Dietrich and Dietrich

[2009] FamCA 879

FAMILY COURT OF AUSTRALIA

DIETRICH & DIETRICH [2009] FamCA 879

FAMILY LAW – PROPERTY SETTLEMENT – Property acquired before marriage – Contributions – Just and Equitable – Estoppel

Family Law Act 1975 (Cth)

Clausen and Clausen (1995) FLC 92-595
Docters van Leeuwen (1990) FLC 92-148
Tomasetti and Tomasetti (2002) FLC 93-023
Woodcock and Woodcock (1997) FLC 92-739

APPLICANT: Mr Dietrich

RESPONDENT: Ms Dietrich

FILE NUMBER: PAC 2272 of 2008

DATE DELIVERED: 16 September 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 3 - 5 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Champion Legal

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Coleman & Greig

Orders

1. That the parties do all things and execute all documents necessary to procure and complete a sale by private treaty of the former matrimonial home situate and known as W property at a price to be agreed between the parties and failing agreement as determined by the president of the New South Wales Chapter of the Australian Institution of Valuers or his nominee.

2. That in the event contracts for sale of the said property have not been exchanged by a date nine months from this date, the parties shall immediately thereafter do all things and execute all documents necessary to procure and complete a sale of the property by public auction.  In the event the parties cannot reach agreement as to the auctioneer to conduct such sale then it shall be as nominated by the president of the New South Wales Chapter of the Australia Institute of Valuers at a reserve price as agreed between the parties and failing agreement as determined by the auctioneer on the day of the auction.

3. That upon completion of any sale of the property, either by private treaty or auction, the parties shall disburse the proceeds as follows:

   (a)In payment of all agents commissions and fees including auction  expenses;

   (b)In payment of all legal fees incurred by such sale;

   (c)In payment to the wife an amount equivalent to 66.8% of the balance then arrived at; and

   (d)In payment to the husband of the balance then remaining.

4. That at the time of completion of such sale, the husband shall be entitled to remove from the premises the following:

   (a)       Wall unit in the lounge room;

   (b)       Dining room suite;

   (c)       Outdoor setting;

   (d)       Double bed in the first bedroom;

   (e)       Set of draws in the first bedroom;

   (f)       Video player and television previously owned by the husband;

   (g)       Wall units located upstairs of the premises;

   (h)       Fridge other than the one in the kitchen

5. That at the time of completion of such sale, the wife shall be entitled to retain and remove from the premises the following:

   (a)       Leather sofa;

   (b)       Sofa table;

   (c)       Side board;

   (d)       Lamp;

   (e)       Double bed in the second bedroom;

   (f)       Set of draws in the second bedroom;

   (g)       51cm television in the second bedroom;

   (h)       Drink fridge in the kitchen; and

   (i)        All personal effects, clothing, jewellery

6. That the parties, having received the items to which they are entitled pursuant to these orders, shall do all things and sign all documents necessary to procure and complete the sale of contents and items then remaining in the home.  The proceeds of such sales shall then be divided equally between the parties.

7. That subject to foregoing orders, the parties are entitled at law and equity to personal items, chattels, furnishings, contents, motor vehicles, cash and any other thing or item in the possession or control of that party.

8. That the wife shall be entitled to exclusive occupancy of the former matrimonial home subject to giving vacant possession when required to do so in order to give effect to the sale of the property pursuant to these orders.

9. That leave be granted to either party to restore the matter to the list upon giving seven days notice in the event of any difficulty regarding the implementation of these orders.

10. That all applications and cross application be and are hereby dismissed.

11. That all issues be removed from the Active Pending Cases List.

12. That all material produced on subpoena be returned not before fifty-six days from this date.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC2272 of 2008

MR DIETRICH

Applicant

And

MS DIETRICH

Respondent

REASONS FOR JUDGMENT

Introduction

1. This unfortunate matter concerns the distribution of the assets of the parties following the breakdown and subsequent dissolution of their marriage.  The assets of the parties are modest, the major asset being a home unit at W.  That unit is owned by the parties as tenants in common in equal shares.  It has an agreed value of $450,000.  In addition there are matters I will return to shortly, being a motor vehicle, furniture and some savings of each of the parties.  The pool, as I say, is modest, especially when one takes into account the costs of each of the parties as have been disclosed to me in cost disclosure documents made available during the course of the trial.

Background

1. A brief background to this matter for the purpose of the case is as follows: 

   ·    The husband was born in 1934 and is now aged 79 years. 

   ·    The wife was born in 1936 and is now 73. 

   ·    The parties commenced to live together in about the middle of the year 2001 and married in October 2001. 

   ·    The parties separated on the husband's assertion, which was not challenged by the wife, on 6 April 2008 and the parties subsequently then divorced.

The parties applications

1. The husband commenced these proceedings by his application filed on 14 May 2008.  In that the husband sought a sale of the former matrimonial home and a distribution of those proceeds. The wife filed her first response on 22 September 2008, her amended response on 16 February 2009, and a further amended response on 8 July 2009.  Her initial position before the Court, as I understood it, was that she be permitted to occupy the former matrimonial home for an indefinite period of time.  It seems, with respect to her counsel, that this situation has changed during the course of the hearing before me. He has in his addresses dealt with a distribution of proceeds of sale of the unit and the parties’ assets generally, on a percentage basis. 

The parties affidavits

1. The affidavit material of the parties relied upon was as follows:  the husband relied upon:

   ·    his affidavit of 9 July 2009,

   ·    his statement of financial circumstances verified by an affidavit sworn 10 July 2009,

   ·    an affidavit of his daughter, Ms L, sworn 16 July 2009,

   ·    affidavit of Dr H, his treating doctor, of 17 July 2009, and

   ·    an affidavit of Ms R of 10 July 2009. 

2. The wife relied in her case upon:

   ·    her own affidavit of 18 July 2009,

   ·    her statement of financial circumstances verified by affidavit of 8 July 2009, and

   ·    the affidavit of Dr D, a medical practitioner who was asked to prepare a report as a medico-legal expert in respect of the husband's health and prognosis. 

The husband’s case

1. The husband's case presented before me was that the property needed to be sold and the proceeds divided in proportions favouring him to make a proper allowance for, firstly, his contribution by way of moneys brought into the marriage, his other contributions and, particularly, his section 75(2) factors.  The husband's case is that it is inevitable and must follow the property that was the former matrimonial home be sold to enable funds to be made available to him, with any balance going to the wife. 

2. In addresses, as I understood Mr Givney, he indicated that the time of the sale need not be as short as might otherwise be the case.  Further, the parties have each handed to me a list of personalty or furniture or contents, call it what you will, that they seek from the home and I propose to make orders awarding the parties the items in each of those lists. I will require the balance of the contents of the former matrimonial home to be sold and the proceeds divided.

The wife’s case

1. The wife's case, if I might say so, was put with some strength by her counsel. It largely involved the proposition that because of what the parties had done by entering into a contract to execute mutual wills, and the wife having executed such a will, there was indeed a situation created whereby the wife by virtue of an estoppel was entitled to expect and anticipate that she should in fact receive the right to occupy the premises that would have been conferred upon her had the husband died leaving a will to the effect that was specified in the contract to execute mutual wills, which became an exhibit before me.  That particular argument occupied some time before me and I will return to it shortly. 

2. It was further put to me that in the event that I was not prepared to order that the wife had continued and unlimited occupation, that there should be a sale, but that having taken into account both contribution of s 75(2) factors, that there should be a significant weighting in the wife's favour. 

The hearing before me

1. So far as the conduct of the matter is concerned, and the conduct of the parties themselves, the wife says that she did not know that the husband proposed to end the marriage until she received a letter from his solicitors.  On balance, I accept that evidence. There has been a significant attack made upon the husband's case as to who, in reality, is running the case and mounting the arguments.  It is put with real strength on behalf of the wife that the husband’s daughter, Mrs L, who gave evidence before me, is the architect of this case and has commenced it more or less of her own motion.  The evidence of the husband led me to believe that he was not sure as to what was going on and what was behind, firstly, the exclusion of his wife from the hospital and, secondly, the proceedings for dissolution of marriage. 

2. Having said that, and having regard to the matters that Mr Campton put to me, I record that I am a little puzzled that the wife, who was represented at the time, made no attempt to oppose the dissolution application and no attempt to assert in that proceeding that the parties had not separated or that the marriage between the parties had certainly not irretrievably broken down at that time.  The wife does make a concession that she now accepts that the marriage has finished. 

3. This is not a case where perhaps credit is quite the right word to apply, particularly as between husband and wife.  Nothing I wish to say in the next part of this judgment is meant to cause offence and I trust it will not, however, it is clear from the evidence of both parties to the marriage that their recollections are not perfect. There are some matters which appear to be quite clear to them, and others which have completely left their memory and probably will never return.  I am not satisfied, however, that either the husband or the wife sought in any way to mislead me or do other than give me their best recollection of what had occurred.  I thought I detected a spark of affection by the husband towards the wife and I am certain that I observed some residual affection by the wife towards the husband.  To my mind then these proceedings are something of a tragedy. 

4. So far as the evidence of Mrs L was concerned, I detected from her evidence that indeed it was she that made many of the decisions concerning the conduct of the husband’s case. Mrs L had put together material from documents.  In my view, having regard to the finding that I have already made, she would not have been greatly assisted by material from the father.  I have done the best with her affidavit, when comparing it with the evidence of the father, and I am satisfied, as I say, that it is she that has compiled the bulk of the material which is sought to be relied upon in the husband's case.

5. The two doctors were, in my opinion, medical experts doing their best to assist the Court and give their evidence in a proper and professional manner.  A slight difference I detected between them was that Dr H has treated the husband for some time. He observed toughness in the husband, which he commented on on several occasions during the course of his evidence. He indicated that toughness would give rise to a slightly less drastic outlook so far as the husband's prognosis was concerned.  Both doctors, and I will return to this later in these reasons for judgment, seemed to agree that the further past an operation such as was undertaken by the husband for pancreatic cancer one lives, then exponentially the prospects of living longer and longer increase.  In other words, if a patient comes as far as the husband has it is likely he will live for a further period of time. However I am not able or prepared to guess at what this means in terms of a life expectancy from this date onwards. I will refer to this when I review this material shortly. 

6. Ms R an executive of DA Organisation.  She had been asked to provide certain material, which she did, and she gave her evidence in respect of that material in a proper, straightforward and sensible fashion.  I am not sure what that evidence precisely was intended to demonstrate to me.  It appears that the plan for the husband and members of his family is that he is not, for the present, to enter residential intensive care.  I do understand, however, the proposition put by Ms L that if something were to happen which resulted in the husband’s health then being dramatically affected, so that he required full time residential care (that is care other than in Mrs L’s household or hospital) that the assessment that had been made would avoid a time delay in obtaining such an assessment before the father could be admitted or dealt with.  I understand from her evidence and accept that that assessment is valid for 12 months and thereafter needs to be renewed.

7. I do not propose to traverse in great detail the evidence that was given.  I propose, however, to endeavour to relate that evidence to the matters I am required to take into account in reaching a determination of this matter.

The law to be applied

1. This is a property matter. A series of decisions of the Full Court have laid down the steps that must be undertaken in determining such a matter. Firstly, I must endeavour to fix the pool of assets currently available for distribution between the parties.  Secondly, I must endeavour to attach a percentage by way of contribution findings within that pool.  Next, I must endeavour to make any further adjustment if required, having regard to what I would refer to as the s 75(2) factors concerning the needs of the parties.  Lastly, I must look back and have regard to the decision I have arrived at following that process and determine if the decision so arrived at is just and equitable in all the circumstances.  Indeed, Mr Campton has urged upon me from his very first comments in this matter, that it is that last stage that may well lead me to make some significant adjustment or change to the orders that I might otherwise make in the specific circumstances of this case.

The pool of assets

1. Identification and valuation of the assets available for distribution appears to present no great problem.  The following are the assets and values which seem to be agreed:

Asset	Value
W unit	$450,000
The husband's car	$4,000
The husband's savings	$25,202 and $21,000
The wife's savings	$30,000 and $1800
Total	$532,002

I am not told that there are any debts to be taken into account to decrease or modify that amount.

Contribution

1. The next matter I turn to is the contribution of the parties.  This is a short marriage of some six years and 11 months.  There are no children of the marriage. It would seem to me that in such a situation I am required to take more of what might be called a mathematical approach than would otherwise be the case in a longer marriage, or a marriage where there have been children born.  There is a real dispute between these parties as to what each of them brought into the marriage.  There is dispute as to the existence of certain accounts and when certain accounts were open.

2. The cross-examination of each of the parties has revealed to me that the parties, as I have already indicated are, they say, crystal clear on some aspects and have no recollection of others.  Certainly at the time that the parties commenced cohabitation in the middle of 2001, with their marriage occurring in late 2001. They each owned a home. They had motor vehicles, they had contents and each asserts they had various savings or moneys available to them in various forms. 

3. The husband asserts the existence of a term deposit of $40,000 and moneys held by him in a safe.  The wife herself, in her affidavit evidence, refers to money in a safe, but in her oral evidence disputes that this was the case.  However, one of the main arguments concerning contribution is what the wife brought in.  There is no doubt that the wife sold her property and received two cheques at least for the funds arising from such a sale.  It is her assertion that she went to her solicitors, Messrs Folbigg and Folbigg, and received a cheque from them which she endorsed and gave to her husband, who she said was the money manager and who she trusted implicitly.  There is no evidence before me of the cheque, and I accept it must have been a cheque, being presented or banked in a bank account belonging to either of the parties or to a jointly held account. 

4. The husband’s counsel says that the wife clearly fails in any endeavour to establish those moneys were given to the husband.  By implication I take it that he is saying that these moneys are somewhere which is not disclosed or made clear. In addition to the cheque to which I have referred, the wife says that she received $10,000 in cash which she gave to her husband, which then went into the safe. 

5. Clearly an amount of some $14,482 has been deposited to the husband's account.  That amount bears some resemblance to the balance of deposit received by each of the parties arising out of the sale of their respective properties. However, having regard to the material attached to the affidavits of each of the parties, it is not exactly the same amount as the deposit forwarded by the agents in respect of either sale after deduction of commission from the deposits held.

6. It seems to me then that I must first determine whether I am satisfied the moneys received by the wife from the proceeds of her sale were in any way contributed to the marriage.  It is not required that the amount be shown to have been applied to any particular asset, property or thing.  It is sufficient to be taken into account in a contribution exercise if it has been applied for the benefit of the family.  There is no doubt that the husband's proceeds of sale of his own property were applied immediately to the purchase of the former matrimonial home.  There were other purchases and other moneys expended by him. 

7. The parties, prior to marriage, had purchased a motor vehicle, some furniture, they had paid for their wedding and they had paid for a cruise for the honeymoon.  Additionally, the wife clearly indicates that there were two accounts created by way of term deposits at about the time the parties commenced cohabitation or between that time and their marriage. 

8. It is unfortunate that it has not been possible - and this is not said critically - to trace the cheque for $193, 713 that was the payment by the solicitors for the balance of purchase moneys to the wife.  None of the records I have seen have indicated to me that that money is in any account, in anyone's particular control or possession. However, when one endeavours to the best one can looking at what was acquired and the time it was acquired, I have come to the conclusion that I am satisfied in the circumstances of this case that the wife's money from the sale of her home and her furniture was applied in some fashion or other for the benefit of the family. 

1. Having decided that, I believe that I am able to determine that at the commencement of the relationship and before their marriage, so that at the time of their marriage each of the parties had brought in and used, for the benefit of the parties, in the husband's case, the sale proceeds of his home of $332,269 and some cents, the balance of his deposit of $14,719.67, his car $15,000, and a term deposit at $40,000 for a total of $401,998.69.  I am satisfied that the wife brought in $193,713 proceeds of sale, a deposit balance of $14,405, contents at $10,000 and savings of $25,000 for an amount of $243,118.  That means that at the commencement of cohabitation the parties had money and assets to the value of approximately $645,000. It is a tragedy that the current pool of assets that I have determined is over $110,000 less than that.

2. So far as the money and assets at the time of marriage are concerned that would mean that if one applied percentages, and I believe that I must endeavour to do that having regard to the shortness of the marriage, that the husband brought in some 62.3 per cent and the wife some 37.7 per cent.  That, however is not an end to contribution based entitlements.

3. The wife did, I am satisfied, the bulk of the homemaking duties.  The father's affidavit, which I am satisfied was largely attributable to his daughter, was less than generous in the concessions made of that which the wife did whilst the parties lived together, that is, before the husband was admitted to hospital.  I am satisfied that in addition the wife provided support for the husband in hospital which may well have decreased but certainly was continuing up until the time that she was given a letter which restrained her from further attendance at the hospital.

4. That, to my mind, would entitle her to an adjustment of some significance, however, balanced against that in my view is the fact that she has remained in the former matrimonial home.  It was put to me with some force that I would make an adjustment on that basis in her favour only if there was a contest between the parties as to who was to have occupation of the home.  I am not satisfied that that is so.  The simple fact of the matter is the wife continued to enjoy the occupation of a home, a home in respect of which she asserts she had some expectation she would be entitled to continue to occupy. In the event, she was provided with accommodation for which she was not required to pay any rent or any other outgoings.

5. I am satisfied that the husband, since he has been released from hospital, has lived with his daughter and her husband and I am satisfied that he has expended moneys in respect of staying with them, a situation which the wife does not seem to challenge. Balancing these matters as best I can I have come to the conclusion that, based on contribution there is a requirement to recognise the husband as having made a superior contribution to that of the wife. In my view an appropriate adjustment to reflect these matters would be such that by way of contribution the wife was to receive 45 per cent of the assets of the parties and the husband 55 per cent. 

Section 75(2) factors

1. I turn then to the s 75(2) factors to which I must have regard in this matter.  The first of those matters is, of course, the age and state of health of each of the parties.  The husband, as I have said, is 75 and the wife is 73.  If I may deal with the parties in reverse order, there is no evidence before me that the wife suffers any ill health. Indeed the evidence before me is that having regard to her age she is in good health. It has been put to me, and I accept, that working from any table of life expectancies the wife has some considerable number of years ahead of her.  That evidence was not the subject of any serious challenge.

2. The husband's situation is that he is a sick man.  He has suffered from both pancreatic and colon cancer.  He has become a diabetic. He is subject to sepsis and he is indeed a person who has required hospitalisation from time to time.  However, his own doctor categorises him as a survivor, if I might put it that way.  They were not the doctor's words, they are mine.  He says that he is a man who has, so far as Dr H is concerned, a capacity to come through it.  The doctor was not prepared to be tied necessarily to the statistics though he projected life expectancies of the husband in percentage terms of survival.  It would seem that doctor was certainly indicating to me that he would expect that the husband would in all probability live for a period of at least a further three years.

3. I understand that Dr D was less sanguine in this regard. He had produced a table containing statistical analysis in relation to these matters.  However I am satisfied that where there is a conflict between the two doctors (and there is no ‘conflict’) but where dispute exists as to life expectancies, I should accept the evidence of Dr H.  I am therefore satisfied that the husband has a life expectancy of at least three years in the present situation, and that is the basis upon which I should proceed.

4. I next take into account the income, property and financial resources of each of the parties.  Their income is modest.  They both disclose pension benefits of, in one case of $287 per week and in the other $285 per week. Both have modest returns on investments.  Neither party has significant funds at their disposal other than funds invested in the former matrimonial home.  I am satisfied, having regard to the parties' ages, even as corrected by Mr Givney, that neither of them will re-enter the workforce and therefore that any income other than their modest returns on investment will come from benefits provided by the Commonwealth. 

5. Neither party has care and control of a child.

6. The commitments of each of the parties necessary to support themselves are these:  the husband, at this stage, is living with his daughter.  As I have found, it is intended that will continue unless the husband becomes so ill and or disabled that he requires to be taken into full time, high intensity residential care.  However, there is no evidence before me of what that might cost, there is no evidence before me of when it might happen or if there is any decision as to what will constitute a triggering event for it to happen.

7. As I understand the position of the husband of those assisting him, he will remain where he is (with his daughter) and decisions will be made as and when they are required.

8. I do take into account that the husband has paid money to his daughter and son-in-law for accommodating him, as I say, something that the wife does not object. There can clearly be no expectation that he will be cared for without cost if he remains with his daughter and certainly, were he to go into care, whilst I am not able to fix any amount, even an approximate amount as to what that would cost, it is clear that it will be a significant financial impost.

9. The wife, for her part, is managing for herself.  If she does not have the benefit of the former matrimonial home, I have no evidence to indicate to me that she would be accommodated by any members of her family, by that I mean her children or grandchildren.  She has as I understand it assisted them in the past.  However, her proposal as put to me is that she would continue to live independently and it would seem that if the  former matrimonial home is sold then it is most unlikely that a cash sum would be made available to the wife such as would enable her to acquire, as owner, premises in which to reside.

10. However, there can be no guarantee under this Act that each party will obtain, when the parties marriage is dissolved, a property of his or her own.

11. In this case there is a finite fund.  It must be distributed as best can be done.  Clearly, and I will return to this shortly, great reliance is placed by the wife on the actions that she took being based on something that the husband had assured her of and from which he is now resiling. 

12. The commitments of the parties to support themselves:  the husband has the commitment that I have indicated, (a) whilst living with his family and, (b) if it were necessary for him to be admitted to care. I am not able to fix the latter with any certainty. 

13. The wife would need to feed, clothe and house herself. 

14. Neither party has the responsibility of supporting any other person.  Each party, as I have said, is eligible to receive a pension.  I would imagine that those pensions would march forward very much in equal or very, very close to equal amounts depending on any other monies the parties receive from modest investments.

15. The parties' standard of living following separation or divorce is that the wife so far has remained in the matrimonial home, the husband living with his family or being hospitalised. 

16. To my mind, this is not a case where the length of the marriage has, in any way, affected the earning capacity of either party. It is a short marriage, as I say.  Both parties were effectively retired when they entered into it and that has not changed as a result of the parties becoming married to each other.

17. Neither party is cohabiting with any other person.

18. Mr Campton puts to me that I must take into account under sub-s (o) any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.  It is here that Mr Campton relies heavily on the situation that the parties themselves created concerning mutual wills.  The parties entered into a contract whereby they agreed, on the consideration of each executing a will that each would execute a will in favour of the other.  The provisions to be made in each of those wills was to be for each testator to acknowledge that the other would have occupation of the property for life.  Clearly, that is provided for by way of a contract and I am not going to try and involve basic contract law.  I accept, for the purpose of this argument, that the consideration of the promise each to the other was sufficient to create a contract rather than proceeding by of deed.   

19. I have before me the will of the wife executed in accordance with the contract.  I have before me the husband's last will and testament which is dated 8 May 2008.  I am satisfied that that will clearly makes completely different provisions which do not recognise the wife in any way.  Without wandering too far from the point as to how that will might survive in the face of the New South Wales legislation, it is clearly a departure from the contract entered into.

20. The wife's case is that she entered into the marriage, effectively, on the basis that certain things would occur.  Mr Campton now raises an issue of estoppel. He asserts that I must examine the effect that doctrine would have upon the current situation and whether, in effect, this Court would make orders that would give effect to the will that the husband was contractually bound to enter into. 

21. I am referred to the decision of Woodcock and Woodcock[1]. That was a case stated by a single judge to the Full Court of the Family Court. The questions that were posed in the stated case were as follows:  

    1. If there is an agreement between the parties to a marriage, other than an agreement either approved by or registered with or capable of being registered with the Family Court of Australia and other than embodied in consent orders and as a result of which agreement one party has acted to his detriment, can that party rely, by way of defence to an application for property settlement and spousal maintenance, upon the doctrinal principle of estoppel as defined by the High Court of Australia in Waltons' Stores (Interstate) Limited v Maher (1987-1988) 164 CLR 387?

    2. Alternatively, should the Family Law Act be treated as a code to which the doctrine of equitable estoppel has no relevance save when specifically imported by the Act?”

    Their Honours delivered a lengthy judgment, which investigated a number of aspects of matters such as this. Their Honours held; -

    1. The Court's jurisdiction to grant relief under ss 74 or 79 can only be ousted by court order or by a s 87 agreement.

    2. The facts relied upon to establish the existence of circumstances where the doctrine of equitable estoppel might otherwise operate may well be relevant to the application of ss 74, 79(1), 79(2), 80(1)(k) or 85A.

    [1] (1997) FLC 92-739.

22. Their Honours went on to answer the first question in the following terms:

    Not so as to oust the jurisdiction of the Court to make orders under ss 74, 79 or 85A.

    The answer to the second question was in these terms:

    The doctrine of equitable estoppel does not operate to prevent the court from exercising its jurisdiction to make orders in a particular case under ss 74, 79 and 85A of the Family Law Act 1975.

23. I am satisfied therefore that the estoppel that Mr Campton seeks to raise can be used neither as a sword or a shield in the light of the statutory provisions of the Family Law Act. However, that does not mean that I cannot take into account the fact that the parties did enter into this contract, and so far as the wife was concerned, acted upon it.  The husband, clearly, even if he did execute an earlier will, executed a will in 2008 which does not recognise nor put into effect the agreement entered into between the parties.  Again, what I say is absent any suggestion of what might happen in the event that proceedings were commenced under New South Wales legislation.

24. It seems to me that the wife could say she had an expectation of certain things, and I am satisfied that under s 75(2)(o) that I can give that matter some recognition.   However, it also seems to me that I have to be very careful not to apply matters of justice and equity twice.  In other words, what I do not think I should do or be persuaded to do is make an adjustment in relation to the s 75(2)(o) factor and then, again, examine the issue when I come to the fourth step so as to possibly achieve a different result or even a significantly different result from that I would come to by the application of the first three steps.

25. I am satisfied, however, that an adjustment in favour of the wife is required.  Mr Campton made reference to Clausen and Clausen[2] and, of course, that is a case where there was a situation of children of the marriage being involved and a proportional adjustment being made to recognise that, among other factors.  There are no children here and, accordingly, to my mind Clausen does not strictly apply.  However it will be remembered that Clausen indicated that a range might be between 10 and 20 per cent. 

    [2] (1995) FLC 92-595.

26. In Tomasetti and Tomasetti[3] it was made clear that in reaching a decision so far as the s 75(2) factors are concerned, I should deal with the factors globally and not try and, as it were, apportion to each individual heading a percentage which might then be totalled up.

    [3] (2002) FLC 93-023.

27. In the circumstances of this case, and for the reasons I have endeavoured to set out, I have come to the conclusion that an adjustment of 17.5 per cent to the wife is appropriate and, thus, by percentage entitlements the wife should receive 62.5 per cent of the asset pool.

28. A reality check as expressed to me by Mr Campton, again relying on Clausen and Clausen[4] is that 17.5 per cent of the pool is a figure of $93,100 this is not of itself a vast amount, but it is certainly significant within the pool of assets available to these parties. 

    [4] (1995) FLC 92-595.

How is the result to be put into effect

1. The wife, thus, is to receive 62.5 per cent of the pool.  62.5 per cent of the pool I have earlier determined produces a figure of $332,501.25.  The wife has savings to which I have already made reference of $31,800 which means she is entitled to receive a further amount of $300,701.25. 

2. The husband, for his part, has 37.5 per cent of the pool, to produce a figure of $199,500.75.  He has his motor vehicle and savings at $50,202 which means he is entitled to a further amount of $149,298.75 to realise his full entitlement. 

3. If one deals with the wife's entitlement of $300,701.25 and the husband's entitlement of $149,298.75 it will be seen, subject to decimal points, that that approximates the total value of the former matrimonial home of $450,000.  That property will, of course, have to be sold to provide the funds to each of the parties.

4. In the circumstances of this case I believe it would be unjust and certainly against cases such as Docters van Leeuwen[5] for me to order one party to receive a fixed amount and the other party to receive the balance of the proceeds of sale, together with interest.  What I propose to order is that the wife receive the percentage or equivalent of her entitlement within the matrimonial home. Her entitlement of $300,701.25 is 66.8 per cent of the value of the matrimonial home.

   [5] (1990) FLC 92-148.

5. The husband would receive then an amount of approximately $149,298.75 representing some 33.2 per cent of the value of the home. 

6. Mr Givney has conceded that if a sale is to occur, and clearly it is, then such a sale need not occur within a shorter period of time as might otherwise be the case. That is a generous concession.  In my view, an appropriate period of time for the property to be offered for sale by private treaty would be nine months.  If contracts have not been exchanged by that time, then a sale by auction will be ordered. I will of course order that the parties, subject to contents, keep other items in their possession.

7. So far as contents are concerned, I have a husband's list and a wife's list.  What I propose to order is that upon the property being sold, the parties will arrange for the husband to collect the items on his list and the wife to retain the items on her list.  The balance of furniture then remaining will be sold and the proceeds will be divided equally. 

8. I do then stand back to see if I am satisfied that in the circumstances this is a just and fair result.  It is not a result I suspect with which either of the parties will be particularly happy.  Happiness, however, is not a requirement of justice, fairness and equity.  There is a limited pool.  The parties each seek very different results.  In the circumstances of this case, appropriate adjustments have been made for each of the parties and I have come to the conclusion that that which I have arrived at by percentages is appropriate in all the circumstances.  The orders that I then make are these (orders as set out in paragraphs 1 to 11 at the commencement of these reasons).

I certify that the preceding sixty seven paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier  

Associate: 

Date:  9 September 2009