F and F

[2008] FCWA 60

[2008] FCWA 60

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	F and F [2008] FCWA 60
CORAM	:	PENNY J
HEARD	:	22 MAY 2008
DELIVERED	:	23 MAY 2008
FILE NO/S	:	PT 5125 of 2006
BETWEEN	:	F
Applicant/Wife
AND
F Respondent/Husband
Catchwords:

Property settlement - turns on its own facts

Legislation:

Family Law Act 1975 s 75(2), s 79

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr M Rynne
Respondent	:	Self Represented Litigant

[2008] FCWA 60

Solicitors:

Applicant	:	E J Wall & Associates
Respondent	:	Not Applicable

Case(s) referred to in judgment(s):

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener)
(2003) FLC 93-143

[2008] FCWA 60

1 The husband and wife have been unable to agree the manner in which their

assets should be divided. The wife says their assets should be divided equally between
them, the husband says that he should receive 75% of them and the wife 25%.

2 There was little in dispute between the parties and only some very short cross- examination took place at the trial.

Short background and history of the parties

3 The wife was born [overseas] and is aged 45 years. She has two adult children

from a previous marriage, both over the age of 18 and living [overseas] with her sister. The wife met the husband [overseas] in 1989. The husband had also been previously married and has adult children in the United Kingdom.

4 At the husband's invitation the wife came to Australia and the parties

commenced living together in August 1990. The parties were married [in] March 1991 and the following month the wife returned [overseas] to apply for a permanent Visa to live in Australia. On 4 October 1991 she returned to Perth to live with the husband. The parties separated on 27 April 2006.

Property settlement

5 The approach to be taken in relation to an application for property settlement

pursuant to s 79 of the Family Law Act 1975 is a four step process. Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. Those steps are:

• identify the value of the assets and liabilities of the parties;

• consider the contributions made by the parties within paragraph (a) to (c) of s 79(4);

• consider the s 75(2) factors, together with any matters relevant pursuant to s 79(4)(d)-(g); and

• consider whether the order proposed is just and equitable.

Assets and liabilities

6 At trial after some updating of the bank accounts of the parties the assets were

agreed.

Assets

[The matrimonial home]	$400,000
Husband’s Westpac bank accounts	19,516
Husband’s BankWest account No xxx1	1,975
Husband’s BankWest account No xxx2	1,969

[2008] FCWA 60

Husband’s BankWest account No xxx3	12,990
Husband’s St George account	101,552
Wife’s bank account	2,732
Husband’s [motor vehicle]	2,500
Wife’s 2003 [motor vehicle]	7,000
Household contents, husband	5,000
Husband’s superannuation	43,000
Wife’s superannuation	23,000

$621,234

Liabilities

Mortgage on former matrimonial home	$167,826
Net assets	$453,408

Financial contributions

7 At the time the parties commenced living together the wife had no assets and the

husband had savings of approximately $30,000. He also owned a [sedan] and a small sum of superannuation. The husband was working as a [tradesman]. They lived in rented accommodation and the husband worked away in the [regional area] during most of the working week.

8 Some time in 1991 the parties moved to [another regional area] to live. The

husband continued to work as a [tradesman] and the wife worked part-time in a
[factory].

9 In 1996 the parties lived [overseas] and purchased a small business. This was

operated by both the husband and wife. It did not make any money. While they were [overseas] the husband and wife made available the sum of $15,000 for the wife’s sister to purchase a block of land [overseas]. The wife says it was anticipated that the parties would build a house on the land and the wife’s family, and the husband and wife, would live in it, but this never occurred. While the husband mentioned this transaction in his affidavit, he did not allege it was an asset of the wife’s.

10 The parties returned to Australia in May 1997. The husband worked as a

[courier] and the wife [in a factory]. The parties then moved to [the Eastern states] in about June 1999. The wife was working [in a factory]. The husband did not work at this time.

11 In or about April 2000 the parties returned to Perth and lived in rental

accommodation in [the Perth suburbs]. The wife returned to part-time employment
and the husband re-commenced employment as a [tradesman].

[2008] FCWA 60

12 In September 2005 the parties purchased the former matrimonial home at

[a Perth suburban address]. The purchase price was $290,000. They paid a deposit of approximately $115,000 and the balance was financed by way of a mortgage. The parties separated seven months later. The husband has continued to reside in the former matrimonial home and meet the mortgage payments on it.

13 The husband says he has made the overwhelming contribution to the parties’

assets as he had $30,000 at commencement of the relationship and his total earnings from 1991 until separation totalled $755,237. The wife’s earnings over the same period totalled $259,138. The husband says that he contributed approximately 74% of the total income earned by the family unit.

14 Since separation the husband has worked on isolated mine sites and has spent, at

times, up to seven weeks away working. As a result of doing this he has been able to earn a significant income. His savings, since separation, to which the wife has made no contribution, have increased by approximately $50,000. His superannuation, since separation, to which the wife has also made no contribution, has increased by approximately $14,000.

15 The wife’s savings have increased approximately by $1,700 and her superannuation has increased by approximately $11,750.

Non-financial contributions

16 The wife says that during the course of the relationship she was the party

responsible for the homemaker activities. She was mainly responsible for cooking and cleaning and for the washing and ironing. She also stated that she was involved in doing work outside the house, including painting gutters and fences and assisting the husband with work on the former matrimonial home. She was responsible for some maintenance on the home when the husband was working away.

17 The husband's position was that the parties had contributed equally to the

household duties and any other non-financial contributions made to the asset pool. However, in the husband’s affidavit sworn 12 December 2006 he stated that throughout the marriage the wife had been “the major contributor towards domestic duties.” He stated that he also had considerable involvement in meal preparation, the laundry, home maintenance and other matters.

18 I am satisfied that the wife made a greater non-financial contribution to the

marriage than the husband. The husband was frequently working away and the wife
was then solely responsible for the household duties.

Conclusions on contributions

19 This was a relationship of over 15 years. The husband provided by far the

greater financial contribution to the parties’ assets. The wife, however, fulfilled her role as not only an income earner, but provided most of the homemaker services. Since separation the husband has increased the asset pool, including superannuation by

[2008] FCWA 60

approximately $70,000. The wife since separation has increased the asset pool by
approximately $13,000.

20 The husband says he has made the sole contributions to the payments on the

mortgage on the former matrimonial home since separation. I accept that is the case, but the husband has also had the benefit of residing in the former matrimonial home since separation. In my view, this benefit received by him cancels out any contribution he made.

21 Taking into account these matters alone, I am satisfied that there should be an

apportionment of the assets of the parties in favour of the husband of 60% and 40% to
the wife.

Section 75(2) factors

22 Counsel for the wife says that there should be a further adjustment to take into

account the discrepancy in the earning capacity of each of the parties in the sum of 5%. Neither of the parties’ earning capacity has been affected by the marriage. The husband is 58 years this year and his earning capacity is only high because he works in remote locations for lengthy periods. It could not be anticipated with any certainty that the husband would be able to do this for many years in the future. He earns $2,200 per week and the wife $870 per week.

23 In my opinion, the small apportionment of 5% sought by the wife is appropriate considering the discrepancy in their earning capacity.

24 The assets of the parties should be apportioned 55% to the husband and 45% to

the wife. An apportionment in these terms would mean that the wife would retain the
following assets:

Wife’s bank account  $2,732 

Wife’s [motor vehicle]  7,000 

Wife’s superannuation  23,000 

$32,732

45% of asset pool	$204,033
Less retained by wife	32,732
Cash to be paid by husband to wife	$171,301

25 In my view, such an apportionment is just and equitable to the wife as it

provides her with a small amount of cash, a car and some superannuation, together with a lump sum payment which could be used by her as a deposit for a home or some other purpose.

26 It is the husband’s wish to retain the former matrimonial home. He has bank

accounts of $138,000. He could use those funds to pay out the wife and borrow the

[2008] FCWA 60

balance necessary or, if he chose to retain those funds, increase his borrowings. He has a significant income at the moment which would enable him to increase his borrowings.

27 In my opinion, such a result is just and equitable to both the parties.

I certify that the preceding [27] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate