Dakin and Dakin
[2011] FMCAfam 177
•8 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAKIN & DAKIN | [2011] FMCAfam 177 |
| FAMILY LAW – 32 year marriage – wife and three adult children allege serious violence against them by the husband throughout the marriage – discussion of principle in Kennon – causal link in relation to impact of violence upon wife’s contributions not established – husband contributes compensation funds. |
| Family Law Act 1975 (Cth), ss.75, 79 |
| Aleksovski & Aleksovski (1996) FLC 92-705; 20 FamLR 894 C & C (2000) FLC 93-220 Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143 In the Marriage of Bourke (1981) FLC 91-055 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Lee Steere (1985) FLC 91-626 JEL & DDF (2001) FLC 93,075 Keenahan [2004] FamCA 360 Kennon v Kennon (1997) FLC 92-757 Kowalski and Kowalski (1993) FLC 92-342 Norbis and Norbis (1986) 161 CLR 513 Norman & Norman [2010] FamCAFC 66 Sippel & Sippel [2004] FamCA 201 Spence & Spence [2008] FamCA 263 |
| Applicant: | MR DAKIN |
| Respondent: | MS DAKIN |
| File Number: | SYC 972 of 2009 |
| Judgment of: | Sexton FM |
| Hearing dates: | 27, 28 January & 4 February 2011 |
| Date of Last Submission: | 4 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr W. Ward |
| Counsel for the Respondent: | Mr R. Battley |
| Solicitors for the Respondent: | Marc Antony Lawyers |
THE COURT ORDERS BY CONSENT THAT:
The Husband forthwith do all things and sign all documents necessary to effect a transfer of the land held by him in Croatia to the Wife.
THE COURT FURTHER ORDERS THAT:
Within 60 days of the date of these Orders, the following occur simultaneously:
(a)The wife pay the husband by way of property settlement the sum of $78,065.36;
(b)The wife do all things and execute all documents necessary to cause the mortgage secured over the property at Property C, being all the land in Folio Identifier [omitted] in the State of New South Wales (“the home”) to be discharged and indemnify the husband in relation to same; and
(c)The husband do all acts and things and execute all documents necessary to cause his right, title and interest in the [C] home to be transferred to the wife.
Pending transfer of the home, the Wife be responsible for all outgoings on the Property C, [C] property and indemnify and keep indemnified the Husband in relation to those outgoings.
In the event the Wife fails to comply with Order (2)(a) and (b) by the due date in accordance with these Orders, the parties forthwith do all things necessary to effect a sale of the property, by either private treaty or public auction, as the Wife elects, for the best price reasonably obtainable.
The Wife select the real estate agent and the conveyancing solicitor in relation to the sale and take responsibility for the conduct of the sale.
Upon the completion of the sale the proceeds to be distributed in the following order and priority:
(a)In payment of all legal costs, commissions, and agent expenses in relation to the sale;
(b)In adjustment of rates and other outgoings in accordance with usual conveyancing practice;
(c)In discharge of the mortgage secured by the property;
(d)In payment to the Husband of 23% of the balance;
(e)In payment to the Husband of $4,465.36; and
(f)In payment to the Wife of the balance.
The Husband retain absolutely as his property:
(a)The Holden motor vehicle held in his name;
(b)The [I] shares held in his name;
(c)Tools in his possession;
(d)Furniture and chattels in his possession;
(e)The proceeds of any bank account in his name; and
(f)The personal property in his possession.
The Wife retain absolutely as her property:
(a)The Laser motor vehicle in her possession;
(b)Furniture and chattels in her possession;
(c)The proceeds of any bank account in her name;
(d)The superannuation entitlement in her name; and
(e)The personal property in her possession.
Except as otherwise provided in these orders, the Husband and the Wife remain liable for any debts, howsoever arising, in their own name at the date of these Orders and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation to those liabilities.
In the event the Husband or the Wife refuses or neglects to comply with any of the Orders herein, the Registrar of this Court at its Sydney Registry be appointed pursuant to section 106A of the Act to execute, in the name of the Husband or the Wife as the case may be, all deeds and instruments necessary to give effect to the orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
With the exception of any application for costs, all outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Dakin & Dakin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 972 of 2009
| MR DAKIN |
Applicant
And
| MS DAKIN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties separated in July 2008 after a 32 year marriage, and seek a determination of their property entitlements. The Wife lives in the former matrimonial home at [C]. The Husband tells the Court that he has no fixed address and moves from place to place. There are three adult children of the marriage. All three children gave evidence in support of the Wife, and have chosen to have nothing to do with the Husband for many years.
The significant issue for determination is how the parties’ contributions should be assessed, given the Wife’s history of full time employment, the Husband’s substantial periods out of the work force, the Wife’s domestic and child rearing contributions and the Wife’s allegations of the Husband’s abusive conduct towards her and the children during the marriage.
In final submissions, the Husband’s counsel, Mr Ward, submits that the Husband is entitled to 50% of the net asset pool by way of contributions and that there is no basis for a s.75(2) adjustment. The Wife’s counsel, Mr Battley, submits that the Wife is entitled to 80% of the net asset pool by way of contributions, with a small adjustment to the Husband under s.75(2).
The Husband is 60 and the Wife 52 years of age. The Husband migrated from Croatia in July 1970. The Husband describes himself as a casual self-employed [tradesman][1]. The Wife works full time [in the hospitality industry]. The parties married in April 1976 and separated in July 2008. Their three children, [X], aged 30 years, [Y], aged 27 years and [Z], aged 25 years are married, and live independently. [X] has completed a degree in [omitted] and works full time for an [omitted] company; [Z] has a [omitted] degree and works as an [omitted]; [Y] is a qualified [omitted] with her own business in [L].
[1] Financial Statement of Husband sworn 6 May 2009
Issues
The approach to the determination of an application under section 79 of the Family Law Act 1975 is well established by authority,[2] and in this case, involves consideration of these questions:
a)What were the assets, liabilities and financial resources of the parties and their values at the time of hearing?
b)What were the financial and non-financial contributions made directly or indirectly by or on behalf of each party to the acquisition, conservation or improvement of the property of the parties?
c)What was the contribution made by each party to the welfare of the family including contributions made in the capacity of homemaker or parent?
d)What is the effect, if any, of any proposed order upon the earning capacity of each party?
e)What matters referred to in sub-section 75(2) of the Act are relevant and what adjustment, if any, should be made as a result of these factors?
f)After consideration of these matters, is it just and equitable to make the actual orders?
What were the assets, liabilities and financial resources of the parties at the time of hearing and their values?
[2] In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595; Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
By the end of the hearing, there were no issues between the parties as to the identity or value of the assets held by each of them. The Husband agreed to transfer his interest in land held by him in Croatia to the Wife, and the parties agreed that this land had negligible value. The parties agreed to omit from the net asset pool the modest proceeds of their bank accounts and the credit card debts held by each of them, which have been incurred since separation.
In relation to liabilities, the Husband initially alleged that he had a substantial debt to his friends, Mr P and Ms P. In cross-examination, Mr P denied being owed any money by the Husband. The Husband adduces no evidence from Ms P. By the time of final submissions, the Husband accepted that there was no evidence to support the existence of this debt.
Neither party’s counsel made submissions on whether the court should follow a one or two list approach to the non-superannuation and superannuation assets. The majority of the Full Court in C & C[3] held there is no binding principle as to the exercise of the Court’s discretion in deciding which approach should be adopted. In this case, given the length of the marriage and the relatively modest asset pool, I have decided it is appropriate to adopt a one list approach. The Wife has the only superannuation entitlement with a value of $60,000.
[3] (2000) FLC 93-220
The total value of the net asset pool, including superannuation, available for division between the parties is $383,032.00, as itemised in the following table:
| Assets and liabilities at the date of hearing | $ |
| Property at Property C (Joint) | 400,000 |
| Property B, Croatia (H) | negligible |
| Motor Vehicle Laser (W) | 2,000 |
| Motor Vehicle Holden (H) | 1,000 |
| Furniture/household contents (W) | 4,000 |
| Furniture/household contents (H) | negligible |
| Tools (H) | 5,000 |
| [I] Shares (H) (1087 x 3.71) | 4,032 |
| Mortgage on Property C (Joint) | (80,000) |
| St George Personal loan (W) | (13,000) |
| Superannuation (W) | 60,000 |
| TOTAL NET POOL INCLUDING SUPERANNUATION | 383,032 |
Approach to the question of contributions
The Court must consider all the contributions, both financial and non-financial to the acquisition, conservation and improvement of the parties’ assets as well as to the welfare of the family before and after separation. The Court must consider the contributions in an overall sense[4]. The Full Court has held that it is not necessary for the Court to justify its decision in property cases by reference to precise mathematical calculations, but rather by a broad approach[5]. The Court is required to undertake an evaluation of each party’s respective contributions[6].
[4] Norman & Norman [2010] FamCAFC 66; Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143; Kowalski and Kowalski (1993) FLC 92-342; G & G [2000] FamCA 1075
[5] In the Marriage of Burke (1981) FLC 91-055
[6] JEL & DDF (2001) FLC 93,075
Neither counsel asked me to address the question of contributions on an asset by asset basis, and given the length of the marriage, I have adopted the global approach. In Norbis and Norbis[7], the High Court held that either approach is legitimate but also said:
… there is much to be said for the view that in most cases the global approach is the more convenient.
[7] (1986) 161 CLR 513
The authorities make clear that the Court is not required to separately assess matters occurring after separation in arriving at an assessment of contributions[8]. However, in the circumstances of this case, I have chosen to give separate consideration to the parties’ contributions both during cohabitation and during the period after separation, and then to assess each party’s contribution entitlement overall.
[8] Sippel & Sippel [2004] FamCA 201
The Husband’s conduct during the marriage
The Wife claims that the children left home when [Y] was 17 years and [Z] 15 years “as a result of the Husband’s abusive character and actions”. She describes the Husband as a selfish, lazy and violent man. The Wife says the Husband worked minimally during the marriage and said to her “you will work 3 jobs until you die.” He used to leave the house in the morning and return in the evening, expecting the home to be clean, and his dinner ready. He made little or no contribution to the care of the children or to domestic tasks. According to the Wife, despite her love for him, the Husband chose to exploit and abuse her rather than share his life with her and the children.
The Wife says that the Husband often physically beat her in front of the children, and she was scared of him. She says since the first week of her marriage “I’ve been bashed and pushed like a punching bag”, on one occasion so badly that she could not go to work for 2 weeks[9]. The Wife says the Husband drank daily and “this would fuel his violent temper”. She says the Husband would turn on the children, particularly [Z], if they tried to intervene. The Wife gives these other examples of the Husband’s conduct[10]:
[9] Affidavit of Wife affirmed 11 June 2010
[10] Affidavit of Wife affirmed 11 June 2010
a)Referring to her as “a Bosnian piece of shit” and “you fucking Bosnian bitch”.
b)Repeatedly striking her on the back with a walking stick.
c)Pulling her hair from the roots.
d)Punching her in the face.
e)Kicking her in the stomach and head while she was lying on the floor.
f)After the children left home, refusing to permit the Wife to refer to them.
g)Threatening to kill her if she left him.
h)Breaking doors, and kicking and punching holes in the gyprock walls of the home.
i)Throwing a glass fruit bowl at her.
For a period of 2 years until December 2010, the Wife had an Apprehended Violence Order against the Husband. The Order prohibited the Husband from approaching or contacting the Wife, or from living at the former matrimonial home. The Wife has since applied to extend the term of the Order.
The parties’ two adult daughters, [X] and [Y], gave affidavit evidence which was not challenged by the Husband. [X] deposed to leaving home at the age of 21 years “as a direct result of the Applicant’s unjustified physical and verbal abuse towards my mother, siblings and myself.”[11] Ms Dakin deposes as follows[12]:
My father was a very violent and abusive man particularly when he was drinking. Whilst I was living at the [C] house he would drink daily. I have noticed that my mother would refrain from speaking when my father was around. It was [sic]if she was not allowed to have a voice or an opinion when my father was around. If she did talk, my father would belittle her in front of us and argue with her. He would become violent and would hit her in front of us. My siblings and I would try and protect her, at which time, the Applicant would turn his anger towards us and would physically abuse us…
[11] Affidavit of [X] affirmed on 11 June 2010 at paragraph 4
[12] Affidavit of [X] affirmed on 11 June 2010 at paragraph 9
[X] recalls one occasion when she heard her mother screaming and ran outside the house to find her lying on the ground and her father standing above her, “stomping on her head”[13]. She deposes to repeated incidents of this kind during her childhood including her father threatening to kill the mother. She and her sister [Y] witnessed the father pull out knives from the kitchen in front of them, asking them to choose the knife he should use to kill their mother. [Y] describes an incident when she was 11 years old, when her father punched her mother through the car window in front of her and began pulling her hair.[14] She pleaded with her father to stop while he dragged the mother to the bedroom and kicked her a number of times in the head whilst she was lying on the floor crying. She recalls the bruising on her Mother’s face. She recalls on another occasion her father taking out a long piece of rope from his utility and saying to her “Come and see how I am going to hang your mother.”[15] [Z], now 25 years and an [occupation omitted], gave oral evidence at the hearing. He was an impressive witness. He told the Court that he left home at the age of 15 because “I was sick of seeing my father beat my mother and my sisters.”
[13] Affidavit of [X] affirmed on 11 June 2010 at paragraph 10
[14] Affidavit of [Y] affirmed on 11 June 2010 at paragraph 6
[15] Affidavit of [Y] affirmed on 11 June 2010 at paragraph 7
As already noted, the Husband did not challenge the evidence of any of his three children about his habitual violence towards them and the Wife during the marriage. However, in cross-examination the Husband vehemently denied all the allegations made against him by the Wife and his children, calling them “liars”.
I accept the Wife’s and the parties’ children’s version of the Husband’s conduct during the marriage for a number of reasons:
a)I found the Wife and the parties’ son [Z], genuine and truthful witnesses.
b)There was an Apprehended Violence Order made in favour of the Wife against the Husband at [L] Local Court. I find no basis to the Husband’s assertion that the Wife and the [C] Police conjured up false evidence to obtain the order against him.
c)The Husband admitted that he abused the Wife in 2003 during an argument.
d)The Husband angered easily during cross-examination. He repeatedly responded to questions with a quick “I don’t recall” without regard to what was being asked.
e)The Husband did not challenge his children’s detailed evidence as to their observations and experience of his abusive behaviour during the marriage.
A question arises as to whether my findings as to the Husband’s conduct can or should affect the contributions assessment of the parties. The leading authority is the decision in Kennon & Kennon (1997) FLC 92-757 where the Full Court held that if a course of violent conduct is established, it can be taken into account in property proceedings where it is demonstrated to have had a significantly adverse impact upon a party’s contributions to the marriage. In this case, the Wife would need to show that the Husband’s conduct towards her made her contributions harder than they would have otherwise been, or that there was some causal link between the domestic violence by the Husband and the Wife’s contributions[16].
[16] Strickland J in Spence & Spence [2008] FamCA 263
In the present case, as already noted, I am satisfied as to the relevant course of conduct by the Husband towards the Wife during the marriage. When I questioned counsel for the Wife as to the evidence in the Wife’s case that might establish that the Husband’s violent conduct had a discernable impact upon the Wife’s contributions, counsel could not do so. This causal link is a necessary pre-requisite to an adjustment in favour of the Wife. In the absence of such evidence, I make no adjustment by way of contributions in favour of the Wife as a result of the Husband’s violence towards her.
However, as a result of the Husband’s evidence of denial of any such abusive conduct, I find the Husband was prepared to lie on this issue and accordingly make an adverse finding on his credit.
Financial contributions during the marriage
There is no dispute that neither party had assets or liabilities of any significance when they started living together.
Employment. It is common ground that the Wife has been in full time employment throughout the marriage, with the exception of a period of a few months after the birth of each child. It is common ground that at times, the Wife worked in three jobs at the same time, during the day, as well as the evening and on weekends to make ends meet. The Wife does not adduce evidence of what she earned from her employment, but as her current net income is approximately $35,000, she has worked for the same employer for the last 21 years, and she is now a [occupation omitted], I am satisfied that her income from her current employer has been relatively modest.
The Husband adduces no evidence as to his employment history from the time of his marriage until 1985. The Wife says that the Husband was not working for the first 8.5 years of the marriage because he claimed to have suffered a back injury in a car accident in 1975, and was seeking compensation for his injuries. She says the Husband lost his claim for worker’s compensation and received $6,000 in or about 1986/7 from a 3rd party claim relating to the 1975 accident. As there was no substantial challenge to the Wife’s evidence on this issue, I accept it. The Husband claims to have worked in his own business as a [tradesman] from 1985-1996 but provides no verifying evidence of his income during that period. The Wife says that, with the exception of a period of approximately 12 months in or around 1984 when the Husband worked full time for [omitted], the Husband has only worked casually and intermittently and never for more than 1-2 days a week from 1985 until 1996. In the absence of any other evidence, and as a result of my earlier credit finding against the Husband, I prefer the Wife’s evidence on this issue.
On 6 June 1996 the Husband was involved in a motor vehicle accident. The Husband says that his injuries prevented him working until 1999 when he received a compensation payout. The Husband adduces no verifying evidence in relation to his compensation payment and I am therefore unable to make findings in relation to the precise amount awarded, or the components of the award. The Wife agrees that the Husband did not work at all between 1996 and 1999, but says the Husband did not suffer any injuries which affected his capacity for work. She says there was nothing wrong with the Husband, “it was all an act”, that the Husband never complained of any injuries, either physical or psychological, and was at all times ell able to look after himself. The Wife acknowledges giving false information to medical practitioners, on instructions from the Husband, for fear of being assaulted by the Husband if she refused. It is the Wife’s evidence that “He [the Husband] just didn’t want to work”. She says whenever he received any wages, he kept them for his own personal use, and did not contribute towards the mortgage repayments or household accounts.
I accept [X]’s evidence[17] that when she was a young adult, the Husband borrowed $6,000 from her to repair his utility, funds Ms Dakin had to borrow from the bank. The Husband has never repaid Ms Dakin and she gradually repaid the loan from her part-time earnings while at university.
[17] At paragraph 7 of affidavit of [X] affirmed 11 June 2010
In cross-examination in relation to his employment and income from employment after 1996, I found the Husband’s evidence contradictory and confused. On the one hand, he claims to have earned less than $3,000 a year after 1999[18], and to have made only minor financial contributions from his earnings after 1996, but on the other hand he claims to have earned, at times, $1,000 a week. He says that his ability to work depended on his health problems, which varied from time to time. In cross examination, the Husband often said “I can’t remember” or shrugged his shoulders, when asked questions about his employment history and his financial contributions, and appeared annoyed at being asked such questions. I was not assisted by the Husband’s affidavit evidence which I found seriously deficient on these issues. The Husband has not filed a taxation return since 1996. The Husband does not adduce any medical evidence in admissible form as to the impact of any medical condition he may have suffered as a result of the accident. Excluding the compensation payment, to which I will refer shortly, I am not satisfied that the Husband made more than minimal financial contributions as a result of his work as a [tradesman] after 1996.
[18] At paragraph 34 of Husband’s affidavit sworn 1 July 2010
Real estate. The parties purchased a property at [C] in June 1987 for $46,500. The Husband disputes the Wife’s claim that the parties borrowed $8,000 from the Wife’s parents for the purchase and says the parties met the deposit from their joint savings. Given the Husband’s poor recollection of financial matters, I accept the Wife’s evidence on this issue. However, given the length of the marriage, I give minimal weight to this contribution attributable to the Wife. It is common ground that the parties borrowed the balance of purchase funds from Westpac Bank and the loan was secured by way of mortgage. They later demolished the [C] house and built two separate houses on the land. They sold the front house and retained the one behind, in which the parties lived, and the Wife continues to live. The parties sold the second house in 1992/3 because, according to the Wife, she could not afford the mortgage repayments, which she alone was paying. On the basis of my findings as to the Husband’s income, I accept the Wife’s evidence that she met the household accounts and mortgage repayments from her income.
In December 1999, the Husband received compensation funds of approximately $196,000 net from his personal injury claim arising from his motor vehicle accident in 1996. In June 2000, the parties purchased an investment property at Property W, [W] for $175,000, and an additional cash payment of $30,000[19], using the Husband’s compensation funds. In July 2001, the Wife borrowed a further sum of $16,000 to build a granny flat at the [W] property.[20] The Wife says they installed a kitchen and did some painting, and in January 2003, sold the property for $340,000. The net sale proceeds of approximately $183,557.00 were deposited to the parties’ joint account[21]. In April 2003, the Husband withdrew $78,979 from the joint account without consultation with the Wife, and on the following day, the Wife withdrew $78,000 to match the Husband’s withdrawal, and a further $8,000 to purchase a motor vehicle for the parties’ son. The Husband does not explain how he applied the funds he withdrew from the joint account. The Wife’s unchallenged evidence is that she applied approximately half the funds to living expenses, $16,000 to discharge her personal loan to St George (borrowed to improve the [W] property), $3,250 to buy herself a car and $25,000 to meet expenses for the children. On the authority of the Full Court decision in Aleksovski v Aleksovski[22] approved by the Full Court in Keenahan[23], I find that the damages verdict arising from the Husband’s personal injury claim is a contribution by the Husband, and must be weighed and considered with every other contribution made by the parties.
[19] Exhibit 1 – St George Passbook Entry 17 May 2000 showing a withdrawal of $30,000
[20] Annexure A to Wife’s affidavit affirmed 11 June 2010
[21] Annexure B to Wife’s affidavit affirmed 11 June 2010
[22] (1996) FLC 92-705; 20 Fam LR 894
[23] [2004] FamCA 360
Other contribution issues. The Wife deposes to being involved in a motor vehicle accident in 2004/5 and in 2005, to the insurance company paying out $27,500 for the loss of the BMW car she was driving. It is common ground that those funds were retained by the Husband. The Husband deposes to the funds being applied to the costs of renovations on the [C] property. He provides no verifying evidence of such payments. I accept the Wife’s evidence that the Husband did not contribute the funds to the running of the household or to the mortgage repayments on the [C] home.
The Husband deposes to employing tradesmen to undertake renovations on the [C] property, prior to him leaving the home in July 2008. The Wife accepts that tradesmen attended the home over a few days. On the evidence available, I am unable to ascertain whether or not the Husband paid the tradesmen, and if so, the source of those funds. The Husband adduced no verifying evidence of any such payments, which were disputed by the Wife. The Husband sought to rely on a number of invoices, but none of them verified payment for work done in the relevant period.
Between 1 August 2008 and 31 October 2008, the Husband withdrew in excess of $34,000 from his personal account with the Commonwealth Bank[24]. The Husband was cross examined as to how he had applied the funds and gave no credible explanation. I can make no finding as to how the Husband applied the $34,000 he withdrew from his personal account during this period, but accept the Wife’s evidence that only minimal, if any funds were contributed towards the maintenance of the parties’ assets or for the benefit of the family.
[24] Annexure E to Wife’s affidavit affirmed 11 June 2010
Non-financial contributions during the marriage
Improvements to the properties. It is common ground that the Husband was involved in the building of the second home when the parties subdivided their land at [C], using his skills as a [tradesman] and connections in the building industry, and that the Wife also provided assistance. Neither is it in dispute that the Husband used his skills to make improvements to the investment property at [W] after he received the funds from his personal injuries claim.
The parties also agree that prior to their separation, the Husband did some concreting at the [C] home, arranged for tradesmen to do some painting, to clean roof tiles and to repair gyprock. The Wife disputes the Husband’s claim about the amount of work completed. She says that the tradesmen were at the home for no longer than 3 days and that the Husband left a “big mess” around the house for her to clean up. The Husband deposes to providing labour and personally incurring substantial costs for these improvements, but as already noted, adduces no verifying evidence of such payments.
On the available evidence, I am satisfied that the Husband did play a role in the building of the second home at [C], did undertake some improvements at the [W] property and was involved in the repairs/improvements to the [C] home shortly before separation. However, the Husband’s evidence is so vague as to the detail that I am unable to quantify the extent of these contributions.
Welfare of the family and maintenance of the home. The Wife and the parties’ daughters, [X] and [Y], all depose to the Wife taking sole responsibility for household tasks and the caring responsibilities for the parties’ three children. This evidence was largely unchallenged by the Husband. I accept their evidence that the Wife attended school functions, made arrangements for the children’s transport when she was at work, managed their medical needs, and met their necessary day to day expenses from her earnings. [X] recalls her father spending his days with his friends, watching television while drinking wine and beer when at home, and fighting with her mother. [Y] recalls her mother mowing the lawn, taking out the garbage, keeping the house in order, cooking, washing, ironing and also finding “time to be our mother.” According to [Y]’s unchallenged evidence, the father “waited for my mother to make him food and to clean the house after him.” The Wife deposes to maintaining the home throughout the marriage, and to taking almost sole responsibility for the care of the parties’ three children. The Wife says she did all the cooking, washing, ironing, and shopping for the family, whilst maintaining a full time job. She says “I have not been on a holiday for 21 years.” The Wife says the Husband had minimal involvement in the children’s care, leaving the home in the morning, and returning in the evening whether working or not. The Wife relied on babysitters and neighbours to care for the children while she worked. The Husband says that he provided transport for his eldest child to attend university, and to undertake work experience at [omitted]. I accept that he took a role in transporting [X] at those times.
However, I am satisfied that the Wife undertook the vast majority of household tasks, and the vast majority of the tasks involved in caring for the children until the children all left home 6-7 years prior to the parties’ separation. I also accept the unchallenged evidence of the Wife, and the parties’ two daughters, that the Wife continued to assist the children financially and emotionally after they left the home. The Husband does not claim to have had any involvement with the children after that time.
Financial and non-financial contributions after separation
The parties separated in July 2008. The Wife has continued to work full time since then and has continued to provide emotional and financial support to the children, though I make no finding as to the extent of those financial contributions. There is no dispute that the Wife has continued to maintain the home and to pay the household accounts and mortgage repayments on the [C] home from her employment income.
As already noted, the Husband adduced confused and contradictory evidence about his employment history and income, both during the marriage and after separation, but acknowledged that he had earned very little since 1999.
The Husband’s counsel submits that I should find that the Husband has been paying rent of $250 a week since separation, while the Wife has had the use of the former matrimonial home. I am not persuaded there is any basis in the evidence for such a finding. The Husband states in his Financial Statement sworn 6 May 2009 (the only Financial Statement he has filed) that he pays $200 a week in rent and the payment has been “deferred”. He does not adduce evidence of any loan to a landlord. In the absence of any other evidence as to the Husband’s living circumstances after separation, I make no adjustment in his favour by way of contributions as a result of the Wife retaining the use of the former matrimonial home.
I am satisfied that the Wife made the vast majority of the contributions, both financially and non-financially, after the parties’ separation, including accumulating additional superannuation as a result of her employment.
Assessment of contributions
The Husband’s counsel submits that the parties’ contributions should be assessed as equal, because of the length of the marriage, and because the marriage “was a partnership”. The Wife’s counsel submits that on an assessment of each party’s contributions, the Wife should receive 80% of the net assets. Counsel submits that if the Wife had been less diligent, there would have been significantly fewer assets available for distribution.
A long marriage does not, in itself, entitle a party to an equal share of the assets acquired during the marriage. The authorities make clear that the Court must evaluate each and every contribution of each party and assess the weight which should be given to each of those contributions. As already noted, as a result of the paucity of his evidence and the manner in which he gave his oral evidence in cross-examination, I have been unable to make precise findings about the Husband’s contributions by way of income. I accept that the Husband contributed approximately $196,000 in or about 1999 as a result of his personal injuries compensation. However, he has made few other direct financial contributions to the property of the parties, and limited non-financial contributions. When considered against the constant income stream provided by the Wife over 32 years, and her greatly superior non-financial contributions, I am satisfied that the Wife is entitled to a significantly greater percentage of the net asset pool by way of contributions. I have assessed the Wife’s contributions at 77% of the net asset pool.
What is the effect, if any, of any proposed order upon the earning capacity of each party?
This factor does not apply.
Section 75(2) factors
The Wife is 52 years and the Husband 60 years of age. Neither party has any dependents. The Wife is a [occupation omitted] and the Husband is a [occupation omitted].
In cross examination the Husband says that his health problems affect his capacity to work. However, the Husband adduces no medical evidence as to any health problems he may presently suffer or as to how any such problems might impact on his capacity to earn an income. He also deposes to presently quoting on different jobs, and that “the competition is extremely difficult at the moment.” He does not suggest his health is preventing him from working. The Husband tells the Court that he has not consulted any medical professionals, apart from his General Practitioner, since 1999 and requires no medication. In the absence of any medical evidence, I do not accept the Husband’s counsel’s submission that the Court should find, as a result of his presentation in the witness box, that the Husband “is labouring under difficulties”.
The Wife deposes to suffering from diabetes, high blood pressure, hypothyroid and bells palsy and to taking medication for these conditions. On 8 August 2009, the Wife was admitted to [L] Hospital after an episode of chest pain when minor coronary artery disease was diagnosed[25]. The Wife says that she finds her [omitted] job “strenuous and tiring” and does not believe she will be well enough to continue working in the longer term. However, the Wife adduces no medical evidence in relation to her health problems or as to how these problems might impact on her capacity to work in the future. I find no basis for an adjustment to either party as a result of health issues.
[25] Annexure G to Wife’s affidavit affirmed 11 June 2010
The Wife is living in the former matrimonial home at [C], where she has remained since separation. She is employed as a [omitted], where she has worked for the past 21 years. She earns a net income of $664 a week. The Wife has a superannuation entitlement of $60,000 and will continue to accumulate superannuation while she remains in the workforce. The Wife is meeting the mortgage repayments on the [C] home, the expenses on the home, as well as the repayments on her personal loan to St George Bank. I am satisfied the Wife lives a modest lifestyle.
The Husband claims to have no fixed place of abode and to be moving from place to place, but gave no credible evidence of his accommodation arrangements. I am unable to make any findings as to the Husband’s current income or expenditure. He says he had been earning less than $3,000 a year and receives no Centrelink benefits. His claim to be living on funds borrowed from the P family was not supported by the evidence. I have come to the conclusion that the Husband has chosen not to disclose to the Wife or to the Court, the truth about his current living or financial circumstances. As a result, I find no basis for an adjustment in favour of the Husband as a result of the Wife living in the former matrimonial home and the Wife’s ongoing receipt of income and superannuation.
Assessment of s.75(2) factors
The Husband’s counsel submits there should be no net adjustment on the basis of s.75(2) factors, given there are potential adjustments which could be made for each party. The Wife’s counsel submits that if the Court finds the Wife is entitled to 80% by way of contributions, then the Husband should be entitled to a small percentage adjustment under s.75(2) as a result of the difference in their resulting financial positions. This submission has no application given my assessment of the Wife’s percentage contribution entitlement.
On a weighing of the relevant factors to which I have referred under s.75(2), I have decided that there should be no adjustment to the parties’ contribution entitlements. This results in the net assets of the parties being divided as to 77% to the Wife and 23% to the Husband.
Is the result just and equitable?
Section 79(2) provides that:
The Court shall not make an Order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
The Court must be satisfied that the actual orders provide for a just and equitable distribution of the property of the parties.
The parties were married for 32 years. As already noted, I find the Wife has worked consistently throughout the marriage, at times in 3 different jobs, to make ends meet. I am satisfied that the Wife has undertaken the majority responsibility for the day to day care of the children and for the domestic tasks of the household. I find the Husband has contributed the proceeds of his compensation funds to the property of the parties, but has otherwise made limited direct financial contributions to the property of the parties. I find the Husband has made contributions to improvements on the parties’ properties at [C] and [W]. However, I find the Husband has chosen to limit his contributions without regard to the impact on the Wife, and that his self-indulgence has only been possible because of the Wife’s diligence, love for him and for the children, and commitment to hard work throughout the marriage and since.
The Wife seeks to retain the [C] home but adduces no evidence as to the limit of her capacity to borrow funds to enable her to do so. There is a present loan of $80,000 secured by way of mortgage on the home. If the Wife is to retain the home, she will be required to re-finance the loan, and to pay an amount to the Husband.
The net asset pool of the parties, including the Wife’s superannuation entitlement of $60,000, has a value of $383,032.00. If the Wife receives 77% of that pool, she will receive net assets with a value of $294,934.64, and the Husband will receive net assets with a value of $88,097.36 to receive his entitlement. Given the Husband already has assets with a value of $10,032, this result will require the Wife to pay the Husband an amount of $78,065.36.
If the Wife is unable to borrow the funds necessary to enable her to retain the [C] home, it will be sold. In the event, the home is sold, I have made an adjustment in relation to the assets, excluding the [C] home less the mortgage, to ensure that whatever the sale price of the home, each party will receive his/her respective entitlement. The Husband must receive 23% and the Wife 77% of the asset pool calculated by excluding the [C] home, less the mortgage. The Husband must also receive 23% and the Wife 77% of the net proceeds of sale of the [C] home.
The asset pool excluding the [C] home is $63,032. [$383,082 -$320,000]. 23% of that pool is $14,497.36. The Husband already has $10,032.00 in assets held by him. Therefore the Husband must receive $4,465.36 as well as 23% of the net proceeds of sale to receive his 23% overall. I have ordered accordingly.
The Husband will have assets and liabilities set out in the following table:
| Assets to be retained by Husband | $ |
| Holden motor vehicle | 1,000.00 |
| Tools of trade | 5,000.00 |
| [I] shares in his name | 4,032.00 |
| Payment from the Wife | $78,065.36 |
| TOTAL | 88,097.36 |
The Wife will have the assets and liabilities set out in the following table:
| Assets to be retained by Wife | $ |
| Property at Property C, [C] | 400,000.00 |
| Property in Croatia | Negligible |
| Home contents | 4,000.00 |
| Laser motor vehicle | 2,000.00 |
| Mortgage debt on [C] property | (80,000.00) |
| St George personal loan | (13,000.00) |
| Wife’s superannuation entitlement | 60,000.00 |
| Payment to Husband | ($78,065.36) |
| TOTAL | 294,934.64 |
I am satisfied that the orders set out at the beginning of these Reasons are just and equitable.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate:
Date: 8 March 2011
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