C and C
[2002] FMCAfam 122
•31 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2002] FMCAfam 122 |
| PROPERTY – Adviser – needs of parties. |
| Applicant: | J Z C |
| Respondent: | M C |
| File No: | ZM 3537 of 2001 |
| Delivered on: | 31 May 2002 |
| Delivered at: | Melbourne |
| Hearing Dates: | 15, 16 & 19 March 2001 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Gary Glover |
| Solicitors for the Applicant: | Kenna Croxford & Co |
| Counsel for the Respondent: | Ms Eilish Cooke |
| Solicitors for the Respondent: | Stephen Kearney & Associates |
ORDERS
That the property situate at and known as 1 T Drive, D be sold by an estate agent and on terms to be agreed between the parties and upon completion of the sale the proceeds of the sale be applied:
(a)First to pay all costs, commissions and expenses of the sale;
(b)Secondly to discharge the mortgage and any other encumbrances affecting the real property;
(c)Thirdly any payment outstanding to D G for construction of a sliding gate at the property;
(d)Fourthly the balance to be divided in the proportion of:
(i)30% to the Husband;
(ii)70% to the Wife.
That pending the payment and completion of the sale:
(a)The Husband has the sole right to occupy the property assuming such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)Neither party encumber the property without the consent in writing of the other party.
Each party is solely entitled to the exclusion of the other to all other property, including motor vehicles in the possession of such party at the date of these Orders.
Each party is entitled to money standing to the credit of that party in a bank account.
Otherwise all applications are dismissed and removed from the pending cases list
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 3537 of 2001
| J Z C |
Applicant
And
| M C |
Respondent
REASONS FOR JUDGMENT
The Husband and Wife commenced cohabitation in 1985 and were married on the 16 November 1986. The Husband was born on 4 June 1962 and is now aged 39 years. The Wife was born on 27 April 1966 and is now aged 34 years.
There are four children of the marriage, Z C born 18 February 1988 now aged 13, A C born 24 October 1989 now aged 11, G C born
24 June 1992 now aged 9 and S C born 19 October 1995 now aged 5.
On 8 February 2000 the Husband filed an application in the Family Court of Australia seeking final orders for residence and property matters and on the 24 February 2000 the Wife filed a response; again in the Family Court of Australia seeking residence of the children and property matters. The children’s matters were resolved and final orders were made in the Family Court of Australia. On 22 February 2001 the matter was transferred by order of a Registrar of the Family Court to the Federal Magistrates Court pursuant to 33B of the Family Law Act 1975.
The parties lived with the Wife’s parents until they purchased their matrimonial home at 1 T Drive, D in 1988. The purchase price was $60,000.00. $40,000.00 was borrowed. The balance came from savings including part of a personal injury settlement that the Husband had received in September 1988. A statement of account from solicitors who acted for the Husband showed that on 15 January 1988 $14,920.00 was received from Transport Accident Commission (TAC) and on the 22 January $10,000.00 was paid to the Husband. On
6 November 1988, $12,376.26 was received from TAC as party/party costs and disbursements.
The total received from TAC was $27,296.26 of which $17,296.26 went to costs and disbursements and $10,000.00 to the Husband.
The money came about as a result of the motor vehicle accident in 1981 when the Husband received injuries including burns; injuries from which he says he still suffers. The parties first separated in 1989 or 1990. The Husband in his affidavit puts it at 1989 or 1990 and the Wife at February 1990. At that stage the parties had two children. During this time the two children resided with the Wife and the Husband had access to them.
On 5 December 1990 the parties signed consent orders by which the Husband was ordered to pay the Wife $12,500.00 and the Wife was ordered to transfer her interest in the matrimonial home to the Husband.
The Husband paid an amount to the Wife. He says $12,500 and she says $14,000. The transfer was executed but never registered.
In 1991 the parties reconciled. The Husband says early 1991. The Wife says July 1991. The Wife and the two children then returned to reside at the matrimonial home.
Of the money that had been paid to the Wife, the Wife’s evidence was that she had paid $8,500.00 in legal fees leaving a balance of $5,500.00 in the Commonwealth Bank at Dandenong. She says that when they reconciled in 1991 she paid him $5,000.00 to help him pay a debt of $12,000.00 to his father leaving her with a balance of $5,000.00 in the Commonwealth Bank.
The parties’ separated again in late 1993 or early 1994. The Wife left the home with the three children and borrowed $1,000.00 from a friend to establish a new home.
The parties reconciled in September 1994. From February 1994 until September 1994 the children resided with the Wife and the Husband had contact with them on alternate weekends.
The fourth child was born in October 1995 and the parties separated again in November 1996. In 1997 the parties again reconciled. The children lived with the Wife during the period of separation. In February 1999 the parties separated again and have remained separated.
The employment history of the Husband is that he had a carpet cleaning business and tree removal business but has been on Social Security benefits from at least 1997. He puts that as a consequence of the injuries he received in the car accident. There was no medical evidence, but the fact is that he is now working and is dependent on Social Security benefits.
He is to some extent physically active. He goes scuba diving and has a home-made gymnasium at the home. He does obtain some casual work as a security guard. He says he is impeded in this because of intervention orders that the Wife has obtained against him from time to time which prohibits him from carrying a firearm.
The intervention orders have come about on several occasions as a result of allegations by the Wife of violence by the Husband. I accept that there was some violence by the Husband to the Wife, and that the marriage was a turbulent one as the periods of separation show.
The Wife was diagnosed with breast cancer in 1998. She underwent operations and had chemotherapy and radiotherapy for some months. In her affidavit she said that she had chemotherapy in two blocks from May 1998 to July 1998 and from October 1998 until January 1999. From July 1998 to September 1998 she had radiotherapy daily.
She again had chemotherapy from October 1998 to January 1999.
She again had surgery in Feburary 2001. The Wife has obtained some part-time employment but her medical condition and operations have made it difficult. She is able to work as a gaming venue attendant and has the necessary licence to do so. However, she has difficulty lifting one arm and her ability to work is limited.
The Wife’s evidence is that the Husband gave limited assistance with the children throughout the marriage and limited assistance to her when she was ill. She says that during the period when she was in hospital and undergoing treatment her parents came and looked after the children. The Husband disputes this. The Wife says that the Husband was more interested in his scuba diving activities, working out in his home made gymnasium and other activities away from the home. I accept the Wife’s evidence that she undertook the major task of looking after the children.
The approach to be taken in property proceedings is a three-step one. The three steps are:
a)Identify and value the net property of the parties;
b)Consider the contributions of the parties within subsection (a)-(c) of section 79(4) of the Family Law Act 1975;
c)Consider the section 75(2) factors as required by section 79(4)(d) – (g). Authorities for this approach are Ferraro & Ferraro (1993) FLC 92-335 and McLay & McLay (1996)FLC 92-667.
The matrimonial home is at 1 T Drive, D. There was dispute about valuation. The Husband said $78,000.00 and the Wife $90,000.00. There is a mortgage of about $21,000.00. The Wife alleged that the Husband had carpet cleaning equipment from his previous business, scuba diving equipment and gymnasium equipment. The Husband said that he had disposed of the carpet cleaning equipment and had received little for it. The scuba diving equipment, which he had at home from time to time, was not his but was borrowed. The gymnasium equipment he described as various items he had obtained for nothing and things he had made himself. The Wife also alleged that the Husband had two cars. The Husband’s evidence was that only one was of any value, that being a Ford Bronco. The Wife has a Ford Fairlane motor vehicle.
Although I prefer the Wife’s evidence to the Husband’s in relation to these items of property, there is only the Wife’s assertion of their existence which is not disputed by the Husband. The Husband’s evidence of ownership and value of this property is not contradicted. The general circumstances suggest that the Husband did not have the means to obtain expensive scuba diving equipment or expensive gymnasium equipment, and insofar as the general circumstances of the case are, they point towards the Husband’s evidence as being correct.
Consequently, the only matrimonial property is the house and the motor vehicles.
At about the time of separation the Husband had a sliding gate installed on the former matrimonial home and owes the D G Company $4,500.00. He says that in addition, he has a debt to a family member of $2,700.00 and a Mastercard debt of $1,900.00. He values the two motor vehicles he has – one at $1,800.00 and the other at $10,000.00; the latter being the Bronco vehicle.
The Wife’s financial position is that she owns a Ford Fairlane with a value of about $4,000.00 and owes $900.00 on a credit card. She has a bank loan of $5,000.00 and legal fees of about $6,000.00. She has worked part time as a gaming venue assistant and has the necessary license to do this.
As a result of the Family Court orders referred to above, the children live with the Wife but have substantial contact with the father; such that family assistance payments are split between the Husband and Wife but the majority of them going to the Wife. Nevertheless, the Wife must provide accommodation for herself and the four children; she is paying $175 per week in rent.
The Wife has a small amount of superannuation, about $500.00. The Husband has disclosed no superannuation but given his employment history, which is largely self-employed, it is quite likely that he has none.
The property pool is therefore the following:
Matrimonial home, 1 T Drive, D
$ 85,000.00
Less mortgage
$ 21,500.00
Balance
$ 63,500.00
Husband’s motor vehicles
$ 11,800.00
Wife’s motor vehicle
$ 4,000.00
Sub total
$ 79,320.00
Less gate debt
$ 4,500.00
Wife’s loan and legal fees
$ 11,000.00
Less combined Bankcard debts say
$ 1,500.00
Total
$ 62,320.00
The next step is to consider the contributions of the parties under section 79(4) paragraphs (a), (b) and (c). These are financial contributions by the parties, non-financial contributions by the parties, and contributions made to the welfare of the family including contribution in the capacity of homemaker or parent.
The financial contribution has nearly all been from the Husband. On the other hand, the Wife’s non-financial contribution has been substantial. Renovations were done to the property by the Husband. The Wife assisted in these in cleaning and generally caring for the house in the course of the renovation, as well as caring for the children and the household
In terms of paragraph (c), the marriage was a long one, although turbulent and marked by substantial periods of separation. Even if the marriage for the purposes of property is looked at from 1991 when the original property settlement was made, it is still a substantial marriage. The Wife’s contribution as homemaker and parent and the length of the marriage plus her other contribution justifies an assessment of the contribution factors as 50% to the Wife and 50% to the Husband even taking into account the property settlement in 1990. The Wife received a nett amount taking her version of $8,500.00; all of which went in legal fees.
The third step is to assess the section 75(2) matters. The relevant ones are these:
a)The age and state of health of each of the parties;
Both parties are relatively young, both have health difficulties. The Wife has had a breast removed and surgery and substantial treatment for breast cancer. An affidavit by her treating specialist states her prognosis is good but nevertheless she does have a limited ability to work. Likewise the Husband suffered severe injuries in a car accident. He does have the ability to work but it is limited.
b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.
The parties’ financial resources are limited. They have the house and each has a car. The Husband has a history of gainful employment notwithstanding his injuries but as he gets older his limitations will increase. The Wife has obvious disabilities and a limited ability to work. Perhaps one day a week is a reasonable assessment.
c)Whether either party has the care and control of the children of the marriage who has not obtained the age of eighteen years.
The Wife has the substantial care and control of the four children.
d)Commitments of each of the parties who are necessary to enable the party to support:
(i)himself or herself;
(ii)a child or another person that the party has a duty to maintain.
Each has the normal requirement to support themselves. Each lives modestly. The Wife must support the children. At the time of the hearing, each was totally reliant on Social Security payments.
The Wife’s small superannuation is not relevant.
My assessment of the adjustment for need is that the Wife, because of her illness, has a substantially lesser ability to earn income than the Husband. In addition, she has the care of the children. When the small size of the pool is looked at, I consider that an adjustment in favour of the Wife should be made.
I need to take into account the requirement that overall, the result is just and equitable as required by section 79(2). That section says
“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.”
The property pool here is small and although the parties have assets in their possession in terms of the motor vehicles, neither is a readily realisable asset. Neither has an ability to raise money to make a payment to the other. I consider that the appropriate way to make an adjustment for the needs of the Wife is to make an adjustment in her favour of 20% and to apply the result to the former matrimonial home only. That accounts for the Husband’s car having higher value, his occupation of the matrimonial home since separation and the greater needs of the Wife. The pool of assets is small and the only practical means of division is the sale of the house. To make a decision on the strict basis of the asset pool would not do justice between the parties.
I will therefore order that the house be sold and the net proceeds be divided – 70% to the Wife and 30% to the Husband. The net proceeds needs to take into account the bill for the gate as well as the mortgage and the selling expenses. Otherwise each party will retain what they have and be responsible for debts in their own names.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Phipps FM
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