HOOD & HOOD
[2015] FCCA 1206
•20 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOOD & HOOD | [2015] FCCA 1206 |
| Catchwords: FAMILY LAW – Property – lengthy marriage – two children – similar contributions but for significant assets obtained by wife through legacy –similar needs – case re-opened – wastage by wife – adjustment to outcome. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79 |
| Carter & Carter (1981) FLC 91-061 Jewel v Jewel [2013] FCWA 81 Stanford v Stanford (2012) 87 ALJR 74 |
| Applicant: | MS HOOD |
| Respondent: | MR HOOD |
| File Number: | MLC 3666 of 2013 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 11 April 2014, 15 August 2014, 1 December 2015, |
| Date of Last Submission: | 1 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 20 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Hamilton as solicitor advocate |
| Solicitors for the Respondent: | Thexton Lawyers |
ORDERS
THE COURT ORDERS THAT:
The husband pay to the wife the sum of three hundred and four thousand and twenty eight dollars ($304,028) (“the payment”) (being $317,500 less $13,472) within 90 days from the date of this order (“the date”).
That from the $13,472 sum the husband shall forthwith pay:
(a)the rental arrears and costs $2,175.60
(b)the repair costs; $1,810
(c)the cleaning, rubbish removal and lawn mowing costs;
and
$3,407
(d)the legal costs to Thexton Lawyers. $6,080
$13,472.60
Contemporaneously with the payment:
(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right, title and interest in the real property situate at and known as Property M, in the State of Victoria (“the real property”); and
(b)the husband indemnify the wife against all payments and liability for all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
In the event that the whole of the payment has not been made by the date the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)first, to pay all costs, commissions and expenses of the sale;
(b)secondly, so much of the payment as is then outstanding together with interest thereon at the rate of ten (10) per centum per annum adjusted monthly from the date to the wife; and
(c)thirdly, the balance to the husband.
Pending the payment or completion of the sale:
(a)the husband have the sole right to occupy the real property and during such right of occupation the husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber the real property without the consent in writing of the other party save to enable the husband to borrow funds to comply with order 1 above.
The husband do all necessary acts and things to enable the wife or her agent to collect the following chattels within fourteen (14) days at an agreed date and time, from the former matrimonial home:
(a)three (3) silver teapots;
(b)the contents of their daughter’s bedroom, money boxes, toys and teddies;
(c)“nan’s” wooden chair; and
(d)X’s bicycle;
and if the husband locates them:
(e)the blue and white tea set, yellow tea set and antique plates;
(f)a small wooden chest and large wooden tea chest (engraved);
(g)record albums; and
(h)the wife’s family’s framed photographs previously hung on a wall in the home,
and all of the above chattels shall remain the property of the wife.
The husband have the sole right, title and interest in:
(a)the (omitted) shares in his name;
(b)the Toyota Hilux motor vehicle; and
(c)his superannuation interest in (omitted) subject to Order 10 and others below.
The wife have the sole right, title and interest in:
(a)The (vehicle omitted) motor vehicle;
(b)the real property, improvements and contents of the property situate and known as Property S, in the State of Victoria; and
(c)her superannuation interest in the (omitted) Super Scheme and (omitted) Superannuation Plan.
The parties sign all necessary documents and do all things necessary to sell the Ford (omitted) and the Ford (omitted) motor vehicles and after costs of the sales, the funds then be used to pay the $875 (omitted) Union bill and any balance then remaining be divided equally between the parties and if the net sale funds are inadequate to pay the said bill in full, any shortfall shall be paid equally by the parties.
THE COURT ORDERS BY CONSENT THAT:
The base amount allocated to Ms Hood out of interest held by Mr Hood in the (omitted) superannuation member number (omitted) be forty five thousand, four hundred and twenty four dollars ($45,424).
In accordance with section 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), whenever the Trustee of (omitted) makes a splittable payment to Mr Hood from his interest in (omitted), Ms Hood be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001 (Cth), and there be a corresponding reduction in the entitlement of Mr Hood would have had but for these orders.
Orders 10 and 11 above has the effect from the operative time which is four (4) business days from the date the orders are served on the Trustee of (omitted) and the Trustee have liberty to apply.
Until the happening of any of:
(a)the establishment of a separate account in the name of Ms Hood in (omitted); or
(b)the transfer or “rolling over” into another superannuation fund of the payment split created by orders 10 and 11 above; or
(c)Ms Hood satisfies a condition of release or is paid the payment split created by orders 10 and 11 above; or
(d)Ms Hood executing a waiver of rights within the meaning of s.90M(2)(A) of the Act in relation to the payment split created by orders 10 and 11 above, and
until such time Mr Hood be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in (omitted) a “non splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth).
This order binds the Trustee of (omitted).
The solicitor for the husband serve a sealed copy of this order on the Trustee of (omitted) and liberty to apply be reserved to the parties and trustee to seek to vary the machinery provision of these superannuation orders (if necessary).
THE COURT FURTHER ORDERS THAT:
The husband be liable for and indemnify the wife against all payments in respect of the alleged debt of four thousand dollars ($4,000) owed to Mr R.
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 like chattels in the real property being deemed to be in the possession of the husband);
(b)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; and
(c)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
All extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hood & Hood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3666 of 2013
| MS HOOD |
Applicant
And
| MR HOOD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a very unusual case. At first blush it appeared to be a straightforward property case which should have settled prior to trial, but for the poor relationship between the parties and the fact that one appeared unrepresented.
After I reserved my judgment on 15 August 2014 and before I could finish writing same, the husband brought an urgent application in a case filed 30 October 2014 seeking to briefly re-open the case in relation to property orders for alleged post-separation wastage by the wife. It was common ground that on or about 20 July 2010 the parties jointly entered into a lease of residential premises known as (omitted), in the State of Victoria. It was also common ground that the wife resided there in the absence of the husband post-separation with both or one of the children of the marriage up to and including 2 September 2014.
It was alleged by the husband that when the wife vacated the rented premises, she left with arrears of rent and the condition of the premises was so poor that they required some repair, cleaning and rubbish removal.
I deal with this matter in this judgment after my conclusion.
Background
The Applicant Ms Hood is aged 48 years having been born on
(omitted) 1966 and by occupation is a (omitted). The husband resides in Property M in the former matrimonial home and is a (occupation omitted). He does not currently work. He is aged 49 years and was born on (omitted) 1965.
The parties were married on (omitted) 1988 and separated on 15 July 2010 and given there was no cohabitation prior to marriage, they lived together for over 22 years. There are two children of the marriage X born (omitted) 1993 who is aged 21 years and undertaking a university course and Y born (omitted) 1996 who is aged 19 years and is expected to attend university in 2015.
The application filed by the wife on the 9 May 2013 had its first return date nearly 3 years after the parties separated. During this period the husband resided in the unencumbered former matrimonial home. He had relatively small outgoings in comparison to the wife who lived in rented premises with the two children of the marriage since separation who, were then aged nearly 17 and 14 years. The husband has had rent free use of the home for over 4 years.
What is unusual is that for the first 10 months following separation nearly each Sunday they would attend an A.T.M. to draw funds for each of them, from their joint bank account and then go shopping at a supermarket together. It appears the wife was the financial manager for the family unit and this continued during this period for their convenience.
The evidence
The parties relied on the following documents:
The Applicant wife:
i)Application filed 9 May 2013;
ii)Affidavit of the wife sworn and filed on 9 May 2013;
iii)Financial statement of the wife sworn and filed 9 May 2013;
iv)Affidavit of the wife sworn and filed 4 February 2014;
v)Financial statement of the wife sworn and filed on 4 February 2014;
vi)Affidavit of the wife sworn 31 July 2014; and
vii)Affidavit of X sworn 31 July 2014.
The Respondent husband:
i)Amended Response filed 8 April 2014;
ii)An Amended Financial Statement filed 8 April 2014; and
iii)Affidavit of the husband electronically filed 11 July 2014;
iv)Affidavit of Dr D electronically filed 25 July 2014;
v)Affidavit of Mr G electronically filed 23 July 2014; and
vi)Affidavit of Dr S electronically filed 31 July 2014.
Approach to property proceedings
There is a general approach to hearing property applications that has been established over time by the decisions in this area by the Full Court of the Family Court of Australia. This in part was recently refined following the High Court decision of Stanford v Stanford (2012) 87 ALJR 74.
I adopt the approach detailed by the Honourable Justice Walters at paragraph 72 of his decision in Jewel v Jewel [2013] FCWA 81 which provides:
“72. Assuming a step-based approach to the determination of an application brought pursuant to the provisions of FLA s 79 is still appropriate, it is arguable that the effect of the High Court’s decision in Stanford is as follows:
a) The first “step” in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property.
b) The second “step” involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in a marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the court that it is just and equitable to make orders altering the parties’ interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps.
c) In the third “step”, the court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties.
d) In the fourth “step”, the court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), 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 as a consequence of the previous step.
e) Finally, the court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances. As I have recorded above, my view is that this process does not amount to an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, just and equitable orders might be achieved having regard to all the circumstances of the case.”
I am satisfied it is just and equitable for these parties to seek relief and that I make Orders in this matter, primarily as both seek different outcomes from this Court.
Current pool of assets, resources and liabilities
After separation the maternal grandmother died and left her estate to the wife. This was generally made up of savings of $60,327.54 and the value of the real property and improvements situate at Property S. After costs and estate expenses, the wife was left with the real property and approximately $48,000 in cash.
It was her case that I should exclude the following assets from the pool as she said they were financial resources acquired post-separation:
a)the property at Property S;
b)a (vehicle omitted) motor vehicle; and
c)a Ford (omitted) motor vehicle.
The Ford (omitted) sedan came from the estate directly and monies from the estate were used to purchase the (vehicle omitted) motor vehicle. The realty was the maternal grandmother’s former home.
In my view the court is required to look at the assets of the parties at the time of the trial, unless there are some exceptional reasons for not doing so. In this case there are no exceptional reasons and I should look at all current assets and other resources in which the parties have an interest, whether or not they fell into their hands prior to or post separation. I do this on the basis of the authorities of Carter & Carter (1981) FLC 91-061, Jacobson & Jacobson (1989) FLC 92-003, Collins & Collins (1990) FLC 92-149 and Jones & Jones (1990) FLC 92-143.
I should indicate that pursuant to the decision in Re F: Litigants in Person Guidelines (2001) FLC 93-072 I assisted the wife as best I could in the running of her case providing her with procedural and other relevant advice.
The parties could not agree on the make-up, nor value, of the assets and resources in the pool save for the value of the former matrimonial home which was agreed at $650,000, the (omitted) shares held by the husband which were agreed at about $4,000 and the Property S property agreed at $180,000. They also initially agreed that the contents of the former matrimonial home should be divided between them out of Court and excluded from the “pool”, but subsequently the wife sought an order in relation to specific assets.
Assets in Dispute
Toyota Hilux motor vehicle
The husband’s motor vehicle, a (omitted) Toyota Hilux was put by him to be worth $500 and the wife said $4,000. There were no valuations. The wife based her view on reading a website that specialised in assessing cars but she did not give evidence that she knew the mileage, condition, age and history of this motor vehicle to be able to obtain a reasonably accurate figure. In all the circumstances, I am satisfied that I should accept the husband’s assessment of the 30 year old vehicle at $500, and leave it in his possession to assist him in seeking employment in the future.
Ford (omitted)
This motor vehicle is in a damaged condition and was previously owned by the maternal grandfather. The husband put it at $7,000 and the wife at $400. Again no one had any sworn valuations. I put to the husband, as he claimed it was worth $7,000, that he could have it for that figure but then he refused saying it was not the value of the car. I will order this to be sold and the monies divided between the parties, as that course in my view, will provide the realistic market value of this car.
(vehicle omitted)
This (omitted) motor vehicle again was not valued. The wife said that it cost her $10,000 and she bought it approximately 2 years ago. She now says it is now worth $8,000. The husband’s evidence was that he knew little about buying and selling cars but that he has spoken to “…some younger people…” and according to this hearsay, this (vehicle omitted) is a very popular motor vehicle and he said that for $10,000 it was “…a bargain…” Given there was no valuation, the wife paid $10,000 two years ago and now says it is worth about $8,000 I prefer the assessment by the wife, rather than the husband’s hearsay from “…younger people…” Her assessment is likely to be more accurate than the husband’s speculation.
Ford (omitted)
Again the parties did not have any valuation of this vehicle. The wife’s evidence was that it was her motor vehicle and it was parked at the former matrimonial home. She said that she would have to pay someone to have it towed away and at best it may be sold for parts. The husband put its value at $1,000. In all the circumstances, I will make an order for the sale of this motor vehicle, along with the other Ford motor vehicle and the proceeds of sale to be divided between the parties. This will determine its current market value, given the parties cannot agree.
Subaru (omitted)
It was the wife’s case that her mother gave the monies to her son to purchase this motor vehicle in around 2010 or 2011, and it was not her asset.
The parties’ son, X swore an affidavit on 31 July 2014. He was cross-examined by the father’s solicitor advocate. He said in evidence that he purchased the car when he was about 17 and that the monies that he used to buy it were a gift from his maternal grandmother for the very purpose of buying a motor vehicle. He further said that the monies were initially in his mother’s account and he spent about $4,500 on the car. He also said that he went and located the car, purchased it as a private sale after he test drove it and he thought it was appropriate for his needs. He then had to pay for the transfer fee, registration costs and for comprehensive insurance which cost about $1,000 which I infer in the absence of other evidence, also was paid from the same account. He believes that the receipt was put in his name.
He says at page 2, paragraph 3 of this affidavit that at the time of purchase he did not then have a licence and it was cheaper for insurance purposes to have the car registered in his mother’s name. This has remained the case. It appears to be common practice in 21st century Australia that parents often have cars registered in their name or insurance for their child’s car placed in their name , for the benefit of their child, given the excessive loadings that insurance companies put on insurance policies for motor vehicles owned by young adults.
In all the circumstances I accept the evidence of X and his mother. This motor vehicle is his and therefore, will be excluded from this pool of assets.
Superannuation
The parties agreed that as at 13 August 2014 the husband’s interest in any superannuation was at $98,862 and no contributions were made since separation but it has increased over time by investment of the corpus.
The wife gave evidence that currently her superannuation is valued at $8,876 but I asked her to produce documentary evidence. That arrived in September which I released to the husband’s solicitors. It appears to provide a net balance of $8,013.06.
It is agreed that there will be consent Orders for a superannuation split of the funds so that effectively each party will end up with about 50% of the total of the superannuation funds.
$58,000 add back
The husband had listed as an add back “…money taken by the wife between July 2010 and April 2011 $58,000…”
This is a total sum of monies that were drawn from the parties’ joint bank account post separation with the consent of both parties. During this period the husband was employed full time and deposited his net income in that same account. The wife also deposited around $100 per fortnight that she called “child allowance”. I note that during this period the husband did not pay spousal maintenance nor, more importantly, regular child support for the two children of the marriage. At this time X was aged then about 17 years and Y was 14, nearly 15 years. It also appears that the wife was unemployed over the 10 months and did not seek other Centrelink benefits in that period, or spousal maintenance pursuant to the Family Law Act 1975 (Cth).
It was the wife’s evidence that she withdrew this money in the presence of the husband with his full knowledge and consent. She said it averaged about $5,800 per month, and much of it went on the following expenses:
a)rental costs for the home for herself and the children of about $13,000 for that period;
b)petrol for motor vehicles of the parties;
c)food and clothing for the wife and children and the husband;
d)$7,000 for replacement furniture and beds for the children and the wife, given she left these chattels in the former matrimonial home;
e)school fees and school books for the children;
f)household expenses such as gas, electricity and alike expenses for both of the homes;
g)rates for the former matrimonial home in which the husband solely resided;
h)internet fees and mobile phone expenses;
i)cigarettes and alcohol for the parties; and
j)other general expenses for the children and both parties.
In all the circumstances of this case, it was common ground that the parties jointly used this account for their benefit and the children’s benefit over that ten month period when the wife was unemployed. The children had clear needs and no appropriate child support or spousal maintenance was paid. I am not satisfied that it should be added back into the pool of assets and resources, as its use was akin to spousal or child maintenance or both. It is particularly relevant that the wife had no income or significant Centrelink benefits during the period. They all lived off the savings and deposits in the joint account, as planned and undertaken by them, to benefit the family as a whole.
Wife’s bank account at separation
The husband was suspicious of the wife and had analysed her bank account. Soon after separation on 6 July 2010 the wife established her own bank account. On 23 July 2010 there was a deposit in that account of $7,500 which soon increased to $8,000. The husband alleged that these were monies that the parties had an interest in and the wife retained this sum. The evidence from the wife was clear that this $7,500 transfer was from the maternal grandmother by way of a gift of monies for the primary purpose of the parties’ son purchasing a motor vehicle and meeting those related costs of purchase. It was no coincidence that these monies were transferred on 23 July, being the day after X turned 17. There is no basis for the husband’s claim.
Wife’s caravan
It was the husband’s allegation that the wife retained a caravan that was previously owned by her parents and that it should be included as an asset of the parties. The evidence of the wife in cross-examination is that her mother sold the caravan some years before her death to a member of her church. The solicitor advocate put to the wife a photo that was alleged to be taken in 2013 that purportedly shows a caravan in the back yard of the maternal grandmother’s residence.
The difficulty with this proposal was that photograph was not put to the husband in evidence in chief by his solicitor advocate so that he could identify it, confirm the date and explain the circumstances in which it came into his possession. Given this lapse, we were left to speculate exactly when this was taken, who took it and under what circumstances.
Overall, I prefer the evidence of the wife over the husband on this topic given there is no certainty when this photo was taken even though it was dated 2013; it could have been taken sometime earlier than that and put on a computer or other device and printed in 2013. I simply do not know because the husband who produced it gave no evidence about it. The wife was adamant that the mother had sold her caravan prior to her death and I note that the husband did not establish that the caravan formed part of his mother-in-law’s estate. When the wife gave evidence she was generally forthright, open, direct and unambiguous. When the husband gave evidence, he was on occasions evasive, ambiguous, relied on hearsay, often did not directly or fully answer the questions and gave far too much irrelevant information.
Money taken from wife’s mother’s account
It was alleged by the husband that the wife took some $13,150 from her mother’s bank account or accounts. The evidence of the wife was that in 2012 her mother, prior to her death, from time to time gave her gifts of cash when the wife was short of funds. The solicitor advocate put to her a number of deposits in her account that appeared to be transferred from her mother’s account. They were often tagged in the bank statement with the title “emergency” and the wife gave evidence that they assisted her when, for example, she had to pay her rent and meet other expenses.
Over that period these transfers added up to $13,150 and I find that these were simply gifts of monies post separation made by the maternal grandmother and spent by the wife to meet the needs of the children or the wife or all three of them and should not be addbacks to the pool.
(omitted) Union bill
Although the husband has not worked for some time, this union account relates to a period when he was in employment but for some reason had not been paid. The parties agreed in the course of evidence that this $875 account would be paid by them jointly.
Personal loan from Mr R
The husband alleged that he borrowed $4,000 from his father during the parties’ cohabitation. At paragraph 33 of his affidavit affirmed
7 April 2014 the husband says:
“Over the course of the relationship, my father loaned us
a. $1,000.00 for the purchase of a car in 2000
b. $1,000.00 for the purchase of replacement tyres for one of our cars in 2009;
c. $2,000.00 over the course of 2009 to assist us with our household bills over what was a difficult year.”
In reply to this, the wife’s affidavit sworn or affirmed 31 July 2014 says at paragraph 28:
“a. The respondent’s father lent him $1,000 for the purchase of the Hilux motor vehicle and this sum was repaid in full in or around 1993.
b. The $1,000 for the replacement tyres was lent to us by my father, not the respondent’s father.
c. I have no recollection of the respondent’s father lending us $2,000 for household bills.”
The husband’s father who may or may not have been available was not called to corroborate what the husband was saying. It was not suggested he was unavailable to be called or there was some difficultly in having him give evidence. In all the circumstances I prefer the evidence of the wife about this matter, particularly as there is no evidence that the husband’s father seeks the repayment of any alleged debt.
Cash inheritance from the maternal grandmother
The evidence was that when the maternal grandmother died there was a total of all of her bank accounts and savings of some $60,000. Around $12,000 of that was spent on administering the estate, and paying the funeral and lawyers’ costs. That left the balance of $48,000 approximately and that was retained by the wife post separation. It is clear that the wife was not careful with her monies and from the time that she received these funds in late 2012 to the date of the trial, they have been spent by her. She gave evidence that $10,000 went to purchase a car, she gave $2,000 to each of her children and gifted some $700 to a friend, a Ms D. She also said she spent monies on taking holidays with the children on a number of occasions, for example to (omitted) and (omitted). She also gave evidence that during this period post separation the children did not work and earn any income. They were full time students fully supported by the wife who was working as a (omitted) which only paid $20.50 gross per hour. She worked generally from 3 to 5 days a week. Clearly this income generated was very low and on any view the wife needed to supplement that poor income, particularly given she was not regularly paid child support nor paid spousal maintenance at all.
Wife’s inherited electric scooters
The husband alleged that on the death of the maternal grandmother the wife inherited 3 electric scooters that she sold for monies that she retained. There is no evidence of that and this was mere speculation. The wife clearly denied the allegation and said that any scooters that existed were sold before her mother died.
Wife’s inherited record collection
The husband alleged that the wife inherited a record collection worth $2,500. This again was speculation by the husband that he could not prove. The wife denied it. I prefer the evidence of the wife in the husband could not even establish this collection existed, let alone what it was worth.
Contents of Property S house and shed
The husband alleged, without any evidence, that the wife received significant chattels that were in the house and shed of the inherited property at Property S. The wife denied that she received any chattels of any value from the estate and the husband could not establish that she was wrong. Therefore, this was excluded from his list of assets along with the alleged record collection and electric scooters.
Divisible pool of assets, resources and liabilities
The evidence established that the following assets and liabilities made up the pool:
| ASSETS | |
| Asset | Value determined on the evidence (rounded to nearest dollar) |
| a) Former matrimonial home at Property M | $650,000 (agreed) |
| b) (omitted) shares in husband’s name | $4,000E (agreed) |
| c) Toyota Hilux motor vehicle | $500 |
| d) (vehicle omitted) motor vehicle | $8,000 |
| e) Wife’s inheritance of Property S | $180,000 (agreed) |
| TOTAL $842,500 | |
The debt owed to the (omitted) union of $875 was not deducted from this total given I am ordering the sale of the two Ford motor vehicles which will probably meet that debt and if it does not, then the parties will equally pay for the shortfall.
I also have ignored superannuation in the above figures as it is common ground that the parties will split these funds equally.Some 5 weeks after the trial finished I received in chambers two statements in relation to the wife’s current superannuation forwarded by her former solicitor. I asked the wife during the trial to provide these statements and it took this period for them to be produced, which is somewhat disappointing. The first relates to (omitted) superannuation in the wife’s name which has a total of $4,428.92 as at 11 September 2014 and the other account is a (omitted) Super scheme which shows that the net benefit available to the wife as at 4 October 2012 was $3,584.14. Although dated, this was the best available evidence. Given the parties agreed to equal splitting of the superannuation, I have arranged for the Court to forward a copy of these documents to the husband’s solicitor.
Parties’ Proposals
It was the husband’s case that he should retain the assets in his possession and otherwise pay the wife $200,000 for her interest in the former matrimonial home which should be transferred into his sole name.
Therefore his case appears to be:
Husband retains the following:
Former matrimonial home $650,000
Shares $4,000
Hilux motor vehicle $500
$654,500
LESS payment to the wife $200,000
$454,500
And the husband says under his proposal the wife’s position would be:
Payment from husband $200,000
(vehicle omitted) motor vehicle $8,000
Property S property $180,000
Joint Account Addback $68,000
$456,000
It was the wife’s case that the total pool of assets should be divided 65/35 in her favour given she says she has made the overwhelming contribution by way of inheritance post separation and other contributions during marriage which exceed those of the husband.
Therefore, the wife wanted the following outcome:
(vehicle omitted) motor vehicle $8,000
Property S property $180,000
Payment from husband $359,625
$547,625
And the wife says under her proposal that the husband’s position would be:
Former matrimonial home $650,000
Shares $4,000
Hilux motor vehicle $500
$654,500
LESS payment to wife $359,625
$294,875
Section 79(2)
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
I have referred to this earlier and will be referring to this sub-section further in my conclusion.
Section 79(4)
Section 79(4)(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
The husband says in his affidavit affirmed 7 April 2014 the following:
“8. At the beginning of the relationship I had the following assets and liabilities:-
a. Shares in the (omitted) which I had purchased using a payout from my (omitted) Life Insurance. The (company omitted) was buying out (omitted) Life Insurance and offered policy holders either continuing cover or shares in the (company omitted). This was right at the commencement of the relationship. I still have these shares to this day.
b. A motor vehicle in my sole name [sic]
c. Cash in my bank account [sic]”
“14. We purchased a property at Property M, where I am currently living, for $120,000.00 on 3 April 1990. I contributed $40,000 to the property purchase. I saved hard over the period of the 2 years leading up to this. I was earning $450,000 after tax per week at the time, which over the course of 2 years would have been a maximum of $46,800.00 in earnings, before taking into account our living expenses including rental and food at the time. AS [sic] I recall I had a sum of case at the commencement of the relationship.”
“15. It stands to reason then that I had some cash in my savings accounts although given how long ago it was I am unable to nominate an exact figure or produce any bank statements to support this.”
In reply, the wife in her affidavit sworn or affirmed 31 July 2014 admitted paragraph 8 and says in reply the following:
“12. In relation to paragraph 14, I admit the purchase of the property. From my recollection, we paid a deposit of approximately $50,000. I put in the sum of $15,000 I had received from the sale of a property I had owned with my father in (omitted), and believe the balance of the deposit would have been from savings accumulated by both of us during the first two years of our marriage. We had both been working full time. After the purchase of the property, my whole way went towards the mortgage payments, and the Respondent’s wage was used for living expenses.
13. In relation to paragraph 15, I say that we had both contributed to the savings used for the deposit on the house.”
It is common ground between the parties that throughout the marriage the husband was employed as a (occupation omitted) on wages. I accept that he devoted his income to the benefit of the parties and it was used to purchase, protect or otherwise accrue assets as well as contributing to the family’s financial needs.
The wife detailed her financial contribution in terms of employment at paragraph 8 of her affidavit sworn or affirmed 31 July 2014:
“I deny paragraph 10 and say as follows in relation to my work history during the marriage:
a. I say that at the commencement of the relationship I was working full time as a (occupation omitted), then as a (occupation omitted), for (employer omitted) in (omitted). I continued to work there until 1992. I took a voluntary redundancy package of $25,000, of which $5,000 was compulsorily paid into my (omitted) Super fund, and the balance of $20,000 was paid directly to reduce our mortgage balance.
b. During the first half of 1993, I worked full time for 6 months at (employer omitted), until shortly before X was born.
c. I returned to work part time in 2001. From 2001 until 2007, I worked 2 days per week at (employer omitted) earning $17 per hour.
d. In December 2007, I worked for four weeks at (employer omitted) in (omitted).
e. From 2008 until 2011 I worked initially full time as an (occupation omitted), but this eventually reduced to 1 day per week.”
This was not substantially challenged, if at all, in cross-examination and therefore I accept the wife’s evidence and that her monies were used to benefit the family unit, and the $20,000 reduction in the mortgage that came from her redundancy.
Further financial contributions were made by the wife in terms of the legacy she received post separation. Amongst the monies paid to her $10,000 was used to purchase the (vehicle omitted) motor vehicle which forms part of the pool. It is not suggested that the husband made any contribution to that motor vehicle.
Further the wife received by way of inheritance the real property at Property S including all of its improvements.
(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;
The husband does say in his affidavit affirmed 7 April 2014 at paragraph 19 the following:
“During the relationship, I would perform the usual housework around the house, but in addition to the normal work, I also was quite handy and performed the following work:-
a. Replumbing the house
b. Rewiring the electrics in the house
c. Renovations, including removing paint from weatherboards and repainting of the boards
d. Internal replastering of the bedroom, loungeroom [sic], dining and entrance hall
e. Construction of the foundation for the driveway base
f. Landscaping including planting and maintaining raised garden beds
g. Restumping house, polishing floods boards, decorative woodwork for window, laying drainage pipes for sewerage and rainwater [sic]”
I note that in the wife’s affidavit sworn or affirmed 31 July 2014 she replies to this at paragraph 17 and says:
“In relation to paragraph 19, I dispute that the respondent did the usual housework and say that all the housework was completed by me throughout our relationship. In relation to the additional work the Respondent says he completed, I say as follows:
a. The house was never re-plumbed. The only plumbing work completed by the Respondent was to change the washers on the taps when needed.
b. I do not recall the Respondent rewiring the house, but he would not have been qualified to do this.
c. Any renovation work commenced by the Respondent was never completed by him. He did remove paint from the weatherboards, but half the house remains unpainted.
d. Some replastering was done.
e. In relation to the driveway, I say that concrete was smashed, mostly by X, with the intention of putting down a proper driveway of Lilydale toppings, however this was never done and the driveway remains uncompleted.
f. I believe the Respondent did some gardening work after we separated.
g. The house has never been re-stumped , the floorboards in the main bedroom only were polished. I do not know what the Respondent is referring to with decorative woodwork for windows, and I have no knowledge or [sic] him laying drainage pipes…”
The wife was cross-examined on this topic and the evidence was as follows:
“…Now, my client says that he made contributions to the house that he's currently living in above and beyond the normal contributions that you might make as a husband and a wife in sharing different roles. Are you aware of that?”
“Yes.”
“So he says he made renovations. He pulled out the plumbing. He redid the pipe-work. What do you say about that?”
“Have you seen the valuation for our home?”
“Well, I'm asking you.”
Judge Curtain “No, no. Please, you're answering like your husband .”
“Sorry.”
“and it doesn't help. Just give a direct answer to a direct question. Mr Hamilton has given you quite a clear question?”
“Electrical, no.”
“I think the question's more about plumbing. All of that had been replaced, I gather?”
“Yes?”
“No.”
“ Never happened?”
“No.”
“No. So that never happened?”
“He'd done gardening drainage and gardening sprinklers.”
“Yes?”
“That was the extent of his plumbing.”
“All right. So you say - did he do much around the house, generally?”
“No.”
“No. All right. So you'd say he was lazy?”
“He drank most of the time.”
“He drank most of the time. All right. So you consider that his drinking meant that, in fact, he couldn't do that sort of work?”
“Not that he couldn't. It's just what he done. He came home from work, and he'd start drinking. He'd come in at dinner time.”
“Well, the reality was that he was drinking and that he couldn't do it as a result of his drinking?”
“I don't believe that he couldn't not do it.”
It was my impression of the husband’s evidence that he exaggerated what he actually undertook by way of non-financial contributions and this is particularly the case in relation to the inherited Property S property.
The husband’s affidavit affirmed 7 April 2014 sets out what he alleges he did at paragraphs 21, 22 and 23:
“21. In 2009, the Applicant’s Father, Mr D, passed away. After he passed away I took on a more significant role in assisting the Applicant’s Mother in maintaining the property she owned at Property S. Prior to this, I had been assisting around the house as both the parents of the Applicant were quite enfeebled.
22. I would be over at the property at Property S at least once a week, whether to mow loans [sic], do maintenance and handyman jobs around house, to that the Applicant’s mother shopping as she did not have a driver’s licence, or just to visit to keep her company and ensure she was OK.
23. The type of work I did at the property would include: -
a. Fixing and maintenance of fences.
b. Supplying plumbing materials and installed same
c. Clearing house drains with machines and general maintenance
d. Painting of the house and supply and install of air conditioner
e. Rebuilding the patio area
f. Supplied and installed a hot water system
g. Transport to obtain groceries
h. Mowing of lawns
i. Cleaning
j. All yardwork from 2009 to August 2012
k. Supply and install of tap ware, roof tiles, shower and toilet aids/ rails and re-plumbing of the house water pipes.”
In reply the wife’s affidavit sworn or affirmed 31 July 2014 she says the following:
“19. I deny paragraph 21 and say that the only work I recall the Respondent doing at my parents’ home was to fix a kitchen tap once. The Respondent did not assist with maintenance of their home. The property and garden were maintained by my father until he passed away. After that, my mother employed (omitted) to maintain the garden.”
“21. In [sic] deny paragraph 23 and say that the respondent did not do work at my parents’ property. In response to the particular works listed, I say:
a. The fences at my parents’ property are colourbond and do not require maintenance.
b. Save and except for fixing the kitchen tap referred to herein, no plumbing works were completed.
c. Drains were not cleared by the respondent.
d. The house is brick veneer and did not require painting outside. The inside was painted by my father, and the air-conditioner was installed by my father.
e. The patio was rebuilt by my father.
f. - j. I deny the works referred to in f. to j.
k. I dispute that these works were carried out by the Respondent. The council attended to installation of the aids and rails and none of the other work was done.”
Again where the evidence of the wife and the husband is in conflict, I prefer the evidence of the wife.
A further non-financial contribution of the wife relating to the parties’ assets was that she was the financial controller during the marriage. The husband knew little of the financial situation of the parties and it was common ground that post-separation the wife had to educate the husband in these matters.
The husband had rent free use of the former matrimonial home for over 4 years after separation. This is a post-separation contribution by the wife to the extent that she was denied the use of her interest in that asset for that period.
(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
The husband in his affidavit affirmed 7 April 2014 says at page 3, paragraph 13:
“I cooked and cleaned and took care of shopping in conjunction with the Applicant. Each week I cooked the Sunday roast for the family. I believe we shared these particular duties equally overall.”
Whereas the wife in her affidavit affirmed or sworn 31 July 2014 says at paragraph 11:
“I deny paragraph 13 and say that the only cooking the Respondent did was the occasional barbeque, and a Sunday roast maybe once a month. He did not do any cleaning, housework or shopping. All these chores were attended to by me.”
Again I accept the wife’s evidence that she was the primary homemaker and carer, particularly given the husband told the court that he worked full time throughout the marriage which in itself meant that he was unavailable when working for income to do any of these chores. It is clear from the wife’s employment history that after the children were born she generally remained at home caring for the children and for the family as a whole, save for some part-time work. She made a significant contribution as a homemaker and a parent.
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
The orders I propose to make should not have a significant effect on either party’s earning capacity.
(e) the matters referred to in subsection 75(2) so far as they are relevant are as follows:
Section 75(2):
(a) the age and state of health of each of the parties; and
The wife is aged 48 years and has reasonable health for her age.
The husband is aged 49 years and claims to have poor health, suffering from anxiety and depression.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
The wife historically has worked in low paying jobs. She is not highly skilled or trained. It is likely that she will continue with this style of employment. She said that in 2013 she was working casually as a “(omitted)” anywhere between 3 to 5 days a week and earning $20.50 per hour gross.
The husband is currently unemployed and says he has been for some time due to his poor health. He relied on a number of reports, with two being more relevant. The first the one was from his general practitioner, Dr S. It was dated 29 July 2014 and said amongst other things:
“…Initially he had no capacity for gainful employment, due to severe anxiety and depression.
He is motivated to eventually return to gainful employment.
He has been doing some training with centrelink.
He is currently doing two days a week of retraining.
He is not capable of currently working as a (omitted) due to ongoing anxiety and depression. I [sic]
I believe he is likely to be fit to work part time early 2015.
The work is likely to be part time and or casual...”
Secondly, he relied upon a report from his clinical psychologist, a Dr D that was dated 17 July 2014. The relevant parts of the report are as follows:
“…Mr Hood’s depressive disorder occurs on the background of a complex psychosocial upbringing. Mr Hood was adopted at a very early age, yet only found out about this adoption at the age of 7. This was understandably difficult for Mr Hood, and has set up a pattern of insecure attachment. This was further reinforced when he lost his Brother to a harness racing accident when Mr Hood was in his late teenage years. Through these incidents Mr Hood has experienced an acute sensitivity to abandonment, and a strong need for inter-personal connection. It would by my opinion that Mr Hood’s attachment issues were a key precipitating and perpetuating factor in the alcohol issues he experienced previously, given that he seemed to use this as an emotional regulation tool….
…In terms of Mr Hood’s capacity for employment, I would classify this as low at this point. His mood is highly reactive to his family dynamics and any perceived rejection he may feel from his family members. This has resulted in feelings of hopelessness, resulting in lack of motivation (avolition) and difficulty experiencing pleasure out of things that would otherwise be deemed as pleasurable (anhedonia). Mr Hood tends to get stuck on these family issues, which then create notably disability in his occupational capacity. This has been worsened by what Mr Hood would feel as unfair accusations against him regarding events such as damage property of family members (e.g., a car), as well as family members gaining access to his Property M property without his express permission.
I do believe that Mr Hood will be capable of work in the future, yet this capacity seems contingent up achieving a resolution to his family and associated financial matters. At this point I would be unsure if he has the capacity to return to (occupation omitted)…”
It is clear that in 2015, both parties can seek and hold employment. Whist the husband has been out of work for some time it is also clear that he would be able to obtain part time or casual work similar to what the wife is undertaking currently. She has the capacity to work full time but indicated in her evidence that it was very difficult to get full time employment for a person with her limited skills in the current market.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
This does not have any current relevance but when the parties commenced these proceedings Y was a minor, she turned 18 in (omitted) 2014 but she was in her final year at secondary school.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
These are detailed in the parties’ respective financial statements and are typical for people of their age.
(ii) a child or another person that the party has a duty to maintain; and
Both children are now adults and the legal duty to maintain them has effectively ceased, however there is clearly an ongoing responsibility in the wife’s view that I will comment on further below.
(e) the responsibilities of either party to support any other person;
The mother gave evidence that since separation she has financially supported X who is aged 21 and was in the second year of a four year course that he is undertaking at university. She indicated she will continue to support X until he finishes his studies.
As I noted earlier Y only recently turned 19 and was in secondary college in 2014. The wife gave evidence that she expects her to commence her tertiary studies in 2015 and she will support her in a similar way that she supported X; that is to meet those costs that are necessary to enable a child to focus on his or her studies.
The wife since separation to date has spent many thousands of dollars on her support and supporting the children which were sourced from the parties’ joint account, monies given to her by her mother when she was alive, monies she received from the maternal grandmother’s estate and an emergency draw down from her superannuation of some few thousand dollars.
Although she could have been more thrifty, it is clear that this mother has spent many thousands of dollars supporting her children to enable them to obtain the best education that is available to them and will do so in the future.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
Both parties can apply for and seek government benefits and would have similar grounds for doing so, should they need them.
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
As I indicated earlier the parties’ consent to a superannuation split where their monies are equalised and that would provide them with some future security on their retirement.
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
Both parties will end up with some assets or resources from this marriage and both can work to some degree, whether it is part time or casual, and therefore can attain a standard of living that is reasonable in the circumstances.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
Not relevant.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
Not relevant.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
Not relevant.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
Not relevant.
(l) the need to protect a party who wishes to continue that party's role as a parent; and
Although this generally relates to children who are minors, it is clear that the mother in this case is very child focused and wants to continue parenting her adult children although that will come at some financial cost and sacrifice by her. It is unlikely that the husband will contribute to this because he has not done so save for some small child support payments since separation and did not propose to support them in the future.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
Not relevant.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
Not relevant.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
Not relevant.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
Not relevant.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
A standout feature of this case is the legacy received by the wife post- separation. It cannot be said that the husband has made a significant contribution to these assets. I find his contribution in terms of his role in working on their property or caring for and otherwise assisting his parents in law was very minor. The total pool of assets and resources are some $842,500 of this $188,000 directly relates to the legacy the wife received from her mother’s estate post separation. This is a major contribution to that pool of assets and resources. This has to be acknowledged in the final orders.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
Not relevant.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Not relevant.
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
Not relevant.
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Not relevant.
Just and equitable conclusion
The parties both seek relief by way of property orders. The husband wants to retain the former matrimonial home and pay the wife $200,000 subject to the wastage claim and otherwise each party retain whatever other asset is in their respective possession or control. It is the wife’s proposal that the total pool should be divided 65/35 in her favour given her overwhelming contribution to that pool. In my view considering the authorities and s.79(2) of the Act it is just and equitable that there be a property adjustment between these parties to ensure that there is a settlement or outcome that does justice to both of them.
In my assessment of their s.75(2) factors I find that they are very similar in terms of their needs and other s.75(2) issues. They both have an earning capacity based on casual or part time employment from 2015, although I believe that the wife’s is probably stronger but she is likely to continue to support the children of the marriage in the short term, unlike the husband who made no proposals regarding their needs should they undertake tertiary studies.
Given the greater contributions by the wife primarily but not solely through the legacy of the estate and given their similar needs, it is my view that there should be a division of assets and resources that favours the wife and on balance it is just and equitable that the pool of assets that total $842,500 should be divided 60/40 in the wife’s favour. I will give the husband an opportunity to buy out the wife’s interest in the home as he requested but if he cannot do that in 90 days, then that property should be sold and the monies divided in terms of the orders I make.
The effect of these orders is as follows:
Pool is $842,500
60% to the wife is $505,500
Less assets retained by the wife:
a)(vehicle omitted) motor vehicle $8,000
b)Property S
$180,000 $188,000
Payment to the wife $317,500
$505,500
40% to the husband is $337,000
Husband to retain:a)Former matrimonial home $650,000
b)(omitted) shares $4,000
c)(omitted) Toyota Hilux motor vehicle $500
$654,500
Less payment to the wife $317,500 $337,000
Post-separation wastage
The husband brought this urgent application because the lease was in the joint names of the husband and wife and the wife could not be located by the landlord and he was being held financially responsible for the rental arrears and the repair and cleaning costs.
In relation to this application I read the following documents:
a)Application in a Case filed by the husband on 30 October 2014;
b)Affidavit of Mr Hood affirmed 28 October 2014;
c)Affidavits of Richard James Hamilton affirmed 4 December 2014 and filed 5 December 2014 and affirmed and filed 30 March 2015;
d)Two affidavits of attempted service filed 19 March 2015;
e)Outline of case filed 26 February 2015;
f)Affidavit of Ms N affirmed and filed 26 February 2015; and
g)Affidavit of the Respondent wife, Ms Hood, sworn or affirmed and filed 25 November 2014.
The first return date of the husband’s urgent application was on
1 December 2014. I noted that the Respondent wife had filed and sworn an affidavit on 25 November 2014 where she said, inter alia, at page 3, paragraph 2:
“That for the past two weeks I have not had any shifts at work. However, I have now been offered work this week and next week. I cannot afford not to take those shifts as I need the money. In addition, if I refuse shifts I run the risk of not being offered work again when it is available. Accordingly, I will not be in a position to attend Court on 1st December 2014. In addition, I cannot afford to pay additional legal costs for my solicitor or barrister to attend Court on my behalf.”
I noted further in the wife’s affidavit that she acknowledged that the rental was in arrears and she did not take issue with this allegation. I further noted that she admitted to leaving the television unit at the premises (she said it was left for a friend to collect) and the tyres and other contents of the garage, (allegedly left on the nature strip to be collected by the local council). She did not file a Response to the Application in a Case.
To give the wife another opportunity to appear before me I listed the matter to be heard on 27 February 2015 and required a sealed copy of my order to be served on her. On the return date in February, I noted the affidavit of service of the husband’s solicitor. I had the wife “called” at Court. Given there was no answer to that call, I had my Deputy Associate send the wife an email at 10:30am which read as follows:
“Dear Ms Hood,
We refer to the matter of Hood MLC3666/2013.
We advise that the above matter is listed for an Interim Hearing today at 10.00am and that your attendance is urgently required.
In the event that you cannot attend Court this day you have been granted leave to appear via telephone link and must provide an appropriate telephone number that the Court can contact you on.
If you do not attend Court this day the matter may proceed in your absence.
PLEASE CONTACT THE CHAMBERS OF JUDGE CURTAIN ON (omitted) AS A MATTER OF URGENCY.
Kind Regards,
(omitted)
Chambers of Judge CurtainFederal Circuit Court of Australia
L.14, 305 William Street
Melbourne VIC 3000
T: (omitted)
F: (omitted)
E: (omitted)”I again had her “called” at 12:16pm outside the Court and given there was no answer, I proceeded with the hearing.
The Applicant husband, after giving his evidence, indicated that he wanted the agent, Ms N, who affirmed an affidavit on 26 February 2015, to give evidence by telephone. I was concerned that this affidavit had not been served on the Respondent wife, therefore, I adjourned the matter, part-heard, for the Respondent wife to be served with a sealed copy of that affidavit and my order.
At the adjourned hearing on 1 April 2015, the wife was “called”. There was no answer to this call. I noted, however, “RH-2” of the affidavit of the Applicant husband’s solicitor where he set out that he had forwarded the material to a Ms Lynette Smyth, who previously acted for the wife. Ms Smyth forwarded an email to the Applicant husband’s solicitor on 17 March 2015 which said, in part:
“I confirm that I have received copies of these documents and forwarded them to my client.”
Therefore, I was satisfied that the Respondent wife had notice of the adjourned hearing and proceeded to its conclusion, given that she had been “called” and did not answer the call. The unchallenged evidence of Ms N given by telephone and affidavit who was the real estate agent responsible for renting out this unit, in essence, was as follows:
MR HAMILTON: Ms N, at paragraph 7 of your affidavit you say that you inspected the property, and I understand that property to be a property at (omitted). You say you inspected ? Yes.
I apologise. You say you inspected the property on 15 April 2014, and the property was in very bad condition, dirty, rubbish scattered everywhere. Could you expand upon that for the court or perhaps be a bit more specific about what you saw? Okay. I went to do an inspection – a routine inspection, and her son was at home. And I went to the property. In every room, it was – there was rubbish everywhere. In particular, in the son’s room, there was pizza boxes, drink cans. It was just sort of – just very dirty, very messy, and not sort of like a normal – I understand that it doesn’t have to be pristine, but there was a lot of excessive rubbish around. In the toilet, for example, there were I don’t know how many empty toilet rolls just scattered on the floor. It was very dirty. The carpet was not clean. The kitchen area, there was – in the kitchen there was items of food and, you know, unwashed pots and pans, which I understand, but it wasn’t clean. The stove was not clean. It was in very bad condition, the property. It wasn’t a property that – usually if I go to do a routine inspection, you know, tenants make an attempt to clean, make an attempt – but there wasn’t – it was not in a good condition at all.
…
Thank you. Did you inspect the bathrooms at all? I did inspect the bathrooms. Again, not in a very good condition. You know, the bathroom – the state of the shower base, for example, was, like, pinkish in colour, which sort of indicates to me that it hasn’t been washed for a long time. Just the general state of the bathroom was in bad cleaning – bad, poor cleaning condition.
And in relation to 3rd September, 2014:
How did you gain access to the property? I was informed that the keys had been left in the letterbox, and so I went to the property in the morning, and that’s how I opened the doors and gained access to the property. So the keys were never returned to our office; they were just left in the letterbox at the property.
HIS HONOUR: Tell me – this is the judge – how common is that? Not very common. Well, see, in this case I think we were about to evict the tenant because of arrears of rent, and for that reason I think she may have just abandoned the property and took whatever she needed but left the, like, place in a very bad state.
I follow that. Do tenants normally drop the keys off back to the agent ? Yes, they usually
-- or does the agent collect them? No, no, no. Tenants usually return keys to the agent. They fill in a form saying the date that they’ve returned them, how many keys they’ve returned, what’s their forwarding address, if there is any rent owing, any maintenance. They sort of fill out a form which indicates that they’ve handed over possession of the property.
So these keys that were left in the letterbox ? That’s correct.
--- that wasn’t done with your consent or knowledge prior to that? No. No, she’s
…
MR HAMILTON: When you entered the property, you say in your affidavit that you were shocked at the state of ill-repair and rubbish left in the property. Was the condition consistent with your previous inspection? Well, it was a lot worse. In – for example, in the bedroom that I indicated that the son’s bedroom, all the pizza boxes and all the rubbish, the Coke cans and – they were – seemed to be still there from a couple of months ago, but it was just excessive. It was just really excessive. There was damage in quite a few walls. The place was in very bad condition. There was rubbish everywhere. There was rubbish left everywhere. There were tyres in the – there were four or five tyres in the garage. The door – the garage door had been smashed down; I think maybe a dog, you know. But it was in very bad condition. I think the photos that I took – I took a lot of photos at the time – indicate the state of the property. The carpet was damaged; the vertical blinds were all damaged; the stove, the oven was damaged; there was a lot of damage throughout the property.
HIS HONOUR: You’ve mentioned something about a damaged door and a dog. What made you refer to a dog? The dog – well, it looked as though someone had scratched, you know, like a – claws? The door had been scratched; on the outside of the exterior of the door had been scratched by a dog.
Like the claws of a dog there were marks? Exactly. Yes, yes. Exactly.
…
Why were those vertical blinds replaced? The vertical blinds had been sort of – well, it wasn’t just a normal wear and tear. The actual blind strips had been taken down; they – the tracks had been broken; it was – they were just beyond repair, beyond repair, and not just normal wear and tear. I believe that they – either they sort of mishandled them during their stay at the property, and that’s the reason why they were repaired – replaced, sorry.
….
MR HAMILTON: Similarly, Ms N, you’ve attached or you’ve referred to an invoice for $605 for the remove and disposal and replacement, it appears, of two doors? Yes, and they were the doors – one door that led to the garage and one door that led to the laundry, the exterior – so you enter the garage – you can enter – once you enter the garage from the roller door, there’s an external door, and then from that then there’s a courtyard, and from the courtyard you can enter the laundry, and they’re the two doors in question that were damaged and had to be replaced.
….
No, no? But I do remember it was – I do remember that it was something like beyond sort of normal wear, and I think it was as a result of the dog or as a result of something sort of, you know, misusing the doors. They weren’t sort of just weathered doors.
In terms of the dogs, to the best of your recollection, were the claw marks on one or both doors? Both. Both, both doors. Both doors. And I think one of the doors didn’t have a lock on it. Yes.
…
MR HAMILTON: There’s a suggestion, Ms N, that this damage or the state of the property could have come about in the period between Ms Hood vacating and your entrance into the property? No, that’s impossible. I was – the day before – I went there the day after she – I was informed, so it couldn’t
…
And the damage – a lot of the damage was consistent with how it appeared in April? Well, yes, yes. Well, not the damage, but
Or the dirt and rubbish? Yes, definitely, definitely. Yes.
All right? That amount of accumulation of rubbish could not have been done overnight. You know, like, the floors are dirty – no, no. No way. That could not have been done overnight, and virtually that’s what it would have been: overnight. The amount of rubbish
So the floors were dirty; you had mould there. That’s not something that can happen overnight? Exactly, and the kitchen was filthy, all the cupboards inside, all the cupboards, you know. There was rubbish everywhere, and it’s not consistent with something happening overnight. It’s all – living, people that have been living there and have just taken what they need and left and not done anything, not done any cleaning or removed any rubbish.
It was really in one sense a lack of long-term cleaning would explain it? Yes, definitely. Definitely. I would definitely say that. Yes.
In all the circumstances, given the contents of the affidavit of the Respondent wife, the evidence of the Applicant husband, and more particularly, the evidence of Ms N, the real estate agent responsible for this unit, I am satisfied that the wife has made, or significantly contributed to, post-separation waste, and in the circumstances she should bear those costs and expenses which are arrived at as follows:
a)rental arrears $2,175.60
b)repair costs $1,810
c)cleaning, rubbish removal and lawn mowing $3,407
d)legal costs $6,080
a total sum rounded to $13,472.00 which shall be deducted from the monies to be paid to her.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Associate:
Date: 20 May 2015
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
-
Property Law
Legal Concepts
-
Remedies
-
Costs
-
Consent
0
2
2