F and F
[2002] FMCAfam 158
•19 April 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & F | [2002] FMCAfam 158 |
| PROPERTY SETTLEMENT – Contributions – ss.79 & 75(2) Family Law Act. |
Ferraro & Ferraro 16 FLR 1
| Applicant: | M F F |
| Respondent: | E M A F |
| File No: | ZB6641 of 2001 |
| Delivered on: | 19 April 2002 |
| Delivered at: | Brisbane |
| Hearing Date: | 17 April 2002 |
| Judgment of: | Rimmer FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Carew of Counsel |
| Solicitors for the Applicant: | Janet Terry, Barrister and Solicitor of Darwin |
| Counsel for the Respondent: | Mr Read of Counsel |
| Solicitors for the Respondent: | Hartley Family Law Services, Solicitors of Brisbane |
ORDERS
That within 28 days of the date of these orders the WIFE is to pay to the HUSBAND the sum of $44,253.00.
That upon the receipt of such funds the HUSBAND is to transfer the whole of his right, title and interest in and to 54 B Street, C, being Lot on Registered Plan , County of S, Parish of M being the whole of the land comprised in Certificate of Title and the WIFE shall indemnify the HUSBAND from any liability with respect to all rates, taxes, loans and outgoings in respect of the said property.
That within 28 days of the date hereof, the WIFE transfer to the HUSBAND all her right title and interest in and to all shares held in the joint names of the parties with AMP.
That unless otherwise specified in these orders and except for the purposes of enforcement that each party be solely entitled to the exclusion of the other party, all right, title and interest to any assets including, chattels, bank accounts and superannuation which is currently in the possession of such party at the date of this order.
That in default of the payment of the amount provided for in Order (1) of these orders that the former matrimonial home be sold for the best price obtainable and that after payment of the costs of the sale, any outstanding rates and taxes on the property, the sum of $76,266.00 to Mr NPB, the sum of $44,253.00 to the HUSBAND with the balance of the proceeds to be paid to the WIFE.
FEDERAL MAGISTRATES |
ZB6641 of 2001
| M F F |
Applicant
And
| E M A F |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing applications between the husband and the wife for the division of their matrimonial property pursuant to the provisions of ss.79 and 75(2) of the Family Law Act. These reasons for judgment are delivered ex tempore following the hearing.
In this matter the husband was born on 28 November 1942. The wife was born on 28 December 1954. This is a long marriage between the parties. They married on 2 September 1972 and separated on 3 November 1995.
The parties had two children of their marriage, NF, born on 21 August 1973 and DEF, born 22 March 1980. Both children are now adults.
The history in relation to the purchase and sale of their property is not covered in these reasons in great detail in these reasons because, effectively, the parties agree that during this long marriage they made equal contribution to the point of separation. However, the two major assets which remain in dispute are the matrimonial home, situated at 54 B Street, C, which the parties purchased by way of a block of land in 1976, and the husband as owner/builder then built the property.
The second major asset is a business which the respondent purchased and operates, known as "TB’s". She purchased that not long before separation in 1993.
In 1997 the applicant, who had been living in the matrimonial home from the date of separation on 3 November 1995, moved to reside in Darwin and the wife then took up occupation of the home at 54 B Street, C and has remained residing there until the present time.
On 22 March 2000 a decree nisi was granted and that became absolute on 10 April in the same year.
The applicant husband filed his application seeking orders for property settlement, together with his financial statement, on 4 April 2001. The husband relies upon his application and financial statement, answered by him, to the specific questions asked by the wife and affidavits with respect to some other witnesses who were not cross-examined. The husband also filed, by leave, an updated financial statement that was relied upon. The husband gave oral evidence and was cross-examined.
The wife relies upon her response which was filed on 28 May 2001. Her answers to specific questions filed on 14 December 2001 and amended financial statement filed 5 April 2002, and then affidavits both of herself and other supporting witnesses filed on 5 April 2002, an affidavit by NAF filed 9 April 2002 and a further affidavit by a Miss C, accountant, filed on 9 April 2002. The wife gave oral evidence and was cross-examined, as were two of her witnesses, NPB and CJB.
The issues that were in dispute between these parties can be identified and affect, in the main, two areas:
a)the nett asset pool available for division, and;
b)the contributions which the parties have made, either in a positive or negative sense, since they separated.
Given the parties separated in 1995, and this matter is being heard some seven years later, there was a great deal of evidence and emphasis put on things that have occurred since separation.
The issues
I have identified the issues as follows:
(a)The contributions which either party made to the assets and the needs of the family in either a positive or negative sense since separation, with particular reference to the diligence with which each party pursued the attention that they gave to the businesses, which each of them were operating at the time of separation.
(b)The issue of how this Court should treat loans which were provided to the wife by Mr NB, firstly, with respect to repayment of the Commonwealth Bank of Australia loan which was the mortgage outstanding on the matrimonial property as at March 1998, and a loan which was provided, it is alleged by the wife and disputed by the husband, in the sum of $30,000 by Mr B, for the wife to purchase and start up the business, "TB’s";
(c)the improvements which the wife made and paid for to the matrimonial home;
(d)the repayments which the husband made to principal and interest, on the mortgage during the period of his occupation as opposed to those made by the wife, or those not made by the wife under the loan to Mr B during the period of her occupation.
The second issue was clearly identified as:
e)the problem, which both parties agree exists, in relation to structural problems with the matrimonial home caused by subsidence to the property as a result of difficulties with the soil upon which the property is constructed. The issue arose as to whether or not the wife should, in essence, bear the costs in the difference between the two quotations to fix problems because, as the husband alleges, she did not undertake remedial action as identified by the engineer at the time of provision of the first quote or whether, as the wife says, the matter is so unclear as to the evidence of how to calculate any problems which may have contributed more greatly to the costs to repair the structural damage to the property between the period of the first and second quote;
f)whether or not the husband's superannuation, all of it or any part of it, should be found by the Court to form part of the nett asset pool for division. It is the wife's contention that the entirety of that amount, $62,000, should now form part of the nett asset pool for division between the parties given that the husband has reached the minimum retirement age and is clearly, as he has demonstrated, able to obtain immediate benefit by way of payment of all of the superannuation or whether as the husband contends, the moneys which he has already taken be left out; and
g)the value of the furniture which has been retained by the wife, the wife estimating it at $2000 and the husband at $4000.
In essence, there were areas of agreement between the parties and for completeness, I propose to identify those areas of agreement with respect to those matters which is required by the Court to determine in an overall property division. Those were that contributions made by each of these parties in their long marriage, from the date of their marriage to the date of their separation, should be assessed by the Court as equal. Secondly, in these particular facts and circumstances of this matter, that there should be no adjustment made pursuant to the provisions of s 75(2).
The orders sought by each party
In essence, the orders sought by the husband are as follows:
(a)That within 28 days of the date hereof the wife pay to the husband the sum of $94,205; that upon receipt of that sum the husband transfer to the wife the whole of his right, title and interest in and to the matrimonial home at 54 B Street, C.
(b)The wife indemnify the husband for liability, for all rates, taxes, loans and outgoings in respect of the property. That unless otherwise specified, and except for the purpose of enforcing payment of any moneys due under the orders, each party be solely entitled to the exclusion of the other to all property, including choses of action in the possession of such parties as at the date of the order.
(c)All chattels in the matrimonial home are considered to be in the possession of the wife.
(d)That the moneys standing to the credit of the parties in any joint bank account is to become the property of the husband or wife – do we understand that order – and that each party forego any claim that they may have to the other's superannuation benefits.
(e)That all insurance policies become the sole property of the beneficiary named thereunder.
(f)That each party be solely liable and indemnify the other against any liability encumbering any asset which that party is entitled pursuant to the orders.
(g)Finally, in default of payment of the amount provided for in paragraph 1 of the order sought, that the matrimonial home be sold and the husband paid the sum of $94.205.
The wife also sought orders and the orders she sought are identified as follows:
(a)That the husband do all acts and things necessary including signing all documents so as to transfer to the wife all his right, title and interest in and to the former matrimonial home at 54 B Street, C.
(b)That the wife be solely responsible for and indemnify the husband with respect to the home loan in favour of NPB as trustee for the BTT, and indemnify and keep the husband indemnified against such liability.
(c)That the wife retain as her own property absolutely, her interest in the asset of the business known as "TB’s" and further be responsible for all debts associated with the business and indemnify and keep the husband indemnified with respect to such debts.
(d)That save and except as mentioned above, each party retain all other assets and financial resources in their current possessions as of today's date, and that the husband pay the wife's costs of and incidental to the application.
Neither party sought an order in respect of how to deal with the joint shares which are owned by AMP, but given they remain in the joint names of the parties that will have to ultimately be a matter determined by the Court, as clearly they cannot continue to exist in the joint names of the parties.
The law
The legal principles to be applied have been clearly identified by a number of decisions of the Full Court of the Family Court and of course are set out in s.79 of the Family Law Act. Section 79 defines the Court's power in determining applications for property settlement and at 79(2) provides:
"The Court shall not make any order under this section unless it is satisfied in the circumstances it is just and equitable to make the order."
Section 79(4) set out the matters the Court must take into account when considering what orders be made for the alteration of the parties' interests in property. In summary, those matters include the following:
(a)Firstly, the financial and non-financial contributions made directly or indirectly, by or on behalf of each party, or by a child to the acquisition, conservation or improvement of any of the parties' property.
(b)The contributions made by a party to the welfare of the family, including any contribution made in the capacity of home-maker or parent.
(c)The effect of the proposed orders upon the earning capacity of either party.
(d)The matters referred to in s.75(2) as far as they are relevant.
(e)Any other orders made under the Family Law Act affecting a party or a child to the marriage.
(f)Finally, any child support payment.
Section 75(2) of the Act sets out matters which must be taken into account when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement, and assessment of contributions during the relationship is the respective assessment.
In the marriage of Ferraro 16 FLR 1, the Full Court said at page 23:
"It is now a well established line of authorities in this Court - now indicates that the approach normally to be taken in the exercise of the discretion in s 79 proceedings; that approach is firstly to ascertain the property of the parties at the time of the hearing. Then to consider the contributions of the parties within pars (a) to (c) of s 79(4), and then to consider the matters in pars (d) to (g); more especially par (e) which takes up by reference the provisions of s 75(2) generally referred as the 75(2) factors."
Therefore, in summary, it is required that I determine the following matters unless they are agreed between the parties.
a)The assets, liabilities and financial resources of the parties to the marriage.
b)The relevant contributions of each of the parties.
c)The means and needs of each party and other respective components to the claim pursuant to s.75(2).
d)Then to identify if any alterations should be made to the entitlement of either party having regard to those factors.
e)Finally, to make the appropriate orders which flow from those findings.
Nett assets available for division
As I have indicated, the parties had agreed to a number of things and many of the assets of the parties have been agreed to and did not require determination by the Court.
The assets which the parties agreed as to value were as follows:
a)The former matrimonial home at 54 B Street, C at $170,000.
b)The tools retained by the husband at $3000.
c)The wife's business, "TB’s", at $45,000.
d)The wife's motor vehicle at $10,000.
e)The 272 AMP shares in joint names at $5312.
f)The AMP shares, which were retained by the husband at $4200.
Those issues were the only issues then agreed by the parties with respect to the determination of the nett asset pool.
Those matters which were not agreed were as follows:
a)The value to be attributed to the furniture retained by the wife.
b)How and whether the MLC superannuation of the husband should be dealt with and the nett asset pool.
c)The bank account of the wife, whether it should be taken in at its current amount, $16,236 as maintained by the wife, or at the amount which the wife agreed was retained at separation, of $20,000.
d)The further issue which arises in that respect then, of course was whether or not there should be any add-back with respect to the difference in the repair quotations to which I have already referred – identified as $24,563.
The parties did not agree in respect of those liabilities and how they should be treated, or what amount should be deducted from the gross assets of the parties to ascertain the nett asset pool for division.
The wife says that the home loan should be taken in and accounted for, at the amount which she currently owes Mr NB, which is $92,666, being the amount of $80,000 she borrowed from him to pay out the mortgage to the CBA in March 1998 of $76,266; the balance being made up of some money she used for her own purposes and also unpaid interest on the principal.
The husband said it should be taken into account at $50,000. He submits to the court that if the loan had been retained with the Commonwealth Bank of Australia and had been paid off at the appropriate rate of repayment, then the principal and interest would have been reduced and given it was coming towards the end of the loan at a more accelerated rate and it was estimated that approximately $25,000 would have been paid off the principal, and he says the amount that should be deducted or allowed for by way of payment of the home loan, should be $50,000.
The second liability which is in dispute is the business loan. The wife's case is clearly that this should be paid, or allowed to be notionally paid, from the top of the assets, at $40,600, being the amount which she says she borrowed for the purchase and set-up of the business in 1993 from Mr NB of $30,000, together with unpaid interest on that loan, making the total $40,600 as at the present date.
The husband disputes this loan and contends to the Court that the Court should not allow any provision for the repayment of this loan, or if the Court allows any provision at all, it should be in the sum of $20,000, given that that is the amount which the wife admitted to in a sworn but unfiled form 12 application at the time the parties were negotiating consent orders in the year 2000.
Therefore, the wife contends that the liabilities which should be reduced from the assets of the parties, is $133,266. The husband contends that the liability should be $50,000.
In relation to these issues which are in dispute between the parties, I propose now to evaluate the evidence and make findings of fact.
Dealing first with what is the appropriate valuation of the matrimonial furniture which is retained by the wife, each party has only provided to the Court their own estimate value; there is no proper assessment of value before the Court. The husband says the estimate should be $4000 and the wife, $2000.
The wife clearly conceded in the witness box that her estimate of $2000 was only in relation to those items of furniture that had been purchased with the loan that had been provided by Mr NB as described in the evidence of both parties and not other items of furniture. Because of this concession and the lack of available evidence of any clear nature by either of the parties, I find that the estimate of value provided by the husband should be preferred and that that asset should be included at the value of $4000.
The second issue to be determined is the treatment of the husband's superannuation with MLC. It is clear that the husband has en entitlement or has recently had an entitlement under his MLC superannuation policy of $62,000 and that he has taken for his own use and benefit in recent times the amount of $29,500, leaving a balance in the superannuation of $31,354 less, he says, taxation of $1854 and that the amount that therefore should be taken into account is $69,500.
It was clear from the evidence of the husband that he has attained the minimum retirement age. Clearly, because he is entitled to obtain such superannuation, it no longer remains a financial resource but is clearly an asset to which he has entitlement to the benefit. He has had recently a draw-down on that and has used those funds, as his evidence revealed, for his own living and legal expenses in these proceedings. To reduce that amount by his living and legal expenses, in my view, would be to bring about an unjust result between the parties.
The wife has continued to operate the business she had at the time of separation, “TB’s”. She has earned fairly minimal income from that business. She has paid expenses, both in relation to that business and in relation to her own expenditure for her needs on a day-to-day basis and she, of course, will be required to pay her own legal costs.
To allow the husband to simply reduce the available asset pool for payment of expenses to which the wife has already and continues to meet from her own income sources would bring about an unjust and inequitable result in these proceedings.
I am satisfied, however, that there should be a deduction from the $62,000 gross amount for a contingent liability in respect of any taxation that needs to be paid and that that sum in respect of the husband's superannuation should be included in the nett asset pool at $59,000.
The next contentious issue between the parties was the difference in the repair quotes with respect to the structural damage in the matrimonial home and whether or not the difference of $24,563 should be added back in. With respect to this matter, the husband did not obtain his own independent evidence. He relied upon evidence at the last minute from the engineer, who was the witness of the wife, and the under-pinner, Mr I, who was also the witness of the wife. Those witnesses were not called by the applicant wife because of the agreement which the parties had reached about the value of the matrimonial home, taking into account these defects. The husband then sought to call them and lead oral evidence with respect to these matters and I allowed that to occur. However, what that meant was that the evidence, in my view, fell far short of the test required in proceedings under s 79 and proceedings under the Family Law Act, and that is that the applicant establishes evidentiary matters on the balance of probabilities
The evidence of the engineer is set out in his affidavit and there are, annexed to that affidavit, a lengthy report. It is clear that when the engineer and the under-pinner did their first inspection of the property certain structural damage was seen to exist on one of the walls of the matrimonial home and certain remedial action was suggested and that is set out in the report.
It is contended by the husband that because the wife did not take the immediate step and spend significant funds, in excess of $30,000, to undertake this work that the difference now, because of further damage to the property, should be that cost borne solely by the wife and not deducted from the gross assets of the parties.
The evidence of the engineer Mr T, in my view and my finding, fell short of allowing the Court to in effect bring home responsibility for the total amount of $24,563 to the wife. I find the evidence was, in some ways, equivocal. Certainly the engineer gave evidence that a contributory factor to the further damage may have been the lack of attention by the wife to the remedial action as recommended in his first report.
Mr I's evidence, the under-pinner, was somewhat more unequivocal than the evidence of the engineer. He said that he could not state to the Court that if the remedial work was done that there would be no further damage to the property. In essence, his evidence, in my findings, stands quite comfortably with the evidence of the engineer, Mr T, because Mr T, in his evidence, was not able to say to the Court this amount of damage has been done because simply of the natural problems which exist in the soil under this property and would have occurred in any event and this amount of the damage occurred because the wife did not take the remedial action.
In my view, clearly, there should have been evidence to the Court which allowed the Court to make as a finding of fact that some component identifiable on the facts was directly attributable to the lack of attention by the wife to those matters of remedial action which were suggested in the first report of the engineer. That the evidence was unable to establish that. In my view therefore this does not permit the Court then on the balance on probabilities to find that it should be the responsibility of one party over the other that these defects of structure in the home would or would not have occurred given that remedial action was or was not taken.
Certainly, it may be a matter which, in the assessment of contributions overall, the Court takes into account that one party had certain knowledge and that there may be further costs visited to the parties but it would be entirely inappropriate, in my view, for the Court to make as a finding of fact that a sum of $24,563 could possibly be the identifiable amount which reduces an entitlement of the wife in the manner which is suggested and submitted in the husband's case, should occur. For that purpose I do not propose to deduct or add-back the sum of $24,563 to the assets of the parties available for division.
The next two issues arose with respect to the liabilities and they are, as I have identified, how the Court should treat and ascertain the amount of liability to be deducted from the asset pool with respect to the home loan. The evidence with regard to this was very clear.
The parties had a mortgage with the Commonwealth Bank of Australia. At the time of separation, as at 3 November 1995, that mortgage stood at a certain sum. The parties agreed as to the amount and the husband then met the payments of principal interest during the period from 2 November 1995 to 12 August 1997 when he vacated the home and the wife took up occupation. The wife then met the payments to the Commonwealth Bank of Australia from 2 August 1997 through to 10 March 1998. At that time the wife, without consultation or reference with the husband, made arrangements with her cousin, Mr N B, to provide her with a loan; the evidence is, both the wife and Mr B, a loan of $80,000, and that was used by the wife to then repay the amount outstanding at that time, as I have identified, in the sum of $76,266. The parties agree that that is the amount which was paid to totally discharge the loan to the Commonwealth Bank of Australia in March, 1998.
The evidence of the wife is that she has been unable to afford to meet repayments of any interest to Mr B, the interest rate being set at
5 per cent, and that as a result of that that loan now stands as a liability to Mr B of $92,666.
It is the husband's case that if the wife had not taken that action then total principal and interest would have reduced with ongoing monthly payments and the ultimate amount standing as at the date of this hearing would have been significantly less. On an estimate done on figures presented by Ms Carew, Counsel for the husband, to simply be a very loose estimate and not in any way provided by an actuary or the bank, would have provided a deduction in the estimate of the husband in the vicinity of $25,000 which would have been paid off the parties' principal. The husband therefore contends that the loss should be only taken into account as a liability of $50,000.
I am satisfied that in relation to this matter the only just and equitable way to deal with it, given the actions taken since separation by each of the parties, is to allow this loan to be deducted at the sum which was identifiable and agreed by the parties as having been repaid by way of a total discharge of mortgage to the Commonwealth Bank of Australia in March of 1998, $76,266. The balance owing to Mr B should be the responsibility of the wife given that she has not paid any payments of interest or principal since that time and that there should not be a notional deduction based on evidence which is not satisfactory and only worked out on a very loose basis as the husband seeks down to $50,000.
I am satisfied that that loan exists and that the evidence of Mr NB and the wife is evidence which should be believed by the Court. Clearly the family ties between the wife and her cousin are strong and it was clear from the evidence given, and that evidence was unshaken, that that loan was provided to assist Mrs F because of her cousin's concern for her welfare.
However, as I have said, the balance which may be owing between Mrs F and Mr B over and above the amount which I will allow to be deducted of $76,266 will be a matter that becomes the responsibility of the wife for her to deal with under the terms of the loan she has entered into with Mr B and not a joint responsibility of both parties.
The second issue was the liability to be taken into account with respect to the business loan. That business loan, it is contended by the wife on her evidence and the evidence of Mr NB, and also supported in some part by the evidence of his brother, Mr CB, was that when purchasing the business "TB’s" in or about 1993, a loan was provided by Mr NB in the sum of $30,000 and that was provided by way of provision of the loan together with a requirement for payment of interest.
The husband contends that the loan, in fact, was for the sum of $20,000 and that it was not a loan but $20,000 was provided by Mr CB and that he was, in effect, becoming a silent partner and purchasing some interest in the business. That was a contention which was made and cross-examination was undertaken of both of the Mr B about it. I find that that contention could not be sustained on the basis of the evidence given or produced to this Court and I was satisfied that a loan had been provided. The loan had been provided by Mr NB and despite the fact that the wife referred to the sum of $20,000, she says clearly a mistake by her solicitors when preparing the form 12 in 2000, that the consistent evidence both of the wife and her two cousins which really was unshaken, was that that loan was provided and it was provided for $30,000. I accept this evidence is correct.
The wife has made no repayments on that loan either and she says that that clearly is on the basis that she has not had the financial capacity to do so. However she has been the person solely responsible for operating the business, “TB’s”. She has, in the total asset pool, assets put in of $45,000 being the value of “TB’s” and $16,236 in a bank account and in my view she should bear the responsibility for the $10,600 which has accumulated on that loan by way of unpaid interest and that that should not be a matter which, in justice and equity, could be taken from the asset pool.
I had left the bank account of the wife until this point and I propose to deal with it now even though it is not a liability and forms part of the assets. I did so on the basis that it is really referrable to the business, “TB’s”, and is better dealt with at the time that this loan is being determined.
The assets of the parties clearly should be the assets at the date of hearing. The bank account of the wife operated for the business is $16,236. I have already taken into account that the wife will take on a liability that is not deducted of unpaid interest on the loan to Mr B in excess of the amount that I will allow as a deduction of $10,600. If she has then used some $4500-odd from the date of separation in an account that she had for the business to the day of hearing, which is $16,236, in my view that is more than adequately compensated for by the fact that she will take on this extra liability.
It is impossible for this Court as a finding of fact to determine that by some notional means without reference to what exactly has occurred in the business of the wife over the seven years since separation, find that the bank account which existed at the time of separation seven years ago should be put in at that figure and not the figure which it currently stands at which is, of course, $16,236 and that is the amount which will be added into the asset pool.
On the basis of my findings with respect to those matters I will now set out the net assets available for division between the parties. The gross assets of the parties are:
a)The former matrimonial home at the agreed value of $170,000.
b)The furniture of the wife which I found to be $4000.
c)The tools of the husband agreed at $3000.
d)The value of the “TB’s”, the wife's retail clothes business, agreed at $45,000.
e)The motor vehicle of the wife agreed at $10,000.
f)The joint AMP shares agreed at $5312.
g)The husband's AMP shares at $4200.
h)The husband's MLC superannuation, total amount $62,000, and the wife's bank account at $16,236,
making total gross assets of $319,748.
The liabilities I have found are as follows:
a)The repayment to Mr B of that amount of the loan which is attributable to pay-out of the CBA mortgage on the property in 1998 of $76,266.
b)The business loan which the wife owes for “TB’s” to Mr NB in the sum of $30,000.
c)The tax which the husband will be liable to pay on his superannuation at $3000.
The total liabilities therefore will be $109,266, making the net asset pool for division between these parties at total of $210,482.
Assessment of parties’ contributions
The next step for the Court to take is to assess contributions of the parties pursuant to the provisions of s.79(4). As I have already indicated, the parties have agreed largely in respect of contributions that being that contributions to the date of separation should be found to be equal.
Since separation, each of the parties contends that certain contributions they have made should be taken into account, or certain contributions should be seen in a negative sense and therefore provide an extra contribution element to the other party. This is particularly in relation to, as I have said, the improvements which the wife has done to the matrimonial property and to the issues with respect to the problems with subsidence and structural problems not attended to with respect to the matrimonial home.
Clearly, with respect to the improvements undertaken by the wife she has made contribution by way of certain items which really are unchallenged by the husband but which the husband says cannot be identified as having brought about any increase in the value of the matrimonial home and which should be more than offset by the fact that the wife has, for a period now of some five years, had occupation of the property to the exclusion of the husband and therefore has had a benefit which the husband has not had from the property.
I accept this submission. Clearly the wife has had the use and enjoyment of the matrimonial property since separation. Clearly she has put moneys into maintaining, repairing and in some respects adding items such as a pergola and decking to the matrimonial property. However, the sum that she has spent on the evidence in respect of those is not an amount which would be seen as far exceeding the amount that she would have had to pay by way of provision for her own accommodation over a period of five years if she were not living in the jointly owned property of the parties. Therefore I am not satisfied there should be any greater contribution that the wife should receive over and above the husband in that regard.
The husband also contends that if the Court does not find that the amount of $24,563 in the difference in the repair quotes be added back in, that there should be some adjustment with respect to the contributions of the parties to reflect that the wife, knowing that there was a problem, did not attend to it and therefore there has been, in a sense, a negative contribution.
Whilst clearly the evidence of the engineer and the under-pinner could not, in my view, establish on the balance of probabilities that there was a sum that the Court could find of $24,563, that should be the responsibility of one party, the wife, over the responsibility of the other party, the husband, because the wife did not attend to the remedial action. Clearly, in circumstances where a party is living in a property becomes aware that there are significant defects and difficulties with the property and becomes aware that there are steps that should be or could be undertaken, that that party should at least demonstrate to the Court the thought and steps that they took within their means to negate or at least minimise those problems and at the same time the wife clearly expended substantial sums with respect to additions to the property which were not strictly necessary in light of the evidence given and I am satisfied that the Court should make an adjustment of an extra 5 per cent in favour of the husband.
There are really no other matters which would affect the contributions of the parties, in my assessment. Each of them took a business and operated it. Each of them suffered from, in my view, a failure to make full and frank disclosure with respect to those businesses both to the other party and the Court to make any sensible findings of fact about what might have occurred in the businesses from the date of separation to the date of hearing although I might add that in this regard the wife certainly had made much better disclosure than the husband.
I assess the contributions of the parties pursuant to s.79(4) at 55% to the husband and 45% to the wife.
Each party agreed that there be no adjustment under s.75(2) factors. After assessing the evidence in this particular matter I totally concur with the submissions put by both parties in that regard.
Therefore I can that the overall division then between these parties should be assessed at 55 per cent to the husband and 45 per cent to the wife of the total nett asset pool which I have found already to be in the sum of $210,482. This means that the husband should receive assets or payment from the wife totalling a sum of $115,765.10 and the wife should receive assets of $94,716.96.
For the husband to achieve this result and obtain assets or a payment of money totalling $115,765.10 I find that he has retained the benefit of certain assets as follows:
a)The proceeds of the AMP shares of $4200.
b)His tools at $3000.
c)The nett benefit after deducting the contingent liability of taxation on his MLC superannuation of $59,000.
d)The shares jointly owned by the parties with AMP should be transferred to him and he will then get a benefit from that asset of $5312.
This make the total of the assets he will receive being $71,512.
The amount that the wife will be required to pay the husband if she wishes to retain the assets she currently has in her possession, including her business, the furniture, her motor vehicle, her bank account and the former matrimonial home is the sum of $44,253.10.
I accordingly make the orders which are set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Rimmer FM
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