Makarios & Makarios

[2007] FamCA 652

FAMILY COURT OF AUSTRALIA

MAKARIOS & MAKARIOS [2007] FamCA 652

FAMILY LAW - PROPERTY SETTLEMENT – Contributions- significant periods of separation during marriage - Value of and wife’s interest in overseas property - Non-disclosure of property - Consideration of age, health and absence of future earning capacity of both parties

Family Law Act 1975 (Cth) s75(2), s79(4)(g)

Weir & Weir (1993) FLC 92-338
Black & Kellner (1992) FLC 92-287
Pierce & Pierce (1999) FLC 92-844

APPLICANT: MRS MAKARIOS

RESPONDENT: MR MAKARIOS

FILE NUMBER: ADF 1458 of 1990

DATE DELIVERED: 21 June 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: JR Forbes

HEARING DATE: 20-22 September 2006, 26 & 27 April 2007, 29 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Pyke QC

SOLICITOR FOR THE APPLICANT: S J McKinnon & Associates

COUNSEL FOR THE RESPONDENT: Mr P Scragg

SOLICITOR FOR THE RESPONDENT: Peter Scragg & Associates

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as MAKARIOS & MAKARIOS

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1458  of 1990

MRS MAKARIOS

Applicant

And

MR MAKARIOS

Respondent

REASONS FOR JUDGMENT

1. The wife by application filed 12^th September 2005 seeks orders for settlement of property.  The wife seeks that there be an equal division of all real and personal property.  The husband denies the claim.  The husband says that the wife should keep that property which she holds, be it real or personal property.  The property comprises a dwelling at P, furniture, two motor vehicles and savings.  There is a liability, being a personal loan, which the wife holds with G Finance.

Introduction

1. The husband alleged that the wife held property in the Philippines.  The wife denied the allegation.  The husband also alleged that of a marriage of some 21 years, there were a number of periods of separation totalling, he says, 15 years.  The wife agrees to the allegation of numerous separations but she says the period in all totalled 6½ years.  The wife says that there were further periods when she was spending time in the Philippines but these are periods that should not be counted because they occurred at a time when she and the husband were on amicable terms.  The third issue concerned an account which the husband held at the L Bank.  There was a question whether the funds held by the husband in the bank should be included in the property, the subject of orders as to settlement.

General Background

1. The wife was born in the Philippines.  She says she was born in September 1946 which is a date which is alleged by the husband.  The outline of husband’s counsel asserts that the wife’s date of birth was in November 1942.  I assume that this is simply an error.  The husband was born in Greece.  He was born in July 1927.  He came to Australia in 1959 when 32 years of age.  The parties married on 10^th May 1984.  The husband had been previously married and had adult children.  He was then 57 years of age.  The wife had not been previously married.  She was 38 years of age.  The parties married in the Philippines and travelled together to Australia shortly thereafter.  It was in the July of that year.

2. The child A was born in May 1985.

Contribution

1. Property introduced

   Wife:
   Personal effects
   Husband:
   House property, P

   Vacant land, R

2. The husband attributes values attaching to the property he had at the time of the marriage as set out in paragraphs 29.1 to 29.7 of his affidavit sworn on 19^th July 2006 as follows:

   “P property  E $265,000
   Allotment R property  E $6,500
   Motor vehicle  E $5,000
   Household furniture and effects  E $8,000
   Personal effects  E $1,500
   National Australia Bank Account (N Branch)  E $10,000

   National Australia Bank Account (M Branch)  E $5,000”

3. The husband does not provide information as to the basis upon which he estimates the value of the properties as alleged.  The husband further says that he estimates the value of the wife’s personal effects at the sum of $500.

4. The husband says that he took a mortgage at the time of the purchase of the property at P in 1967.  He says he made the property freehold within a few years.  It was to be a further 17 years before the parties married and so I understand the husband to be saying that the property was freehold at the time of marriage.  The Certificate of Title which the husband annexes to his Affidavit of Evidence-in-Chief shows that the mortgage remains registered on the title to the property.  The wife does not assert that there were any monies owing under the mortgage at the time of the marriage.

5. The husband says further that prior to the marriage (1975) he received a workman’s compensation payment of about $15,000.  He says he cannot recall the exact sum.  He says the monies were invested with the National Australia Bank and that he used some of the monies when travelling overseas at the time that he met the wife.  He says that the balance of these monies remained and were used to meet various day to day expenses and to assist in the cost of overseas travel which the wife undertook from time to time when she returned to the Philippines.  He says that the monies were also used to pay towards private school fees for their child, A, and as well to purchase a computer.  He says further that monies were spent by him in assisting to sponsor members of the wife’s extended family to move to Australia.

6. At the time of the marriage the husband was in receipt of a pension, a Disability Support Pension.  It seems that his pension income was his sole source of funds other than the monies which he says he held with the National Australia Bank.  He sold the vacant land at R in April 1999.  It sold for the sum of $6,500.  The husband says he gave to the wife the sum of $3,500 at her request.  He says he paid that sum to her by way of a final property settlement.  He says he paid the other $3,000 towards his daughter’s education fees and the purchase of a computer.

7. The wife says that she had income from a pension during the marriage.  The wife did not ever explain what her pension income comprised.  I take it that the wife received half of the pension entitlement that was payable to herself and the husband.  It would have been payable at the married rate and she would have also received family allowance for the child.  The husband denied that the wife contributed her pension income towards household costs and living costs when the parties were residing together.  In cross-examination the husband asserted that he didn’t need the wife’s pension income because he was able with his own pension to pay all living costs for the house and himself.  He then conceded, however, that upon separation he applied for the increased pension entitlement, it being payable at the single rate, and said that he did so because it would assist in paying the costs of the household.  The husband effectively was conceding that without the contribution by the wife from her pension, he could not maintain the home himself based solely on his own married rate pension income.  This was an example of an unintended concession by the husband of matters to do with the wife’s contribution.  Generally the husband was keen not to make any concession in respect of any contribution which the wife may have made.  More about those matters shortly.

Separation

1. As mentioned, there is a significant factual disagreement as to this question.  It is not difficult to narrate the evidence of each of the parties as to the issue but it is much more difficult to know where the truth lies.  The husband had difficulty with the language.  He gave his evidence through an interpreter.  His Affidavit-of-Evidence became controversial when he failed to confirm the matters attributable to him in the affidavit filed 8^th December 2005.  This was an affidavit where the jurat had represented that the document had already been read to the husband in the Greek language with the interpreter, his solicitor representing that he appeared to understand and approve the same.  The husband disclaimed knowledge of the matters in the affidavit and it had to be re-read to him whilst he was giving viva voce evidence.  Then there was the husband’s concession made very fairly, I believe, when he said “Unfortunately, my memory has faded over the years and I cannot remember exact dates, but I have estimated the periods of separation to amount to approximately 15 years in total.  I am also illiterate, cannot read or write either in the Greek or English language and I have not maintained a diary”.

2. The husband in his affidavit evidence alleges separations as follows:

   “Separated  Reconciled               Periods of separation (approx)

   1987  early 1987  3 months

   1987  (cannot recall exact date)               10 days

   1987 (cannot recall exact date)

   11 November 1988  2 years
            (wife’s first departure to
           Philippines with child)
            3 March 1989  mid 1989
            (wife returned from Philippines and

   resided for short period with de facto)

   25 January 1990                 March 1990  2 months

   7 May 1991  March 1993  2 years 4 months

   April 1993  September 1993                 5 months

   September 1993  5 months
            (26.11.93 wife’s departure to Philippines)
            23 February 1994
            (wife’s return from Philippines)

   March 1996

   27 December 1997            15 February 1998               3 years 6 months

   (wife’s departure to Philippines)        (wife’s return from Philippines)

   June 1998  9 months

   28 March 1999  2 May 1999  2 months

   (wife’s departure to Philippines)        (wife’s return from Philippines)

   June 1999

   2 April 2000  5 years
            (wife’s departure to Philippines)
            30 May 2000

   (wife’s return from Philippines but not returned to reside with husband)

   4 December 2004
            (wife’s departure to Philippines)
            13 February 2005

   (wife’s return from Philippines)

   April 2005  3 months

   4 July 2005  to date
            (final separation)

   Total periods of separation in excess of approx 15 years”

3. The wife says at paragraph 21 of her affidavit sworn on 7^th June 2006:

   “In summary my periods of separation from my husband were as follows:

   a)1991 – 3 months;

   b)1992 – 3 months;

   c)1993 – 4 months;

   d)1994 – 5 months;

   e)1998 to 2003 – 5 year period but contact maintained with my husband during this period and I continued to care for him and provide emotional and practicable support.”

4. The wife says that she finally separated from the husband in July 2005.  The wife says that the occasions when she had cause to travel to the Philippines should not be counted as comprising part of the time that she was separated from the husband.  She says that on each of the occasions when she separated from the husband that that did not occur in circumstances when she travelled to the Philippines.  She says on the occasions when she travelled to the Philippines she was visiting relatives, attending weddings or funerals or supporting sick relatives.  The evidence of travel provided by the husband supports a finding that the wife travelled to the Philippines in the following periods:

   11^th November 1988 to 3^rd March 1989
            26^th November 1993 to 23^rd February 1994
            12^th December 1997 to 15^th February 1998
            28^th March 1999 to 2^nd May 1999
            2^nd April 2000 to 30^th May 2000

   4^th December 2004 to 13^th February 2005

5. It can be seen at 7.4 of paragraph 7 of the husband’s affidavit evidence abovementioned, that he alleges that there was a 2 year period of separation commencing 11^th November 1988.  As to that allegation the wife says that yes, she did go to the Philippines at that time.  She said that she had the husband’s agreement and had his permission to use monies that he held in their joint account.  She said the husband said he “didn’t like it” but he agreed to it.  I understand this situation to have arisen in circumstances where the husband’s father had died in September/October 1988.  He had lived in the home of the parties for some years prior to his death.  The wife had nursed him from 1984 to 1987 including a period when in the last month or so he was bedridden.  She says she was tired from her efforts and wanting a vacation.  She says she left for the Philippines from the home at P and returned to P upon her return early in 1989.  She says it was March.  The husband says that she returned and lived in a de facto relationship.  The wife denies that allegation.  She says that with his concurrence she withdrew $2,000 from the joint account for herself and her daughter as well as another $1,000 in spending money.  It can be noted that even with what the husband alleges in 7.4 of his affidavit, that the period does not total 2 years as he alleges.

6. The wife says in her Affidavit of Evidence-in-Chief “The first time I left the husband was in 1991.”     It was brought to the wife’s attention that she filed an affidavit in this court sworn 22^nd May 1991 in which she said then that she had first separated from the husband on 25^th January 1990 and that she and the husband reconciled in March 1990.  She says that she then separated from the husband on 7^th May 1991.

7. The wife does not deny the husband’s assertion that she travelled to the Philippines on 6 occasions.  As mentioned, the wife refers to her source of funds to pay for the costs of travel in 1988.  Otherwise she says that she saved her money from the pension and used that money to provide for the cost of the travel.  Even allowing for savings on costs of accommodation, the wife staying with family whilst in the Philippines, there would have been costs of airfares, food and other incidental costs associated with the overseas travel.  To make savings from pension income must have affected the wife’s capacity to contribute to the other costs of the household.  The wife says that she had income from part time work.  This work was between July 1997 and March 2002.  In this period the wife, according to the husband, made 4 trips to the Philippines.  Even then the wife says that with her income from work, she sought to set aside monies for gifts for family and friends at Christmas for both friends and relatives in Australia and the Philippines.

8. The wife says that during periods of cohabitation she always contributed to the council rates, electricity, water rates and emergency levy as well as all expenses associated with the day to day running of the household.  She says she sometimes paid all of the monies due and owing under an account and never contributed less than 50 per cent.  The wife says that a further source of funds necessary to make the journeys were borrowings from her family.  The husband and wife had sponsored the wife’s sister to emigrate to Australia in 1986 and was followed to Australia by her fiancé who came 3 months later.  They had lived at the home of the husband and wife for several months before obtaining separate accommodation.  The husband says that they did so rent free and that he and the wife contributed to the day to day expenses whilst they resided at their premises.  During the course of the marriage on occasions the wife assisted the sister with work in the kitchen of a restaurant which was run by her sister.  In consideration of this work which the wife undertook from time to time, she received extra food from the sister.  Notwithstanding what the husband alleges the wife says that any contribution to the costs of the sister whilst she was residing with the parties, came from the wife’s pension.  The wife confirms that it was not expected that they would impose any cost upon the sister staying with them.  The wife says “… because in my culture it is considered unfair to expect a relative to pay rent”.

9. The wife did not call her sister, Ms RP.  Evidence from the sister would have been of assistance to confirm:

   i)the financial support received from the husband and wife or either of them upon their arrival in Australia;

   ii)the borrowing of monies by the wife;

   iii)the separation of the parties, although this may have not amounted to much, I admit, because of the passage of time and the difficulty, notorious really, of another person’s perceptions of what is happening in a marriage.

10. The sister’s evidence would have also been helpful in respect of the wife’s entitlement to property in the Philippines but that is a matter which will be dealt with shortly.  In 1987 the wife’s mother came to Australia and remained with the parties for 12 months.  She then resided at the premises of her sister, Ms RP.

11. As to contributions as a home-maker, the wife says that she cooked and cleaned for the husband and the household chores were her responsibility.  She says she was the primary caregiver for the child A.  She says that A attended M Primary School and N High School.  She says she paid at least half of the child’s school fees and further says that she paid the costs of a computer for her. 

12. The wife says that she assisted the husband with the clearing of the vacant block at R.  It seems that it had to be cleared at least once a year.  She says she worked very hard clearing the land.  She says the husband sold off the land when she left him in 1998 and with the proceeds he purchased the Ford motor vehicle.

13. The parties finally separated on 4^th July 2005.

Property at separation

1. The husband itemises the property at separation as follows:

   P property  E $265,000.00

   1992 Ford Sedan (husband’s possession)  E $3,000.00
            1991 Hyundai sedan VED-667 (wife’s possession)                $6,500.00
            Household furniture and effects (husband’s possession)     E $1,500.00
            Household furniture and effects (wife’s possession)             E $5,000.00
            Personal effects  E $1,500.00
            National Australia Bank A/c (N Branch) (husband’s)               E $450.00
            Commonwealth Bank (wife’s)  $1,500.00
            Bank in Philippines (wife’s)  $
            two houses at B Philippines (wife’s)  $NK
            one house in Manilla, Philippines  $NK
            two houses in B, Philippines  $NK
            Rice farm block of land in Philippines  $NK
            a coconut block of land in Philippines  $NK
            a fishing farm block of land in Philippines                $NK
            a cattle farm block of land in Philippines  $NK

   Total assets  $284,450.00

   These particulars were provided by the husband in his Affidavit of Evidence-in-Chief sworn 7^th December 2005.

2. The wife in her Affidavit of Evidence-in-Chief sworn 7^th June 2006:

   (a)denied that she owned land in the Philippines;

   (b)alleged that the husband held the sum of $27,675.95 in an account with the L Bank at the date of separation.  She annexed a copy statement of the account.

3. The wife does hold interests in real property in the Philippines.  She now concedes that that is so.  That was not always her position.  In paragraph 49 of the husband’s affidavit he said: 

   “Following the applicant wife’s mother’s death on or about November 1993 the wife inherited various real estate situated in the Philippines.  These included two houses at [B], one house in Manilla, a Rice farm block of land, a coconut block of land, a fishing farm block of land and a cattle farm block of land.  I have visited the Philippines and have resided in these home properties following my marriage to the applicant wife.”

4. The wife answered that assertion in paragraph 70 of her Affidavit of Evidence-in-Chief sworn 24^th March 2006 when she said:

   “As to paragraph 49 of the said affidavit, I deny the facts alleged therein.  I did not inherit the estate as alleged.  The property remains in my mother’s name and is resided in and cared for and managed by other family members.  I could not access these assets even if I wanted to because they are not in my name.”

5. In the wife’s further Affidavit of Evidence-in-Chief sworn 7^th June 2006, she makes further mention as to the question of her ownership of land in the Philippines and said as follows:

   “I do not own any land in the Philippines.  Annexed hereto and marked with the letter “B” is a copy of a Certification from the Office of the Municipal Assessor in the Province of [M] confirming that I have no real property in the relevant Municipality.”

1. The annexure B was a document from the office of the Municipal Assessor of the Province of M of the Republic of the Philippines certifying that the wife “has no real property declared in this municipality”.  The certificate was issued on 27^th April 2006 at M, Philippines and purports to be signed by the Municipal Assessor.

2. In cross-examination the wife agreed that her mother had died intestate in 1993.  The wife admitted that her mother at death had owned a house at M, a rice farm and a coconut block.  The wife said she was one of 7 siblings.  The wife said she did not at that time know that she had a right to an interest in the property.  She said that the house at M was not rented, that it was empty, that it was the place where she stayed when travelling to the Philippines.  She said it was 2-storey premises.  This was the wife’s evidence at the conclusion of the cross-examination on 20^th September 2006.  The next morning, senior counsel for the wife informed the court that she had spoken with the wife’s sister and had viewed a document which by its terms seemed to relate to property in the Philippines and that this property was held in the name of the wife’s mother.  Senior counsel was unsure whether it was document of recent origin or a document that related to 1997.  Senior counsel indicated that the document described 2 parcels of land in the Philippines, being a coconut farm as well as a house property which indicated that the house property was in the wife’s father name.  Senior counsel indicated that as to an alleged fish farm, her advice was that it was leased and further as to the rice farm, that there was uncertainty as to the position of the rice farm but it was possible that it was still in the name of the grandparents of the wife, both of whom were deceased.  No objection was taken to senior counsel indicating these matters to the court.  Presumably the accommodation was given to enable these matters to be asserted as it represented a concession as against interest.  In further cross-examination of the wife, she conceded the possibility that she was aware of these assets and that she had an interest in them.  She conceded that she had failed to disclose that she held an interest in the property.  She says she did not know how much property there was.  In re-examination the wife indicated that her father had died in the 1970’s.  She said that he had also died intestate.  This evidence was given in reference to the house property.  I think we are being asked to assume that this house property is one and the same as the house property held by the wife’s late mother when she died in 1993.

3. On 21^st September 2006 the matter was then otherwise adjourned, the wife indicating that she was seeking to call further evidence as to matters to do with the law in the Philippines and her rights by way of intestacy as well as to search for property in the Philippines and to get evidence of value.  She said that the enquiry would also relate to land possibly held by the grandparents.  On 13^th November 2006 she swore a further affidavit.  There are 3 annexures to the affidavit as follows:

   (A)Declaration of Real Property

   This is a document under the hand of a Municipal Assessor.  It records ‘Assessor’s Findings: Coconut land Area .4450, Unit Value 21,000, Market Value 9,345.  Plants & Trees: Coconut Unit Value 140, Market Value 3,920’.  There is later in the document an assessment as to these 2 pieces of property with a total market value of 12,999.70 pesos, assessed value 5,200 pesos.  There is a further assessment as to rice land unirrigated (lowland):  .8252 in area, unit value 27,700, market value 22,858.04.  There is a further notation as to market value.  The copy is indistinct but it seems to show again market value 20,800.82 pesos with an assessed value of 8,320 pesos.  A third certificate, land commercial, market value 380,900, unit value indistinct.  A further certificate under the hand of the Municipal Assessor totals 380,900 pesos.

   (B)is an annexure which purports to be an affidavit of the wife’s brother, Mr LP and her sister Ms YP who say:

   (1)   that they are two of the surviving heirs of [Mr LP] Snr who died intestate in February 1976 and [Ms AP] who died intestate in November 1993;

   (2)   that the heirs are [Mr OP], [Mr CP], [Mr DP], [Ms RP] and [the wife].

   The affidavit then goes on to say:

   (3)   “That notwithstanding the death of our parents and our three brothers mentioned above, no partition were made, judicial or extra-judicial of the properties acquired by our parents during their lifetime and no last will and testament regarding the disposition on the property left by our parents.”

   The parties agree that the brothers [Mr OP], [Mr CP] and [Mr DP] are deceased.  The surviving siblings are [Mr LP], [Ms YP], [Ms RP] and the wife.

   (C)is an annexure to the affidavit and is what we would understand to be a Deed of Family Settlement.  As to this document the wife says:

   “My siblings and I have now formalised the settlement of my parents’ estate through a solicitor in the Philippines.  Annexed hereto and marked with the letter “C” is the “Extra Judicial Settlement of Estate”.

   The document itself purports to relate to coconut land, rice land and a parcel of commercial land at M, Philippines.  The document records that the coconut farm has an assessed of value of 5,200 pesos; the rice land an assessed value of 8,320 pesos and the commercial land has an assessed value of 150,450 pesos.  In each instance it refers to “Philippine currency for year 2004”.  As to the document itself it purports to be an agreement signed by the surviving siblings whereby they agree to divide the real property in equal shares, namely 7 equal shares, being distributed to each of the 4 surviving children and the 3 deceased children and compulsory heirs, being their living children.  The agreement is dated 13^th November 2006.

4. The husband objects to annexure A and annexure C of the affidavit. As to annexure C he objects to it to the extent to which it has evidence of the value of the property. Otherwise he accepted the other matters in annexure C could be admitted into evidence. Husband’s counsel objected to annexure A on the basis that it was evidence of market value. On reflection I take the view that I can accept annexure A as evidence of an assessed value of the property undertaken for unknown purposes by the municipality in which the property is situated. The document refers to market value but I have no knowledge that it represents market value as understood for the purposes of determining value of property in Australia, and in particular under the Family Law Act.

5. When the matter resumed on 26^th April 2007 the wife sought to tender a further affidavit.  Husband’s counsel had instructions to obtain an independent valuation of the property in the Philippines.  That valuation was got.  It only related to the property: “land commercial” being a 2-storey shop premises located at T, M Province.  The valuers, C International, assessed market value.  Their valuation is to hand and is dated May 2007.  It was tendered by consent.  It is a very helpful document although it fails to shed any light on the value of the other properties.  The commercial shop property was valued at 586,000 pesos.  The agreed conversation rate is 36 pesos to $1.00 Australian.  In Australian dollars it has a value of $16,277.  With the rice field and the coconut block, the evidence of value is not so clear.  However, the amount in question:

   Coconut land  9,345   pesos
                     Coconut land plants & trees    3,920   pesos
                     Rice land  20,800   pesos
     34,065   pesos

   when divided by 36 pesos yields $946.00 Australian and then allowance needs to be made for the wife’s interest being a seventh share only.

L bank account

1. The parties separated finally on 4^th July 2005.  The husband was served personally with the wife’s Form 1 Application seeking orders for settlement of property on 18^th September 2005.  On 4^th October 2005 the husband obtained early redemption of the funds held by way of term deposit in the bank receiving a payment of $29,460.31.  As mentioned, the husband failed to disclose this bank account in his documents.  He said the monies comprised the proceeds of the 2 compensation claims; 1975 and 1996.  Reference has been made to the 1975 compensation.  As to the 1996 claim, the husband says he received the sum of $13,000.00.  In his affidavit evidence, paragraph 28, the husband alleges he used the moneys received towards “… physiotherapy and other medical expenses and towards my day to day household expenses and, in addition, to compensate for monies given to the applicant wife associated with her extensive travel to the Philippines and interstate.  I also paid for all educational costs with respect to my daughter [A] without any financial contribution from the applicant wife”.

2. Under cross-examination the husband said that the L Bank account balance was made up from the 2 compensation payments.  This is a significant contradiction in the husband’s evidence.  A further query arose when the husband explained that he had told his solicitor of the funds but that she had failed to include it in his documents.  He did not call the solicitor.  I infer that he perceived no good would have come from him doing so.  Then he said that the balance in the account was spent in repaying debts.  No evidence was produced to support that allegation.

3. I believe I should include the husband’s bank account proceeds with the L Bank.  The very fact that the husband has chosen not to disclose this item of property would be consistent with the principles in Weir & Weir (1993) FLC 92-338 to include it.

Philippines Property

1. There are issues as to the circumstances in which evidence as to the wife’s interest in the property in the Philippines comes before the court.  However, on the question of whether the property itself should be considered to be property of the marriage, other factors arise.  To this extent it should be noted that it was not ever property, the subject of contribution by the husband.  As well as that, it is property which is yet to formally devolve to the wife.  There is an agreement that it should do so and for these purposes it is acknowledged, seemingly, that the wife has a seventh interest in the property.  We do not know the position in the Philippines as to the wife’s ability to partition the property.  It may be that her siblings would wish to purchase her interest but otherwise the wife may have difficulty in effecting the sale of the land.  That would be her position if the law in the Philippines were the same as the law under our law of property.  I am satisfied that the property and the wife’s interest in it should be brought to account as a resource of the wife under Section 75(2).

Thoughts as to contribution

1. The parties married in 1984.  They agree there were a number of separations.  The wife says the separations represented a total period of 6 ½ years although she does not include in that estimate the different periods of time that she spent with her family in the Philippines.  She does not do so upon the basis that those separations had the husband’s agreement and implicit in that belief is the assertion that there was an ongoing marital relationship on those occasions.  There is no evidence from the wife of what constituted her contribution to the welfare of the family or otherwise her financial contributions direct or indirect whilst she lived in the Philippines.  Her care of A could be seen to be an aspect of contribution, but otherwise her contribution in respect of the home or the marriage is not alleged.  On the question of contribution by the wife whilst she was overseas, there is then a contrast to what might ordinarily have been her contribution when she was resident at P property.

2. A similar comment could be made as to the other periods of separation.  Again the wife had the care of the child and that occurred in circumstances where she says she did not receive child support from the husband.  On the other hand, the husband was on a pension when she married him.  He had some savings which came from the 1975 compensation claim as well as the proceeds of sale of the R land.  As and from 1996 he also had the proceeds of the further compensation claim.  The detail as to that money is not to hand.  The husband has not explained why he has failed to furnish the evidence of his accounts.  As can be seen, he alleged a National Australia Bank account at separation.  He fails to produce the account details, nevertheless he provides information as to the L account.  In the context of monies available to the parties, the savings accounts represented a not inconsiderable resource.  The husband fails to explain why these monies could not have been put towards child support.  I do not overlook his allegation that he made payments of child support.  Again, the information is not to hand.  It would have been relevant for the purposes of Section 79(4)(g) of the Act.  It would also have been relevant when attempting to assess the level of the wife’s contributions because of her care of the infant child during periods of separation.

3. The husband’s assertion that periods of separation totalled 15 years seems to me to be overstated.  Mention is made of his failure to explain the allegation in paragraph 16 aforementioned of the wife’s alleged absence in the period November 1988 until March 1989 as being a period which he says totals 2 years.  If, as I believe, there has been an overstatement by the husband as to the total period, and if the wife has failed to include time spent in the Philippines in her calculations, then the differences in the respective positions are not so great.  Yet the periods of separation in their totality remains a significant period, and a factor only offset by the wife’s contribution in respect of the child.  As mentioned, the financial implications of that care are not to hand.

4. The other matter that needs to be mentioned is the creditworthiness of the parties.  The husband refers to a poor memory but in the totality of his evidence, his memory seemed much better on the matters which supported his position or which might negate the wife’s claim:  not so good at all as to those matters requiring a concession on his part and which might support the wife’s position.  He completely failed to disclose the L Bank account in his affidavit evidence when providing particulars of the property of the marriage and particulars of the property retained by him following separation.  It was the wife who provided the information as to this asset.  Non disclosure by a party as to property brings with it the principles referred to in Black & Kellner (1992) FLC 92-287and Weir & Weir (supra).

5. Similarly the wife’s evidence on the question of her interest in property coming from her late mother’s estate was unimpressive.  She failed to take any steps prior to the trial to ascertain the property and her interest in it.  The speed with which she was then able to both ascertain the property and effect a Deed of Family Settlement in just a matter of some 3 months or thereabouts, when her mother had died some 13 years beforehand, remained unexplained.  So too her failure to call her sister, Ms RP, who lives nearby to give evidence of the situation as to the estate and its property.  All in all, I was not able to discern a particular difference in the creditworthiness of either party, not such as to persuade me that I should prefer either one of them more than the other on this question of the actual period of cohabitation.  In the end I am left with an inability to be precise.  The period was more than the 6 years which the wife would claim and less than the 15 years which the husband would claim.

6. The other matter which requires some consideration is that it appears there were periods of time when the wife would attend at the husband’s premises and undertake housework and prepare meals even though she was living at separate premises.  That would be a matter which would comprise a component in the contributions of the wife.

7. Then there was evidence of the child A having lived with the husband at the home during part of the long separation period, 1998 until 2003.  The child would have turned 13 years of age in 1998.  At what level that situation would have called for an adjustment to the husband being a home-maker as a parent is unclear.  As with the evidence about the separations, there is a vagueness to what is being asserted by each of the parties; in circumstances where each of them has overstated their respective positions.  Then there are the questions as to the reliability of the evidence which come from the common position of the parties as to poor health, lack of memory and difficulty with the language.  It was a complex marital relationship with a significant history of separations and reconciliations.

8. I bring in the property of the marriage as follows:-

   P property (Husband)  $360,000
   L account (Husband)  $29,460
     $389,460

   The wife seeks to include a liability, a personal loan with G Finance with $5,545 owing.  This was money borrowed by the wife to undertake travel to the Philippines.  It seems to be not referrable to the marriage.  I would exclude it:  the wife does not argue with that course of action.

Final thoughts as to contribution

1. In paragraph 4 the husband alleges property brought by him to the marriage.  The figures given as to value comprise an estimation by the husband.  I would be reluctant to accept this evidence.  It is not supported by evidence of the Valuer General, much as is found on rates notices, nor is there any attempt to produce other evidence such as a bank account record.  In a matter such as this where there are significant reservations as to the creditworthiness of each of the parties, I would be unwilling to act upon the personal estimates of one of the parties.  The other aspect to this evidence of the husband is that it relates to a distant point in time, some 21 years.  The bold assertion of value in these circumstances and without other explanation is not reliable evidence.

2. I proceed upon the basis that the husband came to the marriage with a freehold house at P, a freehold interest in vacant land at R, furniture, a motor vehicle and savings.  The wife had very little; just some personal effects on all accounts.  The significance of this situation at that time is that the property introduced by the husband at that point in time at least is attributable to his sole contribution.

3. There is then on either account a history of numerous separations.  The wife concedes that she travelled to the Philippines on numerous occasions.  The costs of these visits must have represented a drain upon the resources of the parties.  The wife used borrowings or called upon family finances, or simply used money saved, all of which represented monies that could have otherwise been available to the family.  There were other occasions when the wife was not living in the Philippines and the parties were otherwise separated.  The wife maintains an ongoing contribution in this period by her care of the child A, but it has been noted that she concedes a period from when the child was 13 years of age that there were occasions when the child lived at the home of the husband.  She says child support was never paid.  The husband says it was.  From 1998 a child support liability was set at a minimum rate.  I do not know that that was a situation which applied in the history of this marriage.  The wife failed to produce any documentary evidence which would have shed some light on this subject.  The husband’s income in the period was pension income.  The level of his liability to pay child support, if any, was not established.

4. The other broad feature to the matter is that the parties’ circumstances have to be examined against a history of pension income throughout the marriage.  The wife did have some work in the period 1998 until 2003 although that was at a time when the parties were separated.  Senior counsel for the wife argues that bringing to account matters as to contribution as well as Section 75(2), the assets of the parties should be divided equally.  Husband’s counsel says that the wife is not entitled to a property settlement.  Counsel then distanced himself from that position and made the observation that he thought the wife could expect contribution to be assessed in the range of 30 – 40%.

1. The property pool totals $389,460.  10% of that sum is $38,946.  I would assess the range of entitlement to be between 35% and 45%.  The lower end would reflect the numerous periods when the parties lived apart and there was little by way of apparent contributions in these periods.  The higher end of the range would recognise the separations as being simply part of a marital relationship which enured for 21 years, that is a relationship of some significant length where there was an ebb and flow of contribution by each of the parties depending upon whether they were living together or not living together.  In the generality of the matter, in each instance the weight of contributions has to be made as against the property introduced by the husband.  In Pierce & Pierce (1999) FLC 92-844 the Full Court said at pg 85,881:-

   “28.  In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”

2. I believe contribution should be assessed at 40:60 as to the wife and husband.  That is a difference of 20% and in monetary terms it represents the sum of $77,892.  In monetary terms, the 40% assessment of contribution as to the wife represents the sum of $155,784 and the husband as to his 60% the sum of $233,676.

Section 75(2)

1. The wife is presently 60 years of age.  She has health issues.  She is in receipt of a Disability Support Pension and has been since December 2005.  She suffers:-

   ·non insulin dependent diabetes

   ·cardiac disease including cardiomyopathy (weak heart muscle) requiring a pacemaker and a defibrillator

   The further hearing of the trial set for 20^th February 2007 had to be adjourned because of the wife’s ill health.  The Certificate of Sickness reported vomiting and diarrhoea.

   The husband is presently 79 years of age.  He will be 80 years of age in July next.  He also has serious health issues.  He has an ischemic heart disease, having had a heart valve replacement; he suffers from asthma, is diabetic and has hypertension.  His doctor, Dr C, who is the treating doctor for both parties and who has provided medical reports for each of them, says that the husband cannot walk a distance greater than 100 metres because of angina and shortness of breath.  He says the husband’s condition may deteriorate.  He says it will not improve.

2. The wife last worked in 2003.  That was casual work at a retail store.  I do not believe it is likely that the wife will resume work.  She has serious health issues and her age of itself is likely to create difficulty for her.  The husband has not worked for a number of years.  He has health issues.  There would not be an expectation at his age that he could obtain work.

3. The husband and wife each live on their own.  The child A, now 22 years, has her own accommodation.

4. The financial circumstances of the parties comprises:

   Wife:
   Property

   Contribution based property entitlement  $155,784
            Savings  $26.00

   Liabilities

   G Finance  $5,545

Financial Resources

The wife has a 1/7^th interest in the property in the Philippines.  The C International valuation is reliable evidence of value.  The value placed on that property was 586,000 pesos which converts to $16,277 Australian.  The wife’s 1/7^th interest then represents an amount of $2,325.  Whether the interest can be paid out would depend upon the property laws in the Philippines and the positions taken by the other family members.  Then there are the other 2 properties where the evidence of value is not reliable.  No explanation was given as to why C would not value the other 2 parcels of land.  The costs may not have justified the exercise because of the matters in paragraph 34 hereof.  It remains unclear how and when the interest can be paid out, even should the wife desire that as an outcome.  It should be remembered that the house property provided the wife with accommodation previously when she has travelled to the Philippines and she may wish that to continue.

Income

Disability Support Pension               $253   per week

Expenditure  $321   per week

Husband:

Property

Contribution based property entitlement  $233,676
         Savings  Nil
         Ford (1992)  E$3,000

Household contents  $1,500

Liabilities

Loans private  $10,000

Income
         Disability Support Pension         $515.00   per fortnight
  $257.50   per week

Final thoughts as to Section 75(2)

1. The husband because of the contribution based property entitlement will receive half as much again by way of property apportionment.  That situation arises from his initial contribution of property.  Whether the husband will have the finances to buy out the wife’s interest is another question.  There is no evidence of his ability to do so, but he did not want to lose the opportunity to pay out the wife if sufficient funds could be found.  Otherwise the home will be sold.  He would wish to avoid that situation although with the health issues with which he is beset and his age, nursing home care in the near future is not out of the question even if he were to keep the home.  The wife also has significant health issues.  Her working life would seem to be at an end.  These are all circumstances which persuade me that I should make no adjustment in favour of either party because of the matters arising under Section 75(2).

2. The husband must pay to the wife the sum of $155,784 within forty two [42] days.  Failing which the home should be sold and the proceeds of sale divided as to 43.27% to the wife, and the balance to the husband.  I can stand the matter over for the preparation of draft minutes of order.  Alternatively, I would propose orders being made in the following terms:

   That in full and final settlement of all claims that either party may have against the other for property settlement

   1.That the husband do pay to the wife the sum of ONE HUNDRED AND FIFTY FIVE THOUSAND SEVEN HUNDRED AND EIGHTY FOUR DOLLARS [$155,784] within forty two [42] days of the date hereof.

   2.Contemporaneously with the said payment, the wife do deliver up to the husband a properly registrable Memorandum of Withdrawal of Caveat in respect of Caveat Number … on the property at P in the State of South Australia being all of the land in Certificate of Title Register Book Volume … Folio … .

   3.That should the husband default in the payment of the sum referred to in paragraph 1 hereof, then and in that case the said property at P be sold out of court by public auction or by public treaty on such terms as the parties may agree and from the net proceeds of sale after the payment of selling costs and agent’s commission, the balance to be apportioned as to 43.27% to the wife and the balance to the husband.

   4.That all other real and personal property that is not otherwise specifically dealt with by these orders shall be the property of the party in whose possession or control such property stands as at the date of these orders.

   5.Pursuant to section 106A of the Family Law Act 1975 in the event either party refuses or neglects to comply with the provisions of these orders the Registrar of the Family Court of Australia is hereby appointed to execute all deeds and documents in the name of the husband and/or the wife and do all such acts and things necessary to give validity and operation to the said orders within fourteen [14] days of the reasonable request to do so being sent to the last known residential address of the party or solicitor acting for the party.

I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Forbes.

Associate: 

Date:  21 June 2007