Charney and Charney
[2009] FamCA 751
•19 August 2009
FAMILY COURT OF AUSTRALIA
| CHARNEY & CHARNEY | [2009] FamCA 751 |
| FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – Just and equitable – Superannuation |
| Family Law Act 1975 (Cth) ss 75, 79 |
Blakey & Blakey (2008) FLC 93-357
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
In the Marriage of Pierce (1998) 24 Fam LR 377; FLC 92–844
| APPLICANT: | Ms Charney |
| RESPONDENT: | Mr Charney |
| FILE NUMBER: | SYC | 882 | Of | 2008 |
| DATE DELIVERED: | 19 August 2009 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Judicial Registrar Loughnan |
PLACE HEARD: Sydney
| HEARING DATE: | 30 April & 9 July 2009 |
REPRESENTATION
COUNSEL FOR THE APPLICANT WIFE: | Ms W. Langley |
| SOLICITOR FOR THE APPLICANT: | Uther Webster & Evans |
COUNSEL FOR THE RESPONDENT HUSBAND: | Mr R Greenaway |
| SOLICITOR FOR THE RESPONDENT | Farah Lawyers Solicitors & Barristers |
Orders
That within twenty eight (28) days of the date of Order, the Husband do all acts and things and sign all documents that may be necessary to transfer to the Wife all his right tide and interest in the property at G (Lot …/… and hereafter "The G property").
That simultaneously with the transfer referred to in Order 1 above ("the due date"), the Husband do acts and things and sign all documents necessary to pay to the Wife the sum of $81,827 ("the settlement sum").
In the event that the Husband fails to pay the settlement sum by the due date, then the Husband is to do all acts and things and sign all documents that may be necessary to forthwith upon default sell the property at P (Lot .../DP… and hereafter "the P property") upon the following terms and conditions:
a.With a Real Estate Agent as agreed between the parties, failing agreement within seven (7) days of the due date, with an Agent appointed by the President of the Real Estate Institute of New South Wales or his/her nominee;
b.At a listing price as agreed between the parties, failing agreement at the price recommended by the Agent;
c.With solicitors as agreed between the parties, failing agreement with a firm of solicitors in the P area nominated by the President of the Law Society of New South Wales;
d.The Husband must sell the P property for the highest price offered or negotiated by the Agent for the P property;
e.Upon settlement of the sale of the P property, the proceeds are to be disbursed as follows:
i. In payment of Agent's costs, selling costs and legal costs on sale;
ii.In payment to the Wife of the sum representing 16.4% the remaining proceeds of sale plus interest at the rate prescribed by the Family Law Rules from the date of default until the date of payment to the Wife; and
iii.The balance then remaining to the Husband.
That unless otherwise specified in these Orders and save for the purposes of enforcing any moneys due under these or subsequent Orders, the Wife retain and be declared to be the sole legal and beneficial owner of all her right, title and interest in and to:-
a. All cash at bank and other moneys invested by her.
b. All personal effects in her possession.
c.The 1994 Charade CS G200 motor vehicle registration number … in her possession.
d.All other personal and real property in her possession, custody or control as at the date of these Orders.
That unless otherwise specified in these Orders and save for the purposes of enforcing any moneys due under these or subsequent Orders, the Husband retain and be declared to be the sole legal and beneficial owner of all his right, title and interest in and to:-
a. Property at P.
b. All cash at bank and other moneys invested by him.
c. All personal effects in his possession.
d. All his superannuation entitlements.
e.The 1994 Volvo 850 Sedan motor vehicle registration number … in his possession.
f.All other personal and real property in his possession, custody or control as at the date of these Orders.
That in the event that the Husband or Wife refuses or neglects to comply with any of the provisions of these Orders within 7 days of a document being forwarded to either of them for their completion, a Deputy Registrar or a Registrar or other Officer of the Family Court of Australia at Sydney be appointed pursuant to Section 106A(1) of the Act, to execute all such deeds and documents in the name of the defaulting party and to do all acts and things necessary to give validity to the said Orders.
That the Registrar or Deputy Registrar or other Officer is authorised to execute any such necessary instrument upon being satisfied by Affidavit that refusal, neglect or default, as the case may be, has occurred.
IT IS NOTED that publication of this judgment under the pseudonym Charney & Charney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 882 of 2008
| MS CHARNEY |
Applicant
And
| MR CHARNEY |
Respondent
REASONS FOR JUDGMENT
The parties’ marriage spanned 30 years and they cannot agree on a settlement of property. The husband contends that they have already reached a binding agreement on the issue.
Applications
The wife seeks orders in terms of her Application For Final Orders filed 18 March 2008 as follows:
1.That within twenty eight (28) days of the date of Order, the Husband do all acts and things and sign all documents that may be necessary to transfer to the Wife all his right tide and interest in the property at [G] (Lot […] and hereafter 'The [G] property").
2.That simultaneously with the transfer referred to in Order 1 above ("the due date"), the Husband do acts and things and sign all documents necessary to pay to the Wife the sum of $115,000.00 ("the settlement sum").
3.That within twenty eight (28) days from the date of these Orders 9 ("the due date"), the Husband do all acts and things and sign all documents that may be necessary to pay to the Wife half of the net proceeds of sale of the Telstra 2 shares previously in his possession and half the value of any other shareholdings that he may have, or have had, as at the date of separation ("the second settlement sum").
4.In the event that the Husband failed to pay the settlement sum by the due date, then the Husband is to do all acts and things and sign all documents that may be necessary to forthwith upon default sell the property at [P] (Lot […] and hereafter "the [P] property") upon the following terms and conditions:
i.With a Real Estate Agent as agreed between the parties, failing agreement within seven (7) days of the due date, with an Agent appointed by the President of the Real Estate Institute of New South Wales or his/her nominee;
ii.At a listing price as agreed between the parties, failing agreement at the price recommended by the Agent;
iii.With solicitors as agreed between the parties, failing agreement with a firm of solicitors in the [P] area nominated by the President of the Law Society of New South Wales;
iv.The Husband must sell the [P] property for the highest price offered or negotiated by the Agent for the [P] property;
v.Upon settlement of the sale of the [P] property, the proceeds are to be disbursed as follows:
a.In payment of Agent's costs, selling costs and legal costs on sale;
b.In payment to the Wife of the sum of $115,000.00 plus interest at the rate of 10% per annum accruing from the date of default until the date of payment of the settlement sum to the Wife;
c.In payment to the Wife of the second settlement sum, plus interest at the rage of 10% per annum accruing from the date of default until the date of payment of the second settlement sum to the Wife; and
d.The balance then remaining to the Husband.
5.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or subsequent Orders, the Wife retain and be declared to be the sole legal and beneficial owner of all her right, title and interest in and to:-
a. All cash at bank and other moneys invested by her.
b. All personal effects in her possession.
c.The 1994 Charade CS G200 motor vehicle registration number […] in her possession.
d.All other personal and real property in her possession, custody or control as at the date of these Orders.
6.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or subsequent Orders, the Husband retain and be declared to be the sole legal and beneficial owner of all his right, title and interest in and to:-
a. Property at [P].
b. All cash at bank and other moneys invested by him.
c. All personal effects in his possession.
d. All his superannuation entitlements.
e.The 1994 Volvo 850 Sedan motor vehicle registration number […] in his possession.
e.All other personal and real property in his possession, custody or control as at the date of these Orders.
7.That in the event that the Husband or Wife refuses or neglects to comply with any of the provisions of these Orders within 7 days of a document being forwarded to either of them for their completion, a Deputy Registrar or a Registrar or other Officer of the Family Court of Australia at Sydney be appointed pursuant to Section 106A(1) of the Act, to execute all such deeds and documents in the name of the defaulting party and to do all acts and things necessary to give validity to the said Orders.
8.That the Registrar or Deputy Registrar or other Officer is authorised to execute any such necessary instrument upon being satisfied by Affidavit that refusal, neglect or default, as the case may be, has occurred.
9. That the Husband pay the Wife's costs and incidental to these proceedings.
10.It is noted that the Wife reserves the right to amend this Application upon further disclosure by the Husband of his financial position.
The husband proposes that the Orders be made in the terms of the Financial Agreement of 27 February, 2007 or in the alternative that the Financial Agreement be declared valid. The operative provisions of the agreement were:
1. [The husband] will upon execution of this agreement transfer to [the wife] all his right title and interest in the property known as [G property] being Lot […] in DP […] and being the whole of the land in Certificate of Title Folio Identifier […] (‘[G] property’).
2. [The wife] is hereby declared the owner of the following property to the exclusion of [the husband]:
a) The [G] property
b) 1986 Toyota Corona Station Wagon Registration Number […]
c) her Bank Account with the […] Branch of the St George Bank
d) All other items of personal property in her possession
3. [The husband] is declared the owner to the exclusion of [the wife], of the following items of property:
a)The property at [P] being Lot […] in DP[…] and being the whole of the land in Certificate of Title Folio Identifier […] (‘[P] property’).
b)1994 Volvo 850 sedan Registration Number […]
c)His Bank Accounts with the […] Branch of the Commonwealth Bank and the […] Branch of the Arab Bank
4. The parties agree that otherwise that as set out about and dealt with by this agreement, each party is the sole legal and beneficial owner to the exclusion of the other party, of all other property registered in his or her name or in his or her current possession or control.
Documents read
The wife relied on the following documents:
Application for final orders filed 18 February 2008
Affidavit of the wife filed 7 November 2008
Affidavit of the wife filed 14 January 2009
Financial Statement of the wife filed 7 November 2008
Affidavit of Ms LA filed 7 November 2008
Affidavit of Ms LA filed 14 January 2009
Affidavit NE (Interpreter) filed 7 November 2008
Affidavit GS (Interpreter) filed 14 January 2009
The husband relied on the following documents:
Affidavit of Respondent Husband filed on 12 November 2008
Affidavit of Respondent Husband filed on 5 December 2008
Husband’s Financial Statement filed 13 May 2008
Husband’s Financial Statement filed 12 November 2008
Husband’s Financial Questionnaire not filed
Short history
As at the date of the commencement of the hearing the wife was 51 years of age and the husband was 66. They were married in Syria in March 1976 and separated for the final time on 27 June 2007. The parties’ divorce became final on 18 October 2007.
Children
There are no children of the marriage who are under 18 years of age.
The hearing
The matter was first listed for hearing on 30 April 2009. The hearing commenced on that date. About one hour was spent in objections and as the wife walked to witness box her counsel inquired about an interpreter. It transpired that no interpreter had been requested on behalf of the wife and therefore no arrangements were made by the Registry to have an interpreter attend. The parties’ counsel agreed that the hearing should be adjourned to another day. That is not to say that the husband concedes that the wife has a lack of facility in English but that his counsel felt that the matter could not progress without an interpreter. The matter was then adjourned to 10 July 2009, part-heard. An interpreter in the Arabic language was ordered for the adjourned date.
On 10 July 2007 the oral evidence was concluded, submissions were made, and judgment was reserved.
Issues in dispute
The following list of facts in dispute was settled by the parties’ counsel:
1.Financial contributions of Wife from compensation money ($80,000.00) received in 1988 to purchase the P property.
2.Financial contributions made by both parties during the marriage by way of income from employment.
3.Wife’s ability to read English, particularly in legal documents.
4.Husband’s use of rental proceeds from G property whilst living in P property to the exclusion of the wife during the period 2004 – 2006.
5.Wife’s use of rental proceeds from G property whilst Husband paying all council rates, water rates and insurance during the period of 2004 to 2006. Wife says she did not receive the rental payments during this period, Husband contends otherwise.
6.Whether Husband was paying outgoings for G property during period 2004 – 2006.
7.Value of furniture Husband alleges was taken by the Wife after separation.
8.Value of furniture retained by Husband originating from the marriage, and from the P property.
9.That in 1986 the wife spent $15,000.00 saved from income on the family trip to Syria.
10.Wife’s income during the marriage.
11.Husband’s income during the marriage.
12.Whether the wife in September 2008 spent money renovating the G property.
13.Validity of Deed of property settlement in 1996/1997 signed by wife while in Syria and of Financial Agreement executed in February 2007.
14.Alleged property settlement in or around 1996, by which Husband alleges that the wife received $80.000.00 by way of property settlement.
Background facts
The husband arrived in Australia in 1970. He bought N property.
The parties were married in Syria in March 1976.
The parties arrived in Australia in April 1976 and commenced living in the husband’s property at N.
The child LA was born in January 1977.
In 1978 the parties purchased a mixed business in L and lived in accommodation at the back of the shop. The N property was rented out.
In 1979 the wife suffered an ectopic pregnancy.
In 1980 there was a fire in the mixed business shop. That forced the closure of the business and the parties moved to alternate accommodation at G.
In 1980 the wife suffered a second ectopic pregnancy.
In 1981 the parties purchased a property at G and moved from the rented accommodation to the G property.
The husband worked part time and commenced a TAFE course.
In 1982 LA commenced school.
In 1984 the wife obtained employment with C Company. She was employed as a cleaner, and later preparing products for sale. She worked at C Company on a full-time basis for approximately one year.
In 1986 the husband sold the N property.
In 1986 the parties travelled to Syria using $15,000 that the wife had saved while working at C Company. LA remembers the father buying things for his relatives, including a motor car for a brother.
In 1986 the parties returned from Syria and the wife returned to work for C Company, on a full-time basis.
From 1986 to 1987 the husband set up S Company Pty Ltd. He ran this company with two partners, fellow students from his college.
In 1987 the wife suffered a work related accident injuring her back which prevented her working for around two to three years. She received Workers Compensation payments.
From 1987 – 1990 the wife undertook casual work selling Avon and Tupperware.
In 1988 S Company wound down.
In late 1988 the wife received $80,000 compensation for the injury suffered when working for C Company.
In 1989 the parties purchased a property at P for $196,000, using the workers compensation moneys the wife received.
In 1989-1991 the husband worked as a consultant with HS Company.
In 1990 the wife returned to full time work at AB Business for approximately six months.
In 1991 – 1992 the wife was employed at a takeaway shop for an average of thirty five hours per week.
In 1992 – 1993 the wife was employed at a cafe, working full-time from 5.00am to 2.00pm.
The wife alleges that in 1995 there was a further incident of domestic violence. In 1996 the wife suffered a nervous breakdown and attempted to take her own life.
In March 1996 the wife travelled to Syria and stayed with her mother.
In May 1996 the husband travelled to Syria and convinced the wife to sign a document which she believed would save the family home. The husband asserts that the document represented a property settlement. The husband says that he paid the wife $80,000 and that payment was witnessed by “The Australian Embassy in Damascus”, the wife’s sister, and her son. The agreement was dated 8 May 1996 and was apparently executed before an Australian consular officer in Syria. The operative provisions were:
1.The wife agrees to accept and the husband agrees to pay the sum of EIGHTY THOUSAND DOLLARS ($80,000.00) to the wife in full settlement of any claim she may have in respect of the matrimonial property.
2.The wife acknowledges having already received the sum of FORTY THOUSAND DOLLARS ($40,000.00).
3.On receipt of the further balance of FORTY THOUSAND DOLLARS the wife acknowledges that she will indemnify the husband against any further claim in respect of the matrimonial property.
In August 1996 the wife returned to Australia, received news from Syria that her mother was dying and returned to Syria to nurse her.
In November 1996 the wife returned to Australia.
In late 1996 or early 1997 the parties attended a solicitor’s office where the wife signed a document. The husband says that the property was transferred into his name and that he paid stamp duty and solicitors fees. The wife contends that she believed that execution to be necessary to prevent Court proceedings in respect of the house.
The husband says that the parties reconciled in about late 1996. He says he asked the wife what she did with the settlement moneys and that she responded:
“I don’t know I was not in my right state of mind.”
In 1997 the wife was employed at the cafe in the city on a casual basis.
In 1998 the wife was employed at a canteen on a casual basis and at a takeaway shop at N.
In 1998 or 1999 the husband told the wife that the bank had repossessed the G property. LA says she was told that by the husband in the late 1980’s.
From 1998 the wife no longer had consistent paid employment. She performed casual work from time to time.
The husband says that the parties went on a holiday to 29 countries over 4 ½ months at a cost of $63,000. He says in his affidavit that he funded the whole trip. During cross-examination he asserted that he borrowed $12,000 in relation to the trip.
In 2003 the wife had surgery on her foot. There were complications after the operation that continue to cause problems.
The parties separated on 11th March 2004.
The wife and LA lived with a friend for a few weeks and then moved into rented accommodation. They left with no furniture or effects and LA spent over $20,000 in setting up the new premises and $5,000 for a motor vehicle.
In March 2004 the wife was diagnosed with cancerous cells in her breast and underwent treatment and surgery in Hospital.
In March 2004 the wife received the Disability Support Pension from Centrelink.
In 2004 the wife discovered that the husband still owned the G property.
In February 2005 LA left Australia for work with a company in Bahrain. She sent her mother between $400 and $600 per month. The wife says that she also sent her clothing and household items.
In April 2005 the wife underwent a hysterectomy. She concedes that the husband visited her regularly and looked after her during her operations.
The husband contends that the wife received the rent from the G property from about this time. The wife contends that LA received the rent on her behalf from the end of 2006 or the start of 2007.
The parties reconciled on 20th September 2006. The wife continued to receive the rental income on the G property.
In November of 2006 the parties attended the offices of Coustas & Co, solicitors and gave instructions for a Financial Agreement which would come into effect if the parties separated. The husband says that the wife commissioned the agreement and that on her request, he agreed to pay ‘her’ solicitor’s fees of $2,500 for that work. Interestingly, he does not say that he did in fact pay the fees. LA says that when she returned from Bahrain in 1997 she paid the fees and bought her mother a Daihatsu Charade motor vehicle.
From September 2006 - June 2007 the parties renovated the P home.
In February 2007 the husband signed the Financial Agreement. The husband says that the wife also executed the agreement. The wife says that she changed her mind after she signed the agreement. The recitals include:
…
F.In 1996 following a separation between the parties [the husband] paid to [the wife] the sum of $80,000.00 by way of property settlement in return for the transfer by [the wife] of her share in the Matrimonial Home at [P] to [the husband].
G.[The husband] and [the wife] subsequently reconciled.
…
Apart from the recitals and omitting formal parts, the agreement provided:
5. [the husband] will upon execution of this agreement transfer to [the wife] all his right title and interest in the property known as [G property] being Lot […] in DP […] and being the whole of the land in Certificate of Title Folio Identifier […] (‘[G] property’).
6. [The wife] is hereby declared the owner of the following property to the exclusion of [the husband]:
a) The [G] property
b) 1986 Toyota Corona Station Wagon Registration Number […]
c) her Bank Account with the […] Branch of the St George Bank
d) All other items of personal property in her possession
7. [The husband] is declared the owner to the exclusion of [the wife], of the following items of property:
a)The property at [P] being Lot 19 in DP[…] and being the whole of the land in Certificate of Title Folio Identifier […] (‘[P] property’).
b)1994 Volvo 850 sedan Registration Number […]
c)His Bank Accounts with the […] Branch of the Commonwealth Bank and the […] Branch of the Arab Bank
8. The parties agree that otherwise that as set out about and dealt with by this agreement, each party is the sole legal and beneficial owner to the exclusion of the other party, of all other property registered in his or her name or in his or her current possession or control.
9. Both parties agree that this agreement related to the whole of the financial matters between them personally including property, financial resources and spousal maintenance.
10. Both parties have received independent legal advice as to whether this agreement is in their respective interests.
11. Before executing this Deed each party has had regard to the possibility that one or both of them may be subject to a change of circumstances.
The parties separated for the last time on 26 June 2007. LA’s husband stayed with the parties for about three months but he moved out soon after the wife left. Some of the items of furniture bought by LA in early 2004 were left in the P property after separation, including a queen sized bedroom suite, a large free standing mirrored wardrobe, clothing, a couch and many other smaller household items.
The parties divorce decree was pronounced on 17 September 2007 and became final on 18 October 2007.
It is an agreed fact that in November 2007 the husband sold shares for approximately $40,000 and applied that sum to the cost of LA’s wedding. It is LA’s evidence that she gave her father $1,000 - $2,000 in the late 1990’s so he could acquire those shares.
These proceedings were commenced by the wife when she filed her application on 16 April 2008.
On 4 July 2008 the wife caused a caveat to be entered on the title of the G property.
On 22 August 2008 a Conciliation Conference was conducted. The husband alleges that there was an incident of domestic violence at a Sydney Station. The wife was charged with the following offences:
· Stalk/intimidate intend fear of physical/mental harm;
· Use carriage service to menace/harass/offend Actual offence; and
· Common assault.
In addition, an interim AVO was granted against the wife.
The wife says that in September 2008 she spent $7,800 on renovations to the G property. She paid for the renovations by borrowing the following sums:
i.$3,000 from Ms MS;
ii.$2,000 from LN; and
iii.$3,000 from AC.
On 20 February 2009 the criminal charges against the wife were fixed for hearing. The husband did not attend Court, no evidence was offered and the charges and the AVO were dismissed.
Credit and Submissions
The evidence of the witnesses
The only witnesses called for cross-examination were the parties.
The wife gave her evidence with some assistance from an interpreter but mostly in English. The wife was a very poor witness. She was argumentative and consistently refused to limit her answers to the questions asked. On many occasions she took the question as an invitation to give her views about that aspect of the case. It is a problem for the wife’s credibility that on several occasions she put her name to a statement of facts parts of which she now says are not true. That occurred in financial agreements entered into in 1996 and 2007 and in her affidavits. She also failed to call witnesses available to rebut the husband’s evidence.
Sadly, LA was called to give evidence in her mother’s case. There are only two relatively minor issues on which her testimony is important. They are whether she or her father paid the legal fees of Coustas and Co in 2007 and whether her father has paid any outgoings on the G property since 2006. She was not challenged in cross-examination on the first issue and she could not provide documentary evidence to support her contention on the second issue. She conceded that she is estranged from her father and is angry and upset with him.
The husband is a poor witness. He refused to curtail the monologues that followed questions amenable to a ‘yes’ or ‘no’ answer. He was not assisted by the fact that he omitted from his evidence in chief so important a fact as bringing $12,000 to Australia when he first arrived in 1970 and that those moneys all but paid for the N property he bought in 1971. It is his case that in 1996 he paid the wife $80,000 in two tranches - $40,000 prior to attending at the Australian Embassy in Damascus to sign an agreement and $40,000 following the execution of the agreement. However, the necessary inference from his affidavit is that $80,000 was paid at the Embassy and that the payment was witnessed by embassy staff. I was invited on his behalf to accept the first version. It is his case that he obtained the $80,000 by borrowing it from his brother and still owes that money but there is no suggestion of either fact in either of his affidavits or in either of his Financial Statements. The husband deposed to spending $63,000 on travel in 2001 but only in the course of cross-examination did he assert that $12,000 of that sum was borrowed from a friend and has since been paid back. There is no suggestion of that fact in either of his affidavits.
Learned counsel for the husband invited me to distinguish between the extent to which the credibility of each party is compromised. Similarly learned counsel for the wife suggested that her client was more consistent than the husband. In the circumstances, however, I cannot simply prefer the evidence of one over that of the other on all disputed issues. Neither of the parties is an adequate witness. Findings of fact on disputed issues need to be made issue by issue.
Submissions
The written submissions on behalf of the wife are:
Summary of argument
Long marriage, some 31 years
Husband had initial contribution, not known what the value of the [N] property or what liability attached to it.
Husband’s initial contribution should be given little weight given the length of the marriage and the other contributions made by the wife
Wife contributed a worker’s compensation payment of $80,000. There is a dispute between the parties as to whether or not that sum was given to the wife pursuant to a Financial Agreement as alleged by the husband and denied by the wife.
Wife worked throughout the marriage either full time or part time
Wife was primary care giver to the parties’ child.
Wife performed most of the homemaker duties.
After separation in June 2007 wife lives in rented accommodation and has to rely on Centrelink benefits for support. Husband remains in [P] property and receives rental income from [G] property.
Wife carried out renovation to the [G] property after separation for the sum of $7500 at her own expense.
Husband is 16 years older than the wife
Husband still working
Wife unable to work due to various health problems
Issues in Dispute
Contributions made by the parties
The “fate” of the $80,000 received by the wife (Worker’s Compensation payment). Husband asserts returned to the wife. Wife asserts used towards the purchase of the [P] property.
Whether or not there is a duly executed Financial agreement.
In the event that the Court finds that there is a duly executed Financial Agreement whether or not the wife had independent legal advice as to its content.
Conclusion
Section 79(4)
It is submitted that based on section 79(4) factors until the date of separation the parties have made an equal contribution to the pool of assets.
That is - Husband 50%, Wife 50%
After separation it is submitted that the wife has made a greater contribution than the husband to the extent of 5%.
Overall 55% to the wife and 45% to the husband
Section 75(2)
It is submitted that there would be no adjustment under section 75(2).
The husband is older than the wife and is still in paid employment, although it is conceded that his working life is probably limited.
The wife is in receipt of a Disability Support pension and is unable to work.
In oral submissions it is argued that while both parties were emotional, the wife was a more consistent witness. It is submitted that revelations in the husband’s evidence only came in cross-examination to seek to explain the implausibility of his case. It is submitted that there was no valid binding financial agreement in 2007 because the form is entitled section 90D but was made before divorce; the recitals are internally inconsistent; the parties did not have truly independent advice with both attending the drafting solicitor 3 or 4 times. It is submitted that strict requirement is required in relation to agreements seeking to oust the Court’s jurisdiction (Black v Black). It is submitted that the pool of assets is agreed as to items 1 – 14 on the draft balance sheet. It is submitted that there should be no add-back for rent received by the wife since separation because the wife only received that rent from 2006 to 2009 whereas the husband received the rent from separation in 2004 until 2006 and at all times since separation has lived rent free in the P roperty while the wife rented. It was submitted, without complaint on behalf of the husband, that the husband alone is responsible for a $16,000 debt to Centrelink. It is submitted that contributions favour the wife 55% to 45% by the husband. They were equal to separation and thereafter the wife is ahead by 5% because the husband has lived rent free in the Pproperty since separation while the wife rented.
The parties agree that there is no basis for an adjustment under section 75(2).
The submissions on behalf of the husband are to the effect that wife has her property settlement in the form of the Gproperty. It is submitted that the husband was a more credible witness than the wife. No submissions were made in relation to the validity of the 2007 agreement. As to the pool, items 1-14 are agreed. The husband would add $50,000 for the rent that the wife received from soon after April 2004 and did not account for. No submissions were made in respect of the husband’s Centrelink debt. I gather that the husband would also add back to the credit of the wife $80,000 she received from him in 1996. As to contributions, it is submitted for the husband that he made a far greater contribution – he brought in $12,000 in savings that all but paid for the N property which in turn was a major contributor to the G property. The husband was the main wage earner. The wife acknowledged in 2007 that her settlement should be the G property. It is argued that the husband’s contributions were 60% compared to 40% by the wife. There should be no adjustments under section 75(2). It is argued that the wife already had more than 40% of the assets and there should be no further adjustment of property.
Is there a Binding Financial Agreement
Section 90C of the Family Law Act makes provision for financial agreements entered into after parties have married but before they divorce.
Such an agreement can be binding on the parties and oust the jurisdiction of the Court under section 79. As the circumstances whereby an agreement is a binding. As at February 2007 Section 90G of the Family Law Act provided:
90G When financial agreements are binding
(1) A financial agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by both parties; and
(b) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the agreement on the rights of that party;
(ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(c) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(d) the agreement has not been terminated and has not been set aside by a court; and
(e) after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.
Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.
(2) A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.
The Full Court has held that the requirements are to be strictly applied. See Blakey & Blakey (2008) FLC 93-357.
Here there are a number of problems. Key among them is the fact that the agreement is expressed to be an agreement under section 90D which relates to agreements entered into after divorce. The parties were not divorced in February 2007. There may be a copy of the agreement bearing a certificate of advice to the wife but I have not seen it. The terms of the certificates assert that the party was given:
“independent legal advice prior to entering into this Deed as to the following matters:
(a) The effect of the agreement on the rights of the parties to apply for an order under Pt VIII of the Family Law Act 1975.
……”
The underlining is mine and marks a departure from the requirements of section 90G. I am not sure why the advice would relate to the rights of both parties or why it would be limited in that way. Whatever the reason, the requirements of the legislation are not met. Therefore, there is no binding financial agreement and so the Court has jurisdiction to make a property settlement.
The approach in proceedings under section 79
The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [1]
[1] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370
There is no mention of steps in section 79 but it is convenient to approach the exercise of discretion in a structured way. The Full Court has supported such an approach.
The property of the parties at the date of the hearing
The Court is required to make a finding as to the property of the parties. That involves identifying assets, liabilities and financial resources and their values.
There are circumstances whereby assets are included in the list for division although they no longer exist. The same logic would apply to the exclusion from the relevant list of liabilities, debts that do exist at the date of the hearing. In the Marriage of Omacini (2005) 33 Fam LR 134 the Full Court noted:
[30] To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b) Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c) In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:
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 s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.
The parties have settled a joint balance sheet. As to the disputed issues:
The Rent received by the wife from 2004 (sic) to 2006
The husband seeks to have added to the assets, approximately $50,000 for the rent that the wife received. The husband did not give any evidence about the commencement of the arrangement whereby the wife received the rent, in either of his affidavits. The wife and LA both depose to the wife finding out that the husband still owned the G property in 2004. In her affidavit the wife says that in around 2006 she confronted the husband about this. In cross-examination she was asked if the arrangement for LA to receive the rent on her behalf followed her hysterectomy in about April 2005. Thus not even the husband contends that the payments commenced in 2004. The wife responded “yes and no”. LA thought that she started receiving the G property rent in about 2006. She was not challenged on that evidence. LA rejected the proposition that her mother had received the rent directly prior to that time.
In re-examination the wife was asked about the commencement of the arrangement with LA in respect of the rent and said: “it was, I think, the end of 2006, beginning, maybe 2007”.
Doing the best I can, it appears that the husband received the rent from prior to separation until some time in 2006. Thereafter the wife received the benefit of the rent, through LA. It is not possible to identify the net benefit of the rent to either the wife or the husband. The rent was most recently $230 per week. Naturally, there have been costs associated with renting the property. The onus lies with the husband to make this aspect of the case and he has not done so. The benefit received by the wife is balanced to some extent to the same benefit received by the husband earlier, from the same source. Following separation the wife had living expenses and no income. The husband’s accommodation costs were subsidised by the wife in that he lived rent free in the P property.
In the circumstances I will not add back an amount for the G rent.
The $80,000 received by the wife in 1996
The husband seeks to have added to the assets the $80,000 the wife received from him in 1996. The husband’s evidence on this is a bit confused.
It is his case that in 1996 he paid the wife $80,000 in two tranches - $40,000 prior to attending at the Australian Embassy in Damascus to sign an agreement and $40,000 following the execution of the agreement. The inference from the wording of the agreement is that there were two tranches. However, the necessary inference from his affidavit is that $80,000 was paid at the Embassy and that the payment was witnessed by embassy staff. I was invited on the husband’s behalf to accept the first of his versions of these events.
Adding to the problems, it is the husband’s case that he obtained the $80,000 by borrowing it from his brother and still owes that money. There is no suggestion of either of those propositions in either of his affidavits or in either of his Financial Statements.
It is the wife’s evidence that she did not receive $80,000 in 1996. Unfortunately by documents she signed in 1996 and 2007 she conceded receiving at least some of those moneys. The other background facts suggest the payment was made. It seems to me to be inherently unlikely that the wife or her sister and nephew would be involved in an exercise whereby she signed away her rights for no money. In cross-examination the wife was asked if her sister and nephew were available to give evidence and she said they were. The wife did not call her sister or her nephew. I draw the obvious inference.
I am satisfied that the payment was made. The problem is that it was made in 1996 a full 8 years before final separation. It was not put to the wife that she still has $80,000. Just as the husband did not account to the wife for any income from G property from 1998-1999 to separation in 2004, the wife did not account to the husband for the fate of $80,000 from 1996 to separation. I will not read back in that sum into the list of current assets.
I find that the assets are:
Assets
Value
G property, NSW
$320,000
P property, NSW
$500,000
Wife’s St George Bank account
$215.19
Wife’s 1994 Daihatsu Charade motor vehicle
$1,000
Husband’s St George Bank account
$107.17
Husband’s ANZ Bank account
$1071.20
Husband’s Commonwealth Bank account
$248.15
Husband’s Arab Bank account
$560.11
Husband’s Telstra shares
$1,840
Husband’s 1999 Toyota Corolla motor vehicle
$6,000
Husband’s 1992 Suzuki motor vehicle
$500
Husband’s household contents
$3,000
Total
$834,541.82
Superannuation
Value
Tasplan (H)
$1,053.76
AMP
$74.75
REST Superannuation Fund
$4,000
Total
$5,128.51
Liabilities
The husband owes Centrelink $16,009.85 for the overpayment of a benefit. It is submitted on behalf of the wife, without complaint on behalf of the husband, that this is the husband’s debt.
There are no relevant liabilities.
Net assets
The net non-superannuation assets have a value of $834,541.82. The husband’s superannuation has a value of $5,128.51.
Financial Resources
The wife has ongoing assistance from LA. There is no evidence about LA’s financial circumstances, save that she is in paid employment. The husband has an informal financial relationship with members of his family. For example he feels that he owes his brother $80,000 but does not describe that as a relevant debt. Otherwise the parties’ disclose no financial resources.
Contributions
The obligations placed on the Court by s 79 call for an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets[2]. There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of parties[3].
[2] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1
[3] In the Marriage of Shewring (1987) l2 Fam LR 139
As to whether the Court should apply the considerations in section 79(4) to the assets globally or asset by asset, the authorities have it the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.
In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:
“… approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.”
Here the case has been argued on a global basis and I will deal with the assets in a similar way.
Section 79(4)(a) Contributions
Financial contributions, both direct and indirect were made by each of the parties.
The husband came into the relationship with his equity in the N property. Because his evidence on this issue was first revealed during cross-examination, it is far from certain. However, on balance, I accept that the husband came into the marriage with virtually the entire value of the N property. He had bought that property in 1970. The property was rented out from 1978 and although there is no evidence on the topic, I take it that the rent was applied to family purposes. The property was sold in 1981. There is no evidence of the net sale proceeds.
The wife had some jewellery.
The parties each had paid employment during the marriage. The wife had the following paid employment:
Commenced
Duration
Employer
1984
About 12 months
C Company
1986
6-7 months
V Company
1987
6-7 months
C Company
1987
3 years
Casual employment selling Avon and Tupperware
1990
6 years
Various:
AB Business, then
Takeaway shop, then
Cafe (5am to 2 pm)
The wife had a workers compensation payout of $80,000 after her second period at C Company. She later received periodic compensation payments for a repetitive strain injury after her employment with AB Business. It is agreed that some of those funds went to purchase the P property. The wife says it all went in. The husband said in his affidavit that $20,000 went to the purchase. He said it was $40,000 in his oral evidence, changing it back to $20,000 when reminded about his written evidence. The husband asserted that the wife sent moneys to her family overseas. He was not challenged about that evidence. The wife was not tested on this issue. It is likely that most if not all of the $80,000 went towards the P purchase. It is difficult to see how the parties could have afforded the property otherwise. That injection of funds should be seen as an incident of the wife’s employment.
At the commencement of the marriage the husband had a job with the public service.
In 1978 the parties bought a mixed business at L. The parties worked in that business. The wife contends that from 1978 – 1980 she worked in the shop 7 days per week, as well as looking after the child. The husband has a different view. I accept the wife on this issue.
The husband also drove deliveries. The wife thinks that the husband had a job as a removalist on and off. The husband does not contradict that evidence. In 1980 the husband commenced employment with a supermarket. In 1982 he commenced working in the building industry while he studied at TAFE. In 1987 the husband attained a building qualification and continued to work as a builder. From 1987 that was through a company, S Company Pty Ltd which he ran with two partners. One partner died. In 1996 the husband worked part time while also receiving Centrelink benefits.
Section 79(4)(b) contributions
This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
From September 2006 - June 2007 the parties renovated the P home.
The wife researched and contacted various stores and providers and located materials, including paint and carpet. She landscaped the front and back gardens with plants. It took her 3 months of full-time work to complete the renovations.
The husband’s evidence in respect of the renovations is that the wife helped but that he “did all the major work”. The evidence does not permit findings beyond those facts.
Section 79(4)(c) contributions
This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
I am satisfied that the wife undertook the main parenting and homemaker role.
LA saw her mother do the housework at home, including cleaning, washing and household maintenance. She recollects her decorating, gardening, painting and doing other works around the house to make it a home. LA cannot recall seeing her father perform any domestic tasks at home, even while he was studying.
The wife made a greater contribution by way of homemaker, than did the husband.
Conclusion on Contribution
This was a long marriage during which substantial contributions were made by both parties. The husband made a very significant initial contribution in the form of the N property. The evidence is inadequate but on balance, I accept that the husband owed little if anything on that property at the commencement of the marriage.
Each of the parties had paid employment during the marriage, the husband more consistently than the wife. At times he had more than one job. At other times he had part-time work while studying. The wife contributed some if not all of a $80,000 workers compensation payment to the purchase of the P property.
With all of the caveats referred to above, I have found that $80,000 passed from the husband to the wife in 1996. However, that was long before final separation and there is no evidence that the funds exist anywhere.
The state of the evidence does not allow helpful findings on non-financial contributions. The husband agreed during cross-examination that his role was very much as the provider. The wife was the primary parent and homemaker.
The parties both applied matrimonial funds to overseas travel. The wife travelled more than the husband. She was quite unwell in 1996 and then was required to care for her sick mother.
In my view the husband’s contributions exceeded those of the wife. Albeit a long time ago, the introduction of his equity in the N property was a very important contribution and was the foundation of the parties’ wealth. Valuable contributions have been made since and the initial contribution must be assessed with that in mind.
In In the Marriage of Pierce [1998] FamCA 74;(1999) FLC 92-844; 24 Fam LR 377 the Full Court said:
24.It was submitted on behalf of the husband that it was not possible to determine why the contributions which His Honour assessed as being equal during cohabitation, should have had the effect of significantly eroding the husband’s greater initial financial contribution.
25.In addition to referring to a short passage from the judgment of Fogarty J in Money and Money (1994) FLC 92 - 485, the trial judge noted that the passage was cited with approval by the Full Court (Nicholson CJ, Baker and Tolcon JJ) in Bremner and Bremner (1995) FLC 92 - 560.
26.In Way and Way (1996) FLC 92-702, the Full Court (Barblett DCJ, Finn and Butler JJ), said at 83,404:-
“In the subsequent Full Court decision in Bremner all three Judges expressly preferred the approach taken by Fogarty J in Money over that taken by Lindenmayer J in the same case. Thus, and notwithstanding the attempts by Counsel for the husband in this case to demonstrate that there was some inconsistency between what Fogarty J said in Money and what was actually said in the joint judgment of the Full Court in Lee Steere, we regard the law in this area as now settled by the statement by Fogarty J in Money (and subsequently accepted by all members of the Full Court in Bremner) that “...an initial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party”.”
27.However, it is important to put that quotation in its correct context. Fogarty J in Money and Money (supra) said at page 81,054:-
“ I am unable to agree with the criticism in his Honour by the passage in his judgment immediately after that quotation or of his analysis of the issues involved. In an appropriate case, in my view, an initial substantial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party. I feel, if I may say so with respect, that his Honour’s formulation to the contrary is unrealistic and does not correspond with common experience in the Court in many of these cases.
I think it is legitimate for me to say, as I was a member of the Full Court in Le Steere and Le Steere (1985) FLC 91-626 that His Honour has read too much into the passage to which he refers and that the term “off-setting contribution” does not necessarily mean “greater contribution”. It simply reflects the circumstance that the respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party. This is, in my view, made clear by the Full Court in White and White (1982) FLC 91-246 where that court pointed out that the principal in Crawford and Crawford (1979) FLC 90 - 647 is that the original contribution should not be carried forward as a mathematical proportion; ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be later factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution”.
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also Campo and Campo (unreported, Full Court (Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J. at page 10).
29.In the instant case, his Honour identified what he described as the greater initial financial contribution of the husband and his post separation contribution, but, in our view, he failed to properly assess such contributions. The period of cohabitation was ten years. At about the date of the marriage the husband had very significant assets. His Honour found that the husband had assets to the approximate value of $226,000. At the date of the trial, the parties had assets of a net value of $319,190 which included the matrimonial home valued at $260,000 to which the husband had contributed about $200,000 from moneys to which the wife had made no contribution.
30.There is an obligation on a trial judge not only to identify the relevant contributions but also to assess them. In this case his Honour failed to adequately, or at all, assess these contributions. In our view he failed to properly weigh the greater initial contribution of the husband, with all other relevant contributions, and seems not to have had regard to the use made by the parties of the husband’s greater initial contribution.
31. The finding and assessment that the contributions of the parties during cohabitation should be regarded as equal was, in our view, open to the trial judge. Given that assessment, we are of the view that in assessing the totality of the contributions of each of the parties as being 55% by the husband and 45% by the wife, his Honour, notwithstanding the observations of Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519, on the facts of this case, failed to attach sufficient weight to the greater initial financial contributions of the husband, and to his contributions post separation in caring for the children.
Each case is to be determined on its facts but in the circumstances, it would be appropriate to apportion contributions 52% to the husband and 48% to the wife.
The other matters in Section 79
Once contributions have been assessed, the other factors in section 79(4) need to be considered. Here the parties agree that there should be no adjustment to the outcome based on contributions alone because of the other factors. Nevertheless I will briefly deal with them. They are:
Section 79(4) (d)
Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. There is no relevant effect.
Section 79(4)(e) - Section 75(2) Factors
The relevant matters in Section 75(2) would seem to be paragraphs (a), b), (f), (j) & (k).
(a) the age and state of health of each of the parties;
First, as to the age and state of health of each of the parties. The wife and husband are 53 and 54 years of age, respectively. There is no evidence about the health of either party.
(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 wife’s income is $535 per week made up of $230 in rent and $305 in the form of a disability pension. The parties’ daughter, LA pays $50 - $150 per week of the wife’s living expenses.
The wife lives alone in rented premises.
The wife’s expenses are as follows:
Expense
Amount
Rent
$200.00
Council rates and Water rates
$36.00
Health insurance - NRMA
$15.00
Tenant & property insurance and rentcover insurance EBM
$12.00
Third party car insurance
$10.00
All other expenditure
$401.00
Total
$674.00
Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
It is not suggested that the wife is not fully exercising her earning capacity.
The husband earns $508 per week made up of wages of $500 per week working in a domestic services business and $8 per week in dividends. He lives alone.
The husband’s expenditure set out in his latest Financial Statement is unfathomable and given the agreement on adjustments, I will not attempt to make sense of it here. Suffice it to say he records total expenditure of $50,000 (included in the summary on page 2 as $500) including $1,690 for “total of all other expenditure” which in turn he itemises at Part N of the form as totalling $592.00.
Although a builder by trade, the husband had undertaken training in domestic services and I gather that there is some flexibility in his working hours and arrangements.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
There are no children under 18 years of age.
(d) commitments of each of the parties that are necessary to enable the party to support:
himself or herself; and
a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
I have set out the evidence in relation to the parties’ expenses.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
any law of the Commonwealth, of a State or Territory or of another country; or
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party;
The wife receives a Centrelink benefit. The husband has an interest in superannuation funds.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
There is little evidence in relation to the standard of living of the parties during the marriage. The husband says that during the marriage the parties enjoyed a holiday to 29 countries over 4 ½ months at a cost of $63,000. He says that he funded the whole trip.
Otherwise the parties travelled on several occasions, mostly to Syria and I gather that was usually related to family obligations.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
There is no evidence of either party planning further study or intending to set up in business.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
This is not a significant aspect of the case.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
The wife undertook the main parenting role and that allowed the husband to maintain employment, mostly on a full-time basis.
The husband undertook studies during the marriage.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The parties’ arrangement had the wife taking the main parenting role and leaving the husband as the main bread winner. It is likely that the marriage restricted the wife’s earning capacity in the sense that she presumably lost the benefits of a long history of full-time employment such as long service leave and opportunities for promotion.
(l) the need to protect a party who wishes to continue that party's role as a parent;
This is not relevant.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
I have set out that evidence above.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
There is no child support.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
There is no relevant fact or circumstance.
(p) the terms of any financial agreement that is binding on the parties.
There was no binding agreement made between the parties.
Section 79(4)(f)
There are no other relevant orders made under the Family Law Act 1975.
Section 79(4)(g)
There is no child support.
Conclusion
It is agreed that there should be no adjustment and one can see the basis for that agreement.
Therefore the property should be divided as to 52% to the husband and 48% to the wife. The net assets (superannuation and non-superannuation) have a value of $839,670.33. If the husband is to have 52% he will retain about $436,628 and the wife would receive about $403,042. The parties each seek that the G property be transferred to the wife.
The husband has the following assets:
Assets
Value
P property, NSW (H)
$500,000
Husband’s St George Bank account
$107.17
Husband’s ANZ Bank account
$1071.20
Husband’s Commonwealth Bank account
$248.15
Husband’s Arab Bank account
$560.11
Husband’s Telstra shares
$1,840
Husband’s 1999 Toyota Corolla motor vehicle
$6,000
Husband’s 1992 Suzuki motor vehicle
$500
Husband’s household contents
$3,000
Tasplan (H)
$1,053.76
AMP
$74.75
REST Superannuation Fund
$4,000
Total
$518,455.14
In order to bring him to 52% he would pay the wife $81,827.
That would leave the wife with:
Assets
Value
G property, NSW (H)
$320,000
Wife’s St George Bank account
$215.19
Wife’s 1994 Daihatsu Charade motor vehicle
$1,000
Payment from the husband
$81,827
Total
$403,042.19
The orders I propose commit the husband to make a payment to the wife. There is no obvious source for that payment. In the event that the husband is not able to make the payment, the P property must be sold. In order that the parties share in the profit/loss arising from any difference between the net proceeds of sale and the value of the property agreed for the purposes of these proceedings, I will express the division of the net proceeds of sale in percentage terms reflecting the proportion that $81,827 bears to $500,000 which is about 16.4% to the wife and 83.6% to the husband. In my view those orders represent a just and equitable settlement of the parties’ property.
Conclusion under Section 79
This marriage spanned 30 years and very significant contributions were made by each of the parties. They acquired assets and provided a secure home for their daughter. They shared the work of the family in different ways but overall the contributions slightly favoured the husband. No further adjustment is required by reference to the non-contribution aspects of Section 79(4).
I certify that the preceding one husband and sixty six (166) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar Ian Loughnan.
Associate:
Date: 19 August 2009
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Injunction
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Costs
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Jurisdiction
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Procedural Fairness
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