Heale and Heale

[2007] FamCA 828

FAMILY COURT OF AUSTRALIA

HEALE & HEALE [2007] FamCA 828

FAMILY LAW - PROPERTY SETTLEMENT - Contributions - Adult child maintenance for daughter suffering mental illness

APPLICANT: Mrs Heale

RESPONDENT: Mr Heale

FILE NUMBER: BRF 20080 of 2006

DATE DELIVERED: 16 August 2007

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Monteith J

HEARING DATE: 6 & 7 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Willis

SOLICITOR FOR THE APPLICANT: South & Geldard Solicitors

COUNSEL FOR THE RESPONDENT: Mr Fellows

SOLICITOR FOR THE RESPONDENT: Paul Loane Solicitors

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: BRF 20080  of 2006

Mrs Heale

Applicant

And

Mr Heale

Respondent

REASONS FOR JUDGMENT

introduction

1. This is the return of an application brought by the wife against the husband seeking alteration of property interests and lump sum maintenance for H pursuant to s66L of the Family Law Act.

2. With respect to the alteration of property interests, Mrs Willis, who appeared on behalf of the wife, submits that I should alter the property interests by giving 65 per cent to the wife and 35 per cent to the husband.  On the other hand, Mr Fellows, who appeared on behalf of the husband, submits that I should alter the property interests by giving 55 per cent to the husband and 45 per cent to the wife.

3. With respect to the maintenance to be paid to the adult child, H, pursuant to s66L both counsel have agreed on the form of order that I should make and it is therefore unnecessary for me to deal with this issue other than the way it impacts upon s75(2) factors.

background

1. The husband was born in January 1958 and the wife in October 1963.  They were married on 21 May 1983.  As a result of their union, they had three children, J, born in November 1984, T, born in July 1986 and H, born in February 1988.

2. All of the children are now adults and J and T are living independently. However, H is suffering from a severe mental disability and is living with and being cared for by the wife. This is the reason for the need for an order under s66L.

3. In September 2004, H disclosed that she had been sexually abused by the husband over a number of years and as a result of that disclosure the parties separated on 8 September 2004.

4. The husband was subsequently charged as a result of the sexual abuse and sentenced to a term of five years imprisonment which he commenced serving on 19 May 2005.  He served the minimum term of 20 months and was released from prison on 18 January 2007.

5. From the time of separation, the wife has had the sole care and responsibility of H which has been a considerable burden upon her.  I will deal in more detail with that later in my judgment.

6. From the time that the husband was sentenced to imprisonment until his release, the wife had to shoulder the burden of running the farming properties of the parties and controlling their business interests save for the assistance that she got from her two sons and her father.  Again, I will deal with this in more detail later in the judgment.

7. From the time that the husband was released from prison, he resumed residence upon the property, B, and resumed control of the farming interests. 

principles applicable to the matters before the court

1. The provisions of s79 of the Family Law Act define the Court’s power and obligations in determining applications for property settlement.  The Court has a discretion to make orders altering the interests of parties in property, provided the Court is satisfied that such orders are appropriate, just and equitable.

2. The Court is obliged by the provisions of s79(4) to take into account the following matters:

   (a)the financial and non-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 (sub-paragraphs (a) and (b));

   (b)the contribution made by a party to the marriage to the welfare of the family, including any contribution made in the capacity of homemaker or parent (sub-paragraph (c));

   (c)the effect of any proposed order upon the earning capacity of either party to the marriage (sub-paragraph (d))

   (d)the matters referred to in s75(2) so far as they are relevant (sub-paragraph (e));

   (e)any other order made under the Act affecting a party to a marriage or a child of the marriage (sub-paragraph (f));

   (f)any child support payable (sub-paragraph (g)).

   Accordingly, in assessing the entitlement of each of the parties to property settlement, there is both a retrospective element relating to the contributions of each of the parties and a prospective element relating to matters referred to in s75(2).

   According to guidelines established through a series of leading decisions, the court should determine the following matters on the evidence, that is:-

• Firstly, the Court must determine the assets, liabilities and financial resources of the parties to the marriage.

• Secondly, the Court must consider all relevant contributions of each of the parties and, where, possible, the Court should assign an entitlement of each of the parties arising as a result of those contributions.

• Thirdly, the Court should then consider the prospective components of the claims of each of the parties arising as a result of the provisions of s75(2).  The Court should then identify what alteration, if any, should be made to the entitlement of each of the parties earlier assessed on account of contributions as is deemed necessary having regard to the s75(2) factors.

• Fourthly, having determined and considered the entitlement of each of the parties to property settlement, the Court should consider whether there is, in addition, any entitlement to spousal maintenance, either periodic or lump sum, in accordance with the provisions of ss72 and 74 of the Family Law Act.

assets and liabilites of the parties

1. Counsel have provided me with an Agreed Statement of Assets and Liabilities which became Exhibit C in these proceedings.  I set it out hereunder.

   Grazing properties

   B property  $1,085,000.00

   L property  $   700,000.00

   S property  $1,165,000.00

   $2,950,000.00

   Personal property in possession of husband

   Livestock, semen and containers  $319,000.00

   Plant equipment and motor vehicles               $116,745.00

   500 Telstra shares  $    1,957.00

   Household furniture  $    2,500.00

   Church Lay Persons account       $     513.00

   Joint Suncorp account  $    2,000.00

   Suncorp account (Heale Family Trust)   $    9,000.00

   Joint Suncorp term deposit  $  78,364.00

   Suncorp Account no. …  $     500.00

   Suncorp Account no. …  $  16,005.00

   Add back, legal costs criminal proceedings      $  21,095.00

   $  567,679.00

   Personal property in possession of the wife

   500 Telstra shares  $    1,957.00

   Household contents  $    2,500.00

   Suncorp account …  $    2,989.00

   Suncorp account …  $  23,871.00   

   Suncorp account …  $171,373.00

   Camry motor vehicle  $  16,000.00

   $  218,690.00

   Superannuation

   Wife’s interest Zurich  $  51,849.00

   Wife’s interest in AMP Super            $     786.00

   Husband’s interests in Zurich  $124,560.00             

   $  177,195.00

   TOTAL ASSETS INCLUDING SUPERANNUATION  $3,913.564.00

   Liabilities

   R CompanyCar Loan  $  13,000.00
             H cattle sale moneys       $  15,000.00
     $     28,000.00
   NET PROPERTY POOL  $3,885,564.00

contributions

1. The husband was born in V and his parents were dairy and pig farmers.  He used to work on the farm after school and after leaving school he worked full time on his parents’ property.  In 1975, his parents gifted to him and his two brothers a quarter share each in the family grazing property, P.  In 1981/82 he purchased the one quarter interest from each of his brothers for $20,000.00.  Neither the husband nor the wife were cross-examined and it is not entirely clear what paragraph 8 of his affidavit means but I assume he paid each of his brothers $20,000.00.  If that be so, by the time of the marriage he owned 75 per cent of P property which on those figures would have been worth approximately $60,000.00.  In addition, he owned a tractor worth approximately $10,000.00 and a motor vehicle worth approximately $5,000.00.

2. In addition, he was in a piggery and cattle breeding partnership with his parents with the husband having a 50 per cent interest.

3. At the commencement of the marriage, the wife had savings of approximately $4,000.00, household chattels and a horse and saddle.  Her $4,000.00 were used to pay for the honeymoon. 

4. Following the marriage, the husband and wife lived on the property, P, which was approximately 14 kilometres from V and the wife continued to work as an administration officer for a publisher in V.  She continued to work full time until June 1984 when she left just prior to the birth of J.  During that period the parties lived off her wage and when she ceased work, arrangements were made for the husband to receive drawings of $1,000.00 per month from the family partnership.  She returned to work casually in 1996 and 1997 and her income was used for general household expenses.

5. In 1984, the wife received a gift from her parents of $1,500.00 representing the proceeds of an endowment policy which she used to purchase cattle which were later sold and the proceeds used to install a swimming pool at P.

6. In 1985, the husband and wife purchased a property called, L, for $180,000.00 utilising borrowings to meet the purchase price.  Although there is no direct evidence on the point, I infer that the husband’s interests in P and the family partnership were used to assist in obtaining the finance.  There is no other explanation for their ability to borrow the full purchase price.

7. Apart from the wife being the mother and homemaker, she also kept the books for the farming properties and partnership from 1988 through until January 2007 on the release of the husband from prison.

8. In addition from her primary responsibility for the care of the three children, the home and the bookwork, she assisted the husband on the properties by helping to feed cattle, check on water supply, working in the piggery, etcetera. 

9. In 1994, the husband’s father transferred to the husband his 25 per cent interest in P property which appears to have had a value then of approximately $105,000.00.

10. In addition, his parents transferred to both the husband and wife their one half interest in the partnership subject to them being required to pay the sum of $1,000.00 per month to the husband’s parents for life.  This payment was made until the husband’s mother died in August 1996.  It would seem that this half interest in the partnership was worth approximately $50,000.00. 

11. In 1995, the wife’s father gifted to her $100,000.00 which was used to pay out the balance of the loan owing in respect of the purchase of L property. 

12. In March 1996, the husband and wife purchased a grazing property called, S, for $510,000.00.  The entire purchase price was borrowed from the wife’s parents secured by a mortgage over the property.  I accept the evidence of

    
    

    Mr D, which became Exhibit A in these proceedings, that the interest rate charged by the wife’s parents was at a discounted rate.  In addition, I accept the evidence that it was provided by her parents to them to enable them to purchase S property on an unconditional contract which gave them an advantage over other purchasers.

13. In August 1996, the husband’s mother died and he inherited $69,974.00 together with a property called, E.  There is no direct evidence of the value of that property at the time it was inherited, but it was sold for $188,000.00 in September 2002, the sale price was used to in part repay the loan owing to the wife’s parents.

14. In October 2003, the husband and wife purchased a grazing property known as, B, for $535,000.00.  $540,000.00 was borrowed from the wife’s parents which together with what was left owing on the previous loan from her parents meant that the husband and wife owed the wife’s parents $670,000.00.  Again, I accept the evidence of Mr D that it was at a discounted interest rate.

15. In December 2004, P property was sold for $730,000.00 and the proceeds of sale were used to pay out the loan to the wife’s parents.  The wife asserts that the pay out figure was $640,000.00 and the husband asserts it was $670,000.00 but in any event the husband retained the balance.

16. The wife’s father was also a grazier and helped the husband and wife out from time to time, particularly after 1994, where he assisted regularly on the properties helping with fencing, cattle work and tractor work.

contributions as at date of separation

1. Mrs Willis, on behalf of the wife, submits that contributions as at date of separation should be 45 per cent to the wife and 55 per cent to the husband.

2. Mr Fellows, on behalf of the husband, submits that contributions should be 62.5 per cent to the husband and 37.5 per cent to the wife.

3. Each acknowledges that there should be a recognition of a greater contribution by the husband having regard to his initial contributions and subsequent contributions obtained from his family.  The question is the degree to which that should be recognised.

4. This issue has been extensively debated in this Court over a number of years and has recently been considered by the Supreme Court of New South Wales -  Court of Appeal in Kardos v Sarbutt a Judgment of Basten JA, Hunt AJA and Brereton J in which Brereton J wrote the Judgment.  At page 668 he sets out an analysis of the cases which I have found helpful and I reproduce here:

   [65] In Pierce & Pierce (1998) 24 Fam LR 377; (1998) FLC 92-844; [1998] FamCA 74, the Full Court of the Family Court (Ellis, Baker and O’Ryan JJ) explained the significance of initial contributions and their “erosion” in a way which makes clear that, with the passage of time in the course of a relationship, substantial initial contributions may in an appropriate case be eroded by the offsetting and ongoing contributions which result more and more in there being a totality of contributions, including of a non-financial kind, not all of which can be satisfied in full out of the available pool. As a result, all contributions, including those made at the outset, are “eroded”, in the sense that they cannot all be satisfied in full:

   [25] In addition to referring to a short passage from the judgment of Fogarty J in In the Marriage of Money (1994) 17 Fam LR 814; FLC 92-485, the trial judge noted that the passage was cited with approval by the Full Court (Nicholson CJ, Baker and Tolcon JJ) in In the marriage of Bremner (1994) 18 Fam LR 407; (1995) FLC 92-560.

   [26] In Way and Way (1996) FLC 92-702, the Full Court (Barblett DCJ, Finn and Butler JJ), said at 83,404:

   “In the subsequent Full Court decision in Bremner all three Judges expressly preferred the approach taken by Fogarty J in Money over that taken by Lindenmayer J in the same case.  Thus, and notwithstanding the attempts by Counsel for the husband in this case to demonstrate that there was some inconsistency between what Fogarty J said in Money and what was actually said in the joint judgment of the Full Court in Lee Steere, we regard the law in this area as now settled by the statement by Fogarty J in Money (and subsequently accepted by all members of the Full Court in Bremner) that ‘… an initial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party’.”

   [27] However, it is important to put that quotation in its correct context.  Fogarty J in In the Marriage of Money said at Fam LR 816; FLC 81,054:

   “I am unable to agree with the criticism by his Honour in the passage in his judgment immediately after that quotation or of his analysis of the issues involved.  In an appropriate case, in my view, an initial substantial contribution by one party may be ‘eroded’ to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party.  I fell, if I may say so with respect, that his Honour’s formulation to the contrary is unrealistic and does not correspond with common experience in the court in many of these cases.

   I think it is legitimate for me to say, as I was a member of the Full Court in In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91-626, that His Honour has read too much into the passage to which he refers and that the term ‘off-setting contribution’ does not necessarily mean ‘greater contribution’. It simply reflects the circumstance that the respective contributions of the parties over a long period of marriage ‘offset’ the significance which might otherwise be attached to a greater initial contribution by one party. This is, in my view, made clear by the Full Court in White (1982) 8 Fam LR 512; FLC 91-246 where that court pointed out that the principle in Crawford (1979) 5 Fam LR 106; FLC 90-647 is that the original contribution should not be carried forward as a mathematical proportion; ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be later factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.”

   [28] 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 weigh 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;  see also C & C (Full Court, Sydney, 19 May 1995, unreported) at pp21-2 of the joint judgment of Ellis, Lindenmayer and Finn JJ and Z & Z (Full Court, Sydney, 3 October 1996, unreported) per Ellis J at p 10.

5. It is important to recognise that every five per cent in this case represents approximately $200,000.00 in the asset pool.  On the wife’s argument, that would weight the husband’s contributions as at separation at approximately $400,000.00 out of approximately $4,000,000.00.  That seems to me to be totally inadequate having regard to the considerable contributions that he brought into the marriage and contributed thereafter.  On the other hand, on Mr Fellow’s argument, it would weight the husband’s contribution at 25 per cent or approximately $1,000,000.00 out of $4,000,000.00.  That seems to me to over-recognise the husband’s contributions having regard to the other significant contributions of the wife over a long marriage.

6. I think that the appropriate apportionment of contributions as at the date of separation should be 60 per cent to the husband and 40 per cent to the wife, that equates out of the asset pool to a differential of $777,113.00.  That seems to me to more accurately reflect a recognition of the husband’s initial and additional contributions including those made by his family over and above the contributions made by the wife and her family.

post separation contributions

1. Separation occurred in September 2004 but as early as May 2004 H was exhibiting health difficulties.  The mother became aware that H was suicidal in May 2004 and thereafter travelled fortnightly with H to F for her to attend upon a Dr C for counselling.  H was hospitalised in July 2004 for some 10 days and during that period the wife became aware that H had been subjected to sexual abuse.

1. H’s emotional state continued to deteriorate requiring the wife to spend increasing time with her.

2. In September 2004, when H’s condition had deteriorated even further, the wife first found out that H had been sexually abused by the husband.  Shortly thereafter, H attempted suicide. 

3. Following upon that, the husband was charged by the police and the wife and H moved out of the homestead whereas the husband continued to live at the homestead on P property until he was incarcerated.

4. Just prior to his incarceration, the husband agreed to sell P property, which as I have indicated, was used to repay the wife’s parents debt.

5. After the husband was incarcerated, the wife and H returned to the homestead and the wife assumed management for and care of the three properties, B, S and L.  B property is approximately 980 acres, S property is 1100 acres and L property is 660 acres.  They had approximately 550 head of cattle pastured between the properties.

6. As the wife had not recently been involved in the running of the cattle, it was necessary for her to muster quite regularly to familiarise herself with which cattle for ready for sale, which cattle needed to go on grain feeders and which cattle needed to be weaned.  She handled the cattle regularly by working them through the cattle yards and she received assistance from her father and her two sons.

7. In addition it was necessary for the wife to keep a constant watch on H because of her mental health and her suicidal tendencies and as a result the wife took H with her almost everywhere.

8. In addition to the normal work on a cattle station, there were matters relating to windmills, watering, fencing and the like.  She had to organise stock for marketing, do all the accounts and bookwork and generally run a substantial grazing enterprise.

9. H’s condition deteriorated and the mother had great difficulty in getting her to attend school.  She was monitored and counselled by the school counsellor but she only attended school spasmodically.  2005 was her Year 11 and she was not able to undertake Year 12.

10. During this period, the wife’s primary concern was caring for H and the wife was gravely concerned for her welfare.

11. On the husband’s release from prison, he insisted on returning to the homestead and as a result the wife and H left the homestead and obtained rented accommodation in V.

12. Since separation, H has continued acts of self harm and been hospitalised on several occasions.  She is under constant medical care.

13. H was hospitalised at F between 8 September 2004 and 25 September 2004 following an overdose of antidepressants and antibiotics.  During this period, the wife stayed close to the hospital so she could spend each day at the hospital with H.

14. Between 7 October 2004 and 11 October 2004, H was again hospitalised following a deterioration in her condition and suicidal thoughts.  The mother was required to stay in a bed next to H at the hospital to monitor her because the hospital did not have a secure ward and H had tried to self harm with a knife.

15. In late December 2004, H again overdosed to such an extent that she was vomiting blood and incoherent and the mother had to drive her 80 kilometres to a surgery where she was then transferred by aerial ambulance to intensive care at a Central Queensland regional hospital.  She was admitted for approximately three weeks.

16. In late 2005, H was again admitted to the Central Queensland regional hospital as a result of threats to kill herself. 

17. During 2005, H continued to self harm causing multiple scars to her wrists, arms and has etched the word “hate” into her thighs.  During this period, the wife found H with butchers’ knives cutting her legs on numerous occasions.  During this period, she would travel with H to G once a week for her to consult with her case worker and twice a week to the V Hospital.

18. In August 2006, H’s condition again deteriorated markedly after finding a letter from the husband and the wife thought it might be to H’s benefit to spend some time with her brother, T.  This did not last long and the wife received a phone call from T asking for immediate help.  She drove the 100 kilometres to T’s property where H was extremely suicidal having already tried to cut her throat with a very sharp knife.  She was then admitted to the V Hospital for five days and the wife stayed with her parents in V so she could visit the hospital each day.  As a result of all of this, she was admitted to a Brisbane mental health facility.  The wife travelled to Brisbane to be with her and stayed during her period of hospitalisation.

19. Around Christmas 2006, the mother took H to a health resort in an effort to help rehabilitation, but again things went badly and H locked herself in a toilet and slashed her wrists with a razor blade requiring her to be taken by ambulance to the nearby Hospital requiring stitches to her wrists and psychiatric counselling.

20. During 2007, the wife has moved with H to rented accommodation in V but she has continued to self harm and take excessive medication requiring most recently admission to the Emergency Unit at the Central Queensland regional  hospital in June 2007.

21. Mrs Willis, on behalf of the wife, contends that post separation contributions to the wife should be 10 per cent whereas Mr Fellows contends that they should be 3.5 per cent.

22. It is necessary to bear in mind that it is not simply the 20 month period that the wife ran the farming properties whilst the husband was incarcerated but it is the three years since separation where she has had the complete burden of looking after H.  As I have previously indicated, every five percent in this case represents approximately $200,000.00.  On Mr Fellow’s calculation of 3.5 per cent, that amounts to $135,995.00.  On Mrs Willis’s calculation of 10 per cent, that represents $388,556.00.

23. Even taking into account the fact that it is a three year period not a 20 month period, a 10 per cent allowance for post separation contributions seems to me to be excessive having regard to the size of the pool.  On the other hand, 3.5 per cent adjustment seems to be quite inadequate to compensate for what has been a most difficult period for the wife.

24. Doing the best I can I think a seven per cent adjustment is appropriate which converts to a dollar figure of $271,989.00.

section 75(2) factors

1. The wife has not worked full time outside the home since prior to the birth of their eldest son except for some casual office and sales work in 1996/97.

2. Her health has deteriorated by reason of the stresses to which she has been subjected as a result of the husband’s behaviour towards H, her attempts to care for H as well as the responsibilities thrust upon her with respect to the parties’ properties.

3. Since moving the support of her family has been diminished and she is not able to call on them to assist in the care of H so that she can have some respite.  The move was precipitated by the husband’s release from prison and his return to the homestead.  It is the wife’s case that it was in H’s best interests to distance her residence from the area where the husband resided and that she had no choice but to relocate away from the V district.

4. As a result of the stresses on her, she has had from time to time to seek counselling and assistance both for herself and to obtain guidance in caring for H.  She required thyroid surgery in February 2007.

5. If the wife was not required to supervise H on a daily basis, her prospects of employment would be limited to domestic positions such as cleaning and she does not have any particular skills for employment.

6. The evidence with respect to H’s health is contained in two affidavits, one by Dr B, a consultant psychiatrist at N and Dr M a consulting child’s psychiatrist in Central Queensland.

7. The most recent report from Dr V is dated 6 July 2007 and insofar as relevant reads:

   In my opinion, [H] is suffering from Complex/Chronic Post Traumatic Stress disorder which is severe.  This has arisen as a result of the repeated sexual assaults perpetrated by [her father] from when she was seven or eight until she was 12 to 13.  In particular, [H] continues to re-experience the abuse in a number of ways which include recurrent and intrusive flashbacks as well as distressing dreams pertaining to aspects of her abuse.  She continues to experience intense psychological distress (anxiety and depressed mood) when exposed to any reminders of her abuse.  She has engaged in a number of activities in an attempt to avoid any reminders of the traumas she experienced.  This is almost impossible unfortunately given her circumstances which include ongoing issues such as this property settlement.  She has experienced marked symptoms of depression and anxiety (evidence of increased arousal) ever since the traumas were perpetrated upon her.  These symptoms are so severe as to prevent her from forming ordinary and sustaining interpersonal relationships outside of those with her mother and some members of her family and some of her therapists.  She has very limited contact with previous friends and she and her mother have felt they needed to move away from the area in which they lived.  As a result of her intense psychological distress, she is totally unable to work at present.  It is difficult to know whether and when she will be able to engage in formal studies or a specific occupation at this stage.  At times, her psychological distress is so great that she has felt unable to go on.  There have now been a number of specific attempts at suicide and, unfortunately, [H] is almost always aware of suicidal thoughts and the possibility of acting on these. 

8. She goes on to describe treatment and in particular pharmacology and concludes by saying:

   I would like to restate that this young woman is suffering from a very severe and chronic form of mental illness which is resulting in her being unable to work effectively and may impact on her capacity to work for many years to come.  I would support the application to the Family Court that the property settlement be made with these considerations in mind.

9. Dr M, in a report dated 16 November 2006, reported:

   [H] has an ongoing and severe Post Traumatic Stress Disorder resulting from many years of sexual abuse by her father.  She remains very ill and takes substantial doses of antipsychotic and antidepressant medication in an attempt to contain her distress.  She continues to have ongoing preoccupations with suicide as a result of her distress.  The admissions to hospital in [V] and [Brisbane] were not a reflection of any new development for [H] but were part of ongoing attempts to provide relief for her unrelenting levels of distress.  Neither admission was helpful in retrospect and [H] remains distressed and her suicide risk remains high.

   The release of her father from prison will greatly increase both [H’s] distress and her suicide risk.

   I am concerned that she will not survive his release, particularly if he returns to the community where she lives.

10. In his last report dated 5 April 2007, he opines:

    [H] has a severe Post Traumatic Stress Disorder, the result of years of sexual abuse by her father, […].  I understand she applied for a DVO.  It is important for [H’s] treatment progress and emotional health, that she doesn’t have any contact with her abuser.

11. H is now 19.  It appears that she will be the sole responsibility of the wife for many years to come.  From the history given by the wife, the past three years have been an enormous drain on her.  There seems little reason to believe that things are going to improve in the near to medium future.  The wife has, in effect, been a carer for H for the last three years and is likely to remain so into the foreseeable future.

12. It has been agreed that H’s living expenses total $554.00 per week and the cost of maintaining her is to be divided equally between the husband and wife.  The lump sum adult child maintenance award will reflect an order that the husband pays $227.00 per week for H’s maintenance.  On the other hand, the wife will be responsible for the other half, namely, $227.00.

13. Mrs Willis, on behalf of the wife, contends that I should make an allowance of 15 per cent for s75(2) factors which amounts to $582,835.00.  Mr Fellows, on the other hand, argues that I should make an allowance of four per cent for s75(2) factors being $155,423.00.  He argues that even if the wife received no more than 41 per cent, she would have a property settlement of not less than approximately 1.6 million and that therefore a four per cent uplift to 45 per cent is appropriate.

14. Having regard to the factors that I have addressed under s75(2), it is hard to see how an allowance of $150,000.00 or so could possibly be an appropriate adjustment.  On the other hand, an adjustment of nearly $600,000.00 out of a pool of $4,000,000.00 strikes me as being excessive.  Mr Fellows’ point that I have to bear in mind that the wife is going to get a substantial lump sum settlement in cash in any event is, in my opinion, a very relevant factor.

15. Nevertheless, the fact that the wife for all intents and purposes is virtually unemployable by reason of her age, training and the extraordinary burden that has been placed upon her as a result of H’s disability seems to me to require that I make a significant recognition of that in monetary terms.

16. I think that an appropriate award to compensate for s75(2) factors is 13 per cent which equates to $505,123.00. 

conclusions

1. Counsel have provided me with sets of orders both with respect to adjustment of property and adult child maintenance and have invited me simply to select a percentage with respect to the property orders.

2. They have in addition provided me with calculations which reflect the dollar value of the various percentages which were selected by counsel being the percentage value of the property pool to the wife.  The percentages were 65 per cent, 62.5 per cent, 60 per cent, 57.5 per cent and 55 per cent.

3. On the figures that I have calculated, I have determined that it is appropriate and just and equitable to award 60 per cent of the property pool to the wife.  That equates to $2,088,013.00 as a cash payment together with what she already has in her possession less liabilities.  When one stands back and looks at that percentage and dollar value in comparison to the asset pool, I am of the view that it reflects a just and equitable adjustment of property interests between the parties.

orders

1Within ninety (90) days, the Wife shall:-

1.1transfer to the Husband her right title and interest in:

1.1.1B described as Lot … on Crown Plan … in the County of …, Parish of … .

1.1.2L described as Lot … on Crown Plan … in the County of …, described as Lot … on Crown Plan … in the Parish of …, County of … .

1.2transfer to the Husband all other assets of the partnership of the Husband and the Wife.

1.3cause the joint Telstra shares to be divided as to 500 shares to the Husband and 500 shares to the Wife.

1.4transfer to the Husband her interest in any joint bank accounts including but not limited to Suncorp accounts and Church Laypersons accounts.

1.5transfer to the Husband her interest as owner in any life assurance policies in respect to which the Husband is the life assured.

1.6join with the Husband in transferring to a child of the marriage any life insurance policies in respect to which the respective child is the life insured named therein.

1.7indemnify the Husband with respect to the car loan owing to R Company and monies due to H with respect to the sale of cattle.

2In exchange for the transfers referred to in the preceding paragraph, the Husband shall:-

2.1pay to the Wife the sum of $2,088,013.00

2.2indemnify the Wife and keep the Wife indemnified in relation to all liabilities arising out of the conduct by the Husband and the Wife and/or Heale Family Trust of farming and grazing enterprises upon B property, S property and L property or any other places.

2.3cause the joint Telstra shares to be divided as to 500 shares to the Husband and 500 shares to the Wife.

2.4transfer to the Wife his interest as owner in any life assurance policies in respect to which the Wife is the life assured.

2.5join with the Wife in transferring to a child of the marriage any life insurance policies in respect to which the respective child is the life insured named therein.

3Except as otherwise provided in these Orders, the Husband and the Wife shall each be entitled as the sole legal and beneficial owner of all items of property including superannuation entitlements, bank accounts standing in their respective names, personal effects and chattels currently in the possession, held in the name of or control of each of them respectively.

4Each of the parties shall sign all necessary deeds or documents to give effect to the terms of this Order and in the event that either party refuses or neglects to sign (within seven days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registry Manager of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

Income taxation liabilities

5The husband and wife shall equally bear the total income tax liability for their respective incomes for the period 1 July 2006 up to and including 31 December 2006.

6The husband and wife shall each do all acts and things and sign all documents necessary to effect a variation of the trust deed for the Heale Family Trust so as to remove the wife as a beneficiary of the Heale Family Trust as from and including 1 January 2007.

7Subject to the preceding paragraph, the wife will:-

a.    transfer to the Husband her shareholding in P Property Enterprises Pty Ltd and assign to the Husband the benefit of any beneficiary account held by the Wife and or the benefit of any monies due to the Wife in and by the Heale Family Trust.

b.    resign as a Director and from any other positions held by the Wife in P Property Enterprises Pty Ltd.

Default Orders:

8In default of payment of the amount referred to in Order 2.1 the Husband and the Wife forthwith do all acts and things and sign all necessary documents to effect a sale of the properties referred to in Order 1.1 herein and by way of consequential arrangement that shall be made for the purposes of effecting a sale:

i.   The listing price for the real properties shall be as agreed between the parties and if there is no agreement the listing prices shall be as advised by W Company at V and U Company in consultation with each other.

ii. The real properties shall be listed for sale by private treaty with W Company at V and U Company (“the selling agents”) or other agents as agreed to between the parties.

iii.         In the event that the real property has not been sold by or before a date 90 days from the date of these orders (or earlier if by agreement) then the Husband and the Wife shall make all such arrangements and do all such acts and sign all such documents and pay all moneys equally necessary to procure a sale by public auction of the real property upon the following terms:

1.   the auctioneer shall be as agreed to between the parties or failing agreement as nominated by the selling agents.

2.   the auction shall take place at a time agreed between the parties, and failing agreement as recommended by the selling agents.

3.   the reserve price shall unless agreed upon by the parties be as fixed by a valuer nominated by the President of the Queensland Law Society.

4.   the Husband and the Wife shall each pay and be responsible for payment of one-half of auction expenses payable before the real property is auctioned.

9In the event that the properties are not so sold by auction or by private negotiation within fourteen (14) days after the said auction then the Husband and the Wife shall agree upon the future marketing of the properties, and failing agreement, either party shall have liberty to apply upon the giving of seven days notice to the other.

10Upon completion of each sale the proceeds of the sale be applied as follows:

(a)Firstly, to pay all costs, commissions and expenses of the sale including vendors legal costs

(b)    As to 60% to be paid to the wife:

(c)As to the balance being 40% thereof for the husband, such sum shall to be applied as follows:

i.such sum as is necessary to be paid by the husband to the wife to effect a division of the property referred to in schedule A attached here to, as to 60% to the wife and 40% to the husband, after taking into account the value of the chattels, personal property, superannuation and liabilities retained by the wife as detailed in the attached schedule.

ii.      as to the remainder thereof, to be paid to the husband.

11Pending completion of each of the sales of the said properties:

1.   the husband shall be entitled to possession and use of the said properties in exchange for which, the husband will indemnify the wife in relation to all outgoings, including but not limited to rates and insurance from and including 1 January 2007.

2.   the husband shall maintain the insurance cover on the buildings on the said properties at no less than the current insurance policy reflected in the certificate of currency at the date hereon.

12Pursuant to s66L of the Family Law Act 1975 the husband will pay to the wife the sum of $1,200.00 per calendar month for the maintenance of the child of the marriage H born in February 1988.

13The first of such payments will be made on or before 14 August 2007 to an account nominated in writing by the wife, to the husband and thereafter on the 14^th day of each month up to including 14 July 2012.

14To secure the payments referred to herein, the husband shall simultaneously:-

(a)     within 90 days of the date of this Order; or

(b)upon receipt by the husband of his entitlement of the sale proceeds of the properties referred to in this Order

whichever occurs first, do all acts and things and sign all documents necessary to pay a lump sum of $66,648.00 to the trust account of the Paul Loan Solicitor to be held on trust for the husband and wife jointly and the husband shall direct his solicitor (or such alternate trustee as the parties may agree upon) to:

(a)organise a periodic payment in the sum of $1,200.00 into the account nominated by the wife, to be paid on the terms of the periodic payment referred to in this Order.

(b)invest the lump sum for a term and a rate negotiated by the solicitor (or other agreed trustee) with the bank at which the solicitor’s trust account is held.

15Liberty to apply.

I certify that the preceding seventy-nine(79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith.

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HEALE & HEALE