F and F
[2002] FMCAfam 328
•3 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & F | [2002] FMCAfam 328 |
| FAMILY LAW – Property – contributions. Family Law Act 1975, ss.79, 79(2), 79(4), 75(2) Marriage of Ferraro 16 Fam LR 1 |
| Applicant: | B N F |
| Respondent: | W D F |
| File No: | ADM4146 of 2001 |
| Delivered on: | 3 October 2002 |
| Delivered at: | Darwin |
| Hearing Dates: | 25, 26, 27 March, 26 April and 17 September 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Noble |
| Solicitors for the Applicant: | Hume Taylor & Co |
| Counsel for the Respondent: | Mr McQuade |
| Solicitors for the Respondent: | Moody Rossi & Co |
ORDERS
That within 60 days of the date of these orders, that the wife pay to the husband the sum $65,102.31.
That upon the payment:
(a)The husband do all such acts and things and sign all such documents as may be required to transfer to the wife at her expense all of his right, title and interest in the real property situated at and known as 11 A Road, Happy Valley in the state of South Australia and being the whole of the land contained in Certificate of Title Volume 5071 Folio 269 (hereinafter called “the real property”);
(b)The wife shall indemnify the husband against all payments and liabilities pursuant to the mortgage registered over the real property and all rates, taxes and outgoings with respect to the real property of whatsoever nature and kind;
That the wife transfer all her right, title and interest in the following items of personal property to the husband:
(i)2 x 54 bottle wine rack;
(ii)upright freezer;
(iii)3 piece fabric lounge suite;
(iv)6 seat dining suite, timber;
(v)wall unit;
(vi)68cm colour TV;
(vii)1 video recorder;
(viii)whipper snipper and tools;
(ix)work bench and cupboards (4);
(x)dinghy, outboard motor, trailer and boating accessories;
(xi)items of camping gear;
(xii)compact discs purchased by the husband;
(xiii)2 x bottles of Grange Hermitage wine;
(xiv)and in the event she is able to locate them, the wedding ring, engagement ring and gold watch.
All of which items shall be collected from the wife and delivered to the husband at the husband’s sole expense.
That the husband transfer all his right, title and interest in the ANZ interest saver account number 015 – 010 2552-59006 to the wife.
That unless specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts (other than the account referred to in order 4 above) are deemed to be in the possession of the person whose name appears on the banks records thereof;
(b)Insurance policies are deemed to be in the possession of the beneficiary thereof;
(c)Superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the continuation of payment out of such entitlements.
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That in the event that the wife is unable to comply with order 1 hereof, the parties shall sign all documents and writing and do all things necessary to place the real property on the open market for sale at a price to be determined by the parties and in default of agreement as determined by a person nominated by the president of the Real Estate Institute of South Australia for the time being and following such sale the proceeds be distributed as follows:
(i)Firstly to pay the costs and commission of sale;
(ii)Secondly to pay the amount required to discharge the mortgage registered on the title of the real property;
(iii)Thirdly 40% of the remaining sum, less the sum of $8,979.00 to be paid to the husband;
(iv)the balance to be paid to the wife.
That the documents produced under subpoena to the Court are to be returned upon the expiration of 28 days from the date of this order.
All application to be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM4146 of 2002
| B N F |
Applicant
And
| W D F |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for the settlement of matrimonial property. The parties to the proceedings are B N F “the husband” and W D F “the wife”. They are the parents of two children K C F born 3rd of November, 1995 and S E F born 28th August, 1998.
It has been agreed between the parties that K and S should live primarily with the wife. Originally, the proceedings also concerned what was the appropriate amount of contact between the husband and the two children and whether any conditions should attach to that contact. In early 2000 the husband began an episode of severe depression. He was hospitalised. As a result, a substantial amount of hearing time was taken up with expert medical evidence regarding the husband and the possible ramifications of his condition on his contact with the children.
Although the hearing of the matter was originally estimated by the parties to take up to two days, it in fact, occupied some five sittings days on the 25th , 26th and 27th of March, 2002, the 26th of April, 2002 and the 17th of September, 2002. Most of this time was taken up with evidence from medical specialists who had either examined the husband or treated him. As a result of the complexities of the issues involved in the children’s matters, I ordered that a family report be prepared on the 26th of April, 2002.
To their great credit and with the assistance of the family report, the parties were able to reach agreement in respect of the contact issues. Accordingly, the only issue that remains to be determined by the Court concerns the division of marital property between the parties.
The parties agreed that if at all possible, the wife should continue to live in the former matrimonial home situated at 11 A Road, Happy Valley. This property is currently jointly owned. The wife seeks the transfer of this property to her alone. She proposes that the existing mortgage be discharged. Upon the property’s transfer to her, she would borrow a sum of money against its security in order to buy out the husband’s interest. It is her proposal that this sum be $50,000.00. The husband seeks the sum of $75,000.00. Both parties seek specific orders in respect of a number of items of personal property. Of particular importance to them is a collection of wine and especially two bottles of Grange Hermitage, which have not only monetary value to them, but also significant sentimental value, particularly to the husband. It is the resolution of these various issues, and a number of other subsidiary matters, that is currently before the Court.
Background
The husband was born on 13th January, 1964. He is currently 38 years of age. He is engaged in full time employment as a purchasing supply officer at the Wakefield Memorial Hospital. He currently earns $30,536.00 per annum. At the present time, he lives with his parents at their home in Seaview Downs. He hopes to be able to purchase a property for himself in future, which will be a suitable location for his contact to the children. He has not re-partnered since the parties separated.
The wife was born on 25h November, 1966. She is currently 35 years of age. She is a police officer. At the present time, she has been seconded to higher duties and is earning $49,600.00 per annum. However, that secondment will end in November of this year and she will revert to her previous salary of approximately $40,000.00. As previously indicated, she is living in the former matrimonial home at 11 A Road, Happy Valley, with K and S. She has not re-partnered since the parties separated.
The parties met in April of 1992. They began to live together in May of 1992. They married on 10th of September, 1994, and separated on 24th of September, 2000, when the husband left the former matrimonial home. The marriage between the parties has been dissolved.
The law to be applied to property applications
Section 79 of the Family Law Act defines the Court’s powers in determining applications for property settlement. Sub-section 2 of Section 79 provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
a)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 property of the parties;
b)The contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
c)The effect of any proposed order upon the earning capacity of either party;
d)The matters referred to in sub-section 75(2) as far as they are relevant;
e)Any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f)Any child support payable.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro 16 Fam LR 1 the Full Court said at page 23:
“A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in Section 79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paragraphs (a) – (c) of Section 79(4) and then consider the matters in paragraphs (d) – (g), more especially paragraph (e) which takes up by reference the provisions of Section 75(2) which are generally referred to as the “Section 75 Factors.”
The Court is therefore required to determine the following matters:
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 of the parties and the other prospective components to the claims of each of the parties pursuant to section 75(2) and then to identify if any alteration should be made to the entitlements of either of the parties having regard to the section 75(2) factors.
After determining the entitlement of each of the parties in relation to the alteration of property interests, the Court must then consider any application for spousal maintenance if relevant.
Evidence
As directed, each of the parties filed an affidavit containing his or her evidence in chief together with an affidavit setting out their specific financial circumstances. In addition, the husband filed an affidavit of
J M, a licensed valuer, in respect of the value of the former matrimonial home. There was no dispute about this evidence and the parties agreed that 11 A Road, Happy Valley, is currently valued at $170,000.00. As a result, it was not necessary for Mr M to be cross-examined in the proceedings.
The wife also called her mother, S A B to give evidence regarding money that was deposited by her and her husband, R H B, into an offset interest saving account in the names of the parties and associated with their mortgage on the A Road property. As matters transpired, this evidence turned out not to be contentious. However, Mrs B was required for cross-examination by the husband.
Both parties were represented by counsel at the hearing of the matter before me. The vast majority of hearing time was taken up with issues relating to contact. As a result of observing each of the parties, I was left in no doubt about the extent of their love for K and S. They are both devoted and loving parents.
The husband was at times a pedantic and stubborn witness. However, I did not find him in any way to be untruthful. The wife gave her evidence in a frank and open manner. I found her too, to be an honest witness. There were few issues of factual dispute between the parties and what differences there were related to matters of detail and their different recall about things where there was no independent record and which in any event happened some years ago. As the parties will appreciate, it is neither practical nor appropriate to conduct a minute dissection of every financial transaction in which they have been involved over the course of their eight year relationship.
In my view, the evidence indicates that both parties worked very hard during the marriage and contributed to the full extent of their ability to it. There can be no doubt that they pooled their assets and income during the marriage, and each devoted their full income to family purposes.
However, the evidence indicates that it was the wife that had the greater responsibility for managing the financial records of the family during the marriage, particularly in respect of the operation of the off-set interest saver account. As I say, my impression of the husband is that he is somewhat punctilious person. For a number of reasons, he is suspicious of the wife. However, to his great credit, when evidence was provided to him by the wife in respect of a number of matters, particularly the interest saver account, he accepted that evidence.
In these reasons for judgment, findings of fact are made on the probabilities, having regard to the evidence, and my observations of the parties and the witnesses. In what follows, statements of fact constitute findings of fact.
Property acquired at the outset of the marriage and direct financial contributions
When the parties began to live together in 1992, the husband was 28 years of age and the wife was 25. At the time, the husband was employed at the Adelaide Convention Centre and earned approximately $35,000.00 per annum. He had been employed at the Convention Centre for about 6 years. He had savings of approximately $26,000.00. He owned a car worth about $8,000.00. At that time he had been able to accumulate superannuation in two funds amounting to $6,672.00.
The wife has worked for the South Australian Police for the whole of her working career. In 1992 she was earning approximately $29,000.00 per annum. The wife had been previously married. As a result of a property settlement with her previous husband, she received the sum of $50,000.00 around the time the parties began to live together. She also brought into the marriage with her a quantity of furniture she values at around $1,500.00.
The former matrimonial home at 11 A Road, Happy Valley, was purchased on the 21st of May 1992 for $130,000.00. The parties borrowed $85,000.00 for the purchase from the ANZ bank which was secured against the property. There were fees and charges associated with the purchase. The husband contributed $19,498.09 toward the purchase. The wife the sum of $28,000.00. This sum was deposited in the husband’s bank account a week or so prior to settlement and was evidenced by a bank receipt tendered by the wife.
The wife received her matrimonial property settlement in two separate sums of $28,000.00 and $22,000.00. Around this time she also purchased a Toyota Forerunner motor vehicle for $18,500.00.
On the 17th of March, 1994, the parties opened a home loan interest saver account with a deposit of $2,000.00. This was withdrawn from the husband’s bank account. The purpose of the account was to off-set interest that the parties owed in respect of the mortgage on the property situated at 11 A Road, Happy Valley. In order to secure the maximum amount of interest saving, the parties deposited any surplus cash they had into the interest saver account. The three major sources of this cash were child endowment payments received in respect of K and S – an amount of about $3,000.00; the savings of the parties from time to time and most importantly, monies advanced by the wife’s parents, Mr and Mrs B.
It suited Mr and Mrs B to have a place to deposit any surplus funds they had from time to time. They were content to forego any interest they might earn on these sums in the knowledge that they were assisting their daughter and son-in-law financially. However, the money deposited in the interest saver account by Mr and Mrs B was neither a gift to the parties, nor properly a loan, although the parties were free to utilise it from time to time, on the understanding that it was to be reimbursed in full and they had obtained the consent of Mr and Mrs B to use it.
Mrs B gave evidence in regards to this matter. She was a careful and scrupulous witness. I accept her evidence. She deposed that she deposited the sum of $38,650.00 into the account in sums of varying amounts, between April 1995 and November of 1999. It is also clear that other sums of money went in and out of the account at various times. As already indicated, it was in the interests of the parties to have the maximum balance in the account as the interest due by them was calculated by the bank on a regular basis.
In her evidence, the wife estimated that these various sums saved the parties approximately $12,000.00 in interest payments on the mortgage over the period this money was deposited in the account. In his evidence, the husband conceded that a sum of up to $1,500.00 per year was probably saved as a result of Mr and Mrs B’s payments into the account in particular, although he had not personally undertaken the necessary calculations. Clearly, this was of great benefit to the parties. In my view, it must be regarded as a contribution that is to be factored into deliberations in this matter on the wife’s side of the ledger.
The parties’ first child, K, was born on 3rd November, 1995. The wife continued to work as a police officer until shortly prior to her birth. She regularly contributed the sum of $250.00 per fortnight towards the mortgage from the time of its inception until she went on maternity leave prior to K’s birth.
The husband continued to work at the Adelaide Convention Centre until September of 1996. He was beverage manager of the Convention Centre. It was work he enjoyed. As one might expect from that occupation, he has an interest in wine. The husband’s employment was terminated in September of 1996. There was no legal justification for the husband’s dismissal. He was greatly distressed by his termination and commenced legal proceedings against the Convention Centre for wrongful dismissal. The husband compromised this action around April of 1997. He received a sum of money in settlement together with his accrued entitlements and some redundancy money. The total sum received was about $16,000.00. It was received in separate payments between the time of his dismissal and the settlement of his wrongful dismissal action. The sum was paid into the parties’ bank account and was ultimately used for family purposes, including the construction of a shed at A Road. The shed cost $3,400.00 together with $900.00 for the concrete slab.
The wife took twelve months unpaid maternity leave following K’s birth. She returned to work in November of 1996 but only on a part time basis. She took maternity leave again prior to the birth of S on 28th of July, 1998. She returned to work six months later and has continued to work since that time, although not on a full time basis.
Following his dismissal, the husband found it difficult to obtain permanent employment that he liked. However, he worked in a number of casual positions, on a more or less permanent basis from the date of his dismissal until March of 1998, although his income was significantly less. It is the wife’s recollection, that there were some periods of time when neither of them was working and a portion of the husband’s redundancy money was used to pay household bills. I have no doubt that the entire amount of the husband’s redundancy package and accrued entitlements from the Convention Centre was applied to family expenses in one form or another. It is also clear, that the difficulty the husband had in obtaining full time permanent employment was not due to any fault or failure on his part.
In March of 1998 the husband obtained his present position as a supply officer at the Wakefield Hospital. He has continued to drive the vehicle he had at the commencement of the relationship, a 1998 Toyota Corolla.
The parties sold the Toyota Forerunner in late 1999 for $16,400.00. They bought another, more recent model Toyota Forerunner for $29,000.00. Money was borrowed from the wife’s parents to complete the purchase. However, this loan has been paid back in full from the joint savings of the parties. The car is currently in the wife’s possession.
As previously indicated, the husband has a particular interest in wine. During the marriage the parties accumulated a collection of wine. Following separation the collection was divided, apparently consensually between the parties, sixty five bottles to the husband and sixty two to the wife. The wife has consumed some of the bottles in her possession. However, now the husband wishes to have the whole of the collection, or at the very least be compensated for the half share of the collection the wife has by receiving a greater amount of the parties’ furniture, in particular some camping gear. Of particular importance to him are the two bottles of Grange Hermitage that were given to him by the Manager of the Adelaide Convention Centre on the occasion of his marriage. He wishes to present these bottles to his daughters on the occasion of their eighteenth birthdays.
During the marriage improvements were made to the former matrimonial home. These included a remote controlled roller door, shutters and security screens and doors. These were paid for from joint savings.
Prior to the parties’ separation, some kitchen renovations were undertaken. These cost about $6,000.00. I accept the wife and Mrs B’s evidence that about $3,000.00 of this money was borrowed from the funds of Mr and Mrs B held in the off set account and the balance came from savings and monies accumulated as a result of the parties entitlement to child endowment for K and S. Mr and Mrs B expect to be repaid. The wife regards there being a moral obligation to replenish the child endowment, as it forms the basis of future savings for K and S.
During the marriage, both parties did gardening, landscaping, painting and other renovations that maintained and improved the value of the former matrimonial home. I accept that both of them contributed to these tasks to the full extent of their strength and ability. I have also no doubt that they budgeted carefully during the marriage and applied any surplus funds that they had to closely considered family projects. It was in all senses a joint marriage to which the parties were fully committed and to which they contributed their full abilities and income.
In particular, after the birth of K, the husband paid the regular mortgage instalments from his salary whilst the wife paid for food and groceries. They otherwise shared other bills and general expenses equally. In her affidavit, the wife acknowledges that during the marriage, the contributions of the parties were “in one respect or another equal”.
During the marriage the parties also shared household tasks. I accept that the husband did the family laundry and washed dishes. He also was responsible for firewood and the combustion heater. He also did general maintenance around the home and most of the gardening. It seems to me that the wife is an exemplary mother. No doubt she provided a high degree of care for the children and also provided meals for her family. I do not think that this is a case where it can be said that the husband was waited on hand and foot by the wife. Both parties played their respective roles in what was essentially a marriage of equals. Regrettably, for no fault of his own, the husband fell ill. This would have been a situation very difficult for both of the parties to come to terms with. However, I do not believe that the difficulties that inevitably followed should be regarded as rendering the contributions of the wife as a home maker more difficult to any great degree.
In the early part of 2000, the husband was diagnosed as suffering from depression. He was subsequently referred for psychiatric treatment. He continued to work. However, there can be little doubt that the husband’s illness contributed to the breakdown of the parties’ marriage. On any view, he was seriously ill.
The parties separated on the 24th of September, 2000, when the husband left the former matrimonial home. He was quite ill and was involuntarily detained in a psychiatric hospital for nine days in November of 2000.
At the time the parties separated, there was a sum of $34,148.29 in the interest saver account. At the date of the commencement of the hearing, this sum had been reduced to $17,148.00. Between separation and trial, Mrs B withdrew sums from the account amounting to $13,000.00.
After hearing the evidence in respect of the interest saver account, the husband accepts that it should play no part in the Court’s deliberations and that the funds deposited in it are, in reality the property of Mr and Mrs B. Although the account is in the name of the parties, it is their joint position that the entire amount of $17,148.00 should be regarded as being held on trust by them for Mr and Mrs B.
Following the parties’ separation, the wife continued to live in the former matrimonial home with K and S. She assumed responsibility for payment of the mortgage. The husband was assessed to pay child support on the basis of his annual income. The assessment is currently that he pay $436.00 per month in respect of the financial support of K and S. He is up to date with these payments.
The assets and liabilities of the parties
The parties were able to agree in respect of the value of the vast majority of the items of property available for division between them. However, the husband did not accept the value that the wife provided for the Toyota Forerunner motor vehicle that she has continued to drive since separation. For that reason, on the 21st of March, 2002 the husband made application that the wife make the vehicle available to him so that he could obtain his own valuation from the RAA. It was ordered that the husband bear all the costs associated with the obtaining of this valuation. The valuation subsequently obtained by the husband indicated that the motor vehicle was worth $20,900.00. The wife accepts this valuation. However, the husband seeks to be reimbursed in respect of the costs of the valuation which is apparently the sum of $120.00.
The issue of the off set interest saver account was also a matter of some controversy between the parties. Unfortunately, neither of them had retained a full record of the statements issued by the bank in respect of this account. Due to the controversy between the parties, it was necessary for the wife to approach the bank to obtain copies of the missing pages of the statement of account. The cost of this was $400.00. I ordered that the parties should bear this cost equally. However, the husband seeks that it should be borne by the wife alone.
The wife obtained a valuation of all the marital furniture. The husband accepts this valuation. The parties also agree, essentially, as to how the furniture is to be divided between the parties and as a result of that valuation, what is the value of those items that are already in the possession of that party, or will be as a result of orders to be made.
The parties also agree that the sum owing to the ANZ bank in respect of the mortgage on 11 A Road, Happy Valley is $20,800.00. It is the husband’s position that the monies owing to Mr and Mrs B in respect of the kitchen renovations should not be taken into account. In my view, this is a joint debt of the parties and should be taken into account.
Accordingly, I find that the assets of the parties available for division are as follows:
11 A Road, Happy Valley $170,000.00
Husband’s motor car $ 2,250.00
Wife’s motor car $ 20,900.00
Husband’s savings $ 1,169.00
Wife’s savings $ 534.29
Furniture to be retained by husband $ 4,060.00
Furniture to be retained by wife $ 6,280.00
Wine collection $ 3,000.00
Additional furniture $ 810.00
Total $209,003.29
Liabilities
Mortgage to ANZ bank $ 20,800.00
Debt to Mr and Mrs B $ 3,000.00
Total $ 23,800.00
Accordingly, the asset pool available to be distributed between the parties stands at an amount of $185,203.29.
The financial resources of the parties are their future entitlements to superannuation. As the law currently stands, these items can not be regarded as property. In each of the parties’ cases, it is as follows:
Husband’s superannuation $ 53,878.00
Wife’s superannuation $ 37,059.00
Section 79 (4)(a) to (c)
I now turn to the second of the steps in the exercise under section 79, namely an assessment of the parties’ contributions within the context of section 79(4)(a) to (c). These provisions are as follows:
Section 79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
It is the wife’s position that her direct financial contribution to the acquisition of the assets of the parties was significantly greater than that of the husband. She reaches this view for two basic reasons. Firstly, she argues that her initial financial contribution towards the acquisition of 11 A Road was significantly greater than that of the husband, $28,000.00 as opposed to just under $20,000.00. In addition she provided the funds for the purchase of the first Toyota Forerunner. Secondly, that the assistance rendered by her parents through their deposits into the off set interest saver account, which saved the parties several thousand dollars in interest payments, should be regarded as a direct financial contribution on her part. She also argues that her contribution as a homemaker was significantly greater during the period the husband was unwell. It is her position that she was required “to take up the slack” and that she should be given some credit for this. It is her position that these various factors call for an adjustment in her favour of 60% / 40% in respect of the division of the marital property.
It is the husband’s position that given the length of the marriage, some 8 years, that the need to give any special weight to the larger initial financial contribution of the wife has long since gone. In any event, he points to his contribution in the form of his unfair dismissal settlement and accrued entitlements, a sum of some $16,000.00, as essentially equalling any larger initial contribution of the wife and the monies contributed on her behalf by way of interest saved.
I agree with the position of the husband. In Pierce v Pierce (1999) FLC 92 – 844 at page 85, 873 the Full Court of the Family Court said as follows:
“ In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weight the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home…”
The husband contributed the maximum amount he could towards the purchase of 11 A Road. Since that time, he has made significant direct financial contributions toward paying the mortgage and in particular, through the injection of his settlement monies into the family’s finances. In those circumstances, given the duration of the marriage,
I do not think any special weight should be given to the wife’s larger financial contribution. I agree with the husband that the interest saved by way of the assistance rendered by Mr and Mrs B is also balanced out by the unlawful dismissal money that he contributed. In those circumstances, in my view, the contributions of the parties are essentially equal.
Section 79(4)(d) to (g)
I now turn to the third step in the process of apportioning the assets available for distribution between the parties.
d) The effect of any proposed order upon the earning capacity of either party to the marriage
The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings.
e) The matters referred to in sub-section 75(2) so far as they are relevant
In my view, the matters outlined in section 75(2)(a)(b)(c) and (na) are relevant in this particular case.
a) The age and state of health of each of the parties
The wife is 35 years of age. She is in good health. In my view, the evidence is clear that she has many productive years before her in which she will be able to work. The husband is 38 years of age. Much detailed psychiatric evidence was called by him in respect of issue of his contact to the children. It seems that he has made a reasonable recovery from a serious episode of depression. There remains the possibility that he will suffer some form of relapse in future. However, it seems that otherwise he is in good health and on balance, if his life circumstances remain stable, that he will remain so. The resolution of the current litigation is likely to be a major factor in him maintaining his health. Accordingly, it is my view that the husband’s age and state of health are not such as to prevent him remaining in the work force for many years to come.
b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The husband has no special skills or training. He is likely to remain in his current position as a supply officer at the Wakefield Hospital for the foreseeable future. He is secure in this employment but is unlikely to be promoted. I accept his evidence that there is no defined path of career advancement so long as he remains in this position at the hospital. I also accept that the main focus of his life is remaining well. Accordingly, his future is likely to be that he will have a secure but modest income for the rest of his working life.
The wife has been a member of the South Australian Police Force for approximately 18 years. Her career with the police has been interrupted as a result of the births of first K, and then S. However, once S commences school, I would expect that the wife would return to full time duties with the police. She seemed to me to be an intelligent and resourceful woman. This seems to be the view held by her superiors as evidenced by their decision to place her on higher duties at the present time. In this position she earns a salary considerably larger than the husband. 18 years of police experience is a considerable spring board on which to base a career. It seems to me that the wife is, in future, likely to have a significantly larger salary than the husband. She also has more scope for career advancement than he does. The husband has significantly more superannuation than the wife. He has one third again more than the wife, $53,878.00 as opposed to $37,059.00. However, over the course of her remaining working career, it is likely that the wife will be able to allocate greater sums towards superannuation than the husband. Accordingly, I do not believe that this is a significant factor in the present case.
c)Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years
The bulk of the responsibility for the day to day care of the children of the marriage, will in future be borne by the wife. As K is not quite seven years of age, and S is just over four years of age, this responsibility will endure for many years and will be a significant burden to be borne by the wife. In my view, the future care of children of K and S’s age is a significant matter.
na)Any child support under the Child Support (Assessment)Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage:
Since the parties’ separated the husband has paid the full amount of child support for K and S as assessed by the Child Support Agency. He has made the necessary payments regularly and without demur. As he is an employed salary earner in secure employment there can be no doubt that the assessment is the correct one. It is also clear that neither K nor S are children with any special difficulties. Accordingly, it is overwhelmingly the case that the wife will regularly receive the correct amount of child support from the husband to assist her with the financial support necessary for K and S. This is not a case which requires any further adjustment because of child support issues.
There are no other orders made under the Family Law Act1975 which affect a party or the children which needs to be taken into account, save for the parenting orders which have already been made in this matter and which will result in the children continuing to live with the wife. A situation that has come about with the consent of each of the parties.
f) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
These provisions have been considered in relation to section 75(2)(na) above.
Conclusions
Taking all these matters into account, and in particular the fact that the wife will have the care of K and S, it is my view that it is appropriate that a further adjustment be made in favour of the wife. It is my view, that a just and equitable result requires the wife to receive by way of adjustment in her favour, a further 10% of the matrimonial assets. This will result in a distribution of the assets of 60% in her favour and 40% in favour of the Mr F.
In my view, it is appropriate that the wine collection be divided equally between the parties on the current basis as currently stands. That is, each of the parties nominally retain wine to the value of $1,500.00. However, I believe that it is appropriate that the husband have the two bottles of Grange Hermitage. I have reached this view for the following reasons. Firstly, it is clear to me that the bottles have great emotional significance for him. Secondly, the two bottles were given to him by his former supervisor at the Adelaide Convention Centre.
I do not believe that it is appropriate that I should change the orders that have previously been made in respect of the cost of obtaining the valuation of the wife’s motor vehicle or of replacing the missing pages of the interest saver account. The husband sought the valuation of the wife’s motor vehicle and in those circumstances, it is in my view appropriate that he bear the cost. In respect of the interest saver account, it was in the interests of both parties that a full record be obtained and it seems to me, that as it was a joint account responsibility for losing the pages attaches to both of them.
There is one further matter that is of great importance to the husband. It relates to the whereabouts of a wedding ring, engagement ring and gold watch that have great emotional significance for him. During the course of the hearing, the husband prepared a list of property which had been in the former matrimonial home and which he wished to be returned to him. This list was put to the wife and she agreed to the return of most of the items on it. On this list were the wedding ring, engagement ring and gold watch.
During the course of evidence on the 17th of September, 2002, the husband indicated that he not as yet received back from the wife a glass serving platter, a quantity of rope, some saws and most importantly, the wedding ring, engagement ring and gold watch. I do not propose to make orders in respect of the glass serving platter, the rope or the saws. These being items that the parties seem to have difficulty expressly identifying and that which in all likelihood can be resolved between them. However, the wedding ring, engagement ring and gold watch seem to be in a different category.
The wife indicated in her evidence that she had returned the items of jewellery to the husband in a cardboard box where they had ordinarily been kept. The husband indicated that he had received the box, but that it did not contain the items of jewellery. As I indicated to each of the parties, I do not think that this is a matter about which either of them would be untruthful. It seems to me that the most likely explanation for the absence of the items is that they have been misplaced or a mistake has been made by one or other of them. In those circumstances, I propose to make an order that the wife return the wedding ring, engagement ring and gold watch to the husband in the event that she finds them. I accept that she will use all her diligence to find the items and return them to the husband.
Forty per cent of the asset pool of $185,203.29 is $74,081.31. The husband has in his possession assets to the value of $8,979.00 in the form of his car, his savings, furniture and his half share of the wine collection. The result of this is that he should receive the sum of $65,102.31 from the wife.
It will be necessary for the wife to borrow this sum against the security of the 11 A Road, Happy Valley property. If she is unable to obtain this sum, it will be necessary for the property to be sold. I propose making an order that this sum be paid within 60 days of today’s date. I also propose making an order that the wife repay the sum of $3,000.00 to her parents, Mr and Mrs B in respect of the kitchen renovations.
The parties have agreed as to which items of furniture are to be transferred to the husband. These items will be set out in a formal sense in the orders. Otherwise, each party should retain the assets currently in their respective possession, other than the wedding ring, engagement ring and gold watch to which reference has already been made.
In my view, the transfer of 40% of the assets of the marriage represents a just and equitable settlement of the property proceedings between the parties. Accordingly, for all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Brown FM
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