Cilantro and Wren

[2009] FamCA 218

FAMILY COURT OF AUSTRALIA

CILANTRO & WREN [2009] FamCA 218

FAMILY LAW – PROPERTY

APPLICANT: Ms Cilantro

RESPONDENT: Mr Wren

FILE NUMBER: SYF 3507 of 2005

DATE DELIVERED: 20 February 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bell J

HEARING DATE: 19 & 20 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Brown of Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Cook of Counsel

SOLICITOR FOR THE RESPONDENT: Law Partners

Orders

1. The Wife pay to the Husband the sum of $74,237.00.

2. The Husband within three months of receipt of the sum of $74,237.00 do all acts and execute all documents to transfer to the Wife all his right, title and interest in any property of the parties, including the former matrimonial home.

3. All assets and chattels in the present possession of the Husband and Wife shall vest in them.

IT IS NOTED that publication of this judgment under the pseudonym Cilantro & Wren is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3507 of 2005

MS CILANTRO

Applicant

And

MR WREN

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Cilantro (“the wife”) initially for parenting orders as well as property settlement.  The parenting matters were resolved by consent last year before Rose J and for some reason or other the property settlement matter was not dealt with at that time, but has taken, I am sure to the parties' chagrin, some considerable time to come before the Court.  It is now before me.

2. The facts briefly are as follows:  The applicant wife was born in September 1964, the father in October 1959.  In 1986 the applicant wife, together with her brother V, and with the assistance of her parents, purchased the property which is basically the only asset of the parties to be determined, other than for superannuation.  This was purchased for about $80,000 and the method of purchase is set out in the wife's affidavit. 

3. The wife commenced employment with S Company in or about that year and since that year has been consistently employed with them.  This of course shows in the superannuation fund that I will be referring to at a later stage.  The applicant and her brother and in particular another brother, X, renovated the house to a certain extent and in 1989 the applicant and the respondent, Mr Wren (“the husband”), commenced cohabitation.  They married in 1992 and subsequent to the marriage and as a result of the union four children were born; the eldest in 1994, the twins in April 1997, and the youngest in 2002.  The parties lived in the premises that I have referred to before and there was some work carried out by the respondent husband, renovations, maintenance and things of that nature.  Generally, the work was carried out, as I find, by V, the wife's brother, and X who was an electrician by trade.  The husband assisted, and I do not criticise him for that. 

4. During the cohabitation I am satisfied that both parties worked and pooled together in an endeavour to create a happy and loving atmosphere.  They both worked physically hard. The husband sought and received certain improvements to his qualifications.  The mother received a scholarship from her employer and eventually became, as appears from the material before me, qualified as a business accountant and received her degree.  That is one of the exhibits, exhibit number 8.  She has still remained with S Company and is now in the position of a team leader.  The respondent husband has continued in his occupation.  He did suffer an injury in 1995, but subsequent to recovering from that has continued to work.

5. As I said, the parenting matter was resolved by way of a consent order where the children are shared between the parties.  It is either five or six nights to the father and the balance to the mother.  This requires the children to have upheavals and to move from one residence to the other on these frequent periods.  I just wonder whether in fact they have all their goodies at one and they carry them back and forth or whether that they are set up in each of the households.  However, it has fallen from the applicant wife that it is working reasonably well for them. 

6. Towards the end of cohabitation, which I find ceased in or about the month of November/December 2004 when they separated under the one roof, the parties, as I have said, have worked reasonably hard.  They maintained the children.  The father had an input into the children because of the mother's working hours.  Equally, I am quite sure that the primary caregiver marginally was in fact the wife. 

7. The emphasis here, insofar as the s79 factors are concerned, I feel are the enormous contributions which were made by the applicant and the applicant's parents financially, and as well, V.  The parents paid out the mortgage on the original home, the one that is left, and that was in 1998, the grandfather, Mr Cilantro senior, paying it out of, I believe, his retirement benefit.  The grandmother has put evidence before me that she has in fact placed a considerable amount of moneys for her in the possession of the wife.  I consider that these were gifts by the grandparents from them to their daughter.  If necessary, I can refer to the presumption of advancement.  They were considerable and I have to take that into consideration in coming to a conclusion as to what the contributions were of the parties as at the date of separation, which was around about November 2004. 

8. The parties had agreed that any mortgage instalments were to be paid out of the wife's salary and living expenses were to be paid out of the father's.  This continued.  For some apparent reason, notwithstanding the parties were not living together, they decided to invest in investment properties.

9. I had overlooked the fact that the wife had injured her knee whilst going to work and she received an amount in 2003 of something like $20,000 as and by way of workers compensation payment. 

10. It appears that my interpretation was wrong.  The first of the investment properties was purchased prior to the parties separating under the one roof.   It was in 1997, some years before separation.  They purchased a property at K street, known as the K Street property, for $108,000, mortgaging the house as security.  Moneys were paid off on this mortgage and subsequently in 2004 they purchased a property and that was at C Street, the C Street property, which they purchased for some $305,000.  I understand with the amount of money that was drawn down they paid out the K Street mortgage property. 

11. They separated, as I have said, in about the month of December or thereabouts in 2004.  The husband continued to reside in the matrimonial home until towards the end of 2005 when he left.  At that stage much has been made of the husband that the wife was indebted in credit cards to something like $32,392 and evidence has been put before me as to the reason, as she says, for the indebtedness.  It appears on the face of it that the parties must have been having trouble living within their means because upon not necessarily a very close investigation of the accounts it appears that most of the debts were in relation to the welfare of the family, the maintenance of the family and/or of the children.  It is a matter which I will touch upon at a later stage.

12. What then do we have as at the date of separation?  We have that the parties are entitled to superannuation entitlements which other than for a superannuation of a smallish nature of the mother of some $4140 - and that was the First State superannuation - they have not been particularised at the date of separation.  Subsequently they have been particularised with some doubts about them.  I must look at the contributions that the parties have made to the assets of the parties or either of them. 

13. It has for many years been suggested the starting point is fifty/fifty.  I myself in Mallet decided that that really is nowhere a presumption in this Court and that it  should be open-ended and that we should look at what happened during that period.  I have only briefed touched upon the contributions of the parties to the acquisition and maintenance of the assets of the parties, which at that stage was the matrimonial property, that is, at separation around about December 2004.  They owned at that time the former matrimonial home, which was security for both the C Street and K Street properties. 

14. Subsequent to separation, C Street and K Street was sold and, if I may say, generally a gross profit of something like $70,000 to $80,000 was made out of these investment contracts.  K Street was early 2007 and C Street was 2008.  The moneys were paid into the mortgage or indebtedness upon the former matrimonial home and as or about 2008 there was owing some $50,000 by way of mortgage on that property.  Since then, since 2006, the mother has quite clearly indicated that she has not made any payments by way of mortgage either by interest and capital or interest.  This has now crept up to an amount of $62,650 owing in the former matrimonial home. 

15. I wish briefly discussing the contributions made by the parties as at the date of separation.  I really do not take into consideration much about the investment properties, but I do take into consideration the enormous - and I say enormous in relation to the assets of the parties - contribution made by the wife through her parents and through V.  V, who was a joint tenant with the applicant in the purchase of the former matrimonial home, transferred to his sister his joint interest in the former matrimonial home, as I understand, for no consideration, allowing her to become the sole proprietor thereof.  That in itself is a substantial contribution. 

16. There has been a substantial contribution from Mrs Cilantro senior and there have been other contributions from V and her brother X in relation to the maintenance of the property and renovation of the property.  The husband has of course done something towards it as well.  He has endeavoured to maintain the children to the best of his ability and has assisted in the maintenance of the property.  It obviously was a marriage which was not made in heaven.  According to the husband, it was a hard road for most of the marriage and unfortunately it fell to pieces. 

17. What then am I able to say appears to be a satisfactory distribution of the percentage contributions of the parties or either of them up until the date of separation?  Taking into consideration those matters which I have emphasised, that is, the contributions on the wife's side, I would have to look at it being about 70 per cent.  Thereafter, I have to take into consideration the s75(2) factors.  The s75(2) factors in this case, as has fallen from Mr Brown who appears on behalf of the wife, are not large.  The wife is in receipt of something like $75,000 per year in her employment.  She has the children for the greater part of the fortnight, but not that much.  She has not paid any interest on the former matrimonial home and is indebted to the bank for a considerable amount of money.  They have not complained, which quite staggers me.

18. She has some concern - nothing much was made of this, though I would have liked to have heard a little bit more about it.  She has had a cancer scare insofar as thyroid is concerned and underwent, as I understand, an operation and some radiation treatment from about October last year.  She does sound somewhat croaky.  However, there is no evidence before me that this disease will in any way affect her earning capacity.  It is a matter, however, I must take into consideration, albeit marginally because I am not assisted with any evidence.

19. The husband, on the other side, is employed and earns something like $58,000 a year.  He has the benefit of Centrelink benefits of family assistance of about $180 per week and a rental allowance of about $20 per week, which comes to about $10,000 per year tax-free, which on his tax rate would probably be about $15,000 to $20,000 gross.  He is employed and there is no suggestion that he will other than remain employed.  He has the expenses of the children when they live with him. 

20. I take into consideration that the wife as at the date of separation was indebted in the sum of $32,392 as and by way of credit cards and has lessened that indebtedness to $11,000 in a contribution made under s75(2) in that she has lessened the indebtedness admittedly of herself by some $20,000 by paying off that amount. 

21. So far as superannuation is concerned, the father has put before us an amount of $66,696.  The mother has put before us an amount of some $224,000 as at June 2008.  She is unable to put before us any increase or decrease in her entitlement to that superannuation because, as has fallen from her representative, Mr Brown, the trustee has not been forthcoming and considers it would take him a lot more time to be able to put before the Court what her anticipation would be as at today's date.  Much was made of this in that I do not know, as was said by Mr Cook of counsel for the respondent father, how much it is worth at this stage.  It could be more.  He submits it is less.  I can only act on the evidence before me and find that as at June 2008 she had the benefit of something like $224,000 by way of superannuation. 

22. There is another superannuation fund in the name of the wife which is set out as being a First State superannuation.  As at the date of separation it was worth $4140.  Subsequently she has made payments of $150 or thereabouts by way of salary sacrifice and/or direct contributions and has brought it up to $11,694.  I make it quite clear that I take into consideration the value of the assets, being the value of the property, the value of the superannuation - I have already touched upon that - including a valuation of $11,694.  But once again I would consider that the wife's contributions to that superannuation, that is, the First State, increasing it from $4140 to $11,694 is a contribution pursuant to s.75(2) seeing I am taking that into consideration.

23. Doing the best I can - and it is extremely difficult - I would find that her entitlement is some 75 per cent.  But 75 per cent of what?  I have had put before me a list of assets today which I have noted at the top “20/02/09” wherein the only matters in dispute, as I understand it, is the credit cards, which have been classed as a debt - and I have accepted them as a debt in the wife because of the mention I have made of her contribution in reducing that debt as at the time of separation - and the question of superannuation.  I have increased the superannuation from the $166,000 set out therein to $224,000.  Taking that into consideration, according to my notoriously inaccurate maths, the total assets are $566,534.  Twenty-five per cent of that is $141,633,  However, the husband does have in his possession the superannuation of $66,696 and some $7000 otherwise.  By that I refer to the household contents and the Telstra shares. 

24. Consequently, according once again to my notoriously inaccurate maths, that will come to something like $74,200 that will have to be paid by the wife to the husband to satisfy the judgment.  I therefore order that upon the payment of the sum of $74,237 to the husband within three months of the day, that he transfer to the applicant all his right, title and interest in any of the property of the parties.  I further order that the property in the assets of the parties which are in their present possession do vest in them. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  30 March 2009