H & T
[2002] FMCAfam 209
•9 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & T | [2002] FMCAfam 209 |
| FAMILY LAW – Property settlement – settlement in relation to short marriage – significant section 75(2) factors – where asset pool is small. |
| Applicant: | B J H |
| Respondent: | E T |
| File No: | (P)MLM 8987 of 2001 |
| Delivered on: | 9 July 2002 |
| Delivered at: | Warrnambool |
| Hearing Date: | 8 July 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Husband appeared in person |
| Counsel for the Respondent: | Mr Noel Kennedy |
| Solicitors for the Respondent: | Melville, Orton & Lewis 66 Thompson Street HAMILTON VIC 3300 |
ORDERS
THAT the Wife forthwith do all things necessary to transfer to the Husband all her right title and interest in the 1994 Toyota Landcruiser motor vehicle registration number … … presently in the possession of the Husband.
THAT the Husband forthwith do all acts and things necessary to sell the property situate and known as 13 S H, G in the State of Western Australia being the whole of the land in Certificate of Title Volume … , Folio … (“the real property”) and to apply the proceeds of sale as follows:
(a)in payment of all costs and expenses of sale;
(b)in payment of outstanding rates and charges;
(c)in payment of the amount necessary to discharge the mortgage secured on the property;
(d)in payment to the Husband of the sum of $24,880.00 in re-imbursement of various agreed liabilities paid by him;
(e)in payment to the Wife of 45% of the sum calculated as follows:
by the sale price less;
(i)costs and expenses of sale:
(ii)outstanding rates;
(iii)the amount required to discharge the mortgage, but fixed at a maximum of $96,500.00; and
(iv)$24,880.00; and
(f)to pay any balance then remaining to the Husband.
THAT pending the sale the Husband have the sole right to occupy the real property, and during such right of occupation the Husband pay all installments pursuant to the mortgage and all rates, taxes and apportionable outgoings for the real property as they fall due.
THAT the Husband indemnify the Wife against all liability in respect to the debts to the Husband's parents, his brother, the ANZ Visa and the ANZ personal loan.
THAT the Husband deliver up to the Wife (at her expense) the following:
(a)the breadmaker;
(b)two single bed bases;
(c)two double beds, including matress and base;
(d)the Wife's personal possessions;
(e)washing machine;
(f)refrigerator;
(g)drawers in the nursery;
(h)drawers in the bedroom;
(i)a cot;
(j)table and chairs; and
(k)Promaths CD.
THAT each party retain and be entitled to all assets in their possession as at the date of these orders including any choses-in-action, and in particular;
(a)each party be entitled to any insurance policies of which they are the owner;
(b)each party be entitled to any superannuation of which they are the owner; and
(c)each party be liable for and indemnify the other in relation to any liabilities attaching to any asset in their possession.
IT IS FURTHER ORDERED
THAT the Husband pay the Wife’s costs fixed at $1,500.00, such sum to be paid to the Wife from the proceeds of the sale of the real property.
IT IS DIRECTED
THAT the applications otherwise be dismissed and the matter removed from the list of matters awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 8987 of 2001
| B J H |
Applicant
And
| E T |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
This matter concerns competing applications for property settlement between the husband and the wife. The issue is how the net assets of the parties amounting to approximately $59,000 should be divided.
Background
The husband originally applied to the court over the issue of residence and contact to the child of the parties, J H (“J”) born 1 May 1999, who is three. In February 2002 orders were made by consent, dealing with parenting issues. As a result of those orders, J lives with his mother. The husband has contact with him as follows:
a)each alternate weekend between Friday and Sunday;
b)in each other week from Sunday until Tuesday;
c)alternate Christmas Days;
d)two weeks during the Christmas holidays and a further two weeks during the year;
e)on other special days.
The orders also provide that neither parent may locate the child more than 200 kilometres from Hamilton without the consent of the other. It is fair to say that the husband has significant contact with J. In her response to parenting issues the wife raised property matters and thus the issue of property settlement comes before me now.
Conduct of the proceedings
There are factual issues remaining between the parties, although they have managed to agree on many issues leaving it to the court largely to carry out the discretionary task of adjusting their interests in the property. To the extent that there are unresolved issues, neither party sought to cross-examine the other as to those issues. My findings therefore will be confined to unchallenged or agreed matters. I will specifically refer to disputed facts where relevant.
The evidence
The parties commenced living together on 1 March 1997. They were married on 23 October 1999 and finally separated on 11 August 2001. The husband is aged 39 and is a full-time shearer. The wife is 41 and is a wool classer and shearer by occupation. She is at present caring for J aged three and her two other children who are aged 15 and 12. At the commencement of cohabitation the husband owned a property at
S H, G in Western Australia which was subject to a mortgage. He also owned a motor vehicle and sundry tools and equipment and had some savings. The wife owned some furniture and modest possessions.
Although there was no precise valuation of S H, the husband has agreed to a sale of the property and a division of the net proceeds after payment of certain expenses which have now been agreed. It is common ground that the property has been on the market for $190,000, but in order to sell it after commission and sale costs, the equity is likely to be about $180,000. After deduction of the mortgage of $96,500, as agreed, and other agreed debts being Visa cards, personal loan and debts to the husband's family which total $24,880, the ultimate net equity is likely to be about $59,000. It is also common ground that the husband has superannuation benefits of approximately $12,000 from the Australia Primary Superannuation Fund, some of which he had prior to the commencement of cohabitation. The wife has $800 in superannuation.
The law
The approach to the determination to an application under section 79 is well established by authority (see Lee Steere v Lee Steere (1985) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-335 and Clauson v Clauson (1995) FLC 92-595. The process involves a four-part procedure. First, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c) inclusive. Thirdly, evaluating the matters contained in section 75(2) insofar as they are relevant. Finally, in determining what order the court should make under section 79 the court must be satisfied in all the circumstances that it is just and equitable to make the relevant orders. It is the justice and equity of the actual orders that the court must consider (see
Russell v Russell(1999) FamCA 1875.
The property and liabilities of the parties
The parties agree that there will be approximately $59,000 available from the sale of the property in G. In view of the uncertainty of what the property will realise, that sum must obviously be an approximation. The husband has a Toyota motor vehicle with a value of approximately $10,000 and there are some chattels and the husband's tools. No formal valuation has been obtained of the household chattels and of the tools and there is no real agreement by the parties as to their value. It is agreed that the wife will retain what chattels she has, subject to delivery up to her by the husband of certain agreed items. It is also agreed that he will retain the tools in his possession.
The wife says in her financial statement that the chattels in her possession are worth about $1000. The husband originally valued his tools at about $5000, although he says in his submissions that they are not worth much as second-hand items. Nevertheless, they are valuable to him. Given the uncertainty of the value of these assets, in my view, it is appropriate that the parties retain the chattels presently in their possession subject to the items which are come to the wife and that I should make no further adjustment on account of the chattels. The items which it has been agreed should go to the wife will be obvious from the orders that I will ultimately make.
Contributions
The wife does not challenge the fact that the husband brought in to the relationship the property at G worth approximately $180,000 which had a mortgage of approximately $106,000 and that he had savings of about $9000. She does, however, dispute the allegations made by the husband that she did little work during the marriage. Although the husband was the main income earner during their cohabitation, the wife did earn some income, but her main contribution was as a parent and homemaker.
The nature of the financial arrangement between the parties was that the husband paid the mortgage and outgoings on the property and otherwise paid for the personal loans. When the parties were renting, as they often lived away from S H, the wife asserts that she put her income towards their rent and general living expenses. It appears from the husband's material that there were times when J was placed in childcare when the wife was working. Clearly, during that period she was making a financial contribution generally to the welfare of the family.
The fact that the husband was the major financial contributor during the marriage and brought the assets in, does not, as he argues, make him the sole contributor to those assets. Section 79(4) requires the court to look at the entirety of the contributions, both financial and non-financial, to the welfare of the family as well as to the acquisition, conservation and improvement of their assets. Those contributions are not required in an evidentiary sense, to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
Although it is clear that the husband was a significant contributor to the care of J and also assisted in the care of the wife's other two children,
I find that the wife was the primary caregiver for the children during the relationship. In that sense, she made significant non-financial contributions, as well as financial contributions from time to time, although less than the husband's. It is clear that non-financial contributions must be given significant and not token weight. It is also the case that even though the husband brought the S H property into the marriage, subsequent contributions, particularly in the capacity as parent and homemaker, can entitle the wife to a share of that property and to some extent erode the initial contributions.
As the Full Court said in Querasimini v Querasimini (1999) FamCA 1314:
“There is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with the particular contribution. It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome which is both appropriate and just and equitable. In some cases particular, contributions may be outweighed or equalled by other ones. In other cases, particular contributions may be so disproportionate to other contributions as to merit special recognition.”
The husband argued that I should regard the wife as having made little or no contribution to the property S H largely because the property now has approximately the same equity or thereabouts, perhaps even less than it had at the time when the parties commenced cohabiting and therefore in that sense it could not be said that the wife has contributed to the building of any assets. However, I would not be properly taking into account the contributions made by the wife if I accepted that argument. Giving weight to her non-financial contributions and to the financial contributions she made, I must look not only at the equity in the property to see whether it increases or decreases, but rather give weight to the contributions which both parties made which cannot easily be measured in simple dollar terms, as the husband would suggest.
However, the husband's financial contributions, especially pre-marriage have been overwhelming in this case, and he has also made contributions to the welfare of the family constituted by the wife's other two children during their four-year cohabitation. It is of course a case in which the cohabitation was for a reasonably short period and for that reason the husband's initial contributions must be given significant weight. In my view, there should be a division in relation to contribution as to 80 per cent to the husband and 20 per cent to the wife.
Section 75(2) factors
As to the age and state of health of the parties, the parties are reasonably close in age and both in reasonable health. The husband has indicated that as he gets older he will have more difficulty in earning a similar income to that which he is now earning from his shearing, although the wife says in response to this that if the husband is working less or at least earning less, then the child support that he is presently paying will reduce commensurately. The income, property and financial resources of the parties are reasonably limited. There is a modest equity in the S H property and the parties have few other assets. The husband has some superannuation available to him, but even this is not an enormous amount. The husband earns a modest income.
The husband has the capacity to continue to work as a shearer, although as he gets older that capacity may reduce. The wife has the capacity to work as a wool classer and shearer, but her capacity is limited by the fact that she has three children, but more importantly a three year old to care for and is also limited by the fact that she is required to live in a 200 kilometre radius of Hamilton which, in my view, must limit her opportunities for employment. It is relevant, in my view, that the wife has the care and control of three children; two teenagers aged 12 and 15 and J aged three. All of those children are relevant to considerations under this subsection. The husband also has significant contact with J and that also is a relevant consideration. The husband also has superannuation, and, as I have indicated, although it is a fairly modest sum, it is substantially greater than the superannuation to which the wife might ultimately be entitled.
What then is a proper adjustment under section 75(2)? The assets of the parties are modest and so is the superannuation. In some senses the smaller the asset pool the more critical the adjustment for other factors beyond contribution may be. Having regard to the matters under section 75(2), in my view, it is appropriate in this case to make a 25 per cent adjustment in favour of the wife largely because of the different income earning capacities and the husband's superannuation. The husband argued that the wife's care of the child is taken account of by the fact that he pays child support, however, I do not accept that argument. The child support is paid to assist with day to day costs. The adjustment under section 75(2) reflects other things such as the limitation on the Wife’s capacity to go and work due to her responsibilities for the care of the children. That must be given, in my view, some significant weight when compared to the husband's capacity to work.
Conclusion
Therefore, after taking into account the 20 per cent share for contribution and the further 25 per cent adjustment for section 75(2) factors is that the wife should ultimately be entitled to receive 45 per cent of the assets of the parties and the husband to receive 55 per cent. When I consider whether the result arrived at by these proportions is just and equitable I am satisfied in the circumstances of this case that that will result in a just and equitable resolution of this matter.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate:
Date:
5
2
0