DANIELS & DANIELS
[2015] FCCA 2569
•5 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANIELS & DANIELS | [2015] FCCA 2569 |
| Catchwords: FAMILY LAW – Property – long marriage – consideration of contributions by each party, both of a financial and non-financial nature – whether consideration should be given to an add-back of monies received by one party from joint funds – consideration as to values to allot to various properties when not agreed and no valuation available – consideration of future needs and obligations of each party – consideration of future possible medical conditions and effect upon future earning capacity. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79(4) |
| Pastrikos and Pastrikos (1980) FLC 91-897 Stanford and Stanford Lots of Questions – Very Few Answers, Martin Barfeld QC of the Victorian Bar |
| Applicant: | MS DANIELS |
| Respondent: | MR DANIELS |
| File Number: | TVC 1272 of 2013 |
| Judgment of: | Judge Coker |
| Hearing dates: | 23 & 24 April 2015 |
| Date of Last Submission: | 24 April 2015 |
| Delivered at: | Townsville |
| Delivered on: | 5 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mayes |
| Solicitors for the Applicant: | Roberts Nehmer McKee |
| Counsel for the Respondent: | Mr Hibble |
| Solicitors for the Respondent: | Groves & Clark Solicitors |
ORDERS
BY WAY OF FINAL PROPERTY SETTLEMENT
Within 30 days from the date of these Orders, the Wife must do all acts and things and sign all documents necessary to transfer to the Husband, at the Husband’s expense, all of her right, title and interest in the property known as Property D, being the while of the land more particularly described as (omitted) bearing Title Reference (omitted) (the “Property D property”).
That simultaneously with the transfer pursuant to Order 1, the parties must do all acts and things and sign all documents necessary to discharge the mortgages of the parties to (omitted) Bank secured by the Property D property, being mortgage numbers (omitted) and (omitted).
That the Husband indemnify and keep indemnified the Wife in relation to all expenses for the Property D property including but not limited to mortgage repayments, rates, insurance and any future Capital Gains Tax for this property.
That contemporaneously with the transfer pursuant to Order 1 herein, the Husband pay to the Wife the amount of $326,239.29 and do all such acts and things and sign all documents necessary to transfer the joint share portfolio to the Wife, at the Wife’s expense.
That should the payment of $326,239.29 as required pursuant to Order 4 herein not be effected by the Husband to the Wife within the 30 days prescribed, then that the property be sold and that each party do all acts and things and sign all documents necessary to effect the sale of the property and that after the payment of normal outgoings associated with the sale of the property, the Wife receive the sum of $326,239.29 and the balance be retained by the Husband.
That within 30 days of the date of these orders the Husband and Wife do all such acts and things and sign all documents necessary to distribute to the wife 57.5 percent of any funds held in the parties’ joint bank accounts and the Husband to receive 42.5 percent of any such funds and to then close such accounts including but not limited to:
(a)(omitted) Cheque Account having bank account No (omitted);
(b)(omitted) Classic Business Account having bank account No (omitted); and
(c)(omitted) Cash Management Account having bank account No (omitted).
That within 30 days from the date of these Orders, the parties must do all acts and things and sign all documents necessary to transfer to the Wife, at the Wife’s expense, the registration in the Nissan Patrol motor vehicle, registration number (omitted).
That the Husband retain sole right, title and interest in the following:
(a)The Nissan Patrol motor vehicle with registration number (omitted); and
(b)The shipping container located at the Property D property, and all contents of that container;
(c)The business trading as (omitted business).
That the Wife hereby relinquish and not pursue any claim for any entitlement or distribution allocated or payable to her from any business interest of the parties, including any past or future allocations or payments providing that the Husband assumes liability for and indemnifies the Wife for any associated taxation consequences.
That Orders 10 to 15 (inclusive) of these Orders are binding on the trustee of (omitted) Super Fund.
That a base amount of $78,858.13 be allocated to the Wife out of the Husband’s interest in the (omitted) Super Fund, member number (omitted).
That in accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s interest in the (omitted) Super Fund, member number (omitted), the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
That Orders 11-12 of these Orders have effect from the operative time.
That the operative time for the purpose of these Orders is four business days after the date of service of a certified copy of the final orders upon the trustee of the (omitted) Super Fund.
The trustee of the (omitted) Super Fund in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the Wife in accordance with Order 11 herein.
That subject to any other Order to the contrary, the parties are solely, legally and beneficially entitled to all other real and personal property of whatsoever nature and kind in their respective ownership, possession or control as at the date of these Orders, including but not limited to money on deposit, shareholdings, insurance policies, motor vehicles, furniture, furnishings and effects.
That subject to Order 11, each party be solely, legally and beneficially entitled to all superannuation entitlements held in their respective names.
That from the date of these Orders, the Husband must do all things necessary to indemnify the keep indemnified, the Wife in respect of any and all liabilities held in his name.
That from the date of these Orders, the Wife must do all things necessary to indemnify the keep indemnified, the Husband in respect of any and all liabilities held in her name.
That subject to any other order to the contrary, each party mutually releases the other from all debts or claims owing from one to the other.
That if either or both of the parties fails to comply with these Orders, including doing all such things and executing all such documents as may be necessary, within the time provided:
(a)A Registrar of the Townsville Registry of the Federal Circuit Court of Australia be authorised to do all such acts and things and execute all such documents on behalf of either or both parties;
(b)An Affidavit of the Solicitor for the party seeking to give effect to these Orders shall be sufficient proof of the default of the other party necessary to give effect to this Order; and
(c)In the event that either party procures compliance with these Orders pursuant to this Order 21, then the party procuring such compliance will be indemnified by the party for his or her costs and expenses incurred in obtaining such compliance.
Should either party seek an Order for costs against the other party then that party file and serve any written submissions as to costs within 28 days of the date of this Order and the other party is to file and serve any response within 14 days of service.
Any determination as to costs will be heard in chambers unless an appearance is specifically requested.
IT IS NOTED that publication of this judgment under the pseudonym Daniels & Daniels is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 1272 of 2013
| MS DANIELS |
Applicant
And
| MR DANIELS |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION:
These proceedings were commenced on 21 December 2013 when Ms Daniels, whom I shall refer to as the wife, filed an application in this court seeking orders with regard to property settlement. The orders that were proposed by her at that time were succinct and to the point. They were in these terms:
(1)That the property of the parties be divided as to 70 per cent in favour of the wife and 30 per cent in favour of the husband.
(2)That the husband pay the wife’s costs of, and incidental to, this application.
(3)Any further, or other, order deemed necessary by this honourable court.
The application also included numerous interim orders that were sought with regard to the provision of documentation as well as orders in relation to a payment by way of interim property settlement of a sum of $50,000. It was also then sought that the matter should be listed following the filing of material in response by the husband, for a conciliation conference.
The husband is Mr Daniels. He filed a response to the application by the wife on 24 February 2014. The application for final orders by the husband were as succinct as were those of the wife. They were in these terms:
(1)That the respondent husband receive 70 per cent of the property of the parties.
(2)That the applicant wife receive 30 per cent of the property of the parties.
(3)That the applicant wife pay the respondent husband’s costs of, and incidental to, these proceedings, and
(4)Any other order this honourable court considers appropriate in the circumstances.
Obviously more thought went into the application and the response than simply an issue of “tit for tat”, but it is clear that with a marriage of the duration of that which existed here, marriage in (omitted) 1991 until final separation in January 2013, that the parties cohabited for over 20 years and that there would no doubt be a need to consider, at least as an initial starting point, an equal distribution of the property between the parties. I say that in light of the fact that each of the parties, at least at the time of commencement of proceedings, came from a perspective of suggesting that they were entitled to more than double what was any amount that might be able to be received by the other party.
THE FINAL APPLICATIONS
However, there were a number of other amendments made to both the application and responses filed in respect of these proceedings such that the final position of the parties was considerably changed. The wife’s amended initiating application filed on 18 March 2015 detailed at considerable length the orders that were proposed by her with regard to the sale of the former matrimonial home situate at Property D, as well as then the distribution, still, upon a basis of 70/30 in her favour, as well as for far more particularised orders with regard to what should occur with regard to a share portfolio held by the parties, transfer of interests in joint bank accounts, transfer of motor vehicles from one party to the other, as well as detailing, at some particular length in order 11 of the amended initiating application, particulars with regard to furniture and other chattel items.
It was also proposed that a superannuation split be affected between the husband and the wife and that orders be made with regard to responsibilities in respect of the payment of taxation liabilities and that the husband be generally responsible for those liabilities. Thereafter general orders were proposed by the wife in relation to the retention by the parties of all other items of property presently at that time in their possession, as well as for there to be various indemnities provided by each to the other in relation to any of those properties. The wife continued to seek an order with regard to the payment of her costs incurred in relation to the proceedings.
On 27 March 2015, only a week or so after the wife’s amended initiating application was filed, the husband also filed a further amended response which detailed at considerable length the proposals put forward by him in relation to property. They were particularised to an extensive nature but dealt, again, with the steps to be taken in respect of the sale of the property at Property D, payment out of any liabilities attaching to the property, and also indicated that the husband sought the right to continue to occupy the property and during such right of occupation to be responsible for all mortgage payments, rates and outgoings attaching to the property as and when they fall due.
It is noteworthy, of course, that the property is, as best I understand the evidence, unencumbered and, in fact, the husband had since separation in January of 2013 continued to occupy the property without having any real outgoings attaching to it other than, perhaps, those which related to the normal day to day expenses such as rates, insurances and the like.
Additionally, however, the husband particularised what should occur in relation to the share portfolio of the parties and distribution of moneys held in various bank accounts, transfers of motor vehicles, retention of interests in superannuation, though a superannuation split in favour of the wife was suggested but it was to be, “determined by the court such as to effect an equal division of superannuation between the parties”.
Thereafter further orders similar to those proposed by the wife were detailed with regard to the retention by each party of items of property in their possession and an indemnity provided by each to the other, in respect of such property. The most significant change, however, was that the husband stepped back from the brink in suggesting that he was entitled to 70/30 of the assets of the parties and proposed that the property of the parties be divided equally between he and the wife.
The wife in her case outline, filed in relation to these proceedings, detailed, again, the orders that she proposed in relation to property settlement but did take a step back from the position originally taken by her, though not to the extent that was taken by the husband, in that she proposed a division of the property between she and the husband of 65 per cent in her favour and 35 per cent in favour of the husband.
The case outline also proposed, firstly, the sale of the property but as an alternative suggested that if the husband were able to refinance, that he would be able to do so and in that instance there should be a payment made to the wife of $402,147, which it was said reflected the 65/35 split upon the inclusion of property which the wife said should be included in the property portfolio.
Final orders were also detailed at the time of trial and though they were, perhaps, subject to some slight changes in relation to format there was no real change from the position taken by the wife in relation to the property settlement to be effected between she and the husband, suggesting that the property be transferred to the husband but still noting that she required a payment to be made to her of $402,177 and that in default of such payment, that steps then be taken with regard to the sale of the property.
However, even leading up to hearing, further issues of contention arose between the parties, which included the filing by the wife, on 15 January 2015, of an application in a case in which she detailed further orders that were sought by her with regard to the payment of spouse maintenance in the sum of $550 per week, though if certain other steps were taken with regard to the payment of an invoice relating to a Nissan Patrol motor vehicle, then the amount claimed was reduced to $450 per week. It was also the case that that reduction was subject to the husband taking steps with regard to the payment of a taxation liability of $9824.
On 16 March 2015 orders were made by consent which provided for the payment by the husband to the wife of that amount of $9824 and the payment by the wife of that amount to the Taxation Office. There were also orders then made with regard to the valuation of the property at Property D and the adjournment, otherwise, of the application in a case which included the spouse maintenance claim, to the final hearing of the application. I shall come to that particular aspect of the matter a little later in these reasons.
THE EVIDENCE:
Only the husband and the wife gave evidence in relation to this matter. It was, however, noteworthy that until, literally, at the door of court on the first day of trial two other witnesses were required for the purposes of evidence. They were Mr R, a registered valuer, who had been commissioned to prepare a valuation in relation to the property at Property D. The date of inspection and valuation was 19 March 2015. Mr R valued the real property including improvements at $415,000 and that has now been accepted by both of the parties as the appropriate sum to be placed upon the property at Property D.
Also, initially required for the purposes of giving evidence was Dr Y, an endocrinologist, who has been treating the husband in relation to his diabetes. In his report, which is annexure Y1 to his affidavit filed on 3 March 2015, Dr Y answers a number of questions that were raised in relation to the husband and his medical circumstances.
Dr Y notes that his first medical consultation with the husband was on 20 May 1996, following a referral for assessment and treatment of the husband’s type 1 diabetes. It appears now acknowledged, that that has been a long term health concern for the husband. More particularly, however, Dr Y was asked to address issues with regard to the husband’s health and noted in his report, that at his most recent consultation on 12 February 2015 there were, “no clinical signs of poor circulation to his feet but he showed slight loss of nerve feelings on his feet, a complication from diabetes.”
In respect of inquiries made with regard to the husband’s prognosis, and in particular his ability in the future to hold a driver’s licence, it was noted that the husband currently holds a commercial driver’s licence as part of his requirement to work as a (occupation omitted) and that the driver’s licence requires a certificate from a registered medical professional dealing with issues, in relation to the husband’s diabetes and his eye sight, which can be affected as a consequence of the diabetes. Dr Y, quite understandably, notes that there is little that he can predict long into the future, but notes that it was anticipated by him that the husband would meet the requirements with regard to the issue of certificates in respect of obtaining a licence in 2015.
He further notes, in queries with regard to the husband’s capacity to continue to work in the industry as a (occupation omitted), that the husband meets the criteria for a commercial driver’s licence at the present time but it is “by no means guaranteed.” There is simply no specific information available with regard to the suggested duration of the husband’s employability in the field in which he currently works but certainly Dr Y notes that the husband will need, “lifelong medical review with his general practitioner, as well as with a number of specialists, including endocrinologist, eye specialist and from time to time allied health professionals, including podiatrists, dietitians and diabetes educators.”
At the conclusion of the report, annexed to the affidavit of Dr Y filed on 3 March 2015, Dr Y says, “Mr Daniels’ working life will therefore be very likely to be much shorter than the general population. I will be happy to clarify any aspect of this report if required.” Dr Y was not required for cross-examination in relation to the matter but it appears clear that the parties certainly acknowledge that there is, at least to some degree, a concern which must be held with regard to the future employability of the husband.
As I said the only two witnesses called in relation to this matter were the husband and the wife. Each gave evidence confirming their previous affidavit evidence in relation to the proceedings and were subject to cross-examination. Both were, in my assessment, unimpressive witnesses. Both were angry at the breakdown in the relationship and both expressed that anger, both directly, and perhaps, subconsciously, in a number of ways.
The wife, for example, when asked initially in cross-examination why she sought an amount of 70 per cent, indicated that it was her “entitlement”, because she and her daughter were entitled to have a place to live. When asked whether a place to live might not necessarily be able to be achieved she indicated quite forcefully that she and her daughter were entitled to a roof over their head and that in the locality in which they currently reside in (omitted), that “a decent house” would be in the vicinity of $345,000 to $450,000.
That position taken by the wife was the overriding one that I perceived, in relation to these proceedings. It was quite simply the case, that the wife was fixated upon an amount that she considered was necessary to provide for the standard of living that she and her daughter would require and that therefore, it was not so much a consideration of what would be a just and equitable resolution of property matters between the parties that would give rise to any distribution but, rather, it would stem from her entitlement. It was, as I say, a recurring theme and one which caused me some concern, in relation to the determination of this matter.
By the same token, however, the wife’s degree of anger and hurt at the circumstances that have occurred in the more than two years that have passed since separation are understandable and they clearly colour her views. Quite simply the separation was an unhappy and unfortunate one from the perspective of both the husband and the wife. The wife apparently raised with the husband the prospect of them discussing their relationship and whether it would continue after a holiday taken by her and their daughter. When returning from the holiday, however, the husband, at least from the wife’s perspective, refused to take her home and delivered her and the party’s daughter to the maternal grandmother’s one bedroom unit.
The husband left the wife there, inquired from the daughter whether she wished to come back with him or remain with the mother, a less insightful action being hard to imagine, and then returned to the three bedroom former matrimonial home at Property D, and continued to occupy the residence. The husband also withdrew the vast bulk of moneys that were held in accounts of the parties and refused, and still refuses, to in any real way provide funds for the wife, such that she was left in a most unfortunate circumstance, living with her mother in a one bedroom unit with a teenage daughter also living with her.
There were also refusals by the husband to provide even the most basic of assistance including, for example, the opportunity to collect the child’s furnishings, such that the mother’s anger relating to the circumstances that she and the husband find themselves in is at least understandable.
The husband has, certainly since separation, had the far greater benefit of the party’s matrimonial assets. He has continued to operate the business which, of course, is, to all intents and purposes, a business that stems from his own labours, but it requires the utilisation of plant and equipment, which is the joint property of the parties. There has been little, if any, contribution or assistance provided by the husband, notwithstanding that he has continued to reside in the former matrimonial home without any real liabilities attaching to the property, and has continued to utilise the joint property for the purposes of acquiring income.
The wife’s demeanour, when those considerations are looked at, is far more easily able to be understood and explained. The wife has, “done it tough”, since separation occurred. She has sought employment and finally gained employment, but not of a fulltime nature. There was some criticism of that in that the wife, it was suggested, had not attempted as vigorously as might be appropriate to obtain fulltime employment, but I am not necessarily of the view that that is a fair assessment of the wife’s position in relation to this matter.
Quite simply she has had the responsibilities associated with the parenting, primarily, of the party’s youngest child, X, and at the time of separation X had only just turned 16 years of age. She remained living with the mother and the mother understandably was reluctant to consider fulltime employment, which as she indicated was of a shift work nature and that would therefore leave her, on occasions, in a situation where the child was unattended.
There could not properly be concerns raised, in respect of such decisions being made by the wife though, it may be that there will be greater opportunities for her employment now and into the future, as X is now 18 years of age.
The wife was challenged about her contributions to the relationship between she and the husband. It was troubling that, no doubt, upon instructions, the wife was repeatedly challenged about what she did to contribute to the relationship, including what proper financial contribution she made to the relationship. It was noteworthy, however, that the husband was in employment, which required him to work extremely long hours and it was acknowledged that he did so, such that the wife’s responsibilities within the home were more onerous than might otherwise have been the case.
The cross-examination, therefore, was troubling, because whilst the wife clearly would have had the more extensive responsibilities in relation to the rearing of the two children, Y, now aged 21, and X, currently 18, there appeared to be little acceptance or acknowledgement on the part of the husband that that would, of itself, have required considerable input on the part of the wife.
However the husband’s evidence was that the wife spent periods of time, though it was unspecified as to exactly what those periods might have been, five days a week at clubs playing bingo and that much of the responsibilities in relation to the household and the parenting of the children fell upon grandparents as well as, in relation to household duties, the children. There is little that can be said in relation to such a stance, other that it shows a somewhat contemptuous attitude toward the wife and a lack of any real appreciation of the fact, that during the 20 or more years of marriage, each of the parties would clearly have contributed in different ways, but just as valuably to the relationship and to the acquisition, preservation and maintenance of the assets of the marriage.
The wife struck me as determined in relation to her stance, and certainly it was troubling that there was a sense of “entitlement” held by her, based far more on what she expected the future to hold, than what might in circumstances be just and equitable. By the same token, there was an understandable grievance on the part of the wife, that since separation, the husband has had the benefit of virtually the entirety of the party’s assets, though it was acknowledged, understandably, that some assistance was provided to the wife by certain moneys being received both from joint accounts and from a taxation return which was received and held by the wife.
Insofar as the husband was concerned, there was an interesting development that occurred within the witness box. Initially, the impression was that the wife’s attitude was one of intransigence and that the husband may have been put upon, as a result of the behaviours and attitudes of the wife. As his evidence progressed, however, it became clear that the wife’s concerns, expressed in relation to the relationship with the husband and, certainly, with regard to the relationship post-separation were understandable and, in fact, the husband’s attitudes were even more firmly set in stone and as I indicated previously, showed a general contempt for the wife and for her role within the relationship.
The husband acknowledged that he collected the wife and X from the airport in January of 2013. He acknowledged that he made it clear to her that she was not to return to the home but was to be delivered to her mother’s one bedroom unit. He made it clear to X, who had just turned 16, that she was required to choose where she wanted to stay. Thereafter the husband was determined to make life hard for the wife. She was able to retrieve $15,000 from an account but it is clear that from that same account the husband drew well in excess of $200,000.
The wife sought furniture from the home to provide some of the creature comforts, that would be appropriate for she and X. The husband refused to make them available and justified that by suggesting that he had been advised not to allow them to be removed. One struggles with that perception in relation to the matter because even if that were to have been the case, the fact is that the property was joint property and more particularly, at least, in part, it was sought for the benefit and support of his daughter, but he did not move.
The husband’s only explanation for his stance, in relation to those various matters, was to say that he had hoped that the matter might be able to be resolved quickly but, of course, it takes two in that regard and the husband’s own attitude and approach to the wife would no doubt have been, as I have indicated, one of the factors which made her more and more determined in her stance, in relation to the settlement which she sought in relation to the proceedings. The husband was interestingly, generally uncomplimentary of the wife, but then suggested that she had all the credentials under the sun and had not found fulltime employment.
He only grudgingly acknowledged that there had been years where she had been out of the workforce and when asked to consider, in cross-examination, whether it would be easy to get a job, his response was to simply suggest it was, “not on my thought list”. When asked whether he simply didn’t care his response was, again, indicative of his attitude to the wife because it pointedly noted that he, “cared about my daughter”. The husband’s attitude was one of entitlement but it was not, as was the case with the wife, one of future entitlements or expectations, but rather one directly reflecting his view that his contribution was significant and that of the wife’s was minimal.
It was reflected in a number of statements made by the husband, not the least of which was an indication that, whilst he had a better lifestyle than the wife, he did not think that there was any unfairness in him maintaining all of the assets and the wife having to re-establish herself because, as he indicated in his response, since the marriage commenced he had worked long hours and also did his share around the house. Additionally, he noted that he was not going to bingo five days a week or wanting five star hotel holidays and so as he put it in words to the following effect, “what is fair if one puts in 90 per cent and the other 10 per cent”. The husband’s attitude in relation to the wife and to her contribution during the entirety of the relationship was damning of him.
He continued to draw moneys from the business which, it is acknowledged, he operated but which was operated with the benefit of plant and equipment that was the joint property of he and the wife. He criticised the wife as a spendthrift. He suggested that she had lived a lifestyle which they could not afford and yet when challenged as to his own accountant’s figures, in relation to drawings and expenditure, which included drawings for 30 June 2014 from the business of $176,000, he could not explain how that would have occurred. He was asked to acknowledge that the wife hadn’t prepared those documents and he did so but his best answer was to say that he was a bit bewildered and would like to check.
Of course, the fact is he had had every opportunity to check but was so determined to be demeaning and damning of the wife and her position that he could not, even in the face of such clear evidence, acknowledge that his suggestion that the wife had been poor in her budgeting but that he, similarly, had been poor in budgeting was a true assessment of the situation. When asked specifically in light of that evidence whether he thought the wife had still been overspending his response was, again, demeaning of the wife. Whilst he could not, or would not, explain his own figures in relation to drawings from the business, his response was to simply say words to the effect, “I think she still is an over-spender. I have been with her for 22 years.”
The husband and the wife were at loggerheads about what was brought by each into the relationship and certainly from the husband’s perspective it was suggested that at the time that they came into the relationship there had been a significant sum held by him, as he had been working in the (occupation omitted). The husband suggested that he had an amount of about $200,000 available. The wife, for her part, suggested that it was a far lesser sum and acknowledged that there was about $24,000.
The husband said that his approach was always to ensure that there was money available for the needs of he and the wife or the business and to some extent that is reflected in the fact that at separation it is acknowledged that there was in excess of $200,000 in cash, available to the parties. However, it is also noteworthy that the wife’s position in relation to the moneys allegedly brought into the relationship by the husband, was that there was a much lesser sum and it was for that reason that they were required to borrow moneys at the time of the establishment of the residence at Property D.
It is now impossible to make any assessment in relation to what might or might not have been the moneys brought into the relationship by one or other of the parties, but I certainly acknowledge that the husband, it would seem, brought more into the relationship but that with the effluxion of time, it is clear that the party’s situation is one where any consideration of an initial contribution has been significantly eroded with the steps that have been taken by each of the parties, during the relationship.
Quite simply neither of the parties was as impressive a witness as one would have hoped, in relation to gaining a clear insight into the relationship and the actions of both parties but where I am required to make findings with regard to the evidence of one or other of the parties I am certainly more inclined to a view that the evidence of the wife, although somewhat jaundiced and, perhaps, exaggerated as a result of the sense of entitlement to which I have previously made reference, is more reliable evidence than that which might be sought to be relied upon by the husband.
THE LAW:
I turn then to the matters that need to be considered pursuant to the law in relation to these proceedings Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 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.
Section 79(4) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos (1980) FLC 91-987; In the Marriage ofLee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage ofClauson (1995) FLC 92-595 and In the marriage of Whitely and Whitely (1996) FLC 92-684). The process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable (see section 79(2)). It is the justice and equity of the actual orders that the court must consider, Russell v Russell (1999) FLC 92-877.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro, the Full Court said:
A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in s79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paras (a) to (c) of s79(4), and then to consider the matters in paras (d) to (g), more especially para (e) which takes up by reference the provisions of s75(2) and which are generally referred to as the “section 75(2) factors”.
In Hickey and Hickey and A-G for the Commonwealth (2003) FLC 93-143 the Full Court of the Family Court approved the four step process to making orders under section 79 of the Family Law Act:
Step 1: Make findings as to the identity and value of the property, liabilities and financial resources of the parties as at the date of the hearing;
Step 2: Identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) and (c ) and determine the contribution based entitlements of the parties expressed as a percentage;
Step 3: Identify and assess relevant factors in section 79(4)(d), (e), (f) and (g) and section 75(2) and determine any adjustments that should be made to the contribution based entitlements at step 2;
Step 4: Consider the effect of the findings in Step 3 and determine and resolve what order is just and equitable in all the circumstances.
(It is clear it is the Order that must be considered in terms of justice and equity, not the percentage split – Russell v Russell (1999) FLC 92-877).
The High Court’s decision in Stanford v Stanford [2012] HCA 52; (2012) 47 FamLR 481 has now modified that approach. In Erdem & Ozsoy [2012] FMCAfam 1323 (5 December 2012) Walters FM, as he then was, said of the majority decision in Stanford:
116. It is arguable that the effect of the High Court's decision in Stanford is that the first step in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property. The second step involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in a marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the Court that it is just and equitable to make orders altering the parties' interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps – namely:
a) assess the extent of each party’s contributions under the various sub-headings described in section 79(4); and
b) thereafter, consider the financial resources, means and needs of the parties and the other matters set out in section 75(2) so far as they are relevant,
and in the process adjust the amount due to each party by way of contribution by reference to the relevant section 75(2) factors.
In Hobbs & Valonz [2013] FCCA 1999 Judge Cassidy adopted the approach set out by Mr Martin Barfeld QC of the Victorian Bar in his paper “Stanford and Stanford Lots of Questions – Very Few Answers”. The paper suggests the following approach which was adopted by Judge Cassidy:
“It can be now said after Bateman v Bowe that the approach is still one involving steps, albeit not to be followed ‘unthinkingly’. These appear to be:
o Declare and value the interest (both legal and equitable) of each party in property:
o Determine whether circumstances exist to make an order adjusting those interests and explain that circumstances. If the answer is yes (as it usually will be);
§ Evaluate and fix contribution;
§ Apply the s.75(2) factors;
o Formulate an order justified to give effect to the production of the evaluation.”
In Stanford, the majority explained in respect of whether it would be just and equitable to make an order would often be dealt with as follows:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of the choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the end of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4).
DISCUSSION:
I then turn to the determination of this matter. As noted in the decision in Stanford (supra) above, the just and equitable requirement in this matter is easily satisfied. The parties are no longer in a marital relationship and there is no prospect of it being resumed. There is no common use of property and as I have already observed, the current situation is inequitable. It is clearly just and equitable that a property settlement order be made.
The property pool to be considered here is difficult to assess in the extreme. There is now at least agreement that the property at Property D is valued at $415,000 and that the share portfolio has an agreed value of $72,635.25. There also appears to be a clear agreement that the partnership of Mr and Ms Daniels is valued at $15,000. Thereafter there are some disputes between the parties, in relation to the value of various other immediately realisable assets, though there is agreement in relation to both the husband and the wife’s superannuation entitlements.
It is nigh on impossible to make any real assessment, in relation to the disputed values though it is, at least, comforting that the disputes are not in relation to the most significant of the assets. For example, there appears to be a suggestion that the two motor vehicles, the Nissan Patrol utility and the Nissan wagon, are valued at a combined total of $10,150 from the perspective of the wife and $10,000 from the perspective of the husband but, of course, as is, perhaps, not surprising the husband values both of the items at $5000 each whilst the wife values the two at $3000 and $7150 respectively and it is to be noted that the wife suggests that the Nissan Patrol should be passed to her and that it has the lesser value. For the purposes of calculation, I intend to assess a value for each vehicle of $5,000.
It is, otherwise, impossible to make any real assessment in that regard as is similarly the case in relation to household contents and furniture. Neither the husband nor the wife have provided valuations in relation to those items though, again, perhaps, understandably from the perspectives of each, the values are different depending upon who has the bulk of the furniture. The wife suggests that it is in the husband’s possession and is worth $15,000 whilst the husband suggests that the value is no more than $10,000. Similarly, there are disputes as to the value of the contents of shipping containers. The wife is saying that the contents are worth $2000 and the husband $500, again, perhaps, reflective of the fact that the property is in the husband’s custody or control. For calculation purposes again, I shall include a figure of $10,000, noting that second-hand furnishings and white goods have limited value.
Most significant, in relation to the determination of this matter is the treatment to be provided in respect of moneys retained by each of the parties at or about the time of separation. It is clear that the husband drew down approximately $233,000. It is also clear, however, that certain funds were also available for the wife as was a further payment to the wife out of retained moneys and a payment to the wife for the purposes of taxation liabilities. It is, indeed, difficult to ascertain what might be an appropriate position in relation to the matter but I do note that if an amount, as appears acknowledged, of $30,000 was paid to the wife then it should be offset against the amount of $30,000 held by the husband and that if that $60,000 were removed then the balance that would remain would be approximately $173,000.
In that regard the husband acknowledges that there currently remains in his bank account an amount of $44,375 and that there should be, he says, an add-back of $135,379. In the circumstances it is impossible to make any other assessment, particularly when neither of the parties to any real extent was challenged in relation to what might or might not have happened with moneys received by them and subsequently utilised for whatever purposes they considered appropriate.
I am satisfied that for the purposes of these proceedings that the only figure which can properly be used in relation to an appropriate add-back being included is $135,379.44 and I intend to include that along with the amount held, the husband says in his account at the time of trial, of $44,375.81.
In the circumstances, I do not, then, intend to include as an add-back, a lump sum payment made to the wife in the sum of $30,000 or a drawing of $15,000 by the wife, it being clearly the case that there were needs held by the wife, and if nothing else, there would be little other than an appropriate balance reached, if it were considered that the husband had the continued occupation of the former matrimonial home whilst the wife had little available to her and was required to meet expenses which did not fall upon the husband. In my assessment that provides a just and equitable solution to the issues with regard to the assets of the parties.
It is noteworthy, also, that a taxation liability from the partnership was paid on the part of the wife, but one can only imagine that similar partnership liabilities were also paid from funds either utilised by the husband from the amount drawn down by him from the joint account or from income earned by him through the utilisation of joint property and, again, in the circumstances, I consider it just and equitable to simply exclude that sum from any final determination of what might constitute the pool available for distribution for the parties.
I am satisfied, therefore, that the immediately realisable property pool is $702,390.50 and that the superannuation pool for distribution between the husband and the wife, is $189,040.21.
I turn then to the issue of contribution. As I have indicated, it is as difficult a determination as one can imagine, because there is little, if any, documentation available to assist in relation to any assessment of what one or other of the parties might have brought into the relationship and, of course, there is absolutely no agreement able to be assessed between the husband and the wife. The husband’s position of bringing $200,000 into the relationship certainly flies in the face of the fact that the parties, during the relationship, continued to borrow funds which were required to establish their residence and to provide a place for the operation of a business.
I accept that there is some taxation advantage that the husband makes reference to in relation to borrowing for the purposes of business, but it also appears clear that certain of those borrowings occurred for the establishment of the party’s residence and there is, of course, no taxation advantage in that respect. I am inclined, therefore, to think that the husband brought more into the relationship than the wife but it is impossible to actually quantify what that might have been. It was, I would assess, greater than $24,000 but by the same token significantly less than $200,000. I am satisfied that it could notionally be considered to be in the vicinity of $100,000 when one considers the costs of the purchase of land and the building of the residence as well as the establishment of the business and the need for funds associated with that.
However, subsequent to the commencement of the relationship between the husband and the wife, more than 20 years have passed and the parties have moved on with their lives, contributing in different ways but just as valuably to the marriage, both in a financial and non-financial way. It is as I indicated earlier, unreasonable of the husband to suggest that his contribution is the more valuable or, I would think, from his perspective, the only valuable contribution to the relationship, in that he provided the bulk of the income coming into the residence and also, when home, participated in family activities and attended to some of the household chores.
It totally fails to recognise the contribution by the wife as a homemaker and mother and the husband’s rather grudging statements, that the children were required to do a lot of the housework and that grandparents contributed to the care of the children, fails in any way to appreciate the obligations and responsibilities that must clearly have fallen upon the wife, in relation to this marriage.
I am satisfied in the circumstances that, at least until the time of separation, the party’s contributions though entirely different and made either financially or non-financially, were of an equal character and it is appropriate that the starting point in relation to the contributions of the parties should be seen as an equal or 50/50 contribution.
Subsequent to separation, however, circumstances radically changed. As I have previously noted, the husband retained the vast bulk, if not almost the entirety, of the party’s assets, including both those which provided a residence for the parties prior to separation and the assets which led to the capacity of the husband to generate income. The wife was left, to all intents and purposes, without any means of support. She may have, subsequent to separation, received an amount of $15,000 and also received subsequently some taxation refund, but the fact is that there was little, if any, real contribution, either financial or emotional, subsequent to separation, and for a period of nearly nine months the wife was without any real source of income.
During that time she was also responsible primarily for the financial and, one would think, almost exclusively, emotional support of the child, X. And subsequent to the wife obtaining some employment, she still continued to be responsible for those arrangements, including after obtaining work, being able to rent accommodation and to provide a residence for she and the child. It was also necessary for her to purchase the basics, in relation to electrical and furniture items, because of the husband’s apparent advice to retain all such items within the home.
When those factors are taken into consideration, both the difference in financial circumstances of the parties, the difference in earning capacity, and the difference in the obligations that each had financially and familially following separation, there is clearly a far greater contribution on the part of the wife, reflected perhaps most obviously in the fact that she had an interest in a home, but received nothing for that, as a result of the husband’s occupation of that residence.
It affects significantly the contributions between the parties post-separation, and I am certainly satisfied that they are properly reflected in a further five per cent being assigned to the wife, such that I am satisfied that the contributions of the parties are reflected in a 55/45 assessment as between the husband and the wife.
The third step to be taken in relation to any such determination then is to consider those matters that relate to section 75(2) of the Family Law Act. In particular, they are as noted in my earlier comments with regard to the law, the prospective elements of a property settlement to be effected between the parties to a relationship. There are a number of factors which need to be balanced.
The first of those is to recognise that whilst X continues to live with the wife, it is not a question of her entitlement to a roof over her head which needs to be considered, particularly with regard to any alteration of property interests. It is clear that X is over 18 years of age, and whilst there may still be some direct financial and certainly emotional obligations and responsibilities held by the wife in relation to X, it is not the case that there is any specific consideration regarding the wife’s desire to maintain her role as a homemaker and mother for the children.
The children of this relationship are all, at least in the eyes of the law, adults, and the responsibilities and obligations that the parties have are different. However, two other factors certainly loom large in relation to this matter.
The first is the clear disparity in the income and earning capacity of the parties, noting that the husband’s own accountant’s figures would indicate that he is able to derive significant income and benefits from the operation of the business that is, to all intents and purposes, retained and operated him. However, the wife is limited in what she is able to earn. There may be greater opportunities as time passes for her to obtain full-time employment, and, therefore, to further supplement the funds available to her, but one needs obviously to be mindful of the fact that the wife has had limited involvement in the workforce for a very significant time, and whilst the husband’s suggestion was to the effect that the wife had “all the certificates under the sun”, they do not necessarily guarantee employment, particularly if, as is the case here, the wife lives in a small community and, therefore, there are lesser employment opportunities open and available to her.
It is clear that the husband, at least at this time, has far greater capacity to earn income and to generate funds now and into the future. It is a factor which weighs in favour of the wife, but also needs to be balanced against those issues to which I made previous reference in relation to the husband’s health. The clear evidence of Dr Y is that there is no long-term indication of what might be the husband’s capacity for continued work. He is certainly able to work now and certainly able to generate significant income, but he is now 51 years of age and is involved in the operation of a business which is highly dependent upon him being able to perform the tasks required for the operation of that business.
There is no certainty as to what the future might hold and there is certainly a requirement, therefore, to give consideration to the health of each of the parties and how that might be reflected in the future and particularly, upon the husband’s capacity to earn. Of course, no one knows what the future might hold and it may be that whilst the husband experiences difficulties with his Type 1 diabetes, he may also be able to continue to work for a period of 10 years or even more, and if that is the case, then his earning capacity will be little diminished and will, as I surmise, far outweigh whatever might be able to be earned by the wife, in any form of employment that she enters into.
Those factors need to be taken into consideration as best one can in relation to this matter, and whilst there are certainly other considerations to be looked at in respect of matters to be taken into consideration with regard to the future prospects of each of the parties, I am satisfied that those two primary considerations loom largest in relation to any further adjustment. There is clearly a distinction that is able to be drawn now, but it needs to be balanced against the prospects for the future.
As best I can assess in relation to this matter, it is in my view appropriate that a further adjustment in favour of the wife should be made, but that, in light of the unknown nature of the husband’s future employability, that it should only be of an amount of 2.5 per cent. I am satisfied that when one considers those future considerations that arise pursuant to the provisions of section 75(2), that an adjustment of 2.5 per cent in favour of the wife, reflects the issues as best they can be assessed at this time.
In the circumstances, therefore, the percentage distribution to be effected between the husband and the wife, in my assessment, is reflected most appropriately in a 57.5/42.5 distribution between the husband and the wife.
I do not intend nor do I consider it appropriate to seek to determine the immediately realisable assets in a different manner to those assets which might be available for distribution between the parties, as a result of the superannuation entitlements that each holds. Quite clearly, there is a need to recognise that each have needs at the present time, but, of course, each will also have needs which are required to be met into the future and certainly post-retirement, such that a proper superannuation entitlement for each of the parties into the future is just as significant and appropriate a distribution to be effected, as to make funds immediately available to one party or the other.
I am satisfied that the orders which are detailed at the commencement of these reasons then reflect a just and equitable distribution of the property between the parties. I should note also that whilst there remains on foot an application by the wife seeking some adjustment by way of a spouse maintenance component being paid, I am not of the view that it is appropriate that there be any past adjustments in relation to spouse maintenance or, in fact, any continued obligation or responsibility in relation to the payment of spouse maintenance pending settlement of property.
The real issue here is to effect a property settlement between the parties as quickly as possible, and I make orders that reflect that intent.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 5 November 2015
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