Blanks & Blanks
[2006] FamCA 354
•19 May 2006
[2006] FamCA 354
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
No. SYF. 3951 of 2004
IN THE MATTER OF:
Mrs Blanks
Applicant
- and -
Mr Blanks
Respondent
REASONS FOR JUDGMENT
BEFORE: The Honourable Justice Watts
HEARD: 18 – 19 April 2006
JUDGMENT: 19 May 2006
| APPEARANCES: | Mr Maurice of Counsel, instructed by Broun Abrahams Burreket, appeared on behalf of the Applicant Wife. Mr Richardson, Senior Counsel, instructed by Delaney Lawyers, appeared on behalf of the Respondent Husband. |
INDEX
INDEX
Catchwords
Legislation considered
Cases considered
INTRODUCTION
THE APPLICATIONS
SHORT HISTORY
LONGER HISTORY
SEPARATIONS AND HOLIDAYS ALONE DURING THE MARRIAGE
THE LAW
The approach taken in these Reasons for Judgment
Legal principles or themes
DISPARITY IN FINANCIAL CIRCUMSTANCES AND THE DURATION OF THE MARRIAGE: Subsection 75(2)(b) and Subsection 75(2)(k)
CREDIT
Wife
Husband
PROPERTY
CONTRIBUTIONS
Initial contributions
WIFE’S CONTRIBUTIONS
THE HUSBAND’S CONTRIBUTIONS
DEFICIENCIES IN THE EVIDENCE IN RELATION TO CONTRIBUTIONS
The husband’s professional practice, D Blanks & Co
Husband’s income during the marriage
40% in T Pty Ltd
50% in Y Pty Ltd
N property
S property
K property
X property
W property
Liabilities
CONCLUSION IN RELATION TO CONTRIBUTIONS
75(2) FACTORS
CONCLUSIONS IN RELATION TO 79(4)(d) – (g) FACTORS
JUST AND EQUITABLE
DAVID JONES ACCOUNT
PROPOSED ORDERS
Catchwords
FAMILY LAW – PROPERTY – slightly less than median marriage
Legislation considered
FAMILY LAW ACT – Section 75(2); Section 79(4)(d) – (g); Section 81
Cases considered
Kennon (1997) FLC 92-757
McMahon (1995) FLC 92-606
Pedersen [2002] FamCA 1006
Busby (1988) FLC 91-919
Walker (unreported decision of Baker, Lindenmayer and Smithers JJ delivered 28 January 1997)
GBT & BJT [2005] Fam CA 683 (Kay, Holden, Warnick JJ)
Masters and Cameron (1954) 91 CLR 353
Figgins (2002) FLC 93-122
Wunderwald (1992) FLC 92-315
Webster and Webster(1998) FLC 92-832
In the Marriage of Farmer and Bramley (2000) 27 Fam LR 316; FLC 93-060
Bartlett (1986) FLC 92-721
Robb (1995) FLC 92-555
INTRODUCTION
This matter is about what Mr Blanks (“the husband”) should pay Mrs Blanks (“the wife”) by way of alteration of property.
THE APPLICATIONS
The wife wants a payment that would give her 30% of the overall assets and financial resources currently held by the parties either jointly or severally.
The husband wants to pay to the wife the sum of $165,000 and proposes that the wife retain the following:-
3.1.Savings with the NAB;
3.2.1985 Volvo motor car;
3.3.Household contents;
3.4.First State Super;
3.5.Hesta Super;
3.6.Jewellery;
3.7.Bond on rental unit;
3.8.Legal fees paid or in trust.
Issues concerning chattels were resolved by interim consent orders made on 19 April 2006.
SHORT HISTORY
The husband is 74 years old. He was born in 1931. There is an arrangement that he consults in his son’s professional practice. The husband gave evidence that he does not receive any extra remuneration for being a consultant. Any work which the husband does in his son’s practice is done as part of the arrangement whereby the husband receives the amount of $11,000 per month by way of capital sum for the sale of his practice.
The wife is 57 years of age. She was born in 1948. She is a registered nurse and in the year ended 30 June 2005 had been employed as a nanny and had done work for a nursing agency at an average weekly income of $754. She is now nursing full time with a regular average weekly income of $1,350 gross per week.
The parties married in August 1997.
There is a dispute as to when the parties commenced cohabitation. The wife says that it was in March 1997. The husband says that it was at the date of marriage. The wife on 20 September 2004 filed an application for final orders. That application was verified by an affidavit sworn by the wife on 30 June 2004. At item 13 in her application she responds to the question “When did you and the respondent begin to live together?” with the answer “23/08/1997”. Given that evidence I accept that the parties commenced to formally live together from the date of the marriage.
The husband however did not give any evidence which disputed the wife’s other evidence that they regularly spent time at one another’s homes between March 1997 and August 1997.
The parties separated on 28 December 2003.
The husband contends that the intention of final separation had not been communicated to him, however he accepts the wife’s assertion for the purposes of these proceedings.
The parties continued to reside under the same roof until 25 February 2005.
Consequently the period of the marriage was six years and four months. The parties spent significant time together in the five months prior to the marriage and lived under the one roof for a period of 14 months after the separation.
A divorce order was made on 19 April 2006.
LONGER HISTORY
In 1997 the wife was employed as a nurse and the husband was engaged in his own practice in his profession. I will deal with what they both had in 1997 when considering the contributions that they have made to their joint and separate property.
The wife asserts that she had difficulty continuing in employment after the marriage as she had to accompany the husband. She lived between S and N in Sydney each week. S is in the Southern Highlands of New South Wales and the wife said that it took about 1 ¾ hours to drive there by motor vehicle.The wife gives evidence that the husband on a number of occasions made it clear to her that he would prefer that she not work. The wife’s evidence is that the husband offered to pay her $300 per week if she ceased work. The wife’s periods of paid employment during the marriage were not great.
The wife said she used the $300 that she was given by the husband each week to buy groceries and household items. She says she also drew on her own savings to supplement those purchases.
She says that after her allowance increased to $750 per week she paid for groceries, household items, rates, electricity, cattle feed and other expenses.
In 1998 the husband says that he spent $2,500 on the wife’s Mercedes 190E model motor car and it was then sold for the sum of $7,500 with the wife retaining those funds. The husband thereafter made available to the wife for her use a 1994 Lexus motor car. The wife was unable to remember one way or the other whether or not she had received the sum of $7,500 when her Mercedes 190E was sold but given the husband’s evidence I accept that she did.
In 1998 the husband’s son J who was then aged 17 lived with the parties for about six months. Both parties agree J was very ill at the time. He was in his final year at high school. He was sad and depressed. The wife mothered him and J confided in her. The husband confirmed that his son had made attempts to commit suicide; at least on one occasion whilst he was living with the parties. The husband readily conceded that his wife had made a significant difference by her mothering of his son and he added that it is probably why he is alive today.
The documentary evidence indicates that the wife received at least the approximate amount of $36,000 in 2002 being her share of the sale of her interest in a property at V owned with her former husband. The wife thought she got $40,000. She used some of that money to repay various debts. As to where the balance of the funds were disbursed, that is less than clear.
On 3 March 2000 the husband sold a property at N for $635,000. N is where the parties commenced living together. The wife asserts that she made various contributions to the N property which I will deal with later.
On 31 March 2000 the husband brought a unit at W for $750,000 using the proceeds of the sale of the N property and borrowing an amount of approximately $115,000 from the Commonwealth Bank.
On 30 June 2000 the husband sold 40% of his interest in T Pty Ltd for $1,040,000. He invested most of the proceeds of that sale in a self managed superannuation fund. The current agreed value of that fund is $1,160,128. He uses part of the money to pay out the lease on the Lexus motor car used by the wife and registered that car in her name.
In June 2000 the wife travelled to The Maldives and remained there for about seven weeks.
In 2001 the husband and his son signed a document called “Sale of Practice of [Blanks] Partners to [the husband’s son A] effective date 1 January 2001”. It provided for a sale price of $2,620,000. A clause which has been crossed through provided that half of the capital value of the practice would then be gifted by the husband to his son in consideration for the effort he had made in managing the practice and building its growth over the three prior years. The husband’s evidence is that the actual sale price was $1,320,000 and that a concluded agreement, which was an oral agreement, was not concluded until 31 December 2003 but was still effective from 1 January 2001. I will deal with the husband’s interest under this contract with his son when looking at the property and financial resources of the parties.
In 2001 the wife worked part time in palliative care nursing for about six months. Again the wife says that she discontinued this work at the request of the husband.
In 2002 the wife’s daughter and her grandson lived with the parties for about four or five months.
In 2002 the husband underwent a knee reconstruction. The wife nursed him during his recuperation.
In 2003 the husband sold his property at K for $65,000. The proceeds were used to discharge the husband’s personal loan with the Commonwealth Bank.
In 2003 the husband also sold a 40% interest in Y Pty Ltd, receiving a net amount of $239,000. The husband used this money to discharge credit cards and other liabilities to the extent of about $19,000 and the balance comprising $220,000 is placed in a cash investment account.
On 31 December 2003 (as mentioned above) the husband asserts that he sold his professional practice to his son.
In early 2004 (at the time that the wife says that she had separated from the husband under the one roof) the parties had counselling with Ms U.
In June 2004 the husband sold his property at S for $1,065,000. The net proceeds of approximately $717,581 were transferred to an investment account and used in relation to the purchase of a property at X.
At about this time the husband purchased a Lexus R motor car for $86,000 and paid out debts on the Lexus ES300 motor car. Part of this arrangement was a hire purchase agreement which provided $40,000 of credit.
In June 2004 the husband purchased in his sole name vacant land at X for $550,000. He provided approximately $75,000 to pay the deposit and stamp duty from his own resources with the balance paid on settlement coming from the proceeds of the sale of the S property.
In July 2004 the husband had an operation on his right eye and the husband says a week later the wife went away from the W property where they were both residing under the same roof to look after a friend’s shop at B for nearly six weeks.
The husband asserts that in July 2004 the wife commenced to occupy the second bedroom in the W property.
The purchase of the X property was completed in September 2004.
The husband alleges that in February 2005 the wife removed furniture, linen and other items from the W apartment and removed a substantial quantity of items from storage in M.
On 25 February 2005 the parties ceased to reside under the same roof and the wife moved out of the W property taking with her the Lexus motor car.
On 7 or 8 March 2005 (the husband says 7th and wife says 8th) the husband went to the wife’s place of work and collected without the wife’s knowledge the Lexus motor car. The husband asserts that the wife had failed to keep an agreement to return the motor vehicle and that when it came into his possession at that time the car was filthy and was damaged. It had low kilometres but had been in the repair shop shortly after its acquisition after a motor vehicle accident which the wife had whilst she was driving it.
On 6 April 2005 interim orders were made by consent that the husband pay to the wife $35,000 and that she transfer joint registration of the Lexus motor car to the husband.
SEPARATIONS AND HOLIDAYS ALONE DURING THE MARRIAGE
It was put to the wife in cross examination that there were a number of periods of separation during the marriage. The wife asserted that there were absolutely no periods of separation between the date of the marriage and 28 December 2003. The wife however subsequently conceded that she had rented a flat in her own name in G for a period of six months. The exact time when this happened was unclear. At the time however she was working for a Nursing Agency and had a job looking after a man on Sydney’s North Shore. The parties were living at N at the time. The wife agreed that she would commute from G to the North Shore and back again each day by passing Nas she went. The wife says that she took the flat in G because “she was being stalked in her marriage”. She agreed she had not mentioned in her affidavit that she had taken rented accommodation in G. The wife did not remember during this time whether or not she took her wedding ring off, although she said that most of the time during the marriage she hadn’t worn a wedding ring.
The wife also holidayed on two occasions without the husband in the Maldives. The second of these occasions was for a period of seven weeks.
THE LAW
The approach taken in these Reasons for Judgment
In this matter my task is to:
46.1.Identify and value the property, assets, financial resources and liabilities of the parties;
46.2.Identify relevant contributions and assess them;
46.3.Consider relevant matters referred to in Section 79(4)(d) – (g) FLA;
46.4.Ensure my order adjusting the property assets and liabilities of the parties is just and equitable.
Legal principles or themes
In terms of my approach to what is colloquially called steps 2 and 3, both Counsel referred to a number of authorities. No single one provides an exact template for what should happen in this case. Cases were relied upon by Senior Counsel for the husband to demonstrate themes rather than binding principle.
This is a childless marriage of less than median length of people later in life. In those circumstances there has to be a higher level of scrutiny of the making of financial contributions than would otherwise be the case in a longer marriage. The cases referred to provide guidance as to the range in which my discretion should be exercised.
In Busby (1988) FLC 91-919 the Full Court said:
“In a marriage of four years, with no dependent children being involved on either side, it ought to have been apparent to the parties’ legal advisers that each party’s actual financial contribution to the marriage was the primary issue.”
The husband and the wife were married for more than six years and there were dependent children involved on either side. But it is clear in this case that financial contribution is the primary issue.
In McMahon (1995) FLC 92-606 the marriage was 6 years and the Full Court said in that case an asset by asset approach should be adopted given that the parties had kept their financial circumstances very separate (apart from the joint assets they had acquired together). Because an asset by asset approach had not been adopted in that case the Full Court said that the trial judge failed to conclude that neither party had made any contribution to the other’s separately held assets. That meant that the trial judge had failed to recognise the simplest and most obvious course which was to make no order affecting the separately held assets and to make an order of equal division of the jointly held assets subject to any appropriate allowance for 75(2) factors if that was thought proper.
In this case there are no jointly held assets and Senior Counsel for the husband did not submit that I should take an asset by asset approach. He made the point, however, that both parties had substantially kept their finances separately and adopting the theme from McMahon suggested that limits should be placed upon the adjustment that is made to the wife from the husband’s separate property.
In Kennon (1997) FLC 92-757 the marriage was 7 years and there was an 18 year age difference between the parties. The Full Court in Kennon adjusted upwards the trial judge’s decision giving Mrs Kennon $400,000 at stage 2 and a further $300,000 at stage 3 (a total of $700,000 out of a pool of assets of $8.7 million). This represented a division of 4.6% at stage 2 and 3.4% at stage 3. However, the assets in that case were $8.7 million compared to the $3.75 million in this case.
In Walker (unreported decision of Baker, Lindenmayer and Smithers JJ delivered 28 January 1997), the marriage was of a 5 ½ year duration. The assets were $2 million. The husband was 56 and the wife 53. The Full Court when re-exercising its discretion gave the wife 5% at stage 2 and 2.5% at stage 3. That case had an unusual feature that the wife had lost about $170,000 post separation in a bad business venture and the Full Court said that the 5% at stage 2 would have been higher but for that. Senior Counsel for the husband’s submission was that notionally you would give the $170,000 to the wife (adopting the approach of the Full Court in McMahon). The effect on a global analysis then would be that the wife would get a higher percentage overall because that asset would have been in the pool of property and the wife would have received it.
Senior Counsel for the husband refers to the authorities and expression of principles set out by Guest J in Pedersen [2002] FamCA 1006.
In this case the parties were married six years and the trial judge had given the wife 5% based on contributions and 7% based on 75(2) factors in an asset pool of approximately $10 million. Mrs Pedersen had a brain tumour.
The majority found that the trial judge failed to provide adequate reasons for reaching her conclusion in relation to contributions and the matter was sent back for rehearing. Guest J by way of obiter and referring to the facts of that case said:
“120….it is not, in my view, appropriate in the particular circumstances to assess the wife’s contribution pursuant to s.79(4)(a) to (c) of the Act to the whole of the asset pool in percentage terms. In the result, such an exercise is unrealistic and meaningless. There was no evidence that it had any effect or impact upon the pool of assets. A percentage division is a useful technique in determining contributions to a pool of property which has grown over the course of a marriage. Where the pool has remained approximately the same and one party’s initial contribution so manifestly outweighs the other’s, as in these proceedings, it is misleading to consider a percentage division of the final pool…
123….on any analysis, the result of her 5 percent assessment in favour of the wife does not sit satisfactorily with the evidence. The court must carefully safeguard against using the provisions of s.79 of the Act as a “….source of social engineering or as a means of evening up the financial positions of the parties to a marriage”. See Kennon v Kennon (1997) FLC 92-757 at p84,303. It is not the purpose of the relevant provisions of the Act to”….equalise the financial strengths of the parties” per Wilson J in Mallet v Mallet (1984) 156 CLR 605 at 638 when addressing his attention to the object of s.75(2) of the Act. Unless there is a readily understandable pathway to a conclusion, any criticism that a trial judge may have engaged in “….an unbounded exercise in distributive justice.” (Per Gleeson CJ and McClelland in Equity in Evans v Marmont (1997) DFC 95-184 at p77,610) is open to a critical and perhaps, sceptical observer.
124. It is to be recalled that the mandatory prescription of the Act is to evaluate contributions pursuant to s.79(4) and there “….is an obligation on the trial judge not only to identify the relevant contributions but also to assess them” (emphasis added) per Ellis, Baker and O’Ryan JJ in Pierce v Pierce (1999) FLC 92-844 at p85,881….
131. In making this observation, I do not detract from the force of the proposition that it is “….neither practical nor desirable to approach cases in such a pseudo-mathematical way (Clauson v Clauson (supra) at p81,090-10, G v G (1984) FLC 91-582 at p79,697 per Nygh J). There are cases, however and this is one, where the reasons stated, the expression of an award in percentage terms may bring about an unjust and inequitable result, and in so doing offend the very mandate expressed in s.79(2) of the Act.”
Senior Counsel for the husband also said that similarly precedent for striking of a dollar sum for the adjustment at stage 3 is provided by Kennon (supra), the re-exercise of discretion by the Full Court in Webster v Webster (1998) FLC 92-832 and the approach taken by Ellis J sitting in the Full Court on the re-exercise of discretion in Figgins v Figgins (2002) FLC 93-122 esp at paras 224 and 230.
In GBT & BJT [2005] Fam CA 683 (Kay, Holden, Warnick JJ) Strickland J was dealing with a 6 ½ year cohabitation. The age difference was 18 years (but the parties were 54 and 36). There was $3 million involved. The husband practiced a profession. Superficially some of these basic facts are hauntingly similar to those of Mr & Mrs Blanks.
Strickland J gave 12.5% at stage 2, 5% at stage 3, a total of 17.5%. The Full Court found that this was manifestly excessive and re-exercised their discretion giving 7.5% at stage 2, 2.5% at stage 3, a total of 10%.
Counsel for the wife drew some distinctions between this case and the facts in GBT & BJT. Some of the distinctions which I agree are of some importance are that in GBT & BJT:-
61.1.The husband paid for a great deal of commercial domestic assistance during the marriage. They had a house cleaner, ironing person and ate out several times a week.
61.2.The wife conceded under cross examination that she had used very little, if any, of her income for the joint benefit of the parties.
61.3.The wife was found at the date of the trial to be in a comfortable financial position which included her cohabitation in a new relationship, living in a house owned by her father and having agreed to purchase a home jointly with her new partner for $400,000.
61.4.The wife was found not to have made a full and frank disclosure of her financial arrangements with her new partner and had failed to call him to give evidence.
DISPARITY IN FINANCIAL CIRCUMSTANCES AND THE DURATION OF THE MARRIAGE: Subsection 75(2)(b) and Subsection 75(2)(k)
Senior Counsel submitted that the future prospects of the parties were cast well before they met.
The husband argues that there shouldn’t be any adjustment made in that regard given that the genesis of the disparity in wealth is entirely unconnected to events of the marriage and because of that fact it would be not just and equitable to make a substantial adjustment on that basis.
The argument put by Senior Counsel for the husband is similar to the position taken by Guest J In the Marriage of Farmer and Bramley (2000) 27 Fam LR 316; FLC 93-060. This was a case in which the wife made a claim under s.79 FLA in circumstances where the husband had won $5 million in a lottery one year after the separation of the parties.
At paragraph 223 of the judgment Guest J (in the minority) said:
“In relation to s.75(2)(b) as relied upon by the wife, I am of the view, and for the reasons stated, that there is no connection between the dictates of this paragraph and the life of the marriage in that it should effect an alteration in the interests of the property of the parties pursuant to s 79(1) of the Act. This paragraph is not designed to “… even up” in some way the financial position of the parties. It was not argued, for the circumstances of the marriage disentitled such a course, that the manner in which the parties arranged their lives had any impact or effect upon their respective future economic prospects. They had no assets at the time of separation. The wife re-married and (sic) which was a free and significant life decision on her part and disentitled her to any claim she might otherwise have had against the husband pursuant to the provisions of s 72 and s 74 for spousal maintenance. In the circumstances and for the reasons stated, I attach no weight in the balancing exercise to the provisions of this paragraph.”
In Farmer and Bramley Kay J discussed Guest J’s analysis of s.75(2) considerations and said at paragraph 71:-
“The manner in which s 75(2)(b) can be utilised to bring about an adjustment of property interests was discussed fully in Collins (1990) FLC 92-149 by Ellis, Fogarty and Gun JJ. There their Honour's upheld Nygh J's judgment making an adjustment of $1,000,000 in favour of a wife, who already owned assets worth more than that sum. Nygh J had specifically identified a disparity in capital as a basis for making that adjustment. My apologies for setting out such an extensive passage but it seems to me to put to rest any suggestion that there can only be an adjustment under s 75(2)(b) if there is some causal nexus between the disparity and the marriage itself”
Kay J then extensively quoted from Collins and at paragraph 94 of the judgment his Honour concluded that the disparity in capital positions of the parties reached as a result of the distribution on contributions (at step 2) is a matter that can be taken into account (by inference under s.75(2)(b)). That is, his Honour disagreed with Guest J’s proposition that there had to be a connection between the capital position of the parties and the life of the marriage before weight could be placed upon a disparity in the financial positions of the parties in the balancing exercise.
More recently in GBT & BJT the Full Court (Kay, Holden and Warnick JJ), without specifically rejoining the debate emphasised that when giving weight to sub section 75(2)(b) FLA, the other subsections of s.75(2) FLA including subsection 75(2)(k) FLA also have to be weighed.
At paragraph 64 of GBT & BJT the Full Court said:
“We are inclined to the view that, in addressing the weight to be given to the disparity in the parties’ incomes and earning capacities, his Honour may well have given insufficient weight to the shortness of the marriage (relevant under section 75(2)(k)) and to the minimal nature of the wife’s contributions, particularly having regard to the fact that such contributions as she did make were mainly in the homemaker sphere, the husband paid for the provision of a great deal of domestic assistance, and there were no children of the parties (relevant under section 75(2)(j)).”
Earlier in Kennon (Fogarty & Lindenmayer JJ) when dealing with 75(2) factors said of the facts in that case at page 84,303:
“On the one side, there are circumstances that this was a relatively short marriage, with no children, and the wife is able to continue employment of the type which she had previous to cohabitation….On the other hand, there are huge differences between the parties’ incomes, assets, future income-earning capacities and superannuation benefits. His Honour pointed out on a number of occasions that these differences existed at the time the parties commenced to live together and that if their paths had not crossed and if they had not lived together for five years it is likely that the difference would have remained the same. However, we are not persuaded that that is the beginning and end of the issues. Whilst we acknowledge that Section 79 is not a source of social engineering or as a means of evening up of the financial positions of the parties to the marriage, (see, for example Clauson & Clauson (1995) FLC 92-545; Waters and Jurek (1995) FLC 92-635 and Lyon and Bradshaw (Full Court 16 May 1997, not yet reported)), nevertheless the fact is that these parties were married for a not insignificant period, each made contributions which we have discussed and their obligations to each other do not cease on separation. Their marriage carried with it advantages and obligations and, so far as the settlement of their property on separation or divorce is concerned, those obligations are to be determined in accordance with the detailed provisions of s.79.”
The “not insignificant period” of the Kennon marriage was seven years.
In 2004 the median duration of an unsuccessful marriage to date of separation was 8.69 years. In 1984 it had been 7.7 years.[1]
[1] Source: Australian Bureau of Statistics, Divorces, Australia 2004 (Cat. No. 3307.0.55.001)
In this case the marriage is a little over six years. So, the husband and wife’s marriage is on the shorter side of median duration.
In this case I will take into account both the disparity of the financial circumstances of the parties and the length of the marriage as part of the mix of things I consider under Section 79(4)(d) – (g) FLA.
CREDIT
Wife
The wife was not an impressive witness and some parts of her evidence were unreliable.
At the commencement of her cross examination she was invited to describe the financial provision that her husband had made for her during the marriage. She was assisted by Senior Counsel for the husband suggesting to her the word “lousy”. She enthusiastically embraced that term.
There was a lack of logic in the wife on the one hand saying her husband wasn’t generous but on the other saying that they were jointly generous when providing accommodation for the wife’s daughter in 2002 for a period of five months (when it was clear that all the money required to support her daughter during that period came from the husband’s resources).
On the second day during the cross examination she said that “lousy” wasn’t a word she would normally use but it was quite clear whatever simile she might have picked, that was what she meant. Describing the husband’s financial provision for the wife during the marriage as “lousy” showed at best lack of perspective by the wife and at worst a deliberate intention to downplay the husband’s financial contributions during the marriage.
The wife clearly asserted in her evidence that there had been no period of separation during the marriage. She then conceded that she had taken a lease of a unit at G for a period of six months. She said that she did that because her husband was stalking her but it wasn’t a separation from the husband it was a “retreat”. It is quite clear that the wife did separate from the husband when she took the unit at G for six months (the exact period of time when this happened was never in evidence). The wife’s evidence was that she drove from G each day for employment in Sydney. This evidence is not consistent with the unqualified assertion by the wife that there had been no periods of separation during the marriage.
The wife in her affidavit made the bold claim:-
“During the period of cohabitation the husband did not make contributions to home making” (paragraph 23 of her affidavit)
She had to concede during cross examination that that was an exaggeration. She wasn’t particularly apologetic about the fact that she had exaggerated this evidence.
There are a number of parts of her affidavit in which the wife asserts that she didn’t work during the marriage because her husband didn’t want her to work anymore and that he had made that clear to her.
At paragraph 11 of her affidavit she says “at the commencement of the relationship with the husband I was working as a registered nurse for the […] Community Mental Health Centre”. By commencement of the relationship the wife is referring to her assertion that the cohabitation commenced in March 1997. It is clear from the wife’s oral evidence that her husband’s wishes had nothing to do with her not continuing with the Community Mental Health Centre. She actually applied for the permanent position there and was not successful in obtaining it.
In paragraph 13 of her affidavit, the wife says that her husband told her that he didn’t want her to work for Dr GY anymore, so she didn’t. This fails to tell the full story in relation to Dr GY. The wife during cross examination agreed that Dr GY had romantic intentions towards her. She had accepted expensive gifts from Dr GY, including jewellery and the use of a Mercedes motor car. She excepted in cross examination that the statement by the husband that he didn’t wish her to continue to work for Dr GY should appropriately be seen in the context of how her husband felt about Dr GY’s feelings for her.
The wife gave inconsistent sworn evidence in the affidavit verifying her original application and her affidavit sworn on 25 August 2005 in relation to the date of cohabitation.
Husband
The husband was cross examined, as to credit, about a document that he and his son had signed which said it was to be effective from 1 January 2001. This document was annexure “A” to the wife’s affidavit sworn 25 August 2005. It was admitted provisionally as to relevance and given the extensive cross examination of the husband as to credit based on that document I allow the admission of that document into evidence.
The value of the sale of the husband’s professional practice to the husband was agreed on a discounted basis in accordance with a calculation carried out by Mr O, as a single expert.
It was put to the husband however that he had not disclosed the full nature of the arrangements that he had entered into with his son and that there was to be a CPI increase in the amount that he was to receive, that there were to be consultation fees and he was to become the owner of a motor vehicle.
I accept the husband’s evidence that the terms of Annexure “A” do not represent the final agreement with his son. It is subject to a formal recording of the agreement in a legal document and the finalisations of certain terms in that document (see Masters and Cameron (1954) 91 CLR 353). The second paragraph on page 2 of the document is in the following terms:
“Other considerations to be included in the engrossed document which is to be drawn as an arms length transaction with particular care and attention to taxation implications”.
Comment was also made that the husband had made mistakes on his most recent financial statement. Clearly his income as stated on that statement is incorrect. He had got that income correct in two previous financial statements he had sworn. He conceded that an incorrect figure appears on the current financial statement. The husband however was not attempting in my view to hide anything. At all times the husband asserted that he was receiving a capital amount of $11,000 a month from his son in respect of the proceeds of the sale of his practice.
He was criticised for only setting out details in relation to one motor vehicle on this financial statement when it was asserted that he in fact owned two motor vehicles.
That legally is not the case. The other motor vehicle will become his under the agreement that he has with his son in 2010 if, in the husband’s words, “he lasts that long”. Currently he has the full use of that motor vehicle, which is technically not owned either by him or his son’s professional practice but by the lessor. Whilst it is true that his most recent financial statement does not indicate the value of this motor vehicle to him, the fact that he has this motor vehicle made available to him by Blanks Partners is disclosed at item 18 on his current financial statement.
Overall I did not form the impression that the husband was attempting to secrete any part of his financial circumstances.
PROPERTY
The parties agreed on a list of property and liabilities of the parties (exhibit XX) with one exception.
The wife’s evidence is that $15,000 of her $47,610 paid legal fees came from a borrowing from her son. But in cross examination, the wife was unable to say there was any arrangement whereby the money had to be paid back. There was also some doubt in relation to the source of the $15,000 given that the wife was unable to satisfactorily explain how her son could have accumulated that capital sum when the wife still supports her son (see item 34 of her financial statement). She also gave evidence that she had in recent times paid rent for her son.
Counsel for the wife conceded during submissions that the alleged loan outstanding by his client to her son could not be sustained on the evidence. So I have removed that entry in exhibit XX.
Both parties have reached an agreement to add back legal costs and disbursements paid and given that is their agreement I do that. I note that the substantial part of the interim property settlement the wife received by way of the interim order made on 6 April 2005 has been used to pay legal costs. I further note that the amount that the wife received from that interim order has not been added back in the agreed lists of property and liabilities (see exhibit XX).
I find the property and liabilities of the parties to be:
Property $
(a)
W property (husband)
1,000,000.00
(b)
X property (husband)
825,000.00
(c)
Shares in public companies (husband)
82,416.00
(d)
Bank savings (husband)
5,201.00
(e)
Lexus motor vehicle (husband)
58,000.00
(f)
Furniture in wife’s possession (wife)
53,450.00
(g)
Furniture in husband’s possession (husband)
34,540.00
(h)
Horses (husband)
4,000.00
(i)
Jewellery (husband)
4,570.00
(j)
Jewellery (wife)
5,160.00
(k)
Volvo motor vehicle (wife)
4,000.00
(l)
Superannuation interest – D Blanks Superannuation Fund at 30.6.05 (husband)
1,160,128.00
(m)
Remaining proceeds of sale of professional practice (husband)[2]
539,759.00
(n)
Bank savings (wife)
1,500.00
(o)
Rental bond (wife)
3,000.00
(p)
Superannuation interests (wife)
5,135.00
(q)
Addback legal costs and disbursements paid (wife)
47,610.00
(r)
Addback legal costs and disbursements paid (husband)
46,475.00
TOTAL PROPERTY
$3,879,944.00
[2] The net present value of outstanding payments of $616,000.00 payable by instalments of $11,000.00 per calendar month discounted at 5.7% per annum per Mr. O.
Liabilities $
(a)
Mortgage (husband)
86,078.00
(b)
Hire purchase on vehicle (husband)
29,029.00
(c)
Credit cards (husband)
1,951.00
(d)
Other personal liabilities (husband)
4,072.00
TOTAL LIABILITIES
$121,130.00
SUMMARY OF NET PROPERTY
TOTAL PROPERTY $3,879,944.00
LESS TOTAL LIABILITIES $121,130.00
NET PROPERTY $3,758,814.00
CONTRIBUTIONS
Initial contributions
At the commencement of cohabitation the husband had the following assets:
99.1.His professional practice “[D Blanks] & Co”;
99.2.Shares in T Pty Ltd (40%) and Y Pty Ltd (50%);
99.3.A unit at N;
99.4.A property at S;
99.5.A property at K;
99.6.A share portfolio (1,467 Commonwealth Bank shares);
99.7.Shares in two race horses;
99.8.Furniture and chattels (located at two properties);
99.9.A motor cruiser;
99.10.Savings (approximately $20,000).
The wife had:-
100.1.Mercedes 190E motor car (as set out above this was sold for $7,500 in 1998 after $2,500 had been spent on it by the husband);
100.2.Furniture and paintings;
100.3.Some savings;
100.4.An interest in property at V owned with her former husband. As set out above the documentary evidence shows the wife received about $36,000 for her share when it was sold in 1998. The wife believes that she received about $40,000 although there is no additional paperwork to support that belief.
I accept the husband’s evidence (paragraph 42 of his affidavit) that at the commencement of the marriage the wife had debts of approximately $15,000 which he subsequently repaid.
The husband had the use of a Lexus motor car which was owned by the professional practice.
The husband also had liabilities. There was a mortgage in respect of the K property of $35,000, a mortgage in respect of the S property of $293,663 and he had a liability in respect of overdrafts and bank bills of $320,000. Y Pty Ltd had a mortgage of $150,000. The husband shared half the responsibility for that debt.
WIFE’S CONTRIBUTIONS
The wife says that she contributed to the income of the household from her work in nursing for the first three or so months of the relationship and six months part time work in both of the years 2000 and 2001.
She sets out in her affidavit contributions that she made in relation to various properties. Paragraph 26(a) – (j) of her affidavit sets out her contribution to the N property. The contributions that the wife made to the conservation and maintenance of the N property were the subject of some minor challenge in cross examination. The husband did not himself give evidence which challenged the wife’s assertions as to her contributions to the N property. Consequently the evidence that she gives at paragraph 26(a) – (j) of her affidavit remains substantially intact. Paragraph 26(k) – (y) sets out the wife’s contribution to the S property. Paragraph 26(z) – (hh) (excluding (gg)) sets out her contributions to the W property. I accept the wife’s evidence to which I have referred in this paragraph.
The wife did a number of things associated with the sale of the N property (as set out in paragraphs 29(b) – (h) of her affidavit sworn 25 August 2005).
The wife was the primary homemaker throughout the relationship, undertaking all the food shopping, meal preparation and cooking. The husband concedes that the wife was a good cook. The wife cleaned the homes in Sydney and the farm property on a daily basis. The wife gave evidence that she would even clean after the commercial cleaner had been there because she wasn’t satisfied with the way that the cleaning had been done. Given the unreliability of other parts of the wife’s evidence I treat that claim with some caution. The husband on the other hand was somewhat disparaging about the amount of time that the wife spent in cleaning activities. But, it is clear that the wife made a significant contribution to the care of the homes in which the parties lived.
The husband disputed the wife’s claim that she washed and laundered his clothes. He said that he was responsible for washing his underwear and that he had his shirts and suits laundered and dry-cleaned. Consistent with my findings of credit in this case I accept the husband’s version of that evidence, although the husband did not say that the wife did no washing or ironing for him. The wife assisted the husband in purchasing his clothing by attending with him when he purchased clothes and advising him in relation to choice of fabric and style and when he was having suits and shirts made up. The wife purchased gifts for the husband’s children and for family and friends. The source of funds for general household purposes throughout the marriage came overwhelmingly from the husband’s resources.
The wife’s care of the husband’s son J in 1998 when he was studying for the HSC and was in a depressed mood is dealt with at the third stage.
The wife looked after guests who stayed with the parties from time to time.
The wife generally cared for and nursed the husband including administration of physiotherapy and caring for him following his knee reconstruction in 2002; his fractured elbow in 2003 and even when the husband had an eye operation in 2004 at which time the parties were separated under the one roof. The physiotherapy referred to related to postural drainage connected to the husband’s chronic lung condition. The wife asserts that she did this on an almost daily basis for periods of time and those periods comprised months at a time. It was put to the wife in cross examination that there were no more than 20 occasions when this had occurred. The wife did not accept that evidence. The husband in his oral evidence seemed to doubt whether or not it was even 20 times. I am unable to make a finding about how many times the wife carried out this procedure for the husband but in general terms the husband conceded that the wife was very good at nursing him.
THE HUSBAND’S CONTRIBUTIONS
The husband was 66 years of age and the wife was 49 years of age when they married.
The husband had been in his professional practice since 1960 and had acquired significant wealth before meeting the wife.
The husband shortly after the marriage paid out debts of the wife in the sum of $15,000.
All financial contributions of substance during the marriage were made by the husband in supporting the lifestyle of the parties, maintaining accommodation and the provision of motor vehicles. As I will conclude below some of his personal exertion went to increasing equity in property.
An interim property settlement of $35,000 was provided to the wife in April 2005.
The husband funded a comfortable standard of living for the parties throughout the marriage.
The husband participated in some household duties, including cleaning, gardening and laundry, but I find that those contributions are nowhere near as significant as the contributions the wife made in the role of homemaker.
The husband recently paid out the DJ’s credit card which the wife had continued to use after the separation. The amount of that payment was in the approximate sum of $11,000.
DEFICIENCIES IN THE EVIDENCE IN RELATION TO CONTRIBUTIONS
In a marriage of a little over six years with no dependent children the authorities referred to above point to a greater focus on actual financial contribution.
Somewhat surprisingly there are a number of gaps in the evidence, in the financial history during the marriage.
The husband’s professional practice, D Blanks & Co
The husband’s interest in his professional practice was a significant asset at the date of the marriage. The evidence does not allow me to quantify what the husband’s practice was worth at the date of the marriage and there is no evidence before me as to what the practice was worth or how it traded between August 1997 and January 2001. As at 1 January 2001 the husband’s interest in the capital of the practice was in raw terms worth $1,320,000. I acknowledge that that amount would have to be discounted given that it was to be paid by monthly instalments of $11,000 over a ten year period.
Senior Counsel for the husband said that I can take it that the assets at the commencement of the marriage were approximately the same as they were at the end of the marriage. Applying that generalisation to the value of the husband’s practice is not easy. Whilst established in 1960, there is no reason why I should assume the husband’s practice did not increase in value between August 1997 and January 2001.
Also the husband drew on that capital between 1 January 2001 and December 2003.
It would be an error to firstly count the initial contribution of the professional practice and then count again the income earned from it in the first three years (apart from the earnings which would represent reasonable recompense for the husband’s personal exertion). That is, the practice’s initial value would be calculated with reference to the expected income earning capacity of the practice. In this case, however, the problem with double counting is hypothetical given that there is no evidence of the value of the professional practice at the commencement of the cohabitation.
Husband’s income during the marriage
I infer that the husband worked in his practice for at least the first three years of the marriage. There is no evidence of what was the husband’s earned income attributable to personal exertion by him in his practice between August 1997 and December 2000. The husband’s personal returns for that period are not in evidence. I might assume that he did but I don’t know how those earnings added to the wealth of the parties during that period. In a less than median length marriage, with the focus on financial contributions, this is an unfortunate gap in the evidence.
40% in T Pty Ltd
Paragraph 45 of the husband’s first affidavit indicates that this interest was sold on 30 June 2000 for $1,040,000. Again there is no indication as to what the value of these shares were worth in August 1997. Having said that however there is no indication that the husband was involved in any personal exertion to increase the value of the shares during the time of the marriage. The husband gives general evidence that most of the money found its way into his self managed superannuation fund. The agreed value of that fund is now $1,160,128. It is unclear as to exactly how much of the $1,040,000 was invested in the superannuation fund in 2000.
50% in Y Pty Ltd
The husband had a 50% interest in Y Pty Ltd. That interest was realised when the property which the company owned was sold for $239,000 net in about 2003. The husband originally said he used this money to pay off credit cards but in his second affidavit he clarified that that only $19,000 was used to pay credit cards, the balance in the sum of $220,000 was put into an investment account.
At the commencement of the cohabitation the husband had a debt of $75,000 relating to his interest in Y Pty Ltd. It seems that that liability was discharged in 2003 when the property which was owned by the company was sold.
N property
There is no evidence as to what the property at N was worth in August 1997. There is evidence at the date of the marriage that the husband had an overdraft in bank bills owing in the sum of $320,000. I would guess that the N property was security for that borrowing but I can’t make that finding based on any evidence. There is no indication as to what monies were paid off those mortgages between August 1997 and March 2000. I infer that there was some servicing of debt by the husband from personal exertion earnings but I am unable to say what it was.
In March 2000 the N property was sold for $635,000. The whole of the proceeds went to the purchase of the W property.
Those contributions are not of a financial nature. It is not asserted by the wife that she made any significant financial contribution to the N property. The point though is I am unable to say what reduction in the mortgage there was as a result of personal exertion by the husband from August 1997 to December 2003 or how N property increased in value over that time.
S property
There is no evidence as to what the S property was worth in August 1997 or in December 2003. It was sold in June 2004 for $1,065,000. Notwithstanding the separation the wife made contributions to the property up to the date of sale. The husband received $717,581 net from the sale. It is safe to infer that the mortgage that existed at the date of marriage on S property in the sum of $293,663 was discharged when S property was sold. Again I infer that there was some servicing of debt by the husband from personal exertion earnings between August 1997 and December 2003 but I am unable to say what that was.
K property
I do not know the value of K property in August 1997. It was sold in about 2003 for $65,000 and at that time a personal loan that the husband owed to the Commonwealth Bank was paid back. I have no evidence as to the purpose for which that personal loan was initially acquired. It does not seem to be a debt that existed at the date of the cohabitation.
X property
The wife said she was involved in the process of finding the X property (notwithstanding that the parties were separated under the one roof). The property was acquired as vacant land in June 2004 for $550,000. The husband built a project home on the property and it is now worth $825,000.
W property
W property was purchased in March 2000 for $750,000. There is no evidence as to what it was worth at December 2003. It is now worth $1 million.
Liabilities
At the commencement of the marriage the husband had the liabilities as set out in paragraph 103 above. The debt on the K property, the mortgage on the S property and the mortgage owed by Y Pty Ltd on its property were all discharged when those respective properties were sold. As I have commented above, there is no indication as to the source from which these mortgages were funded, particularly during the first half of the marriage. The only significant debt that now remains is an amount of $86,000 (which I assume is secured and secured against the X property (although there is no evidence to support either of those assumptions)).
In a letter that the husband wrote to the wife (the husband thought in about 2002; exhibit B), the husband sets out one of the “things we must do” is “get rid of my mortgages. This will overcome monetary problems”….”keep my affairs in order so that we have no problems with accounts. (I am in the process of doing this)”. The husband gave evidence that at that time he was struggling with the payments in respect of the two big mortgages (S property and the overdraft and bank bill liabilities). The payments were $4,000 per month.
I assume that the money that the husband received from the sale of the property owned by Y Pty Ltd whilst initially going into an investment account was used in some way to repatriate debt. Otherwise there is no explanation as to why that asset does not exist today.
The husband acknowledged that he had cash flow problems during the marriage. The wife initially received $300 per week and then $750 per week ($500 for housekeeping and $250 for her own personal allowance). I am satisfied that the wife is accurately giving evidence when she said that some of her $250 a week found its way back into the general upkeep of the N, W and S properties.
CONCLUSION IN RELATION TO CONTRIBUTIONS
As mentioned above the submission by Senior Counsel for the husband was that the assets of the husband at the end of the marriage can be seen as being the same as those he had at the commencement of the marriage.
Counsel for the wife says that there are no valuations for what the husband had at the commencement of the marriage and such a general assumption can not be made.
Senior Counsel for the husband says you don’t need a valuation in circumstances where you can demonstrate that the in specie assets are either intact or can be traced to other assets.
That submission is weakened by the lack of specific evidence that I have referred to above.
It is clear that the husband made the overwhelming financial contributions during the marriage. Some of those financial contributions though I find must have happened as a result of the husband’s personal exertions during the marriage. I find the income that the husband earned during the first three years of the marriage went in some part to the increasing of equity in his properties.
Part of what the husband provided the wife in this case was:
146.1.Accommodation;
146.2.A modern and safe motor vehicle from time to time;
146.3.Holidays;
146.4.Periodic monies for her own needs.
The wife made contributions in the role of homemaker and indirectly contributed to the husband’s ability to generate income through his personal exertions during the time that they were together. She was also involved in some minor personal exertion earning.
The husband submits that on one view the wife’s contributions to the benefit of the husband during this marriage were no greater than his to her and in that instance there would result no imbalance as would justly and equitably warrant a conclusion that it was appropriate to make an order for property adjustment in her favour. The husband further submits that taking the most generous view of her contributions the upper end of the range would be $100,000 (2.6%) in her favour of which she has already received $35,000.
The wife’s submission is that she should receive an adjustment of 12.5% by way of contributions.
I find that the wife is entitled to an adjustment based on contributions of 7.5% of the net property and that the husband is entitled to an adjustment based on contributions of 92.5% of the net property.
75(2) FACTORS
The husband is 74 years of age. The wife is 57 years of age.
If property is altered based on my findings as to contributions there will be a great disparity in financial positions of the parties. The property of the husband is significantly superior. The husband would have $3,476,903 (92.5% of $3,758,814) and the wife would have $281,911.
I take into account that this marriage lasted a little over six years.
The wife is 17 years younger than the husband and consequently the wife can expect a longer future working life than the husband who on his evidence no longer earns money through personal exertion (the $11,000 per month for the next five years is a capital payment). Having said that I recognise that the wife is currently 57 years of age and that her earning capacity is necessarily limited by that fact.
The wife gave evidence that she suffers from chronic neck and lower back pain with intermittent acute pain. She takes prescribed medication and consults with a physiotherapist for that condition. The wife’s health however does not currently seem to stop her from holding down a full time position.
The wife has the capacity to continue in employment for which her life experience qualifies her. On the evidence before me, the wife’s earning capacity is undiminished by any incidents of the marriage. The wife was working as a nurse in 1997.
The wife gave evidence that she is currently in full time employment as a nurse. She works a fortnightly roster where she works seven days on and seven days off. Her current level of income is estimated to be $1,350 gross per week. In addition in the week that she doesn’t work she does have the opportunity of doing further casual nursing work through an agency.
Senior Counsel for the husband referred to the fact that there was no evidence that the marriage had had any impact upon the wife’s employment. She was working as a nurse prior to meeting the husband and she is now back full time working as a registered nurse. He referred to the history of the wife’s employment immediately before meeting the husband. She had in 1996 been employed on a casual basis with the Mental Health Centre. It was put to the wife that that employment ended prior to December 1996 but she said that it had actually ended in January or February 1997. She agreed that that temporary position was then advertised as a permanent position about three months after that. She agreed she applied unsuccessfully for that position and she agreed that she was not working during 1997 prior to the marriage. It was put that that fact had to be compared with the wife’s assertion in her affidavit that the reason she didn’t work during the marriage was because of the husband’s insistence.
The husband has suffered from a chronic lung condition since he was 15 years of age and from time to time requires postural drainage. He suffers from occasional shortness of breath and tightness in the chest. The husband is otherwise in reasonable health.
The husband has available to him a weekly sum equal to $2,540 per week after tax. It would be double counting to value the professional practice at the date of hearing and then count the income which the husband will earn from it in the next five years (this is a point made in the case of C & C [2005] Fam CA 159 referred to in GBT & BJT). The value of this monthly income stream to the husband has been valued and forms part of the asset pool. I have already taken into account the disparity of the overall financial positions of the parties after the assessment of contributions (see paragraph 152 above).
Neither party has formed any new relationship.
It was agreed by the parties that the parties’ respective superannuation entitlements be treated as if it were property. The source of the husband’s superannuation came from the husband selling pre-marital assets. The husband’s superannuation interest is in a self managed fund which is totally controlled by the husband. It is in my view property in the sense described by the Full Court in Wunderwald (1992) FLC 92-315. There is no evidence before me which would indicate there was now any obstacle to the husband accessing that fund. The husband’s superannuation entitlements are currently $1,160,128. The wife’s superannuation entitlement is $5,135. The Full Court in Bartlett (1986) FLC 92-721 emphasised that it is not double counting to take into account at the third stage an asset or resource that is overwhelmingly available to one of the parties after a contribution based assessment has been made in respect of that asset or financial resource at the second step.
However, the disparity in superannuation entitlements should be seen as only one aspect of the overall significant disparity in wealth between the parties which I have already referred to at paragraph 152.
The wife agreed that the husband paid for her son’s school fees from mid 1997 to when he finished high school at the end of 1999. The husband provided accommodation, food, clothing and health fund expenses for periods for the wife’s son. He did similar for her daughter and grandson for two periods totalling 9-10 months (paragraph 64 of the husband’s affidavit).
Although the wife lists that she took care of the husband’s son J in 1998 when he was studying for the higher school certificate as a contribution, the Full Court in Robb (1995) FLC 92-555 would more properly have it considered as a 75(2)(o) factor.
The wife was cross examined about whether or not the husband had provided funds for she and the husband to purchase a motor vehicle as a birthday present for her son. The wife was unable to give definite answers when asked about those matters. The husband, however, gave no evidence on this topic and I am unable to make any finding about whether or not he provided funds for the purchase of a motor vehicle for the wife’s son as a present.
On 75(2) factors it is submitted by the husband that properly accounting for all relevant 75(2) factors would most generously result in an adjustment in the wife’s favour of $100,000.
The wife suggests 17.5% by way of 75(2) factors.
CONCLUSIONS IN RELATION TO 79(4)(d) – (g) FACTORS
I find that the wife is entitled to a further adjustment of 5% in relation to factors set out in Section 79(4)(d) – (g) FLA.
JUST AND EQUITABLE
It is agreed the wife will receive the following assets:
Furniture in her possession $53,450.00
Jewellery 1,560.00
Volvo motor car 4,000.00
Bank savings 1,500.00
Rental bond 3,000.00
Superannuation 5,135.00
$72,245.00
This marriage is under median duration. In accordance with the findings that I have made it is a marriage which lasted slightly over six years.
The wife’s application for 30% of the available pool of assets is in my view far removed from a just and equitable result. Nor, in my view is the 6.3% (165,000+ 72,245/3,758,814) proposed by the husband a just and equitable result.
Based on my findings in relation to contributions and 79(4)(d) – (g) factors, the wife is entitled to an adjustment of 12 ½% from the net property of the parties. This is an amount of $469,851. Standing back, I consider that result to be just and equitable.
The amount to be paid by the husband to the wife would therefore be in the sum of $397,606 (469,851 – 72,245).
DAVID JONES ACCOUNT
The husband sought an order which would close the joint account with David Jones. The evidence is that the husband has recently paid out the debt on that account. Mindful of Section 81 FLA, it seems sensible to make such an order.
PROPOSED ORDERS
That within three (3) calendar months the husband pay to the wife or as she shall direct in writing the sum of $397,606.00.
That each of the husband and wife shall be restrained from debiting any amount to the account with David Jones Ltd and they shall sign all consents and do all acts and things necessary to cause the said joint account to be closed.
I certify that the preceding
pages are a true copy of the reasons
for judgment herein of
Justice Watts.
Associate
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