Meekins and Meekins

[2011] FamCA 1072

FAMILY COURT OF AUSTRALIA

MEEKINS & MEEKINS [2011] FamCA 1072

FAMILY LAW – PROPERTY - Settlement in relation to marriage

Family Law Act 1975 (Cth) - s 75(2), s 79, s 79(1), s 79(2), s 79(4)

Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Ferraro and Ferraro (1993) FLC 92-335
HDM & MM and SJM [2006] FamCA 47
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Kowaliw and Kowaliw (1981) FLC 91-092
Lee Steere and Lee Steere (1985) FLC 91-626
Townsend and Townsend (1995) FLC 92-569

APPLICANT: Ms Meekins

RESPONDENT: Mr Meekins

FILE NUMBER: SYC 7431 of 2009

DATE DELIVERED: 11 May 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 11 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Redmond Hale Simpson

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: Smythe Wozniak

Orders

1. That orders are made in accordance with the hand-written Minute of Order filed in Court today signed by Justice Johnston and placed with the Court papers as set out hereunder:-

1.That within twenty-one (21) days the husband shall transfer to the wife all of his right title and interest in the property situated at and known as B Street, Suburb C, New South Wales being the whole of the land comprised in folio identifier … (“the home”).

2.That the wife do all acts and things necessary to transfer to the husband:

(a)       349 AMP shares;

(b)      AMP Life Policy.

3.That simultaneously with the transfer referred to in order 1 the wife pay to the husband or as he may direct the sum of $147,093.

4.That the husband transfer to the wife all of his right title and interest in any joint bank accounts.

5.That should the husband receive any funds from his employment with D Pty Ltd and/or E Super after the date of this order he pay to the wife 45 per cent of any monies so received within seven (7) days.

6.Except as otherwise provided in this order, the husband and wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.

7.That the wife forthwith do all things and sign all documents necessary to remove the caveat against title to the Suburb F property, at her cost.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meekins & Meekins 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: SYC 7431 of 2009

Ms Meekins

Applicant

And

Mr Meekins

Respondent

REASONS FOR JUDGMENT

Introduction and Applications

1. These are final property proceedings.  The parties in the proceedings are Ms Meekins and Mr Meekins.  For convenience I shall refer to them as “the wife” and “the husband” respectively. 

2. The wife seeks orders to the following effect: 

   ·That within 21 days, the husband transfer to her his interest in the property at B Street, Suburb C, New South Wales;

   ·That she transfer to the husband the AMP shares and the AMP life insurance policy;

   ·That simultaneously with those transfers, the wife pay to the husband the sum of $56 956;

   ·That the husband transfer to her his interest in any joint bank accounts;

   ·That should the husband receive any funds from his employment with D Pty Ltd after these orders, he pay to the wife half of any sum or any moneys so received within seven days;

   ·That otherwise, the parties be declared to be the sole owners of all other items of property in their respective possession and/or control; and

   ·A machinery order to the effect that the wife forthwith remove the caveat against the title to the property at Suburb F.

3. On the other hand, the husband seeks orders to the following effect:

   ·That the former matrimonial home at B Street, Suburb C be sold;

   ·That after payment of the costs of the sale, including legal costs on the sale, the net proceeds of sale be distributed equally between the parties;

   ·That the wife pay him the sum of $165 000 within 48 hours of these orders; and

   ·Certain other orders.

Background

1. The brief background matters are as follows.  The wife was born in 1944 and she is therefore 67 years of age.  The husband was born in 1946 and he is therefore 65 years of age.  

2. The parties married in 1972, and they finally separated on 12 February 2006.  Their divorce became final on 30 April 2010. 

3. There are two children of the marriage, both adults.  They are Mr G, who was born in 1974, and Mr H, who was born in 1979.  They are 36 and 32 years of age respectively.  Both left home in year 2001. 

4. At the date of marriage, the wife was working as a personal assistant, and the husband was working as a tradesman. 

5. At the time of marriage, the wife’s assets consisted of a motor vehicle and savings, she says, of $4500.  Having heard her evidence about this and seen the material tendered, I accept her evidence of that.  The husband’s assets consisted of a motor vehicle, nominal cash, tools and personal effects.

6. The wife said that the husband had a loan in respect of his motor vehicle of approximately $5000.  Again, I was impressed by the wife’s recollection of most financial details.  I accept that evidence. 

7. Following their marriage, the parties rented a unit at I Street, Suburb J.  They also opened a joint bank account with the Commonwealth Bank. 

8. In February 1973, they purchased, as joint tenants, a property at K Street, Suburb L for $21 750 plus legal fees in the sum $260.  The wife said she contributed part of her savings for the 10 per cent deposit.  I accept that evidence.  The balance of $17 500 was borrowed from the NSW Permanent Building Society. 

9. The parties made additional payments on the mortgage over the Suburb L property and were able to discharge the loan in March 1980. 

10. The wife held a joint account with her brother, who sadly died in March 1980.  Following his death, the wife applied $8000 from the account held with her brother towards the parties’ mortgage. 

11. In 1973, the parties purchased a business at M Street, Suburb N.  This was sold in June 1974 at a loss.  The wife said that changes had been made to roads surrounding the business, which resulted in customers not being able to access easily and therefore a loss of business was experienced.

12. It is common ground that the wife ceased working in June 1974, shortly before the birth of the parties’ first child. 

13. On 18 October 1983, there was a transfer of a property which had been owned by the husband’s mother at O Street, Suburb F, into the husband’s name.  The husband’s mother continued to live in that property until her death in 1997.  The parties paid the stamp duty and the legal fees on the transfer of that property. 

14. In either 1984 or 1985, the wife resumed paid employment.  This was with the U Pty Ltd as a part-time secretary and office assistant. 

15. On 21 February 1984, the parties purchased a block of land at B Street, Suburb C for $48 500.  On 12 August 1985, the parties entered into a contract with Z Builders for the construction of a home on the Suburb C property for $70 105.  They had borrowed $30 000 from the Commonwealth Bank to assist them in funding this construction.

16. In September 1985, the parties sold their Suburb L property for $74 000, the net proceeds of sale being $65 964.  Of that amount, the parties paid $20 268 towards what was owing on the Suburb C property and paid to their joint account approximately $45 696, that being a joint account with the Commonwealth Bank.  They also received $4950 from the agent in respect of the deposit. 

17. The husband also worked, in addition to his full-time job, part-time teaching work at the P College.  This was between approximately 1985 and 2000.

18. In May 1988, the husband’s father died, and the husband inherited a property, Q Street, Suburb R. 

19. In 1988, the husband renovated the granny flat attached to the Suburb F property.  In 1990, roof and guttering had to be replaced on the property, and the parties paid for that work to be undertaken.

20. In 1990, unfortunately, the wife was diagnosed with cancer of the uterus.  She underwent a hysterectomy operation and a course of radiation. 

21. In October 1991, the parties paid out the loan which funded the construction on the Suburb C property. 

22. In June 1992, the husband sold Suburb R property for $98 000, the net proceeds of sale being approximately $94 000.  Those moneys were deposited to the parties’ joint account with the Commonwealth Bank. 

23. In January 1997, the wife was diagnosed with breast cancer.  She underwent a partial left mastectomy and other surgery.  Then she underwent radiation treatment for about six weeks and chemotherapy for approximately six months. 

24. In July 1997, as I have said, the husband’s mother died.  She left her estate to the husband and wife in equal shares, but her estate was modest indeed.

25. Then the parties carried out substantial renovations on the Suburb F property.  They cost an amount in the vicinity of $44 000 or more.  The husband rented out the granny flat from this time for a period. 

26. Unfortunately, in September 1997, the wife’s medical condition became even more complicated when she was diagnosed as suffering from lung cancer.  She underwent further chemotherapy, this treatment being for six months. 

27. In late 2000, the wife underwent a further six months treatment of chemotherapy. 

28. In February 2001, the wife closed two of the parties’ joint accounts.  It is common ground that the money that was available in all of those accounts at the time was approximately $273 000.

29. In 2003, the wife, who was suffering from depression, sought assistance in relation to her state of health.  She was admitted to the psychiatric ward of S Hospital, and stayed there for about a month.  She was readmitted for a month approximately 12 months later. 

30. On 12 February 2006, as I have said, the parties separated.  The husband moved into the Suburb F property upon separation. 

31. On 15 January 2010, the husband was made redundant.  He says that his former employer owes him $102 000 but that he will be unlikely to receive this amount.  I propose to put in place an order which will, in effect, make provision for a distribution of any funds which might be forthcoming in the future in respect of this matter.  I propose that any such money be paid to the parties in the appropriate amounts to reflect my judgment in these proceedings.  It will be a happy event if there is some money forthcoming.  But it is not entirely impossible that there will be no funds.  The parties agree that that would be the appropriate way to deal with that eventuality.

32. In April 2010, the parties agreed that the husband receive an interim payment of $50 000 out of the money in the bank accounts.  That amount has been paid to him. 

33. Unfortunately, on 16 August 2010, the husband underwent quintuple heart bypass surgery, at T Hospital.  As I do in relation to the wife’s serious surgery, I take judicial notice of the fact that that is a very serious operation and says something generally about the husband’s state of health.

The Applicable Law

1. Sub-section 79(1) of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate.

2. Sub-section 79(2) provides that the Court shall not make an order under the above sub-section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. There is a long-standing preferred approach to the determination of an application brought pursuant to the provisions of s 79.  This involves four inter-related steps.  Firstly, the Court should make findings about the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing.  Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties.  Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two.  Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. 

4. This approach has been confirmed in numerous cases in this Court including for example Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355; Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 and Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693.

Property available for division

1. There was really little issue during the course of the hearing about what items comprised the available property and the values of those items.  There was some dispute over whether there should be added back to the pool of available property the husband’s interim property settlement in the amount of $50 000.  Learned counsel for the husband referred me to the decision by the Full Court of this Court in the case of HDM & MM and SJM [2006] FamCA 47 in which the Full Court considered the authorities in relation to circumstances in which it is appropriate to add back property. The Full Court observed that there were three clear categories of cases where the Court has determined that it is appropriate to notionally add back to the pool of assets, assets that no longer exist. These fall into the broad categories of where parties have expended money on legal fees, where there has been a premature distribution of matrimonial assets, quoting the decision in Townsend and Townsend (1995) FLC 92-569, and thirdly, in the circumstances outlined in the case of Kowaliw and Kowaliw (1981) FLC 91-092.

2. It was said that the husband did not spend the entirety of the $50 000 on legal costs.  There was an amount of $7000 which he spent on medical expenses, and it was submitted in those circumstances that the amount should come in at $43 000, being the $50 000 received by the husband on the interim provision less the $7000 on medical expenses.  I must say, with respect, I do not propose to adopt that submission.  The husband had the benefit of those funds.  Both parties have spent a lot of money on medical and other living costs.  It is a modest amount in the overall context of these proceedings, and I propose to bring the interim settlement into the pool of available property at $50 000.

3. There was some difference of view about an item of superannuation, this being what had originally been the husband’s E Super.  There was evidence that the superannuation appears to have been rolled over or perhaps taken over into an AMP superannuation fund.  There has been a partial distribution to the husband of approximately $2449, and there is the possibility, in fact, probably the likelihood, of a further distribution once the trustees of the fund do some further calculations and work out what the husband’s entitlement might be.  So it seems that some further very modest amount of perhaps a couple of thousand dollars might be forthcoming to the husband.  I propose to take this into the pool in the amount of $2594, being that $2449 plus the $45 which is in an AMP superannuation account and to include in an order that if the husband receives amounts by way of this superannuation over and above that, then those amounts are to be distributed to him and the wife in the overall proportions.

4. I find the property available for division between the parties consists of the following:-

$
1.         O Street, Suburb F	750,000
2.         B Street, Suburb C	740,000
3.         Moneys in accounts in the wife’s name	172,415
4.         Wife’s legal costs	58,640
5.         Wife’s motor vehicle	2,000
6.         Husband’s interim property settlement	50,000
7.         Husband’s motor vehicle	3,000
8. Husband’s MTAA superannuation	10,503
9.         Husband’s Colonial Mutual superannuation	30,370
10.      Husband’s AMP superannuation	2,594
11.      349 AMP shares in joint names	1,115
12.      AMP life insurance policy	14,835
_____________
$1,835,472

Contributions

1. As I have indicated, at the commencement of the marriage, the wife was working as a personal assistant.  The wife continued working until just before the birth of the parties’ first child, G, and the wife remained out of the paid workforce for approximately 10 or 11 years.  Then she recommenced working, as I said, but this time with the U Pty Ltd part-time. 

2. In October 1987, the wife commenced working with V Pty Ltd as an administrative assistant.  In March 1989, she commenced temporary work with W Pty Ltd.  In 1991, the wife commenced working with Dr X, orthopaedic surgeon, in Suburb Y. 

3. Unfortunately, as indicated above, the wife has suffered from cancer since 1990.  In 1994, the wife ceased paid employment.

4. On the other hand, the husband has been the major breadwinner for the family.  As indicated above, he was working as an employed tradesman at the time the parties married.  The husband was employed by various employers during the course of the marriage.  He had continuity of full-time employment, apart from approximately four months when he was unemployed, during the whole period of the marriage, and that also included the period in respect of which he ran his own business, as I have referred to above.  In addition, the husband undertook the work as a part-time teacher, to which I have referred, at the P College between 1985 and 2000.  That comprised one to two evenings per week.  He also worked as a professional musician playing as work was available, usually on Friday and Saturday evenings.

5. The wife was the primary parent to the children.  For many years while the children were young, she stayed at home full time and devoted her energies to care for the children, the husband and the home.  She has made the major contribution to the welfare of the family, including as homemaker and parent.  But the husband has also made significant contributions in this regard, bearing in mind that his major contributions have been in holding down his jobs, which have covered most of his available time. 

6. The main issue in relation to contributions is how the Court should assess contributions, having regard to the fact that the husband’s mother gifted her home at Suburb F to the husband in 1983 and the husband inherited property at Suburb R from his father’s estate in 1988. 

7. In relation to the Suburb F property, a considerable amount of the parties’ funds have been spent on renovation and maintenance of this property.  They paid the costs of the utilities even though they had no use of the property.  They also paid some debts of the husband’s mother.  They were also very supportive of the husband’s mother even though there was a poor relationship between the husband’s mother and the wife.  The wife visited the husband’s mother in hospital and also cared for her for a limited period in the parties’ home. 

8. It was submitted on behalf of the wife that ultimately, the finding which the Court should make about contributions overall by the parties is in the vicinity of 55 percent in favour of the husband.  It was submitted on behalf of the husband that the Court should find a significant imbalance in contributions in favour of him in an amount between 60 and 65 percent.  It was submitted that what the parties’ contributions amounted to was really something about the equivalent of the $94 000 net proceeds received from the sale of Suburb R property and that therefore, what was reflected in the balance was the entirety of the Suburb F home and that this ought to be regarded as coming into the pool entirely on the side of the husband and having major significance on that basis.

1. I must say that I do not accept that as an appropriate way to go about the exercise of assessing the parties’ contributions.  What is essential for the Court to do is to look at the entirety of the contributions by the parties over this long marriage.  These contributions, of course, include the two inherited properties.  In my view, it is ultimately a matter of what weight to give to such contributions in all the circumstances when weighs the entirety of those contributions.  This is not an exercise that the Court goes about by undertaking some detailed mathematical calculation or some other basis.  It is an exercise of discretion in which the Court looks at the entirety of the contributions across the period of this very long marriage.

2. In my view, clearly, the manner in which the properties have become part of the pool of available property and the contributions which have been made to those properties must be given significant weight.  But in my view they cannot be attributed entirely, or even in the major part, to the husband, in the context of such a long marriage.  In my view, in this very long marriage, bearing in mind all the contributions made by the parties, the assessment of contributions overall must favour the husband but only by a modest degree. 

3. In my view, the husband’s contributions overall have been 55 percent compared with those of the wife, which I assess at 45 percent.  This is a 10 percent differential in terms of the total pool of assets, which is an amount of $183,547.  In my view, this is an appropriate reflection of the imbalance in the parties’ overall contributions.

Sub-section 75(2) Matters

1. It was submitted on behalf of the wife that there should be an adjustment of five percent of the available property to take account of the relevant s 75(2) matters.  It was said in support of this submission that the first relevant matter is the disparity in result based on contributions.  The second part of the submission was that the husband has an income-earning asset in the form of the granny flat at the rear of the Suburb F property; that is something he has which the wife does not have at her property.  It was said that the wife’s health really requires that she be able to continue to live in her home and that because of an attachment that she has to her home, that really has the consequence that she is not in a position to be able to sell that home.  Finally, it was submitted that the wife has ongoing medical costs, particularly the costs of paying for her psychiatrist, in respect of which she only receives a very modest proportion repaid through the Medicare system.

2. On the other hand, it was submitted on behalf of the husband that there are no relevant s 75(2) matters which would require a set-off of property in favour of the wife.  This was said to be in circumstances where both parties have retired and both have problems with their health. 

3. In respect of the alleged attachment of the wife to her home, there is no evidence in proper form about that matter.  So far as the income-earning asset of the husband is concerned, in my view, that is not a matter of such significance that it would take matters beyond where they are in respect of contributions. 

4. My view about s 75(2) is that when one steps back and looks broadly at what the Court is faced with, both parties are retired and both are living on the age pension.  As I have said, both have medical problems.  The wife has the cancer and psychiatric issues and the husband has had very serious heart surgery. 

5. While it is the case that there is a disparity between the parties in terms of the assessment of contributions, in my view, any adjustment would be so modest as not to justify any setoff in all the circumstances.  The end result, in my view, is that the husband is to enjoy 55 percent of the property and the wife 45 percent.

Conclusion and Fourth Step

1. Each of the parties will be able to have the enjoyment of sole ownership of their respective homes.  The wife’s legal costs have been paid.  She will have her very modest motor vehicle, her household effects, a very modest fund which I calculate to be $25,322.  She will have to live on the age pension and the modest sum, and if she is unable to do that, then she would have to make some other arrangements.  And so far as the husband is concerned, he will have his home and the major part of the funds which would reflect a 10 percent differential between the parties.  In my view, that is appropriate, given the fact that he inherited the two properties from his parents.

2. The mechanics of this and the conclusion that I reach with the numbers is as follows. 

3. The assets have a total value of $1,835,472.  Forty-five percent of that amount is $825,962.  Omitting the moneys in the bank accounts in the wife’s name, the wife would have the following property: 

$
1.         Former matrimonial home, Suburb C	740,000
2.         Legal costs	58,640
3.         Commodore motor vehicle	2,000
_____________
$800,640

1. To achieve property with a value of $825,962 the wife would require an additional $25,322.  This will have to come from the money in accounts in the wife’s name.  The wife would have to pay the husband the balance of the amount in the bank accounts, which would be $147,093.

2. On the other hand, the husband’s 55 percent of $1,835,472 is $1,009,510.  The husband has the following property:

$
1.         Suburb F property	750,000
2.         Interim property settlement	50,000
3.         Motor vehicle	3,000
4.         MTAA superannuation	10,503
5.         Colonial Mutual superannuation	30,370
6.         AMP superannuation	2,594
7.         349 AMP shares in joint names	1,115
8.         AMP life insurance policy	14,835
_____________
$862,417

1. To achieve property with a value of $1,009,510, the husband would require additional property with a value of $147,093.  This will come from the money in the bank accounts.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 11 May 2011.

Associate:     

Date:              21 March 2012