Dumont and Canfield
[2019] FCCA 1685
•28 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUMONT & CANFIELD | [2019] FCCA 1685 |
| Catchwords: FAMILY LAW – Property settlement after nine (9) year de facto relationship – consideration of weight to be given to initial contributions – weight to be given to unusual contributions by one party post-separation – s.90SF(3) factors. |
| Legislation: Family Law Act (1975), ss.90, 90SF, (3), SM |
| Re F: Litigant in Person Guidelines (2001) 161 FLR 189 Weir & Weir (1993) FLC 92-338 Pierce v Pierce FLC 92-844 @ p.85,881 |
| Applicant: | MS DUMONT |
| Respondent: | MR CANFIELD |
| File Number: | HBC 640 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing date: | 16 April 2019 |
| Date of Last Submission: | 16 April 2019 |
| Delivered at: | Hobart |
| Delivered on: | 28 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blissenden |
| Solicitors for the Applicant: | Blissenden Lawyers |
| The Respondent appeared in person |
ORDERS
That the parties jointly and prudently do all such things necessary to permit and assist in the building of the residence on the property at Street A, Suburb B, in Tasmania pursuant to the directions of the relevant insurance company.
That upon the completion of the rebuild at the property at Street A, Suburb B, in Tasmania, the parties jointly and at their equal shared expense prudently obtain a valuation on the said property.
That there then be a distribution of the net tangible assets of the parties as to 72.5% to Mr Canfield and 27.5% to Ms Dumont in accordance with my reasons herein and, accordingly, there be a cash adjustment made by Mr Canfield on Ms Dumont within 60 days of the obtaining of the valuation of the property at Street A, Suburb B, in Tasmania and noting that Mr Canfield will be retaining the three motor vehicles noted at [40] of the reasons herein and at value determined in these reasons.
That should Mr Canfield be unwilling or unable to make the required cash adjustment on Ms Dumont within the time permitted by these Orders then the property at Street A, Suburb B, in Tasmania be sold as follows:
(a)By a real estate agent as agreed between the parties and failing agreement then by an agent recommended by the President of the Real Estate Institute of Tasmania or nominee;
(b)By private treaty or by auction as recommended by the designated agent and at a sale price or reserve price as nominated to by the agent;
(c)That each of the parties fully cooperate in the sale process in allowing proper access and inspection by the agent and prospective purchasers;
(d)That the parties each maintain the property in a fit and proper condition and comply with any suggestions by the agent in respect of such maintenance of the property; and
(e)That the proceeds of sale of the said property be distributed as follows:
(i)To the payment of the reasonable costs and disbursements on the sale; and
(ii)As to the balance proceeds of sale then so as to give an adjustment of 72.5% of the net assets of the parties to Mr Canfield and 27.5% of the net assets of the parties to Ms Dumont in accordance with the reasons and findings herein.
That in all other respects each of the parties be and are hereby entitled to all the personalty, chattels, balances of bank accounts, motor vehicles and superannuation entitlements currently in the possession or control of that party.
That each of the parties be solely responsible for and indemnify the other in respect of:
(a)Any liabilities attaching to any of the assets to be retained by that party pursuant to these Orders; and
(b)Any liabilities incurred by that party since separation in either that party’s name or in joint names.
That within seven (7) days of the date of these Orders the respondent make available to the applicant or the applicant’s solicitors, or designated agent to collect the following:
(a)Cross-Trainer;
(b)Framed photograph;
(c)Collection of cook books;
(d)Personal papers and effects; and
(e)Originals or copies/prints of other photographs as requested by the applicant.
That there be liberty to the parties or either of them to apply in respect of the Application and execution of these Orders.
That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Dumont & Canfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 640 of 2016
| MS DUMONT |
Applicant
And
| MR CANFIELD |
Respondent
REASONS FOR JUDGMENT
Applications
The parties lived in a de facto relationship between January or May 2007 and January 2016. They have resolved issues in respect of their one child, [X] born … 2011 whereby [X] lives in an equal shared care arrangement.
Property issues remain unresolved between the parties. The applicant, Ms Dumont, seeks an order whereby there be a 45% distribution of the net tangible assets of the parties to her and 55% to the respondent, Mr Canfield. She proposes no superannuation adjustment where the parties have roughly equivalent entitlements with Ms Dumont having superannuation to a value of $48,657 and Mr Canfield an entitlement of $46,094.
The respondent, Mr Canfield, proposes a cash adjustment to Ms Dumont of $45,000 whereupon he would retain a property at Street A, Suburb B, in Tasmania, together with any insurance benefits pertaining to that property. He proposes that each of the parties otherwise retain all those assets and liabilities in that party's possession and control and including superannuation entitlements.
Ms Dumont has been represented throughout these proceedings and including the trial.
Mr Canfield represents himself. It is proper to note that Mr Canfield has presented as frustrated by the forensic, procedural and interlocutory processes throughout this application and leading to trial. He has not filed updated trial material but relies on a previous affidavit. From my observations, Mr Canfield struggles with an understanding of the complexities of alterations of property pursuant to section 90SM of the Family Law Act and where he brought the property at Street A, Suburb B, into this relationship albeit now some 12 years ago, and where that property remains registered solely in his name although his equity in the property at the date of commencement of cohabitation was just $85,000 with there being a substantial mortgage securing a debt on the property. Mr Canfield has, perhaps understandably, struggled and grappled with the statutory and intellectual process set under the Act. Certainly, Counsel for the applicant has emphasised the lack of participation and compliance with interlocutory and procedural orders by Mr Canfield and, in particular, in respect of disclosure. To this end Mr Blissenden for the applicant urged the Court in the making findings of fact to take a 'less cautious’ approach consistent with the well-known decision of the Full Court in Weir & Weir[1] and in favour of his client where Mr Canfield has not made adequate or proper disclosure.
[1] (1993) FLC 92-338
Despite my observations of Mr Canfield through the procedural stages of this matter and his often emotional and, at times, aggressive reactions to both the Court and the legal representatives for the applicant, it was pleasing to observe Mr Canfield to conduct himself during this trial in a completely proper and courteous manner to both the Court and Counsel and despite what obviously continue to be his frustrations. Mr Canfield cross-examined to the point and with some skill in putting his case. He made responses in cross-examination in a calm, considered and informed fashion and overall his evidence in these respects was extremely helpful to the Court and its determinations.
As an unrepresented litigant, the Court invited Mr Canfield to seek assistance at any time in respect of the procedure in Court. He was provided with relevant sections of the Family Law Act and a detailed summary of the trial procedure[2].
[2] Re: F (Litigants in Person) (2001) 161 FLR 159
The Issues
The primary issue for the Court is the weight to be given to the various contributions of the parties in circumstances where the applicant seeks just a 5% adjustment in her favour on account of the relevant section 90SF factors. Mr Canfield asks the Court to place considerable weight on his ownership of the property at Street A, Suburb B, prior to the commencement of the relationship together with his post-separation contributions in dealing with an insurance company following that residence being destroyed by fire and where such dealings arguably led to an extremely beneficial result for the parties.
The applicant acknowledges Mr Canfield’s superior initial financial contribution but asks the Court to give significant weight to her contributions during the relationship, including but not limited to her contribution to the care and support of Mr Canfield’s two children from a previous relationship who lived for periods of time with the parties.
Background
The applicant is 35 years of age being born on … 1983. She is a tradesperson by occupation.
The respondent is 49 years old and was born … 1969. He has previously worked in many occupations including as a labourer and tradesman. He is currently in receipt of unemployment benefits following a work place injury where he received workers compensation payments.
The parties commenced cohabitation 2007. The applicant says they commenced living together in the January of that year, whereas the respondent says it was in May. Little turns on this minor debate.
The parties lived during their relationship at the respondent’s home at Street A, Suburb B, until it was destroyed by fire.
Between the commencement of co-habitation and mid 2009, Mr Canfield’s two children from a previous relationship, [N] and [O], lived with the parties for 50% of the time.
In February 2009 the mortgage secured by Street A, Suburb B was refinanced and put into joint names of the parties increasing its secured debt from $197,675 to a new level of $244,634.
In … 2009 both parties were convicted of drug trafficking. Ms Dumont received a one month suspended jail sentence. Mr Canfield was sentenced to 6 months imprisonment.
The parties’ daughter [X] was born on … 2011.
In July 2011 the mortgage secured by Street A, Suburb B was again refinanced increasing the secured debt to $263,972.
In 2013 the residence at Street A, Suburb B was destroyed by fire.
In or about 2015 the parties settled with the insurance company in respect of the Street A, Suburb B fire with a payment of approximately $426,000 which, after satisfaction of the mortgage liability and other sundries, left the parties with approximately $120,000 nett. From these monies, a sum of $50,000 was placed into a business account for a proposed Business to be known as …. A further $50,000 was placed into a joint ANZ bank account in the names of the parties. The remaining $20,000 was used to pay for a family holiday and, on the applicant's case, to contribute to the restoration of a Motor Vehicle C.
The balance of the insurance claim with the Insurer was initially denied on the basis of the parties failing to disclose in the policy application their convictions for drug trafficking. However, on 24 January 2019 a Deed of Settlement with the insurer and [D] bank was executed finalising the claim and providing further funds to a maximum of $400,000 to be put to the construction of a residence on the property at Street A, Suburb B. I understand that those funds are immediately available and that construction can commence without delay.
In or about … 2015 the parties leased premises at Street E, Suburb F with the ambition of opening a Business. Renovations were commenced on that premises and the applicant left her employment as a tradesperson in anticipation of operating the Business. Structural modifications were made to the premises and plant and equipment was purchased thereby utilising the majority of the $50,000 from the business account.
The parties separated on 25 January 2016. The husband remained a tenant and resident of the property at Street E, Suburb F. He concedes that rent on the property fell into serious arrears and the property was 'resumed’ by the real estate agent with, according to the respondent, the plant and equipment being sold to a subsequent business on the premises in order to meet those rental arrears.
The applicant commenced these proceedings in August 2016. The proceedings and, in particular, the trial was considerably delayed due to the uncertainty in respect of the balance of the Insurer insurance claim which was settled only as recently as January 2019.
On 3 July 2017 the parties entered into final parenting orders by consent in respect of [X] and providing for shared care.
The trial in this matter proceeded over one day in the Federal Circuit Court in Hobart on 16 April 2019.
The Evidence
Both parties gave evidence and were cross-examined. They were both generally good witnesses and maintained their positions despite vigorous cross-examination. It is clear that each of the parties have some deficiencies in respect of historical recollection but generally gave their evidence in what I saw to be an honest and candid fashion.
The applicant adduced evidence from a valuer, Mr G, whose affidavit of 2 October 2017 annexes a valuation of the property at the Street A, Suburb B as of January 2007 which is the applicant’s preferred date of commencement of cohabitation. Mr G was challenged extensively in cross-examination by Mr Canfield. Mr G emphasised and acknowledged, however, the restrictions of his historical valuation which he gives as $280,000. Given the admitted restrictions of a retrospective valuation, but without any competing or critical valuation evidence, I accept the evidence of Mr G as the best evidence and which, of course, is relevant as to the value of the respondent’s initial contribution in early 2007.
Relevant Law
The High Court in Stanford v Stanford[3] revisited the process for trial judges in altering property interests of parties pursuant to s.79 of the Act for married parties and s.90SM for de facto couples. Suffice to say that the High Court emphasised the requirement for the Court to establish firstly that it be just and equitable in the particular circumstances of the case to make any alteration of property interests and in this process the Court must look at the particular factual platform without a simple conflating of the contribution considerations. In the matter now before and although the major asset remains registered in the name of the respondent, I am satisfied that there have been circumstances, including but not limited to the contributions of the parties, such that justice and equity requires a consideration of an alteration of those interests and noting, of course, that each of the parties propose orders altering their interests, if only by reason of a cash payment proposed by Mr Canfield.
[3] (2012) 247 CLR 108
Following Stanford (supra) the Full Court in Bevan v Bevan[4] harmonised any apparent conflict between the Courts in Stanford (supra) and an earlier leading decision of Hickey & Hickey[5] which offered a preferred 4 step process for Courts when making property settlement orders. That is, after an initial determination as to the 'justice and equity' of proceeding with the consideration, the Court is firstly to establish the property pool of the parties and usually as at the date of the trial. ‘Property’ is to include assets, liabilities and financial resources and, for those purposes, superannuation is to be 'treated as property' although, of course, it is not strictly so until it crystallises in the hands of the parties. Completing this process, the Court is to attribute valuation to the items in the pool.
[4] (2013) FLC 93-545
[5] [2003] FLC 93-143
The Court is then to consider the contributions by or behalf of each of the parties to the acquisition, conservation or improvement of any of the property of the parties or either of them. Contributions may take the form of direct financial contributions, indirect financial contributions and non-financial contributions, including contributions as homemaker or parent.
After a consideration of entitlements pursuant to contributions, the Court then further considers whether it is proper, just and equitable to make adjustments to either of the parties pursuant to the many considerations set out in s.90SF(3) of the Act.
Finally, the sometimes controversial 'fourth step' requires the Court to be satisfied that it is the orders to be made which are to be just and equitable and not just the underlying percentage division of the net value of the parties’ assets.[6]
[6] Russell v Russell (1999) FLC 92-877
The Property Pool
I accept generally the submission of Counsel for the applicant that Mr Canfield has been less than forthcoming with disclosure. The applicant's trial affidavit at [38] – [59] details correspondence from the applicant’s solicitors to the respondent seeking specific discovery and patent lack of response. Generally, my experience of Mr Canfield during the procedural and interlocutory stages of these proceedings has been one of lack of co-operation. This lack of disclosure impacts specifically on assets retained by Mr Canfield including a Motor Vehicle H which he says 'was sold with the proceeds used to renovate the Business, and a Motor Vehicle C which is in the possession of Mr Canfield. This is a vehicle which has been renovated or restored and the subject of an ‘insurance valuation' with Shannons auctions at $50,000 but where the applicant says that Mr Canfield has previously attempted to sell at $110,000 and $120,000. There is also a Truck which has not been presented for valuation and Mr Canfield has not provided a valuation. There are the proceeds of ‘sale’ of plant and equipment from the failed enterprise where Mr Canfield says that those chattels were 'resumed' by a real estate agent on account of unpaid rent in circumstances where Mr Canfield had occupation of the building.
In this respect, the Full Court in Weir & Weir (supra) stated:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honours findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
Similarly, a later Full Court in Chang v Su[7] noted where there is limited disclosed material:
… findings of non-disclosure by the husband, the only imperative that she could fall back upon was that the order be just and equitable…
[7] (2002) FLC 93-117
On the available evidence, or lack of probative evidence, and on the balance of probabilities I find that Mr Canfield retained the benefit of the Motor Vehicle H, the Motor Vehicle J, and the Truck. The Shannons valuation is the best available for the Motor Vehicle J. I prefer and accept the estimates of Ms Dumont in respect of the other two vehicles.
Nevertheless, and whilst not choosing to adopt an asset-by-asset approach, the major asset of value for consideration of the Court constitutes the now vacant land at Street A, Suburb B, which the applicant values at $160,000 and the respondent, in his affidavit of 26 April 2017, values at $100,000 but where it is agreed that the insurance company has entered into a Deed of Settlement to build a residence on the property to a value of $400,000 thereby giving an ultimate ‘valuation’ at cost of $500,000 – $560,000. The situation is that I do not have the benefit of valuation evidence in any form. The best evidence remains the parties’ non-expert evidence of estimations as to the land value plus the known fact that a structure at ‘cost’ of $400,000 will be constructed. I have no evidence of potential under or over capitalisation. Sadly, it all too often falls to Judges to do the best they can with non-expert opinion evidence which is strictly speaking inadmissible and certainly of little probative value.
It is the applicant's position that it is inevitable that this property be sold in order to satisfy her entitlement. The respondent, Mr Canfield, wishes to retain that property. My understanding of the latest instalment from the insurance company is that it is to be utilised only in the construction of a residence.
Consequently, and without any precision, I find the property pool to constitute the following as at the date of this hearing:
Property at Street A, Suburb B –including rebuild
$ 500,000 - $560,000
Motor Vehicle H (respondent)
$ 14,000E
Motor Vehicle
$ 50,000E
Plant & Equipment retained by respondent
$ 10,000
Truck (respondent)
(applicant’s valuation)$ 10,000
TOTAL
$ 584,000 - $644,000
Superannuation
Respondent’s Super Fund P entitlement
$ 46,094
Applicant's Super Fund K entitlement
$ 48,657
The applicant is also in possession of Motor Vehicle L valued at $11,300 but subject to a finance liability of $18,048. She purchased this vehicle after separation, albeit whilst leaving a Motor Vehicle H in the possession of the respondent. In those circumstances I exercise my discretion to exclude both the post separation purchase and liability from the property pool for consideration.
The parties also suggested there to be 'furniture and contents' in the possession of each. The estimated values are minimal. There are disputes as to the nature of any distribution that has taken place. I have no valuation in respect of the items in each party’s possession. I intend to leave furniture and contents out of my property pool for determination save and accept that the respondent in cross-examination agreed for certain items to be returned to the applicant and I will order and particularise them accordingly.
The applicant deposes to a loan of $3,000 outstanding to a Mr M. The respondent says that the applicant has already received some benefit from the repayment of that loan. There is no agreement here and no corroborative evidence from either party. I am at a loss to understand why Mr M was not called. This is an issue which was not explored in any detail in cross-examination and I intend to leave that item as asserted by the applicant out of the property pool on the basis that it is simply impossible to make any findings of fact.
Similarly, the applicant asserts that the respondent has 'tools in his possession' valued at $10,000. I am not presented with any valuation or even inventory but note generally that the respondent has retained some tools which I expect were owned prior to cohabitation or are replacements for those owned by him. They will not feature in the property pool.
The applicant gives an estimate of value of ‘plant & equipment’ of the anticipated business at $17,500. She gives no basis for the ‘valuation’. She says that Mr Canfield disposed of the plant and equipment for $10,000. The respondent says that these items were ‘resumed’ by the real estate agent or landlord in account of rental arrears. Mr Canfield had these items. He had possession of and was, in fact, living in the premises. He gives no satisfactory or corroborated evidence as to his claims of the items being seized by a real estate agent for unpaid rent which, in any event, would be an unusual occurrence. I prefer the evidence of the applicant and will include the plant and equipment at $10,000.
I note again that neither party seeks a distribution of superannuation entitlements.
Contributions
This was a relationship of some nine years duration. Both parties are were substantially employed during the relationship save and except that the applicant took leave for a period of around five months for [X]’s birth and care. She deposes that the applicant was unemployed during some short periods of the relationship and served a six-month term of imprisonment. I am generally satisfied that both parties contributed equally during the course of their relationship by their earnings, labours, and commitment to joint enterprises.
The applicant says that the respondent came into the relationship with debts of about $40,000. Her only evidence in support of this assertion is that she says that the respondent told her so. She gives no particulars of such debts. She does not say whether or not they were ever paid out or how. For his part the respondent says that there were no debts but that he was, in fact, owed $40,000. He is similarly lacking in particulars as to this claim. I cannot make a finding of fact either way.
The respondent, Mr Canfield, owned the property at Street A, Suburb B, prior to the commencement of the relationship. I accept the retrospective valuation of Mr G which gives and equity of approximately $85,000 in that property as at the commencement of the relationship. That property, of course, still exists at least in the sense of the now vacant land ($100,000 - $160,000) and the resultant insurance claim will build a residence to a cost of $400,000 on the property. Consequently, and whilst this is a relationship of nine years and there have been numerous and varied other contributions by each of the parties, I am of the view that the contribution by Mr Canfield of the Suburb B property remains a significant one and one which should be afforded appropriate weight. That is, I am of the opinion that the comments of the Full Court in Pierce v Pierce[8] are relevant where their Honours noted:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case, that use was a substantial contribution to the purchase price of the matrimonial home…
[8] FLC 92-844 @ p.85,881
In circumstances where this property now represents the overwhelming bulk of the parties’ wealth, the 'springboard' effect of the respondent owning this property prior to cohabitation is a significant and weighty factor for consideration.
The applicant came into the relationship with a motor vehicle which was sold in 2009 for $5,000.
I also consider that Mr Canfield has made a particular post-separation contribution to the asset pool by way of his efforts in securing the further settlement with the insurance company in the form of the building of a property to a value of $400,000. It is correct to note that Ms Dumont is a signatory to the insurance policy and, indeed, had to sign off on the settlement. By reason of his dominant personality, I expect Mr Canfield to have assumed full control of the process post separation without any consultation or inclusion of the applicant save and except to obtain her necessary signature. Nevertheless, as noted in previous reasons in this matter, Mr Canfield can be a belligerent and obtuse character and it seems clear that he brought these traits to the fore in his post separation dealings with the insurance company and the bank whereupon he engaged in very public and disruptive protests to obtain his ends. However, this is one occasion when Mr Canfield’s machiavellian traits together with his persistence have ultimately given a benefit to these parties and a substantially financial one in the terms of the value of the property pool. That benefit is effectively a rebuild at cost of $400,000 where the property pool is not otherwise of great value. This is an unusual contribution but one which was primarily the result of effort by one of the parties when he was particularly aggressive, persistent and determined in his efforts and where the contribution by the other party was passive and relatively limited.
The applicant also argues that the Court should give weight to a contribution by her during the course of the relationship by way of her support and care for the applicant's two children from a previous relationship who lived with the parties for periods during their cohabitation. The Full Court in Robb & Robb[9] found that a partner’s contribution by assuming responsibility for the care and support of the children of his or her partner should be recognised but in a situation where the biological parent has a legal obligation to maintain the children. Put simply, justice and equity demands some recognition of the non-biological person’s contribution where the biological parent, having an existing legal obligation and does not get that same consideration. Interestingly the Full Court made this consideration under s.75(2) of the Act rather than as a direct contribution as “homemaker or parent”.
[9] (1995) FLC 92-555
Nevertheless, the respondent's children lived with the parties from only 50% of the time and not for the entirety of the relationship. Consequently, I agree that some weight should be given to the applicant's contributions but only within the circumstances of the children's time with the parties and, in this case, will properly be considered as a s.90SF(3) factor.
In assessing the contributions of these parties I have considered a very recent Full Court decision of Jabour& Jabour[10] where in a relationship of some 25 years duration the Court examined the jurisprudence in respect of a superior initial contribution by one party and the approach of the apportionment of the increase in value of those assets initially contributed, or in simple terms, the ‘springboard effect.' At [136] their Honours conclude in summary:
Whatever was the value of the property at the commencement of the relationship its significance has been largely lost given the myriad of the contributions by each of the parties to their various business ventures, through their employment and care of the family over a long relationship, including the contributions made to the retention of the property which we have discussed above. There is no doubt that they both worked hard and over many years they both contributed to the full extent of their capacity within the roles each took within the marriage. As was said in Wallis at [20] it is important that the miscellany of other s.79(4) factors is not accorded a subsidiary role in the assessment of contributions.
[10] [2019] FamCAFC 78
In the matter now before me, and being careful not to confuse the inglobo and asset-by-asset approaches, I respectfully agree with and adopt their Honours summary of the relevant law. In the matter now be before me, however, the relationship is one of just nine years duration and whilst the parties contributed equally and significantly during their relationship, Mr Canfield's initial contribution of the equity in the Suburb B property and its springboard effect remains a significant contribution and one evident in the wealth of these parties today. I also give some considerable weight to the efforts of Mr Canfield post separation in taking the initiative to aggressively and persistently negotiate the final insurance payment which will rebuild a home on the property at Suburb B and which he did without the active participation of Ms Dumont although she, of course, remained a signatory to the necessary documents and hence made some contribution. The evidence is clear, however, that Mr Canfield, in his usual belligerent and aggressive way, succeeded in negotiating the insurance company from a position of absolute denial to one of a $400,000 rebuild. This is a contribution that should not be underestimated. This was a lay person dealing with a national insurance company and its lawyers. The insurer’s starting point was an absolute denial of liability in respect of the $400,000. They did not easily or quickly resile from this position and apparently set their substantial resources against the parties. Mr Canfield then conducted a public and aggressive argument against the insurer. Having dealt with Mr Canfield myself, I have little doubt that his argument was put forcibly and aggressively and without much of the civility or decorum that might more commonly accompany such negotiations. His public picketing of a bank’s Hobart offices is just one example of Mr Canfield’s methodology. He did this post-separation. His success brought a $400,000 rebuild for the parties. Quite simply he undoubtedly unilaterally assumed a greater role and effort than did Ms Dumont in this eventually productive process. Consequently, on a weighing and balancing of all of the various contributions of the parties, I am of the view that on the basis of contributions the net property of the parties should be divided as to 72.5% to Mr Canfield and 27.5% to Ms Dumont.
Section 90SF(3) factors
The applicant remains in employment as a tradesperson and discloses an income of $97,600 per annum. The respondent is unemployed and says that he has not worked since suffering a workplace injury. Mr Canfield has not, however, adduced any evidence as to any future disability for employment. He strikes me as a person of capability and initiative. He has a strong and productive work history.
The parties share the support and care of their daughter.
I accept that Ms Dumont did provide some support and care for Mr Canfield's older children for a relatively short period of time and as discussed in detail above and that this ‘contribution' by her should be acknowledged.
However, in all of the circumstances of these parties including their respective employment potential, their current employment and income, their daughter’s care, and Ms Dumont's contributions to Mr Canfield's children, I am not persuaded that there should be any adjustment to either of them by reason of the s.90SF factors.
Conclusion
Consequently the tangible assets of the parties will be divided as to 72.5% to Mr Canfield and 27.5% to Ms Dumont.
The difficulty for the Court in concluding an appropriate cash adjustment between these parties remains because of the lack of precise valuation evidence in respect of the Suburb B property. I repeat that the land ‘value' is simply inexpert estimates from each of the parties themselves at $100,000 and $160,000. Each of these estimates obviously brings with them the parties’ own bias. Frankly, I am at a loss to understand why the Court could not have been properly provided with a simple and up-to-date vacant land valuation?
The capital value of the yet to be constructed residence at a cost of $400,000 is a more complex unknown. Obviously a valuation cannot be obtained until the property has been constructed. At this stage, over or under capitalisations remain real prospects.
Nevertheless, a Court can only make determinations with any accuracy commensurate with the evidence given and adduced. As such, I can only take the 'mean' of the parties’ estimates of land value at $130,000. I can only assume ‘value' in respect of the cost of completing the replacement structure on the Suburb B property.
These matters would not to be of such import should it be inevitable that the Suburb B property be sold once the rebuild is complete. Indeed, Ms Dumont prefers an order that the property be sold in its completed state. Mr Canfield, however, and understandably so, wishes to retain the Suburb B property and in this sense proposes a cash adjustment on Ms Dumont.
Consequently, and on the assumption that the rebuild is ready to commence, I intend to make orders which might allow Mr Canfield the option to retain the property but only if he is willing and able to make a proper and determined cash adjustment on Ms Dumont. I propose to make orders in the following terms:
(a)That the parties jointly and prudently complete the building of the residence on the property at Street A, Suburb B, pursuant to the directions of the insurance company;
(b)That upon the completion of the rebuild on the Suburb B property, the parties jointly at their equal shared expense prudently obtain a valuation on the said property;
(c)That there be a distribution of the net tangible assets of the parties as to 72.5% to Mr Canfield and 27.5% to Ms Dumont in accordance with my reasons herein; and
(d)That should Mr Canfield be unwilling or unable to make the required cash adjustment on Ms Dumont then the property at Street A, Suburb B, be sold in accordance with the usual type orders.
I will, of course, give the parties and each of them liberty to apply in respect of the operation and compliance with these orders.
I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 28 June 2019
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Equity & Trusts
Legal Concepts
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Remedies
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Costs
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Injunction
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Res Judicata
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Fiduciary Duty
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Constructive Trust
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