Cameron and Cameron
[2008] FMCAfam 855
•19 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAMERON & CAMERON | [2008] FMCAfam 855 |
| FAMILY LAW – Property – credit – both parties wish to retain the real estate – asset pool – equality of contributions –s.75(2) factors favour husband. |
| Family Law Act 1975 (Cth) ss.79 & 75 |
| Lee Steere (1985) FLC 91-626 Ferraro (1993) FLC 92-335 Clauson (1995) FLC 92-595 Hickey (2003) FLC 93-143 C & C (2005) FLC 93-220 Russell v Russell (1999) FLC 92-877 NHC & RCH (2004) FLC 93-204 Cerini and Cerini [1998] FamCA 143 AJO & GRO (2005) FLC 93-218 Wilde & Wilde [2007] FamCA 1044 Kowaliw and Kowaliw (1981) FLC 91-092 Browne v Green (1999) FLC 92-873 Kessey and Kessey (1994) FLC 92-495 Hayne and Hayne (1977) FLC 90-265 Garrett and Garrett (1984) FLC 91-539 Poulos and Poulos (1984) FLC 91-515 |
| Applicant: | MR CAMERON |
| Respondent: | MS CAMERON |
| File Number: | LNC 485 of 2007 |
| Judgment of: | Roberts FM |
| Hearing dates: | 31 July, 1 & 8 August 2008 |
| Date of Last Submission: | 8 August 2008 |
| Delivered at: | Launceston |
| Delivered on: | 19 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Trezize |
| Solicitors for the Applicant: | Andrea Trezise |
| Counsel for the Respondent: | Mr M Longbottom |
| Solicitors for the Respondent: | Not applicable |
ORDERS
That within ninety (90) days MR CAMERON (“the Husband”) is to pay to MS CAMERON (“the Wife”) the sum of One Hundred and Sixty Six Thousand Five Hundred and Fifteen dollars ($166,515.00).
That contemporaneously with the payment to the Wife of $166,515.00 referred to in Order No. 1 hereof the Wife must transfer to the Husband all her right title and interest in the property situate at and known as Property N in Tasmania and more particularly described in Certificates of Title Volume [omitted] Folio 1 and Volume [omitted] Folio 1 (“the property”).
That in the event that the Husband fails to pay to the Wife the sum required by Order No. 1 hereof within ninety (90) days or within any agreed or Court ordered extension of that time the Wife is to pay the Husband the sum of Two Hundred and Five Thousand Four Hundred and Eighty Five dollars ($205,485.00) within a further ninety (90) days.
That contemporaneously with the payment to the Husband referred to in Order No. 3 hereof the Husband must transfer to the Wife all his right title and interest in the property.
That in the event that the Wife fails to pay the sum of $205,485.00 to the Husband in accordance with Order No. 3 hereof within the further period of ninety (90) days or any agreed or Court ordered extension of that time, the Husband and the Wife must do all acts and execute all documents necessary to sell the property at the best price that can reasonably be obtained, and the net proceeds after payment of all reasonable costs associated with that sale are to be divided on the basis of 55% to the Husband and 45% to the Wife.
That compliance with Orders No. 1 and 2 hereof will mean that Orders No. 3, 4 and 5 hereof have no force or effect.
That compliance with Orders No. 3 and 4 hereof will mean that Order No. 5 hereof has no force or effect.
That the Husband is to retain his Toyota Camry, Toyota Landcruiser, Yamaha motorcycle, tools and superannuation interests free from any claim by the Wife.
That the Wife is to retain her Toyota Hi-ace and her superannuation interests free from any claim by the Husband.
That all other domestic chattels in and around the property are to be divided between the Husband and the Wife as equally by value as is practicable.
IT IS NOTED that publication of this judgment under the pseudonym Cameron & Cameron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 485 of 2007
| MR CAMERON |
Applicant
And
| MS CAMERON |
Respondent
REASONS FOR JUDGMENT
This is a property dispute involving real estate to which both parties are clearly emotionally attached. They each wish to retain that real estate.
Background
Mr Cameron (“the husband”) is almost 62 years old and Ms Cameron (“the wife”) will be 56 years old at the end of this year.
The parties were married in South Australia in 1981 and their cohabitation commenced at that time. At about that time the husband adopted the two children from the wife’s previous relationship, who are now 31 and 29 years old.
Late in 1981 the parties purchased a property comprising two titles at Property N in Tasmania (“the property”) and early in 1982 they moved from South Australia to live on that property. The property has a home built on it that straddles the boundary between the two titles. Consequently, neither title can be sold separately without a realignment of that particular boundary. I shall refer to that further below.
Between 1982 and 1988 the husband was not employed and the family received Social Security benefits. However, the wife did some work away from the property. I shall also refer to that below.
Together with a partner, the husband started a business in 1988, which involved the production of a [omitted]. However, that business was not a success and it folded with the parties owing funds that threatened their ownership of the property. The wife then organised a private loan of $18,000.00 in order to pay some of the debts of the failed business. How that loan was subsequently repaid is the subject of dispute between the parties and I shall refer to that further below.
Early in 1990 the husband moved to live in Melbourne for approximately one year and the wife and children remained living in Tasmania. The husband then returned to Tasmania in early 1991 and for a time he tried his hand at [occupation omitted]. However, that was not particularly successful.
The husband commenced a [omitted] course at the local TAFE College and that occupied his time in 1992 and 1993. While he was doing that course, he worked part time as a [occupation omitted] at a local hospital and was in receipt of an Austudy allowance.
In 1994 the husband commenced work full time as a [occupation omitted] at a group home. From late 1994 until 2005 he was employed full time by a charitable organisation as a [occupation omitted].
At the end of 1994 the wife decided to move to Sydney with the children. She says that that was a joint decision but the husband changed his mind about going. The husband denies that. However, it is clear that the wife went to Sydney with the children initially. Shortly thereafter, the older child returned to Tasmania to live with the father. The wife continued living in Sydney with the younger child.
There was initially some dispute as to the date of the parties’ final separation. However it seems clear to me that the parties both now accept that their final separation was when the wife moved to Sydney at the beginning of 2005.
Since that time, the wife has returned to Tasmania on a reasonably regular basis to stay at the former matrimonial home on the property. That appears to have generally been for about 6 to 8 weeks, mainly in the summer. However, it is her evidence that she spent 2 whole years at the property in 1996 and 1999.
It is clear that the husband has lived permanently at the property since separation and when the wife has been there she has been in part of the former matrimonial home that is essentially self-contained.
There is significant dispute between the parties about the contributions that each has made to the property and I shall refer to that further below.
The Applications
In the Case Outline filed on behalf of the husband, his solicitors indicated that he was seeking a distribution of the property on the basis of slightly less than 75% by value to him and slightly more than 25% to the wife. However, at the start of the hearing his counsel advised that the husband was seeking a distribution on the basis of 60% to him and 40% to the wife.
From the Case Outline filed on behalf of the wife, it is clear that she would like to retain the more valuable of the two titles to the property and the husband retain the less valuable title. However, that would require “a minor boundary adjustment” to ensure that the home is on the property to be retained by her.
I indicated that I would not be keen to make orders that require the parties to obtain a boundary adjustment, primarily because of my concern that there would be no certainty that such orders could be put into effect.
It seems the parties appeared to accept that if orders were made for one of them to retain the property and pay out the other, then that party could consider obtaining a boundary adjustment and selling one of the titles. As a result, the case was essentially run on the basis that one party would retain the property and pay the other party whatever the Court orders. I shall refer to that further below.
Credit
In family law matters credit is not usually as much of an issue as it is in criminal matters or some other areas of the civil law. That is generally because the parties do not disagree dramatically about the basic facts; rather they view them from different perspectives. Unfortunately, this case is different.
Having heard and seen the parties giving their evidence, I am satisfied that, where there is a clear difference in the evidence between the parties’ versions of events, I should prefer the husband’s version.
I say that because the husband gave his evidence in an open and forthright manner and it was quite clear that he was prepared to give credit to the wife where it was due. He was also prepared to make admissions that were against his interests. On the other hand, the wife was clearly unwilling to make admissions contrary to her own interests, and it was only when she was pressed that she very begrudgingly gave the husband any credit at all for his contributions during the marriage.
I conclude that the wife’s evidence was coloured by a willingness to belittle the husband’s contributions over the years, because she thought that it would enhance her chances of retaining the property.
The Evidence
The husband relied upon affidavits by himself, his sister, a friend and his doctor. Only he was cross-examined.
The wife relied initially upon affidavits by herself, her father and numerous friends and supporters. A number of her friends’ affidavits were struck out entirely and parts of others were struck out. In addition, large parts of the wife’s main affidavit were struck out, primarily because they offended against the hearsay rule.
The wife and all her witnesses were cross-examined.
I should comment at this point that the affidavits by the wife’s friends did not assist her greatly in relation to credit. I found the evidence of those friends to be somewhat partisan and one of her friends admitted quite clearly that she had not been at the property to observe any of the husband’s contributions when the wife was not present.
Relevant Law
The Court’s approach to the determination of an application for the adjustment of property interests has been well established by authority[1]. It is essentially a multi-step process to:
·firstly, identify the property, liabilities and financial resources of the parties (usually at the time of the hearing);
·secondly, evaluate the contributions made by the parties as defined in section 79(4)(a) to (c) of the Family Law Act 1975 (“the Act”); and
·thirdly, consider the matters referred to in section 75(2) of the Act, if they are relevant
[1] See Lee Steere (1985) FLC 91-626, Ferraro (1993) FLC 92-335, Clauson (1995) FLC 92-595, Hickey (2003) FLC 93-143 and C & C (2005) FLC 93-220.
In determining what orders the Court should make under section 79, the Court must also be satisfied that it is just and equitable in all the circumstances to do so.[2] This is often referred to as the fourth step and has been described by one commentator as “the overriding caveat”[3].
[2] See section 79(2) and Russell v Russell (1999) FLC 92-877.
[3] See Australian Family Law & Practice, Vol. 2 at ¶37-640
The Asset Pool
The parties agree that the property is worth $372,000. They also agree that the husband’s motorcycle is worth $500 and the wife’s two superannuation funds have a value of $2,500.
They do not agree about much else, but neither of them has provided any chattel valuations to the Court, so I must do the best that I can. In order to do that I propose to generally accept the value given to an asset by the party who has possession of it.
In relation to domestic chattels, it appears that there has been no clear division of those, so I accept the wife’s estimate of a total of $6,000, of which each should retain half.
The wife’s counsel submitted that I should add back into the pool superannuation that has been withdrawn and spent by the husband. However, I decline to do that because that would be against the weight of authority.
In NHC & RCH[4], Finn, Kay and May JJ appear to have endorsed the remarks of Nicholson CJ, Ellis, Kay JJ in the unreported decision of Cerini and Cerini[5], when they quoted paragraph 46 as follows:
Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives.
[4] (2004) FLC 93-204
[5] [1998] FamCA 143
In AJO & GRO[6], Holden, Warnick and Le Poer Trench JJ said at paragraph 39:
Her Honour seems to be saying that the mere fact that a party has expended money realised from the disposition of assets that existed as at the date of separation, will result in that expenditure being added back “in the usual way” as a premature distribution of assets with nothing more. If that is what her Honour is saying, in our view, she is being unduly simplistic. In our opinion, it was a necessary requirement for her Honour to examine and make some assessment of the reasonableness or otherwise of the expenditure.
[6] (2005) FLC 93-218
In Wilde & Wilde[7], Bryant CJ, Finn and Boland JJ said:
The question of constructing a notional pool of property for division between parties in proceedings under s 79 is not without difficulty and has been the subject of a number of decisions each dealing with differing factual situations. (See Townsend and Townsend (1995) FLC 92-569; C and C [1998] FamCA 143; NHC & RCH (supra); AJO & GRO (2005) FLC 93-218 and Gollings and Scott [2007] FamCA 397). These cases all recognise the discretion reposed within the trial Judge in adjusting property between parties pursuant to s 79. The discretion in relation to living expenses post separation was specifically addressed in Marker and Marker [1998] FamCA 42 and Cerini and Cerini [1998] FamCA 143
[7] [2007] FamCA 1044
In Marker their Honours Baker, Kay and Chisholm JJ put the position succinctly when they said:[8]
There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge.
[8] [1998] FamCA 42 at paragraph 2.11
In my view, that applies as much to money that existed at separation as it does to money that came into a party’s possession after separation. In this case, the husband has drawn upon his superannuation well after separation, but at a time when he needed to do so. It would be inappropriate to add back any part of that to create a notionally larger asset pool.
In accordance with the reasoning of the majority in C & C[9], I find that it is appropriate to include the parties’ superannuation interests in the same pool of assets as the other assets. This is because the superannuation is of very minor value in relation to the total value of the other assets, and it also appears to be the manner in which the parties wish those interests to be treated.
[9] (2005) FLC 93-220
Consequently, I find that the pool of assets is as follows:
The property
372,000
Husband’s Toyota Camry
1,000
Wife’s Toyota Hi-ace
2,000
Husband’s Yamaha
500
Wife’s furniture & contents
3,000
Husband’s furniture & contents
3,000
Husband’s superannuation
2,000
Wife’s superannuation
2,500
Husband’s tools
400
Husband’s Landcruiser
300
Total
386,700
The wife and the husband each have liabilities. However, (apart from apparent legal costs) they are of similar values. The husband has a Mastercard debt and an American Express loan, and the wife has a personal loan. I will not include those liabilities because they are of very similar amounts and they have been incurred relatively recently.
I was also requested by counsel for the wife to include the wife’s legal costs as a liability in the pool of assets and liabilities. The wife gave oral evidence about the extent of her legal costs and I must admit to being somewhat surprised that the wife could have accrued legal costs between $33,000 and $35,000, especially given that she prepared most of the affidavits without the assistance of a lawyer.
I was not provided with any evidence of the husband’s legal costs but was told initially from the bar table that they were approximately $8,000. That sum was later reduced to $5,200.
I make no findings about the appropriateness of either party’s legal costs, but I do not propose to include them as liabilities in the asset pool. Each party has chosen his or her own lawyer and it is therefore appropriate for the question of legal costs to be a matter between each party and his or her lawyer.
Consequently, the value that I attribute to the asset pool is $386,700 as set out in the table shown above.
Contributions
When the parties first started living together the husband had a block of land on Stradbroke Island in Queensland which he valued at approximately $8,000 in his affidavit. He also said in his affidavit that he had savings of approximately $52,000 at that time. The wife disputed that it was savings, although she conceded that he had sold a home at that time. I conclude therefore that the sale of his home in South Australia realised a capital sum for him of $52,000.
The wife also sold a home at about that time from which she appears to have realised $9,000.
It appears to be common ground that when they purchased the property, the husband contributed $33,000 and the wife contributed $9,000 towards that purchase. I accept the husband’s evidence that the balance of his funds (presumably in the order of $19,000) were then used over time towards the family’s living costs.
I calculate that the initial capital contributions were approximately 85% by the husband and 15% by the wife. From her funds, the wife contributed approximately 20% of the purchase price of the property and the husband contributed the balance.
For a number of years the husband was not employed and the wife engaged in some part time employment. Although the wife now appears to be somewhat disparaging of the fact that the husband was unemployed for a time, it is clear to me that both parties were content to organise their affairs in that way in order to put their efforts into developing the home on the property and generally improving the property itself.
When they purchased the property, it had a very basic residence, which has been renovated, extended and improved significantly over the years.
It is the unchallenged evidence of one of the husband’s witnesses that both parties “did a lot of work renovating and rebuilding their house on [Property N] together”. The unchallenged evidence of that witness is that the husband “is a hard worker and was always doing something to the house”.
I conclude therefore that after their initial unequal capital contributions, the parties contributed equally, at least up until the time that the husband started the newspaper business which subsequently failed.
The wife would have me attribute the financial losses of that business solely to the husband, in addition to allocating to her an even greater contribution because she claims;
·that she borrowed $18,000 to repay some of the debts of the failed business; and
·she solely repaid that loan.
Although the wife’s counsel did not specifically refer me to the decision in Kowaliw and Kowaliw[10] in his oral submissions, it is listed in the wife’s Case Outline. In that well known case Baker J said:[11]
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(o) to applications for settlement of property instituted under the provisions of sec 79.
[10] (1981) FLC 91-092
[11] At page 76,644
The Full Court in Browne v Green[12] considered whether there is a “Kowaliw principle”. However, Lindenmayer, Finn and Holden JJ preferred to think of Baker J's statement as a “well-accepted guideline” rather than as a “principle”.
[12] (1999) FLC 92-873
It is clear from the evidence that the wife was not as enthusiastic as the husband about entering into the business that subsequently failed. The husband conceded that readily when he was cross-examined. However, it is clear that the wife joined with him in providing the property as security for the business debts. She says the following in her affidavit:
To fund the business the husband decided to mortgage the family home. I strongly disagreed, but he insisted, so I reluctantly signed the loan and mortgage documents. I believed it a serious risk to use our home as security for a business with uncertain prospects.
I am not prepared to attribute the business loss to the husband alone because:
·the wife joined with the husband to provide the property as security;
·and the husband’s conduct was not of the sort referred to in Kowaliw.
In relation to the latter point, it is perfectly clear to me that the husband did not embark upon a course of conduct designed to reduce or minimise the value of the parties’ assets, nor did he behave in a manner that was reckless, negligent or wanton. I am sure that both parties were hopeful that the business would be a success and that they both had expected to share in the fruits of that business if it had been successful. Consequently, the loss is one that should also be shared.
As mentioned above, the wife says that she borrowed $18,000 to pay off business debts and that she solely repaid that loan without assistance from the husband. The husband says that they both contributed to the repayment and that the wife was not earning enough to have paid off $18,000 in the short period as alleged by her. He says that money provided to him by his sister was also used to pay off that loan.
The unchallenged evidence of the husband’s sister is that in or about 1989 or 1990 she lent the husband the sum of $25,000 because of the difficulties that the husband’s business was experiencing.
In Kessey and Kessey[13] the wife’s mother had contributed significant funds towards the improvement of the parties’ home. Baker, Finn and McCall JJ said:[14]
In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.
[13] (1994) FLC 92-495
[14] at p 81,150
I can see no reason why a contribution by a sister should be treated any differently from a contribution by a parent.
The wife produces no documentary evidence to support her claims about her income during the relevant period and when I consider that she chose not to challenge the evidence of the husband’s sister, I conclude that both parties contributed to the repayment of that $18,000 loan.
In 1990 the husband spent approximately a year in Melbourne and the wife remained at the property with the children. It is clear to me that during this time the husband contributed virtually nothing to the property or towards the welfare of the family. Clearly then, the wife made almost all the section 79 contributions during that year. It is also clear that those contributions were substantial. In addition to caring for the children, the wife made some significant improvements to the home.
It is the wife’s evidence that she and the children rented a cottage nearby for approximately ten months while she did substantial renovations to the home. She claims that she did much of the construction work herself and paid for some work which was too difficult for her. In addition, she was supported by neighbours, her children and her father on occasions.
The parties are in dispute as to exactly how much work the wife did during that period of one year. She says that she renovated the house “room by room” and that she extended the house by putting the exterior walls further out. She also says that when the new walls were in place, the roof was extended over the new wall, and the old wall was then removed, leaving a larger room. She says that she rendered external and internal walls, did much of the plumbing, laid pipes for waste water, tiled the bathroom and did some of the carpentry and painting.
She says that the renovations that she did transformed a small timber house into a large 4 bedroom solid mud brick home.
As I understand the husband’s evidence, he says that she did not do all of those renovations without him, although he concedes that she added a fourth bedroom, a bathroom and a verandah to home. He says that he was also involved in some of the renovations that the wife claims were done while he was in Melbourne. In other words, his evidence is that they were done at other times and they each contributed to them.
As I have said above, where the parties’ versions differ, I generally prefer the version of the husband. However, even on the husband’s version, it is quite clear that the wife contributed significantly to the improvement of the property while the husband was away in Melbourne. At the same time, she was solely responsible for looking after the children. That is a contribution within the meaning of section 79(4)(c) because the children are clearly “children of the marriage”, having been adopted by the husband.
At the beginning of 1995 the wife moved to Sydney, initially with both children. It was her intention to pursue her studies. Shortly after that, the older child returned to Tasmania and lived with the husband.
As I have mentioned above, the wife continued to reside in Sydney for many years and it appears that her return to Tasmania on a permanent basis in 2007 was precipitated by correspondence from the husband’s lawyer seeking a property settlement.
In terms of contributions to the “conservation and improvement” of the property between beginning of 1995 and 2007, it is clear to me that the husband’s contributions must have been greater than those of the wife (notwithstanding her attempts to belittle or deny those contributions). The husband sets out his contributions at paragraph 34 of his affidavit and I do not need to repeat them. However, it is also clear to me that any challenge to those stated contributions was not particularly successful.
The older child turned 18 very shortly after the wife left for Sydney, and the younger child turned 18 approximately two years later. For a time, the wife had most of the financial responsibility for caring for the younger child. However, I note that the husband made some significant contributions to the payment of her private school fees, even if he was not contributing Child Support in the traditional sense.
It is clear that the assessment of contributions is not an exercise of mathematical precision. In Hayne and Hayne[15], Pawley J said:
In matters such as this one cannot approach the problem with an eye for meticulous detail. It should rather be dealt with broadly so that the end result can be said to be just and equitable.
[15] (1977) FLC 90-265 at p. 76,415
In Garrett and Garrett[16] the Full Court of the Family Court of Australia held that in long marriages, where the parties have devoted their resources and incomes for the benefit of the family, it is not possible to have a precise accounting of their contributions.[17]
[16] (1984) FLC 91-539
[17] See also Poulos and Poulos (1984) FLC 91-515 at p. 79,184.
When I consider the parties’ contributions overall, which include but are not limited to the husband’s greater financial contributions at the start, the wife’s greater contributions during 1990 and the husband’s greater contributions between 1995 and 2007, I conclude that the parties’ contributions throughout their relationship (including the long period following their final separation) should be treated as being equal.
Consequently, if this matter was to be resolved on contributions alone, the division of the parties’ assets would be on a 50/50 basis. However, these matters are not resolved solely on the basis of contributions.
Section 75(2) Factors
The husband is almost 62 years old and the wife is nearly 56 years old.
The husband is clearly in poor physical health and he has produced unchallenged medical evidence in relation to that. Approximately three years ago he had an accident in which he fractured his left hip, requiring surgical intervention. There were unfortunate complications arising from that surgery and it was necessary for him to have a hip replacement in early 2007. A further complication of that hip replacement surgery was that he developed severe urinary sepsis and now has ongoing problems with his kidneys, requiring him to continue consulting his urologist.
The husband gave evidence that he has to catheterise himself three times a day because of bladder retention. He is currently receiving assistance from the Commonwealth Rehabilitation Service in order to get back into the work force. However, he is not currently employed.
The husband has qualifications as a [omitted], but it is obvious to me that self-catheterisation three times per day and his hip problem are likely to restrict him significantly in relation to gaining employment. This is especially so when one takes account of the fact that he is almost 62 years old.
The wife gave up her employment in Sydney in May 2007. She says that she became severely distressed at the prospect of losing the property and had an emotional breakdown. However, she did not bring any acceptable medical evidence to the Court and I note that she has since regained employment in a [omitted] capacity.
The husband has not re-partnered.
It is clear that the wife re-partnered in Sydney for a number of years. However, she claims to have now terminated that relationship. While I have some doubts about whether she has permanently terminated that relationship, I do not make a finding about that and I have not taken that into account in any assessment of the section 75(2) factors.
Neither party has responsibility to support anybody else.
When I consider the section 75(2) factors overall, and particularly the husband’s age and health difficulties, I am of the view that there should be an adjustment in favour of the husband of 5%. Consequently, the property pool as set out above should be divided between the parties on the basis of 55% to the husband and 45% to the wife.
Conclusions
I consider that a division of 55% to the husband and 45% to the wife is just and equitable within the meaning of section 79 of the Act. However, the “mechanics” of how such a division is to be achieved require some consideration.
If I summarise the parties’ competing claims for retention of the property, they appear to be as follows:
a)The husband wishes to retain the property because, apart from one year in 1990, it has been his permanent home since 1982.
b)The wife wishes to retain the property because it has been her retirement plan for some years to establish a business on the property growing medicinal plants. She has undertaken a number of relevant courses in relation to that.
Both the husband and the wife have legitimate reasons for wanting to retain the property. However, I find that the husband’s occupation of the property for 25 of the last 26 years gives his claim priority over the claim of the wife, who has effectively been a part-time occupant over the past thirteen years since separation. I also note that the wife could grow medicinal plants on another property if necessary.
I therefore propose to make orders that will enable the husband to pay the wife her entitlement so that he can retain the property. However, if he decides against that, or is unable to raise the finance, then the wife will be given an opportunity to pay him his entitlement so that she can retain the property. If she is then unable or unwilling to do so, the property will have to be sold.
Both parties will have to rely upon the assistance and generosity of relatives to enable them to pay the other’s entitlement. In each case, that will involve a relative borrowing funds and putting up other property (either in Tasmania or South Australia) as security, or selling such property. Either way, each party’s proposal will take some time to put into operation. I will therefore make orders which allow reasonable time periods for compliance. I consider that 90 days is sufficient in each case, but that may need to be extended. If the parties are unable to agree upon any extension, then that may need to be resolved under the liberty to apply that I will refer to further below.
Calculations
As I have said above, the asset pool has a value of $386,700, so 55% of that is $212,685 and 45% is $174,015.
If the husband elects to retain the property and the wife retains her motor vehicle, half the domestic chattels and her superannuation, she will retain assets worth $7,500. She would then require an additional $166,515 to make up her entitlement of $174,015.
On the other hand, if the wife is to retain the property and the husband retains his Camry, Landcruiser, Yamaha, tools, half the domestic chattels and his superannuation, he will retain assets worth $7,200. He would then require an additional $205,485 to make up his entitlement of $212,685.
Consequently, if the husband is to pay out the wife’s entitlement, he will need to pay her $166,515, and if the wife is to pay out the husband’s entitlement, she will need to pay him $205,485.
In the event that the property is to be sold, the other assets retained by each party are very similar in value (and only favour the wife by $500) so I consider it appropriate for the net proceeds of sale to be simply divided on the basis of 55% to the husband and 45% to the wife.
I will also grant liberty to apply in relation to the implementation of the orders generally, which could encompass any extensions of time to raise finance or the terms and conditions of the sale of the property if that becomes necessary. While it could also encompass any disputes about chattels, I sincerely hope that it will not be necessary for a Court to adjudicate upon a division of chattels worth less than one fifth of the claimed current legal costs of only one of the parties.
The orders that I will make are set out at the start of these Reasons.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
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