Caruso and Colombo

[2007] FamCA 220

FAMILY COURT OF AUSTRALIA

CARUSO & COLOMBO [2007] FamCA 220

FAMILY LAW - PROPERTY SETTLEMENT -  Application by husband for declaration pursuant to s 78 – Wife’s response was to file an application for leave pursuant to s 44(3) to institute property proceedings – Parties separated in 1978 and were divorced in 1989 – Family home still held as joint tenants – Decision of judicial registrar reviewed by wife – Review application dismissed – Amendment made to orders to extend the period allowed for the wife to acquire the husband’s interest in the home

Family Law Act 1975 (Cth)

Ferraro and Ferraro (1992) 16 Fam LR 1;
Quaresmini and Quaresmini [1999] FamCA 1314;
Norbis v. Norbis (1986) FLC 91-712;
Lenehan v. Leneham (1987) FLC 91-814;
Bonnici and Bonnici (1992) FLC 92-272;
McMahon and McMahon (1995) FLC 92-606;

APPLICANT: Ms Caruso

RESPONDENT: Mr Colombo

FILE NUMBER: SYF 6324 of 1987

DATE DELIVERED: 20 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 16 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingstone

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: Mr Thistleton

SOLICITOR FOR THE RESPONDENT: H C Stathis & Co.

Orders

1. The application of the wife to review orders 2 to 9 inclusive made by Judicial Registrar Loughnan on 6 November 2006 is dismissed save for the amendment referred to in order 2 hereof.

2. The period of 90 days referred to in order 3 of the orders of 6 November 2006 is extended to a day six (6) weeks from the date of these orders. 

FAMILY COURT OF AUSTRALIA AT  

FILE NUMBER:  SYF6324 of 1987

MS CARUSO

Applicant

And

MR COLOMBO

Respondent

REASONS FOR JUDGMENT

Proceedings

1. In May 2006 the husband instituted proceedings by filing an application seeking declaratory relief pursuant to s 78 of the Act with respect to his interest in a home at P owned by him and his former wife as joint tenants.  The wife by seeking its dismissal and leave to institute proceedings for property settlement pursuant to s 79 of the Act and, if granted, orders for property settlement. 

2. On 6 November 2006 Judicial Registrar Loughnan made orders in those proceedings, granting leave and making property orders:

   1.That the wife have leave pursuant to s. 44(3) to proceed and seek orders pursuant to s. 79 of the Family Law Act 1975.

   2.That the wife’s Response to an Application for Final Orders filed 14 July 2006 be deemed to have been filed pursuant to that leave.

   3.That within 90 days from the making of these orders the wife pay to the Applicant by way of order for settlement of property pursuant to s. 79 the sum of $255,000 (principal sum).

   4.Upon receipt of the principal sum the husband will immediately do all things and execute all documents necessary to transfer to the wife at the expense of the parties jointly the whole of his right title and interest in the property known as [P]in the State of New South Wales, being the whole of the land comprised in Certificate of Title Volume […] Folio […] together with the improvements (matrimonial home).

   5.In the event that the wife fails to pay the principal sum to the husband within 90 days from the making of these orders, the parties will then immediately do all acts and things and execute all documents necessary to effect a sale of the matrimonial home for the best price reasonably obtainable.

   6.The parties will do all acts and things and execute all documents necessary to cause the net proceeds of sale of the matrimonial home after any necessary adjustments to be disbursed as follows:

   (a) to the costs of sale including legal costs;

   (b) as to 50% of the net proceeds of sale to the wife;

   (c) as to a further $45,000 to the wife; and

   (d) the balance to the husband

   7.The wife will pay all Council Rates, water rates, insurance, land tax and other fees associated with the home and will indemnify the Applicant in relation to same.

   8.The husband and wife each be declared the sole legal and beneficial owners of all other items of property including money, motor vehicles, furniture and furnishings, insurances and personal effects presently in the possession or control of each of them respectively.

   9.The parties are at liberty to apply on 7 days notice in relation to the implementation of these orders.

3. The wife filed an application to review those orders, though plainly her case is not to review the successful grant of leave but only the outcome of her consequent property claim.  The husband’s position is a little more complicated.  He does not seek to disturb the order made by the Judicial Registrar, which means he would pay to the wife $45,000 from his savings and she would have the opportunity to acquire his interest at the figure reflected in order 3.  He maintained that position though it is common ground here that the Judicial Registrar had erroneously taken the agreed value of the property to be $600,000 instead of $610,000.  On the other hand, if the quantum were to be disturbed and orders made in excess of that amount in favour of the wife then he would himself wish to review the order granting her leave to institute property proceedings.  In the circumstances, it will be appropriate to go to the property claim and consider the leave question in light of the view taken about that. 

4. It is necessary to refer to the submissions made by counsel for the husband, more particularly in his outline of argument.  Amongst other things, it is said that other results were open to the Judicial Registrar but the result determined fell within the ‘generous ambit of reasonable disagreement [that] marks the area of immunity from appellable interference’; it would be unjust and inequitable to substitute another answer that might differ though it would still fall within that same ambit; the ‘supervisory role’ of a judge in these circumstances is to primarily ensure that proper process is followed and not to simply substitute another result; the Judicial Registrar has accorded both sides a fair hearing according to law and arrived at a decision which, although disappointing to the husband, was available to the tribunal; and any other approach is unfair both to the litigants involved and to the swift disposition of justice for other litigants. 

5. This is not the law, these submissions have no place in review proceedings such as these, and it would constitute clear appellable error to adopt them.  The hearing and determination proceeds de novo. 

Declarations and alteration of property interests

1. Section 78 empowers the court to declare the title or rights of a party to a marriage in respect of property and, where it does so, to make consequential orders to give effect to it, including orders for sale or partition or possession.  In this case there is no dispute that the parties hold the residential property at P as joint tenants.  Section 79 empowers the court to make such orders as it considers appropriate altering their interests in property, including an order for a settlement of property in substitution for any interest in the property.  It is not to do so unless it is satisfied that in all the circumstances it is just and equitable to make the order and in considering that question it is obliged to take into account the various matters set out in s 79(4).  A long line of cases at appellate level establish that the first step in that process is to ascertain the parties’ property and its value; the second step is to evaluate the contributions of various kinds each have made; the third step is to consider adjusting the contribution assessment by taking into account factors set out in s 75(2) in so far as they are relevant; and finally, it is necessary to stand back and review the outcome to ensure it brings about a just and equitable property settlement in all of the circumstances [see eg. Ferraro and Ferraro (1992) 16 Fam LR 1].

2. There is no dispute here about the parties’ property or its value.  There are arguments, however, about their respective contributions and any adjustment and what would be a just and equitable outcome in all of the circumstances.  The husband’s proposed outcome has already been outlined.  The wife, on the other hand, seeks the same order as in the proceedings before the Judicial Registrar; namely, for the home to be transferred to her and she would pay the husband the sum of $30,000. 

Evidence

1. The evidence is not extensive.  Both parties gave evidence and were cross-examined with the assistance of an interpreter.  The wife relied on two affidavits from one of their sons, A, but he was not required for cross-examination. 

2. There are differences in the accounts given of their financial and related history, but unless a detailed analysis of that history is necessary to a just and equitable outcome, then many are largely immaterial.  In my assessment, there is sufficient commonality about the major developments over the many years since their married relationship began to adopt those events as the mainstay of the history, and I do not see the case as one where the detail of differences needs to be examined.  In any event, the long reach back into history for these parties at this stage would make ranking reliability as between them a rather hazardous task, despite submissions urging a credit/reliability finding.  In Quaresmini and Quaresmini [1999] FamCA 1314 [Finn, Kay and Burr JJ] there is support for the view taken in the following passage:

   ‘37.     The s 79 exercise is not a pure accounting exercise.  It is an exercise in identifying the various matters to be considered under s 79 and weighing them up one against the other before reaching what is an appropriate order to be made, which order may not be made unless it is just and equitable. 

   ….

   40.      The task of weighing up these competing contributions is one of the essential tasks that a trial Judge exercising s 79 jurisdiction must carry out.  However, that task is subject to the caveat expressed by Mason and Deane JJ in Norbis (1986) 161 CLR 513 where their Honours indicated that issues of establishing contribution are often barren issues because other factors become more significant.  Their Honours observed at 524:

   'The Family Court has rightly criticised the practice of giving over-zealous attention to the ascertainment of the parties' contributions, and we take this opportunity of expressing our unqualified agreement with that criticism...’

3. What follows is the history and findings about it that are the more central and relevant for present purposes. 

Background

1. The husband was born in Italy in September 1932.  He is now 74 years of age.  The wife was also born in Italy, in September 1936.  She is now 70 years of age. 

2. The husband left school at an early age to do farm work in his native Calabria though he later travelled to Milan where he obtained qualifications as a carpenter before he returned and later joined the Italian army. 

3. He and the wife married in March 1956.  Their first child J (50) was born in 1957 and their second child R (48) was born in 1959.  At that time the husband migrated to Australia.  Their third child, F (47) was born in 1960 after his departure.  The wife and the three children joined him in Australia in 1961.

4. After his arrival in Australia the husband obtained work, initially with the Water Board and then with various employers over later years.  He was not unemployed for any period despite changing jobs from time to time. 

5. Their fourth child, A (44), was born in 1963.  About 6 months after the birth, The wife left Australia to return to Italy with the children.  She was absent for about three years and did not return to Australia until 1966.  While she was in Italy her grandmother died and she inherited her house which was sold.  The wife says she sent the money to Australia by money order.  She gave two accounts of an exchange with the husband about the money after she arrived back in Australia.  On one account of it, he told her he had lost the money, which he denies.  It is not possible to say what happened. 

6. Nonetheless, the inheritance seems to have been the source of funds to pay for her return to Australia in 1966.  Her mother and sister accompanied her to Australia and lived with the family thereafter.  The inheritance was also the source of some of the funds necessary to buy a family home. 

7. In 1966 they bought in their joint names the home at P for $10,300.  This is contrary to the recall of the wife but is apparent from searches of the relevant records.  They borrowed $5,500 and $3,600 from two separate mortgagees and, also contrary to the evidence of the wife, both these debts were discharged by August 1972.  There was a personal loan to assist in the discharge of the mortgages but that was paid in a relatively short time.  The balance required to complete the purchase of the home came from their own resources which, it is accepted, included some money which the wife received from her grandmother’s Estate.  It may well have been, as she says, that the family benefit received from the government had accumulated over the years of her absence in Italy and that was used also towards the purchase price. 

8. Being a carpenter by trade, the husband did work on the P house over the years: he did internal painting throughout, he laid tiles throughout the ground floor, he installed timber flooring upstairs, he arranged and supervised a downstairs extension including a kitchen, laundry, toilet and shower and an upstairs bedroom for which he did all of the carpentry and gyprocking, he arranged and supervised the construction of a two car garage and he built the garage roof.  As well, he did sundry work around the home. 

9. Their fifth child, T (39), was born in 1968. 

10. The wife obtained work over the years until 1978.  There is dispute about the extent of her work or the years she worked, but that is of no real moment.  It is apparent that she did work for a number of years in various unskilled positions and in the final analysis her evidence about it can be accepted.  It can also be accepted that the wife contributed her earnings towards the family’s needs. 

11. There is dispute, also, about what the husband did with his pay.  On his case, he took a small amount of money for cigarettes and a beer and the like but he gave the rest of his pay to his wife for housekeeping expenses.  The wife, on the other hand, says he drank to excess at the pub regularly each week and he gambled regularly each week.  The impression given by both is that the marriage was not a happy or mutually supportive relationship and it is quite probably the case that the husband did spend time away from the home and quite probably did drink to excess on occasions and gamble more than he was prepared to concede.  However, there is nothing that would allow what he spent on leisure of this kind to be quantified or even to say it was beyond the bounds of the reasonable or in some way was sufficient to be regarded as ‘waste’.  While it may be that the wife would have preferred the money spent on those pursuits to be put towards the family’s needs, it is apparent that he did contribute whatever was the balance of his earnings to the household.  The family household from the mid-1960’s or thereabouts included not just his wife and children but his sister-in-law and mother-in-law.  Their income was from government pensions, but the financial arrangements in the household was not the subject of any evidence.  . 

12. The wife says they separated in 1978 and that was when she stopped work.  The husband says they separated in 1980.  He also says they lived in the same house for a few years until he left to go and live with a friend at C.  From there he moved to the property he now occupies at H but I shall come to that shortly. 

13. In 1978 the children were aged 20, 19, 18, 15 and 10 years and the wife remained responsible for the care of the dependent children from that point.  She also cared for her elderly mother and sister.  She contends she did not receive any financial assistance from the husband after separation from which point she fully supported herself and the children.  As she had given up paid work in 1978, her income was a government pension and she was assisted by her mother and sister who both received government pensions and contributed to household expenses.  They remained living with her at the P home until they both passed away in 1989. 

14. The husband, however, says that on the final separation he gave the wife $2,000 from his pay packet of $2,400 which consisted of his salary, Christmas bonus, and holiday pay. 

15. With A’s help, the wife has maintained the P property over the years.  He helped her renovate the kitchen and bathroom, he repainted bedrooms and grouted and repainted the upstairs bathroom, and he stripped wallpaper, filled and repainted the second kitchen.

16. In 1982 A bought a home in H for $48,000.  The husband says he and his former wife gave him $10,000 towards the cost of the house from their joint savings.  A concedes receiving $10,000 but says this was at a time when his father was not living at the family home on a regular basis and the money came from his mother from household savings.  The husband says he also later gave A $20,000 in 1988 to help with the mortgage debt and A agrees he received this money from his father.  Some time after the house was purchased, by arrangement with A the husband moved into the H home where he lived rent free.  He spent about $10,000 on refurbishment to make the house more liveable.  In 2004 T bought the H home from his brother A for $110,000 which was the amount owing on the mortgage at the time.  The husband has continued to live there rent free under an arrangement with T. 

17. In 1986 the husband instructed solicitors to resolve property settlement with the wife.  As he recalls it, a letter was sent telling her he wished to sell the home but she disagreed with the proposal or any proposal related to property settlement.  At the time A spoke to him about staying on at the H home, which he agreed to do at the time out of consideration for the welfare of his family. 

18. They were divorced in February 1989, but no steps were taken by either about property settlement or resolving their joint ownership of the P home until the husband’s application for declaratory relief in May 2006. 

19. In 1989 the husband had an accident at work and suffered injuries.  He received workers compensation payments after the accident and then in 1999 he received a lump sum payment, related to his injuries, of $330,000.00.  He had $89,000 left at the hearing before the Judicial Registrar and he now has $80,000 left.  On his evidence he gave $30,000 to T which included $5,000 for the husband’s benefit.  He gave T a further $5,000.  He gave his daughter $1,500 to repay a loan and he gave A $2,000.  He purchased furniture for about $10,000 and he has bought two motor vehicles, initially for $15,000 but that was traded when the vehicle he now has was bought.  He did not receive Centrelink benefits for a period after the lump sum payment was received and he lived on the compensation money.  As well as the $80,000, he has about $2,000 in savings in another account. 

20. The husband continues to occupy the H property.  There is no evidence from T about his intentions with the property, but the husband does not own it and so his occupation must be seen as dependent on the largesse of his son.  His income is from an Italian pension of $160 per week and a Centrelink benefit from the Australian government of $120 per week.  He also derives interest from his savings investment which at August 2006 was $96 per week.  His total income at that time was $376 per week from all sources.  His expenses, set out in his financial statement, amount to a modest $234 per week.  Apart from his interest in the P home, his savings, furniture and motor vehicle he has no other assets.  He has no superannuation and no debts, though no doubt he has legal fees to pay as a result of this litigation. 

1. The husband continues to occupy the P property.  Her income is from a Centrelink benefit from the government of $247 per week and a small pension from the Italian government of $12.50 per week, making a total of $259.50 per week.  Her financial statement of July 2006 records expenses of a modest $245 per week.  Apart from her interests in the P home, furniture, and savings she has no other property.  She does not have any superannuation and she has no debts though, like the husband, she would also no doubt have legal fees to pay related to this litigation. 

Assets and liabilities

1. The agreed assets are:

   Jointly owned

   P house  610,000

The husband

Savings   80,000

Savings   2,000

Vehicle   12,000

Contents   10,000

Total:  104,000

The wife

Savings   7,000

Contents   6,000

Total   13,000

Total all property:  727,000

Evaluation of contributions

1. It is necessary to say something about the approach to be taken to assessing contributions, more particularly whether that should be on an 'asset by asset' basis – assessing contributions by reference to individual items of property - or a 'global' basis – the more usual exercise of assessing contributions by reference to the totality of assets. 

2. In the High Court decision of Norbis v. Norbis (1986) FLC 91-712, a convenient starting point, Mason and Deane JJ at p. 75,168 said in discussion on the topic of approach:

   ‘Although it is natural to assess financial contributions under sec. 79(4) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties’ property or to some part of that property.  For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an “asset-by-asset” basis.  Which of the two approaches is the more convenient will depend on the circumstances of the particular case.  However, there is much to be said for the view that in most cases the global approach is the more convenient.  It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court.  In saying this we are not to be understood as denying the legitimacy of the trial Judge’s ascertainment in the first instance of the financial contributions of the parties by reference to particular assets.  It is difficult to conceive how the trial Judge in many cases could otherwise take account of such contributions as he is required to by sec. 79(4)(a) of the Act. 

   ………….

   Again, it seems to us that it will depend on the circumstances of the particular case, though in the majority of cases the global approach will be the more convenient and for this reason the Full Court is entitled to prescribe its adoption as a guideline in the majority of cases.  The Family Court has rightly criticised the practice of giving over-zealous attention to the ascertainment of the parties’ contributions, and we take this opportunity of expressing our unqualified agreement with that criticism, noting at the same time that the ascertainment of the parties’ financial contributions necessarily entails reference to particular assets in the manner already indicated.

   It has not been suggested that there is any fundamental difference between the two competing approaches which we have considered, in the sense that one will yield more just and equitable entitlements than the other.  The general preference which has been expressed for the global approach is not by reason of any notion that it is the only approach authorised by the Act, but by reason of considerations of convenience.  Accordingly, quite apart from the fact that its status as a prescribed approach is that of a guideline and not that of a principle of law, the applications of the asset-by-asset approach does not of itself amount to an error of law.”

3. See also the Full Court’s discussion subsequently in Lenehan v. Lenehan (1987) FLC 91-814). In Bonnici and Bonnici (1992) FLC 92-272 the Full Court discussed the impact of substantial assets coming into the husband’s hands shortly prior to the end of the marriage (an inheritance). The facts here are quite different of course, but discussion at p. 79,020 is nonetheless instructive:

   ‘In a case such as this, we think that the global approach, taken by his Honour, presents considerable difficulties.  If the matter had been approached upon an asset by asset basis, we think that the task of his Honour and this Court would have been a simpler one.  To approach the matter globally as his Honour did, in circumstances where the wife had clearly made no contribution to a major asset, must of necessity have involved a greater weighting of her contribution than that of equality to the assets to which she did contribute.  There would, nevertheless, have been nothing wrong with his Honour having approached the matter globally if he had explained how he did so.’

1. McMahon and McMahon (1995) FLC 92-606 involved the Full Court considering the approach to be taken in a six year relationship where the parties had completely separated their financial affairs two years prior to separation and they had no children. Again, those facts are quite different to this case, but again it is worth considering this passage at p. 82,043:

   ‘Global or asset-by-asset approach

   In our view, the particular circumstances of this case made an asset-by-asset approach preferable to a global approach.

   The short duration of and the unhappy nature of the marriage, coupled with the parties’ strict division of assets and their method of dealing with them lent itself to an asset-by-asset approach;  particularly where they had separately identified another group of assets as joint.

   We are conscious of the remarks of Mason CJ and Deane J in Norbis v. Norbis (1986) FLC 91-712 at p.75,168;  (1985-1986) 161 CLR 513 at 523, where their Honours indicated that in most cases the global approach is more convenient. 

   However, it should be remembered that they stressed that they were not to be understood as denying the legitimacy of the trial Judge’s ascertainment in the first instance of the financial contributions of the parties by reference to particular assets.

   ……..

   We consider that this is a case which falls conveniently into the class of cases referred to by Wilson and Dawson JJ in Norbis at FLC pp 75,173-75,174;  CLR 532-3, when they said:-

   “If the parties’ interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of property between them.  In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets, as was convenient in this case.”’

2. The Judicial Registrar approached the assessment of contributions on a global basis, but I have to say my own view is that the facts presented here make it more appropriate to consider their contributions to (i) the P home separately from their contributions to (ii) other assets. 

(i) P home

1. Neither appears to have introduced any assets to the relationship.  Having married in 1956, their marriage lasted for about 22 years before they separated, say in 1978.  They had three children who were adult and independent in 1978 and their two youngest children were aged 15 and 10 years of age.  Over those 22 years there can be no doubt the wife took the responsibility for the day to day supervision and care of the children.  She did that on her own with support from her family on two occasions when she lived in Italy separate from their father.  The first occasion was when he came to Australia.  At the time she had two very young children and their third child was born after his departure.  The second occasion was for about three years when she returned with their four children to Italy and lived with her family.  When she left for Italy the youngest of the four was just a baby and their eldest child was around 6 years of age.  She saw to their needs in those years without any day to day input from their father. 

2. I do not doubt that over the years of the marriage she was responsible for domestic chores associated with the running of the household.  There was nothing to indicate the husband made any contribution in that quarter.  In addition to her contributions to the care of the children and to the running of the household, the wife undertook paid work for a number of years and contributed her earnings to the needs of the family.  She also introduced and contributed monies from her inheritance in the early to mid-1960’s. 

3. The husband, on the other hand, worked and earned income throughout the years of their marriage.  While he did go to the pub and he did gamble and this was the subject of criticism in this litigation, there is no way of being able to say on the probabilities his spending was excessive and therefore bring it to account as a factor making any real difference here.  He contributed his earnings towards the support of the family and towards loans to buy the family home as well as to the rates and similar charges associated with its ownership.  That he did so can hardly be doubted; the mortgages for amounts close enough to 85% of the purchase price being paid off within six years or thereabouts demonstrate that strong probability.  He also contributed by repairing and improving the P property after they purchased it in the ways he described. 

4. When these matters are weighed one against the other at the time of separation, I would think it difficult to substantiate any assessment other than equality of contribution as at 1978.  It is recognised that the wife introduced money from her inheritance which went towards the house purchase and cared for the children without assistance from their father in the periods discussed.  It is also recognised that she was the homemaker and parent responsible for the home front and that she also did paid work for a number of years after she came back to Australia.  But to the extent this might be thought to weigh in her favour there is the counter-balancing consideration of the renovations and improvements the husband did to the home over and above his paid work and there is also the fact that both her mother and her sister had the advantage of living with them and the family shared their home with them and accommodated them for the 12 years up until the separation in 1978.

5. It is now some 29 years or thereabouts since the separation, if that is taken to be in 1978.  They had two dependent children at the time, with the youngest aged 10 years.  While there was some very small financial assistance from their father initially, the wife took both the financial and non-financial responsibility for them during the remaining years of their dependency, however long that might have been.  She has maintained and repaired the property with the help of A who undertook the work he described.  She has otherwise, it is assumed, paid the rates and other charges related to the property over those years.  But of course she has had the sole use of the home now for those 29 years and that is a period long after her role as carer for dependent children would have ceased.  For the first 11 years or so of those 29 years she accommodated her sister and mother at the home. 

6. The husband lived for a time at C but later he went to live in A’s home at H and while that has been owned by T for the past few years, he has paid no rent to either of his sons in all that time.  On the other hand, he gave A funds to help with the house – at least $20,000 and perhaps a portion of the earlier payment of $10,000 – and so his occupancy over the years A owned it has to be seen in that light.  He has also given both sons money from his compensation payment, as discussed earlier.  The benefaction, therefore, has not been entirely a one way street.  In so saying I am not suggesting the payments he made to his sons were linked to his occupation of the home, there is no evidence of that, but it is to recognise that he has given each of them financial assistance over the years he has lived in their home. 

7. Weighed one against the other, the balance tips in favour of the wife in so far as she had the sole responsibility for the two dependent children for a number of years without any assistance from their father, nor did she receive any financial or other assistance from him with the maintenance and upkeep of the home over the years, nor any assistance with payment of the rates and the like.  On the other side of the scales, however, she has had the occupation of the home of which the husband has been a joint owner for many years after the children’s dependency had passed.  I regard that is a counter-balancing factor. 

8. In my assessment, all of the parties’ contributions to the P home over the many years of their marriage and separation should be seen as approximating equality. 

(ii) other assets

1. The wife made no contribution to the husband’s compensation payment.  That is conceded.  Not only is his compensation money to be found in the balance of his savings, it is also the source of payment for the motor vehicle.  The furniture he owns was bought either with post separation savings or with the compensation money.  In either event, the wife could not be said to have made any contribution to them. 

2. Nor could the husband be said to have made any contribution to the husband’s savings after all these years.  As for her furniture, it may be that some or all of it was acquired during the marriage and left in the house at separation.  But even if that were the case rather than acquired by her over subsequent years, at this point in time any suggestion of contribution to it by the husband could be forgotten. 

Conclusion

1. Overall, they are assessed as having made equal contributions to the P property and on that basis would each be entitled to receive a half share of that property.  Neither having made any contribution to the other’s additional assets, they would each retain what they own. 

Section 75(2) factors

1. It remains to consider what, if any, adjustment should be made to that assessment in light of any relevant s 75(2) factors. 

2. At the ages of 74 and 70 years, neither has any earning capacity and each must rely on their pension income and property they now own to support themselves.  Contributions to the P home entitle them to half share of that property and contributions to the other property they own entitles them to retain that property to the exclusion of the other.  They each live modestly, as their income and expenditure makes apparent.  The husband’s interest income puts him on a slightly better footing but of course that is related to the balance invested at any point and if he were required to part with $45,000, as is his application, interest receivable would reduce accordingly.  Their lifestyle is modest and, as far as I can tell, not dissimilar. 

3. Their children would appear to constitute a financial resource for each of them.  I say that because the wife’s application is to pay the husband $30,000 for his interest in the home and, as she has no apparent means to achieve that, it is inferred that she would look elsewhere for the funds, presumably to all or some of her children.  The husband’s resource is the rent free accommodation that has been and may in the future be provided by their youngest son.  The fact that he has that accommodation in his son’s property is a factor to be weighed in considering any adjustment to his contributions, but it does not assume the proportions of a virtual knock-out factor.  He occupies the property under licence, not through any proprietary right, and who could say what path his son’s financial circumstances will take in the future or when the wind might change in their relationship.  Resourced at present by his son he may be, but the husband has an entitlement to receive whatever his property entitlement is so that he might dispose of or deal with it in any manner of his choosing, as is his right.  It is not merely a question of whether he has anywhere to live. 

4. Apart from his current accommodation being a factor for consideration, the disparity in the value of their assets other than the P home suggests there should be an adjustment in the wife’s favour. 

5. Added together, their other assets total $117,000.  If the wife were to receive her half of the P home and also one half of what they each now have by way of other assets, she would be entitled to receive $58,500.  She already has $13,000 and so $45,500 would give her half of all the assets.  This is so near to the $45,000 the Judicial Registrar ordered that the difference can be ignored.  It is an appropriate adjustment in her favour. 

Just and equitable

1. If each were to receive a half share of the P home and the husband paid the wife $45,000 that would be a just and equitable outcome for each at this stage of their lives in my opinion.  In all probability it will not be seen that way from the wife’s perspective, as her review of the orders and submissions on her behalf maintain, but the result arrived at by the Judicial Registrar is entirely consistent with my own view of the whole of the circumstances, past and present. 

2. The figure of $255,000 calculated by the Judicial Registrar and included in the orders was based on an erroneous view of the agreed value of the home and it was common ground here that the application of $610,000 would result in an order for payment of a further $5,000 to give an ultimate figure of $260,000.  However, Mr Thistleton confirmed instructions from the husband that he would not argue against the lesser figure of $255,000 – in other words, he would not seek to review that order of the Judicial Registrar’s so as to adjust the mathematics. 

3. That determination means the wife’s review application must be dismissed.  However, as the orders giving the wife the option to purchase the property were to take effect 90 days from the date of orders made 6 November, it will be necessary to extend that time which has now expired.  Absent any submission about it, a further six weeks ought to be sufficient to resolve whether or not it can be raised and to pay it to the husband.  If not, the property will have to be sold and the proceeds after costs of sale distributed equally between them. 

4. The other orders of the Judicial Registrar are all appropriate to the circumstances, including the default provision for sale of the P property. 

Leave

1. It follows that it will not be necessary to take up the husband’s contingent application for review of the decision to grant leave pursuant to s 44(3) of the Act. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  20 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CARUSO & COLOMBO