GRECH & GRECH
[2006] FMCAfam 291
•9 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRECH & GRECH | [2006] FMCAfam 291 |
| FAMILY LAW – Property – property application – long marriage – matrimonial assets – whether wife retained funds acquired during the marriage and failed to disclose those funds. |
| Family Law Act 1975 (Cth), ss.78, 79 |
| Ferraro & Ferraro (1992) 16 Fam LR 1; (1993) 92-335 applied McLay & McLay (1996) 20 Fam LR 239; FLC 92-667 applied Lee Steere & Lee Steere (1985) 10 Fam LR 431; FLC 91-626 applied Pastrikos & Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90-897 applied Mallet v Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91-507 referred to Russell & Russell (1999) FLC 92-877 applied Phillips & Phillips (2002) 29 Fam LR 128; FLC 93-104 applied |
| Applicant: | KENNETH JOHN GRECH |
| Respondent: | MIRIAM SOPHIA Grech |
| File Number: | NCM 2712 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 June 2006 |
| Date of Last Submission: | 8 June 2006 |
| Delivered at: | Newcastle |
| Delivered on: | 9 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Mr Morgan (appeared pro bono) |
| Solicitors for the Respondent: | Rutter Morgan |
ORDERS
The Applicant husband is to pay the Respondent wife the sum of $5,259.00 in settlement of all property claims within 28 days.
Subject to Order 1 above the parties shall retain all items of personalty and all moneys in their current possession or in their own names.
No order for costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Newcastle |
NCM 2712 of 2005
| KENNETH JOHN GRECH |
Applicant
And
| MIRIAM SOPHIA Grech |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for property orders brought by the husband. In his application, filed on 28th October 2005, he seeks the following orders:
i)That within 28 days the wife pays to the husband the sum of $20,000.00 by way of property settlement.
ii)That within 28 days the wife returns to the husband his personal property, furniture and effects remaining at the former matrimonial residence.
In her response, filed on 21st December 2005, the wife seeks a final order “That any monies, including monies held as savings or in pensioner accounts at the Greater Building Society, as disclosed by the applicant’s financial statement and any monies held in NRMA shares held in the name of the applicant be divided equally between the applicant and the respondent”.
Background
The parties were married on 10th August 1963. They separated on
1st January 2005. There were four children of the marriage, according to the wife[1], or five, according to the husband[2], all of whom are now adults.
[1] Affidavit of wife filed 19 May 2006, paragraph 5.
[2] Affidavit of husband filed 28 October 2005, paragraph 5.
After the parties were married, they lived at Green Valley in New South Wales until 1965, when they relocated to Lithgow. They lived in Lithgow until 1987, whereupon they moved to Cessnock. From there, they moved to Weston where they lived for about ten years. They then moved to East Maitland, where the wife still lives. When the parties separated, the husband moved to other premises in East Maitland.
The relevant law
In determining an application under s.79 of the Family Law Act, the court should follow a three-stage process (Ferraro & Ferraro (1992) 16 Fam LR 1; (1993) FLC 92-335; McLay & McLay (1996) 20 Fam LR 239; FLC 92-667).
The three-stage process is as follows:
a)Identification of the parties’ property, liabilities and financial resources;
b)
Evaluation of the parties’ contributions, financial and
non-financial, direct and indirect (Lee Steere & Lee Steere (1985) 10 Fam LR 431; FLC 91-626);
c)Evaluation of the parties’ financial resources, means and needs and other relevant s.75(2) factors (Pastrikos & Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90-897).
The Court must be satisfied that any order to be made under s.79 is just and equitable (s.79(2)).
The matrimonial assets
It is in this area that there is an issue between the parties. Each party discloses a modest amount of personal assets and no real estate. The husband has disclosed that he has significantly great funds in his name than the wife has.
The husband believes that the wife has retained funds that have been acquired during the marriage and has failed to disclose them. In a letter to the wife dated 23rd March 2006, after the parties had attended a conference with a Registrar, the husband asked the wife to provide particulars of the following assets:
a)A compensation claim as a result of a motor vehicle accident.
b)Details of where the funds from the above claim were invested or expended.
c)Details of the husband’s credit card debts that the wife deposed to have paid out and explanation of what was comprised in “various other expenses” that the wife deposed that she had paid.
d)Details of the wife’s compensation claim against Coles Supermarkets.
e)Details of the sale price of land near Clarence, New South Wales, “which was held in joint tenancy” and particulars of the disposition of those funds.
f)Details of the sale of land at Ellalong, which the applicant also said “was held in joint tenancy”, including particulars of the way in which the proceeds of sale were disbursed.
The wife, who obtained legal representation on a pro bono basis in early 2006, filed an affidavit on 19th May 2006 in which she set out a number of details about the history of the marriage, the parties’ contributions, and what she knew about the assets.
In her affidavit the wife deposed that the parties had lived in rented accommodation for most of their married life. She stated that the house in which the parties resided at Lithgow was rented from the Housing Commission of New South Wales until the husband purchased it in his name. She deposed that the husband subsequently sold that house and deposited the proceeds into an account in his own name. It was part of the wife’s case that the parties had never had joint bank accounts but had always kept separate accounts in their own names. Whilst she made this claim in paragraph 13 of her affidavit, she later deposed in paragraph 18 that at one stage the parties did have a joint account, which required the signatures of both parties to make a withdrawal. The wife was not cross-examined on this point.
The wife deposed in her affidavit that the parties lived in private rental accommodation at Cessnock and then in a Housing Commission property in Weston. The property in East Maitland where the wife still lives was always rented.
The wife states that the parties purchased two parcels of land at Ellalong but later sold that land back to the local council. She claimed not to be aware of the purchase or sale price of the land and believes that the proceeds went into the joint account which required both parties’ signatures to make a withdrawal.
The wife also deposed that the husband purchased land at Bell which was later sold to pay the husband’s business debts. She also claimed that the husband purchased some land at Spion Kop which she believes he sold to his daughter.
As to the amounts received by the parties as compensation for accidents, the wife refers to three different transactions. She says that she received the sum of approximately $12,000.00 about 18 years earlier as compensation for an injury received in a supermarket.
The proceeds of this claim, she said, were applied to the payment of family debts and general living expenses.
The wife also stated that she had received the sum of $22,000.00 about 12 years earlier as compensation for injuries received in a motor accident. She stated that the proceeds of this claim had been disposed of as follows:
a)repayment of the husband’s business debts;
b)a holiday in England to visit her brother;
c)purchasing a motor car;
d)payment of hospital expenses for an ear operation for the husband; and
e)household expenses and outgoings.
The wife deposed that the husband had received the sum of approximately $14,000.00 in about 1999 as compensation for a
work-related injury that had occurred in about 1994. She claimed that the husband had retained most of that amount.
The wife’s solicitor, Mr Morgan, elected not to cross-examine the husband on his affidavit or financial statement. The husband, however, indicated a desire to cross-examine the wife about the funds which he submitted that she had retained and not disclosed.
Before the hearing, I explained to the husband, who was not legally represented, that the material filed by the parties did not indicate any funds that had not been disclosed, certainly not sufficient to justify an order that the wife should pay the husband $20,000.00. The husband put to the court that he believed that he could show that the wife should pay him up to $28,000.00. I pointed to the husband that it would be necessary for him to prove that there were the funds from which such a payment could be made, as the figures disclosed by the parties did not amount to $18,000.00 in total.
I informed the husband that I proposed to place a limit on
cross-examination and, whilst I believed that 30 to 45 minuted would probably be more than sufficient, I would allow a period of an hour, but no longer. In the end, I halted the husband’s cross-examination after 62 minutes had elapsed.
The husband cross-examined the wife at length about her bank accounts, putting to her the proposition that if she had a tax file number than it had to be attached to an account. The wife disagreed with this proposition. She said in cross-examination that the land at Bell was sold and the sale money was used to pay debts. The land at Ellalong was sold back to the local council for $18,999.00 and a cheque for that amount was posted to the parties on 17th October 1995.
The wife’s evidence was not shaken in cross-examination. The husband was not able to obtain any admission from her that she had retained any funds and had no evidence that he could put towards that proposition.
In my view, the assets as set out in the parties’ financial statement are the only matrimonial assets which I can find. I find the gross value of the matrimonial assets to be the following:
a) Husband’s Greater Building Society account
$11,650.00
b) Husband’s 1980 Nissan Pintara Car
$2,000.00
c) Husband’s furniture and furnishings
$1,000.00
d) Husband’s clothes, tools and books
$1,000.00
e) Wife’s St. George Bank account
$495.00
f) Wife’s 1988 Nissan Pintara car
$400.00
g) Wife’s furniture and applicances
$1,000.00
TOTAL
$17,545.00
I find the parties’ liabilities to be the following:
a) Husband’s bankcard
$990.00
b) Husband’s MasterCard
$1,465.00
c) Wife’s MasterCard
$782.00[3]
TOTAL LIABILITIES
$3,237.00
NET matrimonial assets
$14,308.00
[3] The wife claimed $781.72 and I have rounded the figure up to the nearest dollar.
The contributions by the parties
The parties lived together from 10th August 1963 to 1st January 2005, a period of 41 years and nearly 4 months. It can safely be described as a long marriage. There is no evidence of either party bringing any significant asset into the marriage when cohabitation commenced.
During the course of the marriage the parties mostly maintained separate bank accounts. They lived in rented accommodation for most of the time, and I accept the wife’s evidence about the purchases and sales of blocks of land. Her evidence, as I mentioned earlier, was not shaken in cross-examination.
The parties mainly filled the traditional matrimonial roles, with the husband being in employment and the wife filling the mother and homemaker role. In later years the wife worked on a part-time basis at Lithgow Hospital and took some casual work supervising examinations at a local TAFE College.
There were three amounts of accident compensation received into the marriage. Two involved the wife, in about 1988 and 1994. In the first case the wife deposed that the money was used to pay debts and living expenses. In respect of the later amount of $22,000.00, the wife set out how that money was spent. Whilst some of it went on purchasing a car for herself and taking a trip to England to see her brother, the rest went towards debts, expenses, outgoings and the husband’s hospital expenses for his ear operation. I accept the wife’s evidence on those issues.
The husband appears to have retained the balance of his accident payout of $14,000.00, having a balance in his Building Society account of $11,465.00, but I regard that amount as an asset in the same way as I regard the other two accident lump sums. The amount of $14,000.00 should be regarded as a contribution by the husband, although I do not attach any particular significance to it as the money appears to have been received in 1999, about six years before the parties separated.
In my view, the contributions by the parties throughout the marriage should be regarded as equal, for the reason that the wife’s contribution as home-maker and parent to the children freed the husband to earn income and acquire assets (Mallet v Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449 AT 461; FLC 91-507). The wife has also made a contribution of the proceeds of her two accident claims, which appear to have been largely spent on debts and household expenses. In this case, unfortunately, very few assets seem to have been acquired, and the asset pool is very modest indeed.
Effect on earning capacity – s.79(4)(d)
The order I prcpose to make will be unlikely to have any effect on the earning capacity of either party.
Section 75(2) factors
In this case, there appears to be little if anything in the way of a s.75(2) factor. The husband was born on 9th November 1927 and the wife was born on 9th June 1930. They are respectively 78 and 76 years old. Both the husband and wife receive the Age pension.
Neither party is in good health. The husband annexed a Centrelink document to one of his affidavits, showing that he suffers from
osteo-arthritis, depression, atrial fibrillation, aortic stenosis and a cataract. Neither party has any physical capacity for appropriate gainful employment.
Neither party has the care and control of any child of the marriage or any commitment to support any other person.
Neither party has any entitlement to any superannuation fund. Prior to separation, the parties’ standard of living was reasonable, but it is a fair inference that it may have deteriorated slightly.
Neither party has re-partnered.
Having considered all of the relevant s.75(2) factors and the size of the asset pool, I am not satisfied that the s.75(2) factors favour either party. In my view, the matrimonial property should be equally divided between the parties.
Just and equitable
Sub-section 79(2) 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. A just and equitable outcome has to be considered not in percentage terms but rather in terms of the assets that the parties would ultimately hold (Russell & Russell (1999) FLC 92-877; Phillips & Phillips (2002) 29 Fam LR 128; FLC 93-104).
In this case, the order that I propose to make will see the wife receive a sum of money. It will not assist her to purchase any real estate but it will allow her to purchase a few items to make her life more comfortable. I have considered the overall asset position of the parties and I am satisfied that, in all the circumstances, the orders that I propose to make are just and equitable.
Conclusions
The wife will receive 50% of the net property of the parties, or $7,154.00. The husband will retain a similar amount.
The entitlement of the wife will comprise the following:
a) St. George Bank account
$495.00
b) 1988 Nissan Pintara
$400.00
c) Furniture and appliances
$1,000.00
d) Payment by husband
$5,259.00
TOTAL
$7,154.00
The entitlement of the husband will comprise the following:
a) 1980 Nissan Pintara
$2,000.00
b) Furniture and furnishings
$1,000.00
c) Clothes, tools and books
$1,000.00
d) Cash after payment to wife
$3,154.00
TOTAL
$7,154.00
The parties will be responsible for paying their own credit card debts.
It is regrettable that this matter had to be litigated. Fortunately, the wife’s lawyer acted pro bono and did not seek an order for costs, although I would have considered an order in the circumstances. It is to the credit of Mr Morgan, who appeared for the wife, that he acted for her without charge.
In my view, the litigation was caused because the husband clung obstinately to the idea that the wife had somehow retained and hidden the proceeds of sale of various during the marriage. The notion was implausible, especially as the husband deposed that the wife had somehow sold land held by the parties as joint tenants without explaining how he could have avoided noticing, especially as both parties would have had to sign the memorandum of transfer. He provided no explanation at all as to how these transactions could have passed unnoticed for years. The husband issued various subpoenas which produced no material at all, and relied on a cross-examination of his wife to make his case that she had misappropriated some funds. In the end, he produced not a shred of evidence to support his claim.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 14 June 2006
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