DEELEY & DALLAS
[2013] FMCAfam 249
•4 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEELEY & DALLAS | [2013] FMCAfam 249 |
| FAMILY LAW – Property – application for property settlement – contributions by parties – where applicant claims a discrete period of cohabitation in a de facto relationship ending in 1996 – no jurisdiction – where applicant claims separate period of cohabitation and subsequent marriage – allegations of family violence – whether applicant’s contributions made more difficult by family violence – length of marriage – short marriage – where evidence establishes period of cohabitation of 2 years and 4 months – whether adjustment should be made under s.75(2) Family Law Act 1975 (Cth) due to respondent’s ill health. PRACTICE & PROCEDURE – Where parties elected to proceed on the papers without oral evidence – difficulty in making of findings of fact where factual issues in dispute – absence of independent corroborating evidence. |
| Family Law Act 1975, ss.75, 79 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 |
| Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143 Kennon v Kennon (1997) 22 Fam LR 1; FLC 92-757 Norbis & Norbis (1983) 9 Fam LR 385; (1984) FLC 91-543 Stanford v Stanford [2012] HCA 52 |
| Applicant: | MS DEELEY |
| Respondent: | MR DALLAS |
| File Number: | SYC 658 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 November 2012 |
| Date of Last Submission: | 23 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2013 |
REPRESENTATION
| Solicitors for the Applicant: | PCR Law & Associates |
| Solicitors for the Respondent: | In person |
ORDERS
The Applicant wife is to retain and be solely entitled to the proceeds of all bank accounts standing in her sole name.
The Applicant wife is to retain and be solely entitled to the sum of $300.00 being the proceeds of sale of a Daihatsu Mira motor car.
The Applicant is entitled to retain and is solely entitled to the following items of personalty:
(a)Her household contents;
(b)Two Bolex movie cameras;
(c)A painting of a boat by Percival;
(d)A crayon picture by Arthur Murch;
(e)A CMG docking saw;
(f)A Comet welding set;
(g)A 200 litre welding set;
(h)A quantity of stackable tool boxes currently in her possession;
(i)A Bosch power drill;
(j)An Ozito angle driver and diamond tools;
(k)A Dremel grinder and diamond tools;
(l)An Abbott & Ashley polisher machine;
(m)A Wurth cabinet of consumables;
(n)A washing machine currently in her possession;
(o)All items of furniture in her possession.
The Applicant is declared to be solely entitled to the following items:
(a)The caravan standing at [address omitted] in the State of New South Wales; and
(b)The replica Stradivarius violin held by Mr F at [omitted] in Melbourne.
The Respondent is to do all things and sign all documents necessary to facilitate the items in Order (4) above being put into the possession of the Applicant.
The Applicant is to be liable and indemnify the Respondent and keep him indemnified for the following liabilities:
(a)A debt of $2,500.00 owing to the Applicant’s mother Ms G;
(b)An amount of $670.00 owing to an apprentice; and
(c)An amount of $800.00 being a telephone account owing to Optus.
The Respondent is declared to be solely entitled to a painting of himself by David Renn and the Applicant is to do all things necessary to put the Respondent into possession of that item at the Respondent’s expense.
The Respondent is declared to be solely entitled to the following items of personalty:
(a)A Toyota Hilux motor vehicle currently in his possession;
(b)A quantity of blacksmithing tools currently in his possession; and
(c)All other items of personalty currently in his possession or control.
The Respondent is to pay to the Applicant the sum of $87.00 within two (2) months of the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Deeley & Dallas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 658 of 2012
| MS DEELEY |
Applicant
And
| MR DALLAS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for settlement of property between parties to a marriage.
The Applicant is the wife. She seeks orders as set out in her Application filed on 9 February 2012, being:
1. That the net assets and resources of the marriage be divided between the Applicant and the Respondent with the caravan, blacksmithing and general tools and trailer being divided 50 per cent to each party and 100 per cent of the remainder to the Applicant.
2. That all amounts due from the Respondent to the Applicant be paid by the Respondent and any remaining issues regarding the property be addressed min the distribution of that property.
The Respondent filed a Response seeking these orders on a final basis:
1. That the Applicant return all of my tools and personal effects as listed in Part O of my Financial Statement filed in these proceedings and all of my personal papers and documents in her possession.
The Respondent has also sought an expedited final hearing of the Application as he has deposed that he is suffering from a terminal illness. He has forwarded to the Court a medical certificate signed by a Dr B of [omitted] dated 2 April 2012 stating that he suffers from Mesothelioma, an asbestos-related pulmonary disease which is incurable and terminal.
On the basis of this diagnosis the Respondent was granted leave to attend Court by telephone, as his medical certificate states that he is unable to travel.
The Respondent was not represented by a lawyer.
Background
The Applicant was born [in] 1954.
The Respondent was born [in] 1953.
The parties were married [in] 2009 and separated on or about 31 August 2011. They are not divorced.
There are no children of the marriage.
The Applicant commenced these proceedings by filing an Application, a Financial Statement and a supporting affidavit on 9 February 2012.
The Respondent filed a Response, a Financial Statement and an affidavit in support on 4 June 2012. On that same date the parties were directed to attend a Conciliation Conference before a Registrar of the Court.
The parties attended the Conciliation Conference on 20 July 2012 but the matter did not settle.
The Application was listed for final hearing on 23 November 2012.
The Applicant and her solicitor, Mr Roberts, attended Court for the hearing. The Respondent attended by telephone. The parties agreed that no witness was required for cross-examination, so the matter proceeded by a consideration of the affidavit material. The Applicant’s solicitor and the Respondent each made oral submissions.
The Proper Approach to Determination of a Property Application
The way a court approaches property matters has been authoritatively set out by the Full Court of the Family Court in its decision of Hickey & Hickey[1] where Nicholson CJ, Ellis & O’Ryan JJ held at [39]:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s. 79. That approach involved four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g), (the “other factors”) including, because of s. 79(4)(e), the matters referred to in s. 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…
[1] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
The Court should also have regard to the recent decision of the High Court of Australia in Stanford v Stanford[2], where the majority held at [35] - [37]:
It will be recalled that s 79(2) provides that “[t]he 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) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property…[3]
[2] [2012] HCA 52
[3] [2012] HCA 52 at [35]-[37]
The Parties’ Property and Liabilities
Unfortunately, the parties have not prepared an agreed balance sheet or any statement of agreed value of the assets. However, the Applicant has sworn an affidavit on 30 July 2012 to which she has annexed various list of items of property. She deposes that a number of items on the lists provided by the Respondent no longer exist.
The Applicant has annexed to her affidavit and marked with the letter “D” a list of assets and liabilities, to which she refers in paragraphs [7] to [10] of her affidavit, saying:
7. However to the best of my knowledge and belief the only substantial assets and liabilities of the marriage are those set out in Annexure D. The other items referred to by the Respondent in Annexures A to C do not exist to the best of my knowledge and belief.
8. I have also set out in the second column on Annexure D the current location of all the items on that list in terms of whether they are in the possession or control of the Respondent or myself.
9. I have set out in the fourth column on Annexure D my position as to which items should go to the Respondent and which items should go to me. In the last column I have allowed space for the Respondent to provide his response regarding each of these items.
10. Furthermore there are a number of items that (are) contained in the Respondent’s lists in Annexures B and C that are not in the list in Annexure D as they do not exist to my knowledge and belief.[4]
[4] Affidavit of Ms Deeley 30.7.2012 at paragraphs [7]-[10]
The Applicant goes on to depose that she perused lists provided by the Respondent and says that a considerable number of the items on those lists do not exist. The Applicant goes on to say at paragraph [13]:
On the basis of the above evidence I request the Court to refer only to Annexure D as the correct list of the current assets and liabilities of the marriage for the purposes of these proceedings.[5]
[5] Ibid at [13]
The parties have each filed a Financial Statement, neither of which is particularly helpful. There is a shortage of valuation evidence, and little in the way of affidavit evidence as to the provenance of items whose value is in dispute. Each party seems want to conduct the case on an asset-by-asset basis rather than taking a global view of the totality of the assets to be divided (see Norbis & Norbis[6] ).
[6] (1983) 9 Fam LR 385; (1984) FLC 91-543
At the same time, Mr Roberts, who appeared for the Applicant, submitted that the Applicant seeks 65% of the total value of the joint assets whilst the Respondent submitted that he only sought 17 and a half per cent of the assets. It is rare, in my experience, that the total value of the percentages argued by the parties falls short of 100%.
Doing the best I can, from the parties’ financial statements and the Applicant’s balance sheet annexed to her affidavit of 30 July 2012, I find the asset pool to be:
a)Applicant’s Commonwealth Bank Account $41.00
b)Applicant’s Bendigo Bank Account $120.00
c)Applicant’s household contents $2,000.00
d)Daihatsu Mira motor vehicle sold by Applicant $300.00
e)1987 Toyota Hilux 4WD Utility[7] $3,000.00
[7] In the possession of the Respondent – claimed by the Applicant
f)Caravan (Respondent’s possession) [8] $3,000.00
[8] Claimed by the Applicant
g)Blacksmithing tools (Respondent’s possession) $8,000.00
h)Boat trailer (Respondent’s possession) $2,500.00
i)Respondent’s Commonwealth Bank account $8.00
j)2 guns (with Respondent’s friend Mr A) $2,000.00
k)Camping equipment (Respondent’s possession) $600.00
l)Bolex movie cameras (Applicant’s possession) $7,500.00[9]
[9] Agreed value
m)Replica Stradivarius violin (Mr F) $2,500.00[10]
[10] Agreed value – claimed by both parties
n)Painting of boat by Percival (Applicant) $700.00[11]
[11] Respondent claims it is worth $1,200.00
o)Crayon by Arthur Murch (Applicant) $3,000.00[12]
[12] Agreed value
p)Portrait of the Respondent by David Renn $3,000.00[13]
[13] Agreed value – currently in the possession of the Applicant but she concedes it should go to the Respondent
q)CMG Docking saw (Applicant) $300.00[14]
[14] Agreed value
r)Comet welding set (Applicant) $400.00[15]
[15] Agreed value
s)200 litre water tank (Applicant) $200.00[16]
t)Stackable tool boxes (Applicant) $2,200.00[17]
u)Bosch power drill (Applicant) $200.00[18]
v)Ozito angle grinder and disc (Applicant) $120.00[19]
w)Dremel grinder & diamond tools (Applicant) $220.00[20]
x)Abbott & Ashley polisher machine (Applicant) $660.00[21]
y)Wurth cabinet of consumables (Applicant) $1,000.00[22]
z)Various items of furniture (Applicant’s possession) $2,170.00[23]
aa)Washing machine (Applicant’s possession) $500.00[24]
Total non-superannuation assets $46,239.00
[16] Agreed value
[17] Agreed value
[18] Agreed value
[19] Agreed value
[20] Agreed value
[21] Agreed value
[22] Agreed value
[23] These are not referred to by Respondent
[24] Respondent claims it is worth $1,500.00
There are various assets claimed to be held by one party rather than the other, such as a John Deere Golf Mower said to be worth $12,000.00 in the possession of the Respondent and items such as a handmade Tomahawk and a Michael Hirst (whatever that may be) said to be worth $5,000.00 and $3,000 respectively in the possession of the Applicant, but there is no evidence about them, particularly not as to their value.
The Applicant claims that the Respondent claims to have an unused Sine Wave Converter worth $3,500.00 in his possession, but, again, there is no evidence about this item other than an assertion by the Applicant that the Respondent has it.
Neither party claims to have any superannuation.
The most recent evidence of the parties’ liabilities can be found at Annexure “D” to the Applicant’s affidavit of 30 July 2012. The Respondent does not deny the existence of these liabilities.
Accordingly, I find the parties’ liabilities to be the following:
a)Loan to the Applicant from her mother: $2,500.00
b)Superannuation payment due to Apprentice: $670.00
c)Optus telephone bill: $800.00
Total liabilities $3,970.00
I find the net value of the asset pool to be $42,269.00.
The Parties’ Contributions
The Applicant deposes in her affidavit of 11 November 2012 that there were two periods of cohabitation between herself and the Respondent. As to the first period of cohabitation, she deposes:
4. The Respondent and I started a relationship about 22 years ago and we cohabitated together for about 6 years.
5. During that time we lived in a variety of locations in New South Wales and Queensland finally moving to [G], Sydney. I left the relationship in about 1996 after the Respondent assaulted me at home in Sydney.[25]
[25] Affidavit of Ms Deeley 11.11.2012 at paragraphs [4]-[5]
The Applicant also deposes that they commenced to cohabit again in October 2008 and were married at [omitted], New South Wales, [in] 2009. They separated on or about 31 August 2011.
The Applicant claims that throughout the latter period of cohabitation she and the Respondent were involved in a start-up business aiming to [omitted]. They incorporated a company called [F] Pty Limited, of which the Applicant was the sole director and, for a time, secretary. They formed a joint venture with a company called [S] Pty Ltd and formed a company called [H] Pty Ltd for the purposes of operating the [omitted] project. The promised investment of $200,000.00 never eventuated and the project went into liquidation.
The Applicant claims she also made a contribution as homemaker and carer for the Respondent, who was on a disability support pension. She was receiving an invalid pension. She deposed that in about April 2010 she became the Respondent’s primary carer:
He had just lost his driver’s licence and he was frequently under the influence of alcohol so I became his driver and carer. I applied for and obtained a Carer’s Supplement from the Commonwealth Government in the amount of approximately $100 per fortnight.[26]
[26] Affidavit of Ms Deeley 11.11.2012 at [21]
The Applicant also deposes that during both periods of cohabitation the Respondent was frequently violent towards her and her two children of another relationship. She reported some of those assaults to the Police.
In his affidavit affirmed on 1 June 2012 the Respondent denies that he and the Applicant cohabited from about 1990. He denies assaulting her. He concedes that he was involved in a relationship with the Applicant but denies that it was an exclusive relationship.
The Respondent refers to several business ventures in which he and the Applicant were involved between 1990 and 2000, such as the purchase of a [omitted] and a [omitted] service. He claims that he gave to the Applicant an amount in excess of $100,000.00 over that time.[27]
[27] Affidavit of Mr Dallas affirmed 1.6.2012 at paragraph [5]
The Applicant is claiming that there have been two discrete periods of cohabitation between the Respondent and herself:
a)a de facto relationship from 1990 to 1996; and
b)a period from about October 2008 until about 31 August 2011, during which time the parties were married, on [date omitted] 2009.
The Respondent denies that the parties were in a de facto relationship from 1990 to 1996.
In my view, taking the Applicant’s claim at its highest, if the parties were involved in a de facto relationship in this earlier period, on her own evidence it came to an end in 1996. The parties’ resumption of cohabitation in October 2008 and subsequent marriage in [omitted] 2009 cannot bring the earlier relationship within the jurisdiction of the Court.
The Court has no jurisdiction under the Family Law Act to deal with property matters arising out of de facto relationships that came to an end before the commencement of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 on 1 March 2009.
The Court has jurisdiction to deal with the Applicant’s claim arising out of the marriage in [omitted] 2009, including the claim that cohabitation commenced in October 2008.
The Applicant claims that this period of cohabitation came to an end on or about 31 August 2011. However, this is specifically denied by the Respondent in his affidavit of 1 June 2012, where he states at [9]:
The Applicant and I separated in about February 2011. I left the premises at [G] after an argument and apart from seeing each other for a couple of days here and there since that time, we have not lived together.[28]
[28] Affidavit of Mr Dallas 1.6.2012 at [9]
The parties elected to proceed on the papers by way of submissions only. Where the parties do not give oral evidence, the Court is not able to have that evidence tested by cross-examination and is unable to make a definitive finding of fact on a matter in dispute unless there is some other independent evidence.
Thus, the Court can only make a finding about the length of cohabitation where there is no opposing evidence. Accordingly, the period of cohabitation must be regarded as from October 2008 to February 2011, as the Respondent denies that the parties did not separate until the end of August 2011.
The Applicant is claiming that domestic violence by the Respondent should be taken into account under s.79 when assessing her contributions. She sets out in her affidavit evidence a broad claim of violence towards her by the Respondent:
27. When we started to cohabit again in October 2008 I thought that the Respondent has left his violent tendencies behind and for a while he was not violent towards me. However about six months after we were married he started again on me. For the next 18 months or so after the violence towards me escalated and I needed to call the po9lice about six (6) times because I had become terrified of him.
28. Towards the end of our period of cohabitation the arguments and violence became too much. He had become paranoid and kept accusing me falsely of having affairs. In the end I decided that I couldn’t take this any longer and asked him to leave.[29]
[29] Affidavit of Ms Deeley 11.11.2012 at [27]-[28]
The Respondent denies the allegations of violence in his affidavit of 1 June 2012 at paragraph [21]:
My strong objection to her involvement in these activities would lead to serious arguments resulting in the Applicant making false allegations and the issue of various AVO’s against me. I also suffered the indignity of being incarcerated as a result of an alleged breach of an AVO, only to have this, and all other, AVO’s ultimately dismissed.[30]
[30] Affidavit of Mr Dallas 1.6.2012 at [21]
In my view, the allegations of family violence, which are denied, are so broadly-based that the Applicant has not substantiated her claim that her contributions have been made more difficult by the Respondent’s behaviour (see Kennon v Kennon[31]). The evidence is not sufficient.
[31] (1997) 22 Fam LR 1; FLC 92-757
The evidence is only sufficient to establish a period of cohabitation of two years and four months, including the period from October 2008 up to the parties’ marriage on [date omitted] 2009. Contributions are of particular importance in the case of a short marriage.
In this case, both parties took relatively little by way of assets into the marriage and their respective incomes were relatively low, being an invalid pension on the part of the Applicant and a disability support pension on the part of the Respondent.[32]
[32] Affidavit of Ms Deeley 11.11.2012 at [20]
The Respondent has been suffering from Mesothelioma for several years, which he describes as “a very painful and debilitating disease”.[33] The applicant deposed that from about April 2010 she became the primary carer for the Respondent, who no longer had a driver’s licence. The parties’ accounts differ as to the circumstances in which the Respondent parted with his licence but the Applicant claims that she became the Respondent’s driver and carer and obtained a Carer’s Supplement in the amount of approximately $100.00 per fortnight.
[33] Affidavit Of Mr Dallas 1.6.2012 at [23]
In my view, acting as her husband’s carer would constitute a contribution by the Applicant above that which would otherwise be the case.
In all the circumstances, I assess the parties’ contributions as 60% to the Applicant and 40% to the Respondent.
Other Factors taken into Account under Subsection 79(4)(d) to (g)
Paragraph (d) of subsection 79(4) requires the Court to take into account the effect of any proposed order on the earning capacity of either party. There will be no effect on the earning capacity of either party.
Paragraph (e) of subsection 79(4) requires the Court to take into account the matters referred to in subsection 75(2) so far as they are relevant.
The Applicant was born [in] 1954. She is currently 58 years old. She deposed in her affidavit of 11 November 2012 that:
As a result of the violence inflicted by the Respondent I suffer ongoing post-traumatic anxiety and depression. In the past I needed counselling for this and in the future I expect that I am going to need more counselling from time to time.[34]
[34] Affidavit of Ms Deeley 11.11.2012 at [30]
The Applicant has not provided any medical evidence as to her anxiety or depression.
The Respondent was born [in] 1953. He is 59 years old and is due to attain the age of 60 years in just under two months’ time. The Respondent deposed in his affidavit of 1 June 2012 that:
…I am in the later stages of Mesothelioma, a very painful and debilitating terminal disease, I humbly request that this Honourable Court grant an expedited hearing of this matter so that I may enjoy what little time I have left, perhaps only months…[35]
[35] Affidavit of Mr Dallas 1.6.2012 at [23]
The Respondent has forwarded to the Court a medical certificate dated 2 April 2012 from Dr B, a general medical practitioner stating that he is suffering from incurable and terminal Mesothelioma.
Neither party is in employment. The Applicant states that she is in receipt of a disability support pension and receives an income of $374.40 per week. The Respondent states that he receives a pension from the Department of Veterans Affairs which provides him with an income of $354.00 per week. Neither party appears to have the capacity to engage in gainful employment.
Neither party has the care and control of a child of the marriage who has not attained the age of 18 years.
Neither party has the duty to maintain a child or any other person.
Neither party has the responsibility to support any other person.
The Applicant is in receipt of a disability support pension. The Respondent is in receipt of a pension from the Department of Veterans Affairs. Neither party has any entitlement to any superannuation.
The parties’ standard of living seems not to have changed since they separated.
The marriage was of relatively short duration, with a period of cohabitation of only two years and four months.
Neither party is cohabiting with any other person.
There are no issues of child support under the Child Support (Assessment) Act 1989 (s.79(4)(e) and s.79(4)(g)).
There is no other fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.
There are no other orders under the Family Law Act affecting either of the parties (s.79(4)(f)).
If there is to be any order for property adjustment at all, it would appear that an adjustment should be made in favour of the Respondent because of his terminal Mesothelioma, which may well require additional medical and care expenses. The Respondent has not provided any details of any such needs. He no longer has a driver’s licence. If there is to be an adjustment in his favour, it would be in the nature of five per cent.
Just and Equitable
Subsection 79(2) provides that:
The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
This subsection has taken on a greater significance as a result of the decision of the High Court in Stanford v Stanford[36]. It now seems clear that the Court should consider whether it is just and equitable to make an order at all.
[36] supra
In my view the Court should make orders altering the interests of the parties with respect to the property of the parties to the marriage or either of them. Although they are not divorced and there is no evidence of any pending Divorce Application, it is clear that the relationship of the parties has irretrievably broken down and there is no reasonable likelihood that cohabitation will resume.
Each party claims that the other party has one or more items in their possession that belongs to them, although it is sometimes difficult to ascertain which one of them was the original owner of a particular item. In many cases, that is of no significance.
On the other hand, there are some items in the possession of one party that quite clearly should be transferred to the other. A case in point is a painting of the Respondent by David Renn, which is currently in the Applicant’s possession. She would be more than pleased for it to go to the Respondent.
One difficulty is that there is no available sum of money or any real estate. The net asset pool consists largely of items of personalty. However, the Court must consider the overall value asset pool, which amounts to the relatively modest figure of $42,269.00.
In my view, there should be an adjustment in the Respondent’s favour of 5%, for the reasons referred to in paragraph [70] above.
The Applicant will therefore be entitled to 55% of the net assets, amounting to $23,248.00 in round figures.
The Respondent will accordingly be entitled to 45% of the net assets, amounting to $19,021.00 in round figures.
The Applicant will retain:
a)Her Commonwealth Bank Account $41.00
b)Her Bendigo Bank Account $120.00
c)Her household contents $2,000.00
d)The proceeds of sale of the Daihatsu Mira car $300.00
e)The Bolex movie cameras $7,500.00
f)The painting of the boat by Percival $700.00
g)The crayon by Arthur Murch $3,000.00
h)The CMG docking saw $300.00
i)The Comet welding set $400.00
j)The 200 litre water tank $200.00
k)The stackable tool boxes $2,200.00
l)The Bosch power drill $200.00
m)The Ozito angle grinder and disc $120.00
n)The Dremel grinder and diamond tools $220.00
o)The Abbott & Ashley polisher machine $660.00
p)The Wurth cabinet of consumables $1,000.00
q)The furniture in her possession $2,170.00
r)The washing machine $500.00
Total $21,631.00
The above items are already in the possession of the Applicant.
The Applicant should be responsible for payment of the loan from her mother amounting to $2,500.00. She also appears to have assumed responsibility for payment of the other liabilities, being the superannuation payment of $670.00 due to the apprentice and the Optus telephone bill. This does not mean that the Respondent should avoid liability, but due to his state of health it would appear to be more likely that the Applicant will see that these outstanding amounts are paid. An allowance should be made accordingly.
This means that the replica Stradivarius violin, said to be worth $2,500.00, and the caravan, said to be worth $3,000.00, should be transferred to the Applicant. In my view, the evidence from the Applicant indicates that these two items should more properly be placed with her.
The portrait of the Respondent by David Renn, currently in the possession of the Applicant, should go to the Respondent.
The Applicant will therefore receive or retain assets worth $27,131.00 and will incur the responsibility of the liabilities, which amount to $3,970.00. The net total that she receives will amount to $23,161.00.
It may be argued that this will lead to a shortfall of $87.00, but in my view that cannot be helped. The Respondent will retain the Toyota Hilux which the Applicant sought. It would not be just and equitable to require that vehicle or any other asset to be sold to make up such a relatively small amount, but an order will be made that the Respondent should pay that sum to the Applicant. He will be allowed two months to pay.
The Respondent will retain the other items of personalty currently in his possession.
The parties need to be aware that property settlement proceedings under s.79 of the Family Law Act are not intended to be precise mathematical exercises and the Court will not normally undergo a piece by piece analysis of the provenance of every item of personal property that forms part of the asset pool.
It is regrettable that the parties were not able to negotiate a fair division of such a modest asset pool without the need for litigation to a final hearing.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 4 April 2013
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