Hoskins and Hoskins
[2017] FCCA 1125
•30 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOSKINS & HOSKINS | [2017] FCCA 1125 |
| Catchwords: FAMILY LAW – Property – long marriage – litigation guardian for applicant – applicant’s inheritance – contributions of parties – monies from applicant’s father – applicant’s abuse of drugs and alcohol over years – lengthy period since separation – s.75(2) considerations equal – orders just and equitable. |
| Legislation: Family Law Act 1975 (Cth), s.79 Federal Circuit Court Rules 2001 (Cth), r.11 |
| Cases cited: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 Price & Underwood (Divorce Appeal) [2009] FamCAFC 127 Stanford v Stanford [2012] HCA 52 Bevan & Bevan [2013] FamCAFC 116 |
| Applicant: | MR HOSKINS |
| Respondent: | MS HOSKINS |
| File Number: | DGC 3108 of 2015 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 12 April 2017 |
| Date of Last Submission: | 12 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moisidis |
| Solicitors for the Applicant: | Waters Lawyers |
| Counsel for the Respondent: | Mr Sweeney |
| Solicitors for the Respondent: | MDL Law |
ORDERS
The parties forthwith shall sign all documents and do all things necessary to sell the real property situate at Property A, being more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the sale”) and the proceeds of the sale shall be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrances affecting the property;
(c)thirdly from the balance 65% to the respondent and 35% to the applicant.
In the event the parties are unable to agree upon the selling agent or conveyancer regarding the sale, the President of the Real Estate Institute or his nominee shall appoint a selling agent or conveyancer.
In the event the parties are unable to agree upon the method of sale or sale price regarding the sale, the method of sale or sale price shall be determined by the selling agent.
Order 2 of the interim orders dated 1 February 2017 be discharged and the applicant retain to the exclusion of the respondent the $126,448.80 currently held on trust by Waters Lawyers Pty Ltd.
That unless otherwise specified in these orders and save for the purpose of enforcing such 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 property in the real property being deemed to be in the possession of the respondent);
(b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other but for the these orders;
(c)bank accounts be retained by the account holder;
(d)insurance policies remain the sole property of the beneficiary named therein;
(e)each party be solely liable for and indemnify the other against any liability in their sole name or a liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f)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 Hoskins & Hoskins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 3108 of 2015
| MR HOSKINS |
Applicant
And
| MS HOSKINS |
Respondent
REASONS FOR JUDGMENT
Before the Court is an application filed by Mr Hoskins (“the applicant”) for property settlement under s.79 of the Family Law Act1975 (Cth) (“the Act”). The respondent to that application is Ms Hoskins (“the respondent”).
The applicant is 58 years of age, unemployed, in receipt of a disability pension and has been residing between drug and alcohol rehabilitation facilities in suburban Melbourne and/or with family and friends.
The respondent is 56 years of age, employed on a part-time basis as a (occupation omitted), and resides in (omitted).
The application was filed on 6 October 2015. There was a response filed on 22 January 2016. The proceedings came before the Court for a first Court date on 1 February 2016. On that day there were interim orders made for, inter alia, the appointment of the applicant’s sister as litigation guardian under Rule 11 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), and the proceedings were listed for a conciliation conference.
The proceedings returned to Court on 8 April 2016. There were orders and directions made fixing the matter for a trial on 12 April 2017.
The respondent filed an application in a case on 14 February 2017, and the applicant filed a response to same on 21 February 2017. In that application in a case the respondent sought interim orders for litigation funding and/or a part-property settlement. However, when the application in a case came before the Court on 1 March 2017, the respondent was not at Court and the proceedings were adjourned to the date already fixed for trial.
There was an amended application filed on behalf of the applicant on 2 March 2017. There was also further material filed on behalf of the parties and outlines of case.
The trial
On 12 April 2017, Mr Moisidis of Counsel, appeared on behalf of the applicant and Mr Sweeney of Counsel, appeared on behalf of the respondent.
At the commencement of the hearing there were objections to Counsel for the applicant being able to rely on the affidavit of the applicant filed on 21 February 2017. Counsel for the respondent submitted given the appointment of the litigation guardian, the provisions of ss.12 and 13 of the Evidence Act 1995 (Cth) (“the Evidence Act”), and that it was not filed in accordance with Court orders for trial, leave should not be granted to allow those acting for the applicant to rely on that affidavit.
Sections 12 and 13 of the Evidence Act states:
“Competence and compellability
Except as otherwise provided by this Act:
(a) every person is competent to give evidence; and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence.
Competence: lack of capacity
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):
(a) the person does not have the capacity to understand a question about the fact; or
(b) the person does not have the capacity to give an answer that can be understood to a question about the fact;
and that incapacity cannot be overcome.
Note: See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.
(2) A person who, because of subsection(1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
(a) that it is important to tell the truth; and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.”
The issue of the applicant’s competence was decided by the order of 1 February 2016. On that occasion the applicant’s solicitor relied on the report of Dr R dated 1 February 2016, which was that the applicant was not able to understand the nature and possible consequences of the litigation and not capable of conducting or giving instructions. The applicant’s solicitor sought an order for the appointment of a litigation guardian under the Rules. Given the above this was not opposed.
Division 1.2 of the Rules provides for the appointment of a litigation guardian for a party.
Sub-Rule 11.08(1) provides:
For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of the proceeding.
The finding of the Court, embodied in the order of 1 February 2016, was that the applicant needed a litigation guardian and was not able to understand the nature and possible consequences of the litigation and not capable of conducting or giving instructions. This was Dr R’s medical opinion. The issues associated with such an order have been considered in, inter alia, L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, Forster & Forster [2012] FamCAFC 47 and Jenson & Fletcher [2015] FamCA 890.
As the Full Court noted in Price & Underwood (Divorce Appeal) [2009] FamCAFC 127 the issue of whether a person with a disability is competent to give evidence is decided by reference to s.13(2) of the Evidence Act.
There was no submission made on behalf of the applicant that there was any medical evidence since Dr R’s report to indicate that the applicant had the capacity to give evidence. There was no submission that given the above, the applicant understood the obligation to give truthful evidence or that he could give unsworn evidence. Accordingly, and given the order of 1 February 2016, the objection on behalf of the respondent was upheld.
Counsel for the applicant then sought leave to make an oral application to discharge the litigation guardian. There was no evidence in support of this application, and for the reasons given ex tempore, it was refused. Counsel for the applicant then abjured, on instructions, the opportunity to make an application for an adjournment.
Counsel for the applicant then told the Court his client relied on:
a)the amended initiating application filed on 2 March 2017;
b)subject to the agreed objections of the respondent, the affidavit of Ms L, the litigation guardian, filed on 21 February 2017;
c)his client’s financial statement filed on 6 October 2015; and
d)the outline of case filed 14 March 2017.
Counsel for the respondent told the Court his client relied on:
a)the response filed 22 January 2016;
b)subject to the agreed objections of the applicant her affidavits filed 22 January 2016, 14 February 2017 and 30 March 2017;
c)her financial statement filed 22 January 2016; and
d)the case outline filed 6 April 2017.
Given the above, and that the litigation guardian was not required for cross-examination, the material the applicant relied on was taken into evidence. The respondent then gave evidence and was cross-examined. At the close of the evidence Counsel for each of the parties made submissions in light of the evidence, and the Court reserved its decision.
Background
The following overview of the history of the parties’ relationship has been arrived at on the basis of the material the parties relied on at trial. In these reasons where there is a statement of fact, those statements, unless otherwise indicated, are findings of fact by the Court.
The applicant and the respondent commenced living together in 1981. They married in (omitted) 1983 when they were 25 and 22 years old respectively. Neither party brought anything of significance into the relationship. The applicant worked as a (occupation omitted) and the respondent was employed up and until five months into her first pregnancy. The first child of the parties’ relationship, Ms E, was born on (omitted) 1983.
The parties purchased a property in 1984. However, in 1986 the mortgagee foreclosed on that property due to non-payment of the mortgage. At that time the applicant was abusing alcohol and drugs and the parties separated. The respondent left with the child Ms E and moved into rented premises. The parties subsequently attended counselling and the applicant sought assistance for his drug and alcohol abuse.
In 1987 the parties reconciled and resumed cohabitation in rented premises. In (omitted) 1989 the parties purchased a property at Property A, (“the former matrimonial home”).
The purchase price was funded by, inter alia, monies loaned to the parties by the applicant’s father. However, subsequently, the applicant’s father told the parties not to worry about making any further repayments as he didn’t need the money.
The parties’ second child, Ms J, was born on (omitted) 1989 and the third child, Ms O, was born on (omitted) 1996.
Shortly after the second child was born the applicant commenced abusing drugs and alcohol again. Whilst the applicant continued to work as a (occupation omitted) (and as a result there was money in the bank), by 2004 he was not coming home at night, and the respondent shouldered almost the whole of the burden of raising the children and ensuring they attended school. The respondent’s contributions in this regard were made harder by the applicant’s slow but steady decline into almost daily drug and alcohol abuse. The applicant’s relationship with the elder children was rendered non-existent because of this, and his behaviour when he did come into contact with the respondent and the children.
By the time the parties physically separated in 2007, the applicant had been staying away from the former matrimonial home for weeks at a time. The applicant was using heroin and staying either with his family or friends where he continued to abuse alcohol and drugs. The respondent remained in the former matrimonial home with the children.
Following separation, when the parties were 48 and 46 years of age respectively, the respondent endeavoured to continue to facilitate a relationship between the applicant and the youngest child, as well as working with other members of the applicant’s family to put him into residential rehabilitation programs. Following the separation, the applicant’s financial support of the family for all intents and purposes ceased to exist and the respondent financially supported the family including through part-time work.
By 2009 the applicant’s health, as a result of the years of drug and alcohol abuse, was so bad he stopped work and he started receiving a Centrelink disability pension.
In 2010, and as a result of the applicant’s behaviour, the respondent obtained an intervention order for the protection of herself and the children. This order was subsequently extended indefinitely. The presence of the intervention order and associated proceedings meant the applicant (and his family) no longer saw the respondent or the children.
The applicant’s father died in 2014 and there was then a dispute between the beneficiaries of his estate which was finalised in 2016 (by which time these proceedings were on foot). As a result of a deed finalising the applicant’s father’s estate, the applicant received over $126,000 which is currently in his solicitor’s trust account. The applicant also attempted further rehabilitation programs.
Orders sought by the applicant
In the amended application filed 2 March 2017 the orders sought on behalf of the applicant were:
“1. The parties forthwith shall sign all documents and do all things necessary to sell the real property situate at Property A, being more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the sale”) and the proceeds of the sale shall be applied as follows:-
(a) Firstly, to pay all costs, commissions and expenses of the sale;
(b) Secondly, to discharge the mortgage and any other encumbrance affecting the property;
(c) Thirdly in equal shares between the Applicant and Respondent.
2. In the event the parties are unable to agree upon the selling agent or Conveyancer regarding the sale, the President of the Real Estate Institute or his nominee shall appoint a selling agent or Conveyancer.
3. In the event the parties are unable to agree upon the method of sale or sale price regarding the sale, the method of sale or sale price shall be determined by the selling agent.
4. Order 2 of the interim orders dated 1 February 2017 be discharged and the Applicant retain to the exclusion of the Respondent the $126,448.80 currently held on trust by Waters Lawyers Pty Ltd.
5. That unless otherwise specified in these Orders and save for the purpose of enforcing such 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 property in the real property being deemed to be in the possession of the Respondent);
(b) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other but for these Orders;
(c) Bank accounts be retained by the account holder;
(d) Insurance policies remain the sole property of the beneficiary named therein;
(e) Each party be solely liable for and indemnify the other against any liability in their sole name or a liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.”
In the case outline filed on 14 March 2017 the orders sought on behalf of the applicant were:
“1. The parties forthwith shall sign all documents and do all things necessary to sell the real property situate at Property A, being more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the sale”) and the proceeds of the sale shall be applied as follows:-
(a) Firstly, to pay all costs, commissions and expenses of the sale;
(b) Secondly, to discharge the mortgage and any other encumbrance affecting the property;
(c) Thirdly in equal shares between the Applicant and Respondent.
2. In the event the parties are unable to agree upon the selling agent or Conveyancer regarding the sale, the President of the Real Estate Institute or his nominee shall appoint a selling agent or Conveyancer.
3. In the event the parties are unable to agree upon the method of sale or sale price regarding the sale, the method of sale or sale price shall be determined by the selling agent.
4. Order 2 of the interim orders dated 1 February 2017 be discharged and the Applicant retain to the exclusion of the Respondent the $126,448.80 currently held on trust by Waters Lawyers Pty Ltd.
5. That unless otherwise specified in these Orders and save for the purpose of enforcing such 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 property in the real property being deemed to be in the possession of the Respondent);
(b) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other but for these Orders;
(c) Bank accounts be retained by the account holder;
(d) Insurance policies remain the sole property of the beneficiary named therein;
(e) Each party be solely liable for and indemnify the other against any liability in their sole name or a liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.”
Orders sought by the respondent
In the response filed 22 January 2016 the orders sought by the respondent were:
“1. That the property at Property A, be sold and the proceeds of sale applied as follows:
a) in payment of the costs, commissions and expense of sale;
b) as to the balance 10% to the Husband and 90% to the Wife;
2. 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 superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Wife);
(b) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c) Insurance policies remain the sole property of the owner named thereon;
(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) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.”
In her case outline, filed 6 April 2017, the actual orders sought by the respondent were:
“1. That the property at Property A, be sold with the proceeds applied as follows:
a) in payment of the costs commissions and expense of sale;
b) the balance 75% the Respondent and 25% to the Applicant;
2. That the Respondent retain the inheritance of $126,448.40;
3. That each party otherwise retain what they currently have with the Respondent retaining the superannuation.”
Approach to property settlement application
Section 79(2) of the Act provides that:
“The court shall not make an order under this section unless it is satisfied that in all the circumstances it is just and equitable to make the order.”
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interests of the parties in property. Those matters are:
“(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
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(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.”
The matters to be taken into account under s.75(2) of the Act are as follows:
“(a) the age and state of health of each of the parties; and
(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
(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
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(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
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
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
(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
(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
(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
(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
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(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
(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
(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
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.”
The decision of the High Court in Stanford & Stanford 2012] HCA 52 (“Stanford”) requires a court, faced with an application for the determination of property matters under s.79 of the Act, to consider first of all the requirement in s.79(2).
The High Court in Stanford (supra) held that, in the majority of matters, the decision as to whether it is just and equitable for the Court to make property orders is easily resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.
In Bevan & Bevan [2013] FamCAFC 116 (“Bevan”) the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford (supra) which provided guidance on how s.79 of the Act was to be interpreted and implemented. Bevan (supra) endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey& Attorney General for the Commonwealth of Australia [2003] FamCA 395 (“Hickey”), but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict.
The four steps articulated in Hickey (supra), at paragraph 39, are:
a)identify and value the property, liabilities and financial resources of the parties; and
b)identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)identify and assess the other facts relevant under s.79(4)(d)-(g), including s.75(2), and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)consider the effect of the above and resolve what order is just and equitable in all the circumstances.
Evidence
Ms L
The applicant’s sister (Ms L), the litigation guardian, swore an affidavit on 21 February 2017. In that affidavit Ms L (omitting those matters which were the subject of agreed objections) deposed:
“1. I am the litigation guardian and Sister of the Applicant, Mr Hoskins (“Mr Hoskins”)
2. The Respondent Wife is Ms Hoskins (“Ms Hoskins”).
3. With the Court's permission I am conducting this litigation on Mr Hoskins's behalf.
…
Relevant Evidence
7. I am aware Mr Hoskins and Ms Hoskins purchased the former matrimonial home during 1989. This is evidenced by a Title search obtained by my Solicitors on Mr Hoskins's behalf.
Now produced and shown to me and marked “L3” is a true copy of the said title search of Property A.
8. …My father said words to the effect, “I have paid Mr Hoskins’s mortgage”.
9. My father Mr R died on (omitted) 2014 leaving a will dated (omitted) 2009. There was a dispute between the beneficiaries regarding the will. The Estate was finalised by way of a Deed entered into by the beneficiaries dated (omitted) 2016. As a result of the Deed, Mr Hoskins's entitlement was $126,448.
10. Waters Lawyers Pty Ltd is currently holding in their trust account Mr Hoskins's entitlements from the Estate of Mr R…
…
12. Prior to Mr Hoskins entering the Bridge program I supported him by allowing him to live with me. However, I found the arrangement unsustainable and Mr Hoskins too difficult to manage...
13 During 2016 Mr Hoskins completed 10 days of detox at the (omitted) and Alcohol Service (formerly (omitted)). He is now residing at a Salvation Army rehabilitation program in (omitted) known as the Bridge program.
…
15. I can attest to the fact that Mr Hoskins is not currently drinking. The change in Mr Hoskins when he is not drinking is remarkable. He looks healthy again. I have hope for his future.
16. I will continue to assist Mr Hoskins as best I can. However, there are limits on what I can do. I cannot provide a permanent place for him to live.
…
18. Therefore, on behalf of Mr Hoskins, I seek orders for the former matrimonial home at Property A, be sold by private sale. I seek the Court determine Mr Hoskins's share of the sale proceeds.
…”
As noted earlier, Ms L was not required for cross examination and I accept her evidence.
The respondent
The respondent swore affidavits on 21 January 2016, 13 February 2017 and 29 March 2017 on which she relied.
In her affidavit sworn 21 January 2016, the respondent (again omitting those matters which were the subject of agreed objections) deposed:
1. I am the Respondent Wife in the proceedings before the Federal Circuit Court at Dandenong.
2. I was born on (omitted) 1960.
3. The Applicant Husband is Mr Hoskins.
4. Mr Hoskins was born on (omitted) 1958.
5. Mr Hoskins and I met in 1981.
6. We were married on (omitted) 1983.
7. We separated on 18 February 2007.
8. There are 3 children of the marriage namely:
(a) Ms E born (omitted) 1983 and now aged 32;
(b) Ms J born (omitted) 1989 and now aged 25;
(c) Ms O born (omitted) 1996 and now aged 19.
9. The children have all attained the age of 18. Ms E and Ms J are married with their own children. Ms O is in a long-term relationship and resides with her partner.
10. Mr Hoskins was a (occupation omitted). He was the primary income earner. I worked in a (employer omitted) in (omitted) until I was five months pregnant with Ms E. I then did not work for an income until 2007 which I obtained a job at the (employer omitted). I am still there.
11. As Mr Hoskins’s addiction to alcohol and drugs increased his work decreased.
12. We purchased our first home in (omitted) in 1984. We lost this home due to bank foreclosure in approximately 1986 as a direct result of Mr Hoskins’s drug and alcohol addiction. We separated for a period of time, subsequently attended counselling together and Mr Hoskins engaged with a drug addiction doctor, which ultimately resulted in Mr Hoskins making a full recovery. We resumed our marriage and living together in 1987. Ms E lived with me during the separation period.
13. In or around the year 2000 Mr Hoskins recommenced drinking and would become intoxicated. In about 2004 he would not come home some nights. By 2006 he was staying away for one to two weeks at a time. Ultimately Mr Hoskins relapsed back into heroin.
14. When intoxicated he would become verbally aggressive and intimidating. Over time Mr Hoskins became quite scary to live with.
15. We separated on 18 February 2007.
16. Although we separated on 18 February 2007, I tried to support Mr Hoskins through rehabilitation programs wanting to see him well and return to his role of a functioning father and husband. Unfortunately I was unable to hep Mr Hoskins despite approximately 2 years, 2007-2009, of me checking him into rehabs, organising facilities to check into, arranging support and counselling for us all and visiting him in rehab regularly. I was also assisting the children through the grief of losing their father to addictions whilst going through my own grief of losing my husband.
17. Mr Hoskins’s behaviours became increasingly worrying when he would arrive unannounced, behave erratically, be incoherent and ranting, which resulted in myself and subsequently my daughter Ms J having to take out Intervention Orders to feel safe. There is a current Intervention Order made on 6 December 2011 until further order. Annexed hereto and marked with the letters “H-1” is a true and correct copy of such order.
18. Given all the circumstances I felt fearful to commence divorce proceedings as I was concerned with losing a family home for my children and I.
19. Mr Hoskins and I purchased the former marital home located at Property A, in (omitted) 1989.
20. Mr Hoskins’s father financed the mortgage and we were of the understanding that we would repay him. After making 2 repayments of our loan directly to him, Mr Hoskins’s late father, Mr R, came over to our home one night and said to both of us words to the effect of “I don’t need or want your money, go and arrange for me to pay the loan out in full”.
21. Subsequently the loan was paid out in full. This was a gift to both Mr Hoskins and myself as a family.
22. Since separation I have continued to maintain the property, both inside and out, performing all regular maintenance duties and keeping the property in good order. I believe I have maintained the value of the home and increased the value of it. I have saved for, and been able to pay for, new carpets ((omitted) 2009), roof tiling ((omitted) 2010), new fencing ((omitted) 2009), Awning blind ((omitted) 2009), security doors ((omitted) 2009), plumbing ((omitted) 2011), etc. I have paid all Council rates and maintained annual insurance ($1,760).
23. I presently suffer from hip bursitis. I continually suffer from pain in this regard on a day to day basis. I need to work and earn what I can, however the pain in combination of my age, limits the amount of time I am able.
24. I am presently in a stressful financial position and barely able to make ends meet. I am not in a position to obtain any loan to buy Mr Hoskins’s share of the home. I have had meetings with the bank and been advised accordingly. I hope to be able to buy a cheaper house or unit with my share of the settlement proceeds.
25. Mr Hoskins is a beneficiary to his father’s Will. Mr Hoskins says that he will receive about $120,000. Annexed hereto and marked with the letters “H-2” is a copy of the Will and the Inventory of Assets and Liabilities. I understand that there is some dispute in relation to the Will which needs to be resolved. But if the Will remains as it is and the assets realised what is referred to in the Inventory then Mr Hoskins may receive about $180,000.
26. In all the circumstances I seek to retain the former marital home and Mr Hoskins retain his inheritance.”
In her affidavit sworn 13 February 2017 the respondent deposed:
“1. I have previously sworn an Affidavit in these proceedings which I rely upon.
2. Ms E was born on (omitted) 1983 completed her VCE. She obtained employment after she completed her VCE. She moved out of the house in 2005. She married in 2006.
3. Ms J who was born on (omitted) 1989 did not complete VCE. She finished school at the age of 17. The tension is at home upset too much. She got a job pretty soon after she left school. She moved out in (omitted) 2014 and married in (omitted) 2014.
4. Ms O who was born on (omitted) 1996 finished VCE in 2013. She then attended (omitted) University and completed a University Degree and is now a (occupation omitted). She left home in 2015.
5. None of my children paid board. They help me out too much.
6. I recommenced working in (omitted) 2007. I joined (omitted) Super from 1 July 2007. I have no superannuation before then.
Annexed hereto and marked with the letter “H1” is my (omitted) Super statement for the year ended 31 December 2007, 31 December 2008 and as at 30 June 2016.
7. I have paid all of the bills for the maintenance the property since Mr Hoskins ceased residing there .
8. The major bills are as follows:
a) full roof restoration $2200 tax invoice dated (omitted) 2010 ;
b) supply and installation of all taps set in kitchen $295 tax invoice dated (omitted) 2011 ;
c) gas service call $99 tax invoice dated (omitted) 2011 ;
d) supply and installation of doors from (omitted) $800 tax invoice dated (omitted) 2009;
e) carpet replacement $2700 as per quote and receipts dated (omitted) 2009;
f) supply and fit (omitted) blind $490 as per tax invoice dated (omitted) 2009;
g) timber fencing $1839.40 as per tax invoice dated (omitted) 2009;
h) gas callout and installation of ignition module $240 as per tax invoice dated (omitted) 2008;
i) Supply and installation of new hot water service $975 as per tax invoice dated (omitted) 2016.
9. I also paid the building and contents insurance each year from 2007.
10. The building insurances cost $238 (2007), $257 (2008), $313 (2009), $378.52 (2011), $485.09 (2012), $365 (2013), $369.97 (2014), $272.80 (2015) and ($403.78) 2016). I have not been able to locate the 2010 invoice.
11. I will also paid all rates in relation to the property. I pay quarterly.
Annexed hereto and marked “H2” are printouts from the (omitted) City Council as to the rates paid from 2007 to 2016 both inclusive.
12. In paragraph 17 of my Affidavit filed 1 February 2016 I referred to Intervention Order that was obtained. On 19 May 2016 Mr Hoskins applied to vary that Order. The reason that he gave is that it was necessary that he and I need to be able to discuss legal matters regarding the sale of our house. The matter was listed before the Court on 6 July 2016. I went to Court to oppose the Application. Mr Hoskins came to Court but then left. His lawyer was unable to secure his return. The Application was then withdrawn...”
The respondent acknowledged in cross-examination that after the parties resumed cohabitation in the late 1990s, the applicant had paid the rent until they bought the former matrimonial home.
The respondent’s evidence in cross-examination confirmed that the applicant’s father had paid the majority of the purchase price for the former matrimonial home. However, the respondent was not challenged on her evidence-in-chief about what was said to the parties by the applicant’s father, which was to the effect that there was no intention to benefit only the applicant.
The respondent confirmed in cross-examination that the applicant had worked between 1987 and 2000. However, the respondent rejected the claim put to her in cross examination that the applicant had been a good provider, the respondent maintaining they had lived modestly and, in so far as the care of the children was concerned, the applicant left everything up to her.
The respondent’s evidence in cross-examination chronicled the decline of the applicant, his health and their relationship from 2000 when he started abusing drugs and alcohol again. The respondent’s evidence was, by 2005, the applicant was not coming home for weeks at a time.
The respondent’s evidence in cross-examination demonstrated that she had been working outside the home since the applicant left in 2007, with no practical financial support, and the youngest child had only left the former matrimonial home two years ago.
In re-examination the respondent’s evidence reiterated the impact on her and the children of the applicant’s drug and alcohol abuse during the course of cohabitation.
The assets, liabilities and financial resources of the parties
As the High Court made clear in the case of Stanford (supra), the first task for the Court in property proceedings such as these is to identify the parties’ legal and equitable interests.
Subject to what follows, the parties are agreed on the value of the asset pool. Initially, given the case outlines filed by the parties, there appeared to be a dispute about whether the applicant’s inheritance should be included in the asset pool.
On behalf of the applicant in the case outline filed on 14 March 2017, it had been contended that his interest in his late father’s estate should not be included in the asset pool available for division. The position adopted on behalf of the applicant was it should be appropriately categorised as a financial resource he had access to. The respondent’s case outline had also posited as an issue in dispute whether the applicant’s inheritance should be included.
Both parties, in their case outlines, referred to the decision in Bonnici & Bonnici (1992) FLC 92-272. In Bonnici (supra) the Full Court said at paragraph 79,020:
“We have no doubt that his Honour was correct in rejecting the submission that these assets were a “resource” and not property. They clearly were property and came into the parties’ hands during the subsistence of the relationship. Indeed, if they had come into their hands subsequently, they would still have retained their character as property. The expression “resource” is and should be confined to those interests which do not fall into the definition of property as such to which the parties have a present entitlement.
The more difficult issue in this case is as to whether the same should be treated differently from other types of property in which the parties clearly have an interest.
The answer, we consider, must depend upon the circumstances of individual cases. If, for example, in the present case, there had been no other assets than the husband's inheritance, but the wife had, as his Honour found, clearly carried the main financial burden in the support of a family and also performed a more substantial role as a homemaker and parent than the husband, then it would clearly be open and indeed incumbent upon a Court to make a property settlement in her favour from such an inheritance.
A property does not fall into a protected category merely because it is an inheritance. On the other hand, if there are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question.
The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death by the husband or wife as the case may be or other particular services to protect a property. See In the Marriage of James (1978) 4 Fam LR 401 ; [1978] FLC 90-487 But there was no evidence of this in the present case despite submissions by counsel for the wife to the contrary. Accordingly, we think that in the present case the monies received by the husband from the sale of the freehold and from his uncle's estate should not be brought into account…”
There are other authorities which may be applicable, given the facts in this case. In Burke & Burke (1993) FLC 92-356, the wife received an inheritance after separation, which was property to which the husband had not contributed. The Court held that the inheritance should be excluded from the pool of property, to which equal contributions otherwise applied.
In Wall & Wall (2002) FLC 93-110, the husband had received an inheritance between the date of judgment of the trial judge and the hearing of the appeal. In a re-exercise of the trial judge’s discretion, the Full Court held that the inheritance should not be included as an asset, but dealt with as a s.75(2) factor: [25].
In Jarrott & Jarrott (No.2) (2012) FamCA FC 72, when an inheritance was received after the date of separation, and the wife made no contribution to it, the Full Court took the same approach. The Full Court said at [9]:
“In those circumstances, however viewed, and at whichever “step” it is considered, the significance of the inheritance ultimately turns on its impact as a financial resource of the husband, pursuant to s.75(2) of the Act.”
At the commencement of the hearing, Counsel for the parties were referred to those authorities. Ultimately, Counsel for the respondent accepted that the applicant’s inheritance ought not be included in the asset pool for division, but instead regarded as a financial resource available to the applicant.
There were no other disputes between the parties as to their assets and liabilities. Accordingly, I am content to proceed on the basis of the parties’ agreement as to the assets available for division and the agreed and identified financial resources as follows:
ASSETS Ownership Description A’s value R’s value 1 Joint Property A $440,000 Agreed 2 Applicant A’s car Registration (omitted) $500 Agreed 3 Respondent R’s car Registration (omitted) Agreed $500 4 Respondent Household possessions Agreed $1,000 Subtotal $442,000 $442,000
LIABILITIES Ownership Description A’s value R’s value Total Nil Nil Net Assets $442,000 $442,000
SUPERANNUATION Member Name of Fund A’s value R’s value 5 Applicant Superannuation Nil Agreed 6 Respondent (omitted) Super Agreed $11,490.08 Total $11,490.08 $11,490.08
FINANCIAL RESOURCES Ownership Description A’s value R’s value 7 Applicant Inheritance from A’s father’s estate $126,448.40 Agreed Total financial resources $126,448.40 $126,448.40 Total assets, liabilities and resources $579,938.40
$579,938.40
Given the relatively modest asset pool, I find it appropriate in this case to adopt an integrated approach to the superannuation and non-superannuation assets of the parties.
Should the Court make an order?
In this case the parties have been separated since the applicant left the former matrimonial home in 2007. The parties’ main asset is the former matrimonial home which is in joint names.
In this case the parties, by their actions since separation, and their divergent claims about their property under s.79 of the Act indicated that they themselves consider it just and equitable that some order be made under s.79 of the Act adjusting their property interests as presently held.
I am satisfied that in all the circumstances, it is just and equitable to make a property order under s.79 of the Act.
The parties’ contributions
During the early stages of the relationship the evidence is both parties worked.
With the impending birth of the first child, there was then a traditional arrangement whereby the applicant worked and the respondent undertook home duties and was the primary carer to the children. So matters continued (even allowing for the brief separation) until around 2000.
I have already referred in these reasons to the payment from the applicant’s father to the parties in 1989. On behalf of the applicant, it was contended there should be a recognition of and credit to the applicant, because of the gift to the parties by the applicant’s father. The respondent had deposed the applicant’s father financed the mortgage for the former matrimonial home, and it was subsequently paid out by him. It was the respondent’s evidence that this was a gift to both parties “as a family”.
Counsel for the applicant had submitted that this payment should be regarded as a contribution which should be attributed entirely to the applicant, citing the decisions of Gosper & Gosper[1], Kessey & Kessey[2] and Pellegrino & Pellegrino[3].
[1] (1987) 90 FLR 1; 11 Fam LR 601; FLC91-818 (“Gosper”)
[2] (1994) 18 Fam LR 149; FLC 92-495 (“Kessey”)
[3] (1997) 22 Fam LR 474; FLC 92-789 (“Pellegrino”)
Gosper (supra) is a decision of Fogerty J in the Family Court. The principles to be derived from this decision are:
“Where there has been a gift by a relative to one or both of the parties the first step is to determine the ownership of that gift. Normally the transfer of the title to the property would be the strongest indicator of the intention of the donor.”
Where a relative of one of the parties gifts property to both of the parties to the marriage it is open to the Court to look at the actuality and to treat that as a “financial contribution made directly on behalf of” the spouse relative.
Kessey (supra) is a decision of the Full Court of the Family Court in which their Honours cited the decision in Gosper (supra) with approval. The Full Court held that a contribution to the property of the marriage by a parent of a party to a marriage will be taken to be a contribution made by, or on behalf of, the party who is the child of the parent, unless there is evidence which establishes that it was not the intention of the parent to benefit only his or her child.
Pellegrino (supra) is a decision of Chisholm J in the Family Court. His Honour followed the decisions of Gosper (supra) and Kessey (supra) and held that in determining the intention of the wife’s parents in providing a benefit to the parties, judicial notice may be taken of the fact that parents frequently make provision for their children in a manner which does not involve the formulation or consideration of whether they intend to benefit their own child or both parties to the marriage.
The Court is required to look to all of the property of the parties, including property received by way of a gift from a third party. This involves consideration of the question of contributions under s.79(4) of the Act.
In this case I accept the submission made on behalf of the applicant that the Court should look at the actuality of the situation and, notwithstanding the evidence given by the respondent, I attribute as a contribution on behalf of the applicant the payment made to the parties by the applicant’s father.
However, the weight to be given to such a contribution at what was effectively the beginning of a 20 plus year relationship is not significant. This is not just because of the passage of time but because of the extent and diversity of the contributions of both parties that took place during the whole of the relationship.
In Verley & Verley (No.2) [2008] FamCA 326 Cronin J cautioned against a mathematical approach being adopted and in respect to long marriages noted that “the longer the marriage, the more likely it is that there will be later factors of significance which reduce the original contribution.” So it is in this case.
The applicant also submits that he played a role in the care of the children and assisting around the house. This was denied by the respondent who reiterated in cross examination her evidence, which I accept, of the burden that the applicant’s alcoholism and drug abuse imposed on her and the children.
This was not the only dispute between the parties in relation to the issue of contributions. As the history set out earlier makes clear from around 2000, if not before, the applicant’s abuse of drugs and alcohol re-emerged and continued unabated up to and beyond separation. It was the submission of Counsel for the respondent that in assessing contributions if not throughout the whole of the parties’ relationship then certainly in this period, the Court should inevitably take into account not only the unspecified expenditure on drugs and alcohol by the applicant but also that the respondent’s contributions both financially and non-financially were made more arduous or difficult as a result. It was the submission of Counsel for the respondent that the Court should consider making a further allowance in its overall assessment of the parties’ various contributions in his client’s favour on the basis that the applicant’s conduct made her contributions more onerous.
After the applicant began abusing drugs again I am satisfied such was the change in his behaviour that it can be said that their respective contributions, particularly their indirect financial contributions and contributions to the welfare of the family, changed in their nature and extent. I accept that due to the applicant’s alcohol and drug dependency, the respondent in effect had to carry the overwhelming majority of the load of parenting and running of the family in the latter years of the relationship, and for the period following separation. I do not ignore that the base for the parties’ assets came from the years of hard work. In this case, I am however, satisfied there is available a reasonable inference to draw that the applicant’s ability to draw an income during the abovementioned period, from 2000 to 2007, declined as a result of his continued abuse of drugs and alcohol, and the respondent assumed the role of managing the household, including the children and their financial affairs. The evidence does establish that the applicant’s extreme behaviour made the respondent’s non-financial contributions more emotionally and/or psychologically onerous and the performance of her duties more difficult than would otherwise have been the case (see, for example, similar approach in Cuneo & Cuneo [2006] FamCA 158). There is no doubt, and the Court finds, that the respondent’s contributions during cohabitation and since were as a result of the applicant’s behaviour rendered more difficult.
Therefore, in summary, the parties were engaged in a relationship of over 20 years, finally separating in 2007. There is no evidence that either party commenced the relationship with significant assets or resources. Save for a brief separation early in the relationship, the parties engaged in the traditional division of labour in the relationship, with the applicant making financial contributions through his work as a (occupation omitted). I am satisfied that up until separation, the respondent took on a significant role as a homemaker and parent which were made more difficult because of the applicant’s behaviour.
Upon separation the respondent and the children remained in the former matrimonial home and the respondent met the financial and non-financial obligations of the family with nothing practical by way of support from the applicant, other than $7 a week in child support. The youngest child only left the former matrimonial home around two years ago. I consider the post-financial contributions of the respondent, along with her contributions to the welfare of the family, both in that period and during the period of cohabitation, should be brought into account and given significant weight.
It was explicit, in the respondent’s case, that the contribution she made in the post-separation period must be closely examined. Indeed it is impossible to do justice and equity without doing so, particularly having regard to the long period of separation. I am satisfied the respondent cared for the children following separation without physical, emotional or practical financial assistance from the applicant. I am satisfied that the respondent made almost all, if not all of the overall contributions to the assets of the parties, since separation.
In terms of the appropriate adjustment that should be arrived at, I am satisfied on the evidence available that the parties’ contributions should be assessed as warranting an adjustment at this stage in the respondent’s favour of 65%.
Future needs
The applicant’s health is worse than the respondent’s given his disability support pension entitlement and there was no submission to the contrary. Neither party is currently in a relationship. The respondent can work, and her earning capacity is larger than the applicant. The respondent has a tiny amount of super. The applicant has none. The evidence is the period in which the respondent accumulated her superannuation was post separation.
The parties are of a similar age (the applicant slightly older), have no occupational qualifications, and both say they are in poor health, although there is no independent evidence from the respondent at least to corroborate this.
Any orders in and of themselves won’t affect the working capacity of the parties. The children of the relationship are now all over 18 years of age. The applicant receives a disability pension. The respondent claims to have ongoing health issues as a result of what she endured during the relationship. There is however no medical evidence to corroborate this. The respondent is, however, able to undertake paid employment, and has done so, albeit on a part-time basis, since separation. However, there was nothing to prove this could not be extended and her superannuation be supplemented. The material before the Court would suggest that the applicant is not able to work, and has not been working for some considerable time.
It was not submitted that the duration of the relationship affected the capacity of either party to earn an income. Neither party suggested that they will in the future have a commitment to support any other child or a responsibility to support any other person. The respondent contended there should be an adjustment in her favour at this stage because of, inter alia, the applicant’s ability to use his financial resource.
The parties clearly have limited means. The applicant and the respondent have both, though for different reasons, experienced difficulties since separation. However, on the evidence the applicant faces greater obstacles in the future than does the respondent. I have regard to the adjustment in favour of the respondent in respect of the parties’ contribution based entitlements. On the material before the Court, and whilst I have taken into account as a significant financial resource the inheritance available to the applicant, the evidence before the Court does not establish the need to make an adjustment in either party’s favour.
In summary on the material before the Court, the competing s.75(2) considerations off-set each other and I will therefore not make any adjustment to either party as a result of the relevant factors in s.75(2) of the Act.
Just and equitable
The final step in determining property matters is to stand back and consider whether the result is just and equitable. As the Full Court has made clear, it is not the percentages that must be considered, but the effect of the orders when determining whether just and equity to both parties has been achieved.
Counsel for the respondent submitted that the orders she sought were just and equitable. Counsel for the respondent submitted both parties wanted the former matrimonial sold, his client would be unlikely to be able to afford to buy again, but would have a capital sum and her superannuation. It was submitted the applicant would also receive a capital sum, have access to his inheritance and have, it was submitted, as he had since separation, the ongoing support of the family.
Counsel for the applicant submitted that the respondent’s orders did not produce a just and equitable outcome. It was submitted the division sought by the respondent from the sale proceeds of the former matrimonial home would produce a differential (even taking into account the applicant’s access to his inheritance) of $100,000 which was, it was submitted in the circumstances of this case, too great.
The orders should see that both parties will have assets to provide for themselves. I find, having regard to the length of the marriage, the arduous homemaker and parenting contribution by the respondent during cohabitation, and financial since, with the care of the children for over 8 years without any support, results in a superior contribution by her to the assets of the parties. However, the competing s.75(2) considerations for the parties, on the material before the Court, offset each other and in the particular circumstances result in no adjustment.
On either party’s case it is unlikely either party will be able to independently secure a property to live in. The respondent’s earning capacity however does exceed that of the applicant. There is also, what I take to be, the concession on behalf of the respondent that the applicant is unable to work into the future. As a matter of equity the Court is concerned to ensure that the respondent is able to maximise her cash component of any division of property arrived at as a result of the consideration of the relevant factors.
In the circumstances, and having regard to each of the abovementioned factors, a property division that will give each party the opportunity to move on with their life with some certainty should be preferred. For the reasons set out above, and as the parties agree, the former matrimonial home will be sold. The respondent will receive a cash payment from the proceeds of the sale of the former matrimonial home equal to 65% or $286,000 (on the parties agreed valuation). This will provide a financial sum to enable her to re-establish herself. The respondent will also keep her meagre superannuation and the car and contents (the agreed valuations of which are referred to earlier).
The applicant would receive the balance of the proceeds of the sale of the former matrimonial home equal to 35% or around $154,000 (on the parties agreed valuation). The applicant will also have use of the significant financial resource that is his inheritance in the amount of $126,448.40 and the car at the value agreed to. As a result the applicant will have $280,948.40 and the respondent will have $298,990.00.
Overall the above is a just and equitable result. It brings to an end the financial relationship between the parties which is also just and equitable given the length of time since their separation. I am satisfied that orders for the reasons set out above will produce a just and equitable outcome. I will make orders as set out at the beginning of these reasons for those reasons.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 30 May 2017
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