Danford and Danford
[2010] FamCA 420
•31 May 2010
FAMILY COURT OF AUSTRALIA
| DANFORD & DANFORD | [2010] FamCA 420 |
| FAMILY LAW – PROPERTY SETTLEMENT – weight to be given to damages award – weight to be given to husband’s residual disabilities – “waste” issues – just and equitable orders |
| Family Law Act 1975 (Cth) s 75(2) |
| Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143 Gollings and Scott (2007) FLC 93-319 Townsend and Townsend (1995) FLC 92-569 Williams v Williams (1985) FLC 91-628 Aleksovski and Aleksovski (1996) FLC 92-705 K and K [2004] FamCA 360 Robb and Robb (1995) FLC 92-555 |
| APPLICANT: | Ms Danford |
| RESPONDENT: | Mr Danford |
| FILE NUMBER: | SYC | 7443 | of | 2007 |
| DATE DELIVERED: | 31 May 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Rose |
| HEARING DATE: | 15-16 October 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | P Campton |
| SOLICITOR FOR THE APPLICANT: | Humphreys & Feather, Solicitors |
| COUNSEL FOR THE RESPONDENT: | R Schonell |
| SOLICITOR FOR THE RESPONDENT: | Fisher Nash Morgan, Solicitors and Notaries |
Orders
That the husband sign all documents and do all things necessary to transfer to the wife the whole of his right title and interest in the property situate at and known as N property described in Folio Identifier …/… (“the matrimonial home”) on or before 14 June 2010.
That the husband vacate the matrimonial home on or before 30 September 2010 or such other date as the parties may agree upon in writing whereupon the wife shall have exclusive occupancy of the matrimonial home.
That the parties shall be equally liable for the payment of all council rates, water rates, house/property insurance premiums, electricity, telephone expenses, and the reasonable maintenance and repair of the matrimonial home throughout the period that they jointly occupy it and upon the husband vacating the matrimonial home pursuant to Order 2 the wife shall be solely liable for all such expenses and outgoings.
That the husband transfer to the wife the whole of his interest in their joint bank accounts with Macquarie Investment Management Limited and Westpac Classic Account on or before 14 June 2010.
That the husband sign all documents to effect his resignation from all offices held by him in AD Pty Ltd and transfer to the wife his shareholding in that company and any loan account balance held to his credit on or before 14 June 2010 and the wife shall indemnify the husband in relation to any claim or demand made upon him arising from such shareholding or loan account.
That the husband on or before 14 June 2010 do all acts and things and sign all documents necessary so as to resign from any office held by him and transfer any shareholding held by him to the wife or her nominee in the company S Pty Ltd (ACN …) being the trustee for the AD Superannuation Fund and the wife shall indemnify the husband from any claim, action or liability arising from him holding office in or otherwise being a shareholder in the trustee company.
That the parties shall cause the trustee of the AD Superannuation Fund (“the Fund”) to be given written notice forthwith for the purpose of transferring to the husband or as he may in writing direct the whole of his entitlements in the Fund.
That on or before 14 June 2010 the wife do all acts and things necessary to transfer to the husband the Holden Berlina motor vehicle registration number ….
That on or before 14 June 2010 the husband do all acts and things necessary to transfer to the wife his interest in the Toyota motor vehicle registration number ….
That by consent the parties retain or transfer to the other as the case may be the items of personalty in accordance with Exhibit 13 a copy of which is annexed hereto.
Declare that the husband is the sole beneficial owner of all funds standing to his credit in the Bendigo Bank account number …94 and all other bank accounts and personal property of which he is designated the sole owner described in Exhibit 14 a copy of which is annexed hereto subject to other Orders made this day.
Declare that the wife is the sole beneficial owner of all items of personal property of which she is described as the sole owner described in Exhibit 14 a copy of which is annexed hereto subject to other Orders made this day.
That by consent in the event that either party refuses to execute any deed or instrument necessary to give effect to these Orders the Registrar of the Family Court of Australia be appointed pursuant to s 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity and operation to the deed or instrument upon being satisfied of such failure or neglect by way of affidavit evidence.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Danford & Danford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC7443 of 2007
| MS DANFORD |
Applicant
And
| MR DANFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings orders are sought by each of the parties for property settlement.
The applicant (who for convenience I shall refer to as “the wife”) had sought orders in accordance with her Application filed 26 October 2007. That application was subsequently amended unopposed by a Minute of Orders which became Exhibit 1.
The respondent (who for convenience I shall refer to as “the husband”) had sought orders in accordance with his response filed 14 December 2007. The response was subsequently amended unopposed by a Minute of Orders sought by him which became Exhibit 2.
The parties cohabited for approximately 24 years other than for a period of about three months in the latter half of 1997 when then had a brief separation.
Cohabitation commenced on 1 September 1982 and the final separation occurred on 21 September 2006 under the same roof which continues.
The parties were married in 1983 and such marriage subsists absent evidence to the contrary.
The wife was 57 years of age at trial and employed as a company director in the family company AD Pty Limited (“the company”).
The husband was 57 years of age at trial. He is unemployed.
The parties have lived separated under the same roof at N (“the matrimonial home”).
The parties have three children of their marriage:
(a)R, 22 years of age having been born in 1987 (“R”).
(b)B, 21 years of age having been born in 1988 (“B”).
(c)L, 20 years of age having been born in 1989 (“L”).
At the time of the trial the two youngest children continued to live with the parties in the matrimonial home. The eldest child lived in the United States of America.
The wife had two children of her prior relationship namely:
(a)U, 32 years of age having been born in 1978 (“U”).
(b)J, 29 years of age having been born in 1980 (“J”).
U and J lived with the parties and successively their children during the periods of cohabitation between the parties.
The husband suffered severe injuries in a motor vehicle accident which occurred on 10 September 1999.
In 2006 the husband received net damages in respect of those injuries in the sum of $1,441,941.16.
It was agreed that in relation to contributions by the parties the primary issue is the treatment of the damages received by the husband for his personal injuries and the weight to be given to any extra contributions made by the wife as a result of the husband’s incapacitation due to such injuries.
Apart from the issues of contributions and the implications of the husband’s ongoing health issues, the wife’s case raised an issue of “waste” alleged to have occurred as a result of the husband’s use of marijuana and money expended at brothels.
It was agreed that the company is the alter ego of the parties.
Historical Background
The following are further uncontroversial brief relevant matters.
On 1 December 1982 the parties jointly purchased a residential property at E (“the E property”) for about $100,000.00 funded at least in part by a mortgage advance of $60,000.00 and the balance from savings.
In February 1983 the parties in conjunction with Mr and Mrs A incorporated the company. They each became equal shareholders and the husband together with Mr A were appointed the directors. The wife and Mrs A were the company secretaries. The business conducted by the company to the present time has been the sale of furniture.
In January 1985 Mr and Mrs A sold their shares in the company to the parties for $30,000.00. The wife was appointed a director. Mr and Mrs A resigned from all offices held by them in the company.
In 1988 the parties established their own self-administered superannuation fund namely AD Superannuation Fund.
In 1992 the parties sold the E property. There is an absence of evidence of the gross and net sale proceeds.
In 1992 or 1993 the parties purchased the matrimonial home for either $250,000.00 in accordance with the affidavit evidence of the wife or $220,000.00 in accordance with the husband’s affidavit evidence. They applied the net proceeds of the sale of E property towards part payment of the purchase price and the balance was funded by a mortgage advance.
They subsequently demolished the house and built a new house at a cost of $120,000.00 or $150,000.00 funded by a loan. In 1994 and 1995 substantial improvements were made to the matrimonial home.
In September 1997 the parties separated. The husband ceased to live in the matrimonial home.
The parties reconciled at the end of December 1997 and resumed cohabitation until they finally separated on 21 September 2006.
On 10 September 1999 the husband was injured in a motor vehicle accident (“the accident”) and subsequently hospitalised for a period of approximately seven months.
In or about Easter 2000 the husband was discharged from hospital and resumed living in the matrimonial home. The husband thereafter commenced extensive rehabilitation and proceedings were instituted by him for damages for personal injury suffered by him in that accident.
In September 2001 the husband was admitted to Y Hospital Psychiatric Centre and he remained as a patient until discharge approximately 14 days later.
On 1 September 2002 the husband was admitted to the same psychiatric centre and remained a patient until his discharge on about 1 October 2002.
In 2006 the husband’s claim for damages was settled for $2,175,000.00 inclusive of costs.
On 11 September 2006 the husband received net damages of $1,441,941.16 (“the net damages”).
On 21 September 2006 the parties separated under the same roof.
In January 2009 the husband resigned as a director of the company.
On 31 July 2007 the wife caused the sum of $12,000.00 to be deposited into a Merrill Lynch account in the names of the five children (“the Merrill Lynch Account”) such account having been accumulated by the wife progressively from housekeeping money.
On 9 January 2008 a conciliation conference was scheduled for 3 April 2008. Directions were made including the preparation of expert reports.
On 18 March 2008 orders were made in relation to obtaining a report as to the value of the former matrimonial home.
On 12 June 2009 I made case management directions. Notations were made as follows:
A. The relevant company is the alter ego of the parties.
B.The parties through their legal representatives will conduct informal discovery.
C.In terms of contributions, the most significant issue is the treatment of damages received by the husband for his personal injuries and the weight to be given to any extra contributions carried out by the wife as a result of the husband’s injuries.
D.The most significant issues under s.75(2) of the Act are the husband’s health and the comparison of income and earning capacities of each of the parties.
E.It is agreed that [Mr G], Chartered Accountant is not required to update his Affidavit sworn on 8 July 2008.
F.The parties have a reasonable expectation that agreement will be reached in relation to the following:
(a)a single expert being an orthopaedic specialist for the purpose of preparing a report with regard to diagnosis, treatment and prognosis, and ongoing support for the husband given his residual disabilities;
(b)a suitable expert to identify and assess the ongoing costs of the husband having regard to life expectancies and appropriate discount tables pursuant to Notation F(a).
On 27 July 2009 I made directions for the filing and service of affidavits and fixed the trial for two days to commence at 10.00am 15 October 2009. The following notations were made:
A.That it is unlikely that the property of the parties will be the subject of any dispute.
B.That the principal issue in relation to contributions is the weight to be given to the damages for personal injury received by the husband.
C.That the remaining two Single Experts have been agreed upon, namely Dr. [D], occupational therapist and Dr. [H], orthopaedic specialist.
D.Counsel for the parties ensure that Case Outlines, Chronologies and Lists of Authorities are lodged with the Associate to Justice Rose by email by 5pm 13 October 2009 and served simultaneously.
Relevant legal prinicples
It is now well established that generally speaking the approach to be taken to determination of property settlement proceedings, concluding with an order that is “just and equitable” represents four steps.
The first of which is that the Court should determine the property and financial resources of the parties at the date of the hearing.
Secondly, determine the nature and extent of the respective contributions made by each of the parties whether financial or non financial, including contribution to the welfare of family in the role of home-maker and parent.
Thirdly, determine and assess the relevant matters pursuant to s 75(2).
Fourthly, consideration of orders, if any, that should be made that are just and equitable.[1]
[1] Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143
I will now proceed to make findings in relation to the property of the parties, their respective financial and non-financial contributions and relevant matters (if any) pursuant to s 75(2) of the Act. In addition, I will make findings in respect of the issue of “waste” raised by the applicant.
Property of the parties
Exhibit 14 is the agreed updated balance sheet in which the net property of the parties and superannuation entitlements are set out reproduced as follows:
| AGREED UPDATED BALANCE SHEET | Name: | [Danford] | ||||||
| File No: | SYC7443/2007 | |||||||
| Date: | 15.10.09 | Sydney | ||||||
| Before: | Justice Rose | |||||||
| Owner-ship | Description | Wife’s Value | Husband’s Value | Requires Expert Evidence | ||||
| Assets | ||||||||
| 1 | Joint | [matrimonial home] | $990,000.00 | $990,000.00 | ||||
| 2 | Joint | Bank account with Macquarie Investment Management Ltd | $1,762.00 | $1,762.00 | ||||
| 3 | Joint | Westpac Classic Account | $518.00 | $518.00 | ||||
| 4. | Joint | Household Contents | 00 | 00 | ||||
| 5. | Joint | Shareholding – [AD] Pty Ltd | $2,000.001 | $2,000.00 | ||||
| 6. | Wife | […] Tabcorp shares | $846.00 | $846.00 | ||||
| 7. | Wife | Jewellery | $1,300.00 | $1,300.00 | ||||
| 8. | Husband | Bank accounts | $41,018.00 | $41,018.00 | ||||
| 9. | Husband | Bendigo Bank account no. […]94 | $1,252,286.00 | $1,252,286.00 | ||||
| 10. | Wife | 1991 Toyota utility | $1,700.00 | $1,700.00 | ||||
| 11. | Husband | 2000 Holden Berlina | $5,000.00 | $5,000.00 | ||||
| 12. | Joint | Shareholding [S] P/L | $0.00 | $0.00 | ||||
| 13. | Wife | Loan account [AD] Pty Ltd | $49,113.002 | $49,113.003 | ||||
| 14. | Husband | […] Tabcorp shares | $846.00 | $846.00 | ||||
| 15. | Husband | 2009 taxation refund | $10,642.00 | $10,642.00 | ||||
| Total | $2,357,031.00 | $2,357,031.00 | ||||||
| Addbacks | ||||||||
| Owner-ship | Description | Wife’s Value | Husband’s Value | Requires Expert Advice | ||||
| 1. | Husband | Paid legal fees, valuation fees and other disbursements | $109,763.00 | $109,763.00 | ||||
| 2. | Wife | Paid legal fees | $81,081.00 | $81,081.00 | ||||
| 3. | Husband | Monies wasted on prostitutes | TBA | $0.00 | Subject to the evidence | |||
| 4. | Wife | Funds paid to [U] from February 2004 to date | 0 | $77,400.00 | ||||
| 5 | Wife | Funds received from [AD] Pty Ltd | 0 | $13,685.004 | ||||
| Total | $190,844.00 | $281,929.00 | ||||||
| Liabilities | ||||||||
| Owner-ship | Description | Wife’s Value | Husband’s Value | Requires Expert Advice | ||||
| 1. | Wife | Paid legal fees | $64,000.00 5 | $64,000.00 | ||||
| 2. | Joint | Loan account payable to [AD] Pty Ltd | $28,134.00 6 | $28,134.00 | ||||
| Total | $92,134.00 | $92,134.00 | ||||||
| Superannuation | ||||||||
| Member | Fund & Interest | Wife’s Value | Husband’s Value | Requires Expert Advice | ||||
| 1. | Wife | [AD] Superannuation Fund | $258,266.29 | $258,266.29 | No | |||
| 2. | Husband | [AD] Superannuation Fund | $296,250.35 | $296,250.35 | No | |||
| Total | $554,516.64 | $554,516.64 | ||||||
| Net property | Wife | Husband | ||||||
| Assets | $2,547,875.00 | $2,638,960.00 | ||||||
| Liabilities | $92,134.00 | $92,134.00 | ||||||
| $2,455,741.00 | $2,546,826.00 | |||||||
| Superannuation | $554,516.64 | $554,516.64 | ||||||
| Net Property & Superannuation | $3,010,257.64 | $3,101,342.64 | ||||||
| 1. | Report of single forensic Accountant [Mr G] | |||||||
| 2. | Exhibit 11 | |||||||
| 3. | Report of single forensic Accountant [Mr G] | |||||||
| 4. | The wife owes the company on her loan account $28,134 (see item 2 in Liabilities). According to her affidavit sworn 15 October 2009 she has paid from the company $14,448.60.Difference is funds wife has had the benefit of namely $13,685. | |||||||
| 5. | 5Borrowed from son [U] to pay the Wife’s prior Solicitor Judith Kain. [U] drew the sum of $64,000.00 from his mortgage loan to lend this to the Wife. | |||||||
| 6. | Exhibit 11 | |||||||
Exhibit 14 – Add-backs
The following items are matters of controversy arising under this description as set out in Exhibit 14. My findings in relation to such items are as follows.
Items 1 and 2 reflect paid legal fees for each of the parties.
No submissions were made by counsel to the effect that the relevant amounts of $114,266.00 and $81,081.04 were paid on behalf of the husband and wife respectively should not be included as an add-back for the purpose of arriving at the net property of the parties. The approach taken by counsel is consistent with well established authority that as a general proposition paid legal fees and disbursements should be added-back in order to arrive at the net property of the parties in property settlement proceedings. Consequently, that is the approach that I will take in this matter.
Item 3 - husband “monies wasted on prostitutes”
The evidence in relation to this matter is that exclusively given by the husband. Whilst the wife in her affidavit sworn 16 July 2009 referred to the husband having taken holidays in the Philippines and queried the cost involved, such evidence was irrelevant to this particular matter.
During the course of his oral evidence the husband denied having spent about $450.00 per week at brothels since the receipt of his damages award. His evidence was that he had spent some of it albeit not weekly and it amounted to about $6,000.00 in the past three years.
The husband subsequently gave evidence that since about September 2006 he had spent about $20,000.00 at “different massage places” including locations as E, O and R as well as “a couple of other locations”. He claimed that the massage was for his disabilities and not a form of treatment. He emphasised that the money so spent was not on brothels.
I accept the evidence of the husband which I consider to be plausible in the absence of any counter-veiling evidence. Accordingly, I find that for the period 2006 to 2009 he had spent about $6,000.00 at brothels and during the same period approximately $20,000.00 for massage services.
It was submitted on behalf of the wife that the expenditure by the husband for the purposes to which I have referred was unreasonable as the money so expended would otherwise have formed part of family funds.
Counsel for the husband submitted that the money so spent by the husband came from income and not capital. He further submitted that as “a general principle” people are free to spend their income. That submission was made in the context of interest earned on the capital represented by the damages received by the husband to which earlier reference has been made. It was further submitted that he had preserved the capital and consequently should be able to spend the interest income and that such expenditure was reasonable in all the circumstances.
In Gollings and Scott the Full Court held that:
As a general rule once the parties have separated, subject to obligations of maintenance and support, and subject to the kinds of considerations described in Kowali (1981) FLC 91-092 relating to waste, each party is entitled to get on with his or her life independent of the other.[2]
[2] Gollings and Scott (2007) FLC 93-319 at paragraph 68
The Full Court held that the husband in that case was free to spend money earned post separation “in the furtherance of his relationship” with a particular female friend.
The Full Court further stated “it would not normally be appropriate some years after separation to require each of the parties to account for any monies they had spent post separation so as to determine whether or not that expenditure was reasonably necessary for their own self-support and to the extent that it was not, to determine whether it would be proper to add it back into the pool of assets available for division between the parties”[3].
[3] Ibid
Generally, speaking post separation the husband has met his obligations to the wife and in particular their children for their support, although the parties had disagreements. The expenditure to which I have earlier referred was derived from income. There is no evidence to the contrary. Consequently, I accept the submissions made by counsel for the husband relying upon the dicta in Gollings and Scott to the effect that the subject amounts should not be added-back into the description and calculation of the net property of the parties for the purpose of these proceedings.
However, the lifestyle of each of the parties will be relevant pursuant to s 75(2) and I will make reference to it including the weight, if any, that should be given.
Monies provided to others by way of gift or beneficially held for husband
This matter arose during the hearing and in submissions. The submissions made by counsel for the wife did not specify or give an approximate amount or the subject of this item. Inferentially, this matter arises for consideration due to the evidence of the husband of having provided financial support to a Filipino rural company. The husband’s evidence was that this was a company “to alleviate poverty” and that he had provided $500.00 in 2008 and $1,000.00 in 2009. Upon being further pressed the husband stated that he has not provided more than $10,000.00. Unfortunately, the evidence does not state in precise or approximate terms the amount that he has actually provided other than the annual amounts to which I have referred.
The fact that the husband has not provided an amount greater than $10,000.00 is of little assistance. It would have been more helpful if the husband had been pressed to provide a range of amounts. However, he was not cross-examined along those lines.
There is also evidence of the husband having provided funds to one or more of the children. The evidence does not allow me to make a determination that such money provided by the husband in those circumstances represented reckless or irresponsible financial behaviour. Consequently, for that reason as well as the lack of further evidence, I find that the husband has not been financially irresponsible.
Accordingly, I do not accept that this item should represent an add-back for the purpose of calculation of the net property of the parties.
Item 4 - funds paid to U from February 2004 to date - $77,400.00
The wife’s unchallenged evidence is that since about October 2004 she has made payments of $200.00 per week for a period of about ten or twelve weeks and thereafter increased to $300.00 per week to U’s bank account in order to assist him in meeting mortgage instalments in relation to the home unit registered in his name.
The further unchallenged evidence of the wife is that by agreement between U and R, R has in effect a beneficial interest in the unit and it is arguable that one or more of the other children also have such an interest, although in each instance the extent of such interest is not specified in the evidence.
Whilst the thrust of the cross-examination of the wife seemed to suggest that the money so paid by the wife should be an “add-back” nonetheless this particular item was not the subject of submissions by counsel following the conclusion of all of the evidence in the proceedings.
I accept the evidence of the wife as I was impressed by her as a truthful witness and her evidence was plausible. In the absence of submissions and, in particular, that an issue was raised regarding the wife’s payments as being reckless or financially irresponsible, I find that in all circumstances the funds provided by the wife could not be categorised in that fashion. Consequently, this particular item will not be an add-back for the purpose of ultimate calculation of the net property of the parties.
Funds received from the company - $13,685.00
Wife’s debit loan account with the company
As is apparent from Note 4 referred to on page 7 of this Judgment, the issue raised is that the wife has had the benefit of $13,685.00 and implicitly this should be an add-back on the basis described in Townsend and Townsend[4] and similar judgments. I will not include this item as an add-back as there is an absence of evidence, either direct or from which it can be inferred, that the wife has expended the relevant amount in a manner which was financially reckless or irresponsible. Indeed, I accept all of the evidence of the wife that she has applied funds at her disposal from time to time solely for the benefit of the parties, herself individually in a reasonable way, as well as for the children.
[4] Townsend and Townsend (1995) FLC 92-569
Counsel for the husband submitted that I should not take the loan account into account due to the lack of explanation by the wife to reflect the expenditure notwithstanding her Affidavit sworn 15 October 2009.
I accept the wife’s evidence. The wife’s abovementioned affidavit was both detailed and plausible. There is no other evidence either directly or from which I could infer that the material set forth by the wife in that affidavit was anything other than reliable both in description and purpose. Consequently, I accept the wife’s evidence and make findings accordingly.
Revised property of the parties
Consistent with my conclusions set forth in paragraphs 48 to 72 I will vary the content of Exhibit 14 for the purpose of arriving at a different determination in relation to the net property of the parties.
Accordingly, I find that the net property of the parties and the value of their superannuation entitlements are as follows:
Ownership Description Value Assets 1 Joint Matrimonial home $990,000.00 2 Joint Bank account with Macquarie Investment Management Ltd $1,762.00 3 Joint Westpac Classic Account $518.00 4. Joint Household Contents 00 5. Joint Shareholding - AD Pty Ltd $2,000.00 6. Wife Tabcorp shares $846.00 7. Wife Jewellery $1,300.00 8. Husband Bank accounts $41,018.00 9. Husband Bendigo Bank account no. …94 $1,252,286.00 10. Wife 1991 Toyota utility $1,700.00 11. Husband 2000 Holden Berlina $5,000.00 12. Joint Shareholding S P/L $0.00 13. Wife Loan account AD Pty Ltd $49,113.00 14. Husband Tabcorp shares $846.00 15. Husband 2009 taxation refund $10,642.00 Total $2,357,031.00 Add-backs 1. Husband Paid legal fees, valuation fees and other disbursements $109,763.00 2. Wife Paid legal fees $81,081.00 3. Husband Monies wasted on prostitutes 0 4. Wife Funds paid to U from February 2004 to date 0 5 Wife Funds received from AD Pty Ltd 0 Total $190,844.00 Liabilities 1. Wife Paid legal fees $64,000.00 2. Joint Loan account payable to AD Pty Ltd $28,134.00 Total $92,134.00 Superannuation Member Fund & Interest 1. Wife AD Superannuation Fund $258,266.29 2. Husband AD Superannuation Fund $296,250.35 Total $554,516.64 Net property Assets $2,547,875.00 Liabilities $92,134.00 $2,455,741.00 Superannuation $554,516.64 Net property & Superannuation $3,010,257.64
Contributions of the parties
I make the following findings in relation to the financial contributions of each of the parties and their contributions to the welfare of the family in the role of homemaker and parent.
The wife
The wife contends that her initial financial contributions at commencement of cohabitation included savings of “exactly $50,000.00” which she kept in different parts of the home. Her further evidence is that initially she had $70,000.00 to $75,000.00 representing a property settlement with her former husband.
The husband denies the evidence of the wife regarding her initial financial contributions and stated that she informed him that she had $20,000.00.
I accept the evidence of the wife particularly having regard to the detailed oral evidence that she gave which was not shaken. Accordingly, I am satisfied on the balance of probabilities that the wife’s savings were $50,000.00. I accept the submissions made by counsel for the husband that whether the savings were $50,000.00 or $20,000.00 “the difference is de minimis” in that the weight likely to be attracted will not alter given the length of cohabitation and all other relevant considerations.
During the period of cohabitation between the parties the wife made financial contributions as set out in the following paragraphs.
For a period of about six months until 19 February 1986 the wife was engaged in part-time employment. I accept her evidence that her earnings were applied by her for the benefit of the parties.
In addition, the wife was one of two secretaries of the company and was appointed a director as from January 1985. I accept her evidence that she performed administration work as well as some sales duties.
Following the husband’s severe injuries received in the accident which resulted in him being hospitalised for about seven months with severe injuries ultimately requiring a limb to be amputated, the wife’s direct and indirect financial contributions as well as her contribution in the role of homemaker and parent significantly increased.
I accept the wife’s evidence in respect of which there was little, if any, challenge that since the accident to the date of the hearing she has had the primary conduct of the business activities of the company. That has included daily attendance at the company’s premises for the purpose of ensuring that the day to day activities of the company were supervised, participation with the husband in the conduct of negotiations and subsequent agreement with a new manufacturer of furniture, negotiating and completing purchases of secondhand furniture from private sellers, renegotiating agreement with a company for manufacture and supply of new furniture and overseeing change to the company’s direction of its affairs in relation to increased purchases and sales of second hand furniture with less of a focus on new furniture.
For several years the wife has worked seven days per week at the company’s premises, subject to her parental care and assistance for one or more of the children.
The wife also accompanied the husband to medical appointments and appointments with legal representatives including providing the latter with instructions and documents from time to time in relation to claims for workers compensation and damages for personal injuries suffered in the accident. In that regard, I accept that the husband at times attended to appointments with medical practitioners and others in the health profession as well as with lawyers on his own.
In 2006 and 2007, the wife received bequests from her late mother’s estate in the amounts of $38,793.15 and $20,330.17 respectively totalling $59,123.15 which she lent to the company for working capital.
At the time of the accident the three children of the marriage were aged 12, 11 and 9 years respectively. The wife thereafter solely attended to their daily care and upbringing as well as attendances at sport and extra curricular activities without the assistance of the husband due to his hospitalisation and then subsequently the residual disabilities from which he has suffered.
In addition, the wife has provided substantial care of the husband in a number of ways including assisting him with a full range of his daily needs, regular massage and enabling him to continue to participate in family and social activities including taking him to watch L play soccer and to see and mix with family and friends apart from having regular at times daily discussions with him to keep him informed as well as to enable him to provide input into the ongoing business activities of the company.
Subsequent to the separation of the parties the wife has continued her financial contributions in terms of her pivotal role in the ongoing conduct of the business of the company as well as the contribution as a homemaker and parent due to carrying out of a variety of domestic work for the benefit of the two youngest children in particular.
In addition, for an unspecified period the wife has been paying $300.00 per week on behalf U and R and arguably all five children towards meeting the mortgage instalments on a unit of which U is the sole registered proprietor. I accept the wife’s evidence that he holds that interest also on behalf of himself, R and perhaps the other three children and that the reason for the unit being registered solely in his name was to enable him to obtain a favourable finance facility which would not otherwise have been available.
At about the end of July or beginning August 2001 the wife deposited $12,000.00 into a Merrill Lynch account in the name of the five children being an amount which she had been gradually accumulating in cash in the home.
The husband
I find that the husband made the following initial financial contributions at the commencement of cohabitation between the parties:
(a)Bank deposits - $30,000.00
(b)Furniture - stock value $10,000.00
(c)Furniture Suppliers Pty Ltd - stock value $10,000.00
(d)1980 Datsun 200B motor vehicle - $5,000.00.
There was little, if any, challenge to the husband’s evidence in that regard.
The husband made the following financial and non-financial contributions including contribution to the welfare of the family in the role of homemaker and parent during the period of cohabitation and since.
The husband made financial contributions in a number of different ways.
On 1 February 1983 he established a partnership on equal terms with Mr A known as “A & D Partnership” conducting the business in the furniture industry. Shortly thereafter the company was incorporated and it essentially took over the partnership business which implicitly was dissolved.
On 24 January 1985 the parties purchased Mr A’s shares in the company for $30,000.00 fully financed by bank loan.
Thereafter, the husband continued as before in managing all aspects of the company’s business including delivery and installation of furniture, general service work and training of employees. There is no issue that the husband worked hard in the business of the company which saw turnover progressively increasing on a significant basis from 1983 to 1999.
The husband continued to be involved in the ongoing business activities of the company following his discharge from hospital as is made clear by the wife’s evidence in relation to her, at times, daily discussions with the husband in relation to business matters and joint decision making in that regard that took place from time to time, albeit with some disagreement between them.
In 1983 the parties purchased the E property for $100,000.00 funded in part by a bank loan of $60,000.00 and the balance of the purchase price met from savings.
The husband together with the wife made further financial contributions in relation to the acquisition of real estate. In 1992 they jointly purchased the former matrimonial home. A new house was constructed on the land funded by a loan of $120,000.00. In the subsequent two years the parties carried out further development and renovation including landscaping, fencing, swimming pool and spa installation. There is an absence of evidence in relation to the cost of those works and the manner in which the works were financed.
In 1997 the husband received a gift from his mother of $20,000.00 and for the period 2001 to 2006 he received further gifts totalling $25,000.00. He retained $5,000.00 of that amount for his own use and the balance was deposited into the parties’ joint bank account.
There is scant evidence, if any, of the husband in relation to a contribution made to the welfare of the family in the role of homemaker and parent, apart from the purchase of a motor vehicle for L. However, I accept the evidence of the wife that the husband did make a contribution represented by caring for and attending to the two eldest children whilst the wife was part-time employed prior to the birth of the first child of the marriage and subsequently also attended to the children after school.
Subsequent to the separation of the parties the husband has continued to make a financial contribution by meeting various outgoings in relation to the former matrimonial home and certain of the living expenses associated with one or more of the children living in the home.
The husband made further financial contributions represented by workers compensation payments received by him during the period of his recuperation following the accident and prior to the settlement of his damages claim.
On 11 September 2006 the husband received net damages of $1,441,941.16. He has retained such funds in bank deposits solely in his name and from time to time utilised either part of the capital and/or interest to meeting household outgoings, his personal needs and purchase of the motor vehicle to which I have made earlier reference.
Assessment of contributions
An important issue in these proceedings is whether or not the damages received by the husband represent a sole contribution by him or a joint contribution of the parties.
Whilst not directly on point, the issue of treatment of an award of damages received by a party fell for consideration by the High Court in Williams v Williams[5] the Court held that:
When the property available for division between the parties represents an award of damages for pain, suffering and loss of amenity, it may be relevant, in some situations, to have regard to the circumstances relating to that award, but there is no general presumption that the award should be left out of account in determining what order should be made under s 79 of the Family Law Act 1975 (Cth).[6]
[5] Williams v Williams (1985) FLC 91-628
[6] ibid at 80,093
The majority judgment in Aleksovski and Aleksovski held that:
In our opinion, in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution that each of the parties make to the relationship, must be weighed and considered at the same time.[7]
[7] Aleksovski and Aleksovski (1996) FLC 92-705 at 83,437
The third member of the Full Court, Kay J did not disagree with the statement by the majority.
A further and subsequent relevant Full Court judgment is that given in K & K.[8]
[8] K and K [2004] FamCA 360
Briefly, the relevant facts were that the parties cohabited for a period of approximately 18½ years during which time they had two children. Approximately five years prior to separation the husband was severely injured in an industrial accident as a result of which he became a paraplegic. On appeal damages were compromised for an amount of $3,900,000.00.
The trial Judge found that the net property was $3.2 million and made orders for property settlement whereby the wife was to receive $500,000.00. The wife appealed. The majority judgment allowed the appeal on the bases that the trial Judge was unduly influenced by considerations of what the wife would have received if her property application was finalised before the husband’s damages claim was resolved and also erred in failing to assess the wife’s contributions to the whole of the husband’s damages award. The majority further concluded that the errors to which I have referred resulted in the wife’s contribution being “seriously devalued”. The majority then proceeded to re-exercise discretion. In doing so, it had regard to the contributions made by the wife to the welfare of the family including contribution in an environment in which the husband engaged in difficult behaviour. The majority concluded that the wife’s contributions should be assessed by recognition of an entitlement of $700,000.00.
The majority referred to the majority judgment in Aleksovski to which I have made reference and did not express any disagreement with it. Curiously, despite concluding that the trial Judge had erred in “failing to assess the wife’s contribution to the whole of the husband’s damages award” it also proceeded to take the same approach in that it did not provide any assessment of that particular contribution of the wife, although the facts were incontrovertible. Indeed, in view of the majority not disagreeing with that part of the Full Court’s judgment in Aleksovski it is difficult to see the legal basis upon which it could have made such an assessment. Instead, it assessed the wife’s contributions on a different basis, to which I have earlier referred.
The dissenting judgment in K & K given by Finn J, whilst expressing concern regarding the possible appellable error made by the trial Judge concluded that the appeal should be dismissed as his decision was reasonably open to him.
I will follow the majority Judgment in Aleksovski as I consider that it binds me given that the Full Court has not subsequently distinguished it or declined to follow it, although it is arguable that the majority in K & K was taking such a course. However, I consider that the better view is that the majority were not taking such a course as to have done so would have meant a consideration of stare decisis principles which are not alluded to, let alone applied, in its judgment.
I have assessed the contributions of the parties in favour of the husband to the extent of 55% of their net property referred to in paragraph 73, excluding superannuation for the following reasons.
I find that the contributions, whether financial or non-financial, including that of homemaker and parent carried out by each of the parties to be equal to the date of the accident. That is consistent with counsel’s conduct of the case and their helpful submissions. I emphasise that so far as the contribution that each of the parties made in the role of homemaker and parent, not given any weight to the wife’s contributions in that regard so far as U and J are concerned (being the two children of the wife’s former marriage) in accordance with the Full Court’s judgment in Robb and Robb.[9] That approach applies to the wife’s contributions whether prior or subsequent to the separation of the parties. On the other hand, I have given weight to the contributions made by the husband to the two children represented by his financial contributions to their support given the absence of any child support paid by their biological father.
[9] Robb and Robb (1995) FLC 92-555
The financial contribution made by the husband of the net damages received by him constitute the major asset of the parties. The husband’s financial contribution in that regard is in accordance with Aleksovski[10] as referred to earlier in this Judgment. The net damages have been largely preserved by the husband. There is no evidence of the components of the calculation of the net damages which is not surprising given that the damages claim was compromised. To that extent, the evidence is different to that in many other cases in which the heads of damage are able to be the subject of evidence with consequential weight that might be attached to one or more of them in property settlement proceedings.
[10] Aleksovski, supra
The husband continued to make financial contributions subsequent to the accident represented by the income derived from interest accrued on the net damages and the utilisation of it from time to time for the benefit of the parties and their three children. The husband also continued to participate with the wife in relation to the conduct of the company’s business. The husband made a further contribution in the role of homemaker and parent albeit very limited due to his injuries and the residual disabilities from which he has suffered.
However, the husband’s contributions subsequent to the accident represented largely by the damages must be balanced against the weight to be given by the wife’s financial contributions and her contribution in the role of homemaker and parent in the intervening years.
The wife’s contributions taken as a whole, subsequent to the accident, have required a Herculean effort. At the time of the accident the three children of the marriage were 12, 11 and 9 years respectively. The three children continued to live with the parties until they attained the age of 18 years and subsequent to completion of their secondary education.
Throughout each day of the week the wife was fully occupied being engaged in the sole daily management of the company and its business, management of household and family expenses as well as carrying the full responsibility for the supervision of the three children, their schooling and extra-curricular activities. In addition, the wife performed domestic work for the benefit of the three children and that of the husband and herself up to the point of separation.
Further, the wife also devoted herself to the care of and attention to the husband necessitated as a result of his substantial residual disabilities and emotional state, assistance and liaison provided in relation to his medical appointments and with his lawyers in relation to his claims for workers compensation and damages for personal injuries. I have accepted the wife’s evidence more fully set out in relation to her contributions in her primary Affidavit sworn 16 July 2009, in particular paragraphs 14 to 23; 32 to 36; 38 and 39; 41 to 43; 45 to 48; and 55. The wife also made financial contributions by the use of bequests she received as earlier referred to in this Judgment.
However, as is apparent, I have concluded that the weight to be given to the husband’s financial contribution represented by the net damages, the preservation of most of it and the income accrued exceeds the weight given to the wife’s contributions post accident.
I assess the contributions that the parties have made to their superannuation entitlements as being equal. Each of the parties made contributions in their respective spheres to the best of their ability. No submission to the contrary was made.
Accordingly, in following the majority judgment in Aleksovski, I find that the wife did not make a contribution to the husband’s damages award.
Relevant matters pursuant to s 75(2)
I make the following findings in relation to relevant matters that arise pursuant to the provisions of s 75(2).
Each of the parties was 57 years of age at the time of the hearing. Absent evidence to the contrary, I infer that the wife is in good health.
The husband’s health is poor. The unchallenged expert evidence in relation to the husband’s health issues and medical history is contained in the reports dated 20 August 2009 of Dr H orthopaedic surgeon and 3 October 2009 of Mr D which are Exhibits 5 and 6 respectively.
The injuries suffered by the husband in the accident were severe and he has had and continues to have substantial residual disabilities.
In Exhibit 5 it was reported that following the accident and upon being hospitalised the husband was noted to have:
· A comminuted fracture of his distal right femur above the knee;
· A fracture of his distal right tibia and fibula;
· A fracture dislocation of his right talus;
· A comminuted fracture of his left patella and significant injuries to both his cruciate ligaments and other soft tissue structures around his left knee;
· A fracture of his “right clavicle” (but probably a fracture of his right scapula);
· He had multiple rib fractures with a right-sided haemo-pneumothorax and multiple soft tissue injuries including at and around his left-leg and probably an associated fracture of his left-ankle (from his recollection); and
· There was an open wound in his left leg below the knee.
Ultimately the husband suffered an amputation. He underwent extensive rehabilitation and he required anti-depressants due to depression.
Home modifications and equipment were provided. The husband “had a lot of problems with standing and walking tolerance, limiting any capacity to get back to work”. Dr H noted that the husband has had a principal ongoing complaint of left knee pain with a history of psychological problems involving hospital admissions for two weeks and a four week period in September 2001 and September 2002 respectively. The husband “experimented with marijuana and other drugs and he has had two cycled visits through the Royal North Shore Pain Management Clinic in 2003 and then again in 2004 in an effort to try and assist him with the pain moderation which he was experiencing”. Further surgery took place in 2002. Rehabilitation followed although apparently it was not very effective so far as the pain that the husband was experiencing in the left lower limb.
Exhibit 5 further noted that the husband’s “principal complaint is of pain around his left knee, combined with some dysaesthesia in the left lower leg and foot”. The husband has restricted mobility in both knees.
Exhibit 5 contains a summary of the husband’s health issues by way of “opinion and advice on care”. A summary of his history is given as:
As a result of a significant motor vehicle accident in which he was injured at work on 10 September 1999, [the husband] sustained a closed head injury and apparently fractured right scapula, chest wall damage and required a tracheostomy. He had multiple surgical procedures to deal with complex injuries in both lower limbs followed with the complications from MRSA leading on to an amputation […].
The problems of pain felt at and around the left knee culminated in a total knee arthroplasty being performed early in 2002 with little clinical benefit to him in terms of pain relief in that area and he has had apparent psychiatric breakdowns and reactions with hospitalisation on two occasions at and after that time and he experimented with soft drugs (Marijuana) to try and deal with that pain in other ways that failed and he has been through two cycles of a complex pain management course with no effective, long-term benefit from that assistance.
He has moderated his analgesics but he has been left with a very significant restriction in mobility, activity, comfort and confidence in anything other than activities of daily living and self-care with a limited capacity to manage domestic and other household tasks which he does.
So far as subsequent treatment and prognosis are concerned, Dr H expressed the opinion that “as a result of this motor vehicle accident, this man has been left with permanent problems of mobility and comfort, mainly chronic pain, notwithstanding the prior history of spinal surgery in 1991 by a very experienced spinal surgeon”. He further expressed the view that the husband has “not had great relief of the back pain component (common after surgery of that form) but he seems to have had reasonable relief of some form of radicular symptoms affecting his right leg, but he has now has left-sided leg symptoms that were not relieved by total knee replacement dealing with an unstable left knee”.
Dr H is of the view that the “problems affecting his back, referred pain into the legs, including the dysaesia distally into the left foot are likely to increase in the future at and beyond the discomfort he continues to experience now from such pain”.
I accept Dr H’s evidence. I find that the husband “will require total knee arthroplasty being done on his right and will need the preliminary removal of the metal implants on that side to enable the ‘condition’ or quality of bone in that pint, artificially supported by significant, internal inflation to settle down over some months before any such surgery is done on that side”.
Further opinions expressed by Dr H which I accept, included:
This man, with limited capacity and mobility may regain a slightly better range of motion back into his right knee which flexes only through some 80° of effective flexion at this time but in no other will that surgery enhance his overall mobility, comfort, confidence and experiences in pain, based on this assessment which I conducted here today.
Into the future he is probably going to require some home care assistance as a man in his late fifties, he is likely to face an increased need for domestic assistance and help in his continuing single status, unless some gratuitous care and assistance from his young family is maintained from time-to-time.
The wife’s average weekly income is $712.00 gross, principally comprising her salary of $700.00 per week. The wife has the property and financial resources set out in paragraph 74 hereof.
The wife has the physical and mental capacity for her current gainful employment as the director and, in effect, manager of the business of the company principally concerned with the purchase and sale of furniture. The wife does not have qualifications or experience for other alternative employment realistically available to her on the evidence before me.
The husband’s average weekly income is approximately $1,000.00 gross solely sourced from interest received on term deposit.
The husband has the property and financial resources described in paragraph 74 hereof.
The husband does not have the physical and/or mental capacity for any appropriate gainful employment having regard to his serious health issues described in detail in Exhibits 5 and 6 and the expert medical opinion expressed in Exhibit 5. Those findings are not matters of controversy.
Neither of the parties has the care and control of a child of the marriage who has not attained the age of 18 years.
Each of the parties has commitments necessary for her or his support in accordance with their respective financial statements. However, Exhibit 6 provides unchallenged detailed expert evidence in relation to the husband’s “future needs”. That matter is the subject of examination on scenarios of whether the husband remains living in the former matrimonial home or moves to alternate premises.
In relation to the husband continuing to live in the former matrimonial home, the recommendation of the expert is that a stair climber be installed on the staircase for ease of access to the upper floor and an indicative quotation of $16,000.00 is provided.
So far as the potential alternative of the husband moving to alternate premises, the expectation is that such premises be a single level house or villa or ground level apartment preferably having an internal garage. The location of such accommodation should be such that it gives the husband “accessibility to and from the premises preferably in an area with level topography and with close access to shops and other community facilities, allowing him to travel there in an electric wheelchair”[11].
[11] Exhibit 6 p.21
Particular aspects and facilities of the alternate accommodation are set forth in some detail in relation to internal layout, orientation of the house, outdoor areas, main bedroom, ensuite bathroom, kitchen, laundry, heating and cooling system and safety device systems.
In addition, Exhibit 6 provides the detailed recommendations and the basis for them in relation to the husband having the benefit of assistive equipment, furniture and the continued used of a modified motor vehicle.
With regard to domestic assistance, for the reasons explained Exhibit 6 provides a recommendation for domestic assistance for six hours per week at the rate of $38.50 per hour as well as paid assistance for gardening, lawn mowing and pool maintenance in the event of the husband continuing to live in the matrimonial home.
I accept the evidence contained in Exhibit 5 and 6 so far as ongoing treatment and prognosis are concerned as well as “future needs”.
The parties do not have responsibilities for the support of any of the children. The contrary was not asserted either in the case outline documents, the evidence or in submissions.
Each of the parties have superannuation entitlements referred to in paragraph 74 hereof.
Assessment of relevant s 75(2) matters
I have determined that there will be an adjustment of 3% in favour of the husband having regard to the weight attached to relevant s 75(2) matters for the following reasons.
The wife is now 58 years of age and in good health.
The husband is also 58 years of age. However, in contrast to the wife, unfortunately the husband’s health is poor. I have provided a review of the evidence in that regard, particularly the medical evidence and made relevant findings. The husband suffered severe injuries with major residual disabilities which will continue and require further medical and operative treatment.
In the foreseeable future, the husband will face an increased need for domestic assistance according to the evidence I have accepted provided by Dr H.[12] Whilst there is evidence of the commercial rate for domestic assistance it cannot be quantified for the future as there is no evidence of life expectancy.
[12] supra
The husband will also need the benefit of special features of accommodation as referred to in paragraphs 136 and 137 of this Judgment.
A further factor that I have given weight in favour of the husband is his lack of capacity to earn income from gainful employment compared to the wife.
The wife is an experienced and capable manager of the company and has been resourceful in keeping the business functioning with its change of emphasis and direction in operations.
The wife disclosed in her Financial Statement sworn 9 June 2009 that her gross weekly salary is $700.00. The Affidavit of the single expert witness Mr G sworn 8 July 2008, which was not the subject of any challenge, shows a moderately performing company without goodwill. However, the draft 2009 accounts being Exhibit 11 reveals an increase in net profit before tax of a modest though significant amount which may provide some cause for cautious optimism for the future. There are continuing uncertainties for the company as detailed by the wife in her Affidavit sworn 16 July 2009 and the wife has considered it commercially necessary for the company to have its showrooms open seven days a week. Consequently, the company’s continued operations are not without difficulty even allowing for increased profitability.
Conclusion
As is apparent from my assessment of the parties’ respective contributions and relevant s 75(2) matters, there should be orders made whereby the husband receives 58% of the net property of the parties excluding their superannuation entitlements to which subsequent reference will be made.
I have determined that it is just and equitable for orders to be made in accordance with those assessments having regard also to the practical effect set out in a subsequent paragraph and taking into account my resolution of an area of controversy, namely, who of the parties should become the sole registered proprietor of the matrimonial home.
So far as the matrimonial home is concerned, I will make an order that the husband transfer his interest in it as on balance the arguments on the evidence in favour of one party or another being successful in that regard favour the wife. Each has a case of substance for the order sought. However, I have accepted the evidence of the husband that not only would a chair lift have to be installed in the matrimonial home to provide access to the bedrooms which are all upstairs but also his acknowledgment that in some respects it would be easier for him to have a smaller single storey home preferably with an internal garage as recommended in Exhibit 6. I have taken into account that modifications to alternative premises may be needed and that the husband will need paid domestic assistance.
I will provide a period of four months or such other period as the parties may agree upon in writing for the husband to continue to occupy the matrimonial home and at the conclusion of such period vacate it leaving the wife with exclusive occupancy. I have made a rather arbitrary decision in that regard given the lack of submissions, due no doubt, to the manner in which the case was conducted in which other issues loomed large. Consequently, this should not be taken as a criticism of counsel who conducted the case for their clients in an exemplary fashion. The period to which I have referred will enable the husband to have appropriate enquiries and other steps taken to ascertain a suitable property for purchase, given not only the financial constraints allowing for the purchase price and the need for ongoing investment income but also the extent and cost of any modifications that may be necessary to a future home. I have placed faith in the parties to provide for an agreement of an extension of such period should that seem to be a sensitive, compassionate and practical approach in all the circumstances. In the interim, the parties will have to equally share the cost of council and water rates, insurance premiums, electricity and telephone expenses, reasonable maintenance and repair until such time as the husband has vacated the matrimonial home whereupon the wife will have the sole liability for all of such outgoings and any other expenses associated with the matrimonial home.
The practical implications of the proposed orders, to which I have earlier referred, are as follows:
Husband to receive/retain:
Bank accounts
$41,018.00
Bendigo Bank account number …94
$1,252,286.00
Holden Berlina
$5,000.00
Tabcorp shares
$846.00
2004 tax refund
$10,642.00
Paid legal fees, etc.
$109,7763.00
Total
$1,419,555.00
(Approximately 58% of $2,455,741.00 plus superannuation entitlement)
Plus superannuation entitlement
The effect of the proposed orders so far as the wife is concerned is that she will become the sole registered proprietor of the matrimonial home, retain items of personal property referred to in paragraph 74 not otherwise passing to the husband, and also have transferred to her the joint bank accounts and the shares in the company. So far as the latter is concerned, there is no issue that the wife, rather than the husband, should continue the operations of the company. Indeed, the husband has sought an order whereby his shareholding be transferred to the wife together with any loan account in the terms of paragraph 8 of Exhibit 2.
I have also determined that it is just and equitable for the parties to each retain their respective superannuation entitlements. I had previously assessed the parties’ contributions as being equal. Whilst there is a difference of $38,000.00 in favour of the husband, special needs arising out of his residual disabilities, and the financial consequences of them make it proper for those entitlements not to be disturbed either directly or indirectly even allowing for the absence of a splitting order having been sought. I accept the submission that the husband is in a position to obtain the appropriate certificate to enable him to access his superannuation. Counsel’s submissions did not suggest a different approach should be taken by me, other than of course enabling the husband to roll over his entitlements.
The parties reached agreement in relation to the division of items of personal property, not the subject of Exhibit 14. The parties’ written approach in that regard is reflected in Exhibit 13. An appropriate order will be made.
I certify that the preceding one hundred and seventy one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose
Associate:
Date: 31 May 2010
Key Legal Topics
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Family Law
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Equity & Trusts
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Consent
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Constructive Trust
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Remedies
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Res Judicata
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