out to dinner are certainly not activities to which the wife should be expected to contribute. Thus, the Court should find that the Husband’s spending on these items was in fact wastage and the sum should be added back into the asset pool.
The Husband also claimed to have incurred the sum of $19,500.00 by way of legal fees, which should be added back.
Just and Equitable
The parties in this matter have separated permanently, in circumstances of some acrimony. They were not divorced at the time of the hearing, but a divorce order was subsequently made by this Court on 8th July 2014. It was clear at the time of the hearing that the marriage was at an end. It is equally clear on the evidence that there are matters that need to be resolved between them.
I am satisfied that it would be just and equitable to make orders resolving the property matters between the parties under s.79 of the Family Law Act. I note that there has already been an interim property order by consent under s.80 of the Act, whereby the Wife agreed to pay to the Husband the sum of $45,000.00 by monthly instalments of $5,000.00.
The Property and Liabilities of the Parties
Counsel for the Wife provided a balance sheet with her submissions on 20th June 2013. I have compared this balance sheet to the updated balance sheet submitted by the husband’s counsel on 11th October 2013. There are some discrepancies between the two.
I am persuaded that there are certain amounts of expenditure by the Husband that should be added back into the asset pool. The sum of $19,500.00 paid by way of legal fees is a very obvious example (see AJO & GRO[13] at [30](a)[14]).
[13] supra
[14] (2005) 33 Fam LR 134 at 144
The Husband was cross-examined at some length about his use of his credit card for purchases of services from online dating agencies, which included (omitted) and an organisation known as (omitted), which he conceded was an online Asian dating agency. In February 2012 he spent a total of $1250.00 on (omitted) and a further $1500.00 in March of that year. An examination of the Husband’s credit statements show frequent charges for restaurants, (omitted), (omitted) and, on two occasions, payment to an organisation described as “(omitted)”.[15]
[15] Which is not a hardware store
Whilst the Husband was incurring these expenses at Internet dating sites and various restaurants, it is certainly the case that the Wife should not be expected to contribute to these activities.
These expenses amounted to approximately $17,000.00. Ms McMahon also challenges the Husband’s current debt on his (omitted) Bank Visa card of $1,500.00 for the same reason.
All in all, I am satisfied that a total of $38,000.00 ($19,500.00 plus $17,000.00 plus $1,500.00) should be added back against the Husband.
Non Superannuation Asset Pool
I find the non-superannuation assets to be:
a)Former matrimonial home at Property A $752,000.00
b)Wife’s Mazda motor car $ 11,000.00
c)Wife’s household contents $ 5,000.00[16]
[16] The husband’s estimate of the value of the contents is $20,000.00 but this appears optimistic
d)Wife's (omitted) Credit Union account $ 980.00[17]
e)Husband’s bank account $ 6,000.00[18]
f)Husband's (omitted) shares $ 4,906.00
g)Husband’s household contents $ 6,000.00
h)Husband’s add backs $38,000.00
Husband’s Mercedes Benz motor car $43,800.00[19]
Total $867,686.00
[17] Curiously, the husband put this figure at only $900.00, but in my view the wife’s estimate is more likely to be accurate
[18] Taken from the later balance sheet Exhibit 4 tendered by husband’s counsel on 11.10.2013 and therefor more likely to be correct
[19] The later balance sheet shows that this vehicle is a negative asset, as it carries a debt of $46,710.00
Liabilities
The Wife deposed at paragraph [22] of her affidavit of 30th April 2013 that she had a liability, being a (omitted) Bank mortgage account of $48,957.00. However, the balance sheet tendered by Counsel for the Husband on 11th October 2013, without objection, showed a liability of “nil” beside the former matrimonial home. Counsel for the Husband submitted that same day that “the wife lives in the former matrimonial home which is unencumbered”. Accordingly, it is taken that there is no amount owing on the former matrimonial home by way of mortgage.
I find the parties’ liabilities to be:
a)Wife's (omitted) Visa Card debt $ 1,903.00
b)Amount owing to wife’s parents $25,850.00
c)Husband’s debt owing on Mercedes Benz $46,710.00
Total liabilities $74,463.00
By deducting the total liabilities of $74,463.00 from the total of the non-superannuation asset pool, being $867,686.00, I arrive at a net total of $793,223.00.
I find the total of the net non-superannuation asset pool to be $793,223.00.
Superannuation
I find the parties’ superannuation assets to be:
a)Husband's (omitted) Superannuation $254,705.00
b)Wife's (omitted) Superannuation $111,095.00
Total superannuation 365,800.00
By adding the total of the parties’ superannuation entitlements, namely $365,800.00, to the net total of the non-superannuation asset pool, being $793,223.00, I arrive at a total of $1,159,023.00.
Accordingly, I find the total net asset pool to be $1,159,023.00.
The Parties’ Contributions
The Husband deposed that at the time he commenced cohabitation with the Wife, in November 1988, he owned items of furniture, a Mitsubishi car and a business that comprised (businesses omitted) in various (locations omitted) in Sydney and Melbourne. That business was a company called (business omitted). At the time cohabitation commenced the Husband’s shares in (business omitted) were worth $78,669.00.
Unfortunately, the (business omitted) went into receivership about a year later, at the end of 1999. The Husband was unable to gain access to any of the (businesses omitted) to retrieve any stock of fittings and the business collapsed. He lost $75,914.00.
The Wife’s initial contribution was substantially greater than that of the Husband. At the commencement of cohabitation she had the following:
a)An amount of $127,000.00, being the net proceeds of sale of her previous home at (omitted);
b)Savings amounting to $15,000.00;
c)A small amount of superannuation;
d)A car worth $4,000.00; and
e)Some personal chattels.
It would appear that the initial contributions greatly favoured the Wife, by about 65% to 35%. I am not prepared to accept that the Wife should bear an equal proportion of the loss of the value of the Husband’s business, as it had collapsed within the first year or so.
The Husband was unemployed for a short period of time and then obtained employment as (occupation omitted) at (employer omitted). He conceded in cross-examination that his starting salary was less than $50,000.00 per annum. He deposed in his affidavit of 5th April 2012 that he earned $1,698.25 per week, which amounts to $88309.00 per annum.
The Wife worked as a (omitted). When cohabitation commenced she was earning approximately $68,000.00 per annum. By the time of the hearing she was earning $84,753.00 per annum. It appears that for more than half of the marriage, until 2007, the Wife was in fact earning more than the Husband.
It is clear that it was due to the Wife’s assets and income that the parties were able to purchase the former matrimonial home, which she did in May 2002. The parties were paying rent until then. By the time the home was purchased, the Husband’s interest in (business omitted) was long gone, and, effectively, all he had was his salary, which was less than the amount that the wife was earning.
The Husband made specific lump sum payments of the mortgage over the former matrimonial home. Those payments were either made by direct payments to the mortgage account or by payments to the Wife, who then paid the money into the account. The Husband’s direct payments to the mortgage account between 18th March 2002 and 21st December 2009 amounted to $56,900.00.
The Husband made three payments direct to the Wife to go toward the mortgage between 10th January 2002 and 10th January 2007, totalling $26,000.00.
Thus, the Husband’s total contributions toward the mortgage amounted to $82,900.00. He also made payments of a total of $28,082.00 to pay for improvements to the home. Counsel for the Wife submitted, correctly, in my view, that the Husband’s total contributions of $110,982.00 equate to approximately 22% of the cost of the property.
It does not appear that the Husband’s contributions during the marriage equalled that of the Wife. There was an imbalance which indicates that the Husband’s contributions during the marriage were less than those of the Wife.
Counsel for both parties have submitted that the other party’s credibility is suspect. Whilst it may be the case that the Wife did not disclose her (omitted) Credit Union accounts prior to 2005, it is submitted that she provided that information to her solicitors in 2011 and those documents were in the solicitors’ file. They were disclosed when called for and the Husband’s solicitors have had the opportunity to go through them. Not much turns on this point.
Ms McMahon also pointed out that two payments were received by the Wife from (omitted) in 2012, totalling $65.58. The failure to disclose those amounts was an oversight. Again, very little turns on this point.
I found that the Wife was a more candid and credible witness than the Husband, who was very uncomfortable in the witness box when he was cross-examined.
One aspect of the Wife’s evidence that goes to the Husband’s credit is that set out in paragraph [8] of her affidavit of 30th April 2013:
In my last affidavit I referred to the fact that Mr Blackwell would use my credit card to pay for table bills for social dinners with friends and family. However, I have just recently discovered the extent to which he was also collecting cash from those people present for their share of a meal. I understand from my brother and his girlfriend that he has been doing this for years. Mr Blackwell never informed me that he was doing this nor did he give me any of that money towards the payment of the credit card bill.[20]
[20] Affidavit of Ms Trantor 30.4.2013 at [8]
In my view, even on a conservative basis, the contributions of the parties favour the Wife significantly, to the extent of 70% to 30%.
The effect of any proposed order upon the earning capacity of either party
Subsection 79(4) requires, at paragraph (d), that the Court consider the effect of any proposed order upon the earning capacity of either party to the marriage. In my view, the proposed orders will not have any effect upon the parties’ earning capacity.
Relevant matters referred to in subsection 75(2)
Counsel for the Husband has submitted that there should be an adjustment in favour of the Husband under s.75(2), noting his age and the fact that he only has four years of earning capacity left, at most. This situation has been exacerbated by the fact that his current employment has now ceased.
Ms Clifton submitted that, as was established in Clauson & Clauson[21]:
[21] (1995) 18 Fam LR 693; FLC 92-595
It has long been recognised that in most cases the most valuable
“asset” which a party can take out of a marriage is a substantial, reliable, income-earning capacity[22]
[22] (1995) 18 Fam LR 693 at 710 per Barblett DCJ, Fogarty & Mushin JJ
The Wife, being younger, has a significantly greater earning capacity than the Husband. An inference can be drawn that the Wife is fit and able to work as evidenced on her own medical material.[23]
[23] Submissions Applicant Husband page 19 at [119]
An examination of the s.75(2) factors indicates that an adjustment should be made in favour of the husband.
The Husband was born on (omitted) 1952. He is 61 years and 11 months old. He appears to be in good health. The Wife is 51 years and six months old. She deposes in her affidavit of 30th April that:
28.I have over the last two years had an increasing number of health problems that will impact on and limit my ability to continue working as a (omitted).
29.In November 2012 I developed pain and had diminished movement and power in my right shoulder. I had an MRI taken in March 2013. A copy of the report from that MRI scan is attached and marked “A”.
30.I continue to have problems as a result of this shoulder injury to the effect that I am now on restricted duties at work. A letter from my employer is attached and marked “B”.
31.A letter from my physiotherapist is attached and marked “C”.
32. A letter from my orthopaedic surgeon is attached and marked “D”.[24]
[24] Affidavit of Ms Trantor 30.4.2013 at [28]-[32]
The orthopaedic surgeon, in his report dated 26th April 2012, set out that the Wife required a 3-4 month course of Cortisone injections, anti-inflammatory medication and physiotherapy. He expressed the opinion that there was a 90% chance that her symptoms would settle over 3 to 4 months but there was a 10% chance that she would require surgery.
Whilst it appears that the Wife was to be restricted to light duties without heavy lifting for a while, the evidence does not indicate that the Wife has an incapacity for work.
The Husband’s evidence is that his employer, (omitted) had closed since July 2013 and he was unemployed. He was awaiting a Centrelink pension which would not start until January 2014. He was sharing a home unit with his former brother-in-law Mr N. He had previously been living in rented accommodation since he moved out of the former matrimonial home.
Noting the Husband’s age and his employment history, his prospects of obtaining further employment in the near future would appear to be bleak. He does not own a house or a home unit, and he will have to rely on rental accommodation. It is unlikely that he will be in a position to purchase a home, noting his lack of capital and lack of a regular salary.
The Husband’s standard of living appears to have deteriorated since the marriage ended. The Wife’s standard of living appears to have remained the same. The Husband will need to rehouse himself. He is unlikely to be able to go on living with his former brother in law indefinitely.
In my view, an adjustment of 10% in favour of the Husband is called for.
Just and Equitable
Again, the Court should consider whether the proposed orders are just and equitable. The husband will receive 40% of the net asset pool and the wife will receive 60%. The Husband will receive substantially less than the Wife, even allowing for a 10% s.75(2) adjustment in his favour, because his contributions to the marriage were significantly less than those of the wife. I am satisfied that the proposed orders are just and equitable.
Orders to be made
The net asset pool amounts to 1,159,023.00. 40% of that figure is $463,609.00 (rounded down to the nearest dollar.
The Husband would receive the following:
a)His bank account: $ 4,000.00
b)His (omitted) shares $ 4,906.00
c)His household contents $ 6,000.00
d)His add backs $ 38,000.00
e)His Mercedes Benz motor car $43,800.00
f)(omitted) superannuation $254,705.00
Total $351,411.00
LESS debt owing on Mercedes Benz $46,710.00
$304,701.00
Thus, to receive cash and assets worth $463,609.00, the Husband would need to receive cash in the sum of $158,908.00. He has already received $45,000.00 as a result of the earlier consent orders, so he will have to receive an amount of cash in the sum of $113,908.00.
The Husband will have to transfer the Mazda motor car to the Wife. He will need to indemnify the Wife against the indebtedness against the Mercedes Benz motor car.
The Wife will be given three months to pay the amount of $113,908.00, which will be secured against the real property at Property A.
If either party seeks an order for costs, he or she will need to file and serve an Application in a Case and a supporting affidavit within one month.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 30 June 2014
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