Leslie and Leslie
[2008] FMCAfam 245
•19 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LESLIE & LESLIE | [2008] FMCAfam 245 |
| FAMILY LAW – Property – valuation of property – parties contributions – s.75(2) factors – just and equitable. |
| Family Law Act 1975 (Cth) ss.75(2), 79(4)(a)-(c) |
| In the Marriage of Omacini (2005) 33 FamLR 134; [2005] FamCA 195 Russell v Russell (1999) FLC 92-877 |
| Applicant: | MR LESLIE |
| Respondent: | MS LESLIE |
| File Number: | NCM 1945 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 25 September 2007 |
| Date of Last Submission: | 25 September 2007 |
| Delivered at: | Sydney (by Scarlett FM by telephone link to Newcastle) |
| Delivered on: | 19 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bateman |
| Solicitors for the Applicant: | Joan Pierpoint & Associates |
| Counsel for the Respondent: | Mr Brady |
| Solicitors for the Respondent: | Hannaway Lawyers |
ORDERS
That the Wife, Ms Leslie, have sole occupancy and exclusive possession and responsibility for all outgoings of the property at Property C, and pay to the Husband, Mr Leslie, the sum of $210,107.60 by 4.00 p.m. on 31 June 2008.
The Wife and Husband do all acts and things required and sign all documents necessary to transfer the Husband’s interest in the property at Property C to the Wife with all expenses associated with the transfer to be shared equally between them and subject to the payment of the sum of $210,107.60 referred to in order (1).
If the sum referred to in order 1 is not paid by the time therein specified then the property at Property C be sold on the following conditions:
(a)that the property be listed for private sale and the Wife and Husband shall forthwith do all acts and things required and sign all documents necessary to effect a private sale of the property and by way of consequential agreement for the purpose of effecting a sale;
(b)the listing price of the property shall be as agreed between the parties and if there is no agreement then as advised by a valuer nominated by the Chief Executive Officer of the Real Estate Institute of New South Wales;
(c)that the property shall be listed for sale by private treaty with such an agent or on such terms as may be agreed between the parties and failing agreement as nominated by the Chief Executive Officer of the Real Estate Institute of New South Wales;
(d)in the event that the property is not sold by or before a date 12 months from the date of this order then either party may give notice to the other in writing that he or she requires the property to be sold by public auction and in that event the property is to be sold by public auction at a reserve price to be agreed upon between the parties or failing agreement as determined by a valuer as agreed between the parties. If the parties cannot agree to a valuer then as appointed by the Chief Executive Officer of The Real Estate Institute of New South Wales, and upon the terms and conditions set out in the following paragraphs hereto;
(e)the following terms and conditions apply to the sale by public auction:
(i)The parties shall employ a listing agent for such sale and agree upon a reserve price but failing agreement as determined by a valuer. If the parties cannot agree to a valuer then the valuer shall be as appointed by the Chief Executive Officer of the Real Estate Institute of New South Wales.
(ii)The public auction will take place no later than 8 weeks after the notice referred to in subparagraph (d) above.
(iii)Following the first auction sale of the property, if the property does not reach the reserve price and the parties are subsequently unable to agree to the sale of the property it shall be offered again for sale by public auction with no reserve and in default of agreement between the parties in relation hereto, at a date and time agreed between the parties but no more than 6 weeks after the first auction;
(iv)both parties are at liberty to attend the auction and bid in relation to the property; and
(v)payment shall be made from the gross proceeds in the following order:
1. all costs associated with the conduct of the sale, shall be taken as first payment;
2. the sum of $210,107.60 shall be taken as a second payment and paid to the Husband, Mr Leslie, less one-half of the costs associated with the conduct of the sale referred to in 1 above; and
3. the balance of the proceeds of the sale shall be paid to the Wife, Ms Leslie.
The parties do all acts and things and sign all documents to list for sale and sell their B Timeshare (the timeshare) and in the operation of this order these provisions shall have effect:-
(a)That the parties are to within 14 days, list the timeshare for sale with a licensed real estate agent (the timeshare agent) as agreed between them, failing agreement at the nomination of the Chief Executive Officer of the Real Estate Institute of New South Wales. The listing and sale prices shall be agreed between the parties, failing agreement by a valuer nominated by the Chief Executive Officer of the Real Estate Institute of New South Wales, the costs of such valuer to be met equally by each party.
(b)The parties shall sign all documents and do all things to accept the first offer at or above the sale price on normal market terms.
(c)Each party is to co-operate in marketing the property for sale, give instructions to a solicitor to prepare documentation, and sign documents to progress the sale.
(d)Pending sale the parties are liable to equally contribute to any outgoings and be equally entitled to the profits.
That otherwise each party is entitled to retain all other the property (including superannuation benefits and entitlements) in their possession or control and each party shall be responsible for all liabilities associated with the property they are entitled to retain pursuant to these orders.
In the event that either party fails or refuses to sign any document or paper necessary to give effect to these orders then pursuant to s.106A of the Family Law Act 1975 a Registrar of the Court is empowered to sign on behalf of the defaulting party upon written notice for the solicitor of the other party that the defaulting party has neglected or refused to sign such document or paper within 14 days of being requested to do so.
IT IS NOTED that publication of this judgment under the pseudonym Leslie & Leslie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 1945 of 2006
| MR LESLIE |
Applicant
And
| MS LESLIE |
Respondent
REASONS FOR JUDGMENT
Application and orders sought
The Husband’s final orders sought are as follows:
“(1)Within 38 days of the making of these orders the wife pay to the husband a sum equal to one half of the value of Property C (the home).
(2)In return for the above sum, the Husband to provide to the wife a transfer of his interest in the home to the wife.
(3)In the event the Husband has not received the monies in Order 1 after 28 days, the parties to sign all documents and do all things to list the home for sale and to sell the home and in the operation of the sale these provisions have effect:-
(a)That the parties are to within 42 days list the home for sale with a licensed real estate agent (the agent) as agreed between them, failing agreement on a non-exclusive basis with one agent to be nominated by the husband and one agent to be nominated by the wife. The listing and sale prices shall be as agreed between the parties, failing agreement the mean price as nominated by each party’s agents, the sale price) or nominated by the Husband’s agent if the Wife fails to nominate an agent.
(b)The parties shall sign all documents and do all things to accept the first offer at or above the sale price on normal market terms.
(c)Each party is to co-operate in marketing the property for sale and the Wife is to make a key available to the agent/s, allow prospective purchasers to inspect, keep the property in a clean and presentable condition.
(d)In the event the property has not been sold after 4 months of these orders, the parties are to list the property for sale by auction with an agent of the husband’s choice. If he has not done so within 4 months of the day of these orders, the Wife may list it for sale by auction with an agent of her choice. As from the day the property is listed for sale by auction, the parties shall accept the first offer on normal market terms at or above 90% of the previous sale price as nominated by the agent/s.
(e)On the day of the first auction the parties shall accept the fist offer on normal market terms at or above 88% of than the previous sale price as nominated by the agent/s.
(f)In the event the property does not sell at the first auction, it shall remain on the market for sale by private treaty and the parties shall accept the first offer on normal market terms at or above 85% of the original sale price.
(g)In the event the property has not sold after 6 months of the date of these orders, the parties at to list the property for sale by auction with an agent of the husband’s choice. If he has not done so within 7 months of the date of these orders the Wife may list it for sale by auction.
(h)The selling price at the second auction shall be 75% of the original sale price.
(g)The husband’s solicitor is to have conduct of the sale.
(4)That pending sale the Wife shall be entitled to exclusive occupation of the property and shall be responsible for all outgoings on the property.
(5)That upon sale the net sale proceeds, after payment of legal expenses on sale, reimbursement plus interest at the rate of 11% to either party for legal expenses properly advanced to the solicitor on sale in connection with the preparation of contracts, the net sale proceeds shall be distribute equally between the parties.
(6)The parties do all things and sign all documents to list for sale and sell their B Timeshare (the timeshare) and in the operation of this order these provisions shall have effect:-
(a)That the parties are to within 14 days, list the timeshare for sale with a licensed real estate agent (the timeshare agent) as agreed between them, failing agreement at the nomination of the husband. The listing and sale prices shall be agreed between the parties, failing agreement the mean price as nominated by each party’s agents, or the Husband’s agent if the Wife fails to nominate an agent, from time to time.
(b)The parties shall sign all documents and do all things to accept the first offer at or above the sale price on normal market terms.
(c)Each party is to co-operate in marketing the property for sale, give instructions to a solicitor to prepare documentation, and sign documents to progress the sale.
(d)Pending sale the parties are liable to equally contribute to any outgoings and be equally entitled to the profits.
(7)That upon sale of the timeshare the net sale proceeds, after payment of legal expenses on sale, reimbursement plus interest at the rate of 11% to either party for legal expenses properly advance to the solicitor on sale in connection with the preparation of contacts, the net sale proceeds shall be distributed equally between the parties.
(8)The Husband prepare a list of the furniture, whitegoods, chattels and domestic appliances (not fixtures) in the house, The Wife have the first and each alternate pick, the husband have the second and each alternate pick. The wife do all things to facilitate the collection by the Husband of items chosen by him.
(9)Except as otherwise provided in these orders, the husband and wife as between each other are each entitled to the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation and personal effects currently in the possession or control of each of them respectively.
(10)Each party is solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders.”[1]
[1] See Husband’s reply filed 27 October 2006 at paras. 1-10.
The Wife’s final orders sought are as follows:
“(8.1)Within 28 days of the making of these orders the wife must pay to the husband the sum of $80,000.00.
(8.2)The simultaneous with order 8.1, the husband and wife do all things and execute all documents to transfer the property at Property C solely into the name of the wife.
(8.3)Simultaneous with order 8.1 the wife and the husband shall take all steps necessary to transfer the wife’s share of the B Timeshare into the sole name of the husband.
(8.4)Except as otherwise provided in these orders, the husband and the wife as between the parties are each entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation and personal effects currently in the possession or control of each of them respectively.
(8.5)Each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders.
(8.6)That should the wife or husband refuse or neglect to sign within seven days of written request to do so, any documents to implement the above orders, the Deputy Registrar of the Federal Magistrates Court of Australia or Family Court of Australia at Newcastle be appointed pursuant to section 106A of the Family Law Act, 1975 to execute such documents on behalf of the wife or husband and to do all acts and things to give validity hereto.
(9) Each party to pay their own costs.”[2]
[2] See Wife’s Response filed 16 October 2006 at paras. 8.1-9.
Background
The following are the relevant background facts in the matter.
The Wife was born in 1959. The Husband was born in 1959.
The 2 children of the marriage, B, and S were born in 1996 and 1999 respectively.
The parties commenced cohabitation some time in 1982. Whilst cohabitating in 1982-83 the Husband received 2 separate $1,500.00 redundancy payments and a $2,000.00 superannuation payment.
In late 1983 the parties separated. The Husband says that it was for 3-4 months, the Wife for 12 months. There is no dispute that upon reconciliation the Husband and Wife did not immediately live together.
In March 1984 the Wife purchased a house at Property P in the state of Victoria. The Property P house cost $60,000.00 and the Wife took out a mortgage of $49,000.00.
In or about mid 1985 the parties resumed cohabitation at the Property P house. There is no dispute that the house was extensively renovated. The Husband says that he was primarily responsible for the extensive renovations whereas the Wife says that both parties were responsible for the extensive renovations.
On 28 January 1987 the parties were married.
On 8 November 1987 the parties purchased a floating joint tenants share in the B Resort on the New South Wales central coast for the sum of $7,950.00.
Sometime in 1989 the Wife received a $4,500.00 long service leave payout. The Wife says that the long service leave payout was used to pay $3,500.00 off the Property P house mortgage and $1,000.00 towards superannuation.
In 1989 the Property P house was sold for $172,000.00. The parties then purchased a house at Property H for $235,000.00. The mortgage on the property was $87,000.00 with $20,000.00 of this taken from savings and the balance from the $135,000.00 payout (following discharge of mortgage) on the Property P house.
The Wife asserts that both parties were involved in the renovation of the Property H house.
In 1992 the Wife received an inheritance of approximately $4,500.00.
In January 1997 the Property H house was sold for $335,000.00. The parties purchased a house at Property N for $320,000.00-$330,000.00 with a mortgage of $85,000.00.
The Husband asserts that he extensively renovated the house, while the Wife asserts that both parties extensively renovated this house.
In 1999 the Wife ceased work.
In March 2000 the parties sold Property N for $565,000.00.
The parties then purchased a vacant lot of land at Property C for $92,000.00. A house was built on the land, and the Wife asserts that the cost was $300.000.00. The Husband asserts that he built the house, whilst the Wife asserts that the parties built the house.
Between 2000 and 2002 the eldest child (a son) was sexually abused by the Wife’s mother’s husband.
Between 2002-2003 both parties did not work and lived off their accumulated savings.
In August 2003 the Husband was employed as a tradesman.
During 2004 the eldest child attended sexual assault counselling for a period of 9 months.
On or about 16 or 17 June 2004 the parties separated under the one roof at Property C.
The Husband asserts that in a series of financial transactions:
a)the Wife withdrew $6,100.00 from a St George “Future Safety” account between 4 June 2004 and 3 September 2004;
b)the Wife withdrew $6,047.00 from the St George portfolio account between 11 and 20 August 2004; and
c)between 5 September 2004 and the end of December 2004 the Husband paid the Wife $2,400.00.
Final separation occurred sometime in June 2005.
As a consequence of the oldest child’s sexual abuse he was awarded victim’s compensation in November 2005 and there is trust fund (held by the Public Trustee) for the eldest child in the sum of at least $25,000.00.
In June 2006 the Husband commenced cohabitation with Ms B at her home at Property M.
The Husband asserts that the Wife was locked out of the family home on 21 July 2006.
The parties divorced on 20 October 2006.
On 19 February 2007 parenting orders were made by consent with the children to live with the mother and spend time with the father.
Principles
In determining a property dispute it is necessary for the Court to:
a)identify and value the net property of the parties (usually at the date of the hearing);
b)consider the contributions of the parties within paragraphs (a)-(c) of s.79(4) of the FL Act;
c)consider the factors under s.75(2) of the FL Act;
d)consider whether the order proposed is just and equitable.[3]
[3] In the Marriage of Omacini (2005) 33 FamLR 134 at 147 per Holden, Warnick and Le Poer Trench JJ; [2005] FamCA 195 at para. 46 per Holden, Warnick and Le Poer Trench.
Valuation of property
The value of assets and liabilities was agreed as follows:
| ASSETS | OWNERSHIP | VALUE |
| Property C | Husband & Wife | $460,000 |
| 1977 Suzuki | Husband | $500 |
| 2000 Subaru | Wife | $7,000 |
| Contents | Wife | $3,080 |
| Contents | Husband | $114 |
| AMP shares | Husband | $988 |
| IAG shares | Wife | $1,923 |
| B timeshare | Husband & Wife | $2,000 |
| Bank Account | Wife | $1,000 |
| Bank Account | Husband | $135 |
| Superannuation | Husband | $26,519 |
| Superannuation | Wife | $27,716 |
| Total | $530,975 |
| LIABILITIES | OWNERSHIP | VALUE |
| Husbands tax debt | Husband | $885 |
| Husbands visa | Husband | $1,221 |
| Husbands debt to Ms B | Husband | $3,600 |
| Total | $5,706 |
Net position: $525,269
There was a dispute about the use by the Wife of sums of money from the St George portfolio and Future Safety accounts, in the amount of $11,995.00, during the period of separation under one roof, and whether that sum ought be added to the property pool. The Court accepts the evidence of the Wife as to the use of this money for household and domestic purposes (within which the Court includes her gym membership). In those circumstances the amount of $11,995.00 will not be added to the property pool.
Parties contributions under s.79(4)(a)-(c)
The Wife asserts a substantial initial financial contribution to the property of the parties. She asserts that she saved the deposit and associated costs for the purchase of the Property P house whilst employed as a healthcare professional. Further, that this was done whilst not married and separated from the Husband (following an initial period of non-marital cohabitation). There is no dispute that the Wife was paid more as a healthcare professional than the Husband earned. The Wife therefore argues that it was her income and initial contribution to the Property P house that subsequently enabled the parties to renovate, and subsequently borrow funds to purchase other properties.
The Wife also asserts that she was an equal participant in making renovations to the houses owned and built by the parties, and in which the parties lived. Further, the Wife says that she made this contribution whilst continuing to work as a healthcare professional. Her contribution was made during days off and after work she asserts. Further the Wife says that she assisted in the construction of the Property C house, and contributed physical labour and intellectual ideas to that task.
During the marriage the Wife says that she made significant homemaking and parenting contributions as follows:
“4.1Taken primary responsibility for the organisation and performance of household responsibilities.
4.2Did the shopping for the family.
4.3Did the washing and ironing for the family.
4.4Purchased the children’s clothes, uniforms and pressed them and did all the preparation to get the children to school.
4.5Helped children with homework.
4.6Took control of medical needs of children, taking children to doctors and purchasing medicine and supervising their treatment.
4.7Provided comfort and support to B when it was identified he was the victim of a sexual assault.
4.8Paid fees and costs of education for the children post separation.
4.9Read stories to children at bedtime.
4.10Attended children’s open days and sports days.
4.11Cooked meals for family.
4.12Took S to ballet lessons.”[4]
[4] See Wife’s Outline of case document paras. 4.1-4.12.
The Wife’s parenting role was entirely consistent, on the evidence, with the parties expectations.
The Wife asserts that post separation the Husband, was employed, and also living in matrimonial homes, did not adequately provide for the financial needs of the Children, and that he subjected her and the Children to a form of financial oppression. This, the Wife asserts, made it difficult for her to perform her domestic activities.
The Husband says that this was a long marriage and that over time the contributions of the parties evened out.
The Husband does not dispute the Wife’s initial contribution to the Property P house, nor that until the Wife ceased work in 1999, that she earned more than he did (and particularly so in the early years of cohabitation and marriage). There is again no dispute that the Wife has been the primary caregiver for the children during the marriage, and remains so post marriage. But in both instances the Husband says that he has made not insignificant contributions by reason of his work and income, and the general contributions he made to the children’s care.
The Husband does say that he contributed substantially more than the Wife in content and quality to the renovations to the various properties owned by them over the years, and was substantially responsible for building the Property C house. Furthermore, that he worked and earned income from 2003 onwards when the Wife was not working.
The Court accepts that the Wife:
a)the Wife made an initial and substantial contribution to the equity (some 18.33%) in the Property P house;
b)the Wife was for most of the relationship (until she ceased work in 1999) quite significantly the higher income earner;
c)the Wife was the primary caregiver for the children throughout, and that she remains so.
The Court also accepts that significant renovations were carried out on each of the properties purchased. The Court finds that the Husband carried out the majority of those renovations, but that the Wife made not insignificant contributions, so that the split was probably in the region of 60-65 percent of the renovations done by the Husband and the remainder by the Wife. These renovations doubtless contributed to an increase in the value of the various houses, and the profits made by the parties on those properties. There is however no specific or expert evidence as to the relevant contribution.
The length of the marriage evens out the disparity in contributions over time. By reason of the Wife’s being primary caregiver throughout the marriage, principal income earner for the majority of the marriage, and initial contributor to a substantial equity in the Property P house she has however made a major contribution to the property held by the parties. The Court acknowledges that that contribution is offset, to some degree, by the Husband’s principal role in renovation of the properties and as sole income earner in the final three years of the marriage. In all the circumstances the Court assesses the contributions of both parties as warranting a five percent adjustment in favour of the Wife.
Section 75(2) factors
The s.75(2) factors relevant to these parties are set out and discussed below.
Age and health
The Husband is aged 48. He is in good health.
The Wife is aged 48. She is also in good health (save for some depression associated with these proceedings0.
Income, property and financial resources and employment capacity
The Husband has fulltime employment as a tradesman. He presently earns about $900.00 per week gross.
The Wife presently does not work. She is on welfare benefits (parenting benefits) of approximately $440.00 per week.
The Wife has not worked in her chosen occupation as a healthcare professional for a period of 8 years. The Wife asserts that there are limited work opportunities available in the M region for radiographers, but there is no evidence concerning this generally or specifically in relation to the Wife. Further, there is no evidence that any inquiries of any nature about any type of employment have been made by the Wife. However, the Court accepts, in general terms, that if the Wife is to
re-enter the workforce as a healthcare professional (or otherwise) there will need to be some re-training and re-skilling and that that may take some time.
As the Children live with the Wife the Wife wishes to be able and available to care for the two children. So far as the eldest child is concerned there is an additional financial resource in the form of the trust fund of $25,000.00.
The Wife has had the benefit of staying in the Property C house rent free since the Husband moved out. Based on a rental of $290.00 a week the Husband says that there is an additional contribution by him of approximately $17,000.00.
Children
There are 2 Children of dependant age. The eldest child is now aged 11, and was the subject of child sexual abuse by the Wife’s mother’s husband some 6-8 years ago. The youngest child is aged 8. The Children live with the Wife and spend time with the Husband.
Commitments, support responsibilities, standard of living and cohabitation with new partner
The Wife has the greater commitments and support responsibilities for the Children as they live with her and spend time with the Husband. Outside of the holidays, which are shared, the children spend approximately 65 per cent of their time with their Mother, the Wife, and 35 per cent with their father, the Husband.
The position is complicated by the fact that the Wife seeks to remain as a stay at home mother. In large part she feels the necessity to do so by reason of the vulnerability of her son who was sexually abused by a member of her family. The Court considers that the Wife’s position in this regard is understandable and appropriate, but that it ought not preclude her from working at times when the son is at school.
The Wife and the Children continue to live in the former matrimonial home at Property C.
As the children live, principally, with the Wife, it is appropriate and in the best interest of the children, that the Husband have sole occupancy and exclusive possession of Property C, which has been the children’s home, subject to an appropriate payment to the Wife based on a final assessment of the respective parties interest in their overall property.
The Wife does not dispute that she and the Children enjoy a good standard of living whilst they continue to live in the former matrimonial home, albeit that her present financial circumstances are relatively modest. The Wife has not re-partnered, and is not cohabiting. The evidence of her “relationship” with Mr C was not sufficient to persuade the Court otherwise, or that Mr C was in a position to offer her assistance with the ongoing care of her children.
The Husband enjoys a good standard of living by reason of his employment. The Husband’s financial circumstances are also fairly modest, but better than the Wife’s by reason of his employment and cohabitation with his new partner. The Husband has also re-partnered with a woman who is employed at a major national retail hardware chain in the M region.
Superannuation
The parties’ superannuation entitlements are similar: the Wife has $27,716.00, the Husband $26,519.00.
Spousal maintenance
Spousal maintenance is not sought by either party.
Assessment
It is the Court’s view having considered the relevant s.75(2) factors that there ought to be an adjustment of five percent to the Wife for the s.75(2) factors. This takes account particularly of the present disparity in income between the Husband and the Wife and the fact that the Wife will continue to be the primary care for the Children. Consideration has also been given to the fact that, at some stage, the Wife ought to be able to return to work, even if only during school hours, and whether as a radiographer or otherwise.
Overall, this results in an adjustment of ten percent to the Wife. Given a net property value of $525,269.00 the Wife’s sixty per cent share is $315,161.40, and the Husband’s forty per cent share is $210,107.60.
Effect will be given to this outcome by ordering the payment by the Wife to the Husband of the amount of $210,107.60 by June 30, 2008, failing which Property C and the B timeshare will have to be sold, plus other consequential orders.
Whether the orders proposed are just and equitable
Taking into account all of the circumstances, and considering, as a whole, the orders that the Court proposes to make the Court considers that the orders proposed are just and equitable.[5]
[5] Russell v Russell (1999) FLC 92-877
Conclusion and orders
The Court will make orders in terms of the orders set out immediately preceding these Reasons for Judgment.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Rachel Peattie
Date: 19 March 2008
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