England & England
[2005] FMCAfam 204
•6 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ENGLAND & ENGLAND | [2005] FMCAfam 204 |
| FAMILY LAW – Property – splitting superannuation – allegations of fraud – standard of proof – acceptance of “Red Book” vehicle valuation – contributions – onus on person seeking injunction. |
| Family Law Act1975 (Cth), ss.75, 79, 90MT |
| Lee Steere and Lee Steere (1985) FLC 91-626 Ferraro (1993) FLC 92-335 Clauson (1995) FLC 92-595 Russell v Russell (1999) FLC 92-877 Jones v Dunkel (1959) 101 CLR 298 Lindsey and Lindsey (1995) FLC 92-638 Reifek v McElroy (1965) 112 CLR 517 Helton v Allen (1940) 63 CLR 691 Briginshaw v Briginshaw (1938) 60 CLR 336 H & H (2002) FMCAfam 209 Williams and Williams (1985) FLC 91-628 Sieling and Sieling (1979) FLC 90-627 Blueseas Investments v Mitchell & McGillivray (1999) FLC 92-856 |
| Applicant: | LORRAINE ANNE ENGLAND |
| Respondent: | MICHAEL JOHN ENGLAND |
| File Number: | HBM 2592 of 2001 |
| Judgment of: | Roberts FM |
| Hearing dates: | 2 & 3 June 2004 & 7 February 2005 |
| Date of Last Submission: | 7 February 2005 |
| Delivered at: | Hobart |
| Delivered on: | 6 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. D. Keating |
| Solicitors for the Applicant: | Hand Ogilvie & Brehney |
| The Respondent was not represented by a lawyer. |
ORDERS
That whenever a splittable payment is payable in respect of the superable interest of MICHAEL JOHN ENGLAND (member number 470672) in the RBF Defined Benefit Contributory Scheme (“the Fund);
(a)LORRAINE ANNE ENGLAND is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of One hundred and twenty seven thousand dollars ($127,000.00) at the operative time; and
(b)there is a corresponding reduction in the entitlement of MICHAEL JOHN ENGLAND to whom payment would have been made but for this Order.
That Order No. 1 hereof binds the trustee or trustees from time to time of the Fund.
That for the purposes of Order No. 1 hereof the operative time is the forth day after which a copy of this Order is served upon the trustee of the Fund.
That the Court declares that the trustee of the Fund has been accorded procedural fairness in relation to the making of these Orders.
That MICHAEL JOHN ENGLAND transfer to LORRAINE ANNE ENGLAND all his right, title and interest in the 1988 Nissan Skyline motor vehicle, registered number AE 978.
That LORRAINE ANNE ENGLAND transfer to MICHAEL JOHN ENGLAND all her right, title and interest in the 1989 Nissan Skyline Silhouette GTS motor vehicle in his possession and in the 1980 Nissan 720 4WD motor vehicle in his possession
That the parties’ costs applications be adjourned for mention at 10.00 a.m. on Monday 6th June 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBM 2592 of 2001
| LORRAINE ANNE ENGLAND |
Applicant
And
| MICHAEL JOHN ENGLAND |
Respondent
REASONS FOR JUDGMENT
Applications
This matter has had a relatively long history in this Court but the Applications currently before the Court are an Amended Application by LORRAINE ANNE ENGLAND (“the Wife”) filed 1st June 2004 and an Application (which I treated as a Response) filed by MICHAEL JOHN ENGLAND (“the Husband”) on 2nd June 2004.
The Applicant applies for the following orders:
1. That the residual debt of the parties to the Island State Credit Union in relation to the mortgage of the former matrimonial home be discharged 40% by the wife and 60% by the husband
2. That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splitable payment becomes payable to the respondent husband, Michael John England from his interest in the RBF Defined Benefit Contributory Scheme (member number 4706782) (“the fund”):-
(a)the applicant wife, Lorraine Anne England is entitled to a base amount in the sum of $126,715.26 from the Fund and there is a corresponding reduction in the entitlement of the respondent would have had in the Fund but for these orders; and
(b)the respondent must do all acts and things and sign all documents necessary to enable the sum of $126,715.26 to be paid as a lump sum to the respondent.
3. If the respondent fails to refuse to do all acts and things and sign all documents necessary to enable the sum of $126,715.26 to be paid as a lump sum to the applicant from the Fund, the trustee of the Fund shall proceed as if all such steps had been taken by the respondent.
4. That orders 2 and 3 have effect from the operative time which is the date orders are made pursuant to this application.
5. That having been accorded procedural fairness in the making of these orders, orders 2 to 4 (inclusive) bind the trustee of the Fund.
6. That the respondent transfer to the applicant free from encumbrances, all his right, title and interest in the 1988 Nissan Skyline motor vehicle Registration Number AE 978.
7. That all monies payable by the Respondent pursuant to any order of this court be secured against the respondent’s entitlements in the Fund or in such other manner as the court may consider appropriate.
8. That the respondent pay the applicant’s costs of and incidental to these proceedings.”
At the start of the hearing the Wife’s counsel sought to amend the second order by correcting the Husband’s membership number of the superannuation scheme to 470672 and by substituting the word “applicant” for “respondent” as the last word in subparagraph (b).
The Respondent set out the orders that he was seeking but because the document that he filed contains comment about why he is seeking the orders, I summarise what he is seeking as follows:
a)That the balance owing by the parties to Island State Credit Union be paid by the Wife
b)That the Wife receive no more than $35,000.00 from his superannuation
c)That certain personal items be returned to him
d)That the Wife transfer her interest in his car and a four wheel drive to him
e)That each party pay their own legal costs
f)That the Wife be restrained from approaching or making any contact with him or within two hundred metres of any property occupied by him for a period of not less than five years
Background
The parties were married in May 1974 and they separated finally in August 2000. Their divorce became absolute on 29th October 2001. Although the Respondent has remarried, for convenience I shall still refer to the Applicant as “the Wife” and to the Respondent as “the Husband”.
The three children of the marriage, born in 1980, 1982 and 1985, are all over the age of eighteen years.
At the time of the marriage, the Husband was employed as a technician with the Postmaster General’s Department (PMG) and the Wife was employed as a dental technician. The Wife changed her employment a number of times prior to ceasing work in June 1980, prior to the birth of their first child.
The Husband advanced to the position of a Senior Technical Officer with the PMG before leaving that employment to work as a communications officer with the Hydro Electric Commission (HEC). In that capacity he advanced to being the communications officer in charge of the West Coast of Tasmania, based at Tullah. He was later based at Sheffield.
In 1990 the Husband left the HEC and joined the Tasmanian Education Department. He is currently a senior Information Technology Consultant with that Department.
The Wife is now employed as a dental nurse, having resumed employment in January 2000.
The Law
The Court’s approach to the determination of an application for the adjustment of property interests has been well established by authority. See Lee Steere and Lee Steere (1985) FLC 91-626, Ferraro (1993) FLC 92-335 and Clauson (1995) FLC 92-595. It is essentially a multi-step process: firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing; secondly, evaluating the contributions made by the parties as defined in Section 79(4)(a) to (c) of the Family Law Act 1975 (“the Act”) and thirdly, evaluating the matters contained in Section 75(2) of the Act if they are relevant.
In determining what Order the Court should make under Section 79, the Court must also be satisfied that it is just and equitable in all the circumstances to do so - see Section 79(2) and Russell v Russell (1999) FLC 92-877. In that case the Full Court of the Family Court said, at paragraph 80: Furthermore, it must be remembered in this regard that under s 79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets. Indeed we take the opportunity to emphasise that in what his Honour has termed ''the fourth stage'', that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.
Since 28th December 2002 courts have been required to treat superannuation interests as property for the purposes of paragraph (ca) of the definition of matrimonial cause in Section 4 of the Act – see Section 90MC. The manner in which courts are to do that is set out in Part VIIIB of the Act.
The hearing
The Husband was unrepresented at the hearing. That was unfortunate for him, because he did not really address the required issues and he appeared to see these family law proceedings as a means of receiving what he perceived to be the justice that he had not received by other means. I shall comment further about those matters below.
In 1994 in Neil v Nott and Another 121 ALR 148 the High Court said at page150:
A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.
Unfortunately, this was applicable in this matter.
Court history
Proceedings between these parties were instituted by an Application filed on behalf of the Wife on 20th June 2001. That Application sought a somewhat vague final order that the Court “makes such orders as to property settlement and spousal maintenance as are just and equitable and reasonable in the circumstances”. It also sought an interim order that by way of urgent spousal maintenance the Husband immediately discharge all arrears owing under the mortgage and other outgoings in relation to the property at 33 Gate Five Road, Carlton River (“the former matrimonial home”) and that he “pay to the wife such periodic sum as is reasonable in the circumstances”.
An Amended Application was subsequently filed on 1st August 2001 in which the Wife sought interim orders that the Husband be appointed as trustee for the sale of a Nissan Four Wheel Drive motor vehicle (“the 4WD”), a boat, outboard motor, and a trailer and pay the proceeds of such sales to the Island State Credit Union (“the Credit Union”) towards the discharge of the mortgage over the title to the former matrimonial home. She also sought other orders.
The matter came before me on 17th August 2001 and I made orders that can be summarised as follows:
a)That the Husband be appointed as trustee to sell the 4WD and the boat and accessories to pay the net proceeds towards the discharge of the mortgage arrears and place any balance proceeds under the joint control of the solicitors for the parties.
b)That until further order the Husband pay to the Wife the sum of $90.00 per week by way of spousal maintenance.
c)That until further order the Wife pay all outgoings in relation to the former matrimonial home
The Husband was represented by a lawyer at that hearing.
The matter came on before me again on 3rd September 2001 and the Husband was represented by the same lawyer. At that time it was ordered by consent that the Husband “cause to be filed and served within twenty eight days an affidavit containing expert evidence in relation to the Husband’s allegation that the Wife fraudulently executed Island State Credit Union documents on his behalf”. There was a further order by consent that the expert engaged by the Husband be permitted to inspect the Court file and all documents produced as a result of a subpoena to the Credit Union. It is a matter of history that the Husband did not cause an affidavit by an expert to be filed.
The matter came on before me again on 11th December 2001 and at that time there was no appearance by or for the Husband. I made orders that vacated the order appointing the Husband as the trustee for sale of the chattels referred to above and in their place made orders which can be summarised as follows:
a)That the Wife be appointed trustee for sale of the 4WD and be authorised to sell that vehicle to one of the parties’ children for the sum of $1,000.00 and pay that sum to the Island State Credit Union in reduction of the arrears in relation to the mortgage.
b)That the Husband immediately sell the boat and accessories for the highest obtainable price and pay the proceeds of sale to the Island State Credit Union towards the reduction of the mortgage arrears.
Other orders were made on that day but I do not need to recite them here.
On 7th March 2002 an Order was made by consent that the former matrimonial home be sold, together with various machinery orders in relation to that sale. At that time, the Husband was represented by another lawyer. (The former matrimonial home was subsequently sold, but the proceeds were insufficient to discharge all the borrowings secured by the mortgage.)
The Husband was still represented by that second lawyer when an Enforcement Summons came before me on 6th June 2002. Orders were made by consent that the Husband pay from his share of his late mother’s Estate the sum of $6,000.00 to the Credit Union towards the mortgage arrears, $3,939.04 to the Wife for child support arrears and the balance to the Credit Union towards further satisfaction of arrears owing under the mortgage and towards satisfaction of spousal maintenance arrears.
On 4th June 2003 the Husband filed an Application seeking DNA testing to ascertain the paternity of the youngest child. I made orders to that effect on 11th August 2003. The DNA test subsequently proved that the Husband is her father.
There were numerous adjournments of this matter until the matter came on for final hearing on 2nd June 2004.
Documents before the Court
In addition to the Applications that have been referred to above, the parties each relied upon a number of affidavits.
The Wife relied upon her own affidavits filed 20th June 2001,
1st August 2001, 28th November 2003 and 11th May 2004. She also relied on her Financial Statement filed 28th November 2003.
Initially, the Wife also sought to rely upon an affidavit from a Mr. King. However, Mr. King appeared to change his mind about giving evidence and would not come to Court. There was no evidence that a subpoena had been properly served upon him and in the end, both parties appeared to adopt the view that his evidence was unnecessary in any event.
The Husband relied upon his affidavits filed 28th November 2003 and 11th May 2004 and a Financial Statement filed 28th November 2003.
An affidavit of an actuary had been filed on his behalf on 15th October 2003 and that document was also relied upon, in addition to a further report from that actuary which was admitted by consent. The actuary was not cross-examined.
An affidavit by a Mr. Young had been filed on behalf of the Husband but the Husband did not rely upon that document at the hearing.
The Husband also tendered a document at the start of his oral evidence which was in response to evidence that the Wife had given on the previous day. It is Exhibit H1.
The Husband had attempted on the previous day to tender another much longer document. However, he accepted my suggestion that the document should not be tendered because it was scandalous and offensive. Consequently, that document has not formed part of the material before me.
Issues of concern to the husband
It is fair to say that the trial of this matter was somewhat sidetracked by issues that were of concern to the Husband. However, it is necessary for me to deal with some of those issues in this decision.
The Husband alleged that the Wife had not disclosed correspondence or statements from the Credit Union and as a consequence he did not realise that the mortgage liability was in excess of $80,000.00. In an affidavit he said that the Wife “continued to prevent me from knowing the real and true nature of the family finances and the status of the home mortgage, and the existence of the Home Equity Loan, apparently taken out in 1990”. Clearly, if these matters could be proved to the satisfaction of the Court, they may have been relevant to the Court’s consideration of appropriate orders.
It seems clear from the evidence that up until 1997 the Wife was primarily responsible for the household finances. The Husband’s salary was deposited into a Credit Union account in her name alone.
It is the Husband’s evidence that in 1997 he became concerned about the family finances and opened his own account. It is of some significance, in my opinion, that at various times the Husband gave the Credit Union his sister’s or his mother’s addresses as his address for the purposes of that account. I have no hesitation in finding that he did not want the Wife to know about that account. It was the Husband’s evidence that the Wife only needed to ask about the account and he would have provided details. However, if one does not know about an account, is unlikely that any questions will be asked about it.
I am satisfied with the Wife’s evidence that the correspondence and statements from the Credit Union in relation to the mortgage came to the former matrimonial home and that they were readily available for the Husband to look at if he had chosen to do so.
The Husband also claimed not to know about the existence of the Home Equity Loan from the Credit Union. Although Credit Union documentation suggests that the Husband and the Wife signed the loan documentation in Devonport in the presence of a Credit Union officer, the Husband alleges that his signature was forged.
In relation to that allegation, the Husband’s evidence was confusing. He does not allege any misconduct on the part of the Credit Union officer who witnessed the signatures. When it was put to him that his allegation meant that the Wife had either taken the documentation away from the Credit Union office and had his signature forged or that someone impersonating him had attended at the Credit Union office and forged his signature, his evidence was not satisfactory. When pressed he indicated that he thought his signature had been added to the document away from the Credit Union office and suggested that the Credit Union officer may have been “duped”.
The Husband was reminded that an Order had been made on
3rd September 2001 that required him to file and serve an affidavit within twenty eight days containing expert evidence in relation to his allegation that the Wife fraudulently executed Credit Union documents on his behalf. No such affidavit has been filed and no expert report has been produced. The Husband claimed that his first solicitor had such a report but that had not been made available to him.
In cross-examination, the Husband conceded that he had paid that solicitor’s account in full and that he had engaged the services of two further solicitors since parting company with his first solicitor.
In cross-examination, the Husband conceded that on 16th July 2001 the Chief Executive of the Credit Union sent him a letter which said, inter alia, the following:
“Finally, in relation to the question of the execution of the mortgages, our enquiries to date have revealed nothing to cause us to be suspicious as to the apparent legitimacy of any of those signatures except for the allegations in your letter. Obviously the suggestion that one of the Credit Union’s officers might be party to a forgery is something that we take extraordinarily seriously. As I indicated there are some enquiries that have yet to be completed, however, they only relate to one of the signatures. I will write to you again in relation to our conclusions in relation to that final signature, however, we are satisfied on the basis of objective and extrinsic evidence that the signatures on all the other mortgages are yours and that you have been aware of the loans and advance at the time that they were made.”
The letter to the Husband concludes with the following sentence:
“As indicated, I will confirm the Credit Union’s position in relation to the question of the one outstanding signature when our enquiries have been completed.”
When these matters were put to the Husband, his response was that the Credit Union’s conclusion had not been accepted by him and that the matter is “still in contention”. He said that he was still pursuing that matter.
It is of significance that the Credit Union’s letter was forwarded to him in 2001, yet some years later he has still not produced to the Court any evidence of forgery or any subsequent correspondence from the Credit Union.
It is also of significance that the Husband concedes that he knew that money was being borrowed at the time and that it would be used for the purchase of a second vehicle (being the 4WD that had not been sold at the date of the hearing despite the fact that there were orders requiring it to be sold).
It is almost beyond belief that the Wife would forge the Husband’s signature in order to borrow money that he knew was being borrowed to purchase a motor vehicle. I also find that the principle enunciated in Jones v Dunkel (1959) 101 CLR 298 is applicable in relation to this matter. If indeed the Husband has obtained any expert evidence in relation to a forged signature, an inference adverse to his case must be drawn from the fact that he has not produced it. The logical inference is that his case would not have been supported by the production of such a report.
It was is also the Husband’s claim that the Home Equity loan was being used by the Wife from time to time in order to borrow funds without his knowledge. The Wife’s evidence was that borrowings on the Home Equity loan were needed from time to time because the parties did not have credit cards. I accept her evidence and find that the Husband’s evidence in relation to this was less than satisfactory. As mentioned above, the correspondence and statements from the Credit Union were available to him had he chosen to inspect them.
The Husband was clearly concerned that the mortgage liability was in excess of $80,000.00 when the initial borrowings were significantly less than that. However, the Husband conceded that the following was borrowed:
Original loan to purchase home in 1984
$30,000
Loan to pay off Camira in 1988
$11,000
Loan to purchase 4WD in 1990
$8,300
Loan to purchase adjoining block of land in 1994
$27,000
Loan to purchase boat and accessories
$3,500
TOTAL:
$79,800
I accept the Wife’s evidence that when the Husband changed the family’s financial arrangements by having his pay paid into his credit union account, he only provided her with $150 per fortnight to meet the living expenses for the family, which included three children in addition up to five German shepherd dogs which the parties owned for breeding. I therefore have no hesitation in concluding that in order to meet necessary expenditure from time to time, the Wife was forced to borrow additional funds by drawing down on the Home Equity account.
I also accept her evidence that she attempted to let the Husband know that they were living beyond their means but the Husband was not receptive to that.
It is interesting to note that in cross-examination the Husband conceded that there was no apparent excessive expenditure by the Wife and that she did not appear to have any gambling, alcohol or similar problems.
The Husband also expressed concerns that the Wife had fraudulently negotiated a tax refund cheque made payable to him for $1,969.99 and fraudulently negotiated three cheques payable to him totalling $17,502 that were part of his share of a deceased uncle’s Estate.
Those claims were investigated by the police and the charges were considered to be “unfounded as this is a civil matter”. In relation to the evidence, I am satisfied that, if those cheques were negotiated through the Wife’s account, that was done with the Husband’s knowledge and consent. I am satisfied that the parties’ only account prior to 1997 was the Wife’s Credit Union account and that was used as the family account.
I also find that the Wife did not apply those funds to her own benefit and I refer again to the Husband’s concession that there was no apparent excessive expenditure by the Wife and that she did not appear to have any gambling, alcohol or similar problems.
A further criticism by the Husband of the Wife was that she did not forward Credit Union documents and correspondence to him after the parties separated. In this regard, I note that the Husband was quite capable of changing his address in relation to his own Credit Union account, yet he could not give any adequate explanation as to why he was not able inform the Credit Union of his new address in relation to the mortgage loan accounts. In my view, the Husband is the author of his own misfortune if he did not receive statements and notices from the Credit Union in relation to the mortgage.
I accept the Wife’s evidence that she assumed that the Credit Union was corresponding with the Husband.
The Husband also alleged that the Wife had “made false and misleading claims to both Centrelink and Child Support Agency”.
In relation to Centrelink, I am satisfied by the Wife’s evidence that Centrelink was well aware of the Wife’s situation and at no time has Centrelink ever suggested that she has been involved in any wrong doing.
In relation to his allegation about the Child Support Agency, I note that this relates to a period of attempted reconciliation prior to the parties’ final separation, during which the Husband returned to the former matrimonial home. It is his contention that the Wife should not have continued to accept child support payments after he returned home. However, I accept the evidence that he was paying that child support voluntarily and not through any compulsory deduction by the Child Support Agency. I also accept that during the period in question, the Husband changed the amount of child support that he was paying because child support became no longer payable for one of the children. It therefore follows that the Husband was also the author of his own misfortune, in that he continued to make those payments when he could easily have stopped doing so and contacted the Child Support Agency.
I also accept the Wife’s evidence that she was using those funds for the support of the family and it is clear that the Husband had an obligation to support his family.
The Husband further alleged that the Wife had deliberately hidden some cheques that were payable to the German Shepherd Dog Club while allowing him to be investigated by the Police (presumably in relation to missing funds). Clearly, the cheques in question were not the property of either of the parties so this particular allegation does not have any relevance to the parties’ property settlement. Consequently, I do not need to make any findings about it.
When I view the totality of the allegations made by the Husband against the Wife, it is clear to me that the Husband has been waging a campaign against her. He appears to be obsessed by a belief that the Wife has been fraudulent in relation to a number of financial matters. However, when one looks at the evidence objectively, that is not substantiated. It is also appears that Centrelink, the Credit Union and the police are not prepared to take his allegations of fraud any further.
Allegations of fraud are very serious allegations because, if proved in an appropriate forum, they could result in criminal penalties being imposed. These proceedings are not criminal proceedings and the criminal standard of proof does not apply. The appropriate standard of proof to be applied is the civil standard. In Lindsey and Lindsey (1995) FLC 92-638, the Full Court of the Family Court said that section 140(2) of the Evidence Act 1995 specifically incorporates dicta in cases such as Reifek v McElroy (1965) 112 CLR 517, Helton v Allen (1940) 63 CLR 691 and Briginshaw v Briginshaw (1938) 60 CLR 336, all of which state that the degree of satisfaction which the civil standard of proof calls for may vary, having regard to the gravity of the facts to be proved.
A passage of Dixon J’s judgment in Briginshaw reads as follows at 361:
The truth is, that when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality.
I can say that I do not “feel an actual persuasion” of any fraudulent activity on the part of the Wife.
Assets, liabilities and values
It is clear that the most substantial asset of the parties is the Husband’s interest in a defined benefits superannuation scheme. The parties accept the evidence of the actuary in relation to the value of that superannuation and I accept that he has conducted that valuation in accordance with the appropriate formula. The value at the 5th May 2004 was $211,192.
The value of the Wife’s superannuation accumulation fund at 28th April 2004 was $7,799.
The value of the Husband’s Nissan motor vehicle was not agreed. Information from the internet site of “Red Book” was presented to the Husband and he identified the model of that vehicle. However, he did not accept the suggested “Red Book” values, apparently because his vehicle is damaged. That damage occurred not long before the hearing, while the vehicle was in the possession of the Husband. Consequently, it is appropriate to ignore the damage. Because neither party has presented me with any expert evidence, it is appropriate for me to have regard to the internet “Red Book” Book values for that type of vehicle. The range for a private sale is between $6,200 and $7,600. I therefore accept that the value suggested by the Wife’s counsel of $7,000 is appropriate.
The Wife also possesses a Nissan motor vehicle and she says that her half-interest is worth $500, making the vehicle worth $1,000. She says that she obtained that valuation from a car dealer, and it was her evidence that the value would be less than the “Red Book” because of the vehicle’s high mileage and poor condition. Because the Wife was not cross-examined by the Husband about her valuation of that vehicle, I accept that it is worth $1,000.
The Husband also has possession of the 4WD. No evidence was presented at the hearing in relation to the value of that vehicle. However, I note that it is in poor condition and that the Court had accepted that it could be sold for $1,000 in December 2001. I therefore accept the suggestion by the Wife’s counsel that a value of $500 should now be attributed to it.
The Husband’s Application suggests that the Wife is still in possession of tools, equipment and other chattels removed by her from the former matrimonial home. The Wife’s evidence is that she no longer has those and I accept her evidence so I do not attribute any value to those.
Consequently, the interests of the parties in the assets are as follows:
Husband’s superannuation
$211,192
Wife’s superannuation
$7,799
Husband’s Nissan motor vehicle
$7,000
Wife’s Nissan motor vehicle
$1,000
4WD motor vehicle
$500
TOTAL:
$227,491
At this stage, the Husband retains his superannuation and two motor vehicles worth a total of $218,692 and the Wife retains her superannuation and one motor vehicle worth a total of $8,799.
The parties accept that at the time of the hearing the liability to the Credit Union was approximately $32,000. They would normally be jointly and severally liable for the whole debt, but the evidence is that the Credit Union will limit the Wife’s liability to only half the total, provided that she continues to pay them $90 per week. At this stage, she is meeting that obligation by redirecting that interim spouse maintenance payment of $90 per week to the Credit Union.
The Wife's counsel submitted that the interim spouse maintenance order should remain in place. Naturally, the Husband does not want it to continue. However, the circumstances of the parties have not really changed since I made that order, so I will not discharge it. It is clear to me that the Wife is only able to meet her obligation to the Credit Union, because she is receiving that spouse maintenance. It is also clear that she is receiving that maintenance only because it is compulsorily taken from the Husband’s salary.
Any future application to discharge the interim maintenance order will be in deal with on its merits.
Contributions
In his opening, counsel for the Wife described the contributions of the parties as being “of a traditional kind: the husband as an income earner; the wife as a homemaker and parent.” He also pointed out those contributions were not disputed by the Husband in his affidavit material.
When the Husband was making his final submissions, I asked him how I should weigh their contributions based on the evidence and his comment was:
I guess my statement as a homemaker – then her contribution as an actual homemaker was not one of – what one would call of great effort. She was not – she was certainly not house proud.
In response to a further question from me, it was clear that the Husband was not able to point to any evidence of that.
In the decision of H & H (2002) FMCAfam 209 the former Chief Federal Magistrate said the following at paragraph 12:
The fact that the husband was the major financial contributor during the marriage and brought the assets in, does not, as he argues, make him the sole contributor to those assets. Section 79(4) requires the court to look at the entirety of the contributions, both financial and non-financial, to the welfare of the family as well as to the acquisition, conservation and improvement of their assets. Those contributions are not required in an evidentiary sense, to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
In the following paragraph she went on to say:
I find that the wife was the primary caregiver for the children during the relationship. In that sense, she made significant non-financial contributions, as well as financial contributions from time to time, although less than the husband's. It is clear that non-financial contributions must be given significant and not token weight.
In this matter, I conclude that the parties willingly adopted those “traditional” roles to which the Wife’s counsel referred. I therefore find that their contributions during cohabitation were equal, save that the Husband made the additional contribution of his inheritance of approximately $28,000.
It is clear that contributions to the welfare of the family do not necessarily stop just because the parties to a marriage separate - see the High Court decision in Williams and Williams (1985) FLC 91-628. In this case, it is quite clear that the Wife continued to support the family after the parties separated, with minimal financial support from the Husband. It is also clear that she had quite a battle to obtain any support from him. In those circumstances, I find that the Wife's post-separation contributions are equal to those that the Husband contributed by way of his inheritance, and therefore, I find that overall their contributions are equal.
Section 75(2) factors
The Husband is aged fifty four years and the Wife is aged nearly fifty years. I have no medical evidence in relation to either party’s state of health, however, the Wife’s counsel conceded that while both parties have medical complaints, neither affects their capacity to work.
Neither party currently has the care or control of a child under the age of 18 years.
Although the Husband has remarried, it is difficult to know whether he is financially supporting his new wife or not. Having heard the spousal maintenance application in this matter, I am aware that in July 2001 his wife was working and receiving an adequate income. I commented at that time that she appeared not to be contributing sufficiently to their joint expenses. In his latest Financial Statement, the Husband discloses neither income nor expenses for her, so I must assume that he intended her to be “revenue neutral” for the purposes of these proceedings.
The marriage in this matter lasted for nearly twenty-seven years. During that period the Wife has foregone employment in order to look after the children of the marriage.
In H & H (referred to above) Bryant CFM (as she then was) also said: “In some senses the smaller the asset pool the more critical the adjustment for other factors beyond contribution may be.” That most certainly applies in this case because the net value of the asset pool, excluding superannuation, is a negative factor of more than $23,000.
The Husband’s income is approximately $60,000 per annum, which is approximately twice that of the Wife.
The orders sought
The Wife is seeking an adjustment of the 10% in her favour because of the Section 75(2) factors and therefore the figure sought in relation to a “superannuation split” is said to be sixty per cent of the value of the Husband’s superannuation.
The Husband is closer to a potential retirement date than the Wife, but he has a better capacity to increase the value of his superannuation than she does. Although the Wife is approximately five years away from a potential retirement date, on her current income she has very little available to contribute towards her future retirement.
In my view, the Wife’s claim for sixty per cent of the Husband’s superannuation can be seen as being generous to him. However, that is what she is seeking, so I will make a splitting order in relation to the Husband’s superannuation setting a base amount for the Wife of $127,000 (which involves small rounding upwards to the nearest one thousand dollars).
The Wife also seeks an order that the Husband do whatever is necessary to enable the sum to be paid to the Wife as a lump sum. I do not think that I can make such an order. The splitting order will have the effect of creating a new superannuation interest for the Wife, so she will need to provide instructions to the fund trustee about how she wishes to deal with that interest.
The operative time for the splitting order to take effect should be four days after the Order is served upon the trustee of the Husband’s superannuation fund. That will enable the trustee to make the appropriate administrative arrangements.
It is appropriate to make an order that the Husband transfer his interest in the Wife’s vehicle to her. Similarly, it is appropriate to make an order that the Wife transfer her interest in the motor vehicles in the Husband’s possession to him.
The Wife also seeks an order that all monies payable by the Husband pursuant to any order of this Court be secured against his entitlements in his superannuation fund or in such other manner as the Court considers appropriate. The order sought clearly relates to the Husband’s failure to comply with numerous orders for the payment of sums of money. In this regard, the Husband had not complied with orders for the payment of spousal maintenance and costs and at the time of the hearing the unpaid amounts exceeded $27,000.
While the Wife’s wish to tie the payment of those outstanding sums of money to the Husband’s superannuation interest may be understandable, I do not believe that it is appropriate that such an order be made (even if I had the power to do so). These proceedings were for property settlement. They were not enforcement proceedings. The Wife has a number of avenues open to her to seek enforcement of earlier orders if she wishes to do so. I am therefore not prepared to make an order of the type that she seeks. Further, I have some doubts that I have the power to make an order that requires payment from the Husband’s remaining superannuation interest.
The Wife is also seeks an order that the Husband pay her costs of and incidental to these proceedings and the Husband seeks an order that the parties be responsible for their own costs. I shall adjourn the hearing of those applications until after the parties have had an opportunity to consider this decision. My next sittings in Hobart commence on
6th June 2005 so I will adjourn the costs application for mention in my list at 10.00 a.m. on that day.
The Husband is seeking an injunction to restrain the Wife from approaching or contacting him. However, there is an onus on any person seeking an injunction to convince the Court that such an injunction is necessary – see Sieling and Sieling (1979) FLC 90-627 and Blueseas Investments v Mitchell & McGillivray (1999) FLC 92-856. The Husband has failed to convince me that such an injunction is necessary because there was no evidence before me to justify it.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
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