D and D

[2007] FCWA 145

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: D and D [2007] FCWA 145

CORAM: CRISFORD J

HEARD: 21 NOVEMBER 2007

DELIVERED : 13 DECEMBER 2007

FILE NO/S: PT 3941 of 2005

BETWEEN: D

Applicant/Wife

AND

D
Respondent/Husband

Catchwords:

Property settlement - contributions - 26 year separation - increase in property due to market forces - s 75(2) adjustment

Legislation:

Family Law Act 1975, s 75(2), s 79

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr K Forrest

Respondent: Mr M Berry

Solicitors:

Applicant: Ilberys

Respondent: Chris Baker & Associates

Case(s) referred to in judgment(s):

G and G (1984) FLC 91-582

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93‑143

Lenehan and Lenehan (1987) FLC 91-814

Norbis v Norbis (1986) FLC 91-712

Zyk and Zyk (1995) FLC 92-644

1[Mrs D] and [Mr D] were married for 42 years. They were separated for over half of that time. After 17 years together [Mrs D] left [Mr D] and their four children, then aged between 9 and 14 years in their home. She moved out to rental accommodation.

2On 28 November 2005 the parties were divorced. They had been separated for almost 26 years. In that time each had accumulated modest assets and the value of the home had increased substantially.

3They have asked the Court to resolve how their property should be divided.

Orders sought at Trial

4[Mrs D] seeks one half of the value of the home. She also seeks to retain what she already has in her own possession. By her reckoning this represents 36% of the total assets.

5[Mr D] suggests that it is artificial to put a percentage on what [Mrs D] is entitled to in the circumstances of this particular case. He says that she should be paid an amount of no more than $60,000 to reflect her entitlement. She would also retain the property in her possession.

Approach to property settlement

6The approach to be taken in relation to an application for property settlement pursuant to s 79 of the Family Law Act 1975 is a four step process (Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93‑143). Those steps are:

•to make findings as to the identity and value of the assets and liabilities of the parties;

•to identify and assess the contributions made by the parties to those assets;

•to identify and assess the s 75(2) factors (which are primarily prospective factors); and

•consider whether the proposed orders are just and equitable.

Assets and liabilities

7By the end of the trial the parties had agreed their assets. There were no relevant liabilities. I find the asset pool to be:

Asset	Party	Value
Former matrimonial home (joint names)	husband (to retain)	$335,000
Household contents	husband	2,500
Household contents	wife	1,843
[Motor vehicle]	wife	15,000
[Motor vehicle]	husband	12,000
Husband’s BankWest saving account as at 21/11/07	husband	24,126
Husband’s BankWest cheque account as at 5/11/07	husband	10,528
BankWest Visa account	husband	4,517
Health Department Payout	wife	4,229
Husband’s share portfolio as at 24/10/07
1,200 [T]	husband	5,616
10,000 [KFS]	husband	10,000
1,638 [AIH] payout	husband	3,526
217 APA	husband	807
1,134 [BBI]	husband	1,791
Wife’s HBS account as at 21/11/07	wife	4,125
Wife’s HBS shares (237 @ $17.81)	wife	4,221
Total assets	439,829
Addbacks
Wife’s legal costs paid	wife	20,687
Husband’s legal costs paid	husband	960
Husband’s lawyer’s trust account	husband	10,800
Total add backs	32,447

Superannuation interests
GESB Gold State	husband	104,924
GESB West State	husband	72,017
GESB West State	wife	58,330
Total superannuation	235,271
Total assets of husband	599,112
Total assets of wife	108,435
Total assets of the parties (including superannuation)	707,547

Contributions to the assets

8Neither party had any assets of note when they commenced their relationship.

9The parties agree that each made an equal contribution to the assets until the time of separation. The real issue for the Court is:

•what are the post separation contributions, and

•how these should be treated.

10[Mrs D] raised the issue of whether the Court should adopt a global or asset by asset approach given the parties had acquired, since separation, quite separate assets. The only asset common to them both is the former matrimonial home.

11In most cases the authorities suggest the global approach is generally to be preferred. However, each approach is permissible depending on the circumstances; Norbis v Norbis (1986) FLC 91-712, Lenehan and Lenehan (1987) FLC 91-814 and Zyk and Zyk (1995) FLC 92-644.

12In Norbis (supra) the High Court made it clear that it is legitimate and within a proper exercise of the discretion conferred by the Family Law Act 1975 to assess contributions to individual assets or group of assets or alternatively by taking a global approach. Considerations relate to convenience and consistency. Generally, it is considered that the global approach will produce the best result. In the matter before me, counsel adopted a common approach in that they agreed neither party had made a contribution to the others assets or superannuation interests accumulated post-separation and that each party should keep what they had so acquired.

13The parties agree that post separation financial contributions made by [Mr D] to the home have been overwhelming.

14In early 1971 the parties entered into some form of contract with the State Housing Commission to acquire a property at [ an address in the outer suburbs]. The purchase price of the property was $10,815. There was stamp duty on the contract of $138.50 to be paid. The home was registered in the name of the State Housing Commission.

15When the parties separated in 1979 the property was valued at $26,500. The amount then owing to the State Housing Commission was approximately $9,000.

16After separation [Mr D] continued to discharge the liability to the Commission, which later became known as Homeswest. In early 1994 the full amount was paid. On 7 January 1994 both [Mrs D] and [Mr D] executed the necessary transfer of land form and the parties became the owners of the property as joint tenants. Neither sought to assert their right to the property at that stage.

17After [Mrs D] left the home [Mr D] continued to make all the loan repayments and paid all other outgoings which included the rates, water, electricity and gas. He says he maintained the home and the garden.

18He also deposes to making improvements to the home. A carport was attached, a solid front and back door were attached, security screens were placed on the windows, security doors were installed and roller shutters were put on the lounge and main bedroom window. Further, there was tinting on various windows, the roof was insulated, gas was connected, ceiling fans were installed and ducted air-conditioning was placed throughout the home. The home was connected to deep sewage.

19[Mr D] says the improvements were substantial given his fairly modest wage in the early days of the separation and the need to provide for the four children.

20[Mrs D] refers to the report and valuation dated 7 November 2007. The home is a modest structure and presents in a fairly rustic state. The garden could only be described, kindly, as waterwise.

21It is also agreed that [Mr D] made an overwhelming contribution to the welfare of the children after separation. They all lived at home. It was [Mr D] who attended to the running of the household and the children.

22[Mrs D] did make some contribution to the children. Immediately, after separation she saw the children on an almost daily basis. However, on advice from her doctor, she discontinued this on the basis it was unsettling for the children. She accepted she did not see the children so frequently as time went on. She said she had been an alcoholic from around 1978 until at least 1994. She explained that some times she was not capable of seeing the children. There were times she was unable to drive. She said she did not remember specific details but there were occasions when the children came to her house.

23She did maintain relationships with them and saw them on special occasions. She was involved in wedding preparations and her son’s graduation. Two children lived with her for a period of time after they left home.

24I find her contribution in a practical and emotional sense to be minimal. This is not to suggest that she did not love her children dearly. She did what she thought was best at the time – leaving the children in the home with their father. She says she has made a contribution to the family by allowing the children and [Mr D] to remain in the home on an uninterrupted basis.

Other assets

25Since the parties separated each has acquired superannuation. Neither party has made a contribution directly to the other’s superannuation. [Mr D] has been in a position to acquire some shares and he has some savings. Both parties have a motor vehicle. It is agreed that both parties will retain what they have in their possession.

26In relation to the superannuation no splitting order was sought. Given the length of time since separation and the lack of any discernable contribution by one party to the superannuation of the other I am of the view that such an order is inappropriate in any event.

Other considerations

27The home is presently valued at $335,000. It is unencumbered. It is conceded that the increase in the value of the home is attributable, in the main, to capital growth from market forces. Although [Mr D] has done some improvements the physical effort put in has done little to increase the worth of the home.

28[Mrs D] argues that since 1994 when the purchase price was fully paid [Mr D] has had rent free accommodation. On the other hand, since separation, she has always had to pay rent. Until recently she was paying $180 per week and presently that amount is $220 per week. She argues that if the home had been rented then taking into account her half share, she would have had an income stream.

29[Mrs D] says [Mr D] has had the sole use and occupancy of the home since separation and she should be given credit for that.

Evaluation of contributions

30The parties agree that at separation the contributions to the home were equal. Since then the husband has made the overwhelming financial and non-financial contribution. This is to be weighed with the fact [Mrs D] allowed him the uninterrupted and exclusive use of the home. The children remained in a familiar environment and she did not assert her rights, even in 1994. In fact neither did anything to crystallise matters or to commence property proceedings. The increase in value cannot be attributed solely to [Mr D].

31It is impossible to embark on a mathematic calculation in these circumstances. It is necessary to try and adopt an objective perspective and assess all the contributions.

32I consider that [Mr D] has made capital contributions to the home by repaying the loan and also making payments to the variable outgoings over an extended period of time. He also did some improvements to the home. When [Mrs D] left he had four young children to look after. He also was required to work fulltime. By all accounts the children have done well. [Mr D] has been able to acquire shares, superannuation and savings.

33Since separation [Mrs D] has been required to pay rent. She has given [Mr D] and the children, until they left, the benefit of exclusive occupation of the home and especially after 1994 he has not been responsible for any loan repayments.

34Not to be forgotten is that the increase in value in the property is as a result of market forces and not from any specific improvements done by either of the parties.

35In all the circumstances, insofar as it relates to the home, I assess [Mrs D]’s contribution at 30%.

Section 75(2) factors

36[Mrs D] is 61 years of age. She says she has some health difficulties. She takes medication for depression and has done so for some 10 years. She takes medication for a thyroid deficiency. She also takes some medication for reflux. She says she has degenerative discs in her spine and has a neck problem. She does not take any medication or treatment for these conditions.

37Despite these difficulties she is optimistic about retraining as a [professional] and being in a position to work in the future. She says it will take her some four years to retrain. She is currently attempting to obtain entrance to university and anticipates starting a [specialised] degree in 2008.

38She has just completed a Certificate IV at TAFE which enables her to work assisting children with special needs.

39[Mr D] is 65 years of age and will be 66 on 30 December this year. He is a [conservation worker]. He anticipates he will need to pay [Mrs D] some money to acquire her interest in the home and as a result will need to continue working for some time. He says he is fit and healthy.

40During the course of the relationship [Mrs D] was involved in the care of the children. When she separated from [Mr D] she went to Balga TAFE to complete her matriculation qualifications. She was employed as a public servant with [a government agency] between February 1986 and November 2005. She was employed as an administrative assistant. She lost her job at the [agency] due to an industrial dispute. This matter was finalised by a Deed of Settlement whereby she was granted a once off gross payment of $4,490. She agreed not to seek or take up future employment with the [agency or any other similar government service].

41[Mrs D] accepted that she was dismissed from her employment and reluctantly accepted that there was a finding she had committed a serious breach of discipline. Since then she has been in receipt of a Newstart allowance.

42It is suggested that [Mrs D]’s present lack of employment and dependence on Centrelink are as a result of her own actions. [Mr D] says she is the author of her own misfortune and if she had not acted in such a manner throughout the course of her employment she would have continued her employment as a public servant, receiving an appropriate income.

43The basis for the conclusions of the Health Department were not before the Court. [Mrs D] consistently denied she had committed a breach of discipline or acted inappropriately.

44[Mr D] says that any financial consequences [Mrs D] is now suffering is a result of her own undesirable behaviour. It should not be a factor the Court takes into account when assessing any adjustment for s 75(2) factors.

45The Court is not able to draw the conclusions that [Mr D]’s counsel seeks it draw. However, it is clear that after separation [Mrs D] went on to obtain various qualifications and engaged in long term employment with the [agency]. The length of the marriage has not prevented her forging her own way in the workforce. She has considerable experience and some qualifications. She indicated a willingness to eventually work.

46In all the circumstances I do intend to make some adjustment for the primarily prospective factors of s 75(2). [Mrs D] is confident that she will successfully retrain [in a profession] and commence employment. She is slightly younger than [Mr D]. She does already have some qualifications although she says her physical ailments prevent her working with disabled children. On the other hand, she has had a long work life in the [government agency] as an administrative assistant and it is likely she is in a position to obtain some work if she so desires rather than pursue various studies at her leisure.

47However, she has not had the same opportunity to acquire savings, shares and superannuation as [Mr D]. He has not had to pay for accommodation since 1994 and thus has had more available money. He will always be in a better position than [Mrs D].

48This is a case that, given all the circumstances, warrants a small adjustment for s 75(2) factors. Despite its unusual nature this marriage endured in its own unique form for 42 years. It is accepted an adjustment in relation to s 75(2) of the Act is not a means to equalise positions or to attempt social engineering. However, for the factors outlined above and the present disparity in the parties’ respective positions, a small adjustment of 2.5% is called for.

Justice and equitable requirement

49It is now necessary to stand back and consider the effect of the orders I intend to make. [Mrs D]’s 32.5% of the home is $108,875. She will also retain $108,435 worth of assets she has acquired post separation. In total she will receive assets worth $217,310.

50In dealing with the division of property on an asset by asset basis it is useful to bear in mind what Nygh J in G and G (1984) FLC 91-582 (which was cited with approval by members of the High Court in Norbis (supra)) said when discussing the two legitimate approaches. He cautioned those in favour of the more precise, asset by asset approach to not mistake the trees for the forest.

51[Mr D] will retain the former matrimonial home. He has his superannuation interest worth approximately $175,000 in total. He has savings and shares. He has the ability and desire to continue working for the next few years. [Mrs D] does not have accommodation, she has modest superannuation and some modest savings. When I take into account the fact [Mr D] has had a considerable amount of time, and I use 1994 as the particular time, to reside rent free in the home thus enabling him to accumulate savings and shares it appears to me overall that [Mrs D] should receive some further small adjustment.

52I intend to round the amount to $220,000 in total.

53In all the circumstances I consider this to be just and equitable.

54The orders I intend to make are:

Orders

1Within 30 days the husband pay to the wife the sum of $111,565 and upon such payment all the right, title and interest of the wife in the property at [the address in the outer suburbs] be transferred to the husband absolutely.

2Any interest the wife may have in the:

(a)[motor vehicle],

(b)chattels,

(c)shares,

(d)[AIH] payout of $3,526,

(e)BankWest savings account and BankWest credit account, and

(f)superannuation interests,

of the husband vest in the husband absolutely.

3Any interest the husband may have in the:

(a)[motor vehicle],

(b)chattels,

(c)HBS savings and shares, and

(d)GESB superannuation interest,

of the wife vest in the wife absolutely.

4The application and response otherwise be dismissed.

I certify that the preceding [54] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate