Dutta and Dutta
[2010] FMCAfam 1121
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUTTA & DUTTA | [2010] FMCAfam 1121 |
| FAMILY LAW – Property – undefended property proceedings – prospective inheritance treated as financial resource – whether guessed estimates of items can be included in the pool – impact on contributions and s.75(2) factors where one party chooses not to have anything to do with the children and where delays in payment of child support. |
| Family Law Act 1975 (Cth), ss.79, 79(4), 75(2) Child Support (Assessment) Act 1989 (Cth), s.117 |
| Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 G & G (1984) 9 Fam LR 969; (1984) FLC 91-582 Norbis & Norbis (1986) FLC 91-712; (1986) 161 CLR 513; [1986] HCA 17 65 ALR 12; (1986) 60 ALJR 335; (1986) 10 Fam LR 819 Brandt & Brandt (1997) FLC 92-758; (1997) 22 Fam LR Farmer & Bramley (2000) FLC 93-060; [2000] FamCA 1615; (2000) 27 Fam LR 316 Figgins & Figgins (2002) FLC 93-122; [2002] FamCA 688; 29 Fam LR 544; 173 FLR 273) Sare & Sare [2004] FamCA 532 Scott & Scott [2006] FamCA 1379 In the Marriage of LA and EA Pierce (1999) FLC 92-844 Cabbell & Cabbell [2009] FamCAFC 205 L & L [2004] FamCA 1010 Carthew v Carthew [2000] FamCA 1332 |
| Applicant: | MS DUTTA |
| Respondent: | MR DUTTA |
| File Number: | DNC 399 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 24 September 2010 |
| Date of Last Submission: | 24 September 2010 |
| Delivered at: | Darwin |
| Delivered on: | 27 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Black |
| Solicitors for the Applicant: | Cecil Black Family Lawyers |
| Respondent: | No Appearance |
ORDERS
That as of the date hereof the Wife is to have full use of the rental currently generated by the tenanting of Property B.
That within 60 days from the date hereof the Husband shall do all such acts and things necessary and sign all such documents as may be required to transfer to the Wife at the Wife’s expense all of his right title and interest in the property situated at Property B Northern Territory (Property B).
That contemporaneously with the transfer referred to in Order (1) the Husband and the Wife shall do all such acts and things necessary and sign all such documents as may be required to release the Husband from all further liability to the Commonwealth Bank in respect to the line of credit held as security over Property B.
That contemporaneously with the transfer referred to in Order (1) and the removal of the Husband from the line of credit in Order (2) the Wife shall pay to the Husband the sum of $68,060.25.
That in the event that the Wife does not comply with Order (1) or (3) in the time frame specified, Property B shall be sold upon the following terms:-
(a)the Wife shall be entitled to list Property B for sale with a real estate agent as nominated by the President or equivalent body of the Real Estate Institute of Northern Territory;
(b)the property will be listed at the price nominated by the real estate agent;
(c)the Wife shall instruct such solicitor as is recommended by the President or equivalent body of the Law Society of Northern Territory;
(d)in the event that the property is not sold within 3 months the Wife will arrange through the real estate agent for the public auction of Property B with a reserve price as recommended by the real estate agent;
(e)That pending sale the Wife shall:-
i)keep the property maintained clean and tidy;
ii)provide a key to the agent;
iii)allow inspection at all reasonable times; and
iv)ensure all outgoings including rates, and utility bills are paid up to date and as due.
(f)that upon the sale, the Wife vacate the property, ensuring all items are removed, that the property is clean and presentable and all sets of keys are provided to the agent; and
(g)upon completion of sale the proceeds of sale shall be applied as follows:-
i)firstly to pay the line of credit to Commonwealth Bank;
ii)secondly to pay all outstanding municipal rates and other levies due in respect to the property;
iii)thirdly to pay all costs associated with the sale including agency fees, advertising fees, and legal fees;
iv)fourthly to pay all capital gains tax;
v)fifthly to pay to the Husband such amount as required to ensure that the Husband is in receipt of 35% of the net asset pool; and
vi)sixthly to pay the balance to the Wife.
That within 60 days from the date hereof the Wife shall do all such acts and things necessary and sign all such documents as may be required to transfer to the Husband at the Husband’s expense all of her right title and interest in the property situated at Property W Tasmania (Property W).
That contemporaneously with and in exchange for the transfer by the Wife of her right title and interest in the property situated at Property W as referred to in Order (5), the Husband at his expense shall do all such acts and things necessary and sign all such documents as may be required to discharge the joint mortgage debt to the Commonwealth Bank over the said property and thereafter indemnify and keep indemnified the Wife against all liability which might otherwise attach to the Wife arising out of or in any way connected with the mortgage debt.
That in the event that the Husband does not comply with Order (5) in the time frame specified, Property W shall be sold upon the following terms:-
(a)the Wife shall be entitled to list Property W for sale with a real estate agent as nominated by the President or equivalent body of the Real Estate Institute of Tasmania;
(b)the property will be listed at the price nominated by the real estate agent;
(c)the Wife shall instruct such solicitor as is recommended by the President or equivalent body of the Law Society of Tasmania;
(d)in the event that the property is not sold within 3 months the Wife will arrange through the real estate agent for the public auction of Property W with a reserve price as recommended by the real estate agent;
(e)that pending sale the Husband shall:-
i)keep the property maintained clean and tidy;
ii)provide a key to the agent;
iii)allow inspection at all reasonable times; and
iv)ensure all outgoings including rates, and utility bills are paid up to date and as due.
(f)that upon the sale, the Husband vacate the property, ensuring all items are removed, that the property is clean and presentable and all sets of keys are provided to the agent; and
(g)upon completion of sale the proceeds of sale shall be applied as follows:-
i)firstly to pay the mortgage to Commonwealth Bank;
ii)secondly to pay all outstanding municipal rates and other levies due in respect to the property;
iii)thirdly to pay all costs associated with the sale including agency fees, advertising fees, and legal fees; and
iv)fourthly to pay the balance to the Husband.
That within 60 days from the date hereof the Wife shall do all such acts and things necessary and sign all such documents as may be required to transfer to the Husband at the Husband’s expense all of her right title and interest in the :-
(a)shares;
(b)toyota Prado; and
(c)toyota Camry.
That the Wife retain for her sole use and enjoyment the benefit of any superannuation policies in the Wife’s name;
That the Husband retain for his sole use and enjoyment the benefit of any superannuation policies in the Husband’s name;
That otherwise each party retain all other property in their possession, and be responsible for any liabilities associated with such property; and
Each party shall do all such things and sign all such papers and documents that are necessary to give effect to the orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Court pursuant to s.106 (A) Family Law Act 1975 (Cth) is authorised to sign any such document on behalf of the defaulting party.
IT IS NOTED that publication of this judgment under the pseudonym Dutta & Dutta is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 399 of 2009
| MS DUTTA |
Applicant
And
| MR DUTTA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a matter in which there are competing applications concerning the division of property between the Applicant Wife and the Respondent Husband.
Due to the Husbands repeated non attendance, the matter proceeded by way of an undefended hearing.
Background
The Wife is currently aged 45 having been born [in] 1965 in Australia and is employed part time as a [omitted].
The Husband is currently aged 42 having been born [in] 1968 and according to the Financial Statement filed 13 November 2009 as an [occupation omitted] in Tasmania.
The Wife was unaware as to whether the Husband was still in such employment but it appears from the an email sent by the Husband to the Wife’s legal representative Mr Black on 17 September 2010, that he remains in such employment where it reads in part:-
I was on a 12 hour shift for the past five days some 300km away.
The parties commenced cohabitation in 1991, were married [in] 1991 in Darwin and separated on 24 May 2009 in Tasmania, only having moved from Darwin to Tasmania in or around January 2009.
After separation the two children of the marriage, [X] born [in] 1995, aged 15 and [Y] born [in] 2000, aged nearly 10, returned with the mother to Darwin.
The Husband, through his own choosing has not had any time with the children since the date of separation and there has been minimal contact.
After several unsuccessful attempts to resolve property issues, proceedings were commenced by the Wife on 17 September 2009.
Brief history of the relationship
At the commencement of the relationship in 1991 the Wife deposes that the Wife had an interest in her father’s estate, a motor vehicle, superannuation and $18,000 in savings.
The Wife was employed as a [omitted].
The Wife deposes that the Husband had at the commencement of the relationship in 1991 a motor vehicle and superannuation and was employed as an [omitted].
As this is not disputed by the Husband in his response affidavit material then I accept that this was the parties’ positions at the date of commencement.
Initially the parties lived rent free with the Wife’s mother for six months.
In or around late 1991, the parties purchased a residential property at Property B for $115,565.
The purchase price for Property B consisted of a 10% deposit from the monies brought into the marriage by the Wife and the first home owners grants with the remainder consisting of a loan from Territory Mutual, which was later taken over by the Territory Insurance Office.
The parties moved into Property B in early 1992.
The Wife continued to work with [omitted] until just prior to the birth of [Y] in 2000.
After leaving her employment the Wife received a payout of $10,500 which was used for living expenses.
In 1996/1997 the Husband ceased employment with [omitted] and worked locally in numerous positions until late 1999.
In 2000, the Husband commenced working with several mining companies on a fly in fly out basis until May 2001 when the Wife deposes that the Husband could not continue to work due to an emotional breakdown.
The Husband returned to full time employment within the mining industry in early 2002 and continued until a further breakdown in April 2005.
In or around mid 2004 the parties purchased an investment property at Property W Tasmania for $122,000 borrowing the entirety of the purchase price.
In October 2005 the Husband returned to work, initially for [omitted] and then after 11 months returned to the mining industry, where the Husband continued to work until September 2008.
In April 2006 the Wife returned to fulltime work working with [omitted], and continued this employment until late 2008.
Between September 2008 and December 2008 the Husband obtained casual employment in Darwin.
In late 2008/early 2009 the parties moved to Tasmania to take up residence at Property W.
Property B was tenanted.
The Wife did not obtain employment in Tasmania.
Initially the Husband did not obtain employment in Tasmania except for a couple of weeks work through an agency just prior to Easter 2009.
Upon separation in May 2009 the Husband remained living at
Property W and the Wife and the children returned to Darwin.
The Wife upon returning to Darwin obtained employment firstly as a [omitted] and then in August 2009 as a [omitted], the position which is held by the wife as at the date of the hearing.
As Property B remained tenanted, the Wife and the children moved in with the Wife’s mother at her residence at Property N.
The Husband commenced employment as an [omitted]in August 2009.
Proceedings were commenced by the Wife on 17 September 2009.
Orders being sought at the date of the hearing
The Wife sets out the comprehensive final orders being sought in her Amended Initiating Application filed 11 June 2010.
In short, the Wife would like to retain Property B together with its debt and all other property in her possession including her superannuation as well as the return of items as per an attached list.
This would then leave the Husband with Property W, and its associated debt together with all the other property in his possession including his superannuation.
Further the Wife is seeking that items be returned to the children as per an attached list, and that there be a departure order so as the Husband pays no further child support for the children.
By way of final order being sought by the Husband, I can only be guided by his response filed 13 November 2009 whereby the Husband is seeking that Property B be sold, with an equal distribution of sale proceeds to the parties, that the Husband retain Property W together with the associated debt, that the Wife receive the shares, that the Husband retain the credit card debt, and otherwise the parties retain all other property in their possession.
Evidence
The Wife relied on the following documents:
i)Amended Initiating Application filed 11 June 2010;
ii)Financial Statement filed 17 September 2009;
iii)Affidavit of the Wife filed 17 September 2009;
iv)Affidavit of the Wife filed 11 June 2010;
v)Affidavit of Mr B the jointly appointed valuer for Property W filed 22 June 2010;
vi)Affidavit of Mr G the jointly appointed valuer for Property B filed 22 June 2010;
vii)Outline of Case Document filed 22 June 2010;
viii)Affidavit of Wife filed by leave on 23 June 2010;
ix)Affidavit of the Wife’s’ brother Mr P filed 22 July 2010;
x)Affidavit of the Wife filed 13 September 2010;
xi)The affidavit of Cecil Black filed by leave on 20 September 2010; and
xii)Tendered documents.
The Wife is legally represented and comprehensive submissions were made by Mr Black her legal representative.
Witnesses were not called to give evidence.
As the Husband was not in attendance at the trial, reliance was placed on the limited material filed by the Husband:-
i)Response filed 13 November 2009;
ii)Financial Statement filed 13 November 2009; and
iii)Affidavit of the Husband filed 13 November 2009.
In considering the matter, I have had regard to all of the material relied upon by the Wife and all material filed by the Husband, the documents tendered by the Wife and to the submissions made on behalf of the Wife.
Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses.
In what follows, statements of fact constitute findings of fact.
Extent of husband’s involvement in Court proceedings
The Wife filed the Initiating Application and supporting documents on 17 September 2009 and was then and continues to be legally represented by Mr Black.
The documents were served on the Husband on 21 September 2009.
An affidavit of service was filed on 24 September 2009.
On 12 October 2009, Maleys Barristers and Solicitors filed a Notice of Address for Service. Ms Morgan had conduct of the matter.
At the first return date on the 27 October 2009, it was ordered by Federal Magistrate Terry that the Husband file and serve the Response and Affidavit by 27 November 2009, failing which the matter be listed for 1 December 2009.
If the material was filed then the matter was to proceed to a conciliation conference before a Registrar on 2 February 2010 and be mentioned before Federal Magistrate Terry on 9 February 2010.
On 13 November 2009, Maleys Barristers and Solicitors filed a Response and supporting documents on behalf of the Husband.
The conciliation conference proceeded on 2 February 2010, with
Mr Black appearing with the Wife and Ms Morgan appearing for the Husband. Settlement was not reached.
At the mention date on 9 February 2010 Federal Magistrate Terry listed the matter for hearing on 23 June 2010 and made directions for filing of material and the obtaining of joint valuations for Property W and Property B in the event that agreement as to values did not take place. The Husband at this stage was legally represented.
On 18 March 2010 Maleys Solicitors and Barristers filed a Notice of Intention to Withdraw as Lawyer and a Notice of Withdrawal as Lawyer. The address provided for the Husband was Property W.
On 21 May 2010 the matter was mentioned before Federal Magistrate Terry. The Husband appeared by telephone. Directions were made as to filing of an Application in a Case by the Wife and Response by the Husband and the matter was adjourned to 28 May 2010.
Subsequently the Wife filed her application and supporting material on 25 May 2010.
No response material was filed by the Husband.
On 28 May 2010 the matter was mentioned before Federal Magistrate Terry. The Husband appeared by telephone. The Husband’s request for a six month adjournment of the trial was refused.
Comprehensive orders were made by Federal Magistrate Terry including the filing of updated material, the obtaining of valuations, the payment of $1,000 by the Husband into the trust account of Mr Black and that costs be reserved to the trial. Orders issued and were sent to the Husband at the Property W address.
On the 23 June 2010, the designated date for the hearing, the Husband did not appear.
The matter was adjourned by Federal Magistrate Turner for hearing to 29 July 2010 with directions made as to filing of material by the Husband and a further direction that if the Husband failed to attend the hearing, then it would proceed by way of an undefended hearing.
Orders issued and were sent to the Husband at the Property W address.
Subsequently at the request of the Wife, the trial date was vacated and the matter adjourned to 3 August 2010.
Orders issued and were sent to the Husband at the Property W address.
At the mention date on 3 August 2010 the Husband failed to appear and the matter was adjourned at the request of the Wife to 10 August 2010.
Orders issued and were sent to the Husband at the Property W address.
At the mention date on 10 August 2010 the Husband failed to appear and the matter was adjourned at the request of the Wife to 24 August 2010.
Orders issued and were sent to the Husband at the Property W address.
At the mention date on 24 August 2010 the Husband failed to appear and the matter was set down for hearing on 20 September 2010 and direction was made for filing of any further material.
Orders issued and were sent to the Husband at the Property W address.
At the hearing date on 20 September 2010 the Husband failed to appear and Mr Black filed by leave a comprehensive affidavit as to the email traffic which had been exchanged between the firm Cecil Black and the Husband between 9 September 2010 and 18 September 2010, which illustrated the Husbands knowledge of the pending trial.
The matter proceeded by way of an undefended hearing.
The Law
The Full Court of the Family Court of Australia in the case of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at [39] sets out the four step process in determining a property application made under s.79 of the Family Law Act 1975 (Cth) (“the Act”) which are as follows:
i)Identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
ii)Identify and assess the contributions under s.79(4)(a),(b) & (c) (“the first limb – the contribution factors”) of the parties and express them as a percentage of the net value of the property (examined on either a global approach or an asset by asset approach, depending on the circumstances of the case);
iii)Identify and assess the other factors relevant under s.79(4)(d)(e),(f) & (g), (“the second limb – ongoing needs and effect of orders”) including, because of s.79(4)(e), the matters referred to in s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
iv)Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case (see Russell & Russell (1999) FLC 92-877; [1999] FamCA 1875; 25 Fam LR 629; 154 FLR 171).
Nygh J in G & G (1984) 9 Fam LR 969; (1984) FLC 91-582 (at
p 79,697 ) stated:
It cannot be required of the Family Court that it assess contributions with mathematical precision, with respect to each item.
(see also Norbis & Norbis (1986) FLC 91-712; (1986) 161 CLR 513; [1986] HCA 17; 65 ALR 12; (1986) 60 ALJR 335; (1986) 10 Fam LR 819, Brandt & Brandt (1997) FLC 92-758; (1997) 22 Fam LR; Farmer & Bramley (2000) FLC 93-060; [2000] FamCA 1615; (2000) 27 Fam LR 316 and Figgins & Figgins (2002) FLC 93-122; [2002] FamCA 688; 29 Fam LR 544; 173 FLR 273).
Section 79(4)
The following principles under s.79(4) should be taken into consideration:
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
e)the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 75(2)
The following s.75(2) factors need to be taken into account:
a)the age and state of health of each of the parties;
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain;
e)the responsibilities of either party to support any other person;
f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:
i)any law of the Commonwealth, of a State or Territory or of another country; or
ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
l)the need to protect a party who wishes to continue that party's role as a parent;
m)if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
n)the terms of any order made or proposed to be made under section 79 in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party;
o)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
p)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
q)the terms of any financial agreement that is binding on the parties.
Step One – Assets and liabilities
Agreed assets and liabilities as at the date of hearing
Having considered the filed material of the Wife together with submissions made on her behalf at the hearing, the filed material of the Husband, and the valuations of the jointly appointed valuers I find that the identity and value of the agreed assets and liabilities to be as follows: -
Assets
$
Property B, Northern Territory (joint)
$500,000
Property W Tasmania (joint)
$185,000
Toyota Prado (joint)
$15,000
Toyota Camry (joint)
$1,800
BHP Biliton and Woolworths Shares (joint)
$5,000
Household Contents (joint)
$10,000
Total non-superannuation assets:
$716,800
Liabilities
$
CBA line of credit on Property B (joint)
$44,257
Colonial mortgage Property W (joint)
$114,406
Total liabilities:
$158,663
Net non-superannuation assets
$558,137
Superannuation $ [A] (Wife) $70,449 [B] (Wife) $4,522 [C] (husband) $78,667 Total superannuation assets $153,638
Total asset pool available for distribution
$711,775
Parties did not include the monies in their bank accounts as at the date of separation in the asset pool and accordingly it has been excluded.
Further whilst there was mention of a credit card debt, as neither party provided details I have not included it in the asset pool.
Non agreed assets at the date of hearing
The parties on the material provided do not agree to the value of the following assets:-
a)caravan and trailer;
b)Murano glassware and porcelain and other household contents; and
c)tools.
The Wife submits that at the least the bottom value of these items should be accepted, if not the guessed values or alternatively an order that the items be sold.
Alternatively although not favoured by the Wife, it was submitted that these items be ignored and not included in the pool.
Caravan and trailer
The Wife deposed in affidavit material that the caravan is worth $2,750 having been purchased in 2007 for $5,650 and that the trailer is valued at $800.
The Wife deposed in her updated Financial Statement filed 11 June 2010 that the combined value of the caravan and trailer is $3,000.
This is also the amount deposed to by the Wife in her original Financial Statement filed 17 September 2009.
In the Outline of Case filed by the Wife on 22 June 2010, the value provided by the Wife for the caravan is $2,750 and $1,800 for the trailer making a combined total of $4,550.
All amounts provided were guesses only with neither party arranging for valuation and the Wife did not organise for any valuations.
The trailer was described by the Wife as very old, one that the Husband had found and did up and it was used for such purposes as transporting rubbish to the tip.
The Wife states that prior to leaving Darwin they were offered $2,000 for the trailer, but as details or supporting evidence was not provided, I cannot give any weight to this submission.
As to the caravan, it is 25 years old having been manufactured in 1985.
The Husband deposes in his Financial Statement filed 13 November 2009 that the combined value for the caravan and trailer are $1,500.
Both items are in the Husbands possession in Tasmania at Property W.
As an undefended hearing, it has been put to me by the Wife to consider the guesses as to the value of the caravan and trailer and to somehow include these values in the asset pool, although it was not put to me how that should or could be done.
Unfortunately it is a common occurrence in family law matters for parties to guess the value of chattels such as household items, tools and jewellery and then at the trial when the guessed estimates are in dispute to look to the judicial officer to resolve the issue by plucking a figure out of the air, when a simpler, albeit more costly solution is for valuations to be conducted.
The same dilemma was faced by Dawe J in Sare & Sare [2004] FamCA 532.
In that case parties were in dispute as to the value of several items including a piano.
Dawe J at [67] states:-
…it is not appropriate to accept the guesses of either of the parties as to the value of these various items.
In that case some items were retained by the Husband, some by the Wife.
In this case the caravan and trailer are in the possession of the Husband.
Dawe J at [68] states
…I take into account that these items are in the possession of each of the parties but cannot include specific figures for them in the pool of assets.
Sare & Sare (supra) was the subject of an appeal and the issue of the treatment of the exclusion of assets from the pool and in particular the piano was a ground of appeal.
The Full Court decision reported as Scott & Scott [2006] FamCA 1379 at [40] found that her Honour had not erred in any appellate sense but it was within the discretion of her Honour to deal with the household items as she did.
Whilst in that case there was offsetting of assets as some were retained by the Husband and some by the Wife, whereas the Husband retains the caravan and trailer at Property W, I find that in the absence of any valuation I cannot include the guess estimates of value in the asset pool.
The Wife did not indicate that she wanted either the caravan or trailer for her own use.
As the parties are physically at either end of the country, the Wife being in Darwin Northern Territory and the Husband in Property W Tasmania, and with no communication between them, to order the return of the items to the Wife or the sale of the items would be a costly and fruitless exercise that would not be of any benefit to either party.
I therefore exclude these items from the asset pool.
Murano glassware and porcelain and other household contents
The items were not given separate values by the Wife in her Financial Statements with the sum of $15,000 given as the total estimate for household contents.
The Wife then deposed that the $15,000 consists of $5,000 attributable to the Murano glassware and porcelain and $10,000 to household contents at Property W.
A valuation has not been conducted and all items are in the Husband’s possession in Tasmania at Property W.
The Husband deposes in his financial statement to the household items having a value of $5,000 which appears to relate to his share only as in his affidavit the Husband refers to household contents as $10,000.
No mention was made by the Husband in his material as to the Murano glassware and porcelain.
The household contents of $10,000 have been included in the agreed pool of assets.
In light of my findings in respect to the caravan and trailer, I find that I cannot include the guess value of the Wife of $5,000 for the Murano glassware and porcelain in the asset pool.
An observation though. The estimated and agreed value of $10,000 for household contents is in my experience on the generous side.
As this is in possession of the Husband, it has been allocated to the Husband in the orders as part of his property settlement. This provides to a small extent a small consolation in favour of the Wife, as if all items had been valued, the result may not have been so different.
Tools
The Wife did not depose to tools or their value in either Financial Statement but in her affidavit material deposed that the tools have a value of at least $3,000.
A valuation has not been conducted and all items are in the Husband’s possession in Tasmania at Property W.
The value of the tools was not addressed by the Husband in any of his filed material.
In light of my findings in respect to the caravan and trailer, the Murano glassware and porcelain I find that I cannot include the guess value of the Wife of $3,000 for the tools in the asset pool.
Assets and liabilities for distribution at the date of hearing
I therefore make no alterations to the agreed list of assets and liabilities and find that the amount of net assets including non superannuation and superannuation assets available for distribution as at the date of distribution is $711,755.
Step Two – Contribution
Contributions
I now turn to the second of the steps in the exercise under s.79, namely an assessment of the parties’ contributions within the context of section 79(4) (a) to (c).
Initial contributions
The Wife deposes that there was an initial contribution by the Wife at the commencement of the relationship of $18,000 in savings together with a motor vehicle worth $3,000.
The Wife deposes that the Husband owned a car only worth $5,500.
No evidence was produced to support the initial contributions.
The Husband does not in his affidavit material address the issue of initial contributions.
When the Property B property was purchased in 1991 for $115,565, the 10% deposit was paid from the savings, the parties had the use of a first home owners grant and the remaining money was borrowed from Territory Mutual which was later taken over by Territory Insurance Office.
It is submitted by the Wife that there had been no subsequent contributions by the Husband that would erode the value of the initial contribution of the Wife and therefore a percentage adjustment should be made in favour of the Wife, although no submissions were made as to the extent of the percentage adjustment or why the contributions of the Husband were not of an extent to offset the initial contribution.
General reference was made in the submissions to the Full Court decision of In the Marriage of LA and EA Pierce (1999) FLC 92-844 as being in support of such an adjustment.
The recent Full Court decision in Cabbell & Cabbell [2009] FamCAFC 205 at [43] and [44] sets out a comprehensive summary of the treatment of initial contributions in property matters:-
[43] The principles enunciated in decisions prior to 1999 are conveniently reviewed in Pierce & Pierce (1999) FLC 92-844 at paragraphs 25 - 27 of that judgment. In those paragraphs the Full Court (Ellis, Baker and O’Ryan JJ) referred to the cases which discussed the concept of an initial contribution being “eroded” or offset to a greater or lesser extent by later contributions during the marriage, and the qualification to or expansion of this concept by Fogarty J in Money & Money (1994) FLC 92-485 at 81,054, namely that later contributions over a long marriage did not need to be greater, but rather those contributions (sometimes referred to as the myriad of other contributions) “offset” the significance which might be placed on greater initial contributions. Their Honours then, at paragraph 28, explained that in assessing contribution (including initial contributions) rather than considering if an initial contribution had been “eroded”, what was relevant was the “weight to be attached, in all the circumstances, to the initial contribution”. Their Honours then explained the initial contribution should be weighed with all other contributions, and in paragraph 30 stressed the need for a trial Judge “not only to identify the relevant contributions, but also to assess them”. That latter statement of principle is consistent with the discussion in Mallet v Mallet (1984) 156 CLR 605 where Mason J said in discussing s 79:
The section contemplates that an order will not be made unless the court is satisfied that it is just and equitable to make the order (s. 79(2)), after taking into account the factors mentioned in (a) to (e) of s. 79(4). The requirement that the court “shall take into account” these factors imposes a duty on the court to evaluate them. Thus, the court must in a given case evaluate the respective contributions of husband and wife under pars. (a) and (b) of sub-s. (4), difficult though that may be in some cases.
[44] In Williams & Williams [2007] FamCA 313 the Full Court (Kay, Coleman and Stevenson JJ), after discussing conflicting cases determined in the New South Wales Court of Appeal under the Property (Relationships) Act 1984 (NSW) which involved discussion of how initial contributions should be assessed in a property adjustment case under that legislation, said at paragraph 26:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
The Full Court concluded at [45] that ultimately it is in the discretion of the trial Judge taking into account the individual facts of a particular case in determining how to treat an initial contribution.
This has been a long marriage of some 18 years.
During the course of the marriage both parties were from time to time in paid employment.
There were periods of non employment for the parties, the Wife through pregnancy, and the Husband through two bouts of illness.
For the majority of the Husbands employment he was in the mining industry which required the Husband to regularly fly in and out of Darwin but resulted in the parties enjoying the lucrative income.
As deposed to by the Wife there were months where the Husband earned $10,000 net and as high as $14,000 net.
I have no doubt that both parties worked hard during the marriage to acquire the assets that now make up the pool.
Whilst the Wife stayed at home with the children, the Husband worked for long periods, often in what one suspects would be less than desirable conditions, enabling the parties to acquire and maintain the property pool that exists today.
Therefore from the limited material available, the “myriad of contributions”, as described by the Full Court has, I find, offset the significance to be placed on the initial contribution of the Wife.
On that basis, I give no weight to the initial contribution made some
18 years ago by the Wife and therefore no adjustment is made in favour of the Wife
Financial and non-financial contributions during cohabitation
It is submitted by the Wife that due to the Husband’s frequent absences from the home, his ill treatment of the children when home, and the periods of his illness, that the Wife’s non financial contributions as a homemaker and primary carer outweighed that of her Husband in his financial contributions and therefore greater weight must be given to the Wife, resulting in an adjustment in her favour.
Every marriage is different. There is no set formula as to how a marriage should work, such as there is no guarantee that a marriage will be free of challenges.
For a considerable period of time in this marriage the arrangement was that the Wife stay home looking after the children and the Husband would work in the mining industry, returning to the family unit when his employment permitted.
Whilst the Wife would have had the unenviable task of raising the children almost single handed, whilst maintaining employment and running the household, the Husband would have worked hard, putting in long hours in sometimes inhospitable surroundings.
There is no suggestion by the Wife, that the income was used for any other purpose than to support the family.
I therefore find that the non financial contributions of the Wife and the financial contributions of the Husband in that regard are equal and therefore a percentage adjustment is not warranted in the Wife’s favour
As to the ill treatment of the children by the Husband as alleged by the Wife, that whilst it may be sad reflection on the family dynamics, I find that this does not on its own impact on the issue of contributions and therefore no percentage adjustment is to be made.
Lastly I must consider whether the periods of illness in respect to the emotional breakdowns by the Husband which according to the Wife were for 9 months in May 2001, and 5 months in April 2005 impacts on contributions.
People get sick. Most marriage vows include “in sickness and in health”. Sickness includes both physical and mental poor health. During both periods the Husband received medical assistance.
Perhaps in a shorter marriage or if it was prolonged illness the issue of contributions may have to be considered.
But in a long marriage where there are only two periods of time where the Husband was not earning an income, I cannot see how this impacts on contributions.
Further the Wife deposes that after a three month period the Husband received payments under a sickness insurance policy. No evidence was provided as to whether the Husband had access to any holiday leave or sick leave.
Further no evidence was provided as to what additional, if any, contributions were required by the Wife during these bouts of illness.
I therefore find that the Wife’s contributions during the period of the Husbands illnesses do not warrant any percentage adjustment in favour of the Wife.
I therefore find that the Wife’s contributions whether financial or non financial do not exceed that of the Husband during the period of cohabitation and therefore no percentage adjustment is to occur.
Post Separation Contributions
The parties separated in May 2009, when the Wife left Tasmania and returned to Darwin with the children.
The Wife’s position is that a percentage adjustment is to be made in her favour as there have been significant post separation contributions by the Wife since separation.
Firstly it is submitted that the Wife has had the unassisted and on going care of the children [X] now aged 15 and [Y] now aged nearly 10.
Since separation any form of contact between the children and the Husband has been limited.
The Wife deposes that phone calls have been attempted by the children unsuccessfully and that the only written correspondence was a Christmas card and birthday cards.
The children have not seen the Husband since May 2009.
The Wife deposes that:
When [Mr Dutta] and I separated, he told the children that he wants nothing to do with them until they are 18 and when that occurs, he will sit down with them and have a beer and tell them what a stupid mother I have been.
As a consequence it is submitted by the Wife that the children have had a hard time, having as the Wife states:
a profound effect upon the children and my role as a homemaker and parent has been made very difficult.
The effect on the older child [X] is so profound that unfortunately [X] has put on a lot of weight and is suffering depression. [X] is now under the care of a dietician and a psychiatrist.
Secondly the Wife has not had financial support for the children as child support had not been paid from the date of separation to just before the trial.
As stated by the Wife in her material :-
Being able to support the children on a limited income without any child support from [Mr Dutta] has been extremely difficult and this has also impacted upon the children because I seem to be forever saying that we can’t afford to purchase something or do something.
Thirdly as the former matrimonial home at Property B was tenanted when the parties moved to Tasmania in or around January 2009, the Wife upon returning to Darwin had to move in with her mother at Property N.
An attempt by the Wife to move into Property B in February 2010 was thwarted by the Husband as he refused, and the tenancy was extended to February 2011.
Property B remains tenanted and it would appear from the material that the rental is being shared by the parties
The Wife pays all insurance on Property B as well as payments for the line of credit over Property B.
Fourthly the Wife deposes that from the date of separation in May 2009 to August 2010 the Wife paid the mortgage repayment of $350 per fortnight for Property W.
The Husband, unbeknown to the Wife has also paid the mortgage repayment for Property W.
Fifthly the Wife submits that the sum of $856 had to be paid by her to remove the overdraft before the joint account could be closed as the Husband had removed all monies and placed them into his own account, resulting in the bank meeting periodic payments when no funds were available. As monies from the joint account were not available the Wife had to rely on her brother to pay the expenses for relocating to Darwin.
Lastly the Wife and the children left with a minimal amount of their belongings resulting in most personal effects being inaccessible in Tasmania.
It was submitted by the Wife that taking into account the initial contributions, the contributions during the marriage and the post separation contributions that an adjustment be made in favour of the Wife of 10%.
I find that as the only basis for an adjustment is for post separation contributions that a 5% adjustment is to be made in favour of the Wife.
Percentage adjustment based on Contributions
I find that based on contributions only that there is an adjustment to the Wife of 5% and therefore based on contributions only the Wife is entitled to 55% and the Husband is entitled to 45%.
Step Three – Other relevant factors
Section 79(4) (d) to (g)
I now turn to the third step in the process of apportioning the assets available for distribution between the parties.
Section 79(4) (d) - The effect of any proposed order upon the earning capacity of either party to the marriage;
The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings.
Section 79(4) (e) - The matters referred to in sub-section 75(2) so far as they are relevant;
Section 75 (2) factors
a) The age and state of health of each of the parties;
There is nothing in the material to suggest that either the Wife or the Husband is in other than good health. Whilst some concerns has been expressed as to the Husbands mental health, the husband is working and earning an income.
Accordingly this is not a factor I need take into account.
(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The Husband is earning approximately $66,000 per annum gross as an [omitted].
The Wife deposes that the husband has extensive qualifications due to his substantial experience through his years of employment including as well as being an [omitted].
The Wife has [occupation omitted] and is earning approximately $19,000 per annum gross.
The Wife submits that due to the problems with the children that she may not be able to continue to work, although at present the Wife is working school hours only albeit year round.
There is insufficient evidence before me to make an adjustment on the basis that the Wife may in the future not have the ability to work due to the children wanting her to stay home.
The Husbands view is that the Wife has the capacity to work fulltime. As the mother is the sole supporter on every level for the children and as the children’s needs are great, I reject this proposition.
Further even if the Wife was working full time the Wife would not have the same ability to earn a similar income as that being earned by the Husband.
I accept however that there is a discrepancy in income and this will be reflected in the overall adjustment made at the conclusion of the third step, once consideration has been given to all other relevant factors.
The next issue that I must give close consideration to whether there is a financial resource available to the Wife in respect to the estate of the father.
The Wife claims that as the Wife cannot claim on the estate, and there are too many unknown factors as to whether the Wife will receive the estate then realistically it is not a financial resource available to the Wife and therefore a percentage adjustment in favour of the Husband cannot be considered.
The Husband in his material deposes:-
The properties, investments and so on that [the Wife] and her brother have access to under the estate of their late father are at the very least financial resources which must be taken into account.
In order to consider the existence of the estate in respect to future needs it is necessary to provide a very brief history.
In 1989 the Wife’s father died unexpectedly leaving the Wife’s mother, and two children, that being the Wife then aged 24 and her brother
Mr P then aged 23. At this time the Wife was dating the Husband.
At the time of his death the father owned Property N, the property presently occupied by the Wife’s mother (where the Wife and the children are currently living) and three investment properties.
The Wife deposes that the assets at the time of the father’s death totalled $656,466.
Pursuant to the fathers Will dated 14 April 1989 the Wife and her brother are jointly appointed as the Executors and Trustees of the Will.
Probate was granted in May 1990.
The Will provides for the Wife’s mother to have a life tenancy of the property at Property N, with Property N not able to be sold during the lifetime of the Mother unless prior written consent of the mother is obtained.
As to the income generated from the residue property the Trustees are directed to pay an income to the mother, sufficient for her reasonable costs of her maintenance and health care as well as pay for the maintenance, upkeep and outgoings of Property N. Further in the event of any deficiency the Trustees are directed to resort to the capital of the residuary estate.
Subject to the mother receiving this income the residuary estate then is held on trust for the Wife and her brother in equal shares as are living at the time of the mother’s death. If either the Wife or father die prior to the mother dying, then their respective share will pass to their children.
The Wife deposes that on the advice of the lawyer who acted in the estate, a bank account in the names of the Trustees was then established which received the entire rental from the investment properties and out of this account the mother received and continues to receive an income and Property N is maintained.
The Wife further deposes that sufficient funds have been generated from the account resulting in the purchase of a further investment property for the estate.
All five properties, namely Property N and the four investment properties are in the name of the Wife and her brother, but not as trustees. An explanation could not be provided as to why the properties are not in the names of the Wife and her brother as trustees.
Appraisals only have been provided of the properties.
The Property N property over which there is a life tenancy currently occupied by the Wife’s mother is appraised at between $800,000 - $830,000.
The other four investment properties appraisal total is between $2,640,000 – $2,810,000.
The only debt of the estate is in respect to the last acquired investment property is in the sum of $162,770.
There is currently the sum of $70,686 in the Trustee’s bank account.
The Wife deposes to not having received any payment from the estate and states:-
Mr P and I were advised by the lawyers of the estate of my late father …that….we had no claim whatsoever in respect of any money generated by the estate or any property of the estate until our mother died….
The Wife further states:-
I believe then and I still believe now that the estate is for a mother to do with however she pleases……There have been a number of occasions when I would have liked to have access monies from the estate but we were unable to do so.
This belief is also held by the Wife’s brother.
It was submitted by the Wife that whilst a resource, it is one that may not be available for a number of years or at all.
As stated by Mr. Black:-
She’s [the mother] is 79-77-76…she’s in reasonable health…It’s a resource which might come.. in 10 years, 15 years, in 5 years, or not at all. If my client [the Wife] dies before my client’s mother, it goes to the children.
The Wife however in her affidavit material paints a very different picture as to her mother’s health.
The Wife states:-
It is apparent to me, that my mother is unable to adequately care for herself as it will be necessary for her to go into a nursing home or to be cared for by either my brother or myself…the way in which my mother’s house is configured .. she must climb stairs. Her capacity to do so is limited even now, and I believe that in the not too distant future, she would not be bale to climb stairs at all.
No medical evidence was offered as to the mothers health nor was there an affidavit from the mother as to whether consent for the sale of Property N would be forthcoming if she was to move in with the Wife.
Prospective inheritances and the impact on a property settlement as a financial resource is a very difficult issue.
The complexity of this issue was discussed by the Full Court in L & L [2004] FamCA 1010 at [45] :-
The issue with the future inheritance is a vexed one. In White and Tulloch v White (1995) FLC 92-640; 19 Fam LR 696 the Full Court dealt with the issue of a subpoena against the mother of a party to proceedings that sought to require the mother to produce all wills in which the wife was named as a beneficiary. The Full Court said the ultimate criterion is whether the evidence is or may be relevant to the just and equitable process under s 79. An expectancy of inheritance will not be relevant in many s 79 proceedings. Ultimately relevance must depend upon the nature of the claims being put forward and the facts of each particular case.
“The issue is then approached by considering it in a broad, general way, by taking into account the age of the relative or other relevant testator, state of health, some general assessment of his or her financial position and some general assessment of the suggested inheritance expectancy. Detailed evidence of these matters is rarely allowed. Although that approach has a deal of imperfection about it and is a process where the weight, if any, to be attached to it may be difficult to identify, it is, we think, a process which is much to be preferred to that which is potentially anticipated in this case.
The central point of proceedings under s 79 remains the division of the property of the parties to the marriage and thus the essential concentration should be upon the financial circumstances of those parties. This is emphasised by the circumstance that the thrust of almost all of the matters in ss 79 and 75(2) is to direct the court to consider various aspects relating to the parties themselves (or their children). As a matter of principle and day to day management of trials, it would not ordinarily be appropriate to perform that exercise largely by detailed reference to the property of a third party or to require a third party to make a detailed disclosure of his or her testamentary intentions and financial circumstances. It would be highly undesirable that in a property proceeding between husband and wife significant amounts of time should be devoted to a detailed examination of such matters.
…
It is ultimately a question of fact and degree. During the course of argument a number of obvious examples at each end of the spectrum were referred to. In a case where the testator had already made a will favourable to the party but no longer had testamentary capacity and there was evidence of his or her likely impending death in circumstances where there may be a significant estate, and where there was a connection to s 75(2) factors, it would be shutting one’s eyes to realities to treat that as irrelevant. On the other hand, the bald assertion that one of the parties has an elderly relative who has property and is or is likely to benefit that party is so speculative that it would be inappropriate to contemplate it as relevant in a s 79 determination, it being too remote to affect the justice and equity of the case in any worthwhile way.”
Further the Full Court at [46] states:-
Subsequently in De Angelis v De Angelis (2003) FLC 93-133; 30 Fam LR 304 the Full Court applied White v Tulloch v White (supra) saying at FLC 78,246; Fam LR 325:
“95. The discussion by the Full Court in White and Tulloch v White (1995) 127 FLR 105; 19 Fam LR 696; (1995) FLC 92–640 of this question of the treatment of anticipated inheritances in property settlement proceedings indicates that there is no absolute rule and that each case will depend on its own facts. However, we think it important to remember that the court is required in exercising the jurisdiction under s 79 of the Family Law Act 1975 to accord justice and equity to both parties. The question therefore has to be asked whether, in the present case, it would be just and equitable to the husband for the court to have ignored the probability that, in what could well be very short period of time (given the ages of her aunt and mother), the wife could well be the owner of two properties having a combined value of almost the same amount as the value of the parties’ property currently available for distribution, and particularly in circumstances where the husband had been found to have done substantial improvement and maintenance work on both properties?”
The facts in this case are stronger than that which would normally be before the Court in an argument as to prospective inheritance.
Firstly the beneficial entitlements are real.
The Wife is a Trustee and beneficiary in her father’s deceased estate where her share is worth well in excess of $1.5 million dollars, more than double the amount of the entire property pool.
Secondly the Wife has not on her evidence made any legal enquires to ascertain whether assets (of which there are more than sufficient to meet the needs of the mother) in the residuary estate can be accessed or utilised to assist her financially.
The properties are in her name as joint owner with the brother, not in their names as trustee.
Further the Will is unclear as to when the residuary estate can be distributed.
Whilst it is understandable that the Wife has a strong sense of loyalty to the ongoing care of her mother, this should not be at the disadvantage of the Husband, when the Mother may have legal rights to access assets now.
Thirdly the Wife has chosen not to pursue her entitlements as an Executor pursuant to Section 102 Administration and Probate Act(NT) :-
102. Executors, &c., may be allowed commission
(1) It shall be lawful for the Court to allow out of the assets of a deceased person to his or her executor, administrator or trustee for the time being, in passing his or her accounts, such commission or percentage, not exceeding 5% for his or her pains and trouble as is just and reasonable.
Lastly it is unclear from the evidence as to the state of her mother’s health.
Therefore, applying the principles in L & L (supra) to these facts, I find that in order to accord just and equity to both parties, the just and equitable decision is to make a percentage adjustment in the Husbands favour because of the financial resource available to the Wife in the form of her substantial interest in her fathers estate.
However as observed by the Full Court in L & L at [47]:-
…generally the issue of a future inheritance may be more relevant to the defence of claim for an adjustment under s 75(2) than in support of such a claim.
On that basis I will balance the adjustment to the Husband later in this judgment once all other factors are considered under section 75(2).
(c)Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years;
The Wife has since separation, and I accept, will continue to have the total emotional and physical care of the two children, [X] aged 15 and [Y] aged nearly 10 without any assistance and support of any kind from the Husband.
The enormity of the responsibility is not lost on the Wife when she deposes:-
My whole life now seems to be a world wind of taking the children to sporting activities and being involved with them. Not for one moment, do I begrudge having to give any time to my children, but I think that [Mr Dutta] has no understanding of how they have been affected by his attitude towards them and how this has impacted upon my capacity to parent the children. I sometimes feel exhausted but I know I must continue on. There is no respite.
I therefore find that an adjustment is required in favour of the wife in respect to the ongoing care and control of the two children of the marriage.
d) Commitments of each of the parties that are necessary to enable the parties to support:
i) himself or herself;
ii) a child or another person that the party has a duty to maintain.
This has been covered and I do not propose to address it any further.
e) The responsibilities of either party to support any other person;
Neither party has repartnered.
The Wife deposes that it is her intention to care for her mother in the future and anticipates that it may be necessary to build a granny flat for the mother to live in at Property B.
As the mother is financially independent due to the estate, and if a granny flat was to be built, this also has the potential to be funded by the estate, then I do not consider this to be a relevant factor.
f)The eligibility of either party for a pension, allowance or benefit under:
i)any law of the Commonwealth, of a State or Territory or of any other country; or
ii)any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside Australia;
iii) and the rate of any such pension, allowance or benefit being paid to either party.
The parties each have similar superannuation entitlements. There is no suggestion that the superannuation of either party be the subject of a splitting or flagging order.
The proposal by the wife that the super be treated as a separate pool is rejected, and superannuation has been included as part of the asset pool. A global approach has been adopted in this matter.
g) Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
I am satisfied that, as a result of the Orders to be made in these proceedings, each of the parties will be able to have a standard of living that is reasonable.
h) The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
This is not a case where either party makes an application in respect of spousal maintenance.
j) The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
This factor is not relevant in these proceedings.
k) The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
This factor is not relevant to these proceedings.
l) The need to protect a party who wishes to continue that party’s role as a parent;
This factor is not relevant to these proceedings.
m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
Neither party is cohabiting with another person nor is there evidence before the Court to indicate that it is likely in the foreseeable future that this situation will change.
na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The issue of child support was, up until the time of trial, at the forefront of these proceedings.
The Wife in her amended initiating application filed on 11 June 2010 introduced a proposed order for a departure order pursuant to s.117 Child Support (Assessment) Act.
As the application had not been filed on the Child Support Registrar the proceedings were adjourned on several occasions to allow this to be facilitated.
The reasoning behind the departure was that the Husband had not met his Child Support commitments since separation and the Wife was seeking that child support be capitalised and included in the property division.
The Husband in his limited material deposed to having received a child support assessment but as it was based on a higher income than what he is earning now, he was seeking a review.
At the undefended hearing, the Wife informed the Court that the majority of the child support arrears have now been paid, and although it could not be substantiated, it appears to have been recovered from the Husbands tax returns.
In light of this new development I find that any form of departure order is not required.
I find however that in the overall adjustment for s.75(2) factors the past and no doubt future difficulty faced by the Wife in respect of obtaining child support must be taken into account.
The lack of understanding of the Husband’s commitment to child support is captured in his affidavit where he states:-
I would really like to be able to pay child support funds into an account for my sons to be held in trust until they turn 18 but that [the Wife] be able to use these funds also for living expenses, education costs and visits by the boys to Tasmania in the future.
o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
As the only other circumstance, the issue of the prospective inheritance has been addressed there are no other factors that the justice of the case requires to be taken into account.
Percentage adjustment based on section 75(2)
In taking into account the disparity and restricted ability to earn income by the Wife, the ongoing complete care of the children by the Wife, and the possible irregularity of child support I make a percentage adjustment in favour of the Wife based on section 75(2) factors of 15%. Combined with the 5% adjustment made in favour of the Wife in respect to contributions, the division is 70% to the Wife and 30% to the Husband.
I must now however consider the adjustment in the Husbands favour as a consequence of my finding the Wife’s interest in her fathers estate is a relevant financial resource.
The single judge decision of Murray J in Carthew v Carthew [2000] FamCA 1332 has strikingly similar characteristics to this case.
In that matter, the parties both aged in their late forties had been married for nearly 20 years. There were two children of the marriage aged 20 and 16.
The property pool was modest consisting of the former matrimonial home and an investment property.
The Husband had prospective inheritances of $1.3 million dollars, almost worth double the asset pool available for distribution.
In Carthew v Carthew, Murray J awarded after considering the same cases as considered by Full Court in L & L, a total of 7.5% adjustment for section 75(2) factors which incorporated an adjustment for the poor health issues of the mother as well as the prospective inheritance.
I find that that an adjustment be made in favour of the husband of 5% in respect to the financial resource available to the Wife due to her prospective inheritance.
Accordingly at the conclusion of Step 3, I make findings that the Wife receive a property division of 65% and the Husband receive a property division of 35%.
Step Four - Effect of the orders and what is just and equitable.
Whilst the Wife was seeking an adjustment of 75%-80%, this has not been substantiated in the evidence.
Likewise the Husbands proposed orders fall far outside the range appropriate in this matter and do not take into account the contributions and future needs of the Wife.
I have no doubt it was a difficult marriage, which is not, unfortunately uncommon, and that the expectations of both parties were not met.
The reading of the material indicated that the parties had been growing apart for some time.
The dream of moving to Tasmania was not shared by the Wife or the children, all of whom considered Darwin to be their home.
Further the Wife was disappointed as to the lack of commitment of the Husband to the family, a complaint often heard in this location where a large number of family units have one parent often absent due to working commitments in the mining industry or with Defence.
It is a shame that the Husband has decided at this stage not to be involved in the children’s lives, and I appreciate that the Wife will face a large number of difficulties raising the children on her own.
This has been acknowledged in both the adjustments for contributions and s.75(2) factors.
But the Wife has an enormous financial resource available to her in the future, with very real possibilities of being able to access some of the money now to maintain and promote her present standard of living.
Further if the mother is living and being cared for by the Wife, this will provide further financial stability.
Lastly in reaching the orders I have given consideration to the machinery provision of the Orders to ensure that compliance can occur even in the absence of all communication between the parties.
It is for this reason that I have not ordered the return by the Husband of any personal items of the children or the Wife in his possession.
It was acknowledged by the Wife that these orders are unlikely to be carried out, and in reality to enforce such orders in Tasmania would be a time consuming and more than likely fruitless exercise.
I therefore find that the Orders as to property appearing at the commencement of these Reasons which equates to a 65% adjustment in favour of the Wife and a 35% adjustment in favour of the Husband is just and equitable in all the circumstances.
As a result of the division the wife is required to pay to the Husband a lump sum of money.
A submission was made that any monies to be paid to the Husband could be delayed until the children are of age.
I reject that submission. At worse the Wife will have a $120,000 mortgage over a property worth $500,000. This is not a large loan to service, even on a limited income.
Conclusion
The conduct of these proceedings, as an undefended property matter, did not make this an easy matter to determine
In reaching my decision I gave careful consideration to all the material before me as well as the detailed oral submissions by the Wife.
The failure of the Husband to be part of these proceedings cannot and did not in any way impact on the orders reached which I find to be just and equitable in all the circumstances.
I certify that the preceding two hundred and eighty-nine (289) paragraphs are a true copy of the reasons for judgment of Turner FM
Date: 27 October 2010
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