MACEY & MACEY
[2013] FamCA 187
FAMILY COURT OF AUSTRALIA
| MACEY & MACEY | [2013] FamCA 187 |
| FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Allegations of drug and alcohol use and whether any adjustment as to contributions should be made - Valuations of property – Whether an adjustment should be made in the wife’s favour in respect of future needs - Whether the wife should be given the opportunity to buy the husband’s interest in respect of the former matrimonial home FAMILY LAW – SUPERANNUATION – Agreement that superannuation entitlements should be divided equally – Superannuation splitting order deemed appropriate |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth). |
| Clauson & Clauson (1995) FLC 92-595 Kawali & Kawali (1981) FLC 91-092 Tomasetti & Tomasetti (2000) FLC 93-023, 26 Fam LR 114, [2000] FamCA 314 |
| APPLICANT: | Ms Macey |
| RESPONDENT: | Mr Macey |
| FILE NUMBER: | PAC | 4602 | of | 2011 |
| DATE DELIVERED: | 17 May 2013 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 12 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Heazlewood |
| SOLICITOR FOR THE APPLICANT: | Caldwell Martin Cox |
| SOLICITOR FOR THE RESPONDENT: | Self-represented Litigant |
Orders
That the wife pay to the husband within six (6) weeks of the date of these Orders the sum of $83,452.50.
That upon payment of the whole of the sum provided in Order 1 above, within the time specified, the husband shall do all things to transfer to the wife his right, title and interest in the property situate and known as A Street, B Town (“the property”) subject to the mortgage presently secured over the property.
That upon payment and transfer as hereinbefore provided, the wife shall indemnify and hold blameless the husband in respect of the mortgage secured over the property.
That in the event that the whole of the monies provided for in Order 1 above are not paid within the time specified then the parties shall thereupon forthwith do all things and execute all documents necessary to procure a sale of the property by private treaty.
(a)The parties shall employ an agent to market the property. In the event that the parties cannot agree upon the identity of such an agent then the President for the time being of the Real Estate Institute of Valuers NSW shall nominate an agent to act.
(b)The parties shall agree upon a solicitor to have carriage of the sale. In the event that the parties cannot agree upon a solicitor to have the carriage of the sale of the property, the President of the Law Society of NSW or his or her nominee shall appoint a solicitor to have carriage of the matter. If such a nomination is required, the solicitor so nominated shall not be the solicitor acting for the wife.
In the event that the property is not sold, in that a binding exchange of contracts has been effected, within four (4) months of the date of these orders then the property shall be offered for sale by public auction.
(a)The parties shall agree upon an auctioneer. In the event that the parties cannot agree upon an auctioneer to conduct such an auction then the President for the time being of the Real Estate Institute of Valuers NSW shall nominate an auctioneer to act.
(b)The parties shall agree upon a reserve price for the sale by public auction. In the event that the parties cannot agree upon a reserve price, such price shall be fixed by the auctioneer having conduct of the sale on the day of the auction.
(c)The parties shall do all things and sign all documents necessary to complete a sale by public auction.
The parties shall then deal with the proceeds of sale arrived at following any sale of the property, by private treaty or public auction, as follows:-
(a)In payment of all agents fees and commissions, including auction expenses, incurred properly in such sale;
(b)All solicitor costs and disbursements incurred properly in such sale;
(c)In payment of the amount outstanding under the mortgage secured over the property;
(d)In payment to the wife of 60.25 per cent of the balance then arrived at;
(e)In payment to the husband of the balance then remaining.
That, in accordance with section 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable out of the husband’s interest in C Super member number …, the wife or her legal personal representative shall be entitled to be paid 50 per cent of such splittable payment and there will be a corresponding reduction to the entitlements of the person to whom the splittable payment would have been made but for these Orders.
That Order 7 above has effect from the operative time, being four (4) business days after the date of service of a copy of the sealed Orders on the Trustee of C Super.
That the Trustee of C Super comply with the obligations imposed upon the trustees of eligible superannuation plans under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth).
That for the purpose of these Orders until the happening of:-
(a)The establishment of a separate account in the name of the wife; or
(b)The transfer or rolling into another superannuation fund of the payment created herein in favour of the wife; or
(c)The wife satisfies the condition of release and is paid the payment created by these Orders herein; or
(d)The wife executes a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 (Cth) in relation to the payment split
the husband shall forthwith be restrained from drawing from or encumbering the member’s interest in C Super member no. … or from executing any death benefit nomination in favour of any person or doing any act or thing that would have the effect of defeating, diminishing or otherwise reducing the allocated splittable payment or rendering any part of his interest as a non splittable payment within the meaning of regulations 12 and 13 of the Family Law(Superannuation) Regulations 2001 (Cth).
That the wife make available to the husband for collection, within seven (7) days of the date of these Orders, all possessions of the husband presently in her possession or control.
That, subject to the foregoing Orders, each party be entitled absolutely, both in law and in equity, of all real or personal property, chattels, furnishings, motor vehicles, monies on investment or held in cash and superannuation entitlements in the possession and control of that party.
That if either party wishes to make an application for costs, they shall do so in accordance with the Family Law Rules 2004 (Cth).
That I otherwise dismiss all outstanding applications and cross-applications.
That I remove all issues from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six (56) days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Macey & Macey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4602 of 2011
| Ms Macey |
Applicant Wife
And
| Mr Macey |
Respondent Husband
REASONS FOR JUDGMENT
Introduction
This matter has an unusual history. It concerns the division of the parties’ property following a breakdown of their marriage.
On 16 January 2012, consent Orders were made by Registrar Tran. The husband then, on 18 January 2012, sought to review the Registrar’s decision. The reasons he gave in that application, so far as they are relevant to the proceedings before me, are that the former matrimonial home was “way under valued” and there were issues concerning the valuation of the wife’s business.
I am satisfied that the husband’s application for review of a Registrar’s decision was lodged within the prescribed time. Accordingly, I am satisfied that the decision of the Registrar can be regarded as being of no force and effect, and accordingly, the matter properly came before me for a hearing.
As a result of his application for review, the husband was treated for part of the proceedings, leading up to the final hearing, as the Applicant. However, for the purpose of the hearing, I determined that the wife should be the Applicant.
The matter came before me on 12 December 2012 as a reserve hearing, but was not reached. I made orders sought by the husband for further valuations of items he attributed to the wife to be obtained between then and the fixed hearing, which took place on 12 March 2013.
The husband’s position, as he finally explained it during submissions, was that the wife should be permitted to acquire his interest in the former matrimonial home upon payment of a sum of money. In the event that payment is not made within a specified time, he seeks that the property be sold and the proceeds of sale divided between the parties. His assertion was that such proceeds should be divided equally. As I understand his position, he is also content to have a splitting order made in respect of his superannuation entitlements, so that the wife receives one half of his entitlements upon the happening of an entitling event. He also seeks the return of items of personalty held by the wife.
The wife takes a similar position to the husband, in principle, that is to say that she should be given an opportunity to acquire the husband’s interest in the former matrimonial home upon payment of a sum of money. She concedes that if payment is not made within an appropriate time then the property must be sold and the proceeds divided. Needless to say, the parties are in dispute as to what the proportions each of them ought to receive in the event of a sale.
The pool of non-superannuation assets is quite small. The husband has a moderate amount of superannuation. As I understood from her counsel, the wife concedes that the superannuation entitlements of the parties should be divided equally and that a splitting order should be made to give effect to this.
The husband protested that valuations he asserted were necessary had not been carried out. He sought to cast the blame for this upon the wife and her legal representatives. I am not satisfied that the wife’s lawyers had any responsibility to more than they did in preparing the case for hearing. As is so often the situation, the husband choosing not to be represented, placed himself at a severe disadvantage. For whatever reason, the husband was dilatory in making requests for certain things to be done. In any event, the valuations were not done and the matter has proceeded to a hearing.
Brief history
A short history of the marriage is as follows:-
·The husband was born in 1971 and as at the time of the hearing, he was 41 years of age. The wife was born in 1972 and as at the time of the hearing, she was 40 years of age.
·The parties commenced cohabitation in about 1988 and married in 1995.
·There are two children of the marriage – D, who was 23 years of age, and E, who was 17 years of age, at the time of the hearing.
·The parties separated on a final basis on 22 March 2011, and as at the date of hearing, they had not divorced.
Parties’ documents
The husband, who is not able to be precise, appeared to rely upon the following documents:-
a)His Response to the wife’s Initiating Application filed 1 December 2011;
b)His Application in a Case filed 18 January 2012;
c)His affidavit sworn 16 November 2012 and filed 19 November 2012;
d)His statement of financial circumstances verified by affidavit sworn 16 November 2012 and filed 19 November 2012.
The wife appeared to rely upon the following documents:-
a)Her Response to an Application in a Case filed 30 January 2012;
b)Her Initiating Application e-filed 29 September 2011;
c)Her affidavit sworn 15 November 2012 and filed 7 December 2012;
d)Her Amended statement of financial circumstances verified by affidavit 15 November 2012 and filed 7 December 2012; and
e)The affidavit of Mr F (detailed below).
There was evidence before me from two valuers. Mr F valued chattels and personalty and his valuation was attached to an affidavit sworn 13 November 2012 and e-filed 14 November 2012. There was a valuation of real estate by Mr G, but in any event, the parties agreed upon the value of the matrimonial home to be included in the pool of assets.
The husband’s affidavit, which he had prepared himself, was of little assistance. Basically, it consisted of attachments dealing with asserted values of real and personal property, with child support and with bank statements. It included a statement of the husband’s superannuation, although it was conceded in evidence that the value of the husband’s superannuation at the time of the hearing was $131,772, and this is the figure I propose to use when dealing with superannuation assets.
The hearing before me
The wife, as I have said, gave her evidence first. Her affidavit material was detailed. She makes reference to the husband using marijuana throughout the marriage and withdrawing between $200 and $400 per week for this purpose.
There is no particular history of the parties’ acquisition of real property and I will deal with this later in these reasons for Judgment.
The wife gave oral evidence, by leave, to her counsel. She said that Mr F had inspected items and that the husband was not given notice when this was to be done. Asked especially about a series of items, she indicated that she believed the husband had taken a bracelet and diamond rings. She said that a gold bangle was melted down from earlier family jewellery.
As to the husband’s alleged marijuana use, she said she had been in the car with him when they were younger (from this I assume she was saying when she was still at school) when she saw the husband purchase small amounts of marijuana. She asserts that the husband was, at one point, paying her friend’s husband at least $300 once a month for marijuana.
The mother conceded that she was in a relationship, but was unsure about matters financial affecting her partner. She indicated that she had heard a discussion with a Registrar, but not in conference, where the husband had answered words to the effect “you may as well come in, they know we are together anyway”. Allegedly this was addressed to a person named Ms H. I would add that whilst it appears that both parties, and certainly the wife, have new partners, no material has been put on by either of those persons.
Indeed, it is the husband’s case that he is not in a relationship with Ms H. He was questioned about this during cross-examination and indicated that he was sharing a house with her, but that was the extent of their involvement.
The wife was then cross-examined by the husband. He put to her that she had been using marijuana with him, which she denied. He asked the wife what she had done with her money and she said that the husband had seen her records. She indicated that the husband asked her for petrol money, which she gave him. She bought food. She paid for school uniforms and school fees.
She said that she had never smoked marijuana. Asked why she did not allow personal items to be valued, she said that she had allowed it to be done. She said the children were 23 and 17 years of age; the youngest was not 18 years of age as the husband appeared to assert. She said the husband had not seen the children (which I took to mean of recent times).
She indicated that she wished to keep the home.
She indicated that her new partner, Mr I, earns approximately $70,000 and that he pays for some petrol, but does not assist in payment of mortgage instalments. She agreed that it was a committed relationship.
She confirmed that she was receiving $1,600 odd per month by way of child support in respect of the child E, and she was paying a mortgage of $600 per week. She said that her taxable income in 2011 had been $11,000, with her gross income being $48,000 to $50,000.
She said that she had assisted the husband in respect of the two homes that they had purchased and renovated. She said that both parties had contributed to the household.
In re-examination, she said that the child E was in Year 12. She confirmed that the parties had owned two properties, one at J Street, K suburb, which was a two bedroom home, and the second at B Town, which was a one bedroom home to which additions had been made to convert it into a four bedroom home. The wife asserted that she had been the person to hold the owner/builder licence on the B Town home.
The husband then gave evidence.
He indicated that he did not have money to purchase marijuana but he had grown one plant; later he said a few plants. He said that on occasion the wife would smoke and that he had smoked once a week. Her use, he said, was once a month. He said the wife drinks everyday.
He said the wife had done little in the renovations and he had done most of the work on the second house as an owner/builder.
He said he started accruing superannuation funds at the earliest opportunity and he now had approximately $128,000.
When being cross-examined by Mr Heazlewood, he said that the wife has a drinking problem and consumes two litres of wine per day. He said this is either a two litre cask or two bottles. He said the parties had met when she was 14 years of age. He said she was drinking two litres per day at the age of 19 years. He said she was running her own business and paying over $100 per week on the purchase of alcohol. It was put to him that his evidence in this regard was a complete fabrication and he disagreed.
He agreed that he had lost his licence once for driving with the prescribed concentration of alcohol in his blood stream, and once for speeding. He said that the wife would not drive him when he was disqualified, but made him stay at her mother’s home.
It was put to him that he had used marijuana throughout the relationship, he disagreed. He said there were long periods when he went without. It was put to him that he was a heavy user, which he denied. He agreed that he had purchased marijuana from the wife’s friend’s husband about five years ago. He had never bought from a person identified as Mr L.
He said he paid the wife’s friend’s husband a sum of $20 for a bag. It was put to him that he spent $50, which he denied. He said he had read the wife’s affidavit where she asserted that there were withdrawals from $200 to $400 per week. He initially denied the withdrawals. He then said that this was possibly so; he had done all the shopping and paid all the bills. He said he went to the hardware store where he had used cash and sometimes a Visa debit card linked to a bank account into which he banked his wages.
He said his money was his, and her money was hers. He said that the wife had never asked him about withdrawals before the date of the hearing. It was put to him that there had been discussions concerning finances and he said that she had never asked, not once. He said that he was not always growing marijuana, that he had grown one plant from October 2001 to March 2002 and that plant provided enough material to last him two years. It was put to him that he had always grown marijuana, and he denied this. The assertion that he had grown marijuana seemed at odds with the earlier assertions as to the monies withdrawn and amounts paid to buy marijuana.
He said that Ms H shares a house with him and that they had been in a relationship, but were not in a relationship now. He said that he paid rent to M Pty Ltd of $225 per week. He said they had lived together in K Suburb and had been to New Zealand together. They were now living in N Town. He said she was not his girlfriend, she gave him $60 to $70 per week and does his washing. In addition, she pays for herself and her son. He said that she is on a pension.
He said that he was the owner/builder for the B Town property and denied the wife held the owner/builder’s licence. He said that the wife had undertaken the test with him. As to a swimming pool, he said he had bought it as a shell from O Pty Ltd and had another company install it.
He said rent is deducted from his salary.
It was put to him that no money had been paid for the children by him. He said he did pay. He said he worked 14 hour days. However, he said that at the present time there was no overtime work and he may in fact be made redundant.
He said his superannuation had been rolled over, initially from P Pty Ltd, in about 1990. He said he had commenced with his present superannuation fund about 17 years ago (on my calculation this would be approximately in 1996). That superannuation was now worth approximately $128,000. He denied the proposition that he held no superannuation before he joined his present employer. He said he had rolled over his earlier entitlements. A statement was later produced that his superannuation entitlements stood at $131,772, and the husband conceded this figure.
About long service entitlements, he was not able to deny or challenge the proposition that he was entitled to some 660 hours of long service leave. He said that he can take the leave but cannot cash it. He said he wishes to use it in blocks. It was put to him that at separation he had $600 in the bank and he said that was possible. He said he has approximately a week in holiday pay owing to him.
That concluded the evidence before me.
What do i make of the parties and their evidence?
The wife gave her evidence in a quite forceful manner. She sought to impress upon me that the husband had been a heavy drug user and for significant periods of time had spent between $200 and $300 per week purchasing marijuana for his own use. The wife denied any use of marijuana.
The wife sought to support her contention as to the extent of the husband’s drug use by alleging that amounts withdrawn, without apparent explanation from bank accounts, were all utilised for the purchase of marijuana. The husband’s evidence is that he used these monies, at least in significant part, for the purchase of items and, from time to time, food.
The wife asserts two people sold the husband marijuana. Neither of those persons filed an affidavit, or were subpoenaed, or otherwise brought before the Court to give evidence. I accept that it may be difficult to persuade a person to admit on their oath that they have supplied marijuana. However, as this seemed a most important part of the wife’s case, I am compelled, having regard to the decision of Jones v Dunkel[1], to infer that the evidence of either the wife’s friend’s husband or the person identified as Mr L would not have assisted the wife’s case.
[1] (1959) 101 CLR 298
The husband sought to minimise his use of marijuana, and certainly he sought to very substantially write down the amount actually expended on the purchase of the drug.
I do not believe that the husband used marijuana to the extent claimed by the wife, or anything approaching it. I am satisfied that the husband used marijuana from time to time, but I accept his evidence that there were significant breaks in his use. I do not accept that he grew only one or a few plants. I am satisfied that he did grow marijuana for his own use and, to my mind, that must have an effect on the amount I am being asked to accept he spent on a weekly basis.
The husband alleges that the wife was a heavy drinker of alcohol. He alleges that by 19 years of age, she was drinking some two litres of alcohol a day and this has continued. I find his allegations to be unbelievable as to the quantity of alcohol that he asserts the wife consumed. I am not able to be satisfied that the wife did not use alcohol to some extent, but I am satisfied that it is very highly improbable that the wife could have consumed the amount that the husband claims, or anything approaching it.
There was no evidence sought to be called to support the husband’s allegations. Indeed, it seemed that the husband only raised the allegations of the wife’s alcohol consumption when his own drug use was put to him in cross-examination.
There was dispute between the parties as to the work done by each of them in respect of the two homes that they had owned during the course of their relationship. The husband asserts he did significant work, which is not particularised, with the wife initially asserting that she did as much as the husband did. However, I found her comment that she bought him a beer from time to time quite telling. I am satisfied that the husband did more by way of physical work on the two properties. I am not able to determine if either party held an owner/builder’s licence to the exclusion of the other, or whether the licence was granted to them jointly.
I am satisfied that each party sought to maximise the other’s involvement with marijuana (in the case of the husband) and alcohol (in the case of the wife). I am satisfied that each of the parties did this in an effort to discredit the other and downplay the contribution that the other had made to the marriage, by asserting that there was some factor that would tell heavily against the other party. I am not satisfied that I should endeavour to ascertain any amount that either party has expended on drugs or alcohol. I am certainly unable to determine any actual amount involved as against either party, so as to establish waste in accordance with the decision of Kawali & Kawali[2] that might then be sought to be notionally added to the assets available for distribution by virtue of Omancini & Omancini[3].
[2] (1981) FLC 91-092
[3] (2005) FLC 93-218
I am satisfied that each party then sought to maximise his or her own efforts in relation to the marriage whilst diminishing the efforts of the other party. As I have already commented, neither party has been particularly forthcoming about their involvement in a current relationship. The wife acknowledges that she is in a committed relationship, but gives little information concerning her partner. In her statement of financial circumstances of 15 November 2012, she discloses her partner’s name as Mr I, asserts that she does not know his gross income, describes him as a “friend” and asserts he spends approximately $200 per week on animal feed, dog food and groceries. I am of the view that that explanation is inadequate, and I am further of the view that the wife has sought to minimise firstly, her involvement with her current partner, and secondly, the income of her current partner. Finally, I note that there was no affidavit filed by her partner.
The husband’s position is that he is not in a current relationship. He states that the person identified as Ms H is a border and pays him an amount of money, and assists him with household chores.
I am satisfied that neither party sought to be frank with the Court as to the extent of their involvement with these other persons.
The end result is that I am satisfied that neither of the parties was particularly truthful, because of their desire to damage the other party whilst maximising their own activities and contributions in relation to the marriage.
I am satisfied that the wife made a greater contribution as homemaker and parent. Apart from anything else, this must flow from the husband’s own assertion that he worked long hours away from the home. I am satisfied, however, that the husband did work long hours and contributed his salary and wages for the benefit of the family.
I turn then to the law to be applied.
The law to be applied
In property matters, the Court is required to take into account the following matters in accordance with the provisions of section 79(4) of the Family Law Act 1975 (Cth):-
a)The financial and non financial contributions made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation and improvement of any of the property to the parties to the marriage or either of them (subparagraphs (a) and (b)).
b)The contribution made by a party to the marriage to the welfare of the family including any contribution made in the capacity of homemaker or parent (subparagraph (c)).
c)The effect of any proposed orders upon the earning capacity of either party to the marriage (subparagraph (d)).
d)The matters referred to in s 75(2) of the Act so far as they are relevant (subparagraph (e)).
e)Any other order made under the Act affecting a party to a marriage or a child of the marriage (subparagraph (f)).
f)Any child support payable (subparagraph (g)).
Accordingly, in assessing the entitlement of each of the parties to property settlement, there is both a retrospective element relating to contributions of each of the parties and a prospective element relating to matters referred to in section 75(2).
According to the guidelines established through a series of leading decisions, the Court should determine the following matters on the evidence:-
a)Firstly, the Court must determine the assets, liabilities and financial resources of the parties to the marriage as at the date of the final hearing.
b)Secondly, the Court must consider all relevant contributions of each of the parties and, where possible, assign an entitlement, expressed in percentage terms of each of the parties as earlier assessed on account of contribution as is deemed necessary having regard to those s 75(2) factors.
c)Thirdly, the Court should then consider the prospective components of the claim of each of the parties arising as a result of the provisions of s 75(2). The Court should then identify what alterations, if any, should be made to the entitlement to each of the parties as earlier assessed on account of contribution as is deemed necessary having regard to those s75(2) factors.
d)Fourthly, having regard to the entitlement of each of the parties then arrived at, it is necessary to stand back and look at the result thus achieved to ensure that it is in all the circumstances fair and equitable to each of the parties.
Pool of assets
Non-superannuation assets
The major asset was the parties’ former matrimonial home. The parties, to their credit, have reached agreement as to the value of this item for inclusion in the pool, in the sum of $590,000. There are items in the husband’s possession which have been valued in a total amount of $12,550. Those items are as set out in the list that I will attach hereto as Appendix A. In addition, there are hand tools of the husband at $500 and a trailer at $50. The husband has motor bike accessories at $100 and a motor vehicle. There is some dispute as to the value to be attributed to this vehicle. However, I have determined that I should include the vehicle at $42,000.
The wife has in her possession a Credit Union account, which I include at $200, a motor vehicle at $25,000, a animal float, which I will include at $3,500, and household contents at $2,000.
The assets to be included in the pool are therefore as follows:-
Former matrimonial home $590,000
Husband’s items (see Appendix A) $12,550
Husband’s hand tools $500
Husband’s trailer $50
Husband’s motor bike accessories $100
Husband’s motor vehicle $42,000
Wife’s Credit Union account $200
Wife’s motor vehicle $25,000
Wife’s animal float $3,500
Wife’s household contents $2,000
Total $675,900
The husband has asserted that the wife’s business has a value which ought be taken into account in determining the pool of assets. The difficulty is that the husband has not put any material before me other than a general allegation and assertion that the wife has at least plant, stock and equipment in that business that must have a value. In the circumstances of this case, I am unable to attribute any value to the wife’s business. However, I propose to examine the wife’s business when I deal with the section 75(2) factors later in these reasons for Judgment.
Equally, the husband asserted that the wife owned a animal that had some significant value. Once again, there is no evidence before me other than a suggestion that the animal had been acquired for some $20,000 some time ago. I find that I am unable to attach any value in a mathematical sense to the animal.
Notwithstanding the husband’s statements in respect of the wife’s possessions and their value, I am unable to take further items into account so as to include them in the pool of assets. There are no matters that I can deal with so as to add any premature distributions back to the pool of assets and accordingly, the assets of the parties I find to be as set out above and in the sum of $675,900.
I turn then to the liabilities of the parties.
Financial Resources
The wife, as part of her case, sought to deal with the husband’s long service leave entitlements. The husband conceded that he had a significant amount of long service leave. However, his evidence was (and this was not challenged) that he could not cash in his long service leave, but had to take it as leave, which he intended to do. Accordingly, I am not prepared to find that this is a resource of the husband capable of being quantified and included. I am further satisfied it recognises the husband’s employment and his personal exertions.
Liabilities
The parties have agreed, again to their credit, that the mortgage to be taken into account and secured over the former matrimonial home is in an amount of $380,000.
In addition, there is the wife’s credit card to be taken into account. I am satisfied that on the best evidence available to me, that card was in an amount of approximately $2,000 at the time the parties separated. Accordingly, I propose to include that debt in the pool at that sum.
Further, there is a balance outstanding to the wife’s father for an advance made to the parties during their marriage. The amount alone was some $17,800. The balance is $2,000, which I will include in the pool at that latter sum.
Accordingly, the liabilities of the parties to be taken into account total $384,000.
When one takes the liabilities from the pool of assets, a figure of $291,900 is produced.
I turn then to the superannuation entitlements of the parties.
Superannuation assets
The parties have agreed that the husband’s superannuation entitlements are in the sum of $131,772. The parties are entitled, I am satisfied, to make the agreement they have as to value (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia[4]). The wife’s superannuation, as agreed, is in the sum of $137. Thus, the total of the parties’ superannuation entitlements is the sum of $131,909.
[4] (2003) FLC 93-143
I turn then to the contributions of the parties.
Contributions
The parties commenced cohabitation in 1988, married in 1995 and separated in 2011. There was an earlier separation between the parties. However, doing the best I can, the relationship and marriage of these parties subsisted for approximately 22 years. Two children were born to the marriage, one of whom is now 23 years of age and the other 17 years of age. The marriage, thus, must be considered a long marriage.
On the evidence before me, I am satisfied that neither party had assets or property of value when they commenced cohabitation.
I am satisfied that the husband throughout the marriage worked long hours and obtained a reasonable income, which he applied for the benefit of the family. I am satisfied that the wife worked from time to time, and in the latter part of the marriage, had her own business from which she applied monies earned. However, I am satisfied that the husband was by far the greater financial contributor to the household during the parties’ marriage.
I am satisfied that the parties renovated two properties during the course of their marriage. I am satisfied that the husband took the greater part in these endeavours. I am not able to be satisfied as to which of the parties actually held the owner/builder licence in respect of that job. To my mind, little turns upon it. Whilst I am satisfied that the wife was actively involved in the projects, I am satisfied that her work was significantly less than the husband in this respect.
Further, I am satisfied that the wife has remained in possession of the former matrimonial home since the parties separated. On the one hand, she has had the benefit of occupation, but there must be balanced against that the fact that she has made not insignificant payments in reducing the mortgage secured over the property, and thus has protected the parties’ major asset. I am satisfied that these two considerations are approximately equal.
I am satisfied that the husband played a role as homemaker and parent, certainly in the earlier parts of the marriage and the lives of their children. However, I am satisfied that the wife’s contribution in this respect, particularly since the parties separated, and in respect of the parties’ youngest child, outweigh those of the husband and must be seen to favour the wife to a considerable degree.
On the evidence before me, I am not able to be persuaded that any finding of contribution that I would otherwise arrive at should be diminished because of the wife’s allegations of the husband’s use of marijuana. I have dealt with the evidence of the parties in this regard. So there is no doubt, I do not propose to in any way endeavour to adjust the percentage by way of contribution that I would otherwise reach because of the allegations of the wife and, to a limited extent, the concessions of the husband.
Equally, I am not prepared to find that the wife’s contribution was in any way effected having regard to the amount of alcohol that the husband alleges that she consumed, and the money that he asserts was thereby expended. I take this into account in the husband’s favour.
I assume that each of the parties would seek that I find in some way that the monies used, so far as the husband is concerned on marijuana and so far as the wife is concerned on alcohol, should be regarded as amounts that were not available for the benefit of the family. I am not able, nor do I propose, to make any such finding.
However, as I have said, this was a long marriage. The parties clearly organised themselves as they considered appropriate and their marriage seems to have been one where the husband worked, and worked I am satisfied, long hours. The wife, for her part, was the principle homemaker and parent as well as conducting her own business in the latter part of their marriage.
So far as I am concerned, the parties decided for themselves the lifestyle they would adopt. I am not able to be satisfied, as I believe I would need to be before making any adjustment, that that which either of the parties did significantly affected the finances of the household causing either party or the children to be detrimentally affected to any significant extent.
Thus, I have come to the conclusion that the contributions of the parties to the non-superannuation pool of assets should be considered to be equal.
So far as the superannuation pool of assets is concerned, there is nothing before me that would lead me to find a differing proportion, and of course the husband concedes that the wife should have an entitlement to 50 per cent of his superannuation.
So far as the superannuation pool is concerned, I will find accordingly.
I turn to the section 75(2) factors to which I must have regard, to ascertain whether any adjustment in percentage terms is required.
Section 75(2) Factors
The first of those matters is the age and state of health of each of the parties (subparagraph (a)). The husband is 41 years of age and the wife is 40 years of age. There is no evidence before me that either party is other than in good health.
Subparagraph (b) relates to the income, property and financial resources of the parties, and their capacity for employment. Neither party is well off in this regard.
The wife discloses in her statement of financial circumstances filed 7 December 2012 a minimal income from her practice as a beautician. In addition, she receives a small benefit and child support in respect of the parties’ youngest son. She receives board from the parties’ eldest son and an amount of money, she asserts, she receives from the person who she identifies as her partner, Mr I. The wife told me that her business had a gross income of $48,000 to $50,000. I have seen no evidence to support this. I am satisfied that, in any event, the wife is able to use the vehicle of her business to make payments that benefit her in her private capacity as well as in her business capacity. I am satisfied that she is able to continue in her own practice and manage her affairs in this fashion.
The husband, in his statement of financial circumstances filed on 19 November 2012, discloses a total weekly income of $2,060.75. He pays tax, superannuation instalments, rent and child support in respect of the parties’ youngest child. He asserts his outgoings are an amount of $2,067.37. I am satisfied that he has prepared his financial statement so as to ensure that there is no apparent excess of income over expenditure. I am satisfied, notwithstanding what he said about lack of overtime and potential redundancy, that he is in a position where he earns a reasonable income.
As to subparagraph (c), the care of a child of the marriage, the wife continues to have care of the parties’ youngest child, who was born in 1996 and is 17 years of age. The requirement of the parties to support the child, save and except in exceptional circumstances, has thus something less than a year to run.
I am satisfied that the parties continue to have a commitment to support the child. The mother has the child as part of her household; the father is paying what, to my mind, is a not insignificant amount of child support in respect of his son.
So far as the standard of living of the parties is concerned (subparagraph (g)), I am satisfied that the parties have always lived frugally and each of them continues to do so.
I am of the view that the duration of the marriage has not, of itself, had any effect on the earning capacity of either party (subparagraph (k)).
Subparagraph (m) is relevant. This factor deals with the situation of either party cohabiting with another person, and in such a case, the financial circumstances relating to the cohabitation. As I have said earlier in these reasons for Judgment, I am not satisfied that the wife has been frank with me concerning the affairs and financial situation of her partner. I am satisfied, however, that on her own figures, her partner’s situation is one whereby he earns at least a modest income, which can be applied to assist the household consisting of himself, the mother and the two children, one of whom is an adult and pays board.
So far as the husband is concerned, I am not able to say that I am satisfied that he is not in some form of relationship with the person Ms H. However, there is unchallenged evidence that she is, at best, in receipt of a pension.
I take into account, under subparagraph (na), the fact that the husband is paying what I have already described as a not insignificant amount of child support in respect of the parties’ youngest child.
When balancing all these matters together, and not endeavouring to allocate individual percentages to them, as I believe I am required to do by virtue of the decision of Tomasetti & Tomasetti[5], I am satisfied that an adjustment is required in the wife’s favour, but only a modest adjustment. This adjustment is required to recognise the husband’s superior income earning position and the fact that the wife continues, albeit for a short period of time, to have the care of the parties’ youngest son. Again, I acknowledge that the father is paying child support in respect of that child.
[5] (2000) FLC 93-023, 26 Fam LR 114, [2000] FamCA 314
Weighing these matters together as best I can, I have come to the conclusion that the wife should receive five per cent more than the husband of the parties’ assets. This is achieved by allocating to the wife 52.5 per cent and to the husband 47.5 per cent of those assets.
Having regard to the decision of Clauson & Clauson[6], I am satisfied that this recognises, not only in percentage, but also in monetary terms, the additional percentage amount to be received by the wife.
[6] (1995) FLC 92-595
HOW IS THIS TO BE ACHIEVED
I am satisfied that the net amount available for distribution between these parties is $291,900. If the wife is to receive 52.5 per cent of the non-superannuation pool, she is to receive $153,247.50. The wife already has in her possession the following assets:-
Funds in credit union account $200
Her car $25,000
Animal float $3,500
Her household contents $2,000
Subtotal $30,700
She has the following liabilities:-
Visa card debt $2,000
Loan repayments $2,000
Subtotal $4,000
The wife’s net assets are together total an amount of $26,700.
When that figure is taken from the wife’s entitlement ($153,247.50), a figure of $126,547.50 is produced. This represents the amount the wife is to receive to adjust her entitlement.
If the wife were then to acquire the former matrimonial home, she must pay to the husband the net value of the home less her adjusted entitlement.
The figures then are these:-
Former matrimonial home $590,000
Mortgage $380,000
Net value $210,000
LessWife’s entitlement $126,547.50
Balance $83,452.50
The figure of $83,452.50 is the amount that the wife must then pay to the husband to acquire his interest in the former matrimonial home.
If that were done then the wife would retain the following:-
Former matrimonial home $590,000
Wife’s assets $30,700
Total $620,700
She would then have the following liabilities:-
Mortgage $380,000
Wife’s debts $4,000
Payment to the husband $83,452.50
Total $467,452.50
Thus, deducting $467,452.50 from the earlier sum of $620,700, a figure of $153,247.50 is produced, which is clearly the wife’s entitlement based on percentages.
If a sale has to occur then the wife will receive her adjusted entitlement expressed as a percentage of the net value of the home. Accordingly, the wife’s entitlement of the non-superannuation pool of assets ($126,547.50) calculated as a percentage of the net value of the home ($210,000) is 60.26 per cent, which I will round to 60.25 per cent.
From the husband’s point of view, if the wife acquires his interest in the matrimonial home, he has the following assets:-
His hand tools $500
Items of property per Annexure A $12,550
His trailer $50
His motorcycle accessories $100
His motor vehicle $42,000
Subtotal $55,200
Payment by the wife $83,452.50
Total $138,652.50
This figure represents 47.5 per cent of the net asset pool, the husband having no liabilities to be taken into account.
In the event of a sale, the husband will receive 39.75 per cent of the monies received upon completion of any sale.
It is appropriate that the wife be given six weeks from the date of these Orders to make payment to the husband. If she cannot do so, I would propose to order that the property be offered for sale for a period of time by private treaty, and should that not prove successful, I will order that the parties move to an auction sale.
So far as superannuation is concerned, I am satisfied that I should find the contributions of the parties to that fund to be approximately equal. To do so recognises the contributions made by the husband and the wife. It also reflects the agreement that they had reached in this regard. Unlike the non-superannuation pool of assets, I do not find anything requiring an adjustment of percentages arrived at by way of contribution. The total amount of the superannuation is $131,909. Fifty per cent of that amount is $65,954.50. The wife only has $137 in the way of superannuation entitlements. When deducted from the earlier figure, her entitlement from the husband’s superannuation assets is $65,817.50. Thus her entitlement to the current superannuation fund requires an adjustment in her favour of 49.9 per cent of the current total superannuation pool.
As I have said, the husband concedes there should be a splitting order for the wife to receive 50 per cent of his superannuation entitlement. The wife appears to accept that this is the appropriate percentage.
I have given considerable thought as to how this is to be achieved. I have considered that the husband is some years away from the age at which he will be able to access his superannuation entitlements (he is currently 41 years of age). If I were to award the wife a portion of the husband’s superannuation based on a sum certain, rather than a percentage, that figure would, of course, bear a far less percentage relationship to the amount the husband might receive when his entitlements can be accessed. It may, however, be that, for whatever reason, his entitlement may be less than at present, as has happened in the recent past with superannuation funds.
Further, I am of the view that if the payment to the wife is postponed for a period of time, it is proper that she should receive recognition for the fact that she has been made to wait to realise her entitlement.
Accordingly, I have come to the view that it is proper in all the circumstances of this case to use as a base for the calculation of the wife’s entitlements, when the husband accesses his entitlements, to use a percentage of 50 per cent.
I turn then to the fourth step that I must undertake, and that is to examine the justice and equity of the situation.
The wife still has in her possession items of the husband. I propose to order that the husband be permitted to go to the former matrimonial home within 7 days of these orders, by arrangement with the wife, to collect those items.
Just and Equitable
So far as the non-superannuation assets are concerned, I am satisfied that the such adjustments as I have made, properly reflect the situation both by way of past contribution and future need of each of the parties. Pursuant to my orders, the wife will have the opportunity to acquire the husband’s interest in the former matrimonial home, within a reasonable time, and upon payment of a sum of money. I am satisfied that in the circumstances of this case, a period of six weeks, from the date of these orders, for her to do so is appropriate. If that can be achieved then there will be a saving to each of the parties in respect of the costs of the sale of the property. However, if that cannot be achieved then the sale of the property provides the only means of providing funds to satisfy the requirements of each of the parties.
Thus, I am satisfied that with that adjustment in relation to the property and the parties each retaining that which they presently have, or are entitled to, the parties each receive a proper, just and equitable distribution of the available non-superannuation assets.
So far as superannuation is concerned, I am satisfied that an adjustment in the manner that I have dealt with in the preceding paragraphs is proper in all the circumstances and is both just and fair to each of the parties.
The orders that I then make are as set out at the commencement of these reasons for Judgment.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 17 May 2013.
Legal Associate:
Date: 17 May 2013
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Property Law
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