C and C
[2001] FMCAfam 194
•17 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2001] FMCA fam 194 |
| PROPERTY – Settlement – Contributions – Future needs. |
| Applicant: | T H C |
| Respondent: | B E C |
| File No: | ZM4067 of 2001 |
| Delivered on: | 17 July 2001 |
| Delivered at: | Shepparton |
| Hearing Date: | 17 July 2001 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Pamela Davies Solicitors |
| Counsel for the Respondent: | Mr Cronin |
| Solicitors for the Respondent: | Eales & McKenzie |
ORDERS
That on or before 16 September 2001 ("the date") the Wife pay to the Husband $5,250.00 ("the sum").
In default of payment of the sum by the date, the Wife immediately thereafter, do all acts and things necessary to seek a partition of the title to the real property at 4 G Street, Y, ("the real property") and upon the partition being so ordered, the real property be sold and the proceeds thereof be applied:
(a)Firstly, to pay any costs, expenses and commissions associated with the sale;
(b)Secondly, to discharge any encumbrance affecting the real property;
(c)Thirdly, to pay to the Husband, the sum together with interest calculated at the rate of 10 per centum per annum adjusted monthly from the date until the payment is made.
That each party have liberty to apply in respect of:
(a)Further procedural orders concerning the said partition proceedings;
(b)The terms and conditions of any sale of the real property.
That the solicitors for the Husband serve upon the Wife's brother K J P of 10 R Street, R by pre-paid ordinary post, a sealed copy of these Orders as soon as practicable.
That the Wife be restrained from further encumbering the real property until the payment.
That each party otherwise retain the assets in their respective possessions.
That all applications be otherwise dismissed and removed from the list of pending cases.
IT IS CERTIFIED
That pursuant to Order 38 Rule 26 of the Family Law Rules this matter is one proper for the attendance of Counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SHEPPARTON |
ZM 4067 of 2001
| T H C |
Applicant
And
| B E C |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are competing property applications. The Husband’s Form 3 application filed 4 June 2001 sought a payment of $30,000 from the wife. In his submissions to me on the Husband’s behalf, Mr Puckey of Counsel reduced his claim to $20,000. The wife, in her Form 3A response, filed 13 July 2001, sought an order for the removal of the husband’s caveat over her property at 4 G Street, Y and otherwise that his application be dismissed. She maintained that stance. These proceedings were conducted on the papers with no cross-examination. The wife relied on her affidavit and Form 17 both sworn on 4 July 2001 and filed on 13 July 2001 and the husband relied on his affidavit and Form 17 sworn on 11 May 2001 and filed 4 June 2001.
Short history
The background to this dispute emanates from a marriage of between
6 and 7 years. There are no children of the marriage. The husband is 76 years of age, a pensioner, and resides in rented premises at 3 S Street, M. The wife is 56 years old and is also a pensioner. She lives at 4 G Street Y, a property acquired by her with her brother’s assistance post separation. To purchase that property she used the sale proceeds of $71,475 from a property she had owned during the marriage at N.It is common ground that the wife brought into the marriage $65,000, being the equity she had in a property at G, together with a motor vehicle and $10,000 in savings. It is also conceded that the husband had a motor vehicle and $3,000 in savings at the commencement of the relationship. It is further agreed that the wife sold the G property in 1994 and used the net proceeds of $65,000 to assist with the purchase of a property at W for $145,000. The balance of $80,000 was borrowed. Both parties contributed to the renovation of the W property, which was sold in 1997 for $164,000. The wife then purchased a property at N in November 1998 for $70,000, again using the sale proceeds as the basis for its acquisition. Although she did use about $14,500 to upgrade motor vehicle. The N property also required renovation and $15,000 was borrowed for this purpose. Again, both parties contributed to its renovation and again a good deal of the work was done by paid tradesmen. The net proceeds from the N property, which was sold after the parties separated in early 2000 was $71,475. The parties then entered into an agreement to finalise their property entitlements. Pursuant to the agreement, which was not by way of Court order, the wife paid the husband $6,000 in total and each party retained their motor vehicles and a small quantity of chattels. The wife was also left with the sale proceeds and about $1,900 in savings.
Property negotiations were then initiated by the husband through his solicitors. The wife, in January of this year, purchased the Y property using the proceeds of sale from the N property. Whilst the various property dealings did give rise to a modest capital gain over the years, it was probably subsumed in the sale and acquisition costs totalling $26,510 as detailed in paragraph 14 of the wife’s affidavit. Indeed the real issue between these parties arises as a result of differing views of the husband’s contributions.
The wife, on the one hand, says the overwhelming contribution to what is about the same size pool of assets was made by her. In addition to the $75,000 plus motor vehicle that she brought into the marriage she details earnings of approximately $110,000 over 5 years. The husband, on the other hand, came in with $3,000 in savings, a car and earned $27,000 during the same period.
The law and conclusions
The authorities make it clear that there are 3 important steps in the determination of a property application. Firstly to identify the value of the nett property of the parties. Then I am required to consider the contributions pursuant to Section 79(4) and finally I must assess the Section 75(2) factors.
In this matter the net value of the pool taking into account the benefits enjoyed by each party post separation is as follows:
a)Proceeds of sale............................................. $71,475
b)Wife’s Car.......................................................... $7,000
c)Husband’s Car................................................... $2,000
d)Money Advanced to Husband.......................... $6,000
e)Wife’s Savings................................................... $1,900
f)TOTAL............................................................. $88,375
The wife’s counsel submitted that I should discount the acquisitions costs from the sale proceeds and ignore her savings. In my view it is appropriate to take all of the benefits enjoyed by each of the parties into account. I also take into account that the wife has a superannuation entitlement of approximately $9,000 which she can call upon once she has ceased to earn any income.
Counsel for the husband referred me to Bremner’s Case (reported in Vol. 18 Butterworths 1994-1995 at page 407) in support of his argument that I should consider the husband’s contribution as being between 20% and 30%. The Full Court, in Bremner’s Case held that “an initial contribution by one party may be eroded to a greater or lesser extent by later contributions even if they do not at any particular point outstrip those of the other party”. I do not see that proposition does anything to support the husband’s entitlement in this case. The facts in Bremner related to a 22 year marriage, whereas these parties were married for something less than 7 years in circumstances which, apart from the wife’s massively greater initial contribution and substantially greater earnings, the parties’ contributions were otherwise approximately equal over a relatively short period of time. However, it must also be born in mind at the end of the marriage there really is not any larger pool than the parties commenced with.
Mr Cronin relied on Vrbetics Case (1987 FLC) at 91-832) where the court emphasised the need for both parties to share in a capital loss and also Pierce's Case reported in 1999 (FLC 92-844). The Full Court in Pierce’s Case emphasised the importance of attaching sufficient weight to the parties’ initial contribution in a 10 year relationship.
There is no doubt in my mind that no matter what order I make, the wife will be worse off than she was at the commencement of the marriage. However I assess the wife’s contribution, given the factors I have already referred as 90% and that of the husband at 10%.
When I look at the s 75(2) factors I come to the conclusion that there is very little difference in the parties’ needs. Given the respective ages it is likely that the wife will need to provide for herself for a considerably longer period of time than the husband. Both parties are reliant on the pension. However, the wife will be left with a very modest equity in her home and $9,000 worth of superannuation and on that basis I assess the husband’s needs at 5% more than the wife’s. I am satisfied in all the circumstances it is just and equitable to make an order that the husband receive 15% of the pool of assets. That is 15% of $88,375 namely $13,256.25 of which he has already received benefits totalling $8,000. I therefore propose to order that the wife pay the husband the sum of $5,250 within 60 days.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Sylvia Loveless
Date: 1 October 2001
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