F and F
[2002] FMCAfam 256
•15 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & F | [2002] FMCA fam 256 |
| FAMILY LAW – Parenting orders in relation to contact – Property settlement in relation to marriage and consideration given to both financial and non-financial contributions – Spousal maintenance payable to the wife. Family Law Act 1975 (Cth), ss.75, 75(2), 79, 79(4)(a) to (c) Lee Steere and Lee Steere (1985) FLC 91-626; |
| Applicant: | T L F |
| Respondent: | T P F |
| File No: | (P)MLM4255 of 2002 |
| Delivered on: | 15 August 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 31 July, 2 August 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr A Combes |
| Solicitors for the Applicant: | NM Mantello & Associates |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: |
ORDERS
PROPERTY ORDERS
IT IS ORDERED THAT:
On or before 30 September 2002 the husband pay to the wife the following sums:
(a)$49,960;
(b)$2100;
(c)$800
being a total of $52,860 (“the payment”).
Upon payment to the wife of the payment the wife do all things necessary to withdraw at her expense any caveat lodged by her over the former matrimonial home at 158 F L, M, N S W being the land in CT folio identified, the former matrimonial home.
Except as otherwise specified in these orders:
(a)any interest of the husband in and to any property in the name of or possession of or under control of the wife vest in the wife absolutely;
(b)any interest of the wife in any property in the name of or possession of or under the control of the husband vest in the husband absolutely;
(c)each party retain insurance policies and superannuation policies in their respective possession;
(d)each party pay and indemnify the other in respect of any liability that may arise in relation to any item of property that vests in him or her pursuant to these orders.
The wife deliver up to the husband contemporaneously with the payment a painting to be agreed between the parties, but not “The Hayshed Next To The Pond”, “The Gumtree” or “Frog's Hollow”.
The husband indemnify the wife against:
(a)any taxation liability incurred during the course of the marriage;
(b)any liability she may have to him arising from any action or proceedings arising out of the deed of indemnity and also the deed acknowledging debt between the husband and wife dated 24 September 1991.
There be liberty to apply in the event that the parties are unable to agree upon the painting to be provided to the husband.
The husband indemnify the wife against all liabilities in relation to the former matrimonial home, including any liability in relation to the mortgage registered there on.
In the event that the payment is not made to the wife on or before the due date for payment:
(a)the husband do all things and execute all documents necessary to transfer his interest in the property to the wife as trustee for sale to sell the property by public auction or private treaty and to disperse the proceeds as follows:
(b)in payment of costs and expenses of sale;
(c)in payment of any existing registered encumbrances;
(d)in payment of 60 per cent of the balance then remaining to the wife, plus the sum of $2900;
(e)in payment of the balance remaining to the husband.
There be liberty to apply to the parties in relation to the terms and conditions of sale.
In the event of a sale, pursuant to section 106A of the Family Law Act, the Registrar of the Federal Magistrates Court be empowered to sign any documents on behalf of the husband pursuant to these orders in the event that the husband fails or refuses to do so.
In the event that the payment is made to the wife but later than the due date for payment interest is to be paid by the husband to the wife at the rate applicable from time to time in the Family Law Rules.
The husband sign all documents and do all things necessary to transfer to the wife the trust account in relation to the child B.
SPOUSAL MAINTENANCE ORDERS
IT IS ORDERED THAT:
The husband pay to the wife spousal maintenance in the sum of $118 per week.
PARENTING ORDERS
IT IS ORDERED THAT:
The parties have joint responsibility for the long-term care, welfare and development of the children B L F born 16 October 1989 and T A F born 6 December 1990 (‘the children”).
The children live with the wife and the wife have the sole responsibility for the day-to-day care, welfare and development of the children.
The husband have contact with the said children as agreed between the parties from time to time.
The applications otherwise be dismissed.
IT IS DIRECTED THAT:
The Applications be removed from the list of cases awaiting finalisation.
All subpoenaed documents be returned to the party tendering such documents at the expiration of 30 days from the date of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
(P)MLM 4255 of 2001
| T L F |
Applicant
And
| T P F |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns applications by the parties in relation to parenting orders concerning their two children B L F, born 16 October 1989, aged nearly 13, and T A F, born 6 December 1990, aged 11 and a half, and issues relating to settlement of property. There was never any dispute between the parties that the children should live with the wife. The matter of contention between them in relation to parenting orders was the husband's contact. Whilst the husband sought precise orders in relation to contact which would provide for the children to spend half of the school holidays with him, the wife sought an order that the husband have contact with the children as agreed between the parties from time to time.
It emerged during the hearing that there was no real issue about the children's contact with their father, save that there had been some problem between the children and their father and that contact had not taken place for some time and needed to be reintroduced. The wife thought that the husband should take the first step to communicate with the children as a prelude to reintroduction of contact, but this did not seem to have taken place. At the conclusion of the hearing I made orders that the parties attend confidential counselling in order to assist them in arranging for the reintroduction of the husband's contact with the children. In light of this, the husband did not press for specific orders sought in his application.
Subject to the issues regarding this narrow dispute between them, the hearing concerned the competing applications of the parties for property settlement. A minute of proposed orders was handed up by the wife's counsel at the commencement of the case setting out the orders sought by the wife which are as follows:
“That the husband do all acts and things and sign all documents as necessary, including transfer of land, to effect a transfer of the former matrimonial home situated and known as 158 Forest Lane, Millingandi, M to the wife at her expense.
The wife indemnify the husband against all payments and liabilities with respect to the mortgage over the property and the husband vacate the property forthwith.
The husband retain otherwise all employment benefits, superannuation and chattels in his possession, control or ownership, including those in the former matrimonial home, and the wife retain all chattels and personal possessions already taken by her.
The husband do all acts and things necessary to transfer to the wife at the wife's expense MLC trust account for the child B Louise Flint.”
The wife further sought orders that the husband pay to her the sum of $2100 on or before 7 August with interest and her costs on an indemnity basis.
The wife does not wish to retain the M property. In fact, what she wishes is to be paid out the value of the property and proposes that if the orders were made she would in fact sell the property to produce the funds. The order she seeks is based on a contention that it is likely the husband will destroy or damage the property rather than making any payment to the wife and that therefore the property should be transferred to the wife so that she can conduct a sale, and presumably in the meantime, protect the asset.
The husband's response filed on 10 April 2002 sought the following orders:
“(1) That the husband be responsible for all bills and accounts left outstanding at the date of separation and indemnify the wife in relation to any liability for these listed debts.
(2) That each party retain items in their respective possession or control.
(3) That the Laurence Kermond painting of Frog's Hollow Bega removed from the home at the time of separation be held on trust for the children.
(4) That the wife transfer to the husband her expense, all her interests and certain items of furniture and chattels.
(5) That within 28 days of the orders the wife remove a caveat lodged by her over the property.
(6) That the husband release the wife from the debt under acknowledgment made 24 September 1991 in the amount including interest of $17,916.”
At the conclusion of the hearing the husband proposed in addition to those orders that he pay the wife one half of the net value of the assets of the parties.
Background
The husband is 48 years of age and was born on 3 March 1954. The wife is 33 and was born on 28 September 1968. The parties commenced living together in approximately October 1987 and were married on 24 March 1989 in M. They separated on 27 July 2000 under the one roof and in November 2000 the wife left the former matrimonial home and moved to Melbourne with the children. The children have lived with the wife in Melbourne since separation. There have been some difficulties with contact which has meant that the husband has had reasonably limited contact with the children since separation.
In September 2000 the wife obtained an interim apprehended violence order in Bega New South Wales. The final hearing date of this application was December 2000. At that point the husband was living in Melbourne and the wife was living with the children in the former matrimonial home. As the property is situated on a hundred acres outside M and is isolated, the wife became frightened after an argument in which the husband threatened to return to the home. She left the home with the children without much warning to the husband and moved to Melbourne. Some weeks passed before the husband was aware that the wife had in fact vacated the property and subsequently he moved back and has lived there ever since. The wife subsequently found suitable accommodation for herself, the children and her 80 year old grandfather who was living with her in M and for whom she cares.
Because there are costs issues to be determined, the conduct of the husband in relation to the early part of the proceedings became relevant. On 9 January 2002 the wife arranged for service upon the husband of an application, affidavit in support and financial statement. The return date of that application was 8 February 2002. The husband failed to attend court on that date, but faxed the court a letter denying service of the documents and contradicting the affidavit of service which had been filed. Despite the husband's non-appearance on that day Registrar FitzGibbon in the Family Court of Australia made interim orders in relation to the children and required the husband to provide a financial statement within 14 days and to provide details of his superannuation.
Orders were also made in relation to a valuation of the former matrimonial home and for the husband to deliver the children's passports. An injunction was granted restraining him from dealing with B's trust fund. The matter was referred to Frederico J who confirmed the orders and reserved the wife's costs of the day which he fixed at $800. The matter was then adjourned to 5 April. On that day the husband failed to deliver the children's passports and further orders were made in relation to him filing documents. Costs were again reserved and the matter transferred to the Federal Magistrates Court on 9 April 2002.
The matter came on on 9 April 2002 in the Federal Magistrates Court having been transferred by the Family Court of Australia and the parties were ordered to attend a conciliation conference on 1 July and the hearing of the wife's spousal maintenance application was adjourned to 19 April. On 19 April the spousal maintenance application by the wife was heard by me and I ordered that the husband pay to the wife interim spousal maintenance of $118 per week commencing on
26 April. The matter was listed for hearing and there was a costs order made in favour of the wife in the sum of $2100 which was to be paid to her should there be any asset pool distribution from that pool.
For most of the marriage the husband has earned his living as a commercial diver working in Australia and overseas. At times he was earning a relatively high income. In about August or September 2000 the husband had an accident and injured his leg. This required surgery and he is currently receiving WorkCover Victoria weekly payments of approximately $950 per week which will cease when his injury recovers. His current diving licence certificates have lapsed. On
24 September 1991 the husband and wife executed an agreement whereby the wife acknowledged her indebtedness to the husband in the sum of $9500 and agreed to pay that sum to him before 19 August 1993. The document also acknowledged that the funds were free of interest for a period up to 19 August 1993.
It is common ground that no moneys were paid under this agreement. On about 31 October 2001 the husband provided to the wife in writing a notice of demand in relation to the principal and interest. He has commenced proceedings in the local court at Bega for recovery of this sum. As part of the orders sought by him, he proposes to discontinue the proceedings and forgive the wife's indebtedness which he asserts is now in excess of $17,000 with interest, but says that should be taken into account in the proceedings as a contribution by him.
The law
The approach to the determination of an application under section 79 of the Family Law Act is well established by authority (Lee Steere and Lee Steere (1985) FLC 91-626, Ferraro (1993) FLC 92-33, Clauscen (1995) FLC 92-595). The process involves a multiple part-procedure; first, identifying 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). Thirdly, evaluating the matters contained in section 75(2) insofar as they are relevant. Finally, in determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [section 79(2)] Russell and Russell (1999) FLC92-877.
Assets, liabilities and financial resources at the time of the hearing
The parties agreed on the value of the following assets:
a)the former matrimonial home at F R, M, M, N S W with a value of $165,000. The property has a mortgage, the balance of which is $91,500 leaving a net equity of $73,500;
b)shares owned by the husband with a value of $2000;
c)the parties agree they had the following financial resources:
i)an MLC trust fund for B which had $2824 at separation;
ii)the husband's superannuation of $33,904.
The parties have the following assets, the value of which is in dispute:
a)the husband has tools and scuba equipment which he values at $9500. Although the wife originally valued these items at $15,000 she conceded in cross-examination that they had a value of $9,500;
b)the husband had a Harley Davidson motorcycle and a number of motorcycle parts.
The husband says that the parts have a value of about $700 and he paid this sum for them before the parties met. The wife said he was offered $5000 for them. Neither party had any evidence to support their contentions. The husband asserted that his Harley Davidson was worth about $4000 and the wife said it was worth about $18,000. The wife had some figures for the value of motorcycles, but they appeared to be new motorcycles rather than motorcycles of the age or quality of the husband's. The husband said in opening that the value of his bike and the parts was about $5800. Having regard to the evidence, I find it is more likely that the husband's estimate of value is more accurate than that of the wife.
The wife has a Subaru station wagon 1990 model which has done approximately 180,000 kilometres. She valued the vehicle at about $3000 and produced evidence that there is in excess of $3000 in repairs to be paid which would give the vehicle a nil equity. The husband asserted that the vehicle had a value much higher of between $18,000 and $20,000. Again, neither party produced valuations. Again, having regard to the evidence given by the parties, I find it is more likely that the wife's assessment of the value of the car is accurate. As there are considerable repairs to be done on the car, I find the car to have no value.
There was an issue between the parties as to the furniture and chattels in their respective possession. Again, neither party had obtained any valuation. The wife was cross-examined by the husband at some length about the assets she had in her possession and what she left behind. It appears that she left items behind in the house which the husband did not necessarily find when he returned. Given that neither party produced a valuation, and after hearing the evidence, I am unable to make a finding as to the value of the chattels in the possession of each party. However, the evidence given by the parties leads me to the view that I should leave each party with the furniture and chattels in their possession and not otherwise take the furniture and chattels into account when assessing the pool of assets for division.
Accordingly, I find the net property pool which I must take into account in these proceedings to be as follows:
| Former matrimonial home | 165,000.00 |
| Less mortgage | 91,500.00 |
| Net equity | 73,500.00 |
| Husband’s shares | 2,000.00 |
| Husband’s tools and SCUBA equipment | 9,500.00 |
| Harley Davidson Motor Cycle and parts | 5,800.00 |
| Wife’s motor vehicle | Nil |
| Total | $90,800.00 |
| Less Husband’s tax liability | 7,533.00 |
| NET TOTAL | $83,267.00 |
At the present time the husband has liability for income tax to the Australian Taxation Office of $7533. This liability pertains to the year 1999 and 2000 which is the last year of the parties' cohabitation. It is unpaid tax for which in effect both parties had the benefit as it was not paid when they were living together. It should be taken into account, therefore, as a liability. Thus, the net assets of the parties will be $83,267.
I propose to consider the evidence given by the parties under the headings which I must now consider. First, contributions in accordance with section 79(4)(a) to (c) of the Family Law Act and then dealing with the matters set out in section 75(2).
Financial contributions
At the commencement of cohabitation the husband had real estate, cash and other assets. He owned two blocks of land in S P and one in M. I accept the husband's evidence that in total they were ultimately sold for about $170,000. This was not really contested by the wife. I also find that the husband brought in the proceeds of a personal injury claim against his company for whom he worked in the United States of $US195,937 or $A276,000. When it finally came in, which was after the parties were married, part of this sum meant that the husband did not have to work for a period of about six years between 1992 and 1998.
To this extent, it could be said that the wife had made some contribution in the sense that it could be said that part of that sum related to future earnings. However, it is clear in my view that the sum should be regarded largely as a significant financial contribution by the husband. In addition to the real estate he had at the commencement of cohabitation, the husband had furniture said to be worth $20,000, cash investments said to be worth $18,500, a motor vehicle said to be worth $26,000, diving equipment said to be worth $10,000, a boat said to be worth $7200 and life insurance and superannuation. In respect of the last items, the husband provided some evidence shortly before I gave judgment which was agreed, that they had a value of $16,200.
The wife did not concede the value of the assets brought in by the husband, other than to the extent to which I have indicated. But she did agree they had been owned by the husband at the date of cohabitation. Apart from the life insurance policy and superannuation, there was no corroboration of the figures, but I find that the husband brought into the marriage, in addition to the real estate, cash, car and a boat, furniture and diving equipment and the value of the superannuation and endowment policies of approximately $16,200.
The total value of the Husband’s injury claim and the real estate which the husband brought into the marriage, was in excess of $450,000 and there was, in addition the other assets to which I have referred.
During the marriage, in addition to his earnings as a commercial diver, the husband contributed the following:
a)at the end of June 1996 compensation moneys received for compensation for an assault of $12,566;
b)in 1997 negotiations with the S E C resulted in compensation of $15,000 being received by the parties;
c)in 1998 part of the husband's superannuation was cashed in to produce $15,817;
d)in 1999 there was further superannuation cashed in of $11,433 and $4620.
Although the husband sought that these payments be taken into account as contributions by him, I regard these contributions as in a different category to the contributions made by the husband at the outset of the marriage as these contributions occurred during the marriage when contributions to the welfare of the family as well as financial contributions were being made by the wife. During the marriage the wife inherited approximately $93,000 from her mother's estate and approximately $5000 from her grandmother's estate. These funds were contributed to the marriage and used generally for the benefit of the parties and the children.
The family originally lived in a house owned by the husband in M. In 1994 they sold that property and using the sale proceeds, plus the money the husband had received from his claim in the United States, they purchased 100 acres of land at M and built a house with a pool and workshop. This property is the former matrimonial home. The parties lived in it from the time of its construction. The parties also did improvements, put in tanks, put in a dam, underground power, landscaping and fencing. At some stage they borrowed $60,000 towards some of these expenses and a bit later increased the mortgage by a payment of another $30,000. The wife's inheritance was not used for the purchase of the property. It came in shortly afterwards and was mingled with the parties' funds, as were the husband's, and were used ultimately for the benefit of the parties and the children.
Other financial contributions
In 1991 the wife and children moved out of the former matrimonial home at M and the parties were separated for a time. The wife left furniture behind, but needed to acquire things for herself and the children. She used joint funds and the parties came to an agreement that this would be treated as a loan. The wife said that the loan was for $3500, but admitted that the acknowledgment of debt signed by her referred to a figure of $9500. Interest was payable after August 1993. No payments have ever been made by the wife pursuant to this agreement.
When the parties reconciled the wife moved back to the former matrimonial home and brought the furniture that she had acquired with the funds with her. Nothing further happened about the acknowledgment until after separation when the husband served a notice of demand on or about 30 October 2001 demanding payment of the principal and interest, a sum in excess of $17,000. The husband has commenced proceedings in the local court at Bega in relation to this debt. There was a dispute between the parties as to whether it was in response to the wife's application, whether it preceded her application or not. In my view, it was clearly in response to the separation and the perceived likelihood, if not the actual commencement of property proceedings by the wife. However, the husband says that he will now withdraw those proceedings.
To the extent that he argues that the $17,000 is a contribution by him, I do not accept that argument. The money came from joint funds and was used for the purpose of the family during separation and the assets acquired with it were returned to the family. I note the husband's indication that he will discontinue the proceedings and I propose to make orders which will protect the wife in the event that that judgment is obtained.
After separation the wife had no income and was unable to pay outstanding bills. The parties agreed that the amount paid by the husband in respect of joint liabilities was $34,900 after their separation. The funds used by the husband to pay the bills came from a lump sum received by the husband from WorkCover Victoria representing arrears from the time of his accident. These funds would have come into the family for its use had the parties been together. I do not regard those funds as exclusively the husband's. Thus I do not regard the payment of joint liabilities after separation from those funds as being a contribution by the husband alone.
During the marriage the husband worked as a commercial diver in Australia and overseas. There were, however, significant periods during the marriage when he was not working and the parties were living off capital. The wife's role was predominantly to look after the children. She worked as a hairdresser for three and a half years, including working in Dubai when the parties were living there. She has also worked from time to time during the marriage as a waitress and had a job cleaning a local hotel and in a wildlife park.
Non-financial contributions
The wife's primarily role was as homemaker and parent. The husband did not work for a period of about six years and during this time he contributed significantly to the care of the children. However, throughout the marriage, looking at it overall, the wife was the primary caregiver and her task was made harder when the husband was absent from the home working out of Australia. Since separation she has virtually been the sole contributor to the welfare of the children as they have had little contact with the husband. This is a significant contribution made by her and will continue to be so. Hopefully the husband will have contact with the children and they will resume an arrangement of regular contact. However, because of the distance between them the wife will continue to remain predominantly responsible for their care.
The wife asserted, and the husband, to his credit, conceded that he had been physically violent to the wife during the marriage and he expressed regret for this. He asserted there was violence by the wife, although it was mainly verbal. Like many marriages, there were incidents between the parties which caused mental wounds which have not entirely healed. These incidents seem to have been the catalyst for some violent exchanges between the parties. The wife asserts the husband had a bad temper which meant that she was likely to be subject to outbursts at other times.
I accept that the wife finally left the former marriage home with the children in fear of the husband, and around the time of separation the husband appears to have reacted angrily to the separation and the subsequent proceedings. During these proceedings, however, the parties appeared to want to approach their communications in the future more cooperatively.
In Kennon v Kennon (1997) FLC 92-757 the Full Court of the Family Court of Australia dealt with the issue of how violence during the marriage is to be taken into account under section 79, if relevant. In a joint judgment Fogarty and Lindenmayer JJ stated the relevant principles as follows:
“Where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon the parties' contributions to the marriage or, put the other way, to have made his or her contribution significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within section 79.”
In Doherty v Doherty reported in (1996) FLC 92-652 Baker J, as he then was, with whom Fogarty and Hannon JJ agreed, said:
“On page 26 the trial judge made reference to the appellant's drinking habits and to domestic violence and aggression which he exhibited towards the respondent and the children, particularly to S. Although the trial judge did no more than record these events, it is clear from his findings that the wife's contribution as homemaker and parent may have been increased as a result thereof. Although the domestic violence complained of related to a relatively small period of time at the end of the marriage, nevertheless his Honour would, in my opinion, have been entitled to have found that because of the appellant's conduct the respondent's contribution as a homemaker was increased and the appellant's similar contribution diminished as a consequence leading to the overall weighting based upon contribution in favour of the wife being increased, albeit only slightly having regard to the facts of this case.”
I am satisfied that there was violence by the husband to the wife and this caused the wife anxiety and made her contributions more arduous. This factor must be given weight when I consider the other factors relating to contribution.
My conclusion, having considered the various contributions of the parties, is that the assets should be divided on contribution basis as to 60 per cent to the husband and 40 per cent to the wife. This sum reflects the husband's significant financial contributions from his pre-marriage assets, including his personal injury claim. It also reflects the contributions made by the wife, both financially and non-financially to which I have referred, including the care of the children since separation. The contributions of the wife during the marriage have to some extent eroded the husband's initial contribution, however, his initial contribution was so great that it must be reflected in a greater proportion of the assets at this point Pierce v Pierce (1999) FLC 92-844 and Quaresimi v Quaresimi (1999) FamCA 1314.
Factors under section 75(2)
The wife is 33. She has no qualifications or particular skills. She is at present working 10 to 12 hours per week as a waitress in a Chinese restaurant. With her obligations to care for the children it is unlikely that she will be able to do much more work than she is presently doing until the children have completed their secondary schooling, otherwise the wife receives a pension, including a carer's allowance for her grandfather, and $118 per week maintenance pursuant to orders made in April. The husband has previously been qualified as and earned his living as a commercial diver. As a result of the injury sustained to him, he is presently in receipt of WorkCover payments.
He hopes to re-enter the workforce once his injury has settled, but believes that it is unlikely that he will return to work in the diving industry. WorkCover would like him to retrain if he cannot continue diving. His current payments will continue until he retrains or obtains employment, but his future earning capacity is somewhat unknown at this stage. The husband has superannuation of approximately $34,000. This is not of itself a large sum, but taken in the context of the net assets of these parties, it represents approximately 40 per cent and to that extent becomes significant.
In the normal course the husband would not be able to access this sum until he retires and reaches an age when he is entitled to the funds. That may depend to some extent upon what employment he ultimately has. If he is unable to return to employment, he may be able to access his funds at an earlier stage. Whilst I take into account the significance of the superannuation in relation to the asset pool, I also take into account that the husband had some superannuation at the commencement of the relationship and that he will not be able to access it for some time into the future.
The question of whether the application should be adjourned to await the implementation of the superannuation legislation at the end of this year, which will enable superannuation funds to be split, was canvassed, but the wife indicated, and I accept, that her needs are present needs and that justice and equity could be better done by adjusting the assets that the parties at present have rather than adjourning the matter so that the wife could receive a portion of the superannuation at some later stage.
The wife is responsible for the care of the two children and although the husband will hopefully have increased contact with them, the fact that he is living in M and the wife and children are in Melbourne will mean that his contact of necessity will be limited to holidays. Thus, the wife has the major responsibility for the care of the children and this, in my view, is a significant factor in this case.
The husband has been paying child support pursuant to an assessment by the Child Support Agency. At the commencement of the hearing the wife's counsel indicated that the husband was significantly in arrears, although the husband was of the belief that he was up to date with payments. It transpired that the agency have reassessed the husband based on a previous year's income and that the husband had been unaware of the reassessment which had caused the arrears to have arisen. There is no application before me in relation to child support and the husband is presently making arrangements with the agency and will resolve with them the assessment which he has received from them. If there has been income which has been improperly taken into account, as far as the husband is concerned, these matters will be sorted out with the agency.
Having regard to the matters in section 75(2) to which I have referred, I am satisfied that there should be a significant adjustment in favour of the wife in respect of these matters. That adjustment should be 20 per cent in favour of the wife. That would result in a final position where the net assets of the parties should be divided as to 60 per cent to the wife and 40 per cent to the husband. I have taken into account in the matter under section 75(2)(o) in these proceedings the fact that the wife has been legally represented and the husband has appeared for himself, at least in relation to the hearing, if not other parts of the proceedings. He also represented himself in the maintenance proceedings.
There are some cases in which payment of costs has been met out of assets and added back to the asset pool. That is not the case here. However, I have regard to the fact that the wife has incurred expense in being represented which, in my view, was entirely appropriate, where the husband has not incurred that expense.
Finally, I am required to consider whether the orders that will flow from the percentages which I have found are just and equitable. I take account of the fact that the asset pool is relatively modest and that neither party will come out of these proceedings with a large sum of money. The result is that the wife will receive a payment of $49,960 from the net assets and the husband the balance. Having regard to the overall position and the relatively modest asset pool, in my view, the orders are just and equitable.
The wife indicated in the orders sought by her that she wanted the property transferred to her for the purpose of affecting a sale. The basis of that application was what she asserted to be threats by the husband to damage the property. I am satisfied from her evidence that threats which could be construed in this way were made by the husband, but I am equally satisfied on the evidence that the comments were made in the heat of the moment and that he did not intend to carry them out. The husband's evidence was that he believes that he can raise funds necessary to pay the wife and that he would like the opportunity to do so. His evidence was that through a friend he believes that he can raise funds by doing some sort of a joint venture and ultimately when his employment position is sorted out he will be able to make other financial arrangements. I propose to give him the opportunity to do so, but to make orders for sale of the property in default of payment.
Costs
There are costs to be paid to the wife of $2100 which arise from the orders relating to the maintenance application which are to come from the sale proceeds. There were further costs which were fixed by Frederico J and reserved. These costs relate to the attendance on the first court date when the husband did not appear. I have read all of the material which relates to the original service documents and I am satisfied that the husband was aware of the proceedings on that day and effectively chose not to take part. I am also satisfied that there was at least one day which would not have been necessitated had that attitude not been taken. In my view, it is appropriate that the $800 costs be paid by the husband.
Paintings
There was an issue between the parties regarding painting, although orders were not formally sought by either party. Nevertheless, I propose to deal with this matter. The parties have a number of paintings which come from the wife's grandparents and some of which her grandfather L K was the artist. In my view, it is not particularly relevant whether or not the paintings were left to the wife in her grandmother's will. What is more relevant, in my view, is that they were painted by a member of her family. However, I also take into account that some of the paintings were purchased and that joint moneys were used for their purchase. There was an issue over some of the paintings. It is appropriate, in my view, for the husband to have one of the paintings, but not “The Hayshed Next To The Pond” or “The Gumtree” or “Frog's Hollow”, but one of the other paintings and the parties will need to determine which painting that should be. The husband will retain the paintings in his possession.
Maintenance
An order for maintenance was made in April for the husband to pay $118 per week to the wife. Those orders were pending disposal of the proceedings. However, there was in fact virtually a concession by the husband that the wife, as I had previously found, is unable to support herself without the provision of maintenance and that maintenance should continue. In my view, it is appropriate for a maintenance order to continue for the reasons that I previously gave. I am satisfied, at least at the moment, of the husband's capacity to pay. There will no doubt be changes to the husband's position in the future once his prospects of employment or otherwise are determined. Maintenance is always variable and it is available to either party to apply if circumstances change.
The remaining issue then relates to the trust fund for B which was set up by the parties. The wife seeks that this fund be transferred to her. As the children are living with her and she is predominantly responsible for their welfare and support, it is in my view, appropriate that this fund should be transferred to her so that she can use it for B'S education.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Mardi Jarvis
Date: 4 September 2002
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