Demtrovski and Paposka

[2009] FamCA 4

FAMILY COURT OF AUSTRALIA

DEMTROVSKI & PAPOSKA [2009] FamCA 4

FAMILY LAW – PROPERTY - Settlement in relation to marriage

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

Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355

Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414

APPLICANT: Mr Demtrovski

RESPONDENT: Ms Paposka

FILE NUMBER: SYF 237 of 2006

DATE DELIVERED: 14 January 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 25 & 26 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stewart

SOLICITOR FOR THE APPLICANT: DGB Lawyers

COUNSEL FOR THE RESPONDENT: Mr Moss

SOLICITOR FOR THE RESPONDENT: Turner Freeman Lawyers

Orders

1. That the wife do all acts and things and sign all documents necessary so as to effect a sale of the property situated at and known as N Street, P (“the [N] Street property”) for the best price reasonably obtainable and on settlement of the sale, the proceeds of sale be paid in the following manner and priority:

   (a)All costs and expenses of sale including legal costs and disbursements, agents commission and any advertising fees;

   (b)The amounts required to discharge the mortgage registered over the property;

   (c)The amounts required to pay all municipal and water rates outstanding with respect to the property;

   (d)The outstanding fees of Dr G, Professor L and Dr D ($3000) and $550 to the wife’s mother; and

   (e)The balance, if any, to be paid into the controlled monies account on behalf of both parties with Heard McEwan.

2. That in the event that the nett proceeds of sale of the N Street property are insufficient to meet the payments referred to in orders 1(a) to 1(d) hereof then such payments will be met from the nett proceeds of sale of the former matrimonial home at U held by Heard McEwan in the said controlled monies account and the parties shall do all acts and things and sign all documents necessary so as to effect this order.

3. That upon compliance by the parties with orders 1 and 2 hereof, the parties instruct Heard McEwan to disburse the whole of the remaining balance of the said proceeds of sale of the former matrimonial home at U held by them in the controlled monies account (including interest earned) in such proportions as will achieve a division between them overall of 60 percent to the husband and 40 percent to the wife in accordance with the reasons for judgment and findings of Judicial Registrar Johnston and on the basis that any losses in respect of the N Street property between 1 January 2009 and completion of the sale of the property are to be borne equally by the parties.

4. That the wife shall do all acts and things and sign all documents necessary to transfer to the husband her interest in the Mitsubishi Lancer motor vehicle registration ….

5. That the husband forthwith make available to the wife for her collection such items of her jewellery including but not limited to her engagement ring, wedding ring and the wife’s grandmother’s jewellery as are in his possession and/or control.

6. That other than as is specifically provided for in these orders the parties are solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each of them including their respective entitlements to superannuation.

7. That the above orders not commence operation until 30 January 2009.

8. That each party have liberty to re-list these proceedings at any time prior to 30 January 2009 for further submissions about the form of the orders only.

9. That all exhibits are released.

IT IS NOTED that publication of this judgment under the pseudonym Demtrovski & Paposka is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 237 of 2006

MR DEMTROVSKI

Applicant

And

MS PAPOSKA

Respondent

REASONS FOR JUDGMENT

Introduction and Application

1. The parties in these proceedings are Mr Demtrovski and Ms Paposka.  For convenience I shall refer to them as “the husband” and “the wife” respectively.

2. The husband seeks orders to the effect that the money in the controlled monies account held by Messrs Heard McEwan on behalf of the parties be paid to them in the proportions 60 percent thereof to the husband and 40 percent thereof to the wife.  The husband also seeks an order to the effect that the wife transfer to him her interest in the 2004 Mitsubishi Lancer motor vehicle.  The husband also seeks an order that the wife make available to him certain specified items of personal property and that otherwise each party be declared the sole owner of all other property in their possession and/or control.  The husband also seeks an order to the effect that the wife indemnify him in respect of monies outstanding to the St George Bank Limited pursuant to registered mortgage over the property at N Street.

3. On the other hand the wife seeks orders firstly to the effect that the property at N Street be sold and that after paying costs of the sale including legal costs, discharging the mortgage and paying to the wife’s mother and her brother the sum of $25 000 the proceeds be paid in the proportions 35 percent to the husband and 65 percent to the wife.  The wife also seeks an order that in the event that there is a deficiency in respect of the above sale then that deficiency be met from the monies in the controlled monies account referred to above.  The wife also seeks an order to the effect that the controlled monies account be paid 35 percent to the husband and 65 percent to the wife.  The wife also agrees with the order that she transfer her interest in the Mitsubishi motor vehicle to the husband.  She also seeks an order that the husband pay the sum of $14 500 to her mother.  The wife also seeks an order that the husband make available to her for collection her jewellery including engagement ring, wedding ring and the wife’s grandmother’s jewellery.  Otherwise the wife seeks a similar order in respect of personal property to that sought by the husband.

Background

1. The husband was born in December 1973 in Macedonia.  The wife was born in August 1973 in Australia.  The husband came to Australia with his parents when he was a child. 

2. The parties became engaged to be married in 1998.  They started looking for land on which to build a home.  The husband purchased a block of land at U in August 1999 for $52 000.  The husband’s mother provided $50 000 towards the purchase price.  The husband paid the balance as well as the stamp duty and legal costs.

3. The parties then set about arranging for the construction of a home on the land.  The husband is a tradesman. He undertook much of the work himself assisted by his father and his brothers and to some extent by the wife and her relatives.  I shall refer to this again below. 

4. The work was funded initially from $20 000 savings which the husband had and then from a home loan which he arranged with the IMB Building Society.  This loan was subsequently refinanced with the St George Bank into the joint names of the parties.

5. The parties married in February 2000.  At the time of their marriage the home had been constructed to lock-up stage. 

6. The parties went on a honeymoon to Malaysia.  Upon their return they resided in rented accommodation at C.  The husband was working for E Company as a tradesman.  The wife was working for S Company.  Each of them had a motor vehicle.

7. There are no children of the marriage.

8. The parties moved into their home on 23 September 2000. 

9. In June 2001 the husband ceased working for E Company.  He subsequently commenced working for L Company Pty Limited which employment he ceased in January 2002.

10. In 2002 the wife purchased a Subaru motor vehicle for $40 000.  The source of the funds required for this purchase remains far from clear to me.  The wife said at one point that her brother paid for the vehicle as a gift to her.  At another point the wife said that her mother had funded the vehicle.  In any event, it appears to be common ground that the wife did not pay for this motor vehicle.

11. In July 2003 the wife suffered an injury when she fell over at work.  She continued to work but was dismissed from her employment in April 2005.  Upon dismissal she received a payment of approximately $25 000.

12. In 2003 the husband purchased a Mitsubishi Lancer for $18 990.  He paid a deposit of $500, received $3390 as a trade in on his 1993 Mazda sedan which he owned at the time of the marriage, and the wife’s mother paid the balance of $14 500.  I shall refer to this again below. 

13. In December 2004 the wife purchased the property at N Street for $110 000.  This property had been her childhood home, being the home rented by the wife’s parents.  The wife’s mother loaned her $10 000 for the deposit and the wife borrowed $125 000.  The balance of funds was used to finance renovations.  The husband undertook most of the renovation work involved although the wife was involved in arranging supplies and ordering a new kitchen.  The property remained untenanted until February 2007 from which the time it has been rented out.  It is negatively geared in the sense that the costs of servicing the mortgage, paying rates and fees far outweigh the sum of monies received as rent.

14. In July 2005 the parties had a holiday in Macedonia. 

15. In October 2005 the husband refinanced the mortgage and, as indicated, it became the joint responsibility of the parties.

16. In November 2005 the wife underwent surgery.  For a short time the wife used a wheelchair.  She says from this time the marriage was in real difficulty.  She painted a picture of the husband resenting her incapacity. 

17. In April 2006 the parties separated under the same roof. 

18. On 21 April 2006 the wife withdrew monies to a total of $91 392.02 from accounts held in her name with the Commonwealth Bank.  She says that these monies belong to her mother and that she has paid the money to her mother.  I shall refer to this further below.

19. In May 2006 the husband was charged with an assault on the wife and an interim Apprehended Violence Order issued in favour of the wife.  This was subsequently discharged by the Local Court.

20. On 29 May 2006 the husband vacated the former matrimonial home.  The wife continued to occupy the home.  She said that she was assisted by her mother, her brother, and friends from time to time. 

21. After separation the wife was unable to afford the maintenance and running costs of her Subaru motor vehicle.  She sold the vehicle to her mother for $5000 which money she used towards her legal costs.

22. In July 2006 the husband ceased working with P Company.  He then commenced working for T Company in Sydney.

23. On 5 September 2006 this Court made certain interim orders.  Firstly it made an order by consent that the parties sell the former matrimonial home and pay the proceeds after paying sale costs and discharging the mortgage to a solicitor’s controlled monies account.  There was also an order to the effect that the husband pay $160 per week to the wife as interim spousal maintenance.

24. The wife went to Macedonia in October 2006 returning in November 2006.  She says that while in Macedonia she underwent further medical treatment. 

25. On 15 October 2007 further orders were made by this Court including orders that the spousal maintenance order be discharged and that each of the parties be paid $20 000 from the controlled monies account as a partial property settlement. 

26. On 19 October 2007 the former matrimonial home was sold for $420 000.

Credit

1. I had the impression that neither of the parties was an entirely truthful witness.  Each of them appeared to me to use every opportunity to say things which they thought would favour their own case rather than answering questions in a responsive way.  I thought that the wife tended to do this even more than the husband.  Perhaps the high point of this in the wife’s case was the fact that she presented at Court in conservative clothes, wearing flat heeled shoes and using a crutch.  This appeared to be consistent with the wife’s assertions that she suffers from chronic pain and on a daily basis.  But I had the opportunity of observing a film taken recently by the wife which depicted her walking normally and without even holding crutches.  I also had the benefit of perusing photos of the wife taken during the evening after she had attended Court for the hearing.  The photos showed the wife wearing high heeled shoes and did not include any image of any crutches.  This was a very different presentation from that which I observed in the courtroom.  The wife sought to explain this difference by saying that she was 35 years of age and did not wish to look like an old woman.  The wife also said that, prior to changing her clothes and shoes and dispensing with the crutch, she had taken medication to give her pain relief.

2. In my view, this photographic material reflected poorly on the wife and lent weight to the husband’s assertions that the wife has exaggerated her symptoms and the level of her disability.

3. I must say I agree with the husband in this regard. 

4. The loan application forms signed by the wife in October 2004 for the purpose of endeavouring to obtain funds to purchase her property at N Street contained inaccuracies.  In the form the wife’s marital status was described as “single”.  The wife said that she did not make this entry and that at the time of signing the form she did not notice the error because she was on medication.

5. There were also inaccuracies in other parts of the wife’s evidence.  For example in her affidavit she said that when she purchased the Subaru motor vehicle it was purchased for her as a gift from her brother.  But in her cross-examination she said that her mother had funded the vehicle.  In addition, in her affidavit the wife suggested that her mother asked her to hold monies for her in early 2006.  Yet her mother said that this conversation was during 2004 and the wife’s own bank statements tendered by her in the proceedings suggest this was 2004. 

6. Despite these and other difficulties with the wife’s evidence I have the view that it is more probable than not that the general thrust of what she was putting to the Court including in relation to monies held by her on behalf of her mother was correct.

7. The husband did not impress me as a witness of truth.  He showed himself to be unable to make any concessions in the area of contributions made by the wife.  I have the view that he overstated his own contributions and understated those of the wife and other persons on her behalf.  He gave the impression that he undertook virtually the entirety of the work involved in the construction of the U property, apart from that undertaken by other tradesmen.  He was somewhat begrudging in admitting that the wife and others on her behalf had made any contribution at all and only agreed that they had done so upon being confronted with documentary evidence to that effect.  For example, the wife said in her affidavit that her mother advanced $6000 in July 2001 for the cost of timber flooring for the property.  The husband denied that the wife’s mother had paid for this.  Yet the wife’s mother’s bank statement at the relevant time showed a withdrawal of $6000 on 24 July 2001.  On this basis, I am satisfied about the wife’s account of this matter and that this in my view, reflects poorly on the husband.

8. The husband also denied the alleged conversation between him, the wife and the wife’s mother concerning them holding money on her behalf referred to above.  Both the wife and her mother were consistent in this and I am inclined to favour their version over that of the husband.

Ownership of approximately $90 000

1. The major issue in these proceedings is whether the wife or her mother own an amount of approximately $90 000 withdrawn by the wife shortly after separation.

2. The parties separated under the one roof on 18 April 2006.  At this time the wife had substantial funds of money standing to her credit in accounts at the Commonwealth Bank of Australia (“CBA”).  There is no question that the wife paid these sums to her mother.

3. Details of the withdrawals are as follows:

   ·$8000 on 24 April 2006

   ·$10 070.93 on 26 April 2006

   ·$20 000 on 27 April 2006

   ·$20 00 on 28 April 2006

   ·$30 000 on 1 May 2006

4. These total $88 070.93. 

5. The wife’s bank statements in fact show a somewhat different picture.  These show withdrawals from the three relevant accounts all made on 21 April 2006 to a total of $91 392.02.  The wife said that she paid these monies to her mother because the money belonged to her mother.

6. In her affidavit the wife said that between 1998 and 2002 her mother had received an inheritance from her parents of $100 000.  The wife said that the husband and she brought some of the funds to her mother from Macedonia after they settled here in 2002.  The husband denied that he had been involved in bringing money from Macedonia.  The wife said that for quite some time her family had personal problems with the behaviour of her younger brother which flowed from what she described as his drug addiction.  The wife said that in these circumstances her mother asked her to hold money on her account because her brother kept asking her for money and that she felt unable to hold out against his demands.  The wife said in that context her mother gave various amounts to her to hold on her behalf. 

7. But the wife also said that there was another reason why her mother had placed money with her for safe keeping.  This was because both her mother and father had problems with gambling.  The inference was that her mother did not want to be tempted to use the money for gambling and therefore gave it to the wife for safe keeping. 

8. The wife’s mother deposed in her affidavit to having received an inheritance of the equivalent in Macedonian currency of approximately AUD$100 000.  She said this was in approximately 1998.  She said that she arranged for this money to be brought from Australia over a period of time.  The wife’s mother said that the monies were brought variously to Australia by her, by her brother and his wife, by her mother-in-law and by the husband and the wife in these proceedings over a period of approximately four years.  The wife’s mother went on to say that in approximately 2002 or 2003 her son (the wife’s younger brother) demanded money from her and put pressure on her by physically and verbally abusing her.  She said that she wanted to avoid the possibility and the temptation of giving in to him and accordingly she asked the wife and the husband to hold money for her.  She said that the husband informed her that he could keep the money in the safe in their home or she could loan the money to them and they could put it towards their home loan.  She said she did not want the money to be put towards the home loan and asked them to keep it in the safe. 

9. The wife’s mother went on to say that throughout 2004 she gave to the wife and the husband various sums of money totalling over $90 000.  She said that she understood that her money was placed into their safe on her behalf.  She said that whenever she required money for any purpose she asked either or both of them and they gave her the money that she asked for.

10. I must say I find this hard to reconcile with other evidence.  There is no evidence that any of the money was placed in a safe.  The husband clearly denies this.  The wife said she did not put it in the safe but that she deposited it into a bank account or perhaps bank accounts in her name. 

11. In her affidavit the wife gave a detailed analysis which she presented in a schedule of various withdrawals made by her mother from her bank accounts and the dates of such withdrawals.  The wife included in her schedule various deposits which she made into cash management accounts and the dates thereof.  In effect the wife said that between 24 March 2004 and 30 August 2004 her mother withdraw amounts totalling $46 320.  The wife also said that between 26 March 2004 and 30 August 2004 she, that is the wife, deposited amounts totalling $46 000 into her cash management trust account number CBA3…9. 

1. This appears to be at odds with what her mother was saying.  But to be fair to the wife, a perusal of her statements of accounts and those of her mother demonstrate the following.  On 17 October 2001 the wife opened a cash management trust account with the CBA being account number 3…1 with a deposit of $47 363.01.  An account of the wife’s mother under her surname with the CBA showed that during August 2001 she withdrew sums to a total of $48 000.  This would appear to be the source of the opening deposit in the above account of the wife.  If one was to add this amount to the $46 000 which the wife said she deposited to her CBA account between 26 March 2004 and 30 August 2004 this would approximate the amount that the wife and her mother had been talking about.

2. But there are a number of difficulties.  Firstly, it is clear that the evidence does not support a finding that approximately $90 000 by way of various payments was provided by the wife’s mother to the wife and the husband throughout 2004.  I could accept that various payments totalling $46 000 came to the wife in this way.  Secondly, it is troubling that at least to some extent, the financial affairs of the wife and her mother are enmeshed.  And the wife has not been able to demonstrate that she put her mother’s alleged funds into a particular account or accounts and left them in such accounts without disturbance.  A perusal of the relevant statement of accounts indicates that the wife appears to have made deposits and withdrawals from the accounts.  In particular, during the course of her cross-examination it became clear that she had made regular deposits, mainly in the amount of $500 per month to her CBA Cash Management Trust Account number 3…1.  This was the account from which $34 103.71 was withdrawn on 21 April 2006.  The wife said that she had made these deposits from her income.  She said that her purpose in doing this was because the parties had borrowed a lot of money from her mother which they had not paid back, the inference being that these deposits were being made by way of some repayments. 

3. Between 30 January 2004 and 1 April 2006 there were deposited to this account amounts which in total were in excess of $11 490.  But there were also withdrawals to a total of $10 449 in November 2005.  In the absence of any satisfactory explanation about these items I draw the conclusion that the wife has had the benefit of the $10 449.  But as I have said, she has also deposited approximately $11 490 into the account presumably from her own funds.  I say presumably because the husband said that he had no idea of the existence of these accounts let alone any idea of the transactions thereon.  Interestingly, the $14 500 which the wife said her mother paid towards the purchase of the husband’s car in mid-2003 came from monies withdrawn from this account on 10 June 2003.  Having noted the movements in that account and particularly as I have referred to above I do not propose to regard the $14 500 paid towards the purchase of the husband’s motor vehicle as a contribution coming in on the wife’s side.  This is because I have the view that this money has in effect been repaid to the account by the contributions made by the wife in terms of the deposits to that account as indicated above.

4. I cannot completely discount the possibility that the funds withdrawn by the wife from the various accounts shortly after separation were in fact the monies of the wife and not her mother as she has asserted.  But I think that this is highly unlikely.  I accept the wife’s mother’s evidence that she inherited substantial funds as she has said and I was satisfied by the answers that she gave me in relation to this.  The objective evidence in the form of the relevant statements of account also supports money having been deposited into the wife’s accounts and the source of that most likely having been money from the wife’s mother’s inheritance.  I am prepared to accept that the wife has held money on her mother’s behalf.  I am less certain about the quantum of such funds.  And the enmeshment of the financial affairs of the wife and her mother together with the fact that there was not before the Court a full set of relevant statements of accounts for the wife and her mother over all the years of the marriage to enable in effect a full audit to be done, is troubling.

5. Despite some misgivings about the wife’s credit as referred to above, having observed the wife and her mother both give their accounts in respect of this matter I think it is more likely than not that, at least in broad terms, what they are asserting is correct.  In any event, on the evidence, I had the impression that the wife generally struggled to pay her bills as they were due and the husband conceded that this was the case on at least a couple of occasions in relation to her credit card.  Such is not the picture of a person who would have been able to accumulate the approximately $91 000 represented in the relevant accounts. 

6. The conclusion I have reached about this matter is that the husband’s submission that those funds should be added back into the available pool of property has not been persuasive.

7. The wife asserted that she had numerous liabilities as set out in her financial statement.  But apart from the mortgage on the N Street unit, outstanding fees to professionals and a $550 fee paid by the wife’s mother to AR in respect of the auction I do not propose to include these liabilities in the balance sheet. 

8. It is the case that the wife has had to pay the mortgage repayments in respect of the N Street unit.  She alleged in her financial statement that she owed $25 000 to her brother and her mother in respect of mortgage repayments and outgoings for the home unit.  These did not take account of the rental received.  While I accept that the unit represented an ongoing loss to the wife the loss would be approximately half what the wife asserted on the basis that one also has to take account of rent received.  I propose to take this matter into account in relation to my findings about the parties’ respective contributions to their property.  It will not be included in the balance sheet for this reason.

The Applicable Law

1. The Court must be satisfied that in all the circumstances it is just and equitable to make an order. This is provided by s.79(2) of the Family Law Act 1975.

2. The Full Court of this Court in its decision in the case of Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355 said as follows:

   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 involves 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 the parties.  Thirdly, the Court should identify and assess the relevant matters referred to 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:  Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335 (and various other well known authorities).

3. Despite some criticism of this decision by the majority of the Full Court in Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414, see for example paragraphs 36 and 37 at page 79,641 and paragraph 63 at page 79,646, in my view it is not incorrect to take the approach to the hearing of property proceedings as described in Hickey above.

Property available for division

1. In his financial statement the husband stated that he had superannuation with CBUS with an estimated value of $44 690.  There was no evidence about this in proper form.

2. In her financial statement the wife said that she had a superannuation benefit with First State Superannuation the value of which she estimated at $40 000.  There was no evidence of this in proper form.

3. In their Collaborative Balance Sheet tendered during final submissions, both learned counsel crossed out the references to superannuation.  I take the view, therefore, that the parties do not wish me to take their superannuation into account.  Presumably because it is considered that there is little disparity between the values of each of the balances in their superannuation accounts.  Accordingly, I do not include superannuation in the property available for division between the parties but I note, generally, that each party has some superannuation the exact value of which is unclear to the Court. 

4. The property available for division between the parties consists of the following:-

$
1.         Net proceeds of sale of former matrimonial home at U	217,329
2.         Property at N Street, P	120,000
3.         Preliminary distribution of controlled monies to the wife	20,000
4.         Husband’s Mitsubishi Lancer	11,000
5.         Preliminary distribution of controlled monies to the husband	20,000
_____________
$388,329

1. The liabilities are as follows:-

$
1.         Mortgage on N Street unit	120,185
2.         Outstanding fees of Dr G, Professor L and Dr D	3,000
3.         Wife’s mother for fee paid to AR for auction	550
_____________
$123,735
Surplus property compared with liabilities	$264,594

Contributions

1. The husband worked as a tradesman during most of the parties’ marriage.  It is true that he had some periods of unemployment but over these periods he received payments from the a Redundancy Trust.  These payments included the payment of $6000 in approximately 2004 when his employer went into receivership. 

2. In addition, the husband earned some modest remuneration from playing professional sport.

3. On the other hand the wife worked in her position with S Company until she was dismissed from her employment in April 2005. 

4. There was an issue about the extent to which the wife has made contributions to the project of construction of the former matrimonial home at U.  As indicated above, the husband appeared to find it difficult to make any concessions in this regard.  However, I am satisfied that the wife was involved in the project.  In my view, she has exaggerated her contributions even to the point where she sought to use photographs of her presence on the site in support of a submission that she had undertaken some of the heavy physical work.  I do not believe this.  Having said this I am satisfied that the wife was involved in some of the organisational aspects of the project such as arranging some of the building material and provision of services.  I accept that she attended at the building site regularly and from time to time did some cleaning up work.  Despite the husband’s denials I accept that the wife assisted him to some extent when he was undertaking work by passing him materials and equipment.  Having said this, in my view it is more probable than not that the wife exaggerated her efforts in this regard. 

5. The wife says that she physically assisted in laying the floating floor.  Having seen a photograph of her doing this I accept this even though the husband says that the photograph was staged. 

6. The wife’s uncle undertook some work in helping the husband in a number of areas of the work.  The wife’s brother was learning to become a professional brick cleaner and I accept that he cleaned some, but not all, of the brickwork and without payment.

7. Having said this, in my view the evidence is to the effect that the major contribution to this project was provided by the husband.  It was the husband who has done the major part of the physical and organisational work involved.

8. In terms of direct financial contributions to the construction project, as indicated above, the husband’s mother contributed $50 000 and the husband contributed the initial $20 000.  On the other hand I am satisfied that the wife’s mother paid the $6000 in July 2001 for the cost of the timber flooring, $6000 in 2002 for the parties to attend the wife’s cousin’s wedding in Macedonia, $2500 in 2006 which the husband used towards a trip to Germany and the $10 000 to assist the wife with the purchase of the N Street home unit.

9. In addition, the wife has had to bear the costs of the loss on the mortgage repayments and outgoings to maintain the N Street property since separation.  In my view these are clearly contributions which come in on her side.

10. In relation to the contributions as homemakers and in the area of domestic work they have each done some of this.  Again, the husband was somewhat begrudging in conceding any of this work to the wife.  I must say I can see little difference between them in terms of their efforts in this regard.

11. The result, in terms of the parties’ contributions overall is that I am satisfied that the husband has made a greater level of contributions than has the wife.  There was a very strong submission on behalf of the wife to the effect that the financial contributions, apart from the respective earnings of the parties, were approximately equal and that all other contributions being approximately equal the Court should find equality of contributions.  With respect to learned counsel for the wife, in my view this does not withstand analysis.  I am comfortably satisfied that the husband’s contributions have been greater overall than those of the wife.

12. In my view the contributions overall has been 60 percent by the husband and 40 percent by the wife.

s 75(2) matters

1. The husband is 35 years of age.  There are some difficulties in terms of his health.  He said that he has been feeling depressed and has been experiencing anxiety attacks.  He said that his concentration is low and sometimes at work he has left control rooms which has endangered the safety of his work colleagues.  He is working four hour days and he is currently employed by T Pty Limited.  His income is in excess of $600 per week.  He said that he thought specialist medical treatment might assist him but said that he could not afford it.  He agreed that he might be able to work full time in the future but would need to be able to concentrate fully and be completely fit for work.  He is currently taking medication for anxiety. 

2. Dr G reported on 16 August 2007 following her interview of the husband on 8 and 10 August 2007 that he was showing symptoms of panic disorder and depression.  Dr G thought that the husband’s employment restriction to four hours per day was normal in view of his psychological presentation and tiredness.  Dr G noted that the pressure of these proceedings and what was then the Apprehended Violence Order proceedings were leading to a deterioration in the husband’s condition.  Dr G had the opinion that the husband required a course of psychological treatment for what she described as his “panic disorder”, although she observed that persons having the sort of condition manifested by the husband had usually had the worst outcomes in terms of total recovery.

3. On the other hand the wife is also 35 years of age.  As indicated above, she has made a worker’s compensation claim.  But her employer has denied liability.  In any event, it has been suggested by the lawyers acting for the wife in respect of her claim that she has injuries which have not stabilised.  Accordingly, they expect it will be a considerable time before the wife’s condition is stabilised and able to be assessed by the worker’s compensation commission. 

4. Doctor D, neurologist, reported on 29 October 2007 on his consultation by the wife on 23 October 2007.  Dr D said that an MRI of the right hip on 28 October 2003 has reported an extensive tear at the right acetabulum labrum.  He said that a subsequent MRI in February 2005 showed no interim change.  Dr D reported that the wife walks with a marked, painful limp, requiring either a Canadian crutch or bilateral crutches for support, in order for her to get about.  Her marked limp and physical aids have led to secondary problems with tingling in the hands and also increased lower back pain.  He also said that the wife can only walk a maximum of fifteen metres at a time, on analgesics.  He also said that the wife attended with a Canadian crutch, that she walked with a very marked limp in the right leg in a very awkward fashion … Dr D said “it is now three years since the accident and her current disability must be considered permanent.  Given that there has been no improvement over the period of time her prognosis is very guarded”.  In his opinion the wife remained fit for sedentary duties in which she is relatively free to move about, not requiring extensive travel or time on her feet.

5. I must say on the basis of what I observed in the photographs and the film the wife’s situation did not appear to be consistent with how she presented to Dr D.  But in fairness to the wife, she did say that her condition had improved significantly.

6. I must say I do not accept the wife’s attempt at explaining the difference in her presentation and demeanour between how she appeared in the courtroom during the hearing of this trial and how she presented at a time later that evening when photographs were taken.  In any event the wife has made her worker’s compensation claim but in view of the improvement which she appears to have made there must be real doubts about whether she will receive much by way of a payment in that regard.

7. Each of the parties asserts some limitations in their capacity for employment.  I am fairly confident, once the stresses of these proceedings are behind them, each of them will be able to do more in terms of employment than they have in recent times.  Whether this means that either of them will be able to work full time remains unknown at this stage.  But there must be some scope for optimism.  In my view there is little between them in terms of their likely future prospects for employment. 

8. The only other relevant matter pursuant to s 75(2) is the fact that the wife continued to live at the former matrimonial home following separation until it was sold. 

9. Bearing these matters in mind, in my view there is no case for a set-off of property in favour of either of them on account of the relevant s 75(2) matters.

Conclusion and fourth step

1. The husband is to have 60 percent of the property available for division between the parties.  This is property with a value of $158 756 (60 percent of $264 594 is $158 756).  The husband has the following property:              $

1.         Husband’s Mitsubishi Lancer	11,000
2.         Preliminary distribution of controlled monies to the husband	20,000
_____________
$31,000

1. To achieve property with a value of $158 756 the husband will require a payment of $127 756 ($158 756 - $31 000 = $127 756).  This will have to be paid from the controlled monies.

2. On the other hand, the wife is to have 40 percent of the property available for division between the parties.  This is property with a value of $105 838 (40 percent of $264 594 = $105 838).

3. The wife has the following property:

$
1.         Preliminary distribution of controlled monies to the wife	20,000
_____________
$20,000

1. To achieve property with a value of $105 838 the wife will require a payment of $85 838 ($105 838 - $20 000 = $85 838).  This will have to be paid from the controlled monies.

2. This will be achieved as follows.  The home unit at N Street will be sold.  On present indications, this will achieve a sale price of $120 000.  All liabilities will have to be paid.  On present figures this would be $120 185 for the mortgage on N Street as well as the $3000 owing to the professional persons and the $550 to the wife’s mother.

1. This will reduce the $217 329 in the controlled monies account by $3735 ($185 + $3000 + $550 = $3735).  This would leave $213 594 ($217 329 - $3735 = $213 594) for distribution to the parties.

2. What the ultimate payout to each party will be is not clear at this time.  This is because what the net proceeds of sale of the N Street unit will be is not clear.  I have taken into account the fact that the wife would have lost money on the unit between separation and say, 31 December 2008.  But both parties will have to bear any losses on the home unit between 1 January 2009 and the time the sale is settled.  It was submitted on behalf of the husband that he did not want the wife to purchase this home unit and, therefore, it would not be fair to him to have to bear part of the loss.  I am not persuaded about this.  It has not been demonstrated that the wife has been reckless in investing in the unit.  One would have thought if the wife had made a profit on the sale of the unit the husband would have expected to share in such profit.

3. The losses in respect of the unit will be borne equally by the parties for the period from 1 January 2009 until completion of the sale of the unit.

4. It will be in the parties’ interests to sell the home unit as soon as possible.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judicial Registrar W P Johnston.

Associate:

Date:  14 January 2009