Joske and Gaffney
[2009] FMCAfam 1136
•30 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOSKE & GAFFNEY | [2009] FMCAfam 1136 |
| FAMILY LAW – Property settlement – consideration of significant contributions at commencement of relationship and recent receipt of inheritance just prior to separation – consideration of the evidence of and for the parties and the weight to be given – consideration of contributions financial and non-financial – variation as a result of s.75(2) issues. |
| Family Law Act 1975 (Cth) ss.75(2), 79(2), (4)(a)(b)(c)(d)(e)(f) |
| Pastrikos and Pastrikos (1980) FLC 91-987 Russell and Russell (1999) FLC 92-877 |
| Applicant: | MR JOSKE |
| Respondent: | MS GAFFNEY |
| File Number: | TVC 1516 of 2007 |
| Judgment of: | Coker FM |
| Hearing date: | 7 October 2009 |
| Date of Last Submission: | 7 October 2009 |
| Delivered at: | Townsville |
| Delivered on: | 30 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fellows |
| Solicitors for the Applicant: | Ruddy Tomlins & Baxter |
| Counsel for the Respondent: | Mr Lynham |
| Solicitors for the Respondent: | Hinschen Lawyers |
ORDERS
That the Husband retain the residential property situated at Property C described as Lot [omitted] containing an area of 1.93 hectares for his sole use and benefit absolutely.
That the Husband transfer to the Wife all his right title and interest in the residence situated at Property G, described as Lot [omitted] containing and area of 1012 square metres for her sole use and benefit absolutely.
That the parties do all such acts and things to discharge the joint registered mortgage over the residence situated at Property G, Bowen referred to in paragraph 2 hereof with the Commonwealth Bank, Bowen and that the Husband refinance the debt giving such other security as may be required to enable the said residence to be transferred to the Wife free of encumbrance.
That the Wife transfer to the Husband all her right title and interest in the residential property situated at Property S, Bowen described as Lot [omitted] containing an area of 804 square metres for his sole use and benefit absolutely.
That the Husband and Wife do all such acts and things as necessary and sign all documents to discharge the joint mortgage secured by the Commonwealth Bank Bowen over the property situated at Property S, Bowen referred to in paragraph 4 hereof and that the Husband refinance the debt in his sole name.
That the Wife transfer to the Husband all her right title and interest in the residential property situated at Property R described as Lot [omitted] containing an area of 634 square metres for his sole use and benefit absolutely.
That the Husband and Wife do all such acts and things and sign all such documents as necessary for the purpose of releasing the joint mortgage to the Commonwealth Bank Bowen over the property at Property R, referred to in paragraph 6 hereof, and that the Husband pay all such costs and fees of the Commonwealth Bank in relation to the release of the said mortgage.
That each of the parties shall be responsible for preparation of the necessary documentation and payment of all such costs and expenses as necessary respectively in respect of the properties referred to in paragraphs 2, 4 and 6 hereof of which they are the respective transferees.
That the Husband pay to the Wife the sum of forty-seven thousand five hundred dollars ($47,500) within thirty days of this Order.
That the Husband retain the 2007 Toyota Hilux Dual Cab Utility presently in his possession for his sole use and benefit absolutely.
That the Husband transfer to the Wife all his right title and interest in the 2000 Toyota Camry Sedan presently in the possession of the Wife for her sole use and benefit absolutely.
That the Husband retain his shareholding with AMP Limited for his sole use and benefit absolutely.
That the Husband retain ownership of his MLC Whole of Life Policy for his sole use and benefit absolutely.
That the Husband and Wife do all such acts and things and sign all such documents as necessary to close joint savings accounts of the parties with the Commonwealth Bank, Bowen and the parties shall each be entitled to one half of the proceeds of the account.
That
(a)The Husband shall be responsible for all mortgage instalments, rates and outgoings respect of the property situated at Property R and Property S, Bowen as and when they fall due and shall forthwith and forever keep the Wife indemnified with respect to the payment of same. That the Husband shall be solely entitled to all rental monies and income earned in respect of the properties situated at Property R and Property S, Bowen from the date of this Order.
(b)The Wife shall be responsible for all mortgage instalments, rates and outgoings in respect of the property situated at Property G, Bowen as and when they fall due and shall forthwith and forever keep the Husband indemnified with respect to the payment of same.
(c)Neither party shall encumber the real properties without the consent, in writing, of the other party, pending the transfers herein.
That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these Orders:
(a)Each of the parties be solely entitled to the exclusion of the other to assets in their possession. The furnishings and chattels in the property situated at Property C, Bowen shall be considered to be in the possession of the Husband and the furnishing and chattels in the residence situated at Property G, Bowen shall be considered to be in the possession of the Wife.
(b)Each party hereby foregoes any claim they may have to any superannuation or other work-related benefits belonging to or earned by the other.
(c)All insurance policies shall become the sole property of the policy holder named therein.
(d)Bank accounts shall be deemed to be in the possession of the person named as the account holder.
(e)Each party shall 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.
(f)Each of the parties shall be liable for all other debts, loans and accounts in their respective names.
That each party shall sign all documents including transfer of registration and ownership, and do all things necessary to give full force and effect to these Orders.
In the event that either party to these Orders refuses or neglects to execute any document or instrument or give any consent necessary to give effect to these Orders, then the Registrar or Deputy Registrar of the Federal Magistrates Court of Australia in Townsville be appointed pursuant to Section 106A of the Family Law Act 1975 to execute the document or instrument or give the consent in the name of such party, and to do all acts and things necessary to give validity and operation to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Joske & Gaffney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 1516 of 2007
| MR JOSKE |
Applicant
And
| MS GAFFNEY |
Respondent
REASONS FOR JUDGMENT
These proceedings, with regard to issues of property settlement, were commenced by Mr Joske, whom I shall refer to as the husband, by the filing of initiating application on 30 March 2009. In that initiating application the husband detailed, at length, the orders sought by him in relation to property settlement. The orders contained within the initiating application of 23 February 2009 are as follows:
(1)That the Husband retain ownership of the property situated at Property C, Bowen, described as Lot [omitted], containing an area of 1.29 Hectares for his sole use and benefit absolutely;
(2)That the Husband transfer to the Wife all his right, title and interest in the residence situated at Property G, Bowen, described as Lot [omitted], containing an area of 1,012 square metres for her sole use and benefit absolutely;
(3)That the parties arrange forthwith for a release of the existing joint Mortgage with the Commonwealth Bank, and that the Wife refinance the mortgage debt over the property situated at Property G, Bowen giving a fresh Mortgage or other security in her sole name.
(4)That the Wife transfer to the Husband all her right, title and interest in the residence situated at Property R, Bowen, described as Lot [omitted]containing an area of 634 square metres for his sole use and benefit absolutely.
(5)That the Wife transfer to the Husband and the Husband retain ownership of the following items of property for his sole use and benefit absolutely:
(a) Toyota Hilux Utility Dual Cab
(b) Shareholding in AMP Limited
(c) Life Insurance Policy held with Suncorp being Policy No. [9]
(d)Life Insurance Policy held with MLC under Policy No. [0].
(6)That the Husband transfer to the Wife all his right, title and interest in the Toyota Camry Motor Vehicle Queensland Registration [9] and that the Wife shall retain same for her sole use and benefit absolutely.
(7)That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these Orders:
(a)Each of the parties be solely entitled to the exclusion of the other to assets in their possession. The furnishings and chattels in the property situated at Property C, Bowen shall be considered to be in the possession of the Husband and the furnishing and chattels in the property situated at Property G, Bowen shall be considered to be in the possession of the Wife.
(b)Each party hereby foregoes any claim they may have to any superannuation or other work-related benefits belonging to or earned by the other.
(c)All insurance policies shall become the sole property of the policy holder named therein.
(d)Each party shall 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.
(8)That each party shall sign all documents including transfer of registration and ownership, and do all things necessary to give full force and effect to these Orders.
(9)In the event that either party to these Orders refuses or neglects to execute any document or instrument or give any consent necessary to give effect to these Orders, then the Registrar or Deputy Registrar of the Federal Magistrates Court of Australia in Townsville be appointed pursuant to Section 106A of the Family Law Act 1975 to execute the document or instrument or give the consent in the name of such party, and to do all acts and things necessary to give validity and operation to these Orders.
(10)That each party have liberty to apply to the Federal Magistrates Court of Australia in relation to any questions arising as to the implementation or interpretation of these Consent Orders on the giving of seven (7) days notice in writing, one to the other.
Notation:
Pursuant to Section 81 of the Family Law Act 1975, the parties intend that these Orders shall as far as practicable, finally determine the financial relationships between them and avoid further proceedings between them.
A response was filed on 17 April 2009 by Ms Gaffney, whom I shall refer to as the wife. The orders sought by her in that response were in the shortest of compass one could imagine. The orders that were proposed by the wife were in these terms:
(1) The wife receive 65 per cent of net matrimonial assets.
Subsequently, and fortunately so as to provide some clarification, the wife then detailed within her case outline, more specifically, the orders that she sought in relation to these proceedings. Those orders were, again, more detailed and provided, basically, for arrangements in relation to the transfer of various properties and the assignment of various liabilities to one party or the other. Those orders are as follows:
(1)That the husband retains the residential property situated at Property C, Bowen, described as Lot [omitted] containing an area of 1.93 hectares for his sole use and benefit absolutely.
(2)That the husband transfer to the wife all his right, title and interest in the residence situated at Property G, Bowen described as Lot [omitted] containing an area of 1012 square metres for her sole use and benefit absolutely.
(3)That the parties do all such acts and things to discharge the joint registered mortgage over the residence situated at Property G, Bowen referred to in paragraph 2 hereof with the Commonwealth Bank, Bowen and that the wife refinance the debt into her sole name.
(4)That the husband transfer to the wife all his right, title and interest in the residential property situated at Property S, Bowen described as Lot [omitted] containing an area of 804 square metres for her sole use and benefit absolutely.
(5)That the husband and wife do all such acts and things as necessary and sign all documents to discharge the joint mortgage secured by the Commonwealth Bank, Bowen over the property situated at Property S, Bowen referred to in paragraph 4 hereof and that the wife refinance the debt in her sole name.
(6)That the husband transfer to the wife all his right, title and interest in the residential property situated at Property R, Bowen described as Lot [omitted] containing an area of 634 square metres for her sole use and benefit absolutely.
(7)That the husband and wife do all such acts and things and sign all such documents as necessary for the purpose of releasing the joint mortgage to the Commonwealth Bank, Bowen over the property at Property R, referred to in paragraph 6 hereof, and that the wife pay all such costs and fees of the Commonwealth Bank in relation to the release of the said mortgage.
(8)That each of the parties shall be responsible or preparation of the necessary documentation and payment of all such costs and expenses as necessary respectively in respect of the properties referred to in paragraphs 2, 4 and 6 hereof of which they are the respective transferees.
(9)The wife pays the husband the sum of $69,000 within 30 days of this order.
(10)That the husband retains the 2007 Toyota Hilux Dual Cab utility presently in his possession for his sole use and benefit absolutely.
(11)That the husband transfers to the wife all his right, title and interest in the 2000 Toyota Camry sedan presently in the possession of the wife for her sole use and benefit absolutely.
(12)That the husband retains his shareholding with AMP Limited for his sole use and benefit absolutely.
(13)That the husband retains ownership of his MLC Whole of Life Policy for his sole use and benefit absolutely.
(14)That the husband and wife do all such acts and things and sign all such documents as necessary to close joint savings accounts of the parties with the Commonwealth Bank, Bowen and the parties shall each be entitled to one-half of the proceeds of the accounts.
(15)The wife is responsible for all mortgage instalments, rates and outgoings in respect of the property situated at Property R, Bowen, Property G and Property S, Bowen as and when they fall due and shall forthwith and forever keep the husband indemnified with respect of the payment of same.
(16)That the wife shall be solely entitled to all rental monies and income earned in respect of the properties situated at Property R, Bowen and Property S, Bowen from the date of this order.
(17)Neither party shall encumber the real properties without the consent, in writing, of the other party, pending the transfers herein.
(18)Bank accounts shall be deemed to be in the possession of the person named as the account holder.
(19)Each party shall 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.
(20)Each of the parties shall be liable for all other debts, loans and accounts in their respective names.
(21)That each party shall sign all documents including transfer of registration and ownership, and do all things necessary to give full force and effect to these Orders.
(22)The husband retains all the property at Property C, Bowen save and except the following which he will deliver to the wife within 14 days of this order:
(a)Wife’s engagement ring
(b)Heirloom bassinet
(c)Wife’s [occupation] tools
(d)Wife’s personal clothing and effects
(e)Tennis racket
(23)In the event that either party to these Orders refuses or neglects to execute any document or instrument or give effect to these Orders, then the Registrar or Deputy Registrar of the Federal Magistrates Court of Australia, Townsville be appointed pursuant to Section 106A of the Family Law Act 1975 to execute the document or instrument or given the consent in the name of such party, and to do all acts and things necessary to give validity and operation to these Orders.
(24)That each party have liberty to apply to the Federal Magistrates Court of Australia in relation to any questions arising as to the implementation or interpretation of these Orders.
(25)That each party bear their own costs of and incidental to this action.
The orders sought by the husband were, at least to some extent, then further clarified, or elaborated upon by the husband in the outline prepared by his legal representatives and made available to the court on 6 October 2009. Those orders provided more specifically for arrangements in relation to the various properties, as well as detailing a payment which was suggested as appropriate to be made by the husband to the wife. The final orders sought by the husband, as detailed in the outline, were as follows:
(1)That the Husband retain the residential property situated at Property C described as Lot [omitted] containing an area of 1.93 hectares for his sole use and benefit absolutely.
(2)That the Husband transfer to the Wife all his right title and interest in the residence situated at Property G, described as Lot [omitted] containing and area of 1012 square metres for her sole use and benefit absolutely.
(3)That the parties do all such acts and things to discharge the joint registered mortgage over the residence situated at Property G, Bowen referred to in paragraph 2 hereof with the Commonwealth Bank, Bowen and that the Husband refinance the debt giving such other security as may be required to enable the said residence to be transferred to the Wife free of encumbrance.
(4)That the Wife transfer to the Husband all her right title and interest in the residential property situated at Property S, Bowen described as Lot [omitted] containing an area of 804 square metres for his sole use and benefit absolutely.
(5)That the Husband and Wife do all such acts and things as necessary and sign all documents to discharge the joint mortgage secured by the Commonwealth Bank Bowen over the property situated at Property S, Bowen referred to in paragraph 4 hereof and that the Husband refinance the debt in his sole name.
(6)That the Wife transfer to the Husband all her right title and interest in the residential property situated at Property R described as Lot [omitted] containing an area of 634 square metres for his sole use and benefit absolutely.
(7)That the Husband and Wife do all such acts and things and sign all such documents as necessary for the purpose of releasing the joint mortgage to the Commonwealth Bank Bowen over the property at Property R, referred to in paragraph 6 hereof, and that the Husband pay all such costs and fees of the Commonwealth Bank in relation to the release of the said mortgage.
(8)That each of the parties shall be responsible for preparation of the necessary documentation and payment of all such costs and expenses as necessary respectively in respect of the properties referred to in paragraphs 2, 4 and 6 hereof of which they are the respective transferees.
(9)That the Husband pay to the Wife the sum of thirty thousand dollars ($30,000) within thirty days of this Order.
(10)That the Husband retain the 2007 Toyota Hilux Dual Cab Utility presently in his possession for his sole use and benefit absolutely.
(11)That the Husband transfer to the Wife all his right title and interest in the 2000 Toyota Camry Sedan presently in the possession of the Wife for her sole use and benefit absolutely.
(12)That the Husband retain his shareholding with AMP Limited for his sole use and benefit absolutely.
(13)That the Husband retain ownership of his MLC Whole of Life Policy for his sole use and benefit absolutely.
(14)That the Husband and Wife do all such acts and things and sign all such documents as necessary to close joint savings accounts of the parties with the Commonwealth Bank, Bowen and the parties shall each be entitled to one half of the proceeds of the account.
(15)That
(a)The Husband shall be responsible for all mortgage instalments, rates and outgoings respect of the property situated at Property R and Property S, Bowen as and when they fall due and shall forthwith and forever keep the Wife indemnified with respect to the payment of same. That the Husband shall be solely entitled to all rental monies and income earned in respect of the properties situated at Property R and Property S, Bowen from the date of this Order.
(b)The Wife shall be responsible for all mortgage instalments, rates and outgoings in respect of the property situated at Property G, Bowen as and when they fall due and shall forthwith and forever keep the Husband indemnified with respect to the payment of same.
(c)Neither party shall encumber the real properties without the consent, in writing, of the other party, pending the transfers herein.
(16)That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these Orders:
(a)Each of the parties be solely entitled to the exclusion of the other to assets in their possession. The furnishings and chattels in the property situated at Property C, Bowen shall be considered to be in the possession of the Husband and the furnishing and chattels in the residence situated at Property G, Bowen shall be considered to be in the possession of the Wife.
(b)Each party hereby foregoes any claim they may have to any superannuation or other work-related benefits belonging to or earned by the other.
(c)All insurance policies shall become the sole property of the policy holder named therein.
(d)Bank accounts shall be deemed to be in the possession of the person named as the account holder.
(e)Each party shall 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.
(f)Each of the parties shall be liable for all other debts, loans and accounts in their respective names.
(17)That each party shall sign all documents including transfer of registration and ownership, and do all things necessary to give full force and effect to these Orders.
(18)In the event that either party to these Orders refuses or neglects to execute any document or instrument or give any consent necessary to give effect to these Orders, then the Registrar or Deputy Registrar of the Federal Magistrates Court of Australia in Townsville be appointed pursuant to Section 106A of the Family Law Act 1975 to execute the document or instrument or give the consent in the name of such party, and to do all acts and things necessary to give validity and operation to these Orders.
Finally, and perhaps most necessarily in relation to this matter, the wife’s position, in fact during the course of her cross-examination changed in relation to the proceedings. Unusually, but necessarily in this particular matter, it was ordered that the cross-examination cease and that leave be given to the legal representatives for the wife to clarify exactly the final position sought by her in relation to this matter.
Quite simply, this arose because when cross-examination commenced on the part of the husband, it became clear that, whilst the wife had made certain proposals in relation to the transfer of properties to herself and the retention of obligations relating to mortgages, it was impossible for her to, in any way, be able to meet the expenses and the liabilities that would arise as a result of the transfers of such property. In the clear light of day the wife then finally considered the position in relation to the matter.
She took, no doubt, advice from her legal representatives, and the position then taken by the wife in relation to the matter was that she accepted the proposal that was put forward by the husband in relation to the transfer of interests in certain properties, and the allocation of responsibilities for liability in respect of those properties and in fact proposed that all of the orders detailed in the husband’s outline should be taken up, except for order (9) which provided for the payment of certain moneys by the husband to the wife.
It was never specifically detailed what that might exactly be, but the best estimate, or guess, that might be able to be provided, is that in final addresses it was submitted that the appropriate distribution after consideration of contributions, both financial and non-financial, as well as those matters that arise for consideration pursuant to the provisions of section 75(2) would mean that there would be an equal distribution of the matrimonial assets between the parties.
As best I can calculate from the figures that have been agreed between the parties, this would result in a payment to the wife of approximately $180,000 rather than the payment to the wife of approximately $30,000 as was envisaged by the husband.
As is perhaps obvious from the comments that I have already made in relation to this matter, it was a case in which there were very many matters that were agreed, though some others were hotly contested. They turn, however, not so much in relation to assisting with regard to the final distribution of property to be effected between the parties, but rather reflect more upon issues in relation to the credibility and character of the husband and the wife. I shall comment a little further in relation to those particular aspects of the matter when commenting upon the evidence of both the husband and the wife.
Suffice it to say, however, that insofar as the determination of this matter itself is concerned, it was accepted by both the husband and the wife through submissions on their behalves by counsel, that there were really two significant issues to be looked at in relation to the determination of this matter.
The first is, of course, the contribution issues and consideration specifically of what apportionment should be allocated in relation to both the husband and the wife, being mindful of the fact that the husband brought into the marriage a residence at Property C, which provided accommodation for the parties, though it was apparently subject to at least some small mortgage liability, as well as at the period just prior to separation, the receipt of an inheritance in the vicinity of about $167,000, which was utilised in relation to significant reduction of liabilities on the part of both parties.
The second issue to be taken into consideration in relation to this matter, are those matters which might arise, normally in respect of the provisions of section 75(2) of the Family Law Act, and of course what adjustment, if any, should be made in that particular regard. Again, I will obviously comment in respect of those two issues later in these reasons.
Before addressing matters in relation to the law and issues of that nature however, it is important that I take the opportunity of commenting upon the evidence which was relied upon in relation to the proceedings. As is always the case, the evidence of the husband and the wife was of particular significance in relation to the assessment to be made in respect of this matter.
Also called, on the part of the husband, however, were Mr J, the uncle of the husband, and Ms H, the husband’s sister. In particular, Mr J filed an affidavit on 7 September 2009 in which he commented particularly upon the interaction and involvement of the father in the life of the children, both prior to and subsequent to separation, as well as commenting specifically about certain works, or improvements, which were conducted by the husband on various properties, including, particularly, the property which was owned by him prior to marriage. Mr J was not required for cross-examination.
I accept, obviously, the statements that were made by him in relation to those two areas to which I have already referred. In particular, however, I note the contents of paragraph 4 of his affidavit where Mr J says the following:
“I have seen [Mr Joske] carry out a lot of improvements and building work to the house after he bought it. I have observed the work he carried out, including cementing underneath and filling in all the outside. He also built rooms in underneath and generally did a lot of improvements around the place. This work was carried out after he bought the house, before [Ms Gaffney] married and moved in with him. “
It is significant that this evidence was not challenged, because one of the real thrusts of argument that was put on the part of the wife, was that significant works on the property were conducted after the marriage of the husband and the wife. The husband denied, this generally though he was not able to be terribly specific, that great amounts of work had not been performed after marriage.
It was clear that there was dispute, however, between the husband and the wife as to what degree of improvement, or refurbishment, had been done prior to marriage, but it is noteworthy that the unchallenged evidence of Mr J was to the effect that the work underneath the house at Property C had, to all intents and purposes, been completed prior to the marriage. I accept the evidence of Mr J in that regard and note also the comments that he made with regard to the involvement that the husband had in the lives of the children.
Also called on the part of the husband was his sister, Ms H. Ms H had some involvement in the financial arrangements that were entered into between the husband and his mother at the time of the purchase of the property situated at Property C. Ms H was able to comment about certain of the works performed upon the property and also was able to confirm the basis, as she understood it, from advices received from both the husband and from her late mother that moneys that were paid by the husband to his mother for the purchase were at market value and were from savings that had accrued during his time as [trade omitted].
I accept her evidence in that regard and, in any event, I note that to a significant degree Ms H was not in any way unable to justify her position in relation to her statements, with regard to work performed upon the house when questioned, or the involvement of the husband in the life of the family, and in particular the children. It was clear that Ms H came in and out of the father’s life at various times, and perhaps toward the end of her mother’s declining health, was more regularly a visitor at his home.
What is also obviously clear, is that she was able to corroborate the evidence of the husband, which was also the evidence of Mr J, which was to the effect that significant works had been performed upon the Property C property prior to cohabitation commencing, following marriage in the latter part of 1998.
I must say that I was generally impressed with Ms H in relation to the evidence that she gave. I thought that she was both thoughtful in relation to the questions that were delivered to her, and made appropriate concessions when she was unable to be specific about what might or might not have been the improvements or works done upon the property at Property C. For example, I noted particularly that when she was questioned about the renovations done to the home at Property C, she was adamant that all of the work underneath the house, including concreting, building-in and the like, had been completed, but when asked about the improvements that were done upstairs, she was unable to specifically recall whether they were done before or after marriage and did not prevaricate.
More particularly, it was noteworthy that when she was asked in re-examination about the fencing of the property, she confirmed the husband’s position, which was to the effect that the fencing had already existed but that improvements to that, which included, as I understood it, the painting of the fencing so as to match the awnings that were attached to the property subsequent to marriage, was done, obviously, after marriage.
Again, I was impressed by the evidence of Ms H in relation to this matter and, as necessary, accept the evidence that she gave in relation to this matter.
I turn now, as I must, to the evidence of both the husband and the wife in relation to these proceedings. I should say at the outset that I was impressed generally with both the evidence of the husband and of the wife. It was clear that they had, during the period that they were together, between marriage [in] 1998 and separation on 18 November 2007, contributed as best they could, and in the manners most appropriate to them, to the acquisition and development of the assets of the parties.
It was noteworthy for example, that in cross-examination of the husband, he was asked whether he had ever said to the wife that it was a situation where she was the “brains” and he was the “brawn” within the relationship. I gained the distinct impression that the husband, trying to be honest, did not deny that such a statement may have been made, in a joking manner. It was to his credit that he acknowledged that that had probably occurred.
It was also a little troubling however, in that the impression I got, was that it was what might be termed a more traditional relationship, where much of the heavier, or dirtier work, that was required to be done in relation to renovations and improvements to the properties that were purchased by the parties, was no doubt done by the husband and much of the other incidental work that might have been necessary, such as attending to the care of children, or directing arrangements in relation to the payment of invoices received, was attended to by the wife but that the husband, at least slightly, downplayed the joint character of the contributions.
In any event, I gained the distinct impression that during the relationship both of the parties, as I said, would have contributed in appropriate ways to the acquisition, maintenance and improvement of the assets that were accumulated during the relationship.
In that respect also, I should note, that until such time as the parties first child, [X], was born [in] 2002, about four years after marriage, the parties had both been in employment and it was clear that, again in accordance with their capacity and qualifications, they both contributed financially to the relationship.
Subsequent to the birth, firstly of [X] and then a little later, to the birth of [Y], [in] 2004, the wife’s financial contributions were clearly reduced, but just as obviously her contribution in relation to the household, and in particular as the parent having prime responsibility for the care of the children, would have increased. It was clear therefore, as I have said, that there were, at least to a significant degree, traditional roles adopted by the husband and the wife in relation to this matter, though I do not at all suggest that the husband was not significantly involved in the care of the children on occasions, for example, when he was at home on weekends and of course during holiday periods.
I was, however, troubled by one aspect of the wife’s evidence in relation to this matter. It turned, as I alluded to earlier, on a question, not so much as to the contributions of the parties, but rather about issues with regard to credibility and character. It is obvious that the husband, in or about May 2007, received an amount in the vicinity of $167,000 from the estate of his late mother. Those moneys were paid into the husband’s account.
From the husband’s version of events, after the purchase of a motor vehicle and various other incidentals, there was still in excess of $110,000 held in his personal account. The parties, during their relationship, continued to have personal accounts as well as joint accounts, but that only after separation did he find that that account had been drained and that there was little, if any money, remaining in that account.
The wife acknowledges that an amount of about $106,000 was drawn from that account and used to pay down a significant amount on the property situated at Property G. The wife says that that was an agreed arrangement between she and the husband and was obviously the astute financial move to be taken in relation to the matter, it being the case that it would have significant financial advantage to both she and the husband, by reducing the mortgage and therefore the payment liabilities or interest that might be accrued on the debt attaching to Property G.
The husband was adamant that that was not the case and in fact gave evidence, which I found compelling, to the effect that he was intending to hold such moneys, pending a decision to be made by him, as to what arrangements would be made for the investment of those moneys for the benefit of the children. The husband’s evidence was to the effect that he had promised his mother, approaching the time of her death, that such an arrangement would be put in place, and I accept that that was the case. Correspondingly, therefore, I do not accept that the wife had discussed the drawing down of such moneys, and the payment off of liabilities.
I am comforted in that particular aspect of the matter, also by the fact that it is clear that the wife’s position, taken in relation to this matter, was to the effect that she intended, at the time of separation, to take up occupation of the property at Property G. It was significant therefore, that whilst there were liabilities, attaching not only to Property G but also to the property at Property S, Bowen, the entirety of the debt reduction was effected in relation to the property at Property G, Property G.
In that one respect I was troubled, therefore, by the adamant position taken by the wife in relation to the matter and I accept the husband’s evidence in relation to him having no knowledge whatsoever of the intention to draw down the funds.
In the end, it has not a great deal of impact in relation to the determination of this matter, because fortunately it is not a situation where the moneys were drawn down by one party or the other and then dissipated with there being no benefit to the parties. It was clear that the moneys were, in almost their entire compass, directed towards the reduction of joint liabilities that were held by the parties and it is, therefore, not a situation where it has led to the detriment of one party or the other.
As I say, I was generally impressed with the husband and the wife. Both had skills that they brought into the relationship, and both have skills which continue, including, of course, their qualifications as a [occupations omitted].
At the present time, the wife has some permanent part-time work with the Queensland Department of [omitted] and is hoping to obtain further work. It is clear also, that whilst the permanent part-time work is only of limited compass at the moment, it is supplemented by offers of additional work and the wife has, in the last two years or so, found herself in a situation where she has been earning amounts almost equivalent to that of the husband.
It is also noteworthy, of course, that the wife is seeking full-time employment, both of the children now being of school age, and that in that regard, if she were to obtain a full-time permanent position with the Department of [omitted], her income would, in fact, one would think, be at least the equivalent of, and perhaps even a little more, than the income of the husband.
It is a factor that obviously will need to be considered in the more complete determination of issues with regard to any adjustment to be made, pursuant to the provisions of section 75(2) of the Family Law Act.
I turn now to the law and to its application in relation to this matter. There are two issues to be considered in relation to this matter. I need, obviously, to look at the law in respect of financial contributions between husband and wife and, in that regard, the relevant law is as follows.
Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (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. Those matters include:
a) the financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b) the contribution made by a party to the welfare of the family including any contribution made in the capacity of home maker or parent;
c) the effect of any proposed order upon the earning capacity of either party;
d) the matters referred to in subsection 75(2) as far as they are relevant;
e) any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f) any child support payable.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos; In the Marriage ofLee Steere and Lee Steere; In the Marriage of Ferraro; In the Marriage of Clauson and In the marriage of Whitely and Whitely) the process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2), in-so-far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable [see 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.
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 the Marriage of Ferraro (supra) the Full Court said:
“A now well established line of authority in this court indicates the new approach normally to be taken in the exercise of the discretion in section 79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider ‘contributions’ of the parties within paragraphs (a) – (c) of section 79(4) and then consider the matters in paragraphs (d) – (g), more especially paragraph (e) which takes up by reference the provisions of section 75(2) which are generally referred to as the ‘Section 75 Factors’”.
There being a four-step process, therefore, that is required to be looked at in relation to proceedings such as this, the first of those steps is, of course, to, as best one can, quantify the asset pool for the purposes of distribution between the parties. To that end, there has been significant clarification provided in relation to the matter because the parties have reached agreement as to what constitutes the asset pool, for the purposes of distribution.
That pool is set out in the aide-memoire which has been provided to the court as follows:
Property C Husband $420,000 Property is debt-free
Property G Joint $325,000 Debt is $63,608.00 at
5/10/09Property R Joint $340,000 Property is debt-free
Property has an under-
lying CGT liability of
approximately
$49,000.00 subject to
whether there is a
sale in the same year
of Property SProperty S Joint Valuation is Debt is $371,191.00
$365,000 but at 5/10/09highest offer has If property is sold at
Been $335,000 a loss that loss can be
recouped against the
capital gain on
Property R and
reduce the CGT
payable if both
properties sold in the
same yearToyota Hilux Husband $ 25,3000
Toyota Joint $ 2,3000
CamryAMP Shares Husband $ 1,330 219 ordinary shares
MLC policy [0] Husband $ 2,991
The total value then of the assets for distribution between the parties is $1,481,921. There are also, however, liabilities which total $434,799. That leaves, therefore, a net asset pool of $1,047,122. It is noteworthy, however, that there needs also to be consideration of the underlying capital gains tax liability which might arise in relation to the property at Property R.
The assessment that has been provided by [omitted] Taxation Services, following inquiry on the part of the parties with regard to capital gains tax, indicates that there is an underlying liability of approximately $49,000, subject of course to whether the sale of that property might occur in the same financial year as the property at Property S, Bowen, which in fact has been overcapitalised, it would appear, and which has a debt that outweighs the current valuation in relation to the property.
Whilst I have not specifically been asked to include any sum in relation to the capital gains tax liabilities, it is clear that if that property at Property R, is to be retained by the husband, and it is envisaged now by both parties that that would occur, then there would be, obviously, the corresponding capital gains tax liability, which I must at least be mindful of, in relation to any determination.
As I have indicated, the assessment of the capital gains tax liability, subject to variation that might arise as a result of any deduction from the sale of the Property S property, would mean that, whilst the liability is in the vicinity of $49,000, it could be reduced, at least to some extent. What needs to be looked at, therefore, is what effect, if any, that might have in relation to the final assessment of the assets of the parties.
Conveniently, it appears that when one looks at the net assets of a little in excess of $1,047,000, if the capital gains tax liability is to be deducted, or at least taken into consideration, the appropriate sum for the purposes of assessing the assets of the parties, is almost exactly $1,000,000.
It should be noted, however, that the parties had jointly agreed that their superannuation entitlements were not to be included. It appears that there are superannuation entitlements which were accrued, both prior to and during the marriage, as well as having continued to accrue post separation, and as both parties contributed to them individually, that they were not to be included in the final assessment. In any event, they are of very similar value, it being noted that the wife’s superannuation, as detailed in her statement of financial circumstances, was valued at $158,024, and the husband’s superannuation was valued, at the time of filing of his financial statement, at $181,430.
It would seem to me that they should not necessarily be excluded from consideration in relation to the final calculation to be done, though, as the parties have requested, it would not be appropriate, nor do I intend to make any orders which would in any way seek to flag or to redistribute entitlements in relation to the superannuation.
I am satisfied, therefore, that for the purposes of the calculation of any entitlements in relation to the property of the parties, the net assets available for distribution can be accepted in the sum of $1,000,000.
I turn then to the issue of contribution. As I commented earlier in these reasons, it is clear that, during the almost exactly nine-year period that the parties lived together as husband and wife, they both contributed both financially and non-financially, to the acquisition, improvement and maintenance of the assets of the marriage. What is also clear, is that they contributed in different ways and to different degrees in relation to the care and supervision of the children and in the end it would seem, as was accepted by counsel for both the husband and the wife, that if there were not other issues to be looked at in relation to contributions, including obviously prior owned property and late receipt of, in the husband’s case, an inheritance, that it would be a case where it would be difficult, if not impossible, to argue against any apportionment in relation to contribution, other than of a 50/50 division.
However, in this particular matter there needs to be consideration of other contributions. As I indicated, counsel for both the husband and the wife accepted at the time of addresses being made in relation to this matter, that there was a need, obviously, to look at the initial contribution made by the husband of the property at Property C.
That property was purchased by the husband in 1994, from his mother. The purchase price was $80,000 and the evidence appears clearly to be to the effect that the husband paid $50,000 immediately to his mother, and that the balance of $30,000 was funded by way of borrowings from the Commonwealth Bank. It is also clear that the payments made in relation to the reduction of the loan totalled about $204 per fortnight. What is also clear from the bank statements that have been provided, is that the loan was apparently over a period of approximately 10 years, because the property was purchased in 1994 and it would appear clear that toward the end of 2003, or early 2004, the deductions from the Husband’s account, in the sum of $204 per fortnight, ceased.
What is suggested, on the part of the husband, therefore, is that he has brought into the marriage a very significant asset, now having an agreed value of about $420,000, which is debt free and, therefore, a contribution in the vicinity of 40 per cent of the total assets of the parties. From the wife’s perspective, however, it is argued that there should be, at the very least, a significant reduction in any credit given to the husband in that regard, because of the period of the relationship, nine years at least, which is more than what might be called a short marriage.
Also, it is suggested on her part, that it is necessary to consider the fact that between the latter part of 1998, upon marriage, and early 2004, there were continuing mortgage payments made in the sum of $204 per fortnight and that therefore there was a direct contribution by the wife. I accept that that is the case and I accept that there is certainly, at least in one respect, a strong argument to say that through the passing of time, the value of any contribution made by one party or the other at the commencement of a relationship is, to some extent, eroded away.
In that regard I am mindful, obviously, of the many comments made by the Full Court of the Family Court in relation to such issues, and in particular note the comments of the Full Court Bremner & Bremner (1995) FLC 92-560, where the court examined the differing approaches that could be taken in relation to the position with regard to the erosion of the value of an initial contribution.
It was clear, in that particular case, that the comments needed to be looked at and, on appeal, Baker J, with whom the rest of the Full Court agreed, preferred the approach taken by Fogarty J in Money & Money (1994) FLC 92-485. What Fogarty J had said in Money’s case and what was adopted by the Full Court, was the following:
“…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.”
It is clear that the passing of time will have some effect upon the value of a contribution. That occurs, of course, because of the fact that during the relationship there may have been, as appears to have certainly been acknowledged here, some further works performed upon a property, or improvements made, as well as, of course, the general maintenance to the property which no doubt would be contributed to, following marriage, by both the husband and wife.
But just as clearly there needs to be, in my view, a very real consideration of the value that flowed to the parties as a result of the initial consideration. It was suggested, for example, that whilst the contribution made by way of the ownership of the property at Property C, was a significant one, it had, over time, become less significant in relation to the final asset pool of the parties.
Unfortunately, I do not agree with such a consideration or submission, and it is obvious that the parties’ ability to acquire further assets, including the three additional properties which are owned by the parties, arose particularly as a result of the sound financial position that the couple found themselves in, as a result of the ownership and the contribution initially made by the husband of the property at Property C.
I am comforted in that particular view in relation to this matter when I note the decision of the Full Court of the Family Court in Pierce & Pierce (1999) FLC 92-844. In that particular case, as is outlined in the CCH Australian Family Law and Practice Volume II, the initial determination by the trial judge was that, whilst there had been a contribution of a significant nature by the husband, it had been eroded over the period of cohabitation, which was a little over 10 years, and that therefore the assets should be divided, at least on a contribution basis, in favour of the husband on an apportionment of 55/45.
However, the Full Court allowed the husband’s appeal in relation to that particular consideration and determined that the husband was entitled to 70 per cent of the assets on the basis of his greater initial contributions. Speaking about that particular aspect of the matter, the Full Court said at page 85-881, the following:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home.
Almost a direct correlation can be drawn in respect of this matter. As best as can be understood, a small liability continued to attach to the property at Property C, at the time that the parties came together. That liability can perhaps be best quantified as $204 per fortnight for a period of about four years. What needs to be recognised, however, is that during that four-year period and, in fact, subsequently, the parties had the opportunity to reside in the home at Property C, for an amount, which can perhaps best be understood, as a cost of $100 per week, plus outlays for rates, insurances and the like.
To all intents and purposes, therefore, the husband, bringing in to the relationship the significant asset of the home at Property C, with little, if any, liability, enabled the husband and the wife to thereafter accumulate savings and other assets which has led to the final asset pool available for distribution. It is, if you like, what I might call, “the seed capital”, from which all of the other assets have been able to be acquired. Again, I am comforted in that particular view in relation to the matter, by the fact that when the parties were able to purchase the property at Property R, for a sum of $85,000, the wife appears, clearly, to have been able to make a contribution in the vicinity of $28,000.
That contribution appears to have been drawn, in part, from her personal savings, as well as from the proceeds of the sale of AMP investments that had been taken by the wife. What is also clear, however, is that her own evidence was to the effect that she had, as she described it, “several thousand dollars” at the commencement of the relationship or the marriage. It was unclear exactly what that “several thousand dollars” exactly amounted to, but it was accepted by the wife in cross-examination, that it was certainly a sum less than $10,000.
If that is the case, then the fact is that the wife was able to acquire the interest held in her bank account and in the AMP investment as a result of moneys able to be saved subsequent to marriage. That, of course, could only occur because of the very limited obligations or expenses that were required to be paid as a result of the husband’s interest in the property at Property C.
It is obvious that, whilst the husband and the wife both contributed in the ways that they were able during the relationship, the fact that they were, during a nine-year marriage, but perhaps more specifically in a period of only 5 years between September 2002 and November 2007, able to acquire three investment properties, could only have arisen as a result of their capacity to save money during the early part of the relationship which is, as I say, directly attributable to the initial contribution made by the husband. It is significant, and it must, in my view, carry weight in relation to an assessment of the contributions of the parties.
Just as obviously, the receipt by the husband of a sum of $167,000 or thereabouts, as a result of the inheritance from the estate of his mother, only a matter of six months or so prior to the separation, ensured that there could be a very significant reduction in the liability attaching to the property at Property G, at the time of separation.
It was noted on the part of the wife in particular, that that meant that there was a joint benefit to the parties and therefore it was not so much a contribution by the husband though it was acknowledged that there should, at least, be some credence given to the fact that $106,000, or thereabouts, was utilised from moneys received by the husband through that inheritance, towards reduction of the joint liabilities.
Again, unfortunately, I am not able to accept wholeheartedly that particular submission. In my view, it is clear that the receipt of the $110,000 or thereabouts from the husband’s account to the joint account and then the utilisation of about $106,000 toward the reduction of the debt on Property G, had a benefit, again, for both the husband and the wife. It reduced the liabilities and therefore, of course, reduced the accrual of interest which would normally have occurred but for that payment, and allowed the payments that continued to be made in relation to Property G, to mean that the liability in relation to the property was considerably reduced.
Additionally, of course, it meant that the wife was able to reside in that property and whilst both she and the husband obviously had the right to continue in occupation of one or other of the various properties that were owned by them, it is clear that the utilisation by the wife of those moneys which had been received, at least in part, by the husband from the inheritance from his mother’s estate has meant that the overall liabilities of the parties had been reduced.
In the end it is, of course, always difficult to quantify what might be the position in relation to the assets of the parties. It is inappropriate, of course, to do a mathematical calculation, but if one were to cross-reference what might be the position to be taken in relation to this matter, it is noteworthy, as I commented earlier, that the interest now held in Property C, is approximately equal to 40 per cent of the total net value of the assets of the parties.
If that were to be attributed to the husband it would leave 60 per cent for distribution between the husband and the wife and would, if there were to be an equal distribution of that, mean that there would be 70 per cent to the husband and 30 per cent to the wife.
I do not at all suggest that a mathematical calculation should be effected in relation to this particular matter, but I am, mindful of the very significant effect of both the initial contribution brought about as a result of the interest held in the property at Property C, and the reduction in the joint liabilities of the parties, as a result of the receipt by the husband of the inheritance, which was available just prior to separation.
It is difficult to quantify such matters, particularly when the parties have otherwise contributed to the best of their ability in, what I would think, was an equal manner. But in my assessment, the appropriate figures after the passing of time, but with consideration of the weight to be given to the contributions, would mean that the apportionment of contributions made on the part of the husband and the wife, should be 65/35 in favour of the husband.
I turn then, obviously, to the third stage in relation to this matter which is a consideration of those matters as necessarily required to be considered pursuant to the provisions of section 75(2). In that regard again, counsel for both the husband and the wife were very much of the view that the appropriate factors to be considered related to those matters which arise pursuant to the provisions of section 75(2)(b) and (c). I was referred particularly, of course, to the fact that there is agreement between the parties and orders have already been made in relation to the future parenting of the parties’ children, [X] and [Y].
Those children, currently aged nearly seven years and just-turned five years, is such that during each fortnight the children spend nine nights in the care of the mother and five nights in the care of the father. It is not equal time but it is significant and substantial time. It was contended on the part of the mother, however, that that should be a matter for some adjustment in relation to the proceedings because of the fact that she has the additional responsibility in relation to the support of the children for four nights per fortnight more than the father.
Balanced against that, from the father’s perspective of course, is the fact that he wishes, if possible, to have more time with the children but also the fact that pursuant to the Child Support Assessment Act, he has been assessed to pay a weekly sum of $104 per week to the wife in order to assist with the maintenance of the children. It is submitted, on the part of the husband that there is, therefore, already consideration given in respect of the liability that might arise with regard to the care or control of a child of the marriage who has not attained the age of 18 years and that therefore, there should not be any necessarily further adjustment made, pursuant to the provisions of section 75(2)(c).
Whilst I acknowledge that the husband has significant and substantial involvement in the children’s lives, and that he does make contributions to their maintenance and support whilst in the household of the wife, I am also satisfied that there are those intangibles that so often arise in relation to the parenting of children, and that in light of the fact that approximately two-thirds of the children’s time is spent within the household of the mother, at least during each school term, that there would be additional considerations, or expenses, that would fall upon the wife and that it is a factor which needs to be, at least to some degree, taken into consideration in respect of any adjustment that might be made pursuant to the provisions of section 75(2).
The second factor that I was addressed on by counsel for both the husband and the wife, is a consideration of the income, property and financial resources of each of the parties and of the physical and mental capacity of each of them, for appropriate gainful employment. As I indicated earlier in these reasons, the husband is in gainful employment. He is, employed by what is now referred to as the [omitted] Council, and has been for a period of about 23 years. It would appear that his employment, and future, with the [omitted] Council is stable and, as much as one can expect, certain. He therefore has both a capacity for appropriate gainful employment as well as a certainty in relation to that employment.
It appears that there is no suggestion that either the husband or the wife do not have either the physical or mental capacity for such employment as might be open to them as a result of their qualifications and skills.
In respect of the wife, as I have already commented, she already has at least some part‑time permanent work as a [occupation omitted] and is hoping to obtain further opportunities for work leading to full-time employment. Obviously the wife is not as settled, or certain, in her future arrangements with regard to employment, and the only certainty she has at the moment is for a position which might be acquainted to
.2 a full-time position, which results in a payment received by her of about $13,000 per annum. She has, however, as I had indicated, been able to obtain contracts or other work over a considerable period since separation, which has meant that her income of a permanent nature has been supplemented to an extent where she has been able to earn income which approaches that equivalent to the husband.
As I commented also earlier in these reasons, there is every reason to hope, although there is no definite expectation, that the wife would be able to obtain full-time employment, when it becomes available in the Bowen area, as a [occupation omitted] employed by the Department of [omitted] which would result in an income which would in fact, on the face of it, be slightly greater than that which would be received by the husband.
As I indicated, the husband’s income is fixed to a significant degree, as a result of his employment with the [omitted] Council, though there has been some flexibility in relation to overtime available to him in the past. His agreed income would be a little in excess of $50,000 per annum, and as best I can understand the opportunities for full-time employment for the wife, her income would be in a similar amount, though perhaps approaching $60,000 per annum.
There is, therefore, little real disparity between income and financial resources of the husband and the wife and in fact there is little difference in relation to their physical and mental capacity, to obtain appropriate gainful employment. The only distinction at the present time relates to the lack of absolute certainty in respect of the wife’s future employment as opposed to what would appear to be the very structured and certain possibilities in relation to the husband’s employment.
It is, again, a factor which would need to be considered in relation to this matter, but one which I would again think would not heavily weigh in relation to a variation of the apportionment to be effected between the husband and the wife. There was little, if anything else, addressed pursuant to the provisions of section 75(2) in relation to this particular matter, but it is noteworthy that there needs to be a consideration of the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debts, so far as that effect is relevant.
The issue there relates to the fact that the proposed orders, which now appear to all intents and purposes to be agreed between the parties, will mean that the husband will have significant liabilities attaching in relation to the properties that he is to retain. It would be the case that he would retain the residence at Property C, but he would also retain the property at Property R, as well as the property at Property S, Bowen.
He would also, pursuant to the arrangements proposed, however, take on an additional debt which would, no doubt, flow as a result of the discharge of the mortgage on the Property G property which would mean that in total the husband would have liabilities in the vicinity of $435,000, plus, of course, any liability that might arise as a result of the husband being required to pay some sum to the wife, in relation to this particular matter.
It is a factor to be considered in relation to the proceedings, because however the husband might, in the future, seek to reorganise his financial circumstances, he is going to have either a significant liability which will be required to be paid, or will be required to sell one or more of the properties owned by him, pursuant to any orders that are made, and that will, of course, then lead to a reduction in the actual asset base that would be held by the husband.
It is a factor which needs to be considered in relation to this particular matter. In the end, I have come to the decision that there needs to be a small adjustment made in relation to the apportionment to be effected between the husband and the wife, primarily arising, as is obvious from the submissions made and the indications given by me in relation to these reasons, as a result of the fact that the wife has a slightly greater obligation in relation to the day to day care of two young children, as well as the current disparity and lack of certainty that exists as between the husband and the wife’s employability.
I do not, however, consider that a significant adjustment is required in relation to the matter, for the obvious reasons that I have given in respect of the commentary with regard to section 75(2). I have come to the decision that the appropriate adjustment to be made, pursuant to section 75(2) of the Family Law Act, is an adjustment in favour of the wife of 2.5 per cent.
That would then result in a final apportionment to be effected between the husband and the wife of 62.5 per cent in favour of the husband and 37.5 per cent in favour of the wife. If one were to do the calculations then to be effected in relation to this matter, so as to effect a financial distribution between the parties, it would result in the wife receiving from the net assets of the parties an amount equivalent to $375,000.
As is indicated, the wife is, pursuant to what would appear now to be the agreed terms, to receive the interest in the property at Property G, valued at $325,000, and to retain the interest she currently holds in the Toyota Camry motor vehicle valued at $2300.
That then results in a shortfall of approximately $47,700 from a final figure of $375,000. I note, of course, that the wife is to retain superannuation entitlements in relation to those interests held by her in QSuper and that it is a little less than that held by the husband. Just as clearly however, as one would hope in the not-too-distant future, her circumstances were to change as a result of obtaining full-time work with the Department of [omitted], then one would think that her superannuation entitlements would grow more quickly than those of the husband, both as a result of, perhaps, an ability to earn greater income, as well as, of course, a consideration of the fact that the wife is some two and a half years younger than the husband and, therefore, on the face of it at least, would appear to have a slightly longer working life ahead of her.
I am of the view, therefore, that if an adjustment were made, which was to require that, in addition to the transfer of various properties pursuant to these orders, there was an additional order made for the husband to pay to the wife a sum of $47,500, that there would be a just and equitable distribution effected between the husband and the wife.
I am satisfied therefore, in all the circumstances, that the orders that are proposed, and apparently agreed between the parties, other than order (9) as contained within the husband’s outline, is just and equitable if there were included in order (9) a payment of $47,500 within 30 days of the date of this order.
Accordingly, I intend to make orders in relation to this matter in those terms as detailed in the outline of the husband.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Coker FM.
Associate: L Nielsen
Date: 28 October 2009
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