Cornwell and Cornwell
[2009] FamCA 1072
•13 November 2009
FAMILY COURT OF AUSTRALIA
| CORNWELL & CORNWELL | [2009] FamCA 1072 |
| FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – earning capacity – Just and equitable |
| Family Law Act 1975 (Cth) ss 75 & 79 |
In the Marriage of Hickey (2003) 30 Fam LR 355
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 Kennon (1997) 22 Fam LR 1
| APPLICANT: | Ms Cornwell |
| RESPONDENT: | Mr Cornwell |
| FILE NUMBER: | SYC | 2043 | Of | 2008 |
| DATE DELIVERED: | 13 November 2009 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Judicial Registrar Loughnan |
PLACE HEARD: Sydney
| HEARING DATE: | 21 & 22 October 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT WIFE: | Mr G. Thistleton |
| SOLICITOR FOR THE APPLICANT: | Glen R Walters Solicitors |
COUNSEL FOR THE RESPONDENT HUSBAND: | Mr J. Heazelwood | |
| SOLICITOR FOR THE RESPONDENT: | Anderson Boemi Solicitors | |
Orders
That the wife shall forthwith do all acts and things and sign all documents necessary to transfer to the husband all her right title and interest in Suncorp whole of life insurance policy no … provided that any costs relating to such transfer shall be borne by the husband.
The parties shall as soon as practicable do all acts and things necessary to cause the property to be sold by private treaty with the selling agent to be C Agency. For such purpose each party shall sign all documents required to facilitate the sale as and when requested, including but not limited to:-
2.1estate agent’s authorities,
2.2contracts;
2.3discharge authorities;
2.4instructions to Solicitors
2.5transfer.
The husband and wife shall pay equally any fees such as advertising fees or other outgoings in respect of the auction or Solicitors costs prior to the conclusion of the sale of the property as may be necessary or required.
If the property is not sold by private treaty within 12 weeks of the date hereof, the parties shall cause the property to be offered for sale by auction within a further 8 weeks, at a reserve price they agree to in writing or as fixed in accordance with order 8.
If the property fails to sell at the auction, then a further auction shall be conducted within a further 8 weeks at a reserve price they agree to in writing or as fixed in accordance with Order 8. This procedure shall continue, that is there shall be an auction sale each 8 weeks under the same terms until a sale is achieved.
The husband shall vacate the home and provide vacant possession to any purchaser of the property prior to settlement.
For the purposes of these Orders:-
7.1estate agent shall mean such person as agreed by the parties and failing agreement within 7 days of the date of these orders as appointed in accordance with order 8 hereof;
7.2Solicitor shall mean Anderson Boemi.
7.3The property is the whole of the land in Folio Identifier …, being more particularly described as W property.
7.4Nett proceeds means the amount remaining after payment of:
7.4.1Agent’s commission;
7.4.2Solicitor’s costs on sale
7.4.3Amount required to discharge mortgage
7.4.4Any amount necessary to pay the costs associated with the implementation of order 8 or to reimburse any party who may have paid such costs.
7.4.5Reimbursement to the Husband and the wife of any moneys paid by them pursuant to Order 3.
If the parties are unable to agree as to a term or method of sale or a selling price, sale price or reserve price the parties shall and either party may refer such disagreement to the determination of the nominee of the President of the N.S.W. Chapter of the Real Estate Institute of New South Wales, acting as an expert. Such Nominee’s decision shall be binding on the parties.
Pending settlement of the sale of the property the husband is responsible for the payment of all outgoings including mortgage instalments as and when they fall due and payments of instalments of rates as and when they fall due.
On settlement of the sale of the property the parties after making adjustments between vendor and purchaser the parties shall apply the net proceeds as follows:
10.1 To the wife, or as she directs, 57%; and
10.2 To the husband, or as he directs, 43%.
That each party be solely entitled to the exclusion of the other of all other property, chattels of whatsoever nature and kind in the possession of such party as at the date of the making of these Orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and any motor vehicles are deemed to be in the possession of the registered owner thereof and any entitlement to the benefit pursuant to any superannuation policy or superannuation fund shall be deemed to be in the possession of the person in whose name such entitlement stands.
If a party fails or neglects to sign a document necessary to carry into effect these orders then the Registrar of the Family Court or any deputy registrar is authorised to sign such document in the name of the defaulting party.
The parties may vary any time limit or reserve price in these orders by consent provided it is done in writing signed by them or their solicitors.
The parties have liberty to apply regarding the implementation of these orders on 7 days notice in writing.
Notation:-
a. The parties agree that no later than 2 days prior to the settlement of the sale the husband make available for collection by the wife from the former matrimonial home, the following items:
i. Sideboard and its contents (stored beneath the home);
ii. Selection of wine;
iii. The wife’s records;
iv. Floristry equipment;
v. Selected photo’s; and
vi. Suitcase containing children’s baby clothes.
IT IS NOTED that publication of this judgment under the pseudonym Cornwell & Cornwell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2043 of 2008
| MS CORNWELL |
Applicant
And
| MR CORNWELL |
Respondent
REASONS FOR JUDGMENT
The parties’ cohabitation spanned about 19 years. They cannot agree on a settlement of their property.
Applications
In the course of final submissions learned counsel for the parties said that the parties agreed on the format of the final orders and the dispute was solely in relation to the proportions in which the sale proceeds of the former matrimonial home should be divided. The wife seeks 70% of the net proceeds and the husband seeks 60%. The agreed format for the orders was provided to my chambers by email on 9 November 2009 and is as follows:
SHORT MINUTES OF ORDERS
1.That the wife shall forthwith do all acts and things and sign all documents necessary to transfer to the husband all her right title and interest in Suncorp whole of life insurance policy no […] provided that any costs relating to such transfer shall be borne by the husband.
2.The parties shall as soon as practicable do all acts and things necessary to cause the property to be sold by private treaty with the selling agent to be [C Agency]. For such purpose each party shall sign all documents required to facilitate the sale as and when requested, including but not limited to:-
2.4.1estate agent’s authorities,
2.4.2contracts;
2.4.3discharge authorities;
2.4.4instructions to Solicitors
2.4.5transfer.
3.The husband and wife shall pay equally any fees such as advertising fees or other outgoings in respect of the auction or Solicitors costs prior to the conclusion of the sale of the property as may be necessary or required.
4.If the property is not sold by private treaty within 12 weeks of the date hereof, the parties shall cause the property to be offered for sale by auction within a further 8 weeks, at a reserve price they agree to in writing or as fixed in accordance with order 8.
5.If the property fails to sell at the auction, then a further auction shall be conducted within a further 8 weeks at a reserve price they agree to in writing or as fixed in accordance with Order 8. This procedure shall continue, that is there shall be an auction sale each 8 weeks under the same terms until a sale is achieved.
6. The husband shall vacate the home and provide vacant possession to any purchaser of the property prior to settlement.
7. For the purposes of these Orders:-
7.1estate agent shall mean such person as agreed by the parties and failing agreement within 7 days of the date of these orders as appointed in accordance with order 8 hereof;
7.2Solicitor shall mean Anderson Boemi of […].
7.3The property is the whole of the land in Folio Identifier […], being more particularly described as [W property].
7.4Nett proceeds means the amount remaining after payment of:
7.4.1Agent’s commission;
7.4.2Solicitor’s costs on sale
7.4.3Amount required to discharge mortgage
7.4.4Any amount necessary to pay the costs associated with the implementation of order 8 or to reimburse any party who may have paid such costs.
7.4.5Reimbursement to the Husband and the wife of any moneys paid by them pursuant to Order 3.
8.If the parties are unable to agree as to a term or method of sale or a selling price, sale price or reserve price the parties shall and either party may refer such disagreement to the determination of the nominee of the President of the N.S.W. Chapter of the Real Estate Institute of New South Wales, acting as an expert. Such Nominee’s decision shall be binding on the parties.
9.Pending settlement of the sale of the property the husband is responsible for the payment of all outgoings including mortgage instalments as and when they fall due and payments of instalments of rates as and when they fall due.
10.On settlement of the sale of the property the parties after making adjustments between vendor and purchaser the parties shall apply the net proceeds as follows:
10.1 To the wife, or as she directs, %;
10.2 To the husband, or as he directs, %.
11.That each party be solely entitled to the exclusion of the other of all other property, chattels of whatsoever nature and kind in the possession of such party as at the date of the making of these Orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and any motor vehicles are deemed to be in the possession of the registered owner thereof and any entitlement to the benefit pursuant to any superannuation policy or superannuation fund shall be deemed to be in the possession of the person in whose name such entitlement stands.
12.If a party fails or neglects to sign a document necessary to carry into effect these orders then the Registrar of the Family Court or any deputy registrar is authorised to sign such document in the name of the defaulting party.
13.The parties may vary any time limit or reserve price in these orders by consent provided it is done in writing signed by them or their solicitors.
14.The parties have liberty to apply regarding the implementation of these orders on 7 days notice in writing.
Notation:-
a. The parties agree that no later than 2 days prior to the settlement of the sale the husband make available for collection by the wife from the former matrimonial home, the following items:
i. Sideboard and its contents (stored beneath the home);
ii. Selection of wine;
iii. The wife’s records;
iv. Floristry equipment;
v. Selected photo’s; and
vi. Suitcase containing children’s baby clothes.
Documents read
The wife relied on the following documents:
1. Wife’s application filed 10 April 2008
2. Wife’s primary affidavit filed 6 April 2009
3. Wife’s financial statement filed 6 April 2009
4. Affidavit of Mr G sworn 20 August 2009
The husband relied on the following documents:
1.Amended Response to an Initiating Application, filed on behalf of the husband on 23 April 2009
2.Affidavit of the husband, filed on 24 April 2009.
3. Affidavit of Ms S, sworn on 9 October 2009.
4. Affidavit of Dr I, filed on 5 August 2009[1].
[1] Sadly, Dr I died prior to the hearing.
5.Financial Statement of the husband, sworn on 9 October 2009
Short history
As at the date of the hearing the wife was 59 years of age and the husband was 61. They were married in 1979 and separated on 9 October 1998. The parties’ divorce was granted on 11 February 2008.
Issues in dispute
1.The balance of contributions made after separation;
2.The extent, if any, to which the wife’s contributions were made more arduous during the marriage because of the husband’s conduct;
3.The extent of the husband’s earning capacity;
4.The extent of the wife’s earning capacity.
Children
The parties have two adult children:
Jwas born in 1983 and as at the date of the hearing he is 26 years of age; and
Awas born in 1989 and as at the date of the hearing he is 20 years of age.
Background facts
In 1966 the husband was diagnosed with polycystic kidney disease.
In May 1976 the husband purchased E property for $49,000.00 with a mortgage of $30,000.00.
On 1 February 1977 the husband commenced employment at O Firm.
The parties met in October 1978.
The parties were married in 1979.
The wife had savings and a motor vehicle and the husband owned a house at E, subject to a mortgage. The wife’s motor vehicle was sold in 1983 for $10,000.
From April 1979 the husband was employed by B Company. The wife was employed in hospitality. The parties commenced residing in the E property in June 1979.
In 1980 the husband added a deck to the E property.
From 1 April 1981 the husband was employed by L Company.
In 1982 an insurance policy was taken out on the life of the husband with Suncorp.
From 1 November 1982 the husband was employed by K Company.
On 26 November 1982 the parties purchased a property at H in Brisbane for $124,500 or $126,000. They used the proceeds of the sale of the E property and the wife’s savings.
In 1983 the husband was made redundant and received a redundancy payment.
In 1983 the parties sold the E property and moved to Brisbane.
The wife ceased employment in hospitality. The wife had accumulated benefits with the Retirement Fund in the sum of $25,000. The wife says she sold her car for $10,000.
J was born in 1983.
The Suncorp Life Policy commenced in August 1983.
From September 1983 the husband was employed by a finance company.
The parties separated for a few months 1984.
From November 1984 the husband was employed by Q Organisation.
In April 1986 the husband returned to Sydney to find work. The wife remained in Brisbane to oversee the sale of their house.
In May 1986 the husband obtained employment with N Company.
Six months later the wife and J returned to Sydney. The parties lived in a rented property for about 5 years.
The Brisbane property was rented out and the wife obtained employment as a Sales Assistant.
The parties lost funds in the 1987 stock market crash. The wife says they lost between $70,000 and $80,000 through their investment in one company.
In April 1987 the husband obtained employment with M Company.
In January 1988 the parties sold the property at H in Queensland for $145,000.00. They received a net $115,248.
In June 1988 the husband obtained employment with F Company on a 4 month contract.
In November 1988 the husband obtained employment with U Trust.
A was born in 1989.
In 1991 the parties purchased a home at L Street. The wife received an inheritance of $4,000 and this was put to the educational expenses of the children.
On 24 May 1991 the husband obtained employment with P Organisation on a 3 month contract.
In 1991 the wife’s uncle gave her approximately $4,000.00 to pay for the children’s education.
In 1992 the wife obtained full time employment as a sales representative.
In 1992 the wife first commenced receiving treatment from Dr. WW, Psychiatrist.
On 14 August 1992 the husband obtained employment with T Company.
In January 1993 the parties purchased W property for $276,000.00. They had a mortgage from the State Bank in the sum of $173,000.
In March 1994 the husband obtained employment with Telstra on contract.
On 24 March 1994 the husband joined the Accountants Superannuation Fund.
In September 1995 the husband obtained employment with a bank.
On 4 September 1995 the husband joined the bank’s Staff Super Plan (now BT).
In 1996 the wife commenced employment with G Company.
In 1996 the husband’s kidney condition worsened.
There is some conflict between the written evidence and my notes of oral testimony but as I understand the position, the husband commenced dialysis at home in 1996. He continued home dialysis for 7 years.
The parties separated on 9 October 1998. A went with the wife and J remained with the husband. The wife lived in rental accommodation in Sydney and the husband remained in the home. The husband assumed sole responsibility for mortgage re-payments and all house related expenses.
The wife alleges an incident when the husband pushed and hit her.
On 11 February 1999 J moved from the husband’s residence to live with his mother.
In 1999 the husband commenced paying $400 and then $383 per month in child support.
In 2000 the wife inherited $24,000 from her father’s estate. She has since spent this on various expenses including medical expenses and to buy a motor vehicle.
In June 2000 Dr. AA first prescribed anti depressant medication for the wife.
In January 2000 or December 2000 the husband ceased work with the bank and obtained employment with the I Group. In about December of 2000 the bank sold the husband’s employee shares for $1,202.00. He made no money from that sale.
On 10 February 2001, J (then about 18) returned to live with the husband.
In 2002 the husband stopped paying child support.
In February 2003 the husband received a kidney transplant.
On 8 April 2004 the husband sold 992 IAG Shares for $4,731.00
In 2004 the wife sold her car to J for $10,000. She received the cash from an insurance payout on J’s car and some cash. The husband asserts that as part of the purchase price the wife retained beneficial ownership of 900 Telstra shares that had been held on trust for the boys. The wife then purchased a car for $31,000.00, assisted by a loan from her then de facto, Mr TA, in the sum of $18,500.00.
In 2005 the wife consulted Dr. RG, a Psychologist.
On 4 May 2005 the husband was made redundant by I Group. He was paid $81,140.00.
In 2005 the child A, (then in Year 11) returned to live with the father.
On 17 December 2005 the husband commenced employment with V Company.
The husband’s father passed away in October 2006.
In January 2007 the husband received an inheritance from his father’s estate.
On 5 September 2007 the husband sold 320 AMP shares for $3,406.00.
The parties’ divorce was granted on 11 February 2008.
On 10 April 2008 the wife filed an Initiating Application in the Sydney Registry of the Family Court of Australia.
The husband spent about 14 weeks in Thailand during 2008 in a number of trips. He had accumulated leave through not taking holidays for the previous 4 years. He met Ms S in Thailand in July 2008.
In July 2008 the wife commenced treatment from Ms GR.
On 15 September 2009 Ms S arrived in Australia and moved in with the husband together with her 9 year old son, D. D was subsequently enrolled in the local Primary School. Ms S is in Australia on a sub-class 300 visa and is permitted to remain in Australia, pending her marriage to the husband. The wedding is planned for May 2010.
In November or December 2008, J moved out from the husband’s home to independent accommodation.
On 11 February 2009 the husband received a redundancy payment of $36,350.00 from V Company.
In April 2009 the husband commenced a consulting business Cornwell Consulting.
On 21 April 2009 the wife saw Mr G, Psychologist who prepared a report for these proceedings.
On 23 April 2009 the husband filed an Amended Response.
On 15 September 2009 the husband’s de-facto partner moved into the residence at W.
In September 2009 the husband’s consulting contract terminated.
On 2 October 2009 the husband applied for a disability support pension from Centrelink.
Credit and Submissions
The evidence of the witnesses
The only witnesses called for cross-examination were the parties and single expert, Mr G. There are not many matters in issue that fall to be determined by reference only to the oral testimony of the parties. Unremarkably, the parties do not have perfect recollection. They each report symptoms of medical conditions that might impact on their recollection and capacity to concentrate. Due to the delay in commencing proceedings, even the events surrounding their separation occurred about 11 years ago.
The wife was a poor witness. She gave some answers confidently and then almost immediately gave different evidence. For example it was put to the wife that J was in Year 12 when he returned to live with the husband. The wife said “no”. When the same question was immediately put again she agreed that he might have then been in Year 12. On many occasions the wife attempted to address what she perceived was the import of a question rather than focussing on the actual question put.
The husband struggled at times to give his evidence. He said that he has difficulty concentrating. The husband was refreshingly candid in relation to some matters that supported the wife’s case. For example he conceded that he struck one of the boys with a belt and that he addressed the wife in demeaning and derogatory language during their marriage. It may be just a matter of emphasis but the husband’s oral testimony is that his kidney ‘rejected’ in March 2009. There is a medical report from his treating GP of 13 March 2009 which includes no such conclusion. Dr I interviewed the husband on 7 July 2009 and reported that the husband had an episode of rejection ‘just recently’ and referred to earlier episodes.
I do not believe that either of the parties set out to mislead the Court but rather that their memories are impaired by time and illness and are coloured by their points of view. In the circumstances, however, I cannot simply prefer the evidence of one over that of the other on all disputed issues.
Submissions
The written submissions on behalf of the wife are:
Pool
The above summary is taken from the financial statements of the parties. The wife proposes to explore movements in the husband’s asset position in cross-examination to see if there has been a premature disposal of assets on his part. Given the ages of the parties no injustice results in putting the superannuation in with the other assets.
Contributions
The wife will submit that she is slightly ahead on contributions because of - the post separation contributions she made to the care of the children and the making available to the husband of the former matrimonial home
75(2)
Both parties are towards the end of their working lives.
Despite periods of unemployment the husband has enjoyed almost continuous professional employment over the marriage and into separation.
Both parties carry impairing health difficulties into their futures.
They seem to have similar futures save that the husband has a superior capacity to earn and the husband has an interest in his late father’s estate that, even though it has not vested, is a certain percentage of the remainderman.
If the wife is unable to persuade the court of her superior contributions she submits that there ought to be an adjustment in her favour under 75(2) essentially because of the husband’s superior earning capacity.
The wife submits that under this head there should be some ‘evening up’ of the superannuation pool so that the parties are able to enjoy a similar standard of living into the future. This will occur if superannuation is part of the one pool.
Overall justice and equity
If the result leaves more of the pool with the wife this recognises the contributions she made post separation and her reduced earning capacity. It leaves the parties in a similar position and is thus just and equitable.
It is argued on behalf of the wife that she should receive about 56% of the assets and that this would be achieved under the agreed order format, by her receiving 70% of the net proceeds of sale of the home. It is submitted that she holds 900 Telstra shares on trust for the boys. Otherwise, the pool is agreed. The submission for the wife is that the contributions favour her by 2%-3% on the basis of her greater contributions after separation. It is agreed that the parties’ contributions were equal to the date of separation. After separation it is argued that the husband had the benefit of occupying the home at a relatively modest rate of mortgage instalment, that the wife had the children living with her for about 75% of the time and the husband did not meet his child support obligations. The submission of behalf of the wife is that under section 75(2) the wife should be allowed a further 3% or 4% for her lesser earning capacity. It is submitted that there is no medical evidence that he has no earning capacity and over the last three years he has be largely in full-time paid employment, he made many trips and had 14 weeks in Thailand and undertook physical labour in maintaining the former matrimonial home. It is argued that his income has always been far greater than that of the wife. Like the husband the wife too has medical conditions.
The submissions on behalf of the husband are to the effect that he should retain 60% of the net proceeds of sale of the home. Although the calculation was not explained the submission it was that the husband should have 65% of the assets overall, based on 60% of the contributions and a 5% adjustment to him under section 75(2).
It is submitted that the Telstra shares are the beneficial property of the wife because of a transaction in May 2004, confirmed in writing, whereby the wife accepted the shares as part of the purchase price paid by J for her car. Therefore it is submitted that they should form part of the pool and be credited to the wife. It is agreed that the contributions were equal to the date of separation. After separation the argument on behalf of the husband is that his contributions were greater than those of the wife leading to an overall finding of 60% by the wife and 40% by the husband. The basis for that imbalance is said to be:
·The contributions made by the husband to his superannuation and the insurance policy which lead to very substantial increases in the value of both since separation;
·The payments he made on behalf of the family over that period of rent, car loan payments and credit card debt; and
·The fact that he had the boys with him for the preponderance of time after separation.
It is submitted that the husband has effectively no income earning capacity and therefore there should be an adjustment of 5% to him.
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. [2]
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
[2] 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
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.
The parties have settled a joint balance sheet and the only issue left to be determined relates to 900 Telstra shares.
In 2004 the wife sold her car to J for $10,000. She received the cash from an insurance payout on J’s car and some cash. The husband asserts that as part of the purchase price the wife retained beneficial ownership of 900 Telstra shares that had been held on trust for the boys. Admitted into evidence was a document, said by the husband to represent a contemporaneous note made by him of an agreement whereby the wife accepted the shares as part of the purchase price of the car. The wife did not have a recollection of the document. I accept the husband on this issue.
The husband deposes[3] to the fact that the wife holds shares on trust for the child A. I am not sure what shares they might be.
[3] Paragraph 24 of the husband’s affidavit
I find that the assets are:
Assets Value W property $740,000 Life policy $69,767 IAG Shares 1,112 at 3.8 – W $4,225 900 Telstra shares ($3.16) – W $2,844 Subaru Impreza – W $14,000 Contents – W $2,000 Optimum Super – W $41,073 REST Super – W $1,300 Savings - Westpac Bank – H $184 Centennial Coal – H $27,224 Subaru Liberty –H $28,000 Household contents H $3,000 HESTA Super – H $15,086 BT Business – H $73,503 Accountant’s Super H $7,647 Total $1,029,853.00
Liabilities:
The parties agree that the relevant liabilities are:
Liabilities Amount Mortgage secured on W property $90,000 Mr TA W $12,000 Westpac Visa W $3,000 Ms SD H $8,100 Westpac Mastercard H $15,900 David Jones H $2,400 Tax – ATO H $6,000 Total $137,400.00
Net assets
The net assets have a value of $892,453 ($1,029,853 - $137,400).
Financial Resources
The husband has an interest in remainder in 10% of a property on the Gold Coast. The resource has an agreed value of over $60,000. 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[4]. 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[5].
[4] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1
[5] 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 adopt a similar approach.
Contributions
Section 79(4)(a) Contributions
Financial contributions, both direct and indirect were made by each of the parties.
Injections of funds were made through each of the parties. The parties were married in 1979. The wife had savings and a motor vehicle and the husband owned E property, subject to a mortgage. He bought the property in May 1976 for $49,000.00 with a mortgage of $30,000.00.The wife’s motor vehicle was sold in 1983 for $10,000. On 26 November 1982 the parties purchased a property at H, Brisbane for $124,500 or $126,000. They used the proceeds of the sale of E property and the wife’s savings. In 1983 the wife had accumulated benefits with her employer’s Retirement Fund in the sum of $25,000. The wife says she sold her car for $10,000. In 1983 the husband was made redundant and received a redundancy payment. In 1991 the wife received an inheritance of $4,000 and this was put to the educational expenses of the children. In 1991 the wife’s uncle gave her approximately $4,000.00 to pay for the children’s education. In 2000 the wife inherited $24,000 from her father. She has since spent this on various expenses including medical expenses and to buy a motor vehicle. On 8 April 2004 the husband sold 992 IAG Shares for $4,731.00. In 2004 the wife sold her car to J for $10,000. She received the cash from an insurance payout on J’s car and some cash. I have accepted that as part of the purchase price the wife retained beneficial ownership of 900 Telstra shares that had been held on trust for the boys. The wife then purchased a car for $31,000.00, assisted by a loan from her then de facto, Mr TA in the sum of $18,500.00. She still owes Mr TA $12,000. On 4 May 2005 the husband was made redundant by I Group. He was paid $81,140.00. In January 2007 the husband received an inheritance from his father’s estate. On 5 September 2007 the husband sold 320 AMP shares for $3,406.00. On 11 February 2009 the husband received a redundancy payment of $36,350.00 from V Company. While the amounts are substantial, termination and redundancy payments are incidents of paid employment. In some instances they compensate for a period of unemployment between jobs. Thus rather than an additional contribution, they may be seen as a continuation of salary during a period between jobs.
Each of the parties had paid employment.
From April 1979 the husband was employed as a by B Company. From 1 April 1981 the husband was employed by L Company. From 1 November 1982 the husband was employed by K Company. From September 1983 the husband was employed by a finance company. In 1983 the husband was made redundant and received a redundancy payment. From November 1984 the husband was employed by Q Organisation. In May 1986 the husband obtained employment with N Company. In April 1987 the husband obtained employment with M Company. In June 1988 the husband obtained employment with F Company on a 4 month contract. In November 1988 the husband obtained employment with U Trust. On 24 May 1991 the husband obtained employment with P Organisation on a 3 month contract. In 1992 the wife obtained full time employment as a sales representative. On 14 August 1992 the husband obtained employment with T Company. In March 1994 the husband obtained employment with Telstra on contract. On 24 March 1994 the husband joined the Accountants Superannuation Fund. In September 1995 the husband obtained employment with a bank. In January 2000 or December 2000 the husband ceased work with the bank and obtained employment with the I Group. On 4 May 2005 the husband was made redundant by I Group. He was paid $81,140.00. On 17 December 2005 the husband commenced employment with V Company. On 11 February 2009 the husband received a redundancy payment of $36,350.00 from V Company. In April 2009 the husband commenced a consulting business Cornwell Consulting. He was employed on contract until September 2009. On 2 October 2009 the husband applied for a disability support pension from Centrelink.
At the time of the marriage the wife was employed in hospitality and in about 1983 the wife ceased that employment. While the parties were in Queensland in about 1986 the wife obtained employment as a Demonstrator part-time and worked as a Florist from home. On return to Sydney she had work as a Sales Assistant on a part-time basis. After A was born in 1989 the wife obtained employment with a shop, baby sat and resumed work as a Florist. In 1992 the wife obtained full time employment as a Sales Representative. In 1996 the wife commenced full-time employment with G Company and continues in that employer as a Receptionist and Administrator to the date of the hearing.
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.
In 1980 the husband added a deck to the E property. Otherwise, there is no evidence of significant non-financial contributions during the marriage. After separation the husband:
· renovated the front entrance to the home;
· installed new curtains; upgraded the toilets;
· repainted the home internally and externally;
· replaced the hot water system, pool-pump, pool cleaning equipment and guttering; and
· redesigned the front garden.
Some of that work involved the husband in undertaking the work himself. It is that work, rather than renovations undertaken by tradesmen or paid contractors, that is the focus of this category of contributions. For example renovating the front entrance to the home involved the husband is some tiling and landscaping. He said that due to his health he was very restricted in the pace of work he could undertake (“carrying one tile at a time”). On the other hand I apprehend that replacing a hot water system may have been something he paid tradesmen to undertake.
Albeit in this case not a form of contribution of the significance of financial contributions and those as parent or homemaker, the husband made the greater non financial contribution.
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.
The parties arranged for the wife to be more available for the homemaker role, than the husband.
The wife breastfed, bathed, dressed and fed the boys and changed their nappies. She prepared meals for the family, attended to the children when they woke at night and nursed them when they were teething were unwell. The wife asserts that both boys suffered from Attention Deficit Disorder and that meant they had significant behavioural problems and made dealing with them more difficult. The husband disagrees with the label but he agrees that they were challenging children. The wife attended all parent/teacher meetings and school committees and carnivals. She helped with school canteen, school sport and provided parent help in the classroom. On most weekends she attended their sporting events including swimming carnivals, rugby matches, basketball and tennis games and school house carnivals. The wife attended to grocery shopping, preparation of meals, washing and ironing clothes, cleaning the house, gardening and generally organised the housework. The husband was largely in full-time employment and from 1993 was increasingly unwell.
The wife says that she provided support to the husband during periods he was incapacitated with illness. The husband is very critical of the wife’s efforts in that regard. For example he would have it that the wife assiduously avoided acquiring any familiarity with the dialysis equipment he used for 7 years. Not withstanding that she did not meet his requirements, it is likely that the wife provided considerable assistance to the husband.
The husband attended virtually all of the boys’ team sport games. The husband was responsible for disciplining the boys and helped them with their homework. He provided support to A to attend university.
The wife made a greater contribution by way of homemaker and parent, than did the husband.
The Kennon argument
There is an argument in the wife’s case that the husband’s conduct both to her and the children during the marriage made her contributions more arduous. In aid of the argument the wife relied on the evidence of the single expert, Mr G, a Psychologist. Mr G drew that very conclusion - that the wife’s contributions were made more arduous by the husband’s behaviour. Learned counsel for the husband sought at several junctures to have the report excluded on the basis that it was not a satisfactory report by an expert. I allowed the report in and Mr G was cross-examined. Ultimately I cannot accept Dr G’s opinion. That is not because Mr G is not qualified to give the opinion he does, nor because of some irregularity in the process by which he formulated that opinion. He is a registered Psychologist and is very experienced. It is difficult for the husband to be critical of the qualifications of Mr G or the information provided to him because Mr G was the agreed single expert and was provided with instructions and the material in question under a letter jointly signed by the parties’ solicitors. Mr G went about the task of his cross-examination in a professional and thoughtful way.
The fundamental problem is that Mr G has accepted that the husband exhibited violent conduct during the marriage because the wife alleged it and because:
·the documents he read from medical professionals who have seen her; and
·the results of his mental state examination of the wife;
were consistent with those allegations.
Unfortunately the evidence before me does not establish that the husband exhibited conduct supporting a finding - that in the context of this marriage the wife’s contributions were made more arduous by his conduct. Of the sworn testimony of the wife before me on this issue, three paragraphs of her affidavit survived the objection process. Only two of them related to events during the period of cohabitation. The paragraphs admitted into evidence are as follows:
63.From shortly after [the husband] and I married …… In later years …… The verbal abuse was constant and daily. He would refer to me as “an idiot”. He would frequently call me “stupid”. He would do this in front of the children. He would frequently say things such as “you are just a tea lady”, “your family are all misfits” and “you have no brains”.
…
69.The violence escalated to the point where an incident occurred in October, 1998 involving [the husband], [J] and myself. [The husband] and [J] were having an argument. I saw [the husband] raise his arm to hit [J]. I stepped in to stop him. He pushed me away and then hit me. [J] went into the Kitchen and came back with a bread knife. He held it and said “Leave her alone.”
Paragraph 69 deals with the events leading to the parties’ final separation. In paragraph 70 the wife goes into some detail about an incident in August 2007 which is a time by which her active contributions had ceased.
In relation to the allegations in paragraph 63 the husband conceded his use of the language “idiot” and “you are just a tea lady”. He did not concede the balance nor did he concede the frequency of his use of that language.
The documents from medical professionals relied on by Dr G were:
· A progress note from the wife’s Psychiatrist, Dr WW to her General Practitioner dated 3 April 1998. The note reports observations about the husband, apparently made entirely on the basis of things the wife said to Dr WW. He expresses a fear shared with the wife that the husband could harm her physically.
· A note “To whom it may concern” from Dr HN dated 31 December 2007. The note reports on the wife’s attendance on 8 August 2007 following an alleged assault on 5 August 2007. The wife reported tenderness around her right scapula and shoulder.
· A note “To whom it may concern” from Dr GU dated 29 July 2008. The letter commences: “I have seen [the wife] since June 2001. During this time I have treated [the wife] for depression. A major contributing factor to the depression has been verbal abuse and threats from her ex-husband. [The wife] has discussed these situations with me on many occasions over the years.” The letter goes on to identify other stressors including “the prolonged nature of the proceedings”. I assume the reference was to the prolonged nature of the parties’ post separation conflict as the proceedings in this Court had by that time only been on foot for 3 months.
· A Psychological report on the wife from Ms GR dated 28 November 2008. The report records that the referral to Ms GR was dated 8 July 2008, the initial session was 22 July 2008 and the last session was on 18 November 2008. Ms GR reported that the wife gave her a lengthy account of what the wife described as long-term physically and mentally abusive treatment by her husband, from the start of the marriage, apparently worsening after he commenced at-home dialysis and continuing after their separation in 1998. The wife described extremely controlling behaviour by the husband throughout their marriage and separation. She referred to his insistence on total financial control as well as control of her activities and whereabouts. The wife described the husband as bullying and harassing and having regular bouts of anger and since separation asserted that he used the boys as a weapon against her. She complained that he had a live-in affair at age 35 and an argument in the home in 1998 when J pulled a knife.
· A note “To whom it may concern” from Dr HN dated 25 August 2008. The note reports the ongoing impact of the current divorce proceedings on the wife’s health.
· A note “To whom it may concern” from Dr RG, Clinical Psychologist, dated 25 March 2009. The note records that Dr RG first saw the wife on 4 June 2005 and treated her in that year for Major Depressive Disorder. Dr RG understood that the wife had experiences a Major Depressive Episode in 2001.
· A document purporting to be a transcript of file notes which had content mentioning the wife’s marital problems from the surgery of Dr AA. There are notes of:
1 April 1996
23 April 1996
2 April 1996
28 October 1996
20 August 1997
12 November 1997
5 May 1998
2 dates in 1999
9 dates in 2000
1 in 2001
1 in 2002 and
2 in 2003
In less than half of those notes is there even a comment critical of the husband’s behaviour.
With the so called “no-fault divorce” regime introduced with the Family Law Act in 1976, there has been little scope for the conduct of parties, outside the statutory criteria, having relevance in property determinations. In In the Marriage of Kennon (1997) 22 Fam LR 1 the Full Court (Fogarty, Baker and Lindenmayer JJ) discussed that issue and expressed the following view at 24:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that.
We think the earlier cases may have overlooked the distinction which more recent cases have emphasised. However, if it is thought now to be artificial to distinguish those longstanding authorities in that way, it appears to us, having regard to the reconsideration which has been given to this matter over recent times, that it may now be appropriate for this court to treat those authorities as no longer binding and to be subject to the qualifications and distinguishing feature referred to in the recent decisions of this court. There have been marked changes in perceptions, both legal and social, about domestic violence and its impact in recent times and it appears to be appropriate to give effect to them: see Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161; In the Marriage of Farnell (1995) 20 Fam LR 513; (1996) FLC 92–681, and In the Marriage of Ivanovic (1996) 20 Fam LR 445; FLC 92–689.
However, it is important to consider the “floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this court to fault and misconduct in property matters — a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). Similarly, in Killick v Killick (1997) 21 Fam LR 331 at 341, in proceedings under the De Facto Relationships Act 1984 (NSW), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent.
As to examples of the circumstances that might attract the approach discussed in Kennon, the facts of that case do not help. Although the trial judge did not determine that the wife’s contributions had been impacted by the husband’s conduct (which conduct included four incidents in respect of which common law damages were awarded for assault or battery), neither of the parties asked him to make such a determination.
In the case before me I have set out the wife’s evidence on these issues. The husband denies the thrust of some of that evidence and puts a context to some of the incidents which leaves them in a more ambiguous light. For example, it is his evidence that the events described in paragraph 69 of her affidavit were preceded by the wife telling the boys, then still quite young, that their father had had an affair etc. That was put to the wife and rather than denying that assertion, she said she did not recall that. Thus it is possible that she behaved inappropriately on that day. Then there is the letter[6] sent by the wife to the husband at the point of separation. In the course of that letter the wife writes:
“I don’t ask or expect your forgiveness, but do feel that we both need to step back and assess many things.”
[6] Exhibit 1
It is hard to imagine (and the wife has not identified), what she needed forgiveness for, if the husband’s conduct during the marriage was such as to bring the circumstances within the category of exceptional cases to which the Full Court referred in Kennon.
As to the two limbs of the Kennon argument - here there is no suggestion that the wife was prevented from making contributions because of the alleged conduct. It is an agreed fact that contributions were equal to the date of separation and that valuable contributions were made by the wife thereafter. The arguments about contributions after separation do not suggest any criticism of the wife’s contributions from that time. As to the second limb, the wife does not give evidence about the husband’s conduct making her contributions more arduous than they ought to have been. I accept that might be inferred in some circumstances but here there is a marriage involving cohabitation from 1979 to October 1998. The only specific evidence relates to a few events in the last years of that period.
The husband did abuse the wife. For example, his instructions lead the husband’s counsel to put the following revealing proposition to the wife:
“Your husband did verbally abuse you occasionally, but only occasionally.”
During his cross-examination the husband was dismissive of the fact that he made derogatory remarks to and denigrated the wife. He did not shy away from the fact of physical discipline of the boys, on one occasion striking one boy with a belt. Those behaviours do him no credit.
The wife’s case that her contributions were made more arduous by the husband’s conduct, is not made out.
Lest there be any misunderstanding arising from the rejection of some of the wife’s evidence on objection or from the finding on this issue, it must be recorded that violence of the type alleged is unacceptable and in some aspects, probably illegal. The issue here is not whether the husband’s conduct was acceptable or not, it is whether it could be relevant to the task of identifying a just and equitable settlement of property. In making findings on an issue such as this, it is not permissible to extrapolate from evidence in relation to isolated incidents to a course of conduct significant to a marriage of nearly 20 years. The court needs to be comfortably sure that the basis is made out. Findings of fact cannot reliably be made on the basis of assertions made in a conversation with a medical practitioner years ago about events that are not addressed in the wife’s own evidence before the Court. There is an inherent unfairness in raising, many years after the event, conduct that could and perhaps should, have been addressed at the time. Recollections fade, witnesses may become unavailable and records are lost. Indeed, that may be an explanation for the wife’s evidence about the husband’s conduct during the preponderance of the marriage, being vague and general.
Conclusion on Contribution
Significant contributions were made by the parties over a substantial period. The parties agree that their contributions were equal to the date of separation. The wife argues that thereafter she made greater contributions because the husband had the use of the former matrimonial home; the boys lived with her 9/12ths of the time and the husband underpaid child support. The Submission on behalf of the husband is that she made greater contributions because he paid joint debts; the boys lived with him for a greater period than the wife; he built up the value of his superannuation and insurance policy and made improvements to the home.
There is no validity in the wife’s argument about underpayment of child support. There is a direct practical remedy available for the failure to pay assessed child support and that could and should have been addressed by the wife. As to whether the boys lived with the wife or the husband for a longer period, neither of the parties was cross-examined on their evidence on this issue. The husband’s calculations are probably based on the total period and the wife’s on the period of accommodation provided while each of the boys was under 18 years of age. The calculation made on behalf of the wife makes more sense. The parties agree about the living arrangements for A but the wife recalls J coming to live with her for three years from 1999 and the husband recalls it being only two years. Accepting the husband’s version as an admission against interest, the boys lived with the wife for about 75% of the time from separation until they respectively turned 18 year and with the husband for about 25% of that time.
It is true that the husband continued to build up his superannuation. Then again, his greater income and the fact that his housing costs were subsidised by him having the occupation of the parties’ home, made it possible for him to make those contributions. The husband paying what outgoings there were and servicing joint debt are balanced by his occupation of the home to the exclusion of the wife.
There was a significant component of this marriage “for better” and perhaps even more “for worse”. The parties each contributed through paid employment. The non-financial contributions, largely made after separation, were not substantial. The wife took the main parenting and homemaker role. The parties each supported the children after separation, the wife for the greater period. The husband had the use of the former matrimonial home for a decade after separation, to the exclusion of the wife. He met the outgoings and undertook some work at the property. There is no evidence as to the impact, if any, of that work on the value of the property. The family suffered financial loss. The husband has calculated that tens of thousands of dollars were applied to his medical expenses. There is the impact on him and the family of 15 operations. The wife asserts, without challenge, that tens of thousands of dollars were lost in the stock market crash of 1987.
The parties display great bitterness to each other. In my view this prevents them reflecting in a balanced way, on their substantial contributions. Care is needed in giving primacy to a relatively small imbalance in contributions made after separation, even where they were made during 10 years after separation, in the context of a marriage that commenced 30 years ago. I find that the various contributions of the parties would properly be acknowledged by a finding that they were made in equal proportions.
The other matters in Section 79
Once contributions have been assessed, the other factors in section 79(4) need to be considered. 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), (d), (e), (j), (k) and (m).
(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 59 and 61 years of age, respectively. As to the health of the parties:
The wife first sought assistance from a Psychiatrist in 1992 and was treated by him thereafter. In 2005 she consulted a Clinical Psychologist. She has had treatment from a Counselling Psychologist since July 2008. The wife suffers from low mood, sleeplessness and regular bouts of crying. She also suffers from difficulty in concentrating and poor memory. She regularly experiences tightness in her chest, constant headaches and occasional bed wetting. From time to time she suffered suicidal thoughts, particularly around Christmas 2007. The wife was prescribed anti-depressant medication from 2000 and as at the time she saw Dr G in April 2009, she was on a high dose of the anti-depressant medication, Efexor. Dr G observed the wife to exhibit high emotionality and emotional disturbance. He found her reports of anxiety and depression consistent with the history she provided.
The husband has suffered chronic kidney disease since he was a young man. He became increasingly unwell, had one kidney removed in 1994 and needed dialysis from 1996. The husband underwent many operations between 2001 and 2003 including at least two hernia operations, removal of sinuses and abscesses from his abdominal wall, removal of a parathyroid gland and three surgical incisions into his abdomen, relief of bowel obstruction and excision of a Methicillin-Resistant Staphylococcus Aureus (MRSA) abscess.
In February 2003 the husband received a kidney transplant. He suffered high blood pressure from 18 years of age, has been diabetic since 2006 and suffers from reflux, gout, glaucoma, cataracts and arthritis in his left knee. In his report of July 2009, Dr I, the single expert Consultant Nephrologist, says that the likelihood is that the husband’s transplant will not work for a very long period of time, as the transplanted kidney was not a very good match and there have already been rejection episodes. He does not give any estimate of when the transplant might fail but when it does, it will necessitate a return to dialysis every second day. Dr I says that leading up to that time, the husband will require very close supervision by his Consultant Nephrologist.
The husband’s General Practitioner, Dr HN wrote in March 2009 that the husband will ultimately require a knee replacement and at that time had an obstructed parotid gland from a stone in the parotid duct.
(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 $898 per week in the form of her wages as Receptionist/Administrator for G Company. The wife pays board and yet says that there are no other income earners in her household.
The wife’s expenses are as follows:
Expense
Amount
Income tax
$165.00
Board
$300.00
Health Policy – HCF
$31.00
Motor vehicle insurance – GIO
$14.00
Motor vehicle registration – Subaru Impreza
$14.00
Visa card repayments Westpac
$35.00
Storage and all other expenditure
$400.00
Total
$959.00
Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
In addition to her paid employment the wife assists charities. In early 2009 she collected eye glasses for a charity. It is not suggested that the wife is not fully exercising her earning capacity. It is the wife’s case that her income earning capacity is less than that of the husband.
The husband earns $16 per week by way of dividends. He lives in the former matrimonial home with his fiancée, Ms S, her son D and the parties’ son, A. None of those persons has any income.
The husband puts his expenditure as follows:
| Expense | Amount |
| Mortgage payments on the former matrimonial home - Westpac | $300.00 |
| rates | $51.00 |
| Life insurance premium - Suncorp | $25.00 |
| Health Fund contributions – HCF | $57.00 |
| Home and contents insurance - GIO | $19.00 |
| Motor vehicle insurance - AAMI | $17.00 |
| Motor vehicle registration – Subaru Liberty | $11.00 |
| Mastercard repayments CBA | $115.00 |
| All other expenditure | $1,012.00 |
| Total | $1,607.00 |
It is the husband’s case that he has no earning capacity.
Dr I does not give any estimate of when the husband’s transplant might fail but when it does, it will necessitate a return to dialysis every second day, with the resultant interruption of his ability to work, generate income and considerable restrictions of his time to perform dialysis treatments. Dr I says that leading up to that time, the husband will require very close supervision by his Consultant Nephrologist. He says that the husband’s capacity to work is largely influenced by the medical complications which he is experiencing - constant tiredness from his sleep apnoea, the requirements of CPAP equipment used to deal with that condition and disability related to gastro oesophageal reflux, gout, glaucoma, cataracts and arthritis in his left knee.
The husband’s General Practitioner, Dr HN wrote in March 2009 that it is very likely that the husband will need to retire on medical grounds before 65 years of age. He said that the husband’s current medical status continues to limit his work capacity therefore his opportunity to “load up” his superannuation prior to retirement.
The husband was in full-time employment up until a month before the hearing. Despite his medical conditions he has maintained full-time employment for much of the marriage and since separation. He managed to work while he was undergoing home dialysis for about 7 years. In 2008 made several trips to Thailand and was there for something like 14 weeks in total. He undertook some physical work tiling and landscaping the home up until 2006. The husband recently applied for a disability support pension.
The husband was asked about supporting Ms S and her son D and responded to the effect that she would need to obtain paid employment and support him.
The question of the husband’s earning capacity is important and difficult. Favouring a finding that the husband has some capacity is the fact that he was in full-time paid employment until a month before the hearing; that there is no evidence that the termination of that employment was necessitated by poor health; that he had extensive overseas travel in 2008; that he was able to engage in physical work to maintain or improve the home as recently as 2006 and that, notwithstanding he has applied for a disability support pension, there is no medical evidence before the Court to the effect that he cannot work. On the other hand there is the fact that his treating practitioner and the single expert predict the failure of his transplant at some time; the fact that a return to dialysis is likely and the need for careful management of his condition as he deteriorates; evidence of several other disabling medical conditions; the fact that he is 61 years of age and presumably increasingly less capable of managing both home dialysis and paid employment than he was when aged between 48 and 55 years of age.
On balance, the husband has little, if any, earning capacity.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The parties’ children are both over 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. The husband deposes to providing financial support to the adult children. He has brought his fiancée and her son to Australia. He was asked during cross-examination about needing to support them and responded to the effect that his fiancée will need to obtain employment and support him.
(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;
As at the date of the hearing neither of the parties receives a Centrelink benefit. The husband has applied for a disability support pension. The parties have interests 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 virtually no evidence in relation to the standard of living of the parties during the marriage.
(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 relevant matter.
(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 on a full-time basis.
(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 to pursue full-time employment. His illness placed restrictions on his capacity to earn and for the 7 years of home dialysis, was restricted in his capacity to make physical contributions at home.
(l) the need to protect a party who wishes to continue that party's role as a parent;
There is no evidence on this issue.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
Although the husband lives with his fiancée and her son and A. He gives no evidence of the financial circumstances of their cohabitation. The sections of his Financial Statement that call for that information, Parts F and H were not completed by the husband. Ms S puts her occupation as homemaker and deposes to having no assets other than her clothes.
I assume that the husband is supporting his fiancée and her son.
(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;
Nothing comes to attention here.
(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
The wife seeks an adjustment in her favour of 3-4% for those factors. The husband seeks an adjustment in his favour of 5%. The relevant matters arising from the remaining elements of s 79 referred to above are:
ØThe husband has little or no earning capacity. His health is greatly compromised and to the extent that he has some temporary capacity for paid employment, work will be increasingly difficult. The only factor supporting him making a successful return to paid employment is necessity;
ØThe wife has worked since 1996 in her current position. She does not enjoy uncompromised health and is 59 years of age but clearly has a capacity for paid employment. She cannot aspire to income of the order of that formerly received by the husband;
ØThe husband lives with Ms S and her son D. There is no evidence about Ms S’s earning capacity, but the husband referred to the possibility of Ms S obtaining paid employment. Indeed that may be necessary. D is only 10 years of age and will likely be dependent on his mother;
ØThe husband has a 10% interest in remainder in a property on the Gold Coast. That interest has an agreed value of over $60,000;
ØThe husband has more funds in the form of superannuation than the wife. Given his age and state of health there is likely to be no impediment to his accessing those funds. In the wife’s case it is likely that she would need to wait until she retires from the paid workforce.
These matters call for countervailing adjustments but taken together, in my view, they warrant a small adjustment in favour of the husband, from the distribution based on contributions alone. It is not the role of adjustments under these provisions to put the parties in the same financial circumstances. The 5% adjustment sought by the husband would represent nearly $45,000 and a difference in the final property distribution of twice that sum. To put that in perspective the wife’s gross annual income about $47,000. Such an adjustment is not warranted. I will make an adjustment of 3% in his favour.
Just and Equitable
The net assets have a value of $892,453.
The parties both seek that the husband retain the Suncorp insurance policy. A division of the assets in the proportions 53% to the husband and 47% to the wife would leave the husband with about $473,001 and the wife with about $419,452. The wife has or has had the benefit of:
Assets
Value
IAG Shares 1,112 at 3.8 – W
$4,225
900 Telstra shares ($3.16) – W
$2,844
Subaru Impreza – W
$14,000
Contents – W
$2,000
Optimum Super – W
$41,073
REST Super – W
$1,300
Mr TA W
-$12,000
Westpac Visa W
-$3,000
Total
$50,442.00
In order to bring her to 47% she should receive an additional $369,010.
That will leave the husband with the following assets:
Assets
Value
Life policy H
$69,767
Savings - Westpac Bank – H
$184
Centennial Coal – H
$27,224
Subaru Liberty –H
$28,000
Household contents H
$3,000
HESTA Super – H
$15,086
BT Business – H
$73,503
Accountant’s Super H
$7,647
Ms SD H
-$8,100
Westpac Mastercard H
-$15,900
David Jones H
-$2,400
Tax – ATO H
-$6,000
Total
$192,011.00
In order to bring him to 53% he should receive an additional $280,990.
The value of the home is represented for the purposes of these proceedings as follows:
Assets
Value
W property
$740,000
Mortgage secured on W property
-$90,000
Total
$650,000.00
In fact there will be costs of sale and the property may well achieve a different and hopefully, greater, price than the figure fixed for the purposes of the proceedings. In order that the parties both share in the profit or loss caused by those factors I will express the division as a percentage. The parties are to benefit from the proceeds of the home in the proportion 369,010 : 280,990 which I will round out to 57% to the wife and 43% to the husband.
Conclusion
Significant contributions were made by each of the parties. They acquired assets and provided a secure home for their children. In the course of about 19 years of cohabitation and during 10 years thereafter, the parties shared the work of the family in different ways. The parties do not enjoy perfect health and in the husband’s case he is greatly affected by several serious conditions. The orders I propose will effect a just and equitable settlement of their property.
I certify that the preceding one husband and eighty three (183) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.
Associate:
Date: 13 November 2009
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Property Law
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