M and M
[2002] FMCAfam 118
•31 January 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2002] FMCAfam 118 |
| FAMILY LAW – Property – lump sum damages – disability insurance payments – early superannuation pay out – different approaches to lump sums – contributions – mathematical approach not applied s.79(4), s.79(2) Family Law Act 1975. |
| Applicant: | J I M |
| Respondent: | A M |
| File No: | ZP790 of 2001 |
| Delivered on: | 31 January 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 23 & 24 January 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr T Reeve |
| Solicitors for the Applicant: | Marsdens DX 5107 CAMPBELLTOWN |
| Counsel for the Respondent: | Mr P Schroder |
| Solicitors for the Respondent: | Stormers DX 8027 PENRITH |
ORDERS
That K A M born 18 June 1988 live with the applicant wife.
That the husband and wife do all things necessary to immediately list the property situate at and known as 8 R Close, R for sale by private treaty with a real estate agent at a price to be agreed upon between the parties and failing agreement to be determined by the President of the Real Estate Institute of New South Wales or his nominee.
That the proceeds of sale pursuant to Order 2 above be disbursed as follows:
(a)Firstly, in payment of the costs of sale including the real estate agent’s fees and legal fees;
(b)In payment of any outstanding rates and charges;
(c)In discharge of the Commonwealth Bank mortgage secured upon the home;
(d)In payment of 78 percentage of the net balance to the wife;
(e)The balance to the husband from which he is to immediately pay to the wife $1,040.00.
In the event that contracts for the sale of the property have not been exchanged within three months of the property being listed for sale with the agent provided for in Order 2, then the parties shall immediately make all arrangements and do all acts and things and sign all documents and pay all moneys in equal shares necessary to procure a sale by public auction of the real property upon the following terms:
(a)The auctioneer shall be the agent nominated as above or such other agent as the parties may agree,
(b)the reserve price shall, unless agreed upon by the parties, be proposed by the auctioneer;
(c)the parties shall be responsible for payment of one-half of the auction expenses payable before the real property is auctioned.
In the event that the property is not sold by auction or by private negotiation within fourteen (14) days after the said auction, then the parties shall do all acts and sign all necessary documents and shall pay all moneys equally necessary to procure a second auction within a further five (5) weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
That unless otherwise specified in these orders:
(a)each party is solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payments out of such entitlements.
(b)each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
If either party refuses or neglects to sign (within seven days of a written request to do so) any document necessary to give effect to the terms of these orders, the Registrar or Deputy Registrar of the Federal Magistrates Court is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document/s on behalf of the defaulting party.
That all documents produced under subpoena shall be collected by the solicitor who issued the subpoena and all documents forthwith returned to their owner.
That all exhibits shall be returned at the expiration of one calendar month unless an appeal is lodged.
That all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP790 of 2001
| J I M |
Applicant
And
| A M |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings relate to the adjustment of property pursuant to section 79 and parenting orders that relate to the parties’ younger daughter, K. K was born on 18 June 1988.
The application
J I M (“the wife”) filed an application on 11 July 2001. The orders sought by her are :
Parenting Orders
1. That the children of the marriage namely L M born 14th November 1983 and K A Muscat born 18th June 1988 reside with the mother.
2. That the father have contact with the children at times agreed to by the parties.
Property Orders
3.
That the husband sign a Transfer of his interest in the former matrimonial home known as and situate at
8 R Close, R, New South Wales (the property) to the wife and provide that document to the wife in registrable form within fourteen (14) days of the date of these orders.
4. That the husband is hereby declared to be the sole owner of the Mitsubishi Lancer motor vehicle currently in his possession and the wife shall transfer any right, title or interest that she has in that motor vehicle to the husband within fourteen (14) days of the date of these orders.
5. That within fourteen (14) days of the date of these orders the husband shall re-finance the Access Advantage Loan currently over the husband’s Mitsubishi Lancer in an amount of approximately $26,000.00 and be solely responsible for that loan. The husband shall indemnify the wife with respect to any liability in relation to the loan. Until such time as the loan is re-financed, the husband shall ensure that the repayments are made regularly including interest and principle are repaid.
6. That the husband is hereby declared to be solely entitled to the $40,000.00 cash that has been retained by him since separation and currently in his possession.
7. That all other items of property, financial resources, shares and superannuation presently in the name, possession or control of the wife shall remain hers absolutely to the exclusion of the husband.
8. That pursuant to section 106A of the Family Law Act the Registrar of the Court shall be appointed to sign all documents required to be signed in the event that either of the parties fails or neglects to do so.
9. That each party shall give all consents and do all things necessary to give effect to these orders made herein.
At the conclusion of the proceedings the orders were amended in the sense that the wife abandoned an application for a declaration as to $40,000 cash said to be in the husband's possession and conceded that the former matrimonial home must be sold.
A M (“the husband”) filed a response to the wife's application on
5 November 2001. He sought the following orders:
Parenting Orders
1.That the father have contact with L M born 14 November 1983 and K A M born 18 June 1988 as follows:
(a)Each alternate weekend from 9.00am Saturday to 5.00pm Sunday;
(b)From Father’s Day from 9.00am to 5.00pm;
(c)Christmas Day from 2.00pm to 9.00am;
(d)The first week of each school holiday period commencing 9.00am on the Saturday and concluding 5.00pm on the following Sunday;
(e)Telephone contact each week on a Tuesday and Wednesday evening from 8.00pm.
Property Orders
1.That within sixty (60) days of the date hereof the Wife pay to the Husband the sum of $100,000.00.
2. That the Husband, simultaneously upon the Wife’s compliance with Order 1 above, sign all documents and instruments to do all things necessary to transfer to the Wife the whole of his right, title and interest in the former matrimonial home property at 8 R Close, R (“the property”).
3. That the Wife, simultaneously upon the Husband’s compliance with Order 2 above, be solely responsible as between the Husband and the Wife for all outgoings payable in relation to the property and the Wife indemnify the Husband in relation to same.
4. That the Wife, simultaneously upon the Husband’s compliance with Order 2 above, re-finance any mortgage encumbering the property to her sole name.
5. That the Wife is to retain the furniture and personalty in the former matrimonial home.
6. The court declares pursuant to section 78 of the Act that each party is the sole owner in law and equity as between each other of all items of personal property, financial assets and financial resources currently in each parties power, possession and control other than specifically dealt with elsewhere in these orders.
7. That the Husband be declared the sole owner of the Mitsubishi Lancer motor vehicle in his possession.
8. That the Wife be declared the sole owner of the Mitsubishi motor vehicle in her possession.
In light of the wife's agreement that the former matrimonial home must be sold, he sought that his s.79 entitlement be paid out the proceeds of its sale.
The parties agreed that the wife will retain the contents of the former matrimonial home and that both will keep the motor vehicles in their respective possessions. The parties will otherwise retain the items of personalty and financial resources that they currently have.
Short history
The wife was born on 17 July 1956.
The husband was born on 9 September 1956.
On 22 December 1977 they married at L. They had lived together for a short time prior to their marriage.
There are two children of their marriage, L born 14 November 1983, and K born 18 June 1988.
The parties separated on 23 January 2000 at which time the husband left the home, the wife and children continued in occupation.
A decree nisi dissolving their marriage was ordered on 18 June 2002.
There are no current orders operative pursuant to the Family Law Act.
The evidence
The applicant wife relied on the following evidence:
·her affidavit sworn 12 December 2001 and filed 17 December 2001 and her oral testimony;
·her financial statement sworn 10 July 2001 and filed 11 July 2001.
The respondent husband relied on:
·his affidavit sworn 18 January 2002, filed the same day and his oral testimony;
·
his financial statement sworn 17 August 2001 and filed
5 November 2001.
Both parties tendered documents that became exhibits.
The father abandoned his application for contact at the commencement of the proceedings. As a consequence a family report that had been prepared for this hearing did not form part of the evidence.
Relevant facts
Both parties were about 20 years old when they commenced cohabitation. The wife had no assets of value. The husband owned a new Holden Sandman panel van worth $6000 and $2500 in a bank account. There is no suggestion that he had any liabilities.
When they started living together the husband was working as an upholsterer for Harry Hall. He was earning about $395 per week. The wife was working full-time with Namco where she had started prior to their marriage. Namco closed its Sydney operations and relocated to Brisbane during 1982. As a consequence the wife was retrenched and received a termination payment of $15,000. $8,000 comprised superannuation and the balance was made up of long-service leave and salary payments. There was no suggestion that the amount was used for anything other than joint matrimonial purposes.
The wife then remained at home preparing for the birth of the parties’ elder daughter, L. L was born with severe renal reflux and was a demanding baby. When L was about 15 months old, the wife returned to the paid workforce as a process worker. Until about two months before K was born, the wife remained in full-time employment.
From about 1982 until 1985 the husband worked a second job, working part-time with Gary Wright, a service station proprietor.
In 1983 the wife's mother came to live in their home. She was dying from cancer and needed the help of her daughter and son-in-law to manage on a day-by-day basis. Both parties contributed to her care.
In September 1984 the wife received a compensation payment of $20,000 for carpal tunnel injuries to her right hand. Dr Bodell reports her carpal tunnel injury occurred when the wife was 18 years old, hence prior to cohabitation. The parties then purchased their home at
8 R Close, R. On 2 November 1984 the wife withdrew $9,035, on
12 November 1984 $11,580 from the joint account into which her carpal tunnel damages had been paid. These withdrawals comprised approximately $20,000 deposit paid on the purchase of the home. The total purchase price was $58,000 and so the deposit was a substantial one. The shortfall was met by borrowings from the Commonwealth Savings Bank or the Australian Atomic Energies Commission, it is unclear which $40,000 which was secured by the mortgage on the home. They borrowed slightly more than was required to complete to purchase, applying the additional amount to completion of a driveway and other work around the property. In 1983 the husband changed employers when he was retrenched. He had received termination payments of $3,000 which were paid into the parties’ joint Commonwealth savings account. Annexure A to the wife's affidavit reveals that the moneys were entirely spent by April 1994.
The husband supplemented his salary of $320 gross per week working part-time as a taxi driver and at TNT. Both parties deposited their wages into the joint Commonwealth savings account during this period and indeed throughout the course of their marriage from which the mortgage and household outgoings were paid. From 1985 until 1987 the husband worked at Borg Warner earning about $390 per week. During 1998 until 1993 the husband, having again changed employers working for Caroline Interiors, earned about $400 per week. He also worked at weekends at a service station earning $104. In 1988 the husband's mother gave him $10,000 which was used to pay off a car loan.
On 23 October the wife returned to full-time employment working as an assembly worker at Utilux Pty Limited. The parties then borrowed $15,000 to meet the cost of building a double garage. They decided not to use a building company and over about six months the husband worked as a labourer in his available time while a contractor did the trades work. A builder had quoted some $29,000 for the double garage and by working directly with the tradesperson the husband saved the parties a tidy amount.
By about August 1992 the wife noticed the gradual onset of neck and shoulder pain. She had increasing stiffness. On 7 August 1992 she was suffering severe pain. Her work in the factory was described by Dr Bodell in his report of 19 April 1995 thus:
“She states that she was involved in assembly work manufacturing hose clips. She reports that she worked on a machine and had to work at a particular rate of 900 individual items per hour. She had to physically insert the screw into a hose clip and there were various tasks that were done and on occasions she may be required to work at a rate of up to 1200 items per hour”.
After the pain suffered in August 1992 she saw Dr Gardner, her local Doctor, who prescribed analgesics and anti-inflammatory tablets as well as physiotherapy. On his advice she took two weeks off work. Upon the resumption of work her symptoms returned and by August 1993 she was experiencing increasing head and neck pain and stiffness. On 17 October 1993 the chair that she was sitting on at work collapsed underneath her. Although she initially received workers compensation payments on a continuing basis, these stopped by the end of 1993.
By the 1993 injury the husband had started to become more involved in the heavy household tasks such as vacuuming and cleaning the blinds. The 1993 injury meant his role in the home increased, not only caring for the home undertaking the heavy household work but also driving the wife to doctors and physiotherapy appointments and working with her to help her manage her pain. During 1993 the husband changed his work, taking up a position with the Department of Juvenile Justice. He was attacked at work and in 1996 received a $13,000 Victims Compensation Tribunal payment. There is no suggestion he suffered any continuing disability from the assault.
During 1995 the wife made a claim on her AMP superannuation on the basis that she was totally and permanently disabled. AMP accepted her claim which was paid out on 31 May 1995. She received $63,874.70. These moneys were deposited into the parties’ joint account. On
13 June 1995 the wife paid out in full the St George garage loan and the mortgage on the home. She paid two payments that totalled $47,781. The balance of her disability moneys were spent over time on joint living expenses. On 25 September 1955 the wife received the balance of her AMP super in the additional sum of $5,419.23. Those moneys were also deposited into the parties’ joint account and used for joint matrimonial purposes. In 1996 the wife settled her workers compensation claim, I infer for the 1992 injury, and received $20,000 back-pay as well as continuing medical coverage and periodic payments of $125 per week. Those weekly payments were stopped by her insurer on 3 September 2001.
The wife bought her car, for which she paid $15,000, using her compensation money in 1996. In 1998 the husband started working for the Australian Correctional Management Service. He works primarily at the Villawood Detention Centre.
The parties separated on 23 December 2000. At separation the husband left the home. He moved into his mother's home and lived there until April 2001 when he obtained private rental housing. At separation he took with him a black suitcase that he packed largely in the wife and children's presence as well as his car. He had the wife's credit card that was returned some two weeks later. He returned later in the company of police to collect more of his personal property.
At separation the parties had an outstanding loan from the Commonwealth Savings Bank. It had been raised in 1998 and used in part to buy the husband's car. He had paid $10,194 for his car in July 1999. Otherwise the loan paid for school fees, family holiday, vet bills, lounge suite and furniture. I am satisfied that the draw-down on the loan was used entirely for joint matrimonial purposes. Subsequent to separation, both parties claim to have made some mortgage payments on the Commonwealth Savings Bank mortgage. Neither party offered any evidence that corroborated their claim. This is a matter that was readily provable and in the absence of evidence, for example from the parties’ bank, I cannot make any findings distinguishing between the claims and counter-claims concerning payment of the mortgage. Both agree that there have been no mortgage payments made since July 2001. The wife alleges that during the period the husband had the credit card after separation, he ran up debts of some $4,000–$5,000 in her name. Again, this is a matter that is readily provable and no evidence was offered by the wife, for example provision of her credit card statements, that corroborated the allegation she made. I am not satisfied that there was a credit card debt established by the husband.
The husband currently pays child support of $101 per week. His child support commitment has reduced recently as a consequence of L celebrating her 18th birthday. L has left school and lives with her sister in the former matrimonial home with the wife. Both L and K are attending Dr Frater, a psychologist, for regular counselling. The mother anticipates that the counselling will increase so that each will be attending once a week for two hours at the rate of $85 per hour. The wife cannot afford to pay Dr Frater and is hopeful that if ever she receives any further compensation payments that she will be able to make a payment to Dr Frater or otherwise will use part of her share of the sale of the home.
The relevant law
The approach to the determination of an application under s.79 is well established by authority (In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595). The process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c). Thirdly, evaluating the matters contained in s.75(2) insofar as they are relevant.
In determining what order the court should make under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s.79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.
Assets at the date of hearing
The parties reached agreement as to the value of the assets and liabilities. It was submitted by counsel for the husband that I would treat his superannuation as an asset. There was no basis for doing so and it will be treated as it is properly categorised, a financial resource. I find that the assets, liabilities and financial resources of the parties as at the date of hearing are these:
Assets as at the date of hearing
$
Former matrimonial home, agreed value
200,000.00
Lancer motor vehicle (H) 5,000.00 Magna motor vehicle (W) 7,000.00 Furniture in home 6,000.00 TOTAL ASSETS
218,800.00
Liabilities
$
Commonwealth Savings Bank mortgage
30,277.39
TOTAL LIABILITIES 30,277.39 NET ASSETS 187,722.61 Financial resources – husband’s superannuation (preserved)
12,526.42
It is important to note that on 9 May 2001 the husband rolled into the Australian Retirement Fund policy $7,838.51 from his ANZ super account. The wife has a workers compensation claim that she is pursuing. Her evidence, which I accept, is that she cannot afford to commute the claim in circumstances where she has serious health difficulties and will require ongoing medical care for the short and long-term. I am unable to place a value on the workers compensation claim.
Section 79(4) analysis
As I have already found, the wife had no assets at the commencement of cohabitation. The husband owned a motor vehicle and had savings of $2500. His initial contributions exceeded the wife's. Nonetheless his initial contribution was a small one. In the context of this long marriage the distinction has little significance. Although at some stage he received a carer's pension because he was looking after the wife, the husband has basically worked full-time throughout the 24 years these parties lived together. Not only did he maintain full-time employment, he also undertook additional part-time work. He worked hard and during those years when the wife was either ill or caring for the children his income was the sole income earned by the family. I am satisfied that the husband applied the whole of his income to the betterment of the family.
During the years that the wife worked in paid employment or was receiving periodic workers compensation payments, the wife too applied the whole of her income earned to household expenses.
A particular issue in these proceedings related to the treatment of lump sums. Exhibit J comprises a list prepared by the wife's solicitor identifying the lump sums received after the parties commenced cohabitation and the amounts are these:
·in 1982 the wife received the Namco superannuation and long-service leave entitlements of $15,000;
·1983 the husband received from Harry Hall his retrenchment payments of $3000;
·1984 the wife received her carpal tunnel compensation payment of $20,000;
·1988 the husband received the $10,000 gift from his mother;
·1994 the wife received the first payment from Utilux for her superannuation of $4035.46;
·1995 the wife received her AMP disability claim of $63,874.70; 1995 the wife received the balance of her preserved superannuation payment from Utilux of some $5419.23;
·1996 the husband received $13,000 victim's compensation payment.
Thus the lump sums derived from the husband were $26,000 and from the wife $128,329.39. This helpful table was prepared by the wife's advocate to support a submission in effect that the court should take a mathematical approach to the assessment of the parties’ financial contributions. This approach has not found favour with the Full Court of the Family Court. The Full Court has emphasised, for example In the Marriage of Garrett (1984) FLC 91-539, that where appropriate a broad estimate of the financial contributions of each party must be made as a matter of assessment, not specific computations.
I am satisfied the wife's Namco and the husband's Harry Hall retrenchment moneys are payments that result from the ordinary course of their employment. The wife's carpal tunnel compensation verdict arose solely from an injury suffered by her prior to the marriage. The husband made no contribution to it. So too the gift from the husband's mother should be treated as a contribution made on his behalf. Although parents often do not have expressly formed intentions as to whom they intend to benefit, in the absence of evidence suggesting a specific intent I am satisfied that the gifts should be treated as made to the husband with residual benefit flowing to the family.
Other than the amount received and the nature of the offence committed there is no evidence about how the $13,000 Victims Compensation Tribunal award was calculated by the Tribunal. I infer this amount is exclusive of any medical, legal or other expenses and is the equivalent of general damages. The husband does not suggest any continuing disability arising from the assault, thus the amount probably compensates him for trauma, pain and suffering. On the facts known to me, this amount is a contribution that I assess as being made exclusively by him.
The wife's superannuation payments in 1994 and 1995 of about $10,000 were payable to her because firstly she and/or her employer had made payments to the fund and there was a relevant terminating event that required the insurer to pay out her preserved and non-preserved superannuation. Her superannuation vested because she was totally and permanently incapacitated for employment. This superannuation was contributed to by both parties. The wife supported the policy financially by going to work and the husband indirectly because he earned sufficient moneys that freed the wife to either pay the policy premiums or to salary sacrifice so that they were paid by her employer.
The lump sum disability payment, however, should be treated differently. This disability cover became payable because of the wife's injury. Her injury was severe and has had long-lasting consequences for her. Although the policy had a dual purpose, namely superannuation as well as providing death and disability cover, the entitlements vest differently. Superannuation relates to age and employment in essence. Ultimately if not paid out earlier, it must be paid upon reaching retirement age. Disability benefits accrue as a consequence of personal harm. Thus that portion of the entitlement that relates to the disability should be treated as the pain and suffering claim of a damages verdict. That is, made by the person who suffered the injury. Without the carpal tunnel payment I am satisfied that the parties would not have been able to buy the former matrimonial home when they did.
The only other opportunity they had to acquire a sufficient lump sum to enter the property market was when the wife received her disability payment. These latter moneys were used to clear the mortgage and minimise the amount that was repayable pursuant to it and the car loan. The former matrimonial home comprises the prime part of the net assets. These two payments attract the Pierce (1999) FLC 92-844 principal in that they have particular significance for this family. In Gibbons, an unreported decision of the Full Court of the Family Court delivered on 20 March 1997, His Honour, Baker J, delivering the lead judgment for the Full Court, analysed an appeal that had similar features that related to the lump sum payments. His Honour said:
“There was considerable argument in the course of the hearing of this appeal as to how in particular the various payments which the husband brought into the marriage should be categorised, whether they should be regarded as contributions, whether they should be regarded as representing pain and suffering, which the husband suffered in the course of his accidents and/or employment; or whether they represent a compensation for his inability to earn income in the future or in other words, economic loss. It seems to me that in a case such as this that where the evidence of the precise breakdown of the various lump sums which the husband received is scant the trial Judge ought to have regarded all the contributions which the husband made as contributions by him and then adjusted by way of section 75(2) factors any needs which he might have or any inability on his part to be gainfully employed in the future. In my view the trial judge was in error in assessing contributions at 50 per cent for each of the parties.
Evaluating the entire financial contributions, the lump sums contributed jointly and individually and the effort made through paid employment is an exercise of judgment, not arithmetic formulation. The wife made substantial contributions as a consequence of the damages verdicts and disabilities suffered by her. I am satisfied that she made a greater relevant financial contribution than did the husband.
The husband built the garage with the help of tradesmen and generally maintained it. He painted the house at least five times. Overall I am satisfied that the husband's non-financial contributions made to the parties’ property was greater than the wife's was.
Since separation the wife has lived in the house and has not been able to pay the mortgage. The husband has been paying rent since April 2001, a factor I take into account. The wife, I am satisfied, carried out most of the homemaker duties. Working as hard as he did, for long hours in multiple jobs, the husband just wasn't home as extensively as the wife was. As a consequence the responsibility for the care of the children in the home fell primarily to her. After her accident in 1993 the husband was more substantially involved in the care of the home as well as the care of the wife and the children. His contribution to the homemaker and to the welfare of the family was a substantial one.
I accept Mr Reeve's submission that the wife's post-separation contribution as homemaker and parent has been greater than the husband's. However, as I have already found, she has had the exclusive use of the home and has been unable to pay the modest monthly $435 repayments. The husband has paid rent of $150 per week since April 2001.
The orders I make will not affect either party's earning capacity. The husband pays child support in accordance with the formula. It has been reduced by $300 per month following L's 18th birthday. I accept that he will pay a proper level of child support for K until she is 18 or self-supporting.
I find therefore when I balance the competing contributions made by each of these parties that the total contribution should be assessed as to 60 per cent by the wife and 40 per cent by the husband.
Section 75(2)
Subsection (a) Both parties are 43 years old. The husband is in good health. Exhibit A contains a bundle of medical reports relating to the wife. Although there are issues between the medical practitioners as to causation there is a common view expressed that the wife suffers permanent impairment to her neck, back and right arm. She has been assessed as totally and permanently incapacitated by her insurer since 1995. She now consults a neurologist and is facing in all probability significant future surgery. Managing pain for her is a complicated issue. She has poor health and her prognosis is a sad and poor one. I am satisfied I should make an adjustment in favour of the wife pursuant to this subsection.
Subsection (b) Both parties completed financial statements setting out their income, property and financial resources. I have already made findings about their property and financial resources and do not repeat them. The wife's current income is $383 per week which comprises Department of Social Security payment, child endowment and child support. I have already made findings about her health. She has only ever worked as a factory worker and has not worked since 1993. Prior to her employment being terminated she undertook training so that she could be a trainer herself. In spite of that training, her employer terminated her. She cannot sit in the one position for any length of time. She cannot stand and she cannot engage in repetitive movements. All this type of activity places an intolerable strain on her neck and lower back. I am satisfied on the evidence that she is unlikely to ever work again. She does not have the capacity for gainful employment, nor the prospects in the circumstances of being retrained for appropriate employment. The husband has a trade as an upholsterer. He has worked in a service station, with the Department of Juvenile Justice and on a full-time basis with the Australian Correctional Management since 1998.
He has been given higher duties opportunities from time to time and there is clearly some scope for career development. I am satisfied that he will for the foreseeable and long future be able to work so that he at least earns the income he is currently earning. I make an adjustment in the wife's favour pursuant to the subsection.
Subsection (c) Both children live with the wife. Only K is under 18. K is attending school on a full-time basis and requires regular counselling. I make an adjustment pursuant to the subsection in favour of the wife.
Subsection (d) Both parties detail in their financial statement their necessary commitments. They are modest and were not the subject of meaningful challenge by the other. The wife cannot meet her day to day living expenses and the husband all but exhausts his income on meeting his own essential commitments. I make an adjustment in favour of the wife.
Subsection (e) Other than the children, the parties have no obligation to support any other person.
Subsection (f) The wife is in receipt of a Department of Social Security benefit, otherwise there are no relevant factors that arise and I make no adjustment pursuant to the subsection.
Subsection (g) The wife has maintained her standard of living in the home since separation. The husband has suffered a diminution in his standard of living in that he has had to pay for private rental accommodation and lived in a place that had less amenities than the former matrimonial home. As a result of the order that I make which will require the sale of the former matrimonial home, both will suffer a reduction in their standard of living. Quite simply, there isn't enough money coming into the household to support two households and neither can expect to maintain a standard of living that they enjoyed during the course of the marriage and I make no adjustment pursuant to the subsection.
Subsections (h), (j) and (k) do not arise.
Subsection (i) The wife does not have the capacity to return to the paid workforce as I have already found and I do not make any adjustment pursuant to the subsection.
Subsection (m) The mother lives with L. L sadly has left school and has no plans to work. It would seem she is entitled to some form of Social Security benefit. I make no adjustment pursuant to the subsection.
Subsection (n) As a result of the orders I make, the wife will have the opportunity to re-enter the property market in some modest way. Because of her income it is unlikely that she will have the capacity to raise a mortgage to supplement the amount of money that she will receive from the sale of the home. The husband will receive a very modest sum from the sale of the home. His income is such that he may be able to raise a mortgage so that he too carrying substantial debt is able to obtain some form of real estate. I make no adjustment pursuant to the subsection.
Subsection (n)(a) The husband pays child support assessed by the Child Support Agency. In all probability he will be required to pay child support for another five years and I make no adjustment pursuant to the subsection.
Subsection (p) does not arise.
Having regard to the findings that I have made pursuant to section 75(2)(a), (b), (c) and (d), I am satisfied that there must be an adjustment in favour the wife, the appropriate adjustment to make in her favour is 18 per cent.
Section 79(2) — Is this a just and equitable outcome?
I find following the parties’ 24 years cohabitation that their contributions were 60 per cent in favour of the wife and 40 per cent by the husband. The wife will have the primary ongoing responsibility for the care of K. There is no likelihood that she will return to the paid workforce either in the short or long-term. The husband will have the few possessions that he currently has and a small amount from the proceeds of sale of the home. I have made detailed findings concerning the application of section 75(2) and do not repeat them. Balancing all these factors, I find that it is appropriate that the parties’ net assets should be divided as to 78 per cent to the wife and 22 per cent to the husband.
The husband will have the benefit of his minimal superannuation, he has the capacity to earn income at least at a comparable level to that which he is currently earning for the foreseeable future. The wife will have moneys which will enable her to re-enter the property market and perhaps provide a home for herself in the future. Both parties will have a modest standard of living. I am satisfied that this is a just and equitable outcome within the meaning of section 79(2). The reason for that is that the section requires that I give proper weight to the wife's substantial direct financial contribution derived from her disability and compensation awards as well as her financial future having regard to the care of K and her lack of prospects to return to the paid workforce.
Of course I must also ensure that I give proper weight to the husband's efforts as a salaried employee, as a homemaker and a parent and maintaining the matrimonial home.
Conclusion
Although the home has an agreed value, the net proceeds cannot be known. The husband will retain his car, the value of which is $5000. The wife currently has assets valued at $13,000 that she will keep. She will receive 78 per cent of the net proceeds of the sale of the home. Of the remaining assets there will have to be an adjustment for the wife, taking into account the assets she retains of $1040. This adjustment will come from the husband's 22 per cent of the house proceeds.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
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