Jarrett and Jarrett
[2009] FMCAfam 55
•9 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JARRETT & JARRETT | [2009] FMCAfam 55 |
| FAMILY LAW – Property – domestic violence – contributions – s.75(2) factors. |
| Family Law Act 1975, ss.75(2), 79(2), 79(4) |
| Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Jones v Dunkel (1959) 101 CLR 298 C & C [1998] FamCA 143 Townsend and Townsend (1995) FLC 92-569 Aleksovski v Aleksovski (1996) FLC 92-705 Kennon v Kennon (1997) FLC 92-757 |
| Applicant: | MS JARRETT |
| Respondent: | MR JARRETT |
| File Number: | MLC 7325 of 2007 |
| Judgment of: | McGuire FM |
| Hearing dates: | 26, 27 & 28 November 2008 |
| Date of Last Submission: | 28 November 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 9 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Scriva |
| Solicitors for the Applicant: | Jeanne Gorman |
| The Respondent: | In person |
ORDERS
That the proceeds of sale of the parties’ real property situate at Property GProperty G in Victoria and Property H, Morocco be distributed as follows and in this sequence:
(a)to satisfy any mortgage liability;
(b)to pay reasonable costs and disbursements on the sales;
(c)such sum to the wife so as to give her 62.5% of the net property of the parties;
(d)the balance to the husband.
That the husband retain for his own use and benefit absolutely:
(a)all moneys received by him in respect of the Terms of Settlement made by the Supreme Court of Victoria in proceedings number 7722 of 2003 between Ms C and Mr Jarrett;
(b)the sum of $41,000.00 withdrawn from the joint mortgage account of the parties on 28 November 2005;
(c)all personalty and chattels in the possession of or under the control of the husband as at the date of these orders;
(d)the balance of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders.
That the wife retain for her own use and benefit absolutely:
(a)all personalty and chattels in possession of or under the control of the wife as at the date of these orders;
(b)the balance of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders.
That the husband be solely responsible for and indemnify the wife in respect of the following:
(a)any and all liabilities incurred by the husband since separation in either joint names or in his name alone;
(b)any and all liabilities attaching to any of the assets to be retained by the husband pursuant to these orders.
That the wife be solely responsible for and indemnify the husband in respect of the following:
(a)the wife’s Commonwealth Bank Visa card;
(b)the wife’s Harvey Norman MasterCard;
(c)any and all liabilities incurred by the wife since separation in either joint names or in her name alone;
(d)any and all liabilities attaching to any of the assets to be retained by the wife pursuant to these orders.
AND THE COURT DECLARES
A.That these orders are intended to finally determine the financial relationships between the parties with respect to Part VIII of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Jarrett & Jarrett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7325 of 2007
| MS JARRETT |
Applicant
And
| MR JARRETT |
Respondent
REASONS FOR JUDGMENT
Background
The application is by the wife filed 28 June 2007 for property settlement.
The parties married in Morocco in March 1989. They separated on
2 December 2005.
There are three children of the marriage namely [X] born in 1990 (aged 18 years), [Y] born in 1995 (aged 13 years) and [Z] born in 2001 (aged 7 years).
The children were originally the subject of these proceedings. However, the parties sensibly resolved that issue by way of consent orders made on 16 April 2008.
[X] and [Z] live with the wife. [Y] lives with the husband.
Both parties originate from Morocco. They moved to Australia in 1992 and initially took up residence in Perth, Western Australia.
In 1996 the parties separated for about six months. The husband took
a post in Indonesia. In 1997 he returned to Australia and lived
in Melbourne. The parties reconciled with the wife and children joining the husband in Melbourne.
The husband has tertiary qualifications but has most recently worked [in the transport industry]. At the time of the hearing he receives a disability benefit from Centrelink.
The wife has been engaged in home duties and caring for the children during the course of the marriage. She receives a Centrelink benefit.
The youngest child [Z] was born with some physical and mental disabilities. The evidence as to his condition is scant and there is some dispute between the parties as to the level of his disabilities.
Importantly, however, for the purposes of this matter, in 2004
the parties settled a medical negligence claim in respect of [Z]. Damages in a quantum of $298,000.00 were awarded to [Z]. These moneys are substantially held for him in trust. The wife receives a sum of $100.00 per week to assist with his care.
The husband received damages of $17,000.00 in respect of [Z]’s settlement. The wife received $49,000.00.
Neither party has re-partnered.
The wife seeks a 70% distribution of the net property pool in her favour. The husband seeks a 50/50 division. There is significant dispute as to what should constitute the asset pool for the purposes
of division.
The wife was represented at the hearing. The husband appeared on his own behalf.
Evidence
The wife relied upon the following:
a)Her affidavit filed 20 March 2008.
b)Her affidavit filed 9 September 2008.
c)Her financial statement filed 9 September 2008.
d)An affidavit of Ms W filed 14 April 2008.
The wife was cross-examined.
The husband filed a number of documents purporting to be his affidavits for hearing. The Court file discloses and the husband relied upon the following of his documents:
a)Affidavit filed 4 September 2007.
b)Affidavit (sworn 8 September 2008).
c)Affidavit filed 2 October 2008.
d)Affidavit filed 14 October 2008.
e)Affidavit filed 23 October 2008.
f)Affidavit filed 17 November 2008.
g)Financial statement filed 4 September 2007.
h)Financial statement filed 25 November 2008.
Issues
There are a number of factual and credit issues between the parties.
The husband claims an amount of approximately $70,000.00 which was received from him, and after litigation, from the estate of Ms C. He alleges no contribution from the wife. To the contrary, the wife says that both she and the husband befriended this elderly woman and thus “contributed” to the windfall.
There is a dispute as to the status to be attributed to the motor vehicle driven by the wife.
There is an issue as to moneys withdrawn by the husband from the parties’ mortgage account redraw facility at about the time
of separation. The amount is in dispute. He says that $37,000.00 was withdrawn. She says that the amount was $41,000.00. Further, the husband claims that those moneys were spent on renovations to the parties’ property at Morocco. The wife disagrees and says that there have been no, or no significant, renovations to the Moroccan property.
The wife also drew an amount from the same account. It is agreed that she withdrew $32,000.00. The husband says that the wife retained those moneys for her own use and benefit. The wife says that she used them primarily to repay a loan made to the parties from the wife’s family to assist with the purchase of the Moroccan property.
There is an issue raised by the wife as to the husband’s capacity for employment.
During the course of the evidence, it became apparent that the husband raises an issue as to the standard required to be provided by the wife
to the child [Z], who suffers from a disability.
Whilst noting that the husband is unrepresented in these proceedings, it is proper to point out that the evidence of both parties in respect
of a number of the issues raised by them was scant and lacking in detail, particularisation and corroboration. The proceedings between the parties are adversarial in nature rather than inquisitorial. It is not for the Court to make enquiries and make inferences without evidentiary basis.
The law
Section 79 of the Family Law Act 1975 (“the Act”) sets out the matters to be taken into account when altering the property interests of parties. The proper approach is a four step process.[1] That approach is:
[1] Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.
a)to identify the property, liabilities and financial resources of the parties at the time of the hearing;
b)
to assess the contributions made by the parties to the acquisition, conservation or improvement of the property having regard
to s.79(4) of the Act;
c)
to consider those matters set out in s.75(2) of the Act so far
as they are relevant;
d)pursuant to s.79(2) of the Act to ensure that any order is, in all the circumstances, just and equitable.
Property pool
The parties own two pieces of real estate being a property at
Property G, in Victoria, and a property in Morocco. Interim orders have been made for the sale of both properties. Whilst there is dispute between the parties as to the valuation of the Moroccan property, the sale of both properties will determine their real values. There are otherwise significant issues as to the constitution of the property pool. Those issues are as follows.
Ms C
During the course of the marriage the parties befriended an elderly woman, Ms C.
The husband in his affidavit filed 4 September 2007 and at paragraph 15 says this:
In 2006 I received a 50% share of a property at Property W by way of a gift from my partner at the time, Ms C. The property was transferred to me during our relationship and the Wife made no contribution to the property. Ms C died in 2006 and I received $60,000 from the sale of the property representing a 30 percent share.
It is clear that the husband is incorrect in saying that he received a 50% share of the property in 2006. Whilst there was obviously such
a transfer of a 50% share, there was also litigation in the Supreme Court of Victoria in respect of that transfer. The husband has annexed the Terms of Settlement in respect of that litigation. That document shows that proceedings commenced in 2003 and the settlement statement is dated 25 June 2004.
The parties to these proceedings agree that they separated
on 2 December 2005. Obviously therefore the litigation in the Supreme Court resolved some 18 months prior to the separation of
the parties in this case.
Not only does the husband incorrectly claim that the “gift” from Ms C came in 2006, he also claims in evidence to have been in a de facto relationship with this elderly woman. Ms C apparently passed away in or about 2006 at the age of 83 years. Whatever the nature of the relationship between the husband and Ms C, it had clearly ended by at least 2003 when the Supreme Court litigation was commenced.
Whilst the husband was originally “gifted” a 50% interest in Ms C’s home, the Supreme Court litigation settled on the basis of him receiving a 30% interest in the home when sold. This entitlement was subject to certain obligations to pay legal costs.
In his affidavit material the husband says that he eventually received the sum of $60,000.00. It was put to the husband in cross-examination that he did in fact receive a sum of $89,000.00. The husband’s response under oath was that he received “a little less than $70,000.00”. I accept the husband’s evidence in this regard and find that he received approximately $70,000.00.
Whilst it may not be necessary to comment on what appears to be a dubious transaction between the elderly Ms C and the husband prior to 2003, for the purposes of these proceedings, I find that a sum of approximately $70,000.00 was received by the husband in or about 2006. Whilst that is after his separation from the wife, it is clear that his entitlement, whether in the form of the original transfer of a 50% interest in the home or the 30% achieved after litigation, occurred well before the separation of the parties.
On the evidence available, the preconditions for the vesting of the husband’s interest were either the sale of the property or the death
of Ms C. The latter occurred in 2006 and hence the husband receiving his entitlement.
I find that entitlement, in the form of a chose in action, to be property within the meaning of the Act as the Full Court of the Family Court
of Australia said as long ago as 1977:
It seems unnecessary to attempt to set out a catalogue of what “property” may include in the context of sec. 79. It is sufficient for the purposes of this case to say that “property” means property both real and personal and includes choses in action.[2]
[2] Duff and Duff (1977) FLC 90-217 at [76,132]-[76,133].
Both parties agree that the husband alone received the moneys from
the sale of Ms C’s home. He has retained them for his own use and benefit.
Add-backs
Counsel for the wife urges the Court to “add-back” into the pool
of assets the moneys received by the husband in respect of the Ms C settlement which I have found to be approximately $70,000.00.
The husband says that he no longer has the moneys. He says that
he used those moneys to travel to Morocco and “spent moneys on the Morocco property”.
The wife disputes that there have been any or any significant renovations to the Moroccan property which was purchased in 2004.
Interestingly, at paragraph 14(b) of his affidavit filed 4 September 2007 the husband makes reference to a sum of $37,000.00 withdrawn by him only days prior to the parties’ separation in 2005. He also claims that these moneys were used to renovate the property in Morocco “including new kitchen appliances, shutters and other furnishings”.
The husband has produced no evidence to corroborate his claims
of renovation of the Moroccan property. He has provided no real particulars or details in his affidavit material. He has provided
no invoices or receipts. I prefer the evidence of the wife and accept that there have been no significant renovations to the Moroccan property.
The husband further claims that a sum of $19,000.00 from the “Ms C” moneys was used to repay a loan to a Mr B. The wife disputes the existence of any such loan.
There was no affidavit or evidence from Mr B. In somewhat bizarre fashion, the husband put to the wife when cross-examining
her that the said Mr B would not come to Court because he was in a relationship with the wife. She denied even knowing the man. No such allegation or connection was made in any of the husband’s affidavit material. I do not accept his evidence in this regard. In my view, the failure by the husband to adduce evidence from Mr B in the face of the wife’s dispute as to the veracity of that evidence, raises an inference in the sense of Jones v Dunkel[3] that the evidence of Mr B may not have assisted the husband.
[3] (1959) 101 CLR 298.
If I accept therefore the husband’s evidence that he has disposed of the sum of approximately $70,000.00 and do not accept his explanations, then I must consider whether to add back that sum into the pool
of assets as “notional property”.
The courts have understandably been loathe to make such add-backs given that “the parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting
on with their lives”.[4]
[4] C & C [1998] FamCA 143 at [46].
Consequently, to make any such add-back it is in my view necessary
to make an assessment as to the reasonableness or otherwise of the disbursement of the moneys.
The evidence suggests that the husband in this case was in employment at least until around 2008. He paid minimal child support. I have found that he did not use the moneys for renovations to the Moroccan property. I have rejected his evidence in respect of the alleged repayment of the $19,000.00 to Mr B.
Consequently, I am of the view that the husband has retained these moneys for his own use and benefit. They should be added back into the pool of assets and be seen as a “premature distribution” to the husband. As Nicholson CJ said in Townsend and Townsend:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regards should be had under section 75(2). It seems to me that the husband has had the benefit of that money… Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.[5]
[5] Townsend and Townsend (1995) FLC 92-569 at [81,654].
Add-back - $41,000.00
The wife says that the husband withdrew an amount of $41,000.00 from the parties’ mortgage account on 28 November 2005. The parties separated on 2 December 2005. The mortgage account was in credit and re-draws were available.
The husband concedes that he withdrew $37,000.00.
Bank statements tendered in evidence show two withdrawals
on 28 November 2005. One was for $37,000.00. The other was for $4,000.00. I note the proximity to separation. The wife herself candidly admits removing a sum of $32,000.00 from that same account on or about the date of separation. On balance I prefer the evidence
of the wife that the husband received $41,000.00 from that account.
The husband says that he used those moneys for renovation of the Moroccan property. I have accepted the wife’s evidence that there were no significant renovations to the Moroccan property. I accept the wife’s evidence that the husband withdrew the moneys without
her knowledge or consent.
I am of the view that the husband has retained the sum of $41,000.00 withdrawn from the mortgage account a matter of days prior
to separation for his own use and benefit. He was substantially
in employment. He did not pay child support. Consequently, I am of the view that this amount should also be added back to the asset pool.
Wife’s withdrawal - $32,000.00
On 2 December 2005, the wife concedes withdrawing $32,000.00 from the joint mortgage account.
The husband in his cross-examination of the wife suggested that she had retained the moneys for her own use and benefit and
by implication should also be added back into the pool.
The wife says that she gave a small amount to each child, made
a payment to the mortgage account, and used the remainder to repay moneys borrowed from her family by the parties to assist with the purchase of the Moroccan property.
The husband was cross-examined at length as to the sources of funds for the purchase of the Moroccan property in 2004. The purchase price was $100,000.00. Whilst there was no documentary evidence, the husband agreed with counsel for the wife that a sum of approximately $28,000.00 had been forwarded from Australia to Morocco prior to the purchase and to assist with that purchase. He also agreed that a sum
of $50,000.00 was borrowed secured by mortgage. He could not account for the balance of approximately $25,000.00.
Consequently, and whilst the wife in her affidavit material is curiously silent as to the purchase of the Moroccan property, I prefer her evidence that the balance moneys were borrowed from relatives in the sum of approximately $30,000.00 and that she repaid those moneys from the $32,000.00 withdrawn by her on the day of separation.
Wife's motor vehicle
The wife drives a motor vehicle with a current value of approximately $30,000.00. That vehicle was purchased with moneys released from [Z]’s trust account. There is no evidence as to ownership of the vehicle. It is clear, however, that the parties did not contribute to that vehicle and I presume that the vehicle is, at the very least, held in trust for [Z]. I do not intend to include it in the asset pool.
Husband’s motor vehicle
In the husband’s financial statement filed 4 September 2007
he discloses possession of a 1980 Mitsubishi motor vehicle valued
at $5,000.00. In his later financial statement filed 25 November 2008 he does not refer to any such vehicle. He was not cross-examined
in this respect. Consequently, I do not intend to include any vehicle in the possession of the husband in the pool of assets.
Wife’s credit cards
In her financial statement filed 9 September 2008 the wife discloses two credit card liabilities being a Commonwealth Bank visa card debt of $3,823.00 and a MasterCard debt of $12,070.00. There is no evidence as to when and why these liabilities were incurred. The wife was not cross-examined as to these liabilities. The amounts are modest in respect of each liability. The husband does not pay child support. The wife has had two children, and for a time all three children, of the marriage in her care. There is no evidence of wanton or reckless expenditure. I accept that they are liabilities of the marriage as at the date of the hearing.
Wife’s jewellery
The husband cross-examined the wife as to her possession of and disposal of jewellery. While she admitted disposing of some jewellery since separation I was not assisted as to any particularisation
or valuation.
The wife in her sworn financial statement filed 9 September 2008 discloses at paragraph 59 to having sold jewellery to a value
of $2,500.00. There is no evidence that she has retained those moneys. It is not a substantial sum. Again, there is no evidence of wanton
or reckless expenditure by the wife. She candidly discloses the sale of the jewellery in a sworn document, but the unchallenged evidence
of that same sworn financial statement is that she has savings of only $4.00. I do not intend to add back the sum of $2,500.00.
Conclusion – pool of assets
The assets of the parties are as follows:
Property G $280,000.00-
$300,000.00Property H, Morocco $225,000.00 Ms C settlement moneys $70,000.00 Moneys removed by husband from mortgage account on 28 November 2005 $41,000.00
The liabilities of the parties are as follows:
Mortgage – Property G $141,000.00 Wife’s Commonwealth visa card liability $3,823.00 Wife’s MasterCard liability $12,070.00
The net assets of the parties are therefore $459,107.00-$479,107.00.
Contributions
Neither party had any substantial assets at the date of the marriage.
The husband was in substantial employment during the marriage.
The wife was primarily engaged as the homemaker and primary parent.
The husband claims that the wife made no contribution to the sum
of approximately $70,000.00 eventually received by the husband pursuant to the Ms C litigation.
At paragraph 9 of her affidavit filed 20 March 2008, the applicant wife says:
While we lived together in the former matrimonial home the Respondent was working [in the transport industry]. He met
Ms C a woman [while working] and became a friend of both of us. She was an elderly lady and we entertained her at home which she appeared to enjoy. I cooked meals for her and celebrated her birthday with my husband and the children. I later found out that she had put my husband’s name on her house in Property W as part owner. About this time my husband asked me to go with them to a chemist shop to sign a document. I did not read the documents but later I found out that this document stated that Ms C and my husband were in a defacto relationship in order to save Stamp Duty on the transfer from Ms C to my husband. I am not sure why my signature was needed. Ms C at the time was approximately 83 years old and was a widow.
I accept the wife’s evidence that both she and her husband befriended Ms C and that the wife in fact attended at the signing of transfer documents and was a witness to that transfer.
I accept also that the husband was not in a de facto relationship with the elderly Ms C within the normal definition of that term.
Whatever the bona fides of the transactions with Ms C, they were initiated during the parties’ marriage. Both parties contributed to the relationship with Ms C. I therefore reject the husband’s assertion that the wife made no contribution to the sum eventually achieved of approximately $70,000.00.
The most obvious evidence of the wife’s contribution is that
the Supreme Court Terms of Settlement obligated the husband to pay the plaintiff’s legal costs in the sum of $20,000.00 and by way of four instalments on or before 31 March 2005. The parties agree that these payments were made. They were, obviously, made prior to the parties’ separation and from joint funds.
In 2004, and therefore during the course of the marriage, the husband and the wife received $17,000.00 and $49,000.00 respectively by way of damages paid to them arising from [Z]’s Supreme Court settlement. Both sums were initially paid into the parties’ joint mortgage account thereby creating the re-draw facility referred to above.
Counsel for the wife argues that the husband’s payment and the wife’s payment should be treated differently. I emphasise that no documents were tendered setting out the background or reasons for the payments to the husband and the wife. The wife says that her award was for “pain and suffering”. In cross-examination the husband suggested that the wife received compensation “because she went through a lot
of trouble”.
The suggestion and seemingly conceded by the husband is that
he received an award for loss of earnings related to [Z]’s condition.
Counsel for the wife then argues that the wife should receive a “special payment” before distribution according to the usual contribution factors. I do not accept this argument.
I am of the view that the rationale for each payment is not relevant. The simple fact is that both damages awards were received during
the course of the relationship. As the majority of the Full Court of the Family Court of Australia in Aleksovski v Aleksovski[6]said at [83,437]:
…in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.
[6] (1996) FLC 92-705.
I am of the view that this principle applies to the facts and circumstances in this particular case and that I should deal with the contributions of each of the husband and the wife in the normal sense rather than a form of “special preliminary payment” from the pool
to the wife.
Having said this, I am also of the view that the respective contributions of the parties of these moneys have some weight and particularly given their proximity to separation and I note the discrepancy in quantum. The evidence is that the payments were received and deposited in the parties’ mortgage account in late 2004. The parties separated
in December 2005.
Following separation and until April 2008, the wife was primarily responsible for the care of all three children. Two children continue
to live with her. One child lives with the husband. The husband has paid no child support or, at least, not more than the statutory minimum.
I take into account that the wife has primarily been responsible for attending to [Z]’s special needs. I say, however, that there was little or no evidence as to [Z]’s current condition and it is also noted that there is a dispute between the parties as to the extent of [Z]’s disabilities and consequently the level of his needs. Unfortunately, neither party chose to explore this issue in any detail. However, I can take into account that [Z] has disabilities given the Supreme Court payment. I can also find that [Z] has ongoing needs for care given the weekly payment of $100.00 made to the wife from the moneys held in trust.
The wife raised a further contribution issue in that she claims to have suffered domestic violence at the hands of the husband. He denies any physical violence.
The evidence of the wife is that the husband was for a period a heavy drinker. She says he would become violent and that he yelled at and hit her and the children. On an occasion she was pushed out the front door and into the street with the oldest child. There was police involvement. The wife moved to a women’s refuge for a couple of weeks.
She obtained an intervention order against the husband.
It is clear that following the decision of the Full Court of the Family Court of Australia in Kennon v Kennon[7] domestic violence can be
a relevant contribution consideration.
[7] (1997) FLC 92-757.
However, it is also clear that it is incumbent upon a party relying on such an issue to show more than violence per se. The onus is to demonstrate the violent conduct:
…to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been…[8]
[8] Kennon v Kennon (1997) FLC 92-757 at [84,294].
The courts have emphasised the exceptional nature of the principle. The onus is to prove a connection between violence and contribution.
In my view, in this case the wife has not discharged that onus. Her evidence is only as to the fact of the alleged violence rather than any impact on her contributions.
In summary, therefore, as to contributions, I find:
·The marriage is a relatively long one.
·There were no significant initial contributions.
·The contribution to the “Ms C” moneys is equal.
·The wife made a greater contribution ($49,000.00 as against $17,000.00) from the respective damages awards and these contributions were made late in the marriage.
·The wife has made a greater contribution to the care and support of the children since the date of separation including to [Z]’s needs.
I am of the view that an adjustment of 5% in favour of the wife
on account of contributions would be appropriate.
Section 75(2) factors
The husband is 50 years of age. The wife is 46 years of age.
The husband suggested in cross-examination of the wife that she was in employment. He adduced no evidence. The wife denied that she is in employment. Her sworn documents suggest that she receives
a Centrelink benefit.
The wife has no relevant qualifications. She has been out of the workforce for many years. She has responsibility for the care of [Z]. It is true that the wife receives a sum of $100.00 per week from [Z]’s trust moneys. I accept, however, that these moneys are directly related to his care. The fact remains that she has the responsibility for that care and that it must necessarily inhibit her capacity for productive employment.
The husband described himself in Court as an intelligent and educated man. I accept what he says. He has tertiary qualifications. He presented as articulate and worldly. He has held teaching and tutoring positions. There is, however, no evidence as to the utility of his qualifications in Australia. He most recently has worked [in the transport industry].
The husband receives a Centrelink benefit being a disability pension. There was no medical evidence. I can infer from the evidence that
he has been receiving this benefit during 2008. His own evidence was that the disability is not physical and in his own evidence he has been “diagnosed with many mental disorders”.
The evidence is confusing as to the status of the husband’s [transport industrty] licence. On balance, it seems that he might retain the licence or vehicle but has transferred the benefit of its temporary use to another person and for an unknown duration. There is no evidence that he is precluded, other than by choice, from using this income-producing asset.
I was able to observe the husband in court and in the witness box.
He is indeed articulate and obviously intelligent. He presents as urbane.
On the weight of the evidence, I am of the view that the husband has
a greater potential to return to the workforce than does the wife and hence a greater earning capacity.
Both parties currently have the responsibility for the care of children. Two children now live with the wife. No child support is paid. [Y] lives with the husband. He is 13½ years of age.
[Z] is just 7 years. Not only does the wife have the responsibility of caring for him during his minority, the level of attention required
is likely to be relatively greater than that of [Y] and the duration of his needs will also potentially continue into his maturity on account of his disabilities.
After considering all relevant matters, and in particular, the ages of the children together with [Z]’s special needs, I am of the view that there should be an adjustment for s.75(2) factors in favour of the wife of 7.5% resulting in an overall distribution of 62.5% in favour of the wife.
Conclusion
The husband would therefore receive a distribution of 37.5% of the net property pool. The husband has retained the “Ms C” moneys at $70,000.00 and the sum of $41,000.00 withdrawn from the mortgage account, totalling $111,000.00. Consequently, the remainder of the husband’s entitlement will come from the proceeds of sale of the home. The exact figure will, of course, vary depending upon the ultimate net amount available after payment of the mortgage and the costs of sale of both properties and dependant upon the sale prices of the two homes.
The wife will receive 62.5% of the net pool. She will retain the responsibility for her Visa and MasterCard debts. She will receive the cash adjustment from the proceeds of sale of the two properties.
In my view such a settlement is just and equitable pursuant to s.79(2) of the Act.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate: Ann Creek
Date: 3 February 2009
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