Kane and Kane
[2009] FMCAfam 1236
•8 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KANE & KANE | [2009] FMCAfam 1236 |
| FAMILY LAW – Property Law – marriage of 18 years – large asset pool – substantial property and share portfolio held in wife’s name – husband’s continuing earning capacity – wife long-term sufferer of degenerative condition – section 75(2) assessment of contribution factors. |
| Family Law Act 1975, s.75(2) (a), (b) |
| Brodie v Brodie (2009) 41 Fam LR 18 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003)FLC ¶93-143 AJO v GRO (2005) 33 Fam LR 134 Zyk & Zyk (1995) FLC 92-644 |
| Applicant: | MS KANE |
| Respondent: | MR KANE |
| File Number: | CAC 741 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 23 & 24 July 2009 |
| Date of Last Submission: | 24 July 2009 |
| Delivered at: | Canberra |
| Delivered on: | 8 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Andrew Warren & Associates |
| Counsel for the Respondent: | Mr Lethbridge SC Mr Arthur of Counsel |
| Solicitors for the Respondent: | Baker, Deane & Nutt |
ORDERS
That the Wife transfer to the Husband her right, title and interest, if any, in the following:
(a)Units 1, 2 and 3, Property M.
(b)Her shareholding in [R] Pty Ltd.
(c)Shares held in the share portfolios referred to as “Ms & Mr Kane Issuer Sponsored Holdings Portfolio” and the “Mr and Ms Kane Commsec Account number [1]”
That the join bank account conducted by the parties with the National Australia Bank at [U], account number [2] be divided as to the Husband the sum of $23,387 and the balance to the Wife.
That in addition to Orders 1 and 2 above, within 90 days the Wife pay to the Husband such cash sum that constitutes the difference between what is provided to the Husband under those orders and his entitlement to 36 per cent of the net property pool.
That the Husband transfer to the Wife his right, title and interest, if any, in the following:
(a)Property F
(b)Units 1 and 6 of Property P
(c)Property B, Melbourne
(d)Property S
That except as otherwise provided, the Husband and Wife each entitled to be the sole legal and beneficial owners of all items of property, including money, motor vehicles, insurance, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 7 days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.
That liberty is granted to the parties to relist the matter within 21 days in relation to costs. In the event that there is no such application, each party is to pay their own costs.
IT IS NOTED that publication of this judgment under the pseudonym Kane & Kane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BEGA |
CAC 741 of 2008
| MS KANE |
Applicant
And
| MR KANE |
Respondent
REASONS FOR JUDGMENT
A. Introduction
In the course of this trial, which involved 63 year old, [motorised] wheel-chair-bound, Ms Kane and her 56 year old former husband of
18 years or thereabouts, Counsel for both parties[1] (a) agreed on the asset pool[2] and (b) confirmed that the case turned on matters of degree (as opposed to matters or issues of substance) regarding contributions and s.75(2) factors.
[1] Mr Jackson appeared for the Applicant Wife, and Mr Lethbridge SC and Mr Arthur for the Respondent Husband.
[2] See, for example, Counsels’ closing submissions, Transcript (24th July 2009) pp.57 & 66.
This is also to say that the factual matrix of the long relationship, and the not always straight-forward chain of asset accumulation, were not the subject of too much disagreement.
Testimony to this came from a number of sources, one of which was the genuinely very modest scope of the cross-examination of the parties. Indeed, but for lengthy periods during the trial when the Court did not sit because the parties were attempting to resolve the matter by negotiation, the trial itself would have concluded in significantly less than a full day. Given the historical narrative that undergirds the proceedings between the parties, this would have been no small feat and clearly an indication that the areas of dispute were decidedly of very narrow compass.
By way of summary, (a) the asset pool is substantial (in excess of $4 million), (b) Ms Kane seeks orders whereby the pool is divided 75:25 in her favour, while (c) Mr Kane seeks orders that would result in a distribution, still in his former wife’s favour, but with a rather greater percentage coming his way. Initially he sought orders that there be a 50:50 split. He amended those orders and ultimately sought a distribution of 57.5% in favour of Ms Kane and 42.5% in his favour.
There was also something of an impasse indicated in the latter part of the trial which arose out of Mr Kane seeking, among other assets, a financial payout from Ms Kane rather than taking one or more of the properties on the South Coast of New South Wales that are in close proximity to other properties that will remain with Ms Kane. We will come to this matter of distribution in specie in due course.
After giving as brief as possible an overview of the historical narrative, and given the agreement in relation to the assets that comprise the pool, I will follow the usual course in dealing with the few outstanding issues that concern liabilities; then I will treat contributions, followed by my consideration of the s.75(2) factors.[3]
[3] There is abundant authority in relation to the judicial prescription to use the “four inter-related steps” approach. See, for example, the Full Court decisions in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003)FLC ¶93-143 at p.78,386, and AJO v GRO (2005) 33 Fam LR 134 at p.147 [46].
B. Historical Narrative
The following will suffice for the purposes of background, context, and relevant issues.[4]
[4] Taken from the Husband’s Chronology filed on 21st July 2009 and the Amended Case Summary filed by the Wife on 23rd July 2009.
Ms Kane was born in December 1945, and is 63 years old. Mr Kane was born in September 1952, and is 56 years old.
In 1971, Ms Kane was diagnosed with multiple sclerosis.
The parties commenced to live together in 1988 and married [in] March 1989.
At the commencement of the relationship Ms Kane had three children from a previous relationship: [X] (born 1968), [Y] (born 1970), and [Z] (born 1974). [X] was born (and remains) deaf and blind. [Z] died in 2006. His estate has yet to be distributed.
At the commencement of the relationship, either via gift from her father or purchase, Ms Kane owned eight (8) properties. All of them were in either [M] or [M] South, in Melbourne.[5] As well, the parties lived at another property, also in [M], which Mrs Kane’s Father had given to her in 1980. For reasons noted below, there were no valuations of these properties before the Court.
[5] The properties and, in the case of seven of them, their sale prices are set out in a table at para.12 of Ms Kane’s affidavit, filed 17th September 2008. Some of the details contained in that table were corrected at the trial. There was little, if any, challenge to the corrections noted.
Ms Kane had a mortgage liability in relation to one of the properties of $100,000. It is not disputed that she received rent from the properties and worked part-time two days per week.
Moreover, subject to what is set out later, most of those properties have been sold and, in a sense, replaced with properties in the [U] area on the South Coast of NSW, being the locality to which the parties moved – primarily for the betterment of Ms Kane’s health – in 1999.
In addition to the real estate, I accept also that Ms Kane held fixed term deposits with the National Australia Bank and State Wide Building Society, valued at $40,000. She also owned a Toyota Corona car, held life insurance policies valued at $30,000, and certain [unspecified] superannuation entitlements with Westpac.
Ms Kane also held a share portfolio, the majority of which she sold to her brother in 1989 for which she received $102,915.
From those proceeds, and other funds, another property was purchased in 1989. Mr Kane contributed $30,000 to the purchase price of this property, which cost $175,000. Ms Kane contributed $140,000 to the purchase price. This property was registered in the joint names of the parties.
The details of Ms Kane’s current share-holding are set out in Schedule 3 to her Second Further Amended Financial Statement, filed on 20th July 2009.
There is one child of the relationship, [Ms K], who was born in 1990, thus making her 19 years of age. She now lives in Canberra.
Also at the commencement of the relationship, there is little dispute that Mr Kane held approximately $41,000, which came from a property settlement with his first wife. This sum was used towards the purchase of a property in [W] in February 1988
Mr Kane was employed, at the commencement of the relationship, by [T]. At that time, he deposed to earning (initially) between $55,000 – 60,000 (plus superannuation). In 1989, he said that his salary increased to $70,000, as well as having the use of a company vehicle.
1988 was an eventful year. In June of that year, Mr Kane’s Father died and left him an inheritance, the extent of which is disputed. Mr Kane said initially that he received $110,000, while Ms Kane says that he received $55,000. At trial, he confirmed that, upon checking various documents, he received shares worth $70,000, and a mortgage of approximately $15,000.
The inherited share portfolio was later sold (in November 1990) but it realised only $39,000 (approximately). His own [current] share portfolio brings income of approximately $37 per week. He has not received any income from the share portfolio held jointly with
Ms Kane. Likewise in relation to the real estate jointly held with his former wife: he receives none of the rental income therefrom.[6]
[6] I note here – and it was not challenged – that not all of the rental properties are tenanted. It is also an unchallenged fact that one or both of Ms Kane’s sons had occupied one or more of the investment properties in Melbourne for nominal or no rent.
Also in that year, Ms Kane was diagnosed with severe osteoporosis, which was caused by her MS.[7]
[7] Ms Kane also suffers from diabetes. For understandable reasons, her various medical conditions and required assistance were not disputed.
In approximately 1991, Mr Kane’s employment at [T] changed resulting in him earning approximately $100,000, including a car and other benefits, including superannuation.
In his trial affidavit, filed on 17th July 2009, Mr Kane deposed to receiving a bonus of between $8000 – 10,000 in 1992 and 1993. He also deposed that his final salary package in 1994 was $104,000. No documents were provided to support any of these statements. Likewise, in the absence of confirmation of any sort, it is only by inference that a bonus, in the order specified, was paid in each year, 1992 and 1993, rather than a bonus being paid that covered the tax year 1992-1993.
In 1993, Ms Kane's Mother gave her a share portfolio valued at $53,509. The shares were registered in the joint names of the parties. Ms Kane says that she added to this portfolio from the rental income from the properties to which I have already referred.
A further property was acquired in 1992 in West [M] for $70,000.
In 1994, Mr Kane was retrenched from [T]. He received a redundancy payment of approximately $400,000. He used $100,000 from this sum to retire debt over the Property H property.[8] Mr Kane also acquired two properties, which were registered in the joint names of the parties. Ms Kane looked after the management of these properties.
[8] In his affidavit filed on 17th July 2009, Mr Kane set out in detail (para.10) how he applied the proceeds of his redundancy. While not formally challenged in great detail over this evidence, like most of Mr Kane’s evidence, there was a notable lack of documentary support, save as to the records of the company, [R] Services Pty Ltd. Although this consistent lack of supporting documents was, at least, unhelpful, for reasons noted later in the body of these reasons (and unless specified otherwise) I am not in a position to make any formal findings (adverse or otherwise) in relation to matters thereto.
Mr Kane then commenced a computer software business.
In 1994, another property was acquired (and funded) by Ms Kane in the sum of $62,000, as was another in 1996 (for $49,000). The latter was funded from Ms Kane’s funds that had been withdrawn from her superannuation fund. Curiously, in all three of her financial statements (filed respectively 6th May 2008, 25th June 2009 & 23rd July 2009),
Ms Kane deposed that she had “nil” superannuation. Such curiosities were not explained or explored.
In October 1996, Ms Kane's Mother gifted five (5) residential units to her as part of the distribution of her estate. Ms Kane kept only one of these units. Her disabled son [X] resides in this unit. The units were each valued at $50,000 and registered in the joint names of the parties.
In this same year Ms Kane received $94,667 from her brother, being an adjustment following the brother receiving the family farm.
Ms Kane received in total from her Mother’s estate $344,667.
In 1997, Ms Kane's Mother died. In addition to what she had already received, Ms Kane stated that she received from her Mother’s estate the following: cash of $108,000, a share portfolio valued at (approximately) $700,000, three paintings, and furniture and jewellery valued at $50,000.
In his affidavit filed on 17th July 2009 (par.54), Mr Kane confirmed that, according to “the probate documents”, Ms Kane inherited $608,355 from her Mother’s estate.
Two more properties were purchased in Melbourne in late 1997 and early 1998, both funded by Ms Kane.
In March 1998, the first of what might be described as the `South Coast properties’ was purchased. It was purchased in the name of the parties’ company, [R] Services Pty Ltd.[9] Ms Kane provided the funds to the company for this purchase. She believed that she was a joint share-holder of the company, but learned later that she in fact held only one share out of 12. Why this was so was not pursued or otherwise explained.
[9] [R] Services Pty Ltd was the corporate vehicle used by Mr Kane through which his consultancy services to [N] were provided. See Mr Kane’s affidavit filed 17th July 2009, para.13. At para.14 of the same affidavit Mr Kane states that in the early years of the company (i.e. 1995 and 1996) there was little “cash pay”. He received 15% equity in [B] Pty Ltd (later [N]). He states further that during 1996 and 2000, the company “achieved Australia-wide and, later, world-wide sales.” Alas, there is little flesh provided to put on these bones of evidence. Mr Kane confirmed that when he left the company in 2001, he received $15,000 for his shares. One might speculate that if the company enjoyed such significant sales for those years why the shares were of such modest value on Mr Kane’s departure. Here, too, there was little evidence with which to assist the Court.
In 1999, one of the Melbourne properties was sold for $60,000, and in 2000, another [U] property was acquired, in the sum of $132,000.
In approximately 2000, a unit in East Melbourne was purchased for $177,000. This was funded by Ms Kane.
In 2001, after being unemployed for approximately three or four months, Mr Kane [re]commenced work with [N]. In that same year, two of the `Melbourne properties’ are sold.
Mr Kane contended that, in 2001, he received $15,000 from the equity in the company ([N]).[10] In evidence, he confirmed that this was his “recollection” and that he had no documentary evidence to support his claim.
[10] In Ms Kane material, this company is more regularly named “[N].”
In 2002, Mr Kane re-commenced studies for a [omitted] degree at [omitted] University after having initially started the same degree at [omitted University], in 1994. In that same year (2002), Ms Kane broke her leg. She maintained that it never healed properly. Her health began to deteriorate and required the full time use of a wheel-chair. Mr Kane said that Ms Kane broke her shoulder.[11] He said that she broke her leg in March of the following year.
[11] Mr Kane’s affidavit filed 17th July 2009, para.18.
In any event, it seems undisputed that Ms Kane’s health deteriorated and that Mr Kane provided assistance and care for her in her convalescence from the broken bone(s) – where-ever situated. Indeed, Mr Kane contended that Ms Kane has undertaken no domestic duties (because she has been unable to do so) since November 2002. He says that he did all of the domestic duties, “except wash and dress [Ms Kane] Monday to Friday mornings.”[12] Such matters were looked after by staff from [B] Retirement Village. (Mr Kane contends that the name of the retirement village is “[B1]”: a quick “search” seems to confirm the latter is correct. Nothing turns on such details.)
[12] Other particulars of care provided by Mr Kane to Ms Kane between November 2002 and August 2006, as well as his “full responsibility for our daughter’s schooling and most up-bringing”, are set out in his affidavit, filed 17th July 2009, at para.57.
Between 2002 and 2005, [Ms K] attended boarding school. Mr Kane said that [Ms K] was a `boarder’ from 2003, and that the tuition fees at [S] School (of approximately $25,000 per annum) came from income received from jointly held share investments.
In 2002, Ms Kane sold one of the three paintings she inherited from her Mother. The proceeds of $4,000 were given to her son [Z].
In June 2002, the parties acquired another [U] property for $75,000. In December of that year, they moved to [U] and commenced selling the Melbourne properties and purchasing others in their new locality.
There was a contest, somewhat sotto voce, about capital gains tax.
Ms Kane asserted that Mr Kane had a significant liability for it. There may be issues the other way also. However, there was no formal evidence about such matters.
Also in 2002 Mr Kane sold one of the Melbourne properties to
Ms Kane’s daughter, [Y], for $110,000. After the sale, it was submitted by Ms Kane that Mr Kane withdrew $30,000 from her account to supplement the allegedly inadequate price paid by her daughter.
Still in 2002, the parties purchased a property at Property F, [U] for $312,000. This became their residence.
After closing his consultancy business, Mr Kane began part-time [omitted work] at Bega between 2003 and 2006. He had also worked part-time as a [omitted] in [U]. He said (not unreasonably) that his part-time employment was because of his care for Ms Kane.
More of the Melbourne property portfolio was sold in 2003 – four properties in total were sold.
In 2003, Ms Kane authorised her brother to use proceeds of sale of $400,000 to purchase various shares.
Two more of the Melbourne properties were sold in 2003, while in 2004, Mr Kane sold his property at [W], and the parties purchased four (4) more properties in [U], and another in that place the following year.
In July 2006, Mr Kane obtained full-time employment in Canberra working for [omitted]. For the next two years he rented accommodation in Canberra and returned to [U] on weekends. He currently earns $104,500.
In 2006, the Property A, East Melbourne property was sold for $211,000, and Ms Kane redeemed certain superannuation entitlements for which she received $218,617.
Since 2002, Ms Kane received various health and care services from a local retirement village ([B1]). Since April 2007, care and cleaning services have been provided by Home Care because the services from [B1] proved inadequate.
Ms Kane contended that, in February 2008 upon discovering Mr Kane to have been in a relationship with another woman in Canberra, the relationship ended.
Mr Kane confirmed that he is in a relationship with a Ms W. He deposed to Ms W not working but that she received $175.00 per week from investment income. Unfortunately, no other details were provided in relation to Ms W. This is to say, neither Ms Kane nor the Court has (a) an affidavit from Ms W, (b) any information about her investments (e.g. what kind of investments she holds and whether they are increasing in value), or (c) whether she is in any way financially dependent on Mr Kane. As with other things, it would have been helpful to have had even a tad more information. To be provided with none, hampered Ms Kane and certainly the Court – to say the least.
Almost immediately after the parties’ relationship ceased, Ms Kane said that she withdrew 50% of funds in the parties’ joint NAB account, totalling $111,000. At around the same time, she asserted that Mr Kane withdrew 50% of the funds in a joint deposit held with the Commonwealth Bank, of $57,724.
C. General Matters
Before outlining the agreed asset pool, I should say something about a few matters that are generally relevant to it.
First, although Mr Lethbridge sought to raise the issue of credit, which he not unfairly did in relation to Ms Kane’s testimony regarding the rental income now of many years ago from her Melbourne property portfolio, in my view, because cross-examination was so very brief, it would be dangerous to place too much weight on somewhat modest discrepancies (especially compared to the pool itself and the totality of the evidence) (a) in relation to matters involving a relationship of this duration, and (b) in circumstances where there was patently still a certain rawness and sense of betrayal on Ms Kane’s part towards
Mr Kane.
Mr Lethbridge described Ms Kane’s evidence as by someone who had “entered the arena,” and contrasted her evidence in this regard to that of his client who had not done so. In the circumstances of the case,
Mr Kane’s evidence might actually have been described as “clinical,” such was the rather surprising detachment in his evidence after such a long marriage.
However, as I have already indicated, in the light of the facts, history and justice of the case, where (as here) there has been, in my view, no prejudice suffered by Mr Kane, nor do I consider the evidence in relation to rents from properties many years ago to be so crucial to the case, it would be inapt to make any formal ruling on matters of credit on such slim evidence.
Secondly, another issue at trial related to Mr Kane’s failure to produce certain and various tax records. He said that he could not do so because they were all held at the former matrimonial home.
For reasons somewhat similar to those adumbrated in relation to the previous issue, while some criticism could be levelled at Mr Kane regarding his lack of effort to obtain his tax documents (appropriate arrangements could doubtless have been made between the parties’ solicitors), and not a few other areas where there was no documentary evidence provided, in my view it would be inapt to make any formal finding - adverse or otherwise – against him in these proceedings.
I take this course notwithstanding that, in fact and in strong contrast to Mr Kane (with the exception of the [R] company records annexed to his final affidavit), Ms Kane provided to the Court very significantly documented evidence contained in her Exhibit folder, marked “[Ms Kane] 1.”
D. Asset Pool
I have already confirmed that Counsel agreed on the asset pool. Its agreed value is $4,315,741. Its various components are as per the table set out below. In fact, upon further checking (and accepting that a number of the figures provided to the Court were hand-written) there were some errors in the transcription of figures as well as in some of the mathematical calculations. These have resulted in the slightly higher figure in the Table below.
For my part, I agree with Mr Jackson’s submissions regarding the few contentious matters concerning liabilities. He submitted that Mr Kane’s Accor account in relation to some unidentified holiday entitlement,[13] together with a new Visa card account, were both post-separation debts. As such, they should be excluded from the pool.
[13] The liability of this Accor account is said to be in the order of $28,400. See Transcript (23rd July 2009) p.36.
He also submitted that Ms Kane’s projected tax liability of some $3900 should also be excluded. I agree.
As I have already indicated, those items will be excluded from the pool, thus leading to the agreed amount as set out in the following table:
| Assets | Value | |
| Real Property | 1 Property P | $140,000.00 |
| 2 Property P | $135,000.00 | |
| 6 Property P | $140,000.00 | |
| 1Property M | $120,000.00 | |
| 2Property M | $120,000.00 | |
| 3 Property M | $125,000.00 | |
| Property F | $700,000.00 | |
| Property R | $145,000.00 | |
| Property B | $155,000.00 | |
| Property S | $140,000.00 | |
| Bank Accounts | Joint NAB Account (…[2]) | $99,387.00 |
| Joint CBA Account (…[3]) | $3,264.00 | |
| Husband NAB Account (…[4]) | $55 | |
| Husband CBA Account (…[5]) | $5,993.00 | |
| Wife Westpac Account (…[6]) | $0.00 | |
| Wife Westpac Account (…[7]) | $10,813.00 | |
| Wife Westpac Tenancy a/c | $0 | |
| Wife Westpac Account (…[8]) | $303.00 | |
| Wife's CBA Account (...[9]) | $2,813 | |
| Wife's NAB Account (…[10]) | $100,606 | |
| Shares | Ms & Mr Kane Issuer Sponsored | $234,413 |
| Ms & Mr Kane Comsec Account | $182,183 | |
| Husband Issuer Sponsored | $4,780 | |
| Husband Comsec Account ([11]) | $35,399 | |
| Husband ANZ E-Trade Account | $618 | |
| Husband CFD Account | $8,921 | |
| Husband CMC Markets Account | $250 | |
| Wife Comsec Account (…[12]) | $354,718.00 | |
| Wife Issuer Sponsored Shares | $1,174,904 | |
| Life insurance | Wife's Life Policy | $30,000 |
| Company | [R] Services Pty Ltd cash at bank | $31 |
| Vehicles | Wife's Toyota Lexen | $1,200 |
| Husband's Hyundai i30 | $20,000 | |
| Hyundi Getz (used by daughter) | $8,500 | |
| Contents | Husband's home contents | $2,500 |
| Wife's contents | $10,000 | |
| Superannuation | Husband's Navigator Super | $13,278 |
| Husband's UniSuper | $1,800 | |
| Wife's Super | $0 | |
| Legal Fees | Wife's Legal Fees | $99,144 |
| Debts owing | Debt owed by Mr F | $4,157 |
| Wife Cash Holding | $4,000 | |
| TOTAL ASSETS | $4,334,030.00 | |
| NET ASSETS | $4,334,030.00 |
E. Contributions
Mr Kane admitted that, until 2002, Ms Kane did all of the family shopping.
He maintained that he regularly attended (with Ms Kane) parent-teacher interviews in relation to [Ms K]. Mr Kane also maintained that, as [Ms K]’s school-work increased in difficulty so too did his involvement in assisting her.
It would appear undisputed (for the most part) that when Mr Kane was working full-time (i.e. up to 1994) his income was provided to, and made available for, the benefit of his family, including Ms Kane. Likewise, whatever the precise income earned by Mr Kane through [N] from the mid 1990s through to 2000, one might reasonably assume that that income also was available for the family’s benefit. The difficulty is, however, to assign the actual amount and, because of other matters noted below, the precise weight to be assigned to it in any event.[14]
[14] In the assessment and determination of contributions I am mindful of the Full Court’s observation in Zyk and Zyk: “How and to what extent that exercise is to be done is a difficult problem and one which is not susceptible of precise analysis.” (1995) FLC 92-644 at p.82,517.
Not dissimilar comments apply to Mr Kane’s non-financial contributions. By this I mean that it cannot be questioned that he provided significant care to and for Ms Kane, especially between 2002 and 2006.[15] However, it is also not disputed that Ms Kane was receiving at the same time not insignificant care services from local care-providers. Thus, it becomes a question of degree in assessing the non-financial contributions.[16]
[15] I also accept that his responsibilities as carer (and the parties’ move to [U] from Melbourne) had a negative impact on his income-earning capacity.
[16] The same comment applies also to Mr Kane’s `non-financial contributions’ regarding [Ms K], bearing in mind that for significant parts of her schooling, she was at boarding school, particularly during her secondary years. In this regard, I am mindful of Ms Kane’s home-maker contributions prior to the deterioration in her health and the always difficult assessment of such central responsibilities. Indeed, Mr Lethbridge described the marriage, prior to the escalation of her health problems in 2001, as a “traditional marriage” with Mr Kane as the “breadwinner” and Ms Kane as the “homemaker.” See Transcript (24th July 2009) p.70. This description did not, however, satisfactorily acknowledge the extent of Ms Kane’s real estate and share-holdings and the not insignificant income derived there from; it might be reasonably said that they took her “traditional homemaker” contributions to a rather different level.
Thus, for example, Ms Kane asserted that she `researched the [property] market’ and shared that advice with Mr Kane. For his part, Mr Kane does not dispute that there was some sharing of advice but that the assertion that Ms Kane `researched the market’ is something of an overstatement. He says that she looked at advertisements, and such things, but that they both did such things.
It is, perhaps, more likely than not, simply that Ms Kane had been investing in real estate longer than had Mr Kane.
The above matters are but examples, of course, taken from a very long relationship.[17]
[17] The discussion of “contributions” (initial and other) obviously takes account of not only the diverse factual matrix over many years but also basic statements of principle in relation to such matters, such as the Full Court’s recent observations in Brodie v Brodie (2009) 41 Fam LR 18 at [83] - [86], and the cases to which the Court (Boland, Thackray & Watts JJ) refers.
As Mr Lethbridge indicated in his submissions, in comments which I apply perhaps even more broadly, the issues surrounding contribution in particular are more matters of degree than anything else. Put another way, in the absence of unequivocal evidence supporting one position or the other, it becomes more a `weighing exercise’ of the respective contributions, particularly in long relationships such as there is here.
To speak in more general terms, it is also the case, as was readily and rightly conceded by Mr Lethbridge, that contributions favour Ms Kane. In large measure this is because of the significant initial contributions and the no less significant inheritance from her Mother in 1997. But there were also significant gifts from Ms Kane's Mother in 1996 as well.
Mr Lethbridge submitted that an adjustment in Ms Kane’s favour of 5% was appropriate in all the circumstances, which would result in an adjustment, on contributions of 55/45% in Ms Kane’s favour.[18]
[18] See his submissions regarding contributions (financial and non) at Transcript (24th July 2009) pp.67-72.
For his part, Mr Jackson submitted that the apportionment in relation to contributions should be 70/30% in Ms Kane’s favour.
For my part, I think Mr Jackson’s submission puts the matter significantly higher than it should be, while Mr Lethbridge puts it somewhat – but not too - low. In my view, the assessment in relation to contributions should be 60/40% in Ms Kane’s favour.
E. Section 75(2) Factors
I agree with Mr Lethbridge’s opening remarks in relation to matters under this section. He said that there “really are few of these that are relevant.”[19]
[19] See Transcript (24th July 2009) p.72.
Age and state of health plainly, and strongly, favour Ms Kane, in my view. These matters also are directly relevant to her capacity to work – and obviously, strongly so.[20]
[20] Family Law Act 1975 s.75(2)(a).
Mr Kane is quite some years younger than Ms Kane, and he earns a substantial income. I have already noted that we have little information about Mr Kane’s new partner, Ms W, other than she earns a modest sum from [unspecified] investments.[21]
[21] Family Law Act 1975 s.75(2)(b).
Ms Kane’s assets will provide a steady source of income. However, we do not know the prognosis of any of her medical conditions and whether they will (dramatically or otherwise) require or demand any [dramatic] increase in [medical and care-related] expenditure.[22] It seems to me that some consideration or reasonable allowance for such not unlikely contingencies should be made.
[22] See Mr Jackson’s submissions in this regard: Transcript (24th July 2009) p.64.
Mr Lethbridge submitted that there should be a further allowance in
Ms Kane’s favour in relation to s.75(2) factors of a further 2.5%. This would lead to an overall division of 57.5% in Ms Kane’s favour and 42.5% in favour of his client.
Mr Jackson submitted that his client should receive a further adjustment under s.75(2) of 5%, thus resulting in a total adjustment, in Ms Kane’s favour, of 75/25%.
Alternatively, he submitted that if I was inclined to find a division on contributions of 60/40%, there should be a much greater s.75(2) adjustment in his client’s favour.
In my view, there should be an adjustment in favour of Ms Kane of 4% under s.75(2). This would result in an overall adjustment in her favour of 64%, and 36% in Mr Kane’s favour. Such a result, in my view, is just and equitable in all the circumstances.[23]
[23] Family Law Act 1975 s.79(2).
It remains only to deal briefly with the question of whether the adjustment in Mr Kane’s favour be comprised of shares and cash payment rather than the transfer of any of the real estate.
In my view, subject only to the due account of the percentage determination I have made, there is no legal or other compelling reason why the orders as sought by Ms Kane should not be made, and conversely, why the orders sought by Mr Kane requiring that a cash payment and transfer of shares should be made.
In making orders substantially as sought by Ms Kane, Mr Kane will obtain a number of properties. He will also receive the transfer of some shares and the balance of his share of the property pool in cash. Should Mr Kane not wish to keep the real estate, for whatever reason, that is a matter for him. If he disposes of them, he will secure the cash which his orders otherwise seek. He will at least have the option of either keeping them or realising their market value and obtaining the cash from their sale. Moreover, if he decides to keep them, the concern expressed by Mr Lethbridge that they are in close proximity to properties held by Ms Kane is readily obviated by the management of them being undertaken by an agent.
Unless an application is made within twenty-one days of the date of this judgment, in my view each party should bear their own costs of the proceedings.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: D-R Gale
Date: 8 December 2009
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