Britton and Firmer

[2011] FamCA 786

FAMILY COURT OF AUSTRALIA

BRITTON & FIRMER [2011] FamCA 786

FAMILY LAW – PROPERTY SETTLEMENT – Date of Separation –Contributions – Care of children from a previous relationship – Financial disparity between the parties after separation – Capacity to obtain gainful employment –Property acquired after separation –Just and equitable adjustment

Family Law Act 1975 (Cth)

APPLICANT: Ms Britton

RESPONDENT: Mr Firmer

FILE NUMBER: TVC588 of 2007

DATE DELIVERED: 12 October 2011

PLACE DELIVERED: Townsville Qld

PLACE HEARD: Townsville Qld

JUDGMENT OF: Monteith J

HEARING DATE: 19 – 23.09.2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Honchin

SOLICITOR FOR THE APPLICANT: Stevenson & McNamara

COUNSEL FOR THE RESPONDENT: Ms McDiarmid

SOLICITOR FOR THE RESPONDENT: Brad Robins Legal Centre

Orders

1.The husband pay to the wife the sum of $122,044 within twenty-eight (28) days.

2.Liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Britton & Firmer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC588 of 2007

Ms Britton

Applicant

And

Mr Firmer

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant wife seeks a five to eight percent adjustment of the property pool in her favour, as a property settlement under s 79 of the Family Law Act 1975 (Cth) as amended.

2. The respondent husband resists the applicant wife’s application and submits that it would not be just and equitable to make any adjustment of the property pool under s 79 in the applicant wife’s favour.

Background

1. The applicant wife was born in 1972 in Queensland and is now 39 years of age (“the wife”).  She has one child from a previous relationship, K, aged 13.  She receives $69.25 per week child support from his father.

2. The respondent husband was born in 1965 in Queensland and is nearly 46 years of age (“the husband”).  He has two children from a previous relationship, J, aged 11, and C, aged 8.  They are presently living with him on a rural property but are likely to move back to Townsville to live with their mother in the foreseeable future.  He was paying $200 per week child support for J and C but that has ceased since they commenced residing with him.  He has remarried Ms L, with whom he has had a child, S, and they live with him on the property.  His wife is currently pregnant with their second child.

3. It is tolerably clear that the parties became engaged in April 2005, commenced cohabitation in June/July 2005, and married in October 2005.

4. There are no children of the marriage.

5. The date of final separation is in dispute between the parties.  It is clear that in late February / early March 2006, the wife left the matrimonial home.  The husband submits that this is the date of final separation.  However, a relationship continued between the parties up until December 2006.  It is the cessation of this relationship upon which the wife relies as the date of the final separation.

6. The parties divorced in August 2007.

7. The wife is employed on a casual basis, working 25 to 30 hours per week as a specialised health consultant, earning $600 to $700 gross per week.  The husband’s income is somewhat difficult to determine.  His Notice of Assessment for the years 2004/5 and 2005/6 were tendered and they show that he had a nil assessable income for each year.  His most recent financial statement filed on 19 September 2011 shows his average weekly income as $1,150 per week made up of family allowance $400, benefits from his employment $250 and drawings from Company P (a company incorporated to operate the property at Town T, Queensland on which he lives) $500.  In evidence, he said, “My companies pay for everything.”

Principles Applicable to the matters before the Court

1. The provisions of s 79 of the Family Law Act define the Court’s power and obligations in determining applications for property settlement.  The Court has a discretion to make orders altering the interests of parties in property, provided the Court is satisfied that such orders are appropriate, just and equitable.

2. The Court is obliged by the provisions of s 79(4) to take into account the following matters:

   a)the financial and non-financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them (sub-paragraphs (a) and (b));

   b)the contribution made by a party to the marriage to the welfare of the family, including any contribution made in the capacity of homemaker or parent (sub-paragraph (c));

   c)the effect of any proposed order upon the earning capacity of either party to the marriage (sub-paragraph (d));

   d)the matters referred to in s 75(2) so far as they are relevant (sub-paragraph (e));

   e)any other order made under the Act affecting a party to a marriage or a child of the marriage (sub-paragraph (f));

   f)any child support payable (sub-paragraph (g)).

3. Accordingly, in assessing the entitlement of each of the parties to property settlement, there is both a retrospective element relating to the contributions of each of the parties and a prospective element relating to matters referred to in s75(2).

4. According to guidelines established through a series of leading decisions, the Court should determine the following matters on the evidence, that is:-

   ·    Firstly, the Court must determine the assets, liabilities and financial resources of the parties to the marriage.

   ·    Secondly, the Court must consider all relevant contributions of each of the parties and, where possible, the Court should assign an entitlement of each of the parties arising as a result of those contributions.

   ·    Thirdly, the Court should then consider the prospective components of the claims of each of the parties arising as a result of the provisions of s75(2).  The Court should then identify what alteration, if any, should be made to the entitlement of each of the parties earlier assessed on account of contributions as is deemed necessary having regard to the s 75(2) factors.

   · Fourthly, having determined and considered the entitlement of each of the parties to property settlement, the Court should consider whether there is, in addition, any entitlement to spousal maintenance, either periodic or lump sum, in accordance with the provisions of ss 72 and 74 of the Family Law Act.

The Evidence

1. Neither party was a particularly satisfactory witness.

2. On the evidence, I find that the parties first met in 2000 or 2001, but it was not until New Year’s Eve 2004/5, that the parties commenced a relationship.

3. In early 2005, they holidayed together with their children at a resort in Queensland but then there was a short break in their relationship in April, prior to them becoming engaged.

4. As I have said already, it’s tolerably clear on the evidence that the parties commenced cohabitation in June/July 2005.

5. The parties married in October 2005, and there is little doubt that the wedding reception was a little untidy.  Various members of the bridal party and attendees at the reception were involved in an incident at the venue

6. The husband sought to make some criticism of the wife with respect to this incident but I think that is wholly unjustified.

7. In my view, nothing whatever turns upon this incident.

8. What I think is tolerably clear is that his children were a source of conflict between the parties.

9. The wife denied it but I am persuaded on the evidence that she was intolerant of his children.

10. Although there is some dispute between the parties as to what exactly happened in late February, early March, it is clear enough that it revolved around J being physically sick and the wife wishing to shower so as to get to work.

11. Precisely what happened does not seem to matter much but it is clear that the wife left the matrimonial home at or about that time and went to live with her mother.  Thereafter, whatever the relationship with the husband was, she had nothing to do with his children.  That is because, it was conceded, that the time that she spent with the husband subsequent to that event was time when  his children were with their mother rather than staying with the husband.

12. Consequently, any contributions that the wife made subsequent to this incident, were not contributions referable to the care of J and C.

13. There is a dispute on the evidence as to what contribution the wife made in the period between June/July 2005 and February/March 2006.

14. She clearly made no financial contributions other than the purchase of groceries and like items from time to time during this period.  Her contributions were predominantly to the welfare of the family constituted by the parties to the marriage and any children of the marriage including any contribution made in the capacity of homemaker or parent.

15. Throughout the husband’s evidence, he sought to minimise the period of cohabitation and the extent of any contribution made by the wife.  On the other hand, the wife sought to maximise the period of cohabitation and emphasise the extent of her contribution.  I found neither very convincing.

16. Clearly, through some of this period, the wife did not work and was available to provide a contribution in the way that I have identified.  However, the husband only had his children on alternate weekends, Wednesday nights and holidays.  Consequently, his children were not there all the time.

17. On the evidence, I am persuaded that the wife did provide for his children when they were living with him, and for him, contributions to their welfare in the capacity of a homemaker and parent.  I do not, for a moment, accept that he did all the work.  For a while, he sought to maintain that he did all the cooking, but then abandoned that at the trial.  Nevertheless, his children were a source of conflict between them and I think that that conflict probably impinged upon the degree to which the wife provided for them in her capacity as a homemaker and parent.

18. I find that any contributions she made with respect to Property W in Northern Queensland was minimal.

19. After she left the matrimonial home in late February/early March 2006, I find that the relationship continued but in a different way.

20. I find that both parties were attempting to find a way to make their marriage work.

21. I find that the wife did spend many lunches together with the husband and that she spent, if not all, certainly a lot of alternate weekends staying with the husband at the matrimonial house.  These alternate weekends coincided with his children being with their mother and her son being with his father.  That allowed the husband and wife to spend time together without the complication of children from earlier relationships.

22. It is clear on the evidence that the parties, during this time, attended functions together as husband and wife.  The last of these occasions was a wedding in November 2006, when the parties flew down together and attended the wedding as husband and wife.  They flew together, slept together in the same hotel room, and stayed over the following day shopping and then returned the next day, as it was the husband’s birthday.

23. I accept that during this period, they both attended counselling, firstly with Mr R of People Development and subsequently at Relationships Australia, through August, September, October and November of 2006.

24. Although this has little significance in the asset pool, a Mazda was purchased and used by the wife.  This was in June 2006.  This vehicle was purchased new and registered in the name of S Pty Ltd.  Very little can be drawn from that because all vehicles were registered in the name of the company including the vehicles that he drove for his personal use, and a caravan that was, in fact, owned by his parents.  It was part of a pattern of financial manipulation by the husband for apparently tax reasons.

25. It was his case that he simply provided the car for her use because her old Ford was in need of repairs.

26. I find that the husband has been untruthful in relation to the circumstances surrounding the Mazda.

27. As it turned out, it was the Mazda that caused the final breakdown of this marriage.

28. The wife asserts that the Mazda was purchased for her and given to her as a present.  Her former motor vehicle was taken to S Pty Ltd and she did not see it again until December 2006.

29. In December 2006, the husband went to the wife’s mother’s premises, where the wife was living, and removed the Mazda without any warning or telling the wife that he had done so.  She reported it stolen and it then turned out that the Police became involved but because it was registered in the name of S Pty Ltd, they declined to act.  The next day, the wife’s former motor vehicle was returned to the wife and she was then asked to pay for the cost of repairs to that vehicle which had been undertaken by S Pty Ltd or one of the other companies under his control.  When she refused to pay, she was sued.  These proceedings were compromised without her having to pay.

30. What gives the lie to the husband’s position is in fact an affidavit filed on his behalf by his business partner, Mr Y.

31. He deposes in paragraph 14 that:

    [The husband] would often tell me how he tried to work towards keeping the marriage together and would buy things for [the wife], at her request, to try and keep her happy.  This was very unusual behaviour for [the husband] as in the whole of time I have known [the husband], I have not known him to unnecessarily spend money on material items.  [The wife] always demanded more from [the husband] by way of material possessions.  For instance, she insisted that she needed a new car and demanded that [the husband] purchase her a new car.  [The husband] purchased a new Mazda through his business, S Pty Ltd, in an effort to try to keep her happy and the marriage together.

32. It goes on to talk about the car being registered in the name of the company and her former motor vehicle being repaired at no cost to the wife.

33. That seems somewhat extraordinary having regard to the fact that she was sued for the cost of repairs.

34. For my purposes, the significance of the car is evidence of the continuation of the marriage and of the husband attempting to keep the wife happy for the purposes of keeping the marriage together.

35. However, as I have already said, during this period she provided no contribution to his children.  However, I find that she did make contributions to the welfare of the family constituted by the parties to the marriage, including contributions made in the capacity of homemaker during this period.

36. Nevertheless, the contributions had to be comparatively minor in that the relationship was one where they saw each other regularly and had alternate weekend sleepovers at the matrimonial home.

37. On any view, all contributions ceased when the husband unilaterally removed the Mazda from the wife’s possession.

38. The wife brought very little into the marriage by way of assets.

39. On the evidence, I find that each party contributed approximately equally to the cost of the wedding.  The only additional factor is that the husband purchased the wife a $9000 engagement ring.

40. The wife brought in some furniture, white goods, personal effects and her former motor vehicle.

41. When she eventually left, she basically left with the same goods she took into the marriage.

42. Prior to the marriage, she was in rented accommodation.  Subsequent to the marriage, she moved in to live with her mother.

43. As I have said, she is in employment as a specialised health consultant on a casual basis with Business FT.  She is earning between $600 and $700 per week gross.  She says that she is restricted in the amount of work she does because she suffers from a number of health problems after standing for any lengthy periods.

44. She completed her education to Grade 10 at School Z and since then has been employed largely as a sales assistant in various retail stores and as a part time model.

45. She was employed post separation at the Business N, but had to cease that employment in March 2010 due to being diagnosed with cancer.  This was a recurrence of the cancer which had first occurred in February 2002.  At that time, she had two significant operations.  In March 2010, she had surgery for the removal of tumours including a full hysterectomy and removal of lymph nodes.  She then had a course of chemotherapy from May to September 2010.  She has continued to need physiotherapy at the hospital to treat her condition and also attended occupational therapy.

46. The first witness called in these proceedings was Dr V who is a consultant medical oncologist and who treated the wife.

47. He prepared two reports which are annexed to his affidavit, one on 20 April 2010 and one on 27 January 2011.  As at 27 January 2011, his opinion was the prognosis at that stage of cancer was generally good.

48. In his evidence before me, he reaffirmed that her prognosis was generally good but said that she had a 20 percent chance over the next five years of a recurrence.

49. The husband, on the other hand, appears to be in relatively good health.  He has been able to continue his business activities and at present is conducting a comparatively large rural property near Town T.  He and his new wife live on that property.  He deposes that he has an interest in three entities so I infer that the retail businesses are still extant.

50. There was some evidence that he has an injured neck from an accident and as a result, takes anti inflammatories.   This only came to light because he mixed anti inflammatories and as a result had a stomach bleed.  His doctor was called to give evidence about that incident but there is nothing to suggest that it restricts him in any significant way.

51. He transferred the Property W to his parents as trustees of the superannuation fund for something in excess of $2 million but that has been brought back into the pool by way of an add-back and I will deal with that later.

Income, Property, Financial Resources and Liabilities of the Parties

1. Exhibit 1 in these proceedings was tendered by the husband which is a Balance Sheet setting out the financial position of the parties.  Although it shows Wife’s Value and Husband’s Value, at the commencement of the proceedings, Mr Honchin, on behalf of the applicant wife, agreed that the wife accepted the husband’s values.  I set out the Balance Sheet hereunder:

   Ownership     Description  Values  

   ASSETS  Wife              Husband

   1      Wife       Money in Bank Accounts  $7,137.46      $7,137.46    

   2      Wife       Ford   100.00          100.00

   3      Wife       Household Contents  2,000.00        2,000.00

   4      Husband Money in Bank Accounts  10,619.00

   5      Husband Share Portfolio  53,502.97

   6      Husband Unit [D]  600,000.00

   7      Husband Household Contents  20,000.00

   8      Husband Marina Berth  80,000.00

   9      Husband Shares in [S Pty Ltd (…)]  345,706.00

   10    Husband Shares in [F] Pty Ltd  34,279.00

   11    Husband Assets Transferred from [S Pty Ltd] to [F Pty Ltd]  32,500.00

   12    Husband Business Name [“SM”]  1.00

   13    Husband Shares in [Company P]  100.00

   14    Husband Loan to [SF Trust (…)]  2,481,343.00

   15    Husband Assets Transferred from [S Pty Ltd] to

   [SF] Trust  8,500.00

   16    Husband Interest in [Company O]  3,597.00

   Total  $3,679,386.00

   ADDBACKS

   17    Husband Notional Add back of [Property W]  2,100.00

   Total  $5,779,386.00

   LIABILITIES

   19    Wife       Credit Card  1,658.99        1,658.99

   20    Husband Credit Card  12,925.00

   21    Husband Loan to Mr F  170,000.00

   22    Husband NAB loan for Unit D  501,190.17

   23    Husband 2008/2009 Income Tax Liability including

   Capital Gain Tax liability on B Street Property         138,088.00

   24    Husband Loan from S Pty Ltd  308,539.00

   25    Husband Loan from F Pty Ltd  47,792.00

   26    Husband Financial liability for lease of Assets trans-

   ferred to F Pty Ltd from S Pty Ltd  17,664.00

   27    Husband Loan from Mr A  60,000.00

   28    Husband Stamp Duty to be paid on Property W  27,000.00

   Total  $1,284.857.16

   SUPERANNUATION

   29    Wife       Superannuation – Accumulation

   34,160.47      36,160.47

   30    Husband Superannuation – Accumulation

   42,035.00

   Total   $78,195.47

   FINANCIAL RESOURCES

   34    Husband Interest in the SF Trust  -$504,584.00

   Total  -$504,584.00

   Total Assets and Resources  $5,857.581.47

   Total Liabilities  $1,789,441.16

   Total Net Pool  $4,068,140.31

1. The total net asset pool is $4,068,140.31.  However, I do have to have regard to the fact that there is an add back of $2,100,000 which is Property W.  It is property transferred by him into a superannuation fund in the name of the husband’s parents.

Contributions

1. I have already discussed under the heading “Evidence” the wife’s contributions.  Ms McDiarmid, on behalf of the husband, argued that it was such a short marriage and so little by way of contribution by the wife, that the parties should be simply placed back in the position they were prior to the marriage.

2. Mr Honchin, who appeared on behalf of the wife, on the other hand argued that her contributions under s 79(4) should be assessed at three to five percent.

3. I consider that the contribution made by the wife to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage including any contribution made in the capacity of home maker or parent should be assessed at 1.5 percent.

Section 75(2) Factors

1. I have also discussed under the heading “Evidence” the s 75(2) factors.  Ms McDiarmid submits that I should make no adjustment under s 75(2).  Mr Honchin, on the other hand, submits that I should make an allowance of two to three percent.

2. There is of course a huge financial disparity between the two parties.  There is also a significant health issue hanging over the head of the wife.  I accept her evidence that her condition restricts her working capacity.  During her relationship with the husband, she also became used to a standard of living which included living in quality accommodation, regular trips away on the husband’s, driving good quality cars, including the husband’s motor vehicle, and holidays to resorts. I consider that an adjustment of 1.5 percent to be appropriate in these circumstances.

Conclusions

1. The effect of those findings is that there be an adjustment in the wife’s favour of $122,044 and I am satisfied that, in all the circumstances, it is just and equitable to make such an order.

Orders

1. I order that:

   1.The husband pay to the wife the sum of $122,044 within twenty-eight (28) days.

   2.Liberty to apply.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith delivered on 12 October 2011.

Associate:

Date:  12/10/2011