Ely & Ely
[2006] FMCAfam 512
•1 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EDSON & EDSON | [2006] FMCAfam 512 |
| FAMILY LAW – Property settlement – contribution. |
| Family Law Act 1975 (as amended) Federal Proceedings (Costs) Act 1981 |
| Applicant: | MR EDSON |
| Respondent: | MS EDSON |
| File number: | BRM 5014 of 2004 |
| Judgment of: | Mead FM |
| Hearing dates: | 8 March 2006 – Rimmer FM 1 September 2006 – Mead FM |
| Date of last submission: | 1 September 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 1 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fleetwood |
| Solicitors for the Applicant: | Suthers Lawyers |
| Counsel for the Respondent: | Mr George |
| Solicitors for the Respondent: | Finemore Walters & Story |
| Counsel for the Independent Children's Lawyer: | N/A |
ORDERS
That on or before 31 March 2007 the respondent wife pay to the trust account of the husband’s solicitors on account of the husband the sum of SIXTEEN THOUSAND FIVE HUNDRED AND TWENTY EIGHT DOLLARS ($16,528).
That pending the payment referred to in paragraph 1 hereof the wife be restrained and an injunction is hereby granted restraining her from encumbering, mortgaging, disposing of or otherwise dealing with the property at Proeprty B in the State of Queensland SAVE AND EXCEPT for the purpose of complying with paragraph 1 aforesaid.
That upon compliance by the wife with the terms of paragraph 1 hereof, the wife shall retain the said property at Proeprty B aforesaid for her sole use and benefit absolutely free of any claim by the husband.
That henceforth the husband and the wife each retain all items of personalty currently in their respective possession including but not limited to household furniture and effects, chattels, motor vehicles, shares, savings, investments and any other personalty whatsoever for their sole use and benefit absolutely free of any claim by the other of them.
That in default of the payment referred to in paragraph 1 aforesaid, the wife pay interest on such amount as shall remain unpaid from time to time at the rate of 10 per centum per annum.
That in the event that the default extends for a period of three (3) calendar months THEN and in such case the property situate at Proeprty B aforesaid shall be sold and the net proceeds of sale divided as follows:-
(a)as to the sum of SIXTEEN THOUSAND FIVE HUNDRED AND TWENTY EIGHT DOLLARS ($16,528) together with interest thereon pursuant to the terms of this order to the husband’s solicitors on account of the husband;
(b)as to the balance to the wife.
That the application filed herein on 23 December 2004 and the response filed herein on 24 January 2005 do otherwise stand dismissed.
That a costs certificate be granted pursuant to subsections 2 and 3 of Section 10 of the Federal Proceedings (costs) at 1981 stating that in the opinion of the Court it would be appropriate for the Attorney General to authorise a payment under the Act to each of the husband and the wife in respect of such part as the Attorney General considers appropriate of any costs incurred by the parties in relation to these proceedings, NOTING that the Court recommends that such costs be limited to the costs of and incidental to the hearing on 1 September 2006 only.
IT IS NOTED that publication of this judgment under the pseudonym Edson & Edson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
BRM 5014 of 2004
| MR EDSON |
Applicant
And
| MS EDSON |
Respondent
REASONS FOR JUDGMENT
This matter comes before me because the parties are unable to agree on how to divide their property.
There are four steps that I must take in deciding this matter. Firstly, I must determine the pool of the parties' assets and liabilities. Secondly, I must consider each of the parties' contributions to the assets in that pool. Thirdly, I must consider any relevant adjustments which should be made, arising from factors set out in section 75(2) of the Family Law Act 1975 as amended, to the assessed level of the parties' contributions. Finally, I must consider the effect of the proposed orders from the perspective of effecting justice and equity between the parties.
Background
This matter was heard before Rimmer FM on 8 March 2006 in Brisbane. As a result of her unavailability to deliver judgment, the parties were asked if they were prepared to consent to another federal magistrate delivering judgment based on the filed evidence and transcript. The father consented to that course of action but the mother required, quite properly, a rehearing. It was listed before me on 1 September 2006.
Counsel accepted my proposed course; namely, for me to deliver judgment based on any filed evidence to the date of trial in March of 2006 and the transcript of that trial, consideration of further affidavit evidence filed by the wife in the interim, including a psychologist's report from Ms F filed on 24 August 2006, and any further submissions each counsel wished to make to the court. I thank them for agreeing to that course.
The applicant is aged 50 years and the respondent wife is 37 years old. There are no children of the marriage. The wife has four children from a previous relationship who are now aged, 18, 17, 15 and 14.
The parties commenced cohabitation early in October of 1999, when they moved from [omitted] to [omitted] in Queensland. At that time the wife's children were aged 11, 10, 8 and 7.
Separation occurred on 30 May 2003 and there was therefore a period of approximately three and a half years of cohabitation between the parties. The husband was arrested and incarcerated almost immediately thereafter.
Subsequently, on 1 March 2004 the husband was sentenced to seven years imprisonment with a non‑parole period of approximately five years in relation to sexual offences committed against the wife's daughter [X]. At the time of trial the husband is still in prison and is eligible to again apply for parole in approximately November of 2006; he was refused parole earlier this year. It is uncertain how much longer the husband will be in gaol but potentially that will be until approximately 2009.
At the time of trial the wife continued to work, working approximately 15 hours per week and earning some $210 per week net. She also obtained approximately $411 per week by way of Centrelink benefits making a total income of $621 a week. The wife continued to have the full-time care of her three youngest children.
Asset pool
The asset pool is agreed in relation to all assets save for the value of the furniture retained by the wife. She ascribes $1000 to the value of the furniture, while the husband does not agree with that figure. In the absence of any valuation or evidence to the contrary, I will accept the wife's figure.
The assets are:-
The former matrimonial home at Proeprty B
$ 275,000
The wife’s Holden car
$ 3,500
The wife’s furniture
$ 1,000
The wife’s superannuation
$ 8,758
TOTAL
$285,258
The liabilities as agreed are:-
House Mortgage
$ 117,173
GE debt in relation to the wife’s motor vehicle
$ 2,800
TOTAL
$ 119.973
TOTAL NET ASSETS $ 165,285
Contributions
In September 1999 the husband received a workers compensation payout arising from injuries received whilst working at [omitted]. The first payment was in the sum of $81,000. Shortly after that the parties commenced cohabitation.
The wife says that at the commencement of cohabitation she had minimal assets, being furniture sufficient for herself and her children and a Volvo motor vehicle worth approximately $2000. The husband had a Mitsubishi Pajero purchased for $36,000 in September 1999, to which the wife said she had contributed her car by way of a trade-in with an allowed value of $2000. He also had some personal effects and approximately $20,000 in his ANZ account. (See ANZ statement page number 2 for period ended 8 October 1999 – Annexure to wife’s affidavit filed on 13 February 2006 and marked “ANZ”).
The husband had withdrawn from his compensation monies the sum of $57,015 over two days, namely, 20 and 21 September 1999, to buy the Pajero motor vehicle ($36,000), a car for his sister ($10,000) and to provide a loan of $8000 to a friend, Mr B. This totals $54,000 of the $57,015 withdrawn over those two days.
A condition of the receipt by the husband of his compensation money was that he was precluded from applying for any Centrelink benefits until the expiration of 108 weeks (two years and one month) thereafter; namely, the end of October 2001.
The parties moved to [omitted] in October of 1999 and moved into rented accommodation. The wife says that the husband insisted on buying new furniture for the house when they moved and that therefore she had to dispose of the furniture she had prior to cohabitation. She says the husband spent approximately $11,000 on that furniture (see ANZ statement page number 3, a withdrawal on 6 October 1999 of $11,045.95). The husband says he spent $13,682.95 on the furniture, as per the Harvey Norman invoices attached to his affidavit filed on 14 February 2006. He said he made the purchases between the 2nd and 6th days of October 1999. The invoices total, to the best of my ability, $10,334.
Between 1 October 1999 and 6 October 1999 inclusive the husband withdrew $12,745 in cash, from his account. I accept that he spent approximately $11,000 on household furniture and effects. These purchases were utilised over the course of the cohabitation period by the husband, the wife and the wife's four children; those items have been retained by the wife.
By 13 October 1999 there was only $5839.40 left in the husband's ANZ account but a further $7000 was deposited in the account on 14 October 1999. The husband said, in cross-examination, that those moneys were a further workers compensation payment, taking the total of such payment to approximately $88,000.
On 14 October 1999 a sum of $12,506 was withdrawn from the husband's same ANZ account. It was put to him in cross-examination that those moneys were used to buy a car for Mr B. He agreed with that proposition. That would mean that of the $88,000 received by way of workers compensation moneys the husband advanced $20,500 to
Mr B. The evidence is quite unclear in this regard, notwithstanding the husband's agreement, in cross-examination, to the proposition.
The wife's evidence in relation to the fate of the $12,500 withdrawn on 14 October 1999 is simply a bald assertion without any supportive or corroborative information or evidence. Nevertheless the husband does nothing to clarify the matter, and so I find that over September and October 1999 the husband advanced approximately $20,500 to Mr B of which he only ever received back a small proportion by way of $50 payments from time to time into his account, perhaps totalling, according to the husband, $2500.
On 3 December 1999 a further $8401.85 was deposited into the husband's ANZ account. In cross-examination he said he did not think that was further compensation moneys. He had previously said the $7000 deposited on 14 October 1999 was not the repayment from his sister in respect of her motor vehicle, but rather the additional compensation payment.
The wife filed an affidavit from the husband's sister on 15 February 2006 deposing to, inter alia, a repayment to the husband of $7500 in respect of the vehicle he purchased for her. There is no evidence as to when that money was repaid but she said it was by way of cheque in the sum of $7500, having acquired a personal loan for same.
I find that the husband received approximately $88,000 in total by way of compensation money. I find that in all likelihood the payment received on 3 December 1999 was in part at least repayment from his sister, together with money from some other source. I was unfortunately not assisted by the husband's answers in cross-examination in this regard, but the issue was not disputed.
In any event, on 7 December 1999 $3861 cash was withdrawn in three separate transactions and on 8 December 1999 $4206 was withdrawn from the husband's ANZ account. Apparently, most of $3000 of the withdrawal on 7 December 1999 was spent on a computer. Mr Edson could not account for the rest of the expenditure, nor were there any further details as to the fate of the computer.
The wife apparently received Centrelink benefits until approximately September of 2000. The first evidence of the husband receiving any pay from employment was on 26 July 2000, when he was paid $154.65 by [omitted].
It was not disputed that the husband's total wages during the period of cohabitation were approximately $5271 from July 2000 until the last recorded pay on 30 January 2002. He began to receive Centrelink benefits on 2 April 2002 by way of Newstart allowance.
The wife began to work in 2000 and her taxable income for the 2000‑2001 financial year was $22,936 (net approximately $19,676). She also said in evidence that she received approximately $6000 net each year of the cohabitation period by way of family tax benefits. Her weekly disposable income therefore, in the 2001 taxation year, was approximately $493.
She received little child support from her children's father during the period of cohabitation. She said in cross-examination that as best as she could recall she received a total of $2500 from him.
On 6 March 2002 the husband deposited $5377.13 into his ANZ account, being the proceeds of a surrendered AMP policy. He withdrew $3570.95 from the account on the following day. On 11 March 2003 the husband deposited $26,718.70 into his ANZ account; that was the net proceeds of a superannuation entitlement he was able to access. This was just under three months prior to the parties' separation. It did not appear to be disputed that $15,000 of these proceeds were used to acquire one of the parties' vehicles - a 1992 Pajero. This acquisition was made partly by way of discharging an earlier GE loan in the wife's name.
The husband could not account for where the balance of $11,718 was expended other than by making vague reference, in cross‑examination, to thinking that it was used for the family. Again the two withdrawals were almost immediately after the deposit. From April of 2002 to May of 2003 the husband received Centrelink benefits totalling $10,261.92.
The parties married [in] 2001. In December 2001 the former matrimonial home was purchased at a cost of $88,000. It appears the parties were renting the house prior to its purchase; the wife says she was paying the rent.
In the 2002 financial year the wife's wages increased such that her taxable income was $37,597 with a tax and Medicare liability of $8223, leaving net income of $29,374. Her evidence that she received a $6000 payment each year of the cohabitation period by way of Centrelink benefits meant that her weekly income for that year was approximately $680.
The wife's evidence that she contributed $4000 to the deposit for the house purchase by way of rental payments credited to that purpose by the vendors was uncontested, as was her evidence in relation to receiving the First Home Owners Grant of $7000. The house was purchased in the wife's sole name and there was a mortgage in her sole name with the Commonwealth Bank of Australia in the sum of $78,500. She apparently also paid the legal costs and stamp duty totalling $388.
At about the time of settlement there was $49.74 in the husband's ANZ account, the balance in the account not having exceeded $135 in the six months preceding settlement. He was working part-time at [omitted]. The wife at all times paid the mortgage payments from her wages, both during the marriage and post-separation. She also paid all of the rates, taxes and other outgoings in respect of the property from her wages.
In April 2003 a further $40,000 was borrowed to effect improvements to the home and to purchase some furniture and whitegoods, which the wife has retained. This was set out in paragraph 16 of her affidavit filed on 3 February 2006. She has likewise made the payments relating to the increased loan, which was only taken out approximately one and a half months prior to the parties' separation.
The husband said, in paragraph 28 of his affidavit filed on 14 February 2006, that some of his superannuation money was used to fund the home improvements; the wife denies this. In cross-examination she said that it was not possible that the husband's money contributed to the renovations because he was in gaol when it came time for payment. She said that you don't pay for a job before the job is done.
On the wife's own evidence, however, she borrowed the funds for the renovations and purchases on or about 14 April 2003, which was at least one and a half months before the husband was spoken to by police and arrested. There is no evidence as to how the loan moneys were expended and over what period. The husband said that the renovations had begun prior to his incarceration, and that the garage was converted to a double bedroom, and a shower and toilet were installed, with lining and windows. The wife said the work started, at most, a week before separation.
I find that the renovations had begun at least several weeks prior to separation. I am unable to make a finding as to the exact cost of the renovations as the wife does not give this detail in her evidence. Nevertheless, the husband's evidence as to much of the remainder of his superannuation money being utilised to assist in paying for these renovations was as unsatisfactory as most of his evidence relating to the whereabouts or use made of larger cash withdrawals from his ANZ account from time to time. I am therefore unable to find that the husband made a direct financial contribution to the improvements to the former matrimonial home.
In January 2004 the wife borrowed a further $9000 secured against the house to pay off a credit card debt and to pay towards her children's school fees. That loan is included in the current total mortgage liability. Her evidence was unclear as to how much, if any, pre‑separation debt it included compared to post‑separation debt and school fees for her children.
The wife's Volvo was traded in, in 1999, on the 1997 Mitsubishi Pajero with an allowance of $2000 for that trade-in against the overall cost of $36,000. The husband disputes that evidence and says that the wife used the $2000 she obtained for her car to pay pre‑cohabitation debts. I am not convinced in that regard and accept the evidence of the wife. That car was "swapped" with no money changing hands for a Nissan Maxima later during the period of cohabitation. The wife says that vehicle was traded in on a 1987 Pajero, in due course, and the husband is silent on that issue.
The parties agreed, however, that later they owned a Nissan Nomad vehicle, which the wife says was traded in for $5500, on 23 November 2001, for a 1992 Pajero motor vehicle which cost $18,500. She said the balance of $13,000 was borrowed from GE in her name. The husband says that occurred in 2003, in March. The annexure to the wife's affidavit filed 13 February 2006 and marked "Car 1" confirms that the wife's date is correct.
March 2003 was when the husband received his superannuation money. I am satisfied that March 2003 was when the husband paid out the balance of the GE debt in the wife's name relating to the Pajero. There is no evidence as to the amount paid out by the husband. He says he contributed $15,000. His evidence is unsatisfactory, both in relation to dates and the fact that he paid out a loan rather than, as he suggested, contributed to a purchase at that time. The relevant purchase was made 16 months before. The original loan was for $13,000 but there is no evidence as to whether that was inclusive of interest; it appears not to be so.
I accept the basis of the husband's evidence; namely, that $15,000 was used from his superannuation money to repay the GE loan. The car was clearly freehold when traded in by the wife in August of 2004. At that time she purchased a Commodore vehicle at a cost of $9000, with a trade-in allowance for the Pajero of $7000. She borrowed some $3700 to complete the purchase.
The husband said, in paragraphs 16, 17 and 18 of his affidavit filed herein on 14 February 2006, that the moneys in his bank account were expended for daily household expenditure as well as family dinners at restaurants from time to time. He said he also purchased garden implements from Bunnings and at local landscape suppliers.
I have already commented on the unsatisfactory nature of the husband's evidence, both in chief and under cross-examination, as to the fate of the significant lump sum withdrawals made from his ANZ account from time to time, usually on the day or in the days immediately following large deposits into that account.
The wife deposed, in paragraph 28 of her affidavit filed 13 February 2006, to the husband's need for numerous medical supplies as well as his expensive smoking habit. In paragraph 28 of her affidavit, filed 3 February 2006, the wife deposed to the total of the husband's income during cohabitation (a non-disputed figure of $15,408 - being $5,147.03 in wages and $10,261.92 in Centrelink benefits) being expended for his personal support, including but not limited to his pharmaceutical needs, cigarettes, petrol and general personal expenditure.
In cross-examination the wife was initially, and for some time, not prepared to concede that any of the husband's wages or Centrelink benefits were used for the benefit of the family. She did, however, eventually concede, in cross-examination, that perhaps some portion of expenditure at, for example, Woolworths - as evidenced on the husband's bank statements - may have been for the benefit of the household but very little. She said, when pressed, that she thought that about 85 per cent of such domestic-type expenditure was for the benefit of the husband's sister's household, having not raised that in her evidence-in-chief. She eventually said that whether the husband spent money on his sister or on himself or for any other reason, she was unaware of what he had to spend; that he did not give her any cash and that he contributed very minimally to the household.
The wife conceded that the husband had money coming into his account from time to time, after the purchase of the house, but said, on numerous occasions, that the husband was very secretive about his money. She denied in cross-examination that she could not have paid the mortgage and supported herself and her children on her wages without financial support from the husband. She said she had done that throughout the relationship and continued to do so after separation.
For her part the wife received Centrelink benefits from the commencement of cohabitation in October 1999 to September 2000. There is no evidence as to the amount but it had, prior to the wife commencing cohabitation with the husband, supported herself and her four children. She began work in the latter part of 2001 and during the marriage earned the following income: 2001 financial year $19,676 net; 2002 financial year $29,937 net; 2003 financial year $34,267 gross. I find her net income for those years was approximately $77,000 (allowing a tax liability of $6500 for the 2003 year). She also received approximately $6000 per year by way of family tax benefit, making a total of approximately $23,000 over the period of cohabitation.
I find therefore that the wife's total direct financial contributions during the period of cohabitation were approximately $100,000 by way of wages and family tax benefit, together with whatever sum she received for the period of October 1999 to September 2000 by way of Centrelink benefits. I find that the wife used all of her income to support herself and her children, and in mortgage repayments and other household outgoings.
I have already found the husband's wages, Centrelink benefits and money from Mr B totalled approximately $17,900. Approximately one month prior to the commencement of cohabitation he received some $81,000, together with a further sum of $7000 on 14 October 1999. His total compensation received was $88,000 over the period of September-October of 1999.
I have previously found that of the $27,000 remaining available to the husband after the expenditures referred to in paragraph 15 hereof, the husband expended $11,000 on household furniture utilised by the family during cohabitation and retained by the wife. Of the remaining $16,000 I find that a sum slightly in excess of $2000 was expended in removal costs including, inter alia, the purchase of a trailer ($1800) and petrol (see paragraph 6 of the husband’s affidavit filed 14 February 2006 together with his answers in XX in this regard). This leaves some $14,000.
The sum of $5,840 was left in his account by the time the husband received the further sum of $7,000 compensation on 14 October 1999.
The husband had therefore expended a further sum of $8,160 over and above the specific expenditure referred to in paragraphs 15 and 54.
$3,015 of those funds were withdrawn by the husband from his ANZ Account on 20 and 21 September 1999, as referred to in paragraph 15 of this judgment. There was no satisfactory accounting by the husband for the expenditure of this sum.
On 1 and 4 October 1999, the husband withdrew $1,700 in cash from his ANZ Account with no explanation as to the purpose to which those monies were applied.
I am not satisfied that the husband spent the $4,715 referred to in paragraphs 56 and 57 hereof on general household expenses.
I find, notwithstanding the often unsatisfactory nature of the husband's evidence, that the balance of the funds was expended in respect of general household expenses. That would, of course, include the husband's pharmaceutical needs, cigarettes, et cetera.
The original vehicle purchased by the husband in 1999, from his compensation funds, was utilised by the family until it was swapped for another vehicle. The wife complains that she was not allowed to drive the vehicle, but agrees the husband drove her to and from work and that the family travelled in the car. There was no suggestion by the wife that either she or her children had to rely on public transport or that she paid for petrol.
Of the original $81,000 received by the husband in September 1999, I find that by 13 October 1999 he contributed the following to the benefit of the family:-
a.Car $36,000
b.Removal Expenses $ 2,000
c.Furniture $11,000
d.Household expenses $ 3,445
$52,445
The remainder of the original $81,000, namely $28,555, was accounted for as follows:-
a.Car for sister $10,000
b.Loan to Mr B $ 8,000
c.Unexplained expenditure $ 4,715
d.Balance in account $ 5,840
$28,555
On 14 October 1999 the further sum of $7,000 by way of compensation money was credited to the husband’s ANZ account. That deposit increased the balance of the account to $12,839.
I have previously found that $12,500 of those monies were provided to the husband’s friend Mr B to purchase a car (see paragraphs 20 and 21).
Accordingly, I find that of the total of $81,000 received by the husband by way of compensation in September and October of 1999, $52,784 was expended for the benefit of the family.
On 3 December 1999 a further sum of $8,401.85 was deposited into the husband’s account. Taking into account the matters to which I have referred in paragraphs 22-25 inclusive, I am unable to find that the husband contributed more than $1,195 to family expenses from this deposit, taking into account the lack of satisfactory explanation by the husband of the lump sum withdrawals of $7,206 on 7 and 8 December 1999. The husband said he spent approximately $3,000 on a computer. There was no evidence to support this claim or in fact any evidence to support the proposition that such funds were contributed in any way to the family benefit.
I am satisfied the $1,195 referred to was expended for general household expenses.
There does not seem to be a suggestion from either party that the husband obtained significant lump-sum sums from any source other than workers compensation payments, his sister or from the surrender of his AMP shares or superannuation policies, although his bank statements reveal deposits of $1420 by way of card entry, on 8 February 2000 ($1100 of which was withdrawn by 10 February 2000); a $1500 deposit on 15 May 2000 ($1302 of which was withdrawn by 18 May 2000); and a $2500 deposit on 22 August 2000 ($2100 of which was withdrawn by 28 August 2000) with most of these withdrawals being cash withdrawals.
There was no clear evidence in relation to these deposits or in relation to the purpose to which the husband applied the monies withdrawn in cash in lump sums. Of the total deposits of $5,420.00, I find that approximately $1,000 may reasonably be said to have been expended for family expenditure, taking into account the record of deposits and withdrawals in and out of the husband’s ANZ Account (pages 9-19) annexed to the wife’s affidavit filed 13 February 2006
Of the $5377.13 deposited into the husband's account upon sale of AMP shares in March of 2002, the husband could not account for the expenditure relating to the withdrawal of $3570 on the day after that deposit. I am satisfied, however, that the balance of $1807 was expended for usual household expenses.
The husband deposited $26,718.70 in his account on 11 March 2003, from the surrender of his superannuation policy; $15,000 of that money was used to pay out a car loan in the wife's loan. I am unable to find that the balance of the funds was contributed to the family coffers, mainly because of the unsatisfactory nature of the husband's evidence and his habit of lump sum withdrawals from his account almost immediately after the deposits.
I have already accounted in my calculations for the repayment to the husband of $7,500 from his sister. In paragraph 21 of this judgment I refer to some $2,500 being repaid to the husband by Mr B by way of $50 payments. I am satisfied that these monies were expended in general living expenses.
Accordingly, I find that the direct financial contribution made by the husband over the period of cohabitation was:-
a.Wages and Centrelink benefits $15,409.00
b.Repayments – Mr B $ 2,500.00
c.Compensation monies (a) $52,784.00
(b) $ 1,195.00
d.Sundry deposits Feb – September 2000 $ 1,000.00
e.Sale of AMP Shares $ 1,807.00
f.March 2003 – payout of car loan $15,000.00
$89,695.00
It is clear, therefore, that the parties' direct financial contributions were of a similar nature, although I have no evidence as to the amount of the Centrelink benefits the wife received during 1999-2000. That, however, together with her earnings, resulted in a situation of her contributing slightly more by way of direct financial contributions than the husband.
I find that the husband made no direct financial contribution to the acquisition of the former matrimonial home, but in my view it is not appropriate to distinguish between the financial contribution to that asset by the wife and the husband's financial contributions to household expenses, the purchase of a motor vehicle and furniture, moving expenses and the payout of the car loan by the husband. These were all expenses of the family, which included the wife's children from a previous relationship. The vehicles and the furniture were utilised by all of the family.
There was dispute between the parties as to who contributed what by way of caring for the wife's children, cooking, cleaning, general home‑making and the caring for the outside of the home. The wife asserted that she carried out almost all of those tasks, with the husband saying he was primarily responsible for outside chores, gardening, retiling the kitchen, driving the children to and from school and taking them to social events. There was very little or no cross-examination in this regard and I find that the parties contributed equally.
The parties separated in 2003, when the husband was arrested and ultimately imprisoned for sexual offences against at least one of the wife's children. Since then she has made all of the mortgage payments for a period in excess of three years, during which time the husband has had no living expenses. She has extended the house loan on two occasions, once for improvements to the former matrimonial home and once to consolidate pre and post-separation loans and school fees.
There is no evidence as to the amount by which the renovations increased the value of the home but on both cases they were significant improvements. There is no evidence as to whether any of the second loan of $9000, in January of 2004, included pre-separation debts. I am satisfied, however, that the wife's post-separation contribution has been significant.
Taking into account, therefore, the parties' direct and indirect financial and non-financial contributions during the period of cohabitation an post‑separation, I find that they should be apportioned as to 75 per cent thereof to the wife and 25 per cent thereof to the husband.
Section 75(2) factors
The husband is aged 50 years and the wife is aged 37 years. The husband's health is generally poor, arising from injuries he received whilst working at [omitted] in the mid-1990s. The wife says that she suffers from poor psychological health, arising from the effect on her children (with which she has had to cope) and on herself of the husband's actions that led to his arrest and imprisonment.
I permitted the wife to rely on an affidavit of her psychologist, Ms F, at the hearing before me on 1 September 2006, notwithstanding it had been filed as late as 24 August 2006 and therefore the husband's solicitors had not had the opportunity to seek an opinion in respect of the matters contained therein.
The wife's counsel alleged that the wife's health was fragile to the extent that her working life has been dramatically reduced and her future working life uncertain. The report, to my mind, does not comment on those aspects. There is no doubt that the wife's health has been impacted on by the husband's actions. The psychologist's report, filed on behalf of the wife, refers to other longstanding issues that affect her psychological wellbeing. It would be, however, in my view, totally unrealistic to find other than, at the very least, the wife's feelings of wellbeing have been severely affected by the events of May 2003.
I find that both parties have significant health problems.
At the time of the parties' separation the wife was working full-time. I have previously set out her earnings up to the 2003 taxation year. The wife continued to work after separation, but as at 3 July 2006 was only earning approximately $230 per week gross from her paid employment, which situation continued as at July 2006 (see annexure "A" to wife's affidavit filed 28 August 2006).
There was insufficient evidence before me to find what had affected the wife's earning capacity, but taking into account the events of May 2003 and the responsibilities of being a sole parent to school-aged children in my view it was not unreasonable that the wife had reduced her working hours. Her income, therefore, was extremely limited and she was only in a position to support herself and her children with Centrelink assistance, getting no child support from their father.
The wife was resident in the former matrimonial home at the time of trial but otherwise had no assets of significance. The wife's superannuation only has a value of $8758.
The husband was not receiving income in gaol, but before his incarceration was in receipt of a disability pension which is the most likely source of his income upon release. He has no property or financial resources. The husband's physical capacity for future employment is limited, to say nothing of the effect on any employment prospects of his conviction and the reasons for that conviction.
The mother's mental capacity for appropriate gainful employment may have been affected by the unhappy events caused by the husband's behaviour but, as I say, this is not addressed specifically in the evidence and nor was she cross-examined in that regard.
There are no children of the marriage. The wife has a duty to support herself and two school-aged children; one other child is at university and the other independent. There is no evidence as to any student allowance paid to the wife's child [name omitted], who is at university, but the two youngest children are at private school, and the wife is solely responsible for the care of these children, both physically and financially.
The husband currently has no expenses as regards his own care. He has not, and will not have, upon release from gaol, a necessary commitment to support anyone other than himself. His expenses to support himself will arise sometime between October 2006 and late 2009.
There was no evidence from the wife as to the amount she spends in providing for herself and the children on a weekly basis. The wife obtains approximately $410 per week from Centrelink. The husband is not currently entitled to Centrelink benefits but upon his release from gaol will no doubt be eligible for a disability pension.
The wife has remained in the former matrimonial home, since separation, with three of her four children. It provides an appropriate standard of living in the circumstances.
The husband has been in gaol since separation. When he is released, regardless of the outcome of these proceedings, he will not be in a position to purchase accommodation but rather will have to rent modest accommodation. I say "regardless of the outcome of these proceedings" as any amount the court deems appropriate to be paid to the husband as his property settlement entitlement will be paid into the Public Trustee account on his behalf. His legal fees will be deducted therefrom and any balance will be held in trust awaiting the outcome of the criminal injuries compensation claim recently filed on behalf of the wife's child [X].
I do not consider the factors set out in section 75(2)(h) to (k) are relevant to this matter.
The wife wishes to continue in her role as a parent. Although her children are getting older, she is effectively a sole parent as previously discussed herein. Subsections (m), (n), (na) and (p) are also not relevant.
Turning, however, to section 75(2)(o). This is a very unusual matter indeed. The husband sexually assaulted at least one of the wife's children, resulting in him being imprisoned for seven years. It was one of the worst breaches of trust that one can imagine in a marriage. It has had a significant psychological impact on the wife and her children. The fact that she has continued to work to the extent that she has is to her credit. It has left the wife feeling very bitter; that was evident from the report from her psychologist, but perhaps it was more telling in her answers by way of cross-examination.
The husband has acknowledged, through his counsel, that as a result of the his actions and current situation any amount the wife is ordered to pay to him will go to the Public Trustee to be used, in the first instance, to pay his legal fees, thereafter in satisfaction (or part thereof) of any criminal injuries compensation payment to be made to the wife's daughter [X], and only then will any balance go to him. It is hard to see why the husband has pursued this matter.
The wife's counsel argues that she has no capacity to borrow any funds. The letter annexed to the wife's affidavit filed 13 February 2006, being a letter from the Commonwealth Bank of Australia to the wife dated 6 February 2006, was less than convincing in terms of the wife's general ability to access funds from other institutions. Nevertheless, the wife's income is $640 a week with a mortgage commitment of $214 per week. She has to support herself and at least two of her children. Her capacity to borrow would be clearly doubtful.
An order that the wife pay an amount to the husband by way of property settlement would therefore have the likely dual effect of causing the wife to have to sell the former matrimonial home, whilst not benefiting the husband other than in respect of legal fees, criminal injuries compensation payments and perhaps, then, a small balance to the husband upon his release from gaol.
I am further mindful of the wife's assets. Other than the former matrimonial home, she has very modest furniture, a very modest car and a small superannuation entitlement that, although included in the asset pool, is many years away from being of any direct benefit to the wife. The car is encumbered almost to the extent of its value. The asset pool is accordingly small.
Taking all of these matters into account I find that there should be a further adjustment to the wife of 15 per cent, making an overall division of the parties' assets in the proportions of 90 per cent thereof to the wife and 10 per cent thereof to the husband.
Justice and equity
The effect of this order will be that the wife has to pay the sum of $16,528 to or on account of the husband. In my view this is a just and equitable result that may well result in the wife and her children being able to remain in the former matrimonial home.
The wife's counsel submitted that if a payment was ordered to the husband that the wife would need time to source or borrow such funds. In my view, in the particular circumstances of this case, such a submission has merit. I intend to make such allowance.
The payment to, or on behalf of, the husband, in my view is a just and equitable outcome for him regardless of the fate of such funds. The court must consider the relevant matters, according to law, and make orders reflective of the parties' contributions and efforts as well as needs. I am satisfied that this is such an order.
Application was also made in respect of the Federal Proceedings (Costs) Act 1981.
This matter commenced originally before Federal Magistrate Rimmer and after some preliminary hearings the matter started in substance on 8 March 2006 and on that day all of the evidence was completed and submissions made for each party. Federal Magistrate Rimmer reserved her judgment.
Federal Magistrate Rimmer has been on leave since shortly after that time and was unable to deliver judgment.
The relevant section is Section 10 of the Federal Proceedings (Costs) Act 1981 which applies to costs certificates in incomplete proceedings.
I am satisfied that the discontinuance and the resumption of the hearing was not attributable to the neglect, default or improper act of any party to the proceedings and accordingly, I accept the submission of each counsel that it is appropriate to grant a costs certificate in respect of part of the proceedings for each party.
Subsection (4) of Section 10 of the Act provides that the Court can state that in its opinion it would be appropriate for the Attorney General to authorise a payment under the Act in respect of such part as the Attorney General considers appropriate of any costs incurred by that party in relation to those proceedings. It is clearly therefore a matter for the Attorney General but I am satisfied that the appropriate costs in this matter would be those of and incidental to the hearing on
1 September 2006 only. I make such recommendation on the basis that the matter was effectively concluded by way of evidence on 8 March 2006, but upon the inability of Federal Magistrate Rimmer to complete the matter by delivering judgment, the parties were contacted by the Court and the wife’s solicitors advise that they would require the matter to be re-heard and not simply have another Federal Magistrate deliver judgement on the evidence as given on 8 March 2006. In reality however what transpired was that there was some additional evidence tendered to the Court by affidavit on 1 September 2006 but otherwise Mr George and Mr Fleetwood, counsel for each of the parties, agreed to proceed on the basis of further submissions to the Court on the evidence as it stood. In my view this was an appropriate and sensible course of action.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Mead FM
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