JAMES & JAMES
[2005] FMCAfam 479
•21 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JAMES & JAMES | [2005] FMCAfam 479 |
| FAMILY LAW – Property settlement – contributions – erosion of husband’s initial financial contributions – windfall increase in value – both parties elderly and unemployable. |
| Family Law Act 1975 (Cth), ss.75, 79 |
| Lee Steere and Lee Steere (1985) FLC 91-626 Ferraro (1993) FLC 92-335 Clauson (1995) FLC 92-595 Russell v Russell (1999) FLC 92-877 Mallet v. Mallet (1984) FLC 91-507 Zappacosta and Zappacosta (1976) FLC 90-089 Zyk and Zyk (1995) FLC 92-644 Read and Read (1984) FLC 91-527 Money and Money (1994) FLC 92-485 Bremner and Bremner (1995) FLC 92-560 Pierce v Pierce (1999) FLC 92-844 Spiteri and Spiteri (2005) FLC 93-214 |
| Applicant: | JOHANNA JAMES |
| Respondent: | LEWIS ALFRED JAMES |
| File Number: | LNM 1121 of 2005 |
| Judgment of: | Roberts FM |
| Hearing date: | 19 July 2005 |
| Date of Last Submission: | 19 July 2005 |
| Delivered at: | Launceston |
| Delivered on: | 21 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. McGuire |
| Solicitors for the Applicant: | Temple-Smith Partners |
| Counsel for the Respondent: | Mr D. Crampton |
| Solicitors for the Respondent: | Levis Stace and Cooper |
ORDERS
That within thirty days LEWIS ALFRED JAMES (“the Husband”) must pay to JOHANNA JAMES (“the Wife”) the sum of $36,400.
That except as provided for in the preceding order hereof each party is declared to have no further interest in the property in the possession or control of the other party.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNM 1121 of 2005
| JOHANNA JAMES |
Applicant
And
| LEWIS ALFRED JAMES |
Respondent
REASONS FOR JUDGMENT
The applicant is Johanna James ("the wife") and the respondent is Lewis Alfred James ("the husband").
The initiating Application was filed by the wife on 6 February 2005 in which she sought both interim and final orders. The application for final orders was heard on 19 July 2005. The final orders sought by her was that all the property of the parties be divided 50 per cent to her and 50 per cent to the husband.
The husband filed a Response on 21 March 2005. The first order sought by him was that the application be dismissed. The second order sought was that each party retain whatever property they had as their own property. He also sought a costs order.
On the day before the hearing the husband filed an Amended Response. In that document he sought a different first order that he pay to the wife by way of adjustment of property a further sum of $35,000, in addition to the sum of $5,000 that he had already paid to the wife by way of part adjustment of property. The second and third orders that he sought in the Amended Response were the same as those in the Response filed on 21 March 2005..
The matter came on for hearing on 19 July 2005. After some comments from me the matter was stood down for some negotiations. They did not result in a settlement, but the wife through her counsel made an oral application to amend the fifty-fifty settlement that she had previously sought to 35 per cent to the wife and 65 per cent to the husband.
Background
I will set out the background to the matter briefly, but before doing so I congratulate the parties for the fact that there was very little factual matter in dispute between them.
The husband was born on 19 September 1933, so he is 71 years old. The wife was born on 27 November 1940, so she is 64 years old.
The parties met in 1990. They started living together on 1 January 1991. They were married on 27 April 1991 and they separated on 1 October 2004. By my calculations, their cohabitation lasted for thirteen years and ten months (i.e. very nearly fourteen years).
Both parties had been previously married and there are no dependent children either of their previous marriages or of this marriage.
It is agreed between the parties that there has been a partial property adjustment. That happened at about the time that the interim application came on before me, but did not proceed. The partial adjustment was that the husband paid to the wife the sum of $5,000.
It is also agreed that, because of their ages, neither party has any capacity for gainful employment.
There is also agreement between the parties in relation to at least some of the assets that they had at the start of the relationship. It is agreed that the husband contributed his interest in the home at 127 David Street, East Devonport (“the home”). He is still residing in the home and it is agreed that at the time that the parties got together, it was worth between $40,000 and $46,000. The home was almost unencumbered, in that there were only a few hundred dollars owing on the mortgage at the time the parties commenced cohabitation.
Either at the start of the relationship or very shortly thereafter, the husband also had a total of $76,000, which comprised savings and also the proceeds of a redundancy which he took very shortly after the parties got together.
He also had furniture and a car of indeterminate value, but it is clear that neither his furniture nor his second‑hand car were of any great value.
Similarly the wife had a car and furniture and it is also clear that neither was of any great value.
The wife claims to have contributed savings of $8,000. However, I will refer to that below because that is not conceded by the husband.
As stated above, the husband took a redundancy very shortly after the parties commenced cohabitation. So, for nearly all of the cohabitation period, the parties' income consisted of social security payments of various types. That changed when the husband reached the retirement age, but it appears that those social security payments to both parties were of equal value. However, the husband also had some income from the interest on his savings.
There is not very much evidence before me in relation to the extent of that interest, but annexed to the husband's affidavit are copies of various pages of his bank accounts. Although it is by no means a complete series, they show that quarterly interest paid to him were as follows:
March 1994
$683
September1994
$645
September1997
$854
June 2000
$771
Clearly that interest would vary according to the prevailing interest rate and the balance in the account from time to time, but the average of those is $738, which equates to approximately $57 per week.
The parties agree that at the time of their separation their assets were as follows:
The home
$111,000
The husband's bank account
$76,665
The husband's motor vehicle
$4,000
The wife's motor vehicle
$1,350
The husband's furniture
$1,170
The wife's furniture
$500
The wife's bank account
$1,000
Total
$195,685
It is agreed that the husband's bank account balance has reduced to $69,100 because he paid the wife the sum of $5,000 referred to above plus some legal costs. However, I propose to use the agreed separation date figures in my calculations because they will take account of that payment of $5,000 and it is not appropriate in my view to include either party's legal costs in those calculations.
The wife has used that $5,000 to buy a better car, but I will also leave its value out of my calculations and simply deal with the agreed value of her vehicle at separation.
The law
The law in relation to property settlements between husbands and wife is to be found in Part VIII of the Family Law Act 1975 (“the Act).
Section 79 of the Act defines the Court’s powers in determining applications for property settlement. Sub-section 2 of Section 79 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) sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property.
The approach to the determination of an application under Section 79 is well established by authority (In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595). The process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c). Thirdly, evaluating the matters contained in section 75(2) in so far as they are relevant.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [Section 79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.
I shall therefore examine the evidence and make findings where necessary in the light of those legal principles.
The property
I do not need to identify the property liabilities and financial resources of the parties because the parties were agreed as to that.
Contributions
At the start of cohabitation, or very shortly thereafter, the husband contributed the home worth between $40,000 and $46,000, and a monetary sum of $76,000 which came from savings and his redundancy. Through her counsel, the wife conceded that she made no contribution to those initial contributions.
As stated above, contributions claimed by the wife include $8,000 in savings that were not conceded by the husband. However, there is evidence before me that she had approximately $8,000 in a RetireInvest account between February 1989 when she invested that as a capital guaranteed insurance bond and 5th February 1993 (being the date on exhibit W1).
In his affidavit, the husband says:
I do not know and cannot admit how much cash the applicant had at the commencement of cohabitation.
In his oral evidence the husband said that he did not discuss her $8,000 savings during the marriage. It is also clear from other evidence that the parties did not discuss their finances much at all. For some time at least the wife did not know what the husband’s savings were, although the parties disagree about how long that time was In that respect the parties were a little unusual in their marriage, in that for a while each did not know what the other had.
In my view, I must accept the wife's evidence that she brought in $8,000. It is also clear that she does not still have that $8,000. The balance of her savings at the time of separation was $1,000, so $7,000 has somehow been spent.
It is also clear that the parties lived relatively frugally. After all, they were only receiving social security benefits and the minimal interest from the husband's savings that I have mentioned. Therefore, it is not very hard to conclude that $7,000 of the wife's savings could very easily have been spent during a period of almost 14 years cohabitation, because that is only $500 per annum.
When I look at the initial contributions generally, ignoring the second-hand cars and chattels which I conclude were not of significant value, the major contributions are therefore $8,000 on the part of the wife and cash of $76,000 and a home worth between $40,000 and $46,000 (being a total of $116,000 to $122,000) on the part of the husband.
Calculated at either end of that range, the initial contributions were approximately 94 per cent to the husband and 6 per cent to the wife. It is hardly surprising, therefore, that the wife's counsel conceded that the husband's contributions were, to use his words, “probably 90 per cent”.
During cohabitation the parties contributed their incomes which were approximately equal, apart from the small additional amount that the husband contributed from his interest on his invested savings.
Both parties contributed as homemakers.
The husband's counsel says that I must look at the nature of the wife's contribution and he has referred me to the decision in Mallet v. Mallet (1984) FLC 91-507 and in particular to certain passages by the then Chief Justice Gibbs and Mason and Wilson JJ. The latter (Wilson J) said:
The Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as home maker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each.
When I consider the evidence, I conclude with little difficulty that the parties contributed equally as homemakers, but neither contribution was a particularly significant or onerous contribution. In this regard the contributions were solely as homemaker and not as parents.
If I ignore the initial contributions of 94 per cent of the husband and 6 per cent of the wife, the contributions after those initial contributions were approximately equal, but neither contribution was particularly significant. The parties were not high income earners and, as I have said, their homemaker contributions were not particularly significant or erroneous.
Counsel for the wife says that there has been a “windfall” of approximately $70,000, and because of the principles expounded in Zappacosta and Zappacosta (1976) FLC 90-089, I must divide the increase in the value of the husband's home equally. In my view, that is a simplistic approach and it ignores Mallet and the cases that came after Zappacosta. It also ignores the facts of Zappacosta itself.
Zappacosta was a decision of a single Judge I am not bound by a decision of a single Judge of the Family Court of Australia. Most certainly, they are persuasive, but I am only bound by decisions of the Full Court of the Family Court of Australia and the High Court of Australia.
The passage in Zappacosta relied upon by counsel for the wife was that of McCall J. The passage is as follows:
On consideration I am of the view that if a property appreciates, as obviously this one has, but not due to any particular effort or act of either of the parties, then the reason why the property did so appreciate is not relevant to the question of what interests the Court may decide that the parties to the marriage should have in it when exercising jurisdiction under sec. 79 of the Act. It is simply a windfall and, accordingly, in my view neither party has any greater or lesser claim to the benefits of the windfall.
As I said the facts of Zappacosta were not mentioned and in my view they deserve some mention. McCall J set them out as follows:
The history of the marriage of these parties and their subsequent life in Australia is, I believe, not untypical. The parties were married in Italy in 1951 when the husband was 18 years of age and the wife 16 years of age. It appears that after about 12 months the husband came to Australia and left his wife in Italy with his mother. In 1956 the husband sent money to his wife to enable her to join him in Western Australia together with the child of their marriage. At this time the husband had purchased the orchard, one of the properties in dispute, on which there was a very modest dwelling in which he and the wife and daughter then lived. Throughout the whole of the period of the marriage the husband was in full-time employment in addition to working the orchard. The parties lived in the house on the orchard until 1971 when the new matrimonial home was purchased, except for two occasions when the wife left the husband for short periods of time. The development and improvement of the orchard was a task to which I accept the whole family contributed. There was disagreement on the evidence as to the extent to which the wife was required to undertake manual work involved in clearing and developing the orchard. However, I accept the evidence of herself, and that of the two daughters of the marriage who gave evidence. They maintained that, particularly in the early years when the orchard was being established, the wife was called upon not only to look after the house and the family but in addition she was required to undertake a good deal of heavy manual work outside. Once the orchard was a going concern I have no doubt on the evidence before me that the wife, as well as the rest of the family, all worked hard picking and packing fruit for the market. With the husband employed full time during the day the tasks on the orchard necessarily fell to be undertaken during the weekends, and during the week by such members of the family that were at home. I believe they all worked hard, particularly in the early years. Conditions on the orchard in those days were apparently fairly primitive. The property at the beginning had no services such as water, requiring the wife during the height of the summer to carry water from a creek.
It seems to me that the facts in this case are very different. In Zappacosta the wife clearly made some significant non‑financial contributions and raised children. Those factors are absent in this case.
The issue of windfalls and especially lottery winnings have been analysed in much later cases than Zappacosta. For example, in Zyk and Zyk (1995) FLC 92-644, Nicholson CJ, Fogarty and Baker JJ said in a joint decision:
As previously mentioned, we consider that the preferred approach is to analyse these matters as a contribution rather than as a windfall. In the above cases there is no consistency in the use of either term. Chisholm J in this case ultimately treated it as a contribution by the husband, but he referred to both designations. On this appeal counsel for the wife put her submissions in the context of ``windfalls'' whereas counsel for the husband analysed it as ``contributions'' .
In common parlance a windfall is used to describe a chance or unexpected benefit which the people involved neither anticipated nor made any effort towards. The receipt of a substantial lottery prize may in general be referred to in that way. However, we doubt whether, for the purposes of the exercise under s. 79, that is the correct analysis. The parties purchase a ticket and expend part of their earnings or capital for the express purpose of winning the prize or a prize. Whilst the chances of winning the major prize are remote, the reality is that somebody does and it is the expectation, or at least hope, of each entrant that he or she may be that person. It is not the product of any particular skill but it is the product of the chosen expenditure of a small sum of money. Contributions is, we think, the preferable description within s. 79 because an acquisition of a prize contributes to the property of the parties. If it or part of it still remains in existence at the time of the trial or is represented by other then existing assets that will constitute part of the property to which s. 79 will apply. If it has been disposed of in the meantime in other ways that may or may not have been a contribution to property or the family depending on the circumstances. The use of the term ``windfall'' creates conceptual difficulties within s. 79 and can lead to inconsistent outcomes (see later). The approach of treating it as a contribution is consistent with the treatment of gifts from family as a contribution by or on behalf of that party: see Kessey and Kessey (1994) FLC 92-495.
In our view, the critical question in such cases is - by whom is that contribution made? In the ordinary run of marriages a ticket is purchased by one or other of the parties from money which he or she happens to have at that particular time. That fact should not determine the issue. Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly: see Anastasio . Where one party is working and the other is not the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties. The income of the working member is treated as joint in the same way as the domestic activities of the non- working partner are regarded as being for their joint benefit. In the essential sense this analysis is similar to that provided by the Full Court in Hauff and Hauff (1986) FLC 91-747 in discussing the rationale for treating superannuation benefits of one party, including contributions by the employer, as the product of joint contributions.
Their Honours went on to say:
In this case the trial Judge carefully analysed the authorities and the facts before him and rightly concluded that the earlier cases are not easy to reconcile. He also said that the ``specific facts of each case (should) be taken into account'' and that it is not ``consistent with the language of the legislation to frame absolute rules about how such winnings should be dealt with'' and that it cannot be stated ``as a matter of law that regardless of the circumstances lottery wins should or should not be regarded as a contribution by a party for the purposes of s. 79''.
Whilst we have no criticism of those views as a generality, the fact remains that the discretionary exercise under s. 79 is performed in a disciplined way within established principles. It cannot be approached in a way which produces a myriad of single instances unconnected with a principled thread and dependent upon the predilections of the particular judge.
In my view, it is also the case, especially since Mallett, that increases in values of real estate, cannot as a matter of law be automatically divided equally, regardless of the circumstances. I say that for a number of reasons.
The decision in Zyk concerned the contribution of the price of a lottery ticket. In this case, the house itself can be equated with the lottery ticket. If the husband had not been in possession of the home at the start of the parties' relationship, there would have been no appreciation in its value.
In my view that also fits with the passage to which I was referred by counsel for the husband in the decision in Read and Read (1984) FLC 91-527, in which Nygh J said:
Much of the water that has flowed under the bridge of the Full Court since 1976 has now flowed irretrievably into the desert as it would seem. If there is any starting point indicated by their Honours in the High Court, it is that one should perhaps pay greater attention to the legal and equitable interests of the parties as the starting point and then ask oneself whether, in the light of the contributions, both financial and non-financial and, of course, in the light of the needs of the parties, it is just and equitable to adjust those rights in the particular case.
Counsel for the wife said that the husband's initial contribution had been eroded by time and he referred me to the decision of Money and Money (1994) FLC 92-485, in which Fogarty J said the following:
In an appropriate case, in my view, an initial substantial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party. I feel, if I may say so with respect, that his Honour's formulation to the contrary is unrealistic and does not correspond with common experience in the Court in many of these cases.
I think it is legitimate for me to say, as I was a member of the Full Court in Lee Steere and Lee Steere (1985) FLC 91-626 , that his Honour has read too much into the passage to which he refers and that the term “off-setting contribution” does not necessarily mean “greater contribution” . It simply reflects the circumstance that the respective contributions of the parties over a long period of marriage may “offset” the significance which might otherwise be attached to a greater initial contribution by one party. This is, in my view, made clear by the Full Court in White and White (1982) FLC 91-246 where that Court pointed out that the principle in Crawford and Crawford (1979) FLC 90-647 is that the original contribution should not be carried forward as a mathematical proportion; ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be later factors of significance, and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
It is clear that Fogarty J's approach was approved of by the Full Court in the decision in Bremner and Bremner (1995) FLC 92-560. In that case, the parties were married in 1969, separated in 1992 and there were two children of the marriage. At the start of the marriage the husband owned a block of land. Both parties worked throughout the marriage. The wife was primarily responsible for the rearing of the children. The trial judge assessed the parties’ contributions as equal and made no adjustment for section 75(2) factors. The property was effectively divided equally between the parties.
On appeal, the Full Court disagreed with the approach previously taken by Lindenmayer J and preferred the approach of Fogarty J in Money and Money. However, it is important in my view that in Bremner there was no evidence of the value of the husband's land at the time of the marriage. The rates were $9 per annum, so it was assumed that the value of the land must have been low.
Counsel for the wife in this matter appeared to me to be putting forward the proposition that the “erosion” of an initial contribution was simply a factor of time, i.e. the length of cohabitation and the size of the initial contribution. In my view, that is clearly not the case.
In Bremner, the wife was responsible for rearing children and both parties worked. The wife's contributions in that case were clearly greater than those of the wife in this case.
Counsel for the wife also referred me to the decision in Pierce v Pierce (1999) FLC 92-844. In my view, he misquoted that decision, in that he said that the parties had been together for 10 years and that the husband had received thirty per cent, when that is not the case.
Pierce was an appeal by the husband against orders of Chisholm J, the effect of which was to divide the assets on the basis of forty five per cent to the wife and fifty five per cent to the husband. At the date of the hearing the husband was aged 39 years and the wife was aged 37 years. They had lived together briefly in 1982 and then resumed cohabitation in 1986, married in 1988 and separated in June 1996, so there was clearly a ten year relationship. However, there were two children of the marriage - a factor that is not present in this case. Those children were aged nine and seven and were residing with the husband.
As mentioned, the trial judge divided the assets on the basis of forty five per cent to the wife and fifty five per cent to the husband. He found that the husband had made greater contributions.
On appeal, the Full Court found that the trial judge had erred in his assessment of the contributions of the parties, in that he did not attach sufficient weight to the greater initial contributions of the husband and his post‑separation contributions in caring for the children. In re‑exercising the discretion, the Full Court assessed the contributions at seventy per cent to the husband and thirty per cent to the wife and, with a further adjustment of five per cent in favour of the husband for Section 75(2) factors, the result was an overall division of seventy five per cent to the husband and twenty five per cent to the wife.
Counsel for the wife also relied upon the decision of the Full Court in Spiteri and Spiteri (2005) FLC 93-214. In that case the husband and wife were married in 1990 and separated in July 1999. At the time of the hearing, there were three children of the marriage under the age of 18 residing with the wife. The wife had spent over $300,000 in a four‑ to six‑year period and the trial judge decided that that was a negative contribution which diminished the wife's contributions to twenty five per cent. The trial judge found that the husband had contributed very little to the welfare of the wife and the children after separation because the wife was receiving a pension and very little child support. His Honour awarded a fifteen per cent adjustment to the wife in relation to section 75(2) factors which resulted in a 60:40 division in favour of the husband.
On appeal the Full Court decided that because of the wife's wasting of assets during the marriage, the contributions at separation were assessed to be 80:20 in favour of the husband. In relation to Section 75(2) factors the Full Court decided that an adjustment of twenty per cent in favour of the wife was warranted. The result was that the Full Court gave on the one hand and took away on the other, because the end result was still a 60:40 division in favour of the husband.
In this case, if I was deciding the matter on initial financial contributions alone, the division would be in the order of niety four per cent to the husband and six per cent to the wife.
In my view, the contribution by the wife during the 14‑year period of cohabitation brings that percentage up, in that six per cent would not be sufficient. However, it would certainly not bring it up to thirty five per cent as suggested by her counsel.
Her financial contributions after cohabitation were slightly less than those of the husband and her homemaker contributions were equal to his. However, neither was of great significance.
In my view, on overall contributions alone, the wife would receive an award in the order of seventeen and a half per cent, rather than thirty five per cent as suggested by her counsel – i.e. an increase from six per cent to seventeen and a half per cent. In other words, I am of the view that the husband’s initial financial contributions are not eroded to the extent submitted by counsel for the wife.
Consequently, if I was deciding this matter on overall contributions alone, I would award seventeen and a half per cent to the wife and eighty two and a half per cent to the husband. Seventeen and a half per cent of the agreed total value of the assets of $195,685 is $34,250 in round figures.
The wife has already had a motor vehicle worth $1,350, furniture worth $500 and a bank account with $1,000, making a total of $2,850. She would be owed a further $31,400. However, I also need to take the section 75(2) factors into account.
Section 75(2) factors
Both counsel submitted to me that there should be a five per cent adjustment in favour of the wife on the basis of the section 75(2) factors, so I do not need to consider those factors exhaustively. Five per cent of the agreed total $195,685 is $10,000 when rounded upwards to the nearest $1,000. Consequently, taking into account the section 79 factors and the section 75(2) factors, the award to the wife should be $41,400.
However, it is common ground that the wife has already received $5,000 as a partial property settlement, and that should be deducted from her entitlement. Consequently, she should now receive a further adjustment of $36,400.
The husband has a balance in his account of $69,100 after paying the wife that sum of $5,000 and the legal costs that I referred to. A payment to the wife of $36,400 will reduce his savings to $32,700. That will mean that the parties will each have similar savings that they can put towards their similar needs. However, it was agreed that the wife's needs under section 75(2) are probably slightly greater, and hence the adjustment of five per cent in her favour. Both parties are elderly. They each claim ill health, but neither submitted any medical evidence. Neither party is employable.
It is my view that a payment to the wife of $36,400 is appropriate, not only in the light of the section 75(2) factors, but it is also just and equitable in the terms of section 79(2) of the act.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Roberts FM.
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