Devon and Devon

[2014] FCCA 1566

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVON & DEVON [2014] FCCA 1566

Catchwords:
FAMILY LAW – Property dispute – lengthy relationship – wife’s Kennon case made out – wife having care of disabled adult child – wife’s health such that employment precluded – husband’s health uncertain but earnings prospects better than wife’s – claim for spousal maintenance subsumed by Court’s property orders – division of pool 70 per cent to wife and 30 per cent to husband. 

Legislation: 

Family Law Act 1975, s.75(2)

Kennon v Kennon (1997) FLC 92-757
Stanford v Stanford [2012] HCA 52

Applicant: MS DEVON

Respondent: MR DEVON

File Number: MLC 3678 of 2013

Judgment of: Judge Burchardt

Hearing dates: 19 & 20 May 2014

Date of Last Submission: 20 May 2014

Delivered at: Melbourne

Delivered on: 25 July 2014

REPRESENTATION

Counsel for the Applicant: Ms Wheeler

Solicitors for the Applicant: Parke Lawyers

Counsel for the Respondent: Mr Crofts

Solicitors for the Respondent: Zolis Lawyers and Consultants

ORDERS

1. That the Wife pay to the Husband via his lawyer the sum of $83,464.00 (“the payment”) on or before the 29 August 2014 (“the due date”) and that contemporaneously with the payment:-

   (a)The Wife forthwith do all necessary acts and things and sign all necessary documents to refinance (“the refinance”) or pay out the balance of the mortgages securing the (omitted) Bank mortgage account no. (omitted) and (omitted) Equity Loan (omitted) encumbering the property situate at and known as Property M, in the State of Victoria (“the Property M property”) and indemnify the Husband against all payments and liabilities pursuant to such mortgages and all appropriate rates, taxes and outgoings of or with respect to the Property M property of whatsoever nature or kind save as set out in paragraph 5 below.

2. That in the event that the payment and refinance or payout of the said mortgages in paragraph one hereof is not made by the due date, then the parties do all such acts and things and sign all such documents to sell the Property M property by public auction within 90 days on such terms and conditions as may be mutually agreed between the parties and failing agreement as recommended by the agents (“the sale”) with a reserve price of $500,000.

3. That the proceeds from the sale be distributed in the following manner and priority:-

   (a)Firstly, to pay any agents costs and commissions arising from the sale, and any costs associated with the conveyanace and preparation of the Property M property for sale;

   (b)Secondly, to make any necessary adjustments for taxes and rates;

   (c)Thirdly, to discharge any loans or encumbrances secured over the Property M property save any encumbrance to the wife’s solicitor;

   (d)Fourthly, a payment of $83,464 to the Husband less the amount calculated (if any) in paragraph 4(e) hereof;

   (e)Fifthly, interest to the Husband on the due date calculated as and from the due date in accordance with the Family Law Act Rules to the date of payment;

   (f)Sixthly, the balance to the wife.

4. That pending the due date or earlier refinance:

   (a)The Wife have the sole use and occupancy of the Property M property;

   (b)That the selling agent be at liberty to conduct open for inspections for the Property M property provided that the Wife is afforded no less than 24 hours prior notice;

   (c)Both parties hold their respective interests in the Property M property upon trust pursuant to these Orders;

   (d)That the Wife keep the Property M property tidy, clean and in good repair, having regard to its present condition;

   (e)The Husband continue to pay pending the due date or earlier refinance, all rates, mortgage instalments associated with the Property M property in accordance with paragraph 1(a) and 1(b) of the Orders made 25 June 2013 and continue to pay the Wife spousal maintenance in the sum of $450.00 each week in accordance with paragraph 3 of the Orders made 25 June 2013.

5. That as and from the due date and thereafter pending settlement of the sale paragraph 4(a) to 4(d) inclusive shall apply and the wife shall be responsible for all mortgage payments of the Property M property and all rates, taxes and outgoings as they fall due.

Property S

1. That the Husband retain to the exclusion of the Wife, all his right, title and interest in the property situated at Property S ("Property S").

2. That the Husband indemnify the Wife against all taxation liabilities in relation to Property S including but not limited capital gains tax.

3. That the Husband pay all rates, mortgage instalments and outgoings (including utilities) associated with Property S and indemnify the Wife against all and any liability.

(omitted) Pty Ltd

1. That the parties shall forthwith, do all such acts and things and sign all documents as may be necessary to cease trading with deregister the business known as (omitted) Pty Ltd ("(omitted) Pty Ltd").

2. That the Husband, both in his individual capacity as a partner of (omitted) Pty Ltd, indemnify and release the Wife in respect of any liability associated with (omitted) Pty Ltd as and from the end of 2012 tax year including but limited to any taxation liabilities past, present and future for each party in relation to any money allocation or notionally allocated to them from (omitted) Pty Ltd post 2012 tax year.

(10A)The Wife will forthwith provide to the Husband any and all documents relating to (omitted) Pty Ltd and if the Husband has any queries as to any further documents, the wife shall by statutory declaration indicate her best understanding of where the same may be.

Mr Devon (Sole proprietor)

1. That the Husband retain to the exclusion of the Wife all of his right, title and interest in the business known as Mr Devon (Sole proprietor) and that the Husband indemnify the Wife against all taxation liabilities in relation to same.

Superannuation

1. That pursuant to s.90MT(1)(b) of the Family Law Act 1975 ("The Act") the Husband, a member of the (omitted) Bank lifetime Superannuation Plan ("The Superannuation Fund") and (omitted) Superannuation, Trustee of the Superannuation Fund ("The Trustee") do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes payable to the Husband (Member Number: (omitted)) from his interest in the Superannuation Fund that the Wife is entitled to an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001, using a base amount of $46,927 and that there is a corresponding reduction in the entitlement of the Husband's had these Orders not been made.

2. That for the purposes of this Order:

   (i)The base amount to be allocated to the Wife in the Superannuation Fund is $46,927.00; and

   (ii)The operative time for this Order is 4 business days after the service of this Order on the Trustee.

Other Matters

1. That the Wife immediately withdrawal any caveat encumbering any property of parties held jointly or severally at her cost and that the Wife be restrained from further encumbering any property of the parties help jointly and severally save of the purpose of Order 1 of these Orders.

2. That the parties be restrained from further withdrawing or increasing borrowings from any account or encumbrances secured over the Property M property at the date of these Orders or further encumbrances against the Property M property save for the purpose of Order 1 of these Orders.

3. That, unless otherwise specified in these Orders and save for the purpose of enforcing any monies payable pursuant to these or any subsequent Orders:-

   (a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possession, and like chattels in the real property being deemed to be in the possession of the parties).

   (b)The parties indemnify and release the other in relation to any liabilities in their name either solely or jointly with any other person or entity, or associated or secured over any property to which they are entitled pursuant to these Orders.

   (c)Insurance policies remain the sole property of the owner named thereon.

   (d)Any joint tenancy of the parties in any real or personal estate in hereby expressly severed.

   (e)Each party hereby foregoes any claim they may have to any superannuation benefits to or earned by the other save as set out in these orders.

4. That in the event either party refuses or neglects to sign any document necessary to give provision to these Orders, a Registrar of the Federal Circuit Court of Australia by appointed pursuant to s.106A of the Family Law Acts 1975 to execute such document.

5. Liberty to apply.

6. That all previous property and/or financial Orders discharged save as set out in these orders.

AND THE COURT NOTES:

(a)That pursuant to s.81 of the Family Law Act 1975 these Orders are intended to finally determine the financial relationship between the Husband and Wife and avoid further proceedings between them.

AND IT IS NOTED:

(b)To the extent the husband may be presently in arrears with respect to his obligations to pay the Wife spousal maintenance (as to one day), rates, and  mortgage liabilities and like matters as set out in paragraphs 1(a), 1(b), and 3 of the Orders made 25 June 2013,  it is intended by these Orders that any arrears of such payments be adjusted if necessary and be deducted from the payment to the Husband, but that he shall continue to meet his obligations until the due date or earlier refinance.

(c)The Wife asserts she has paid some rates required to be paid by the Husband and these are and remain a liability of the Husband to be adjusted at settlement on her accounting for the sale.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3678 of 2013

MS DEVON

Applicant

And

MR DEVON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a property dispute.  The applicant wife seeks that she receive 80 per cent of the property pool and the respondent husband says she should get 55 per cent or, alternatively, in any event, no more than 60 per cent.  The wife seeks a division not only of property in this proportion but also of the parties’ superannuation. 

2. The issues in the case, apart from the question of the proportional division of the property, include arguments over the inclusion of various items in the property pool, the wife’s Kennon case, the circumstances of the parties’ daughter X and the health and interrelated capacity to work of each party.  Additionally, the wife seeks spousal maintenance for a period of five years. 

3. For the reasons that follow, I am not going to make an order for spousal maintenance.  I will order that the property pool, as I find it, be divided in proportions of 70 per cent to the wife and 30 per cent to the husband. 

Agreed Facts

1. Much of the facts in this case are not significantly in dispute.  The wife was born on (omitted) 1953 and the husband on (omitted) 1962.  The parties entered into a de facto relationship in 1980 and were married on (omitted) 1981. 

2. The parties have four adult children.  W was born (omitted) 1981, Y was born (omitted) 1983, Z was born (omitted) 1986 and finally, X was born on (omitted) 1989 (“the children”). 

3. The first three children live independently but X lives with her mother in the former matrimonial home.  X is the subject of intellectual disability but the extent of this was, to an extent I found slightly off-putting, a matter of dispute between the parties to which I shall return. 

4. The parties had no significant assets at the time they first entered into a relationship.  The wife was employed as a (omitted) and part-time (omitted) and the husband was working as an (omitted).

5. From the time the wife became pregnant with W she ceased work and has not worked in paid employment since. 

6. From a point described by the wife as “about 1985” the husband commenced work as a self-employed (omitted).  Despite all the materials filed in the case, it was not entirely clear to me whether this was a partnership in a business name of (omitted) Pty Ltd, conducted in equal shares between the parties, or whether it was a company (omitted) Pty Ltd, jointly owned by the parties.  Counsel for the wife informed me without contradiction that it was a business name only.  Nothing turns upon this aspect of the matter in my view. 

7. The husband has deposed that the operations of (omitted) Pty Ltd have been inactive since separation and that he has since registered a new sole trader entity under his own name to continue in his work as a (omitted). 

8. The husband has deposed (at paragraph 5, of his affidavit affirmed

   
   

   20 June 2013) without material challenge that the way the business operated was that he would purchase land by using equity in the matrimonial home, that he would then construct a dwelling on the land and on sell the finished property. 

9. Although the husband’s 20 June 2013 affidavit goes into considerable detail about the properties bought and sold by the business from time-to-time and is, in part, critical of decisions made by the wife about property matters which it is said have cost the parties a lot of money, this aspect of the matter was not significantly pressed in cross-examination.  In my view, it is appropriate in the circumstances of this case to find, as I do, that the husband conducted the business and the wife stayed at home as a fulltime mother. 

10. Although there was some dispute about the matter, it seems to me more probable than otherwise that the wife provided some (omitted) assistance to the husband’s business but it is not of anything like sufficient moment to carry any weight in the Court’s deliberations.

11. It is agreed that the parties separated on 31 August 2012.  On that day the husband was convicted arising from an assault by him on the wife earlier in the year.  He was placed on a good behaviour bond. 

12. Because of the ultimately discrete nature of the matters in issue, it is appropriate at this point to move to the step required by s.79(2) of the Family Law Act 1975 (“the Act”) in the light of the decision of the High Court in Stanford v Stanford [2012] HCA 52. The Court has to consider whether it is just and equitable to make a property order and, in doing so, must first identify the legal and equitable interests of the parties.

13. Although it is immediately apparent that the way I am going to proceed does not precisely follow that methodology, this is one of the cases in which it is immediately apparent, as the High Court acknowledged in Stanford, to make a property order adjusting the parties’ interests.  The relationship has broken down and the basis upon which they held property previously has totally disappeared.  Indeed, both parties seek that a property order be made and it is clearly just and equitable to do so. 

14. That brings the Court necessarily to an identification of the pool.

The Pool

1. There is a considerable measure of agreement between the parties (notwithstanding earlier bickering) about what constitutes the pool.  All parties agree that it includes (figures rounded off): 

   a)Property M (jointly owned), $500,000

   b)Property S (husband’s half share), $205,000

   c)Property V (husband’s one-third share) $267,666

   d)(omitted) Bank business cheque account (account number (omitted)), $4,279

   e)(omitted) Bank savings account, $60

   f)(omitted) Bank cheque account (Property S) account number (omitted), $2,390

   g)Wife’s Toyota car, $19,000

   h)Husband’s Ford Ute, $13,000

   i)Husband's Mitsubishi car, $30,800

2. The agreed liabilities are constituted by:

   a)(omitted) Bank Mortgage, $111,591

   b)(omitted) Equity Loan, $149,922

   c)((omitted) Pty Ltd), $60,000

   d)(omitted) Investment Loan (Property V) (husband’s one-third share), $138,282

   e)(omitted) Choice Loan (Property S), $173,300

3. Disputed items in the pool are:

   a)Husband's (omitted) Bank Business Visa, $1915

   b)Husband's (omitted) Bank MasterCard, $14,830

   c)Husband's (omitted) Card, $1,260

   d)(omitted) Bank Finance (husband’s Mitsubishi car) $36,000 (husband’s estimate) (disputed by wife, see paragraph 30 wife’s Case Outline)

   e)(omitted) Bank Finance (husband’s Ford Ute) $10,519 (agreed figure)

   f)Taxation Liability (wife), E$10,000 (by husband’s estimate)

   g)Taxation Liability (husband), $8,364

   h)Husband’s Trade Creditors, $26,333. 

4. Additionally, the parties have just over $101,000 in superannuation of which approximately $5,300 is in the wife’s name and the remainder in two accounts held by the husband. 

5. It should be noted that a certain amount of evidence was given about works in progress conducted by the husband.  I found much of this evidence difficult to follow and will return to it.  It seems to be agreed, for present purposes, that these properties (because they are, of course, properties, this being the husband’s business) are to be treated as an income stream rather than real property vested in the parties. 

6. It should be noted that beyond the assertions as to their existence, little was said about a number of the matters now in dispute. 

The Husband's (omitted) Bank MasterCard and (omitted) Card

1. The wife’s position is that these are post-separation debts and redound wholly to the husband.  The husband’s position, as announced by counsel in opening his case, was that these were post-separation debts but they were incurred in the operation of the husband’s business and should be taken into account.  From my notes, it is not entirely clear whether this was asserted in respect of the (omitted) Card as well.

2. So far as I can recall, there was no evidence given orally about these aspects of the dispute at all.

3. Doing the best I can in this sparse evidentiary desert, I think these items should be excluded from the pool.  The husband has established a new business post-separation and these debts are conceded to arise solely from that. 

The Husband's (omitted) Bank Business Visa

1. The husband’s (omitted) Bank business visa card is clearly related to the business conducted from time-to-time, and constitutes a debt as at date of separation as I understand the evidence.  In those circumstances it should be taken into consideration even though it may have been the husband’s practice in the past to pay it out on a regular basis. 

The Husband’s Tax

1. It is clear from exhibit R3 that the husband was required by the Australian Taxation Office on 26 April 2014 to pay $8,363.87 forthwith. 

2. These charges entirely relate to self-assessed amounts for Goods and Service Tax plus interest for the period March to April 2014.  This is post-separation debt arising out of the operation of the respondent’s new business and ought not be included in the pool. 

The Wife’s Tax Liability

1. This item is not, as far as I can see, addressed in the wife’s amended Outline of Case document.  The only figure asserted is an estimate in the husband’s Case Outline of $E10,000.  The wife’s position is set out at paragraph 29 of her affidavit filed on 22 April 2014.  She effectively says that she does not know whether she has a liability or not and this forms part of her general position that the husband ran his business and she had little, if any, direct involvement in the financial affairs of the couple. 

2. In submissions, the husband’s counsel conceded liability on the wife’s part of about $E10,000 but said that she should pay it because she had failed to quantify it herself. 

3. This is, once again, scarcely a satisfactory evidentiary basis on which to make a finding but I will treat the $E10,000 asserted by the husband as a concession against interest and include it in the pool in that amount accordingly. 

Husband’s Trade Creditors

1. Once again, there is only assertion as to this figure, which I take to be the figure asserted as at separation.  Very little has been said in either affidavits or in oral evidence about this aspect of the matter. 

2. What there was evidence about was the husband’s ongoing work.  From his affidavit it would appear that he has two projects presently underway.  The figures to be paid to complete these works and the amounts to be generated at the conclusion of them were addressed by the husband in his oral evidence.  I note that it would appear that he obtains an overall profit on at least one of his projects of approximately 15 per cent, so to speak, of turnover. 

3. I have already observed that I found the evidence in this regard difficult to follow.  I readily accept as it is only commonsense that in the course of the building works that are required to be done bills are incurred on an ongoing basis.  What is not clear is whether there were progress payments and in quite what amounts.  In my view the parties are ultimately correct to treat this as an income stream.  No direct evidence was given, as far as I can see, as to the precise amount of profit the husband would make from his two ongoing projects at Property T and Property H. 

4. On any view of the matter the figures asserted by the husband as to the debts owing on his current projects do not, in any way, equate with the $26,333 asserted in his Case Outline and in his affidavit material. 

5. As with other aspects already commented on this is not a satisfactory evidentiary position.  I accept, because it is only commonsense, that the husband would have been more likely than otherwise to have a measure of trade creditors as at the date of separation.  It is in the nature of this sort of work that he does that this would be so.  In the circumstances and doing the best I can, I think that this sum should be included in the pool. 

The Husband’s Mitsubishi Car

1. There does not seem to be any dispute that the Mitsubishi car has an agreed value of $30,800.  The husband asserts that there is an ongoing liability of some $36,000 in respect of the vehicle and although counsel for the wife touched on this point in submissions there was not direct challenge to that amount so far as I can see. 

2. What the wife says, however, is that this should not be allowed in the pool in part because of a failure on the husband’s part to produce documents in support of the alleged liability and in part because the husband traded in an unencumbered vehicle to purchase the Mitsubishi in November 2014.  It is asserted that the husband was offered $30,000 as a trade-in but took only $10,000 in trade and $20,000 in cash. 

3. The difficulty I have with the wife’s position is that the husband deposed that the $20,000 he took in cash was defrayed to meet pressing expenses of his business and he was not cross-examined on that assertion. 

4. I note that the balance actually borrowed was $37,899 (see paragraph 30(f) of the wife’s amended Case Outline and bundle of discovery dated 24 January 2014). 

5. The complaint that the husband had failed to disclose relevant documents seems to me to face considerable difficulty given that the amount borrowed is clearly shown.  Furthermore the amount now claimed is entirely consistent with the amount likely to have been paid off in terms of capital bearing in mind that the loan commenced in November 2013.

6. The additional $20,000 asserted by the wife will not be included in the pool. 

The Husband’s Non-Disclosure

1. It is appropriate at this stage to say a few brief words about this issue.  Much of the wife’s case was based upon assertions that the husband had failed adequately to comply with his obligations of disclosure.  While I accept that the husband may have been tardy on occasions, in my view looking at the materials in this case as a whole there is nothing to suggest that the husband has set out to defeat the wife’s claims by the suppression of documentation.  It is not necessary to say more than that.  Accordingly, the pool in this case consists of the agreed matters together with the following liabilities:

   a)Husband's (omitted) Bank Business Visa, $1,915

   b)Husband's (omitted) Bank Finance (Ford Ute), $10,519

   c)Husband’s Mitsubishi, $36,000

   d)Wife’s Taxation Liability, $E10,000

   e)Husband’s Trade Creditors, $26,333

The Section 75(2) Factors – The Wife’s Kennon Case

1. At this point, although it is on one view a part of the contribution issues in the case, it is appropriate to consider the wife’s Kennon argument.  That is because in addition to reflecting a loading in terms of contribution it is also in the circumstances of this case relevant to the wife’s present health and likely future employability.

2. It should be noted that this aspect of the case took up much of the time spent in Court and occupies a not insubstantial amount of the affidavit material. 

3. It was the wife’s case, put broadly, that throughout the relationship she was the subject of verbal and physical abuse.  She deposed to the very short temper of the husband, the fact that she was living, basically, on tender hooks throughout the relationship.  She described a series of significant assaults upon her going back throughout, and even in the very early years of, the relationship. 

4. While the husband conceded that he had pleaded guilty to an offence at the time of separation, he explained this as simply submitting to the court in order to dispose of the matter. 

5. As I have earlier indicated, the husband was placed on a good behaviour bond for what counsel for the wife described as a charge of recklessly causing injury at the time of separation, in August 2012. 

6. The wife tendered as exhibit A1 a number of photographs allegedly showing bruising inflicted by assaults by the husband.  She had annotated them with dates.  It is sufficient for these purposes to say that her evidence about these photographs and the assaults they were said to describe was given in a fashion I found entirely believable.  The photograph dated 6 February 1995 shows a clear bruise on the wife’s nose and her evidence this had been caused by a punch by the husband is evidence that I accept.  I note that the photographs showing bruising span a number of years.

7. The wife’s evidence about the incident on 18 April 2012, eventuating ultimately in an assault with two significant punches was entirely believable.  It included a concession by the wife that she “went nuts at him”. 

8. The husband’s evidence by way of contrast was less believable.  He maintained relevantly for these purposes that the April 2012 occasion involved him hitting the wife with a pillow.  He said, “You could call it a pillow punch.”  The wife sustained very substantial bruising and the husband was convicted of assault as a result. 

9. The husband’s position which was essentially to the effect that throughout the relationship the wife had been repeatedly hysterical and he had to hold her off and this caused bruising.  His position is not, in my view, consistent with the objective evidence of the photographs in exhibit A1 and the conviction that he admits.  The husband concedes that he is six foot two tall and weighs 95 kilograms.  He is a big man. 

10. I have no doubt that the wife was the subject of the treatment of which she complains throughout the relationship.  It is in my view clearly, as counsel for the wife submits, a Kennon case. 

11. Kennon is authority for the proposition that in circumstances where the contributions of a party are made onerous by the violence of the other party the Court may give weight to that circumstance.  In my view it is clear that weight should be given to it. 

12. The husband’s denials of violence were given in the most unconvincing fashion.  He appeared at times amused by questions put to him about precise incidents of violence alleged by the wife in her affidavit material.  His description of the incident in April 2012, as I have already indicated, is utterly inconsistent with the bruises that the wife clearly suffered. 

13. The evidence of Dr M is clear.  The wife had no prior diagnosis of depression or any record of seeking help from anyone before she saw her.  Dr M’s description of the wife’s experiences of the marriage as traumatised over its 32 years was not shaken in cross‑examination, nor was her assertion that it was these factors rather than any predisposition to depression that gave rise to the mother’s difficulties. 

14. Dr M’s evidence was given with conviction and I should make it clear that she was not effectively shaken in cross‑examination at all.  It is her opinion that the wife suffers from major depressive episode and will not be able to return to work.  At page 8 of 10 of her report, she observed:

    “It is my clinical opinion that, given her diagnosis of Major Depressive Disorder and the high level of anxiety and stress she is currently experiencing and has potentially been experiencing for many years, Ms Devon would currently be unfit to make a return to the workplace, either in a part-time or full-time capacity, until her mental state improves.  Furthermore, she has not worked outside of the home for approximately 31 years and, at the age of 58 and with no recent experience, it is highly unlikely that she would be able to find any suitable work, without extensive retraining.”

15. It should be noted that those last remarks would appear to me not to be within Dr M’s area of professional expertise, but nonetheless they are simply conformable with common sense. 

16. Thus while I find that the wife’s case does attract the operation of the doctrine as it might be described in Kennon’s case, I do not think it is appropriate, given that it also impacts in a more overarching way with the future needs factors, to give it at this stage a precise quantum.

The Care of X

1. This aspect of the case was in my view unfortunate and off‑putting.  Put shortly, it is the wife’s case that she will have the ongoing care of X, who contributes some $300 per week to the household expenses, and that this was a relevant consideration in the case.  The husband’s countervailing position was that X’s difficulties are not nearly as severe as the wife suggests. 

2. As I indicated earlier, it is singularly unedifying to see parties arguing about the extent of the disability of one of their children who clearly on any view has indeed the misfortune to be disabled.

3. The evidence is that X has an IQ of 79 (wife’s counsel’s assertion – not challenged).  Taking the evidence as a whole it seems far more probable than otherwise that she is somewhere on the autism spectrum.  She was first sent for assessment by the (omitted) School, which is a specialist autistic school.  Whatever the capacity of X to look after herself, use public transport and the like, it is clear beyond doubt from the fact that she receives a disability pension that X has her difficulties.  Quite clearly the wife will be required to provide to X a measure of care, notwithstanding the fact that she is adult (and a claim for Adult Child Maintenance has been specifically abandoned) for many years to come and indeed for the indefinite future.  This is only one aspect of this proceeding, but I should make it clear that I am entirely persuaded that the wife’s version of the facts is the one that I accept.  It conforms with the objective evidence.

The Parties’ Health and Capacity to Work

1. The wife’s health is as I have described it in the excerpt from Dr M’s report set out above.  That speaks for itself and sufficiently describes her circumstances. 

2. The husband’s assertion that at the age of 60 the wife can reasonably be thought to entertain serious prospects of future employment is, in the face of that evidence, most unfortunate and utterly misconceived.  I have no doubt that the wife will not be able to work again.  She has not done so for 31 years.  She had no particularly well developed work skills at the time, being employed as a (omitted) and part-time (omitted).  It borders on the offensive for the husband to assert as he does that the wife has meaningful prospects of further employment. 

3. The husband’s health and employability are more open to question.  He gave evidence that the march of events is such that he may not be able to continue as a self‑employed (omitted).  The evidence as to this is by no means entirely clear, but on any view of the matter, even if his (omitted) activities are circumscribed by insurance difficulties, a matter the wife disputes, he has the prospects of employment in the (omitted) industry.

4. The husband’s health is not unfortunately a matter of precision.  He has recently been diagnosed with cancer but depending upon the outcome of therapy and tests he may stand a good chance of remission.  By contrast, however, if things do not work out so well his prognosis may be dire.

5. It is not possible to make any conclusive findings given the state of the medical evidence which is, so to speak, unequivocally equivocal.  It is a factor that requires to be given weight, but, and I regret to say there is no way that I can see of avoiding making this finding, the fact is that if the husband’s prognosis is bad, it is likely that his future needs may not obtain for great lengths of time.

Findings about the Contribution and Section 75(2) (Future Needs) Issues

1. I have avoided giving percentages up to this point because in the particular circumstances of this case, including the wife’s Kennon case, the contribution and future needs arguments to an extent are interrelated and overlap. 

2. In view of the very lengthy relationship between the parties, and the relatively workaday nature of their contributions while they lived together, it would ordinarily have been appropriate to assess the parties’ contributions as equal.  I would be prepared to give the wife, as she seeks, a five per cent loading (a modest one, as it should be) for the Kennon factors. 

3. The future needs issues, however, are in my view grossly overstated by the wife.  She seeks a further 25 per cent in her favour. 

4. This proposal is in my view grossly overstated.  It is true that the wife is substantially older than the husband by some eight years.  It is also true that she will have to look after X, although X is by no means wholly disabled and in any event contributes quite significantly to the household expenses.  The $300 she contributes, while it may not do more than discharge her share of the utilities, bills, food and the like, nonetheless gives rise to economies of scale since it is easier for two persons to pay for two than one person to pay for one.

5. While it is certainly the case that the wife will not work again and unless his health intervenes the husband will, the extent of the husband’s earnings are by no means clear.  They are attended by the most unfortunate doubts about the state of his health. 

6. The balancing of all of these issues is very much in the ultimate a matter of discretion and impression.  In my view, taking all of the relevant considerations into account, there should be a loading in the wife’s favour of a further 15 per cent. 

Just and Equitable

1. The Court is also required as a fourth step in the conventional methodology to consider whether the outcome is just and equitable.  In my view, an outcome that gives the wife 70 per cent of the property pool is appropriate, and this finding includes, although I have not yet referred to it, the claim for spousal maintenance. 

Spousal Maintenance Claim

1. The wife sought spousal maintenance at the ongoing sum of $450 per week previously ordered for five years.  In my view, this is inappropriate. 

2. The first point I would make is that spousal maintenance is often thought to be a form of maintenance designed to assist a party re‑establish themselves following the breakdown of the relationship.  Given that the wife will not work, what she is really seeking is spousal maintenance through till such time as she is able to obtain the pension.  That is a payment of a somewhat different character. 

3. Moreover, the earning capacity of the husband is not, in my view, sufficiently clear, notwithstanding that he has been able to pay spousal maintenance up to this date.  His evidence, which I have accepted, is that his various ongoing projects may come to an end.  It is not known, as I have said, what the outcome of these projects will be in net terms.  It cannot be assumed that because he has been able to pay spousal maintenance thus far he will be able to continue to do so. 

4. In my view, although this puts the matter after the event, the 70 per cent disposition in the wife’s favour that I am going to order is an appropriate outcome inclusive of her claim for spousal maintenance. 

Superannuation

1. The wife has sought a split of 80/20 in superannuation in her favour and the husband seeks a 50/50 split.  In circumstances where all of the parties’ superannuation was earned during the relationship it does not seem to me to be fair to do other than split the superannuation evenly.  I note that counsel for the wife says that she will be able to access her share of the superannuation in any event immediately.  This goes to support the overall justice and equity of the settlement I am proposing.

The Orders to be made

1. Both parties formulated precise sets of orders in their Outlines of Case.  Those outlines on the wife’s part were designed to achieve retention of the former matrimonial home and on the husband’s to ensure that he kept his property at Property S.  It is not immediately clear to me whether either party will be able to achieve the outcome for which they have contended for in the light of the decision at which I have arrived. 

2. In these circumstances I will give the parties an opportunity to consider these reasons for judgment and hear them further as to the form of orders that should be made. 

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  25 July 2014