DINSMORE & DINSMORE

[2012] FamCA 798

FAMILY COURT OF AUSTRALIA

DINSMORE & DINSMORE [2012] FamCA 798

FAMILY LAW – PROPERTY – long marriage – where the husband made an initial contribution of equity in real estate; received gifts from his parents and received a substantial inheritance near the conclusion of the marriage – what is a just and equitable alteration of property

Family Law Act 1975 (Cth)

APPLICANT: Ms Dinsmore

RESPONDENT: Mr Dinsmore

FILE NUMBER: SYC 4210 of 2011

DATE DELIVERED: 18 September 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 14 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodgson

SOLICITOR FOR THE APPLICANT: Fox O'Brien

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: Fox & Staniland Lawyers

Orders

1. Pursuant to s 79 Family Law Act 1975 (Cth) an order is made in accordance with paragraphs 2 – 12.

2. Within 90 days from the date of these orders, the parties do all acts and things and execute all documents necessary to list the property situated and known as Property W in the State of New South Wales and being the whole of the property contained in Certificate of Title Folio Identifier …31 … for sale by private treaty for 8 weeks as set out in the following manner:

   2.1.the parties shall appoint a local real estate agent as agreed between them (“the agent”);

   2.2.the listing price for the sale shall be as agreed between the parties and failing agreement as recommended by the agent;

   2.3.if the property fails to sell by private treaty within 8 weeks from the date the property is first listed for sale, the parties shall do all necessary acts and things to list the property for sale by public auction, the reserve price for the auction shall be as agreed between the parties and failing agreement as recommended by the agent;

   2.4.In the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of Property W at a price which is not more than 5% below the reserve price;

   2.5.If the property remains unsold, the parties will do all acts and things and sign all documents necessary to immediately re-list the property for sale by public auction again, on a date nominated by the agent and at a reserve price as recommended by the agent;

   2.6.The parties shall instruct a solicitor or conveyancer on whom they agree, to act on the sale of the property;

   2.7.the Husband shall co-operate in every way with the agent including (without limiting the generality of the foregoing):

   2.7.1.making the key available to the agent;

   2.7.2.signing all documents requested by the agent to sell Property W;

   2.7.3.executing a contract for sale in the form prepared by the solicitors or conveyancers having the conduct of the sale at the sale price

   2.7.4.allowing inspection of Property W at all times as requested by the agent;

   2.7.5.doing all necessary repairs or improvements as recommended by the agent,

   2.7.6.ensuring Property W including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;

   2.7.7.not doing or saying anything to hinder or prevent a sale being effected;

3. The parties may on 14 days notice, seek to relist the matter if they seek further orders to implement the sale of Property W.

4. On settlement of the sale of Property W the proceeds of sale shall be distributed in the following manner and priority:

   4.1.all costs and agreed expenses of the sale including legal costs and disbursements, agent’s commission, advertising expenses and auction expenses;

   4.2.the amounts required to pay any municipal and water rates outstanding with respect to Property W;

   4.3.to reimburse any party who paid for any repairs/maintenance or improvements to prepare Property W for sale – provided that such costs were approved by the other party before the work was carried out.

   4.4.the balance remaining shall be divided:

   4.4.1.61.9% to the Husband

   4.4.2.38.1% to the Wife

5. Upon the settlement of the sale of Property W, the wife shall pay the husband the sum of $529.80 being her 50% of the single expert (Mr B) valuation fee.

6. Within 90 days from the date of these orders, the parties shall do all necessary acts and things to:

   6.1.close the ANZ joint account with the balance of the said account (if any) to be paid to the Husband.

   6.2.Transfer to the husband the joint NAB shares (200).

7. Except as any other order provides to the contrary, as against the Husband, the Wife shall be solely entitled to and the Husband has no interest in the following:

   7.1.Partial property settlement of the Wife received pursuant to orders made 6 January 2012;

   7.2.monies standing to credit of the Wife in bank accounts in her sole name;

   7.3.her Nissan motor vehicle;

   7.4.all shares in her name;

   7.5.her superannuation in Australian Superannuation Fund; and

   7.6.all other assets of whatsoever nature and kind presently in the name, possession or ownership of the Wife.

8. Except as any other order provides to the contrary, as against the Wife, the Husband is solely entitled to and the Wife has no interest in the following:

   8.1.Partial property settlement of the Husband received pursuant to orders made 6 January 2012;

   8.2.His remaining interest in the Dinsmore Super Fund;

   8.3.monies standing to the credit of the Husband in bank accounts in the Husband’s name

   8.4.all shareholdings in his name;

   8.5.his Subaru motor vehicle;

   8.6.all insurance policies in his name;

   8.7.all other assets of whatsoever nature and kind presently in the name, possession or ownership of the Husband;

9. The parties shall divide the furniture in Property W equally using a pick a pile method on or before 90 days from the date of this order; if the wife elects not to retain any of the furniture in the said property the husband shall retain the items of his choice and dispose of the rest at his cost.

10. Except as any paragraph comprising these Orders provide to the contrary:

    10.1.the Husband hereby indemnifies the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband; and

    10.2.the Wife hereby indemnifies the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife.

11. Except as any paragraph comprising these Orders provides to the contrary, each of the parties releases the other from all debts owing from one to the other.

12. Both parties shall promptly do all acts and things and execute all documents, authorities and writing as are necessary to give effect to all or any of the provisions of the paragraphs comprising these Orders.

13. In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, then a Registrar or a Deputy Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dinsmore & Dinsmore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4210 of 2011

Ms Dinsmore

Applicant

And

Mr Dinsmore

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties cohabited for 28 years. The husband had equity in real estate at the commencement of cohabitation. During the marriage and particularly at the end of the marriage, the husband received substantial gifts from his parents and inheritance from his mother’s estate. The wife has now brought proceedings to alter the interests the parties have in property.

APPLICATIONS

1. By the commencement of submissions, both parties had crystallised their applications.

2. Both parties agreed the former matrimonial home will need to be sold.

3. The wife is seeking an overall split of all the assets, 55/45 in the husband’s favour. She proposes an equal split of the proceeds of sale of the former matrimonial home and that she then receive a cash adjustment. The wife also proposes the husband have the furniture in the former matrimonial home and the money in the parties’ joint ANZ account.

4. The husband is seeking a 70/30 split in his favour. The husband proposes the proceeds of sale of the former matrimonial home are split 70/30 in his favour, and then a cash adjustment to the wife in the order of $92,029. The husband agrees to the balance of the ANZ account being transferred to him. He also seeks the parties’ joint NAB shares be transferred to him. The husband proposes to split the furniture in the former matrimonial home using the ‘pick a pile’ method.

DOCUMENTS RELIED UPON

1. The applicant wife relies on the following:

   6.1.Wife’s affidavit sworn 17 April 2012

   6.2.Financial Statement filed 17 April 2012

2. The respondent husband relies on the following:

   7.1.Husband’s affidavit sworn 15 March 2012

   7.2.Financial Statement filed 15 March 2012

   7.3.Affidavit of Mr R Dinsmore sworn 12 March 2012

   7.4.Affidavit of Mr L sworn 16 March 2012

SHORT HISTORY

1. The husband was born in 1943 and is now aged 69.

2. The wife was born in 1951 and is now aged 61.

3. The parties commenced cohabitation around 1980.

4. The parties married on 27 October 1984.

5. The parties’ first child S was born in 1985 and is now aged 26.

6. The parties’ second child H was born in 1987 and is now aged 25.

7. The parties separated on 15 March 2009. They cohabited for 28 years.

CREDIT

1. Both parties gave evidence in a straightforward manner.

DETAILED CHRONOLOGY

1. The husband was born in 1943 and is now aged 69.

2. The wife was born in 1951 and is now aged 61.

3. In 1977, the husband purchased a house in Suburb Y (“Property Y”) for $45,500 with the aid of a mortgage in the sum of $18,500.

4. In 1980, the wife purchased a property at Suburb N for $6,950.

5. The parties commenced cohabitation in Property Y around 1980.

6. The parties married in 1984.

7. The child S was born in 1985 and is now aged 26.

8. The child H was born in 1987 and is now aged 25.

9. In 1987 the husband’s father gifted him $17,000 with which he discharged the mortgage on Property Y.

10. In June 1988, the wife sold her property at Suburb N for $29,000. The proceeds of sale went into the parties’ joint funds.

11. On 3 April 1993, the parties sold Property Y for $358,000. The parties relocated to the wife’s mother’s home in Suburb C, where they lived rent free for two months.

12. In 1993, the husband’s father purchased shares in the parties’ joint names.

13. On 22 September 1993, the parties purchased Property W for $435,000 in joint names. The proceeds of the sale of Property Y were used in the purchase.

14. In April 2002, the husband’s father passed away leaving all he had to the husband’s mother.

15. Around 2003, the wife was awarded a scholarship to study a Bachelor Degree.

16. Between 2003 and 2006 the husband received from his mother gifts totalling $271,276.

17. In 2003, the parties’ eldest daughter was sexually assaulted. She suffered depression for many months and began self harming. The wife ceased her university studies to support her daughter.

18. In 2006 the wife returned to full time employment.

19. In 2007, the husband’s mother passed away.

20. Between 2007 and 2008 the husband received by way of inheritance, the sum of $1,173,844.

21. The parties separated under the one roof on 15 March 2009.

22. The wife left the matrimonial home around 24 April 2009.

23. In August 2009, the wife commenced a computer refresher course at TAFE.

24. On 22 September 2009, the wife received an inheritance of $72,478 from her aunt.

25. In February 2011, the husband retired.

26. In January 2012, by consent, interim orders were made providing that “each party will receive an amount of approximately $452,333 by way of partial property settlement”. The parties agree they each received $452,231.

APPROACH

1. In this matter my task is to:

   42.1.Identify and value the property, assets, financial resources and liabilities of the parties;

   42.2.Identify relevant contributions and assess them;

   42.3.Consider relevant matters referred to in Section 79(4)(d) – (g) FLA;

   42.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

1. The settled balance sheet is set out below. In respect of the one value which is not agreed my determination appears in bold. The reason for that determination is set out under the heading item number 2.

2. I note the balance sheet does not include item 24 from exhibit 3. After the hearing, I caused an email to be sent to both parties requesting confirmation that they had not intended item 24 on the balance sheet, given the insertion of item 18. Both parties agreed to this change.

Assets
Item no.	Title	Description		Husband	Wife	Agreed/ Determined	Value
1	J	Property W		$1,300,000	$1,300,000	Agreed	$1,300,000
2	H	Subaru Motor Vehicle		$11,850	$8,250	Determined	$11,850
3	W	Nissan Motor Vehicle		$10,070	$10,070	Agreed	$10,070
4	H	ING Direct Balance		$1,439	$1,439	Agreed	$1,439
5	H	ANZ Account balance		$545	$545	Agreed	$545
6	H	Colonial Insurance		$11,384	$11,384	Agreed	$11,384
7	H	Newscorp shares Class A		$27,150	$27,150	Agreed	$27,150
8	H	Newscorp shares Class B		$24,790	$24,790	Agreed	$24,790
9	J	NAB shares		$5,084	$5,084	Agreed	$5,084
10	W	Westpac …43		$1,925	$1,925	Agreed	$1,925
11	W	Westpac …73		$5,074	$5,074	Agreed	$5,074
12	W	Shares Westfarmers (257 partially protected)		$8,702	$8,702	Agreed	$8,702
13	W	Shares Westfarmers (257 ordinary)		$8,368	$8,368	Agreed	$8,368
14	J	Furniture in Property W		$10,000	$10,000	Agreed	$10,000
15	W	Personal & other items in wife's possession		$5,000	$5,000	Agreed	$5,000
Addbacks
16	H		Paid Legal Fees (Husband)	$24,094	$24,094	Agreed	$24,094
17	W		Paid legal fees (wife)	$7,273	$7,273	Agreed	$7,273
18	H		Payment to the husband by way of partial property settlement	$452,231	$452,231	Agreed	$ 452,231
19	W		Payment to the wife by way of partial property settlement	$452,231	$452,231	Agreed	$452,231
Superannuation
20	H		Dinsmore Super Fund	$318,702	$318,702	Agreed	$318,702
21	W		Australian Super	$13,620	$13,620	Agreed	$13,620
Total liabilities (excluded from balance sheet)							NIL
Total net assets							$2,699,532

Item 2 – Husband’s motor vehicle

1. The husband asserted a value which he said was based on Redbook. The wife successfully objected to that evidence being tendered. The wife relied upon the husband’s admission against interest in his financial statement, “motor vehicle $11,850”. Given that that is the only evidence I have, that is the value I accept.

CONTRIBUTIONS

Initial Contributions

1. The husband owned a house in Suburb Y that he purchased in 1977 for $45,500. That purchase was partially funded with a mortgage of $18,500. The husband says that when cohabitation commenced, the mortgaged was $17,000. He says his father gifted him $17,000 to discharge the mortgage in 1987.

2. Counsel for the husband contended that the proceeds from Property Y made up 82 per cent (358000/435000) of the purchase price of the former matrimonial home at Property W. While that calculation gives some flavour to the value that the husband brought to the marriage by way of introduction of Property Y, it has to be counter balanced by the fact that the parties lived in that property for 13 years, with both parties making contributions during that time.

3. Also at the date of cohabitation the husband owned a motor vehicle worth approximately $3000; had approximately $5000 in savings, and he owned the furniture in Property Y.

4. The wife says that at the date of cohabitation she owned a motor vehicle and a vacant block of land in Suburb N that she bought in 1980 for $6,950. That land was encumbered, although it is unclear for what amount. The wife sold that piece of land in 1988 for $29,000, and that money went into the parties’ joint account.

Financial Contributions

1. The husband was the primary breadwinner.

2. After the birth of the parties’ two children, the wife did not return to full time work until 2006. The husband conceded that the income the wife received from time to time was applied towards household expenses.

3. The children attended a Private Girls College. The wife says that the fees for the children were paid “from the Education Bond that we entered into in 1987 firstly and secondly from our joint funds.” The husband says, and I accept, this bond was purchased with $15,000 gifted to him from his father in 1987. The wife says she “do[es] not know that the bond was paid for by the Respondent’s father” and is unable to recall the amount of the bond.

4. In April 2002, the husband’s father passed away. The husband’s father’s estate passed to the husband’s mother, but the husband received gifts from his mother as a way of distributing from her estate during her lifetime.

5. In December 2003 and February 2004, the father asserts that he sold shares worth $53280 and $25,700 gifted to him by his mother. He says they were “used for education expenses and balance retained.” The wife says that the eldest child left school in December 2003 “prior to the Respondent receiving substantial inheritances from either of his parents.”

6. The husband’s brother’s affidavit at paragraph 24 summarises the various amounts the husband received by way of gift or inheritance (in either cash or shares) between 2003 and 2008. Between 2003 and 2006, the husband received gifts totalling $271,276.

7. The husband says many of these gifts were used for general living expenses, although money was also placed in superannuation accounts in both parties’ names.

8. The husband says those gifts were also applied to holidays. The wife denies this. She says the family only went camping for one week at a time, except for a holiday they took paid for by the wife’s mother.

9. Between 2007 and 2008, the husband received a further $1,173,844 by way of inheritance.

Non-Financial Contributions

1. The husband asserts he renovated the former matrimonial home. He says he cooked meals on weekends and occasionally through the week. He says the parties shared cleaning, and he was heavily involved in caring for the children when they were young.

2. The husband does not contest the fact that the wife during the period of the marriage made significant indirect contributions, particularly to the welfare of the family. She fulfilled the primary role as homemaker and parent.

3. The wife says that she “spent many hours planting and landscaping the grounds of [Property Y]”. She also says that she was the principal homemaker and parent and “attended to all of the housework, shopping, cooking, cleaning and tending to the children’s requirements including taking the children to school and collecting them from school.”

4. After the parties relocated to Property W, the youngest child began exhibiting behavioural issues. The wife changed the children’s school and began driving them to school daily because there was no direct public transport.

5. The children suffered from numerous ailments. Both children were diagnosed with asthma from a young age. The children were regularly hospitalised. The youngest daughter was diagnosed with Attention Deficit Hyperactivity Disorder, and a mild sleep disorder. She also suffered from late onset stuttering. The eldest daughter was sexually assaulted in 2003 and suffered depression for several months and began self harming. The wife was the party primarily responsible for dealing with these issues.

Post Separation Contributions

1. The husband has remained in the former matrimonial home, with the children. The youngest child moved out around 2011. The eldest child moved out in early February 2012.

2. The wife has stayed with family and friends, and house-minded. For most house-minding jobs, she has not been paid but has not had to pay rent.

3. The wife says she occasionally returned to the former matrimonial home to “clean the house, the refrigerator and tend the garden periodically and more recently to mind the family dog.”

4. The wife had approximately $10,000 in two bank accounts when the parties separated.

5. The wife after separation had access to the parties’ joint funds but chose not to use them to any significant degree. For approximately eight months, the wife drew $100 a week (then $200 per week) from the parties’ joint funds but then returned that access card to the husband. The wife also received an inheritance of $72,478, but that has got to be compared to the husband’s gifts and inheritance of $1,445,120.

6. I take into account that the husband used monies to live on after the separation. During cross examination, this was quantified as $62,500, made up of approximately $18,000 from February 2011 to September 2011 and $44,500 from September 2011 to March 2012.

7. Since March 2012, the husband has been receiving a pension from his superannuation fund.

Conclusions on contributions

1. I accept the parties lived modestly during their marriage. The husband was the person who mainly controlled the finances.

2. Counsel for the wife said that the court should look at making a finding that the husband made contributions to an extent of 60-65 per cent. Counsel for the husband said the court should make a finding that the husband’s contributions totalled 75 per cent of the current pool of assets.

3. The amount that the husband inherited in 2007 and 2008 represents, on its own, 43.5 per cent of the pool (1,173,844/2,699,532). The husband made a significant initial contribution and received other significant monies from his mother between 2003 and 2006.

4. Taking into account the extent of the property emanating from the husband’s family and the myriad of other contributions both parties made over a 28 year period, I conclude that the division of assets based on contributions should be 70 per cent to the husband and 30  per cent to the wife.

FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS

1. The husband permanently retired in February 2011.

2. Except as detailed below, I infer both parties are in reasonable health. The wife is eight years younger than the husband. The wife has a longer period of time to support herself than the husband on normal expectations in respect of their life expectancies.

3. The wife has not worked since September 2010. Around that time she was admitted to hospital. Around December 2010, the wife was admitted to hospital again and was treated for insomnia, anxiety and dizziness.

4. The wife has also suffered from mental health problems. She began attending upon mental health practitioners around July 2009. She has been prescribed many different types of anti-depressants. She is currently on Temazepam and Crestor.

5. During cross examination, the wife expressed a desire to return to the workforce. In 2009, the wife completed a TAFE computer refresher course to improve her employment prospects.

6. I accept the wife has limited employment opportunities.

7. The most significant 75(2) factor is the disparity in the capital that they both have as a result of the conclusions on contributions. The wife should receive a 7.5 per cent adjustment.

JUST AND EQUITABLE

1. It is appropriate that the furniture in Property Y be split equally between the parties and the husband receive the NAB shares.

2. Based upon my findings in relation to contributions and s 79(4)(d) – (g) matters, the husband would receive 62.5 per cent of the overall assets and the wife would receive 37.5 per cent.

3. That result could be achieved by distributing the assets in the following manner:

Husband receives 62.5%
Item no.	Description	Percentage	Value
1	Property W	61.9%	$804,938
2	Subaru Motor Vehicle	100%	$11,850
4	ING Direct Balance	100%	$1,439
5	ANZ Account balance	100%	$545
6	Colonial Insurance	100%	$11,384
7	Newscorp shares Class A	100%	$27,150
8	Newscorp shares Class B	100%	$24,790
9	NAB shares	100%	$5,084
14	Furniture in Property W	50%	$5,000
16	Paid Legal Fees	100%	$24,094
18	Partial property settlement	100%	$452,231
20	Dinsmore Super Fund	100%	$318,702
Net Assets to Husband			$1,687,447
Wife receives 37.5%
Item no.	Description	Percentage		Value
1	Property W	38.1%		$495,062
3	Nissan Motor Vehicle	100%		$10,070
10	Westpac 557443	100%		$1,925
11	Westpac 219473	100%		$5,074
12	Shares Westfarmers (257 partially protected)	100%		$8,702
13	Shares Westfarmers (257 ordinary)	100%		$8,368
14	Furniture in Property W	50%		$5,000
15	Personal & Other items	100%		$5,000
17	Paid Legal Fees	100%		$7,273
19	Partial property settlement	100%		$452,231
21	Australian Super	100%		$13,620
Net Assets to Wife				$1,012,085

1. Standing back, I find that a distribution as set out is a just and equitable result.

2. It can be seen from the distribution table that if Property W nets a figure of $1.3 million, then the husband would receive $804,938 from that sale and the wife would receive $495,062 from that sale. That is a proportionate division of the net proceeds of sale as to 61.9 per cent (804,938/1,300,000) to the husband and 38.1 per cent (495,062/1,300,000) to the wife. 

CONCLUSIONS / ORDERS

1. The wife agreed to an order that the parties equally split the cost of the single expert valuer. I will make an order that the wife pay the husband by way of bank cheque the sum of $529.80 being her 50 per cent of the single expert valuation fee.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 September 2012.

Associate: 

Date:  18 September 2012