HODGE & HODGE
[2010] FMCAfam 551
•4 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HODGE & HODGE | [2010] FMCAfam 551 |
| FAMILY LAW – Property – valuation of assets and contributions –assault and mental illness. FAMILY LAW – Property – s.75(2)(o) factor –care of grandchild. |
| Family Law Act, 1975, ss.75(2), 79 |
| Brandt & Brandt (1997) FLC ¶92-758; (1997) 22 Fam LR 97 Kowilaw, In the Marriage of (1981) FLC ¶91-092; 7 Fam LN N13; (1981) 7 Fam LR 13 Norbis & Norbis (1986) FLC ¶91-712; (1986) 161 CLR 513; [1986] HCA 17; 65 ALR 12; (1986) 60 ALJR 335; (1986) 10 Fam LR 819 AJO v GRO [2005] FamCA 195; (2005) 191 FLR 317; (2005) 33 Fam LR 134; (2005) FLC 93-218 Pierce & Pierce (1999) FLC ¶92-844; [1998] FamCA 74; (1998) 24 Fam LR 377 |
| Applicant: | MS HODGE |
| Respondent: | MR HODGE |
| File Number: | MLC 8545 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 27 – 29 April 2010 |
| Date of Last Submission: | 29 April 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 4 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Spicer |
| Counsel for the Respondent: | The Respondent appearing in person |
ORDERS
That the interim orders of 29 April 2010 take effect as final orders.
That the proceeds of the sales of the real property pursuant to Order 1 of the interim orders of 29 April 2010 be distributed as follow:
(i)Payment of the sum of $31790.20 to the wife;
(ii)Payment of 40% of the balance of the proceeds (after payment pursuant to suborder (a)) to the husband;
(iii)Payment of the balance of the proceeds to the wife.
That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:-
(i)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and the like chattels at the real properties being deemed to be in the possession of the wife).
(ii)Monies standing to the credit of the parties in any joint bank account are to become the property of the wife.
(iii)Each party forgo any claims they may have to any superannuation or work related benefits belonging to or earned by the other.
(iv)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.
IT IS NOTED that publication of this judgment under the pseudonym Hodge & Hodge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8545 of 2008
| MS HODGE |
Applicant
And
| MR HODGE |
Respondent
REASONS FOR JUDGMENT
The applicant wife is a 61 year old woman, born [in] 1948, and the respondent husband is a 63 year old man, born [in] 1946. The husband and wife were married [in] 1968, two years after the husband commenced employment with [omitted]. In 1968, their first daughter [X], was born, followed by the second daughter [Y], in 1970, and a son [Z], in 1972.
In 1978, the husband left [occupation omitted] and commenced employment with [omitted]. In 1984, the parties’ granddaughter, [L], was born of their daughter [X]. It appears clear that [X] had many difficulties, and that [L] lived with the parties who largely reared her. [In] 1995, [X] had a second child, [R], who lives with the wife.
In 1996, the husband changed employment to [omitted], where he worked until 2002, when he resigned. Thereafter he took up a job at [omitted]. He lasted at this position a very short period of time, before ceasing work entirely.
Tragically, [in] 2004, the parties’ daughter, [X], passed away, leaving them with the full time care of their grandson, [R].
The parties separated in October 2005, having cohabitated for around 37 years. The wife applied for and obtained an intervention order against the husband. (This was not the first occasion she had obtained an intervention order against him, having earlier obtained one in 2002).
On 25 October 2005, the husband broke into the house with a knife, assaulted and raped the wife. He also attempted suicide. On 31 March 2006, he pleaded guilty to various offences arising out of his attack upon the wife, and was sentenced to seven and a half years’ jail, with a minimum of five and a half years. It is estimated that his release date is in April 2011.
Whilst the proceedings in this case were commenced in October 2008, they have been unable to be brought to trial until recently, largely as a result of the husband not being ready for trial. When the matter was heard the husband was unrepresented, no longer having a solicitor acting for him, although assisted by the parties’ daughter, [Y].
Property Division.
Under section 79 of the Family Law Act 1975, the court may make such orders as it considers appropriate, altering the interests of the parties in property. Section 79 sets out a number of significant matters that must be considered, in order to determine what orders would be appropriate.
In Hickey & Hickey (2003) FLC ¶93–143; (2003) 30 Fam LR 355, [2003] FamCA 395, the Full Court of the Family Court conveniently summarised the preferred approach as follows:
[39] The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s. 79. That approach involves for inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identifying and assess the contributions of the parties within the meaning of s. 79 (4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as percentage of the net value of the property of the parties. Thirdly, the court should identifying and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s. 79(4)(e), the matters referred to in s. 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determine and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC ¶91-626; Ferraro and Ferraro (1993) FLC ¶92-335; Davut and Raif (1994) FLC ¶92-503; Prpic and Prpic (1995) FLC ¶92-574; Clauson and Clauson (1995) FLC ¶92-595; Townsend and Townsend (1995) FLC ¶92-569; Biltoft and Biltoft (1995) FLC ¶92-614; McLay and McLay (1996) FLC ¶92-667; JEJ and DDF (2001) FLC ¶93-075 and Phillips and Phillips (2002) FLC ¶93-104. (emphasis added)
The approach taken in Hickey & Hickey must now be read subject to the decision in C & C [2005] FLC 93-220; 32 Fam LR 414; 193 FLR; [2005] FamCA 429 (with respect to superannuation), where Bryant CJ, Finn and Coleman JJ said:
[43] Thus, the way in which s 90MS is drafted leads us to the view that superannuation interests are another species of asset which is different from property as defined in s 4(1), and in relation to which orders also can be made in proceedings under s 79.
[44] However s 90MS(1) does have the effect, in our view of requiring that in a case where the Court intends to make orders in relation to superannuation interests of the spouses, it must do so “under” s 79 (although s 90MS(2) makes it clear that the Court cannot make an order in relation to a superannuation interest except in accordance with Part VIIIB). In other words, the Court must apply to superannuation interests the matters to be taken into account under s 79.
[63] However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.
In undertaking the first step, the various items of property should be identified with reasonable precision and value. However, in subsequent steps it is not possible to make an adjustment for each relevant factor with mathematical precision. This is clearly identified by Nygh J in G & G (1984) 9 Fam LR 969; (1984) FLC ¶91-582 (at p 79,697 ), where his Honour said that:
It cannot be required of the Family Court that it assess contributions with mathematical precision, with respect to each item.
This observation was approved by Mason J (as his Honour then was) and Deane J in Norbis & Norbis (1986) FLC ¶91-712; (1986) 161 CLR 513; [1986] HCA 17; 65 ALR 12; (1986) 60 ALJR 335; (1986) 10 Fam LR 819. This observation has regularly been repeated in the authorities: see for example, Brandt & Brandt (1997) FLC ¶92-758; (1997) 22 Fam LR; Farmer & Bramley (2000) FLC ¶93-060; [2000] FamCA 1615; (2000) 27 Fam LR 316. Of course, “Judges [and Federal Magistrates] are obliged to exercise their discretion judicially and should explain the broad nature of their reasoning that leads to their conclusion”: Figgins & Figgins (2002) FLC ¶93-122; [2002] FamCA 688; 29 Fam LR 544; 173 FLR 273.
With respect to the final step, it is important to note that it is the justice and equity of the actual orders that the court must consider: see Russell & Russell (1999) FLC ¶92-877; [1999] FamCA 1875; 25 Fam LR 629; 154 FLR 171.
In this case, the wife sought property orders in the following terms:
(1)That the wife be at liberty to forthwith sell or otherwise dispose of the following: -
(a) The goods and chattels including antiques and collectables as set out in the Valuation Report of [omitted] dated 6th July 2009;
(b)The classic motor vehicles (both registered and unregistered) as set out in the Valuation Report of [omitted] dated 18th May 2009 with the exception of the [equipment omitted]
and retain for her sole use and benefit any proceeds of sale of the same after payment of all expenses and costs of selling and disposing of the above assets.
(2) That the husband sign all documents and do all things necessary to transfer to the wife, at the expense of the wife, all of his right, title and interest in the classic motor vehicles referred to in paragraph (a) hereof.
(3) That the husband sign all documents and do all things necessary to transfer to the wife the real properties situate at and known as Property P in the State of Victoria Certificate of Title Volume [omitted] and Property S in the State of Victoria Certificate of Title Volume [omitted] (“the real properties”) to be held on trust for sale and the real properties be forthwith sold altogether out of Court (“the sale”) and the proceeds of the sale be applied:-
(a) Firstly to pay all costs, commissions and expenses of the said trust transfer and the sale;
(b) Secondly, to discharge any other encumbrance affecting the real properties;
(c) Thirdly to pay the balance then remaining be divided in the proportions of:-
(i) 30 per centum thereof to the husband;
(ii) 70 pr centum thereof to the wife.
(4) That pending the payment [or completion of the sale]:-
(a) The wife have the sole right to occupy the real properties and that during such right of occupation the wife pay all instalments pursuant to all rates and taxes and the like apportionable outgoings of the real properties as they fall due;
(b) The parties hold their respective interests in the real properties upon trust pursuant to these Orders; and
(c) Neither party encumber the real properties without the consent in writing of the other party;
(5) That liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the sale.
(6) That the wife forthwith do all necessary acts and things and sign all necessary documents to assign to the husband at the expense of the husband all her right title and interest in the [equipment omitted].
(7)That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:-
(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and the like chattels at the real properties being deemed to be in the possession of the wife).
(b) Monies standing to the credit of the parties in any joint bank account are to become the property of the wife.
(c) Each party forgo any claims they may have to any superannuation or work related benefits belonging to or earned by the other.
(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.
(e) Insurance policies remain/become the sole property of the owner named therein.
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
(8) That in the event that the husband refuses or neglects to execute a deed and/or instrument in compliance with the provisions of paragraph/s 2 and 3 of this order, the Registrar or Deputy Registrar of the Federal Magistrates Court of Australia at Melbourne is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the husband and do all acts and things to give validity and operation to the deeds and/or instruments.
(9) Such further or other Orders as this Honourable Court deems appropriate.
The husband never set out the precise form of property orders that he sought, but maintained that there ought to be a 60/40 split of property in his favour.
It was accepted at trial that, inevitably, the property of the parties would need to be sold. As a result, at the end of the trial, I made orders appointing the wife trustee for sale, for the purpose of commencing the sale process. I also made orders at the conclusion of the trial for the transfer of various chattels that will be discussed below to the husband, as the value of the chattels was not great them.
The Pool of Assets.
Is this case, the asset pool includes of two parcels of land. The house of the parties, a short distance outside of [B], valued at $450,000, and a farming block of the parties’ valued at $250,000. The wife relies upon valuations prepared by a jointly appointed valuer, who was not required for cross-examination by the husband. The husband, however, maintained through the trial that he was of the view that the properties had values far greater than that suggested by the valuer in the valuation reports. In part, it appears that this then informed the husband’s agreement that the properties of the parties had to be sold.
Stored on the residential property, in a carport and two large sheds, were a very large number of chattels, described by the husband as collectibles. A large number of photographs were attached to the valuer’s statement with respect to these items, depicting them and their state of repair inside of the sheds. The valuer described the items as having been stored very poorly, and in many cases having been found lying openly on the ground, or stacked in loose piles as high as one metre.
They have been water damaged, weather damaged, and in some cases the subject of infestation. Many of the boxes have been stacked and have sides splitting, with contents falling onto the floor. The valuer took a number of photographs, which depicted the items in the sheds, many of which have the appearance of junk or rubbish, stacked very high. The valuer identified 130 items, which he attached some form of value to (although a number of them, he concluded, had no cash value), making the total valuation of $11,385. Not surprisingly, having regard to the photographs, the valuer declined to undertake an auction of the chattels through his auction house in [B], on the basis that it would cost more to sort, clean, pack, dispose of, cart, catalogue and sell the goods than the goods were worth.
The wife sought a small number of the chattels, and accepted that on a commercial level that the other chattels had no value to her, but were items that were of value to the husband, at least emotionally, and perhaps items that he could slowly sell over eBay, to make a small income for a period. In the circumstances, the wife simply sought orders that she retain a small number of the chattels, and that the husband retain the balance, provided that he removes them from the property in a short period of time. The items she sought to retain are set out in the orders. They represent far less than half the items available in the sheds. I find that this is an appropriate division of these chattels and that it is unnecessary to deal with them as part of the pool of significant assets of the parties.
The wife was concerned that the husband, by his agents (principally his daughter) remove the items in a reasonable time, as it would be very difficult to effect a sale of the properties for the best price if these items were still stored in the properties. The wife is anxious to sell the properties so that she may relocate before the husband is released from jail.
The husband also owns a one-half share in a [equipment omitted], which has an agreed value of $10,000. The valuer undertook a valuation of a number of classic and vintage motor vehicles that the husband had collected, valuing them at $19,700. The husband believes they have a greater value. The wife is content for the husband to retain the motor vehicles at the value described by the valuer.
In the period since separation, the wife has received a small sum by way of a victims of crime compensation of around $11,000, purchased a caravan valued at around $9,400, and currently has money in a bank account totalling $119,343.
The husband currently has between fifty and sixty thousand dollars in a bank account, having taken with him at separation the sum of $135,952.80, or thereabouts.
There is no evidence with respect to superannuation on the part of the husband, however it appears to me to be likely that he has no superannuation, having cashed in a significant amount of superannuation to purchase real property. The wife has superannuation, valued at $87,946.
The parties sold the husband’s motor vehicle for $34,000 and retained one-half of those moneys each. This was done in 2006, and is not pursued as an add back or adjustment.
On the material available, it appears to me that, realistically, the assets available to the parties for the purpose of a property settlement also include the moneys that were obtained by the husband at separation of $135,952.80. This money was used for legal costs and to purchase a classic motor vehicle. To the extent that he expended reasonable sums on living expenses (see AJO v GRO [2005] FamCA 195; (2005) 191 FLR 317; (2005) 33 Fam LR 134; (2005) FLC ¶93-218), it appears that it goes a little higher than $180 per month, which is provided to him in jail in his living costs and this could easily have been paid from his share of the motor vehicle that was sold. To the extent it was used to fund legal fees for the criminal proceedings or intervention orders it is clearly appropriate that it be added back to the pool. No other explanation for its expenditure was provided. I therefore find that this was property received by the husband in the value of a premature distribution.
I therefore assess the pool, as at the date of trial, as follows:
a)Real property, $650,000;
b)Vintage and classic motor vehicles, $19,700;
c)Husband’s share in [equipment omitted], $10,000;
d)Wife’s caravan, $9,400;
e)The wife’s cash savings, $119,343;
f)The husband’s moneys, $135,952.80;
g)The wife’s superannuation, $87,946.
Given the age of the parties and their entitlement to retire, it appears to me that it is an appropriate case to treat the superannuation as being equivalent to property, not only in value, but also in accessibility. I therefore conclude that the total of the matrimonial asset pool is: $1,032,341.80.
To the extent that the husband challenged the valuation with respect to the land, orders framed for the parties to receive percentages from the sale of the land will ensure that if the land sells for more or less than the valuation figure, they will share in that by way of a greater or lesser sum from the distribution of the sale price. This effectively deals with the valuation dispute with respect to the land. If this course were not adopted I would have accepted the valuation evidence.
Contributions.
Section 79(4) of the Family Law Act requires consideration of the contributions of the parties. The relevant parts of section 79(4) are as follows:
79 [Alteration of property interests]
…
(4) In considering what order (if any) should be made under this section in property settlement proceedings, 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; and
(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; and
(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; and
…
It is relevant, when considering the various contributions, to also consider the times when these contributions were made: see Pierce & Pierce (1999) FLC ¶92-844; [1998] FamCA 74; (1998) 24 Fam LR 377, where the court was considering the weight to be given to various contributions, having regard to the time of those contributions, and the importance of them.
Throughout the marriage, the wife was either engaged in full-time or part-time employment, home making, or, for a period of time, education. Whilst the husband remains bitter with respect to the breakdown of the relationship, he made statements at the trial that demonstrate that he relied heavily upon her support throughout the marriage.
I had the opportunity of observing Ms Hodge in the witness box, and Mr Hodge giving evidence by video-link (The trial was conducted with Mr Hodge in a separate court room linked by video as a result of the previous attack on the wife).
There is a psychiatric report setting out that Mr Hodge has a diagnosis of depression and paranoid personality disorder. During the course of the trial, the husband was heavily focussed upon allegations of corruption in Victoria, and allegations of corruption said to involve the wife and police officers. He believes that the wife in some form perjured herself to obtain the intervention orders, and that the intervention was the cause, or a substantial cause of his mental illness. However, with prompting and direction, he was able to focus on the issues in this matter.
Whilst I have no doubt that the husband is an intelligent and articulate man and, when he chooses to be, would be quite engaging, I am not persuaded that I can rely upon his evidence where it is at variance to that of his wife.
The husband cross-examined the wife with respect to the incident leading to the first intervention order, which is described in the application for the intervention order as follows:
“On 28.7.2002 the defendant assaulted the AFM (affected family member) by grabbing her jaw and slapping her face. He has also ripped the AFM’s hair out. On occasions these assaults have been stopped by the AFM’s daughter or granddaughter.
The AFM is fearful that without protection the defendant may carry out this threats his kill her.”
At trial, she gave evidence that as a result of an argument she slapped him, which was the commencement of the altercation that is described in the intervention order. She did not recant from the balance of the allegations. It does not seem to me that, in the context of the assault being described, this is a significant variation that would lead me to discount her testimony.
The parties’ adult daughter, [Y], also gave evidence. She is supportive of the husband, and concerned that he receive a fair share from the property settlement, which she believes would be an equal share. It transpired that she did not have a good relationship with her mother for many years, and is certainly not aware of the day-to-day events in her mother’s life any longer. For example, when the mother was giving evidence, she offered to pass the mother her reading glasses, not being aware that the wife had had eye surgery, so that she no longer required reading glasses. She had not been in the house for six months at least.
Whilst the relationship between the wife and her daughter appears to be very poor, I could not help but have the impression that both would prefer it to be better, but have not been able to find a way to move that matter forward. The daughter harbours considerable ill will towards her mother, describing her as vindictive, and stating that during the marriage, the wife, “Gave as good as she got.” However, she believes the wife had an outstanding work ethic demonstrated both in paid and non-paid work during the marriage.
To the extent that her evidence did vary from that of her mother, it appears to have been in areas where she did not have direct knowledge of the facts and circumstances. She had only attended at the house every month or so between 1990 and 1995 and very little thereafter, feeling neglected and fobbed off. On the matters she had direct knowledge of, I accept the evidence of the parties’ daughter.
The wife, in her affidavit, stated that at the time of separation, her superannuation was only $38,368. She had savings of around $13,000 in cash. She has accumulated the funds that she now holds since that time. She explains that she had $1,000 in savings when they commenced their relationship. Whilst that is a modest sum today, it was more significant over 30 years ago. During the marriage, she was employed most of the time, taking time off work when the children were born. She was primarily responsible for running the household and managing the family finances. She was the primary carer of the children.
From 2001 till 2006, she worked full time at [omitted], but since 2006, after sustaining injuries as a result of the husband’s assault upon her, she ceased full-time employment and now works a permanent part-time shift. She explained that this is also, in part, as a result of the needs of [R], who is in her full-time care. Even when she was employed full time, she found that she needed assistance with caring for [R], which she obtained from her sister. She explains that she was primarily carrying out household duties, shopping, housework and cooking during the marriage. During the time the husband worked for [omitted], he worked long shifts and night-time shifts.
I accept the wife’s evidence that the husband ceased work at [omitted] and took up work at [omitted] with the hope of finding employment that he could better cope with and would find more satisfying, given his interest in [omitted]. However, he lasted only a couple of weeks, and was not even able to telephone the employer to resign from the position. After the intervention order was put in place he spent a weekend in a hotel, he was then hospitalised in a psychiatric unit for a period. It seems that his depression had reached chronic levels by 2002, and did not improve into the future, leading up to the attack upon the wife.
Having regard to the evidence of the daughter, to the effect that the wife, “Gave as good as she got,” at least on the last time that the daughter appeared to live in the residence back before 1990, it appears clear that the relationship was difficult many years ago and that the wife’s resilience held the relationship of the family together. Whilst the wife has managed to maintain stable employment in a position of responsibility as a [omitted], and provide for the upkeep and support of a child with special needs, the husband’s circumstances deteriorated over time, with his eventual incapacity for permanent employment by 2002, and attack upon the wife in 2005, leading to his imprisonment.
The parties had 3 children of their own that they raised. Two are now self supporting adults. Sadly, their first daughter died in 2004.
The wife, in her affidavit, stated she was primarily responsible for household duties and for the financial management of the family in terms of payment of bills and accumulation of savings. Even when engaged in full time work she was primarily responsible for the care of the parties’ children and grandchildren.
In the circumstances, I accept that the wife was the primary home maker and parent, as well as working through much of the marriage. I also accept that she was a significant support for the husband. I find his mental health deteriorated in the later parts of the marriage to the point where he was unable to work full time by 2002, and ultimately serious assaulted and raped her in 2005, before he was imprisoned. It appears to me that his heavy reliance upon the wife, in earlier periods was based not only on his love for her but a support he required as a result of his illness. The extent of her preparedness to accommodate his mental illness is apparent from her addition to her victim impact statement to the Court of Appeal on his sentence appeal. I find that the wife made very significant contributions to the welfare of the family.
As a result of the assault, the wife sustained an injury to her hand from a knife, which has left scarring. This has made her employment more difficult to undertake. It no doubt affects her on a daily basis, with respect to carrying out home activities. She was cut from the middle finger on the palm, up to around the top of the hand. The injury required surgery and a year of physiotherapy; she still has discomfort from the scar tissue on her middle finger, and a very slight reduction of mobility. As a result of frequent massaging the scar with the thumb of her right hand, she now also has an injury to the thumb, which dislocates in the joint. She received a course of psychological treatment in the year or so after the attack, but no longer received such treatment. It appears that she has recovered remarkably well, given the nature of the assault, resulting in her being able to return to employment, and continue the care of [R].
Continuing to work was very important given her circumstances and [R]’s needs. Her fortitude in continuing to work and care for [R] was significant. She is now hoping that [R] will commence home school in the near future, to overcome the difficulties of him attending school. Whilst she is working part time as a [omitted], she is 61 years of age and anticipates retiring soon.
It is clear that the husband received two inheritances during the course of the relationship, one from Ms G, in the sum of $92,000, and the other from his father, in the sum of $151,000, together with his half-share in the [equipment omitted]. This occurred around 1997 or 1998.
During the period of separation, the wife spent $12,570.05 on improvements to the home, which the valuer’s report indicates increased the value of the home by around $20,000. The wife has maintained the properties since separation.
There was an issue at trial, with respect to whether or not the wife should have allowed agistment on the farming property. The husband had informally arranged with his friends, the [name omitted], for them to agist stock on the property. The wife declined to enter into an arrangement with the [name omitted], and accepted an arrangement from her sister to agist a small number of stock, in exchange for assisting with the fencing and gorse removal.
In the circumstances of the case, it is difficult to be critical of the wife in rejecting the proposition that the property could have been used for agistment by [name omitted]. Whilst it is possible that an income (although modest) could have been obtained from the property, had it been available for agistment by [name omitted], I’m not persuaded that this should be treated as a waste, or add-back (see generally In the Marriage ofKowilaw (1981) FLC ¶91-092; 7 Fam LN N13; (1981) 7 Fam LR 13, in the circumstances of the assault, nor am I satisfied that this is a significant factor, with respect to contributions.
It was alleged that the wife’s sister negligently drove a star picket through a water pipe, causing chattels in the shed to become damaged. This was denied by the wife. I do not accept that this occurred, nor that any significant loss was caused as a result of water damage from the fault or neglect of the wife or her sister.
The wife saved a considerable sum of money over the last five years since separation, a testament to her stoic continuance of working and caring for [R], despite the horrific attack.
During the course of the separation, there were a number of items stolen from the sheds. I do not accept that the wife had any part in this, nor that the loss of items was through any neglect on her part.
It was suggested that the wife did not keep the house in reasonable condition. I have seen the photos that the valuer took, and I am not persuaded that the wife’s conduct has led to any devaluing of the home. Indeed, it would be difficult for anyone to live in the home with the sheer volume of collectibles and other items.
It was put to the wife that she had made arrangements with her father to ensure she received no money from his will, in order to keep it out of the matrimonial estate. She explained that her father had given the money to others in the family that he felt were more in need, and that she did not receive any money, nor did she expect to receive any.
Whilst I accept that in most families it is common for an estate to be shared equally among the children this is not universally the case, as can be seen from the many reported judgments on wills and estates. There is nothing before me to lead me to the conclusion that there were any arrangements with respect to the will of the wife’s father, nor any ruse to hide her share, nor that she will receive money or a financial resource as a result of any bequests he has made, or arrangements he has made with his estate.
I accept that the wife found the situation overwhelming soon after the husband’s attack. I note that she has not approached the trial with an attitude that could be in any way described as “vindictive”. Indeed, her addendum to her victim impact statement, relied upon by the husband in an unsuccessful appeal, demonstrates her preparedness to describe the events in a light as favourable as one could imagine for the husband. At trial, she did not dwell on the events, nor press a case in the style that one would if it were a tortious claim.
I specifically take into account that there is no tort claim in this case, and that the assessment of contributions requires me to carefully distinguish between what might be damages for assault and personal injury from the appropriate matters to taken into account as contributions under section 79 of the Family Law Act. The wife indicated she does not intend to bring personal injury action, however the entitlement does not expire for six years in Victoria, and should she wish to seek damages that sound in tort, and are assessed on the tortious standard and rules, it is a matter for another court.
In the witness box, she described her desire in the proceedings as being to ensure that she receives her one-half share of the matrimonial property, together with the extras for the costs that she has incurred. This is a lay description of an outcome that she desires; it does not accord with the rules that I must apply in section 79 of the Family Law Act, but further evidences that she has not approached the case from a basis of seeking as great a proportion as she could possibly get from the matrimonial property.
In this case the care for the child [R] is not of the care of a child of the marriage, as described in section 79. It appears to me that [R]’s care is appropriately taken up under section 75(2)(e) or 75(2)(o), having regard to the facts that
a)he is a grandchild of the parties;
b)his mother is deceased;
c)both of the parties openly acknowledge that they took him into their care, and intended to raise as they would a child of their own; and
d)both parties remain committed to this task.
At trial, the husband stated that he was hopeful that when released from prison he may be able to assist [R] in obtaining some form of skills or employment. Whilst it seems unlikely that [R] would reside with the husband, or spend time with him, it demonstrates that both parties still see [R]’s upbringing as a commitment that they intend to honour in a fulsome way.
In accord with section 79, I have not included the care of [R] as a factor when assessing contributions to the date of trial and deal with it below.
In the circumstances of the case, I assess the contributions of the parties at 50/50.
Section 79(4)(d) to (g).
I turn now to the third step in the assessment process. It appears that the orders will not have an impact upon the earning capacity of the wife or the husband as referred to in section 79(4)(d).
The provision of all of the collectibles to the husband will provide him with the basis of small or modest earnings, through the sale of collectibles or antiques, either through antique rooms, sales rooms or eBay. However, I bear in mind that even on the valuation provided by the valuer, the chattels have a very modest value, and it is likely to achieve little income from him above a pension (probably more in the nature of a hobby).
Section 79(4)(e) requires that I consider the matters set out in section 75(2).
In this case, the husband is 63 and the wife 61. It is said in the psychiatric report that the husband is capable of employment. Having regard to the history of the case and my observations of him at trial, it appears to me that the husband is not realistically capable of sustaining employment beyond a hobby with respect to collectibles which would produce very little income. The wife is capable of employment, and continues to be employed part time as a [omitted]. I accept that her working life is limited, and that she will not work beyond a few more years. To the extent that she continues to work beyond that, it appears likely to me that it would only be as a result of the needs of [R], rather than her desire to continue to work.
Neither party has the care or control of a child of the marriage.
It was submitted to me that section 79(4)(d) would cover the child [R], as being a person that the parties have a duty to maintain. I do not interpret that section in such a way. It appears to me that the term “duty” in the section refers to a legal duty, and that the grandparents of a child in Australia do not have a legal duty to maintain the child: see Vick & Hartcher (1991) FLC 92-262; 15 Fam LR 149.
Section 75(2)(e) provides for consideration of the responsibilities of either parent to support another person. The parties have accepted that responsibility of supporting [R]. They took on his care as his grandparents; they intend to continue to provide that care to him until he is self-supporting; and both are desirous of providing that care even now. The husband and wife clearly made a decision to take on the care of [R] as if he were one of their own children, and likewise did the same with respect to [R]’s sister, [L] (although the husband confused [L]’s name with [omitted] late in the trial, a slip consistent with the wife’s case that she was the primary carer of these children). As a matter of practical reality it seems likely that [R] will continue to be the sole responsibility of the wife.
[R] suffers Asperger’s syndrome, and in recent times has been unable to go to school. He is 15 years of age. He was unable to attend school, as it upset him so greatly. His medications have been changed, and the wife is hopeful that he will continue some form of education or training. She was positive in her outlook, with respect to [R], hopeful that he would obtain a trade or other method of learning his employment. Whilst she was positive in her evidence, my impression is that [R]’s special needs are such that it is likely that he will be in her care past his 18th birthday, and reliant upon her for some time. .
Both parents will soon be eligible for an old age pension. The wife receives a family tax benefit of $72 per week and a carer’s payment from Centrelink of $53 per week.
The next factor I have regard to is a standard of living that is, in all the circumstances, reasonable. It appears that on either party’s desired outcome in the property settlement, the other will have sufficient funds to at least purchase a modest home unit in the [B] area.
The husband’s standard of living will, of course, increase significantly on his release from prison, but thereafter be commensurate with that of a person on a pension. To the extent that he receives more than 30 per cent of the asset pool (as per the split argued by the wife’s counsel), it will improve his standard of living. The wife’s standard of living is impacted upon by [R]’s needs, and until she ceases work, will not be significantly affected by the impact of the property proceedings.
There is no suggestion that spousal maintenance should be payable in this case, nor that it could assist in either party improving their capacity to support themselves.
Whilst it has been a long marriage, the marriage itself does not appear to have impacted upon the husband’s earning capacity. It appears that he has suffered a late onset of mental illness which had completely destroyed his earning capacity by his late 50s. The wife’s earning capacity has been present through the marriage, although it has been impacted upon by the caring responsibilities for the parties’ children, and the events that took place at the end of the marriage, and the care for [R].
Section 75(2)(l) refers to the need to protect a party who wishes to continue that party’s role as a parent. The wife is not a parent of [R] within the meaning of Part VII of the Family Law Act. It does not appear to me that this section is relevant to the considerations in this case.
Neither party is cohabitating with another person.
There are no issues of child support in this case, nor any suggestion that there is support available for [R], beyond the social security outlined by the wife in her financial statement.
If the ongoing care of [R] does not fall within section 75(2)(e), it certainly falls within section 75(2)(o). This does not mean that I take the care of [R] into account twice, simply that there are two legal bases for taking account of his care.
There are no other orders under the Family Law Act that affect the parties or children relevant under section 79(4)(g). There is no child support issue under section 79(4)(g).
In this case, the husband’s future needs flow from his age and an inability to work. Whilst he has a psychiatric illness that is debilitating, it does not seem to result in significant greater needs on his part. The wife is of an age where she will also be retired soon. Though she does not suffer the difficulties of mental illness her capacity to work is reduced by her hand injury.
The wife has the care of [R], a joint responsibility taken on by the parties, and intended to be discharged by them. [R] is a 15 year old boy with significant disabilities that requires considerable care. As [R]’s care was not taken into account as a contribution factor I have regard to his care by the wife from the time that the parties commenced caring for him, not simply the date of trial. This includes a period when they were together and the husband’s mental illness reached chronic levels, the period after the wife’s attack up to trial and the future.
In the circumstances, I find that an adjustment in favour of the wife of 10% is appropriate in this case, with respect to the section 75(2) factors.
The wife will relocate after the sale and attempt to remain hidden from the husband. This is entirely reasonable having regard to the attack on her. This will affect her life into the future and result in expenses and possible future movies. This is also a factor to consider under section 75(2).
Just and Equitable.
Any orders under section 79 must be just and equitable: see section 79(2). Section 79(4) sets out a large number of considerations which are discussed above. Ultimately, once all of the specific detail is considered, the court must still look at the matter as a whole to determine if the outcome is just and equitable. This requires consideration of the actual outcome of the orders.
In this case, I have concluded that the wife ought to receive 60 per cent of the matrimonial pool. This is around $619,000. The husband will receive assets (including the monies he has received to date) of around $413,000. This is a disparity of around $206,000 from the pool of assets and superannuation in this case. It will leave the husband with the motor vehicles, worth around $29,700, the money that he has left from the cash of around $60,000, and around $165,000) from the sale of the properties (if they sell for the sums set out by the valuer, assuming the sale price is a little higher, to cover the costs of sale). The wife would retain her superannuation, savings, caravan and around $403,000 from the property sales.
Both parties are left in relatively modest circumstances, although the outcome is a relatively large disparity, particularly having regard to the fact that the husband is unlikely to earn any significant income into the future. However, this must be seen in light of the contributions and section 75(2) factors. Others may see this as too little for the wife having regard to the attack and rape, however these are not damages proceedings and I have careful not to include an element of damages in these findings.
Ultimately, I am persuaded that this is a just and equitable division of the property of the parties in the unusual circumstances of this case.
As the sale proceeds are uncertain and some division of property has occurred I propose making orders to ensure a payment to the wife of a sum sufficient to make the division of property (other than the land) in the proportions of 40/40. Thereafter the proceeds of the land sales can be split 60/40 to ensure the parties receive the correct proportions regardless of the sale prices. The property to be retained by the parties is as follows:
a)The husband will retain:
i)Cars and [equipment omitted]: $29,700;
ii)Bank account balance at separation: $135,952.80
iii)Total: $165,652.80
b)The wife will retain:
i)Savings: $119,343;
ii)Superannuation: $87,946;
iii)Caravan: $9,400.
iv)Total: $216,689
The total value of the retained property is $382,341.80 of which the husband has 43.33%. If the wife receives the first $31790.20 from the real properties she will have 60% of property, before distribution of the balance of the sale proceeds.
I therefore make orders for the proceeds of sale of the real property to be distributed to the parties as follows, after the costs of sale:
a)$31790.20 to the wife;
b)40% of the balance (after payment of the $31790.20 to the wife) to the husband;
c)The remaining funds to the wife.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Allison Le
Date: May 2010
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