Collins and Collins
[2008] FMCAfam 731
•15 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLLINS & COLLINS | [2008] FMCAfam 731 |
| FAMILY LAW – Property – assessment of contributions – long marriage. |
| Family Law Act 1975, ss.75, 79 |
| In the Marriage of Lee Steere (1985) 10 Fam LR 431 In the Marriage of LJ Russell & SC Russell (1999) 25 Fam LR 629 In the Marriage of FA & DG Clauson (1995) 18 Fam LR 693 Aleksovski v Aleksovski (1996) FLC 92-705 |
| Applicant: | MS COLLINS |
| Respondent: | MR COLLINS |
| File Number: | DNC 439 of 2007 |
| Judgment of: | Cameron FM |
| Hearing dates: | 16 May & 6 June 2008 |
| Date of Last Submission: | 24 June 2008 |
| Delivered at: | Darwin (by video-link from Sydney) |
| Delivered on: | 15 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Black |
| Solicitor for the Applicant: | Cecil Black, Family Lawyer |
| Counsel for the Respondent: | Ms V. Farmer |
| Solicitors for the Respondent: | Withnalls |
DECLARATION
The property of the applicant and respondent found to be $955,268.94 is to be divided as to $549,279.64 to the wife and $405,989.30 to the husband.
ORDERS
The husband shall within 28 days, sign all documents and do all acts and things required to transfer to the wife at her expense the whole of his right title and interest in respect of the property at Property H NT (“residential property”) being Section [X] on Plan LTO [X], and being the whole of the land contained in certificate of title volume [X] Folio [X].
Contemporaneously with the transfer referred to in order 1, the wife shall pay the husband the sum of $70,438.36.
Contemporaneously with the transfer referred to in order 1, the husband shall discharge the mortgages numbered [2] to The Credit Society (NT) Limited and [4] to Westpac Banking Corporation, secured against the title of the residential property, and pending such release shall indemnify and hold the wife harmless in respect of the liabilities secured by those mortgages.
Contemporaneously with the transfer referred to in order 1, the wife shall discharge the mortgage [5] to Commonwealth Bank of Australia, secured against the title of the residential property, and pending such release shall indemnify and hold the husband harmless in respect of the liability secured by that mortgage.
Contemporaneously with the transfer referred to in order 1, the wife shall cause the husband to be released from all liability in respect of the joint loan from Esanda in respect of the 2003 Toyota Camry motor vehicle registered number [7] (“the Camry motor vehicle”), and pending such release shall indemnify and hold the husband harmless in respect of his liability to Esanda.
The husband shall retain for his sole use and benefit absolutely the whole of his right title in respect of the property at Property U, QLD being lot [Z] on RP [Z].
The wife shall retain the Camry motor vehicle.
The husband shall retain the 1995 Toyota Hi Lux motor vehicle registered number [4].
The husband shall retain the 1995 Redco trailer registered number [9], the 4m aluminium boat on trailer and the cut off saw referred to in the valuation Exhibit D.
The husband shall retain for his sole use and benefit absolutely the proceeds of the three accounts with ACCU.
The wife shall retain the 1991 Honda Civic motor vehicle registered number [6] for the sole use and benefit of [Person S].
The wife shall retain the Husqvarna ride-on mower and the Kubota 5 DHB lawn mower.
Within 28 days, the husband shall arrange for the items listed in the valuation Exhibit D with the exception of the (Redco) 8x5m single axle trailer, the 4m aluminium boat on trailer, the cut off saw, the Husqvarna ride-on mower, the Kubota 5 DHB lawn mower, the GMC 850 watt 2 HP portable generator, the compact welder and the TIG welder to be taken to [X] Auctioneering Services for sale by auction, and that the net proceeds of that auction shall be shared between the husband and the wife on an equal basis.
The wife shall retain the whole of the furniture and contents of the residential property.
The husband shall vacate the residential property within 7 days of any transfer effected pursuant to order 1.
Superannuation
The wife shall retain the legal and beneficial ownership of her superannuation with [2].
The husband shall retain the legal and beneficial ownership of his superannuation with [1] Super Fund.
The husband shall retain the whole of his right title and interest in respect of his interest with Defence Force Retirement and Death Benefits Scheme in payment phase.
Alternatively
In the event that the wife cannot within 28 days secure refinance and make payment to the husband for the transfer referred to in order 1 and the discharge of the mortgage referred to in order 4, then the wife shall within 56 days of the making of these orders, sign all documents and do all acts and things required to transfer to the husband at his expense the whole of her right title and interest in respect of the residential property.
Contemporaneously with the transfer referred to in order 19 the husband shall pay the wife the sum of $504,561.64.
Contemporaneously with the transfer referred to in order 19 the husband shall arrange discharge of the mortgages numbered [2] to the Credit Society (NT) Ltd and [4] to Westpac Banking Corporation secured against title of the residential property and indemnify and hold the wife harmless in respect to the liabilities secured by those mortgages.
Contemporaneously with the transfer referred to in order 19, the wife shall discharge the mortgage [5] to Commonwealth Bank of Australia, secured against the title of the residential property, and pending such release shall indemnify and hold the husband harmless in respect of the liability secured by that mortgage.
Contemporaneously with the transfer referred to in order 19, the wife shall cause the husband to be released from all liability in respect of the joint loan from Esanda in respect of the Camry motor vehicle, and pending such release shall indemnify and hold the husband harmless in respect of his liability to Esanda.
General
Unless specified in these orders and except for the purpose of enforcing any payment of money due under these or any subsequent orders, each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of each party and superannuation standing in the name of each party as at this date.
The husband and the wife shall execute all documents and do all acts and things necessary to give validity and operation of these orders and in the event of party refusing or neglecting to execute such document or to do any such act or thing:
a)a Registrar of the Court is appointed to execute such document and to do such act or thing in the name of the defaulting party; and
b)the party in default shall pay all reasonable solicitor/client costs on an indemnity basis incurred by the other party for the purposes of enforcing this order.
The parties have liberty to apply on three days’ notice in respect of the implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Collins & Collins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 439 of 2007
| MS COLLINS |
Applicant
And
| MR COLLINS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings arise out of an application for property settlement pursuant to s.79 of the Family Law Act 1975 (“Act”). The applicant is Ms Collins (“wife”) and the respondent is Mr Collins (“husband”). The parties commenced cohabitation in 1988 and married in 1992. They separated on 19 September 2006 and were divorced on 22 February 2008. There were two children of the marriage.
Before the parties commenced cohabitation, the husband had been a serviceman in, and then discharged from, the army. He has subsequently been in receipt of a service pension which augments the income he has received from his later employment.
The law
A four-step process is to be observed in property settlement proceedings under s.79 of the Act, those steps being, first, the identification of the parties’ property at the time of the accumulation; secondly, the assessment of the parties’ contribution to that property; thirdly, the application of s.75(2) matters; fourthly, whether the overall result is just and equitable: In the Marriage of Lee Steere (1985) 10 Fam LR 431; In the Marriage of LJ Russell & SC Russell (1999) 25 Fam LR 629; In the Marriage of FA & DG Clauson (1995) 18 Fam LR 693.
The facts
The husband was born in 1949 and the wife was born in 1952. Their first child was born in 1989 and their second child was born in 1991. The parties had a number of separations prior to their final separation on 19 September 2006.
I accept the wife’s evidence that she was the principal carer of the children. The husband’s job took him away from home for long periods. He was working for several weeks at a time offshore or overseas, returning home for equal periods, although some of this time might be taken up by courses or other commitments away from the home. The matrimonial home at Property H was originally uncleared land which the husband bought and subdivided in association with friends. The parties cleared the land and developed it together. Their accommodation was, initially, rudimentary. Until 1995, when the house building was constructed, the parties and their children lived in a caravan and used a portable toilet and bush shower. It is apparent that the development of the block, the building of the house and its subsequent landscaping was a joint effort although borrowings raised on the property were financed by application of the husband’s defence force pension.
Although the primary earnings were those of the husband, for a period the wife also worked first as a cleaner and then as a gardener at the H primary school. The first period of work was from 1996 until August 1997 and then from 2001 until February 2006. The wife has also obtained other cleaning jobs in the period since September 2004.
The wife concedes that the husband’s earnings were significant. She also conceded that when the husband was at home from his offshore employment he spent a lot of time on the house, fencing, clearing up, mowing and doing major rubbish removal. However, she said that since 2004 the husband had done little around the home.
During the marriage the husband also supported the wife’s two children from an earlier marriage as if they were his own. Further, since separation, the husband, who has been residing in a shed on the property, has continued to meet significant items of household expenditure for the wife and children together with the amount the Child Support Agency has assessed to be his child support obligations. For instance, the husband’s affidavit sworn 22 April 2008 at para.31 sets out in detail a large number of domestic expenses which he has paid.
Although the husband has continued to pay these accounts, it is apparent that the wife’s day to day living expenses have had to be supplied from her own earnings.
The assets and liabilities of the parties
At the hearing on 16 May 2008, the parties were largely agreed on the pool of assets and liabilities, and the allocations thereof, as follows:
Assets
Husband
Wife
Property H
$575,000
Property U QLD
$300,000
Toyota Camry
$14,000
Honda Civic
$3,000
Toyota Hi-Lux
$3,750
Redco trailer
$650
Household furniture
$7,540
Lawnmowers retained by the wife
$935
Plant and equipment retained by the husband
(4m aluminium boat on trailer and cut off saw)$2,120
Miscellaneous plant and equipment listed in the valuation Exhibit D other than the Redco trailer, the 4m aluminium boat on trailer and the cut off saw retained by the husband and the two lawnmowers retained by the wife and the GMC 850 watt, 2 HP portable generator, the compact welder and the TIG welder which were acquired by the husband after separation
$15,350
Husband’s ACCU account
$32,780
Husband’s [1] Superfund
$137,860
Wife’s [2] superannuation
$11,877
ACCU rent account
$654
ACCU other account
$3,511
Wife’s Commonwealth Bank account
$2,048
Total property and superannuation excluding the husband’s pension
$496,675
$614,400
Liabilities
Two mortgages on residential property
$30,276
Westpac mortgage on residential property in respect of investment property
$133,006
Esanda loan on motor vehicle
$16,357
Total liabilities
$163,282
$16,357
Total net property and superannuation excluding the husband’s pension
$333,393
$598,043
To these figures should be added an add back in respect of the legal fees paid by the wife which she funded from a $12,000 draw down from the mortgage account and a $2,000 withdrawal from the parties’ joint account. It was also conceded that there should be a $9,832.94 add back in respect of the husband’s withdrawal of that amount from the mortgage account.
It should also be noted that the husband submitted that his defence force pension was not an asset of the marriage and that the wife conceded that she was not making a claim in respect of it.
I also note that the parties agreed that although the house was allocated to the wife, the mortgage over that property was allocated to the husband.
At the outset of the hearing mention was made of the Honda Civic and a Toyota Camry and it was suggested that they might be allocated to the wife’s interest in the above table of assets and liabilities, on the basis that, although they were driven by the parties’ daughters and were acquired by the wife after separation, they ought to be added back.
In her affidavit affirmed 2 August 2007 the wife deposed to owning a 1992 Toyota Camry worth approximately $1,500 and a 1991 Honda Civic valued at approximately $3,000. A newer Toyota Camry, subject to a loan with Esanda, was agreed between the parties to be allocated in the above list to the wife. Notwithstanding the initial submissions, the two older cars were not further canvassed during the course of the hearing other than in the husband’s cross-examination when he agreed that he had no problem with the wife holding them on behalf of the daughters. Although the cars appear, in practice, to be the property of the daughters, in reality they are the property of the wife. Based on the contents on the wife’s affidavit of 2 August 2007 I infer that the Honda Civic was purchased out of the sale proceeds of a Toyota Corolla which had, in turn, been purchased out of the sale proceeds of a Prado sold when the parties separated in 1999 – 2000. No evidence was led as to the purchase of a 1992 Toyota Camry and as it appears to have been purchased for the parties’ younger daughter, I infer that it was acquired as a post-separation asset. Consequently, although the Honda Civic will be included as part of the pool of assets, the 1992 Toyota Camry will not form part of the asset pool and thus orders are not required in respect of it.
After taking into account the add backs, the net pool totals $955,268.94. I conclude the husband’s net share of the asset pool to be $343,225.94 and the wife’s net share to be $612,043, being 35.93% and 64.07% respectively.
Contributions
In Aleksovski v Aleksovski (1996) FLC 92-705 at 83,437 Baker and Rowlands JJ said that it is necessary for the Court to
… weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.
At the commencement of this long marriage the parties’ assets were not great. The wife deposes that the husband owned the block on which the matrimonial home is now built, a caravan, a Toyota and a trailer plus tools and equipment. She deposes to owning a new Toyota Corolla and some personal property and furniture. The husband does not dispute this recollection. He also says that following his discharge from the army in 1987 he received a lump sum superannuation of approximately $40,000 and I accept him when he says that to the extent that he did not lose these funds in the stock market crash of 1987, he applied them to discharge the mortgage used to fund the purchase of the land.
During the course of the marriage the husband’s financial contribution was considerably larger than the wife’s but she had primary responsibility for the care of the children of the marriage. In this context, it must be kept in mind that the nature of the husband’s work required him to be away from home for lengthy periods, thus leaving to the wife all domestic responsibilities while he was away. It did not emerge from the evidence that, during his lengthy stays at home, the husband contributed much to the running of the house or the family other than work around the property. I accept that he did, on occasion, drive the couple’s daughters to Scouts and contributed to their involvement in extracurricular activities. Even so, I conclude that the wife provided the predominant homemaking and child caring contributions.
These contributions apart, it is clear that they both contributed significantly to the development of the home property which is their primary asset. I conclude that their contributions to this asset were roughly equal over the life of the marriage noting that the husband’s contribution was greater at the commencement of the relationship and the wife’s was greater towards the end.
This was a marriage where, it seems, both parties worked hard in their own ways. I conclude that their contributions to the pool of assets were equal.
Section 75(2)
The husband is 59 years old and the wife is 56. They both have some health problems but I accept that the husband’s health is significantly more problematical than the wife’s.
In his affidavit sworn 23 October 2007 the husband deposes to having suffered a hearing disability arising from active service in Vietnam, a narrowing of the C3/4 disc arising from a military parachuting incident and a lumbar problem also arising from his army service. He said that he suffers ad hoc pain and restricted movement at times and that these conditions are worsening with age. At the hearing he gave evidence of a neck problem and what he expected to be a temporary immobility in his left arm. He said he was not fit for employment at that time.
Although the husband has enjoyed a solid employment history, on
17 March 2008his employment was terminated and, at the time of hearing, he had not obtained a new job. In his affidavit sworn
23 October 2007the husband said that he proposed to work until age sixty and not any longer given various injuries and disabilities he has suffered during his working life. However, subject to the resolution of the condition he was suffering at the time of the hearing, I do not conclude that he will be unable to work in the future.
As to the wife, she deposed in her affidavit sworn 2 August 2007 to having no formal training or work skills other than those of a labouring nature. The wife says that although she is presently able to maintain her employment she doubted how long she could continue as a cleaner, suggesting that she would be physically unable to continue this role for too long. The wife said that she would like to work to age sixty-five and would continue to work while she was able although she had trouble with her knees and arms.
Notwithstanding the parties’ respective health difficulties, I conclude that they will both continue to work for a number of years if they can and that, during that period, the husband’s earning capacity will be significantly greater than the wife’s. However, I also take account of the husband’s age, and the reduced capability he says result from this, together with his lack of formal qualifications which also limits his job prospects. It should also be noted that, for the rest of his life, the husband will have the benefit of his defence force pension.
After separation, the wife and children continued to live in the matrimonial home while the husband lived in his shed on the property. He continued to meet the mortgage obligations out of his pension payments and also paid other domestic outgoings to which I have referred although I conclude that the wife was required to use her own earnings for her day to day living expenses. As already noted, the father has been paying child maintenance.
The wife also gave evidence of the assistance she provides to the husband’s elderly father. She says that she prepares his meals and attends to his washing as well as taking him to his medical and other appointments.
I note that the second child of the marriage is not yet 18 although she will achieve her majority in less than twelve months.
Taking these matters into consideration particularly, and having regard to the other matters set out in s.75(2), I am of the view that an adjustment of 7.5% in favour of the wife should be made.
Just and equitable
As noted above at [15], the assets held by the husband amount to 35.93% of the pool and the assets held by the wife amount to 64.07%.
To adjust these figures to reflect the apportionment of 42.5% to the husband and 57.5% to the wife and the largely agreed division of assets will require the wife to pay the husband $70,438.36. On that basis the parties’ assets and liabilities are set out in the following tables:
Assets and liabilities to be retained by wife | |
| Assets | |
| Property H | $575,000 |
| Toyota Camry | $14,000 |
| Honda Civic | $3,000 |
| Household furniture | $7,540 |
| Lawnmowers retained by the wife | $935 |
| Wife’s [2] superannuation | $11,877 |
| Wife’s Commonwealth Bank account | $2,048 |
| Half-share of the miscellaneous plant and equipment | $7,675 |
| Add-back of legal fees | $14,000 |
| Total assets | $636,075 |
| Liabilities | |
| Esanda loan on motor vehicle | $16,357 |
| Total liabilities | $16,357 |
| Payment to husband to ensure husband has 42.5% of assets | $70,438.36 |
| Total | $549,279.64 |
| Assets and liabilities to be retained by husband | |
| Assets | |
| Property U QLD | $300,000 |
| Toyota Hi Lux | $3,750 |
| Redco trailer | $650 |
| Plant and equipment retained by the husband (4m aluminium boat on trailer and cut off saw) | $2,120 |
| Half-share of the miscellaneous plant and equipment | $7,675 |
| Husband’s ACCU account | $32,780 |
| Husband’s [1] Superfund | $137,860 |
| ACCU rent account | $654 |
| ACCU other account | $3,511 |
| Agreed add-back | $9,832.94 |
| Total assets | $498,832.94 |
| Liabilities | |
| Two mortgages on residential property | $30,276 |
| Westpac mortgage on residential property in respect of investment property | $133,006 |
| Total liabilities | $163,282 |
| Payment from wife to ensure husband has 42.5% of assets | $70,438.36 |
| Total | $405,989.30 |
I am satisfied that the apportionment of assets set out above is just and equitable in the circumstances.
Conclusion
I declare that the property of the applicant and respondent found to be $955,268.94 is to be divided as to $549,279.64 to the wife and $405,989.30 to the husband.
I also note the agreement of the parties that the miscellaneous plant and equipment which is to be divided equally is to be sold by the husband and the net proceeds divided equally between the parties.
The orders of the Court will be those set out at the commencement of these reasons.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 15 July 2008
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