Metcalfe and Garvey
[2016] FCCA 1733
•12 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| METCALFE & GARVEY | [2016] FCCA 1733 |
| Catchwords: FAMILY LAW – Property – Application for property settlement – contributions of the parties – parties’ assets – post-separation inheritance – where applicant inherited a house from the estate of her mother eight years after the parties physically separated – whether house is an asset or a financial resource – financial resource – respondent’s debt for legal expenses – where respondent claims that applicant should reimburse him for legal fees paid for criminal proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 106A |
| Cases cited: Bishop & Bishop (2013) FLC 553; [2013] FamCAFC 138 Hickey & Hickey (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395 Jarrott & Jarrott (No.2) [2012] FamCAFC 72 GS & TS (2005) 32 Fam LR 575; FLC 93-213; [2005] FamCA 40 |
| Applicant: | MS METCALFE |
| Respondent: | MR GARVEY |
| File Number: | SYC 6993 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 3-4 June 2015 |
| Date of Last Submission: | 4 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Beck |
| Solicitors for the Applicant: | James & Associates |
| Counsel for the Respondent: | Ms McMahon |
| Solicitors for the Respondent: | Jack Rigg Solicitors |
ORDERS
Within two (2) months of the date of these Orders the Applicant and the Respondent are to do all acts and things and execute all documents required to list the property at Property B in the State of New South Wales being the whole of the land in Folio Identifier (omitted) for sale by public auction within six (6) weeks from the date of listing.
The said property is to be listed for sale with a real estate agent as agreed between the Applicant and the Respondent and failing agreement within seven (7) days, the agent is to be an agent as is appointed by a nominee of the President of the Real Estate Institute of New South Wales.
The parties must appoint a solicitor to act on the sale as agreed between them and failing agreement within seven (7) days of the listing the solicitor is to be appointed by a nominee of the President of the Law Society of New South Wales.
The Respondent must keep the property in good repair and presentation for the purpose of presentation for sale.
The parties are to nominate the reserve price fourteen (14) days prior to the auction being a reserve price as agreed between them and failing agreement within twelve (12) days of the auction date the reserve price is to be the market value as nominated by a representative of the President of the Real Estate Institute of New South Wales.
In the event that the property fails to sell at auction the parties must negotiate with the highest bidder and accept any offer which is no more than 10% lower than the reserve price.
In the event that the property has not sold at or shortly after the auction then the parties must list the property for sale by private treaty at a list price 10% lower than the reserve price at the auction.
On completion of the sale of the said property the Applicant and the Respondent must do all acts and execute all documents necessary to cause the proceeds of sale to be paid in the following order and priority:
(a)in payment of all agent’s commission, auctioneer’s expenses, advertising expenses and legal costs referable to the sale;
(b)to the (omitted) Bank the full balance due that day in respect of the Credit Card numbered (omitted);
(c)as to the balance of the proceeds of sale:
(i)an amount equivalent of 70% to the Applicant; and
(ii)the remainder to the Respondent.
Subject to these Orders, the Applicant is to be solely entitled to the exclusion of the Respondent to the following items in the possession of the Respondent:
(a)an antique sideboard;
(b)a writing desk;
(c)the table made by the Applicant’s father;
(d)the buffet in the kitchen;
(e)the china cabinet made by the Applicant’s father;
(f)the Applicant’s pottery items and any other of the Applicant’s personal items left in the property at Property B.
The Respondent is to be solely entitled to the following items in the possession of the Applicant:
(a)Wedding ring;
(b)Family ring;
(c)Dress ring; and
(d)The Respondent’s record collection.
The Applicant and the Respondent must do all acts and things necessary to deliver to the other party the items referred to in Orders (9) and (10) above within one (1) month of the date of these Orders.
The Applicant is to retain and be solely entitled to the exclusion of the Respondent all other items of personalty in her sole name or possession including bank accounts, insurance policies, superannuation interests and motor vehicles.
The Respondent is to retain and be solely entitled to the exclusion of the Applicant all other items of personalty in her sole name or possession including bank accounts, insurance policies, superannuation interests and motor vehicles.
The Respondent is to indemnify the Applicant and keep her indemnified in respect of the following liabilities in his name:
(a)Any amount owing to the (omitted) Bank; and
(b)All amounts owing to Jack Rigg Solicitors for outstanding legal costs.
The Applicant is to indemnify the Respondent and keep him indemnified in respect of any liabilities in her name.
In the event that either party refuses, fails or neglects to execute any deed or instrument required by these Orders the Registrar or a Deputy Registrar of the Sydney Registry of the Court is appointed under the provisions of section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the party who so refuses, fails or neglects and to do all acts and things necessary to give validity and operation to the deed or instrument.
In the event that either party seeks an Order that the other party should pay their costs of these proceedings then that party or parties must file and serve an Application in a Case and an affidavit setting out the amount of costs sought and the basis upon which those costs are claimed within seven (7) days of the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Metcalfe & Garvey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6993 of 2013
| MS METCALFE |
Applicant
And
| MR GARVEY |
Respondent
REASONS FOR JUDGMENT
Applicant
This is an Application by the Wife for orders for property settlement. In her Case Outline, she sets out the Orders that she seeks which are in summary:
a)that the Respondent Husband pay to her the sum of $406,277.00;
b)that the Applicant and the Respondent will jointly pay to the (omitted) Bank the full balance due on an (omitted) Bank credit card;
c)if the Respondent fails to comply with either of the above orders, they are to place the property at Property B on the market for sale by public auction;
d)on completion of the sale, the proceeds should be paid as follows:
i)in payment of agent’s commission, auctioneer’s expenses, advertising expenses and legal costs referable to the sale;
ii)the sum referred to in Order 1 and interest on that sum to the Applicant;
iii)the amount required to pay out the credit card to the (omitted) Bank; and
iv)the balance to the Respondent.
e)The Applicant would be entitled to various named items of furniture in the possession of the Respondent;
f)The Respondent would be entitled to other items of personal property, including his superannuation;
g)The Applicant and the Respondent would indemnify each other against any liabilities in their respective names;
h)If either party fails to execute any necessary deed or instrument, the Registrar of the Court should be appointed to do so under the provisions of s.106A of the Family Law Act 1975 (Cth); and
i)Costs.
By his Response filed on 17th January 2014, the Respondent stated that he agreed with orders 4, 5, 6, 7 and 8 sought by the Wife in her Initiating Application filed on 26th November 2013. Those proposed orders provided that:
a)The Applicant would be solely entitled to all real and personal property in her ownership, possession or control;
b)The Respondent would be solely entitled to all real and personal property in his ownership, possession or control;
c)The parties would indemnify each other against all liabilities in their respective names;
d)The Registrar of the Family Court of Australia[1] would be appointed under the provisions of s.106A of the Family Law Act 1975 to execute any document, instrument, authority or writing in default of either party doing so; and
e)The parties to pay their own costs.
[1] !
In his Response, the husband also sought final orders providing that:
a)He should retain all of his right, title and interest in the property at Property B[2] and the Applicant should do all things necessary to transfer the title into his sole name;
b)That the Applicant pay to the Respondent a sum equivalent to the difference in valuations of the respective properties;
c)“That the Applicant pay to the Respondent a sum equivalent to the legal fees, currently $106,836.00 (and accruing interest) incurred by the Respondent in relation to various proceedings brought against the Respondent as a result of allegations made by the Applicant.”;
d)That the Wife should return to him a wedding ring, a family ring, a dress ring and his record collection.
[2] The correct name appears to be Property B
Background
The parties were married on (omitted) 1983.
The Husband was born on (omitted) 1957.
The Wife was born on (omitted) 1959.
The Wife commenced work with the (employer omitted) in 1977 and finished working there in 1992.
The parties have nine children, some of whom are now adults. The children are:
a)Ms K, who was born on (omitted) 1984;
b)Mr J, who was born on (omitted) 1991;
c)Mr P, who was born on (omitted) 1992;
d)Ms A, who was born on (omitted) 1995;
e)Ms M, who was born on (omitted) 1997;
f)Mr T, who was born on (omitted) 1998;
g)X, who was born on (omitted) 1999;
h)Y, who was born on (omitted) 2001; and
i)Z, who was born on (omitted) 2002.
The parties purchased the house at Property B, in April 1987.
Late in 2002, the wife moved into her mother’s home at Property E, New South Wales, to care for her mother, who was ailing. The younger children Ms A, Ms M, Mr T, X, Y and Z moved with her.
The other children, Ms K, Mr J and Mr P, remained living with the Father.
In January 2010 the Wife informed the Husband that she regarded the marriage to be at an end.
The Wife formed a new relationship with one Mr N, who was born on (omitted) 1959. Mr N moved into the property at Property E and commenced cohabiting with the Wife in (omitted) 2010.
At some time after that the Wife complained that the Husband had sexually abused some of the children. The Husband was charged with various offences and went to trial. He was acquitted of all of the charges.
The Husband incurred a legal bill in defending himself from these charges amounting to about $130,000.00.
In November 2010 the Wife’s mother died and as a result the Wife inherited the property at Property E.
Mr N received an amount of $305,000.00 in settlement of a personal injury claim. He deposed in his affidavit that he put $200,000.00 of that money into renovating the property at Property E.
The Husband remained living in the house at Property B with one adult child. He is unemployed.
Procedural History
The Wife commenced proceedings by filing an Initiating Application on 26th November 2013, supported by an affidavit and a Financial Statement. The Application was returnable on 3rd March 2014.
The Respondent filed a Response to Initiating Application on 17th January 2014, supported by an affidavit and a Financial Statement.
On the return date, 3rd March 2014, the Court made orders for the appointment of a valuer as a Court Expert to provide a report under Rule 15.09 and directed the parties to attend a Conciliation Conference before a Registrar.
The parties attended a Conciliation Conference on 21st July 2014 but the matter did not settle.
The Wife filed an updated Financial Statement on 26th May 2015.
On 29th July 2014 the Application was listed for final hearing on 3rd and 4th June 2015.
Evidence
The final hearing took place on 3rd and 4th June 2015.
The Applicant relied on the following documents:
a)her Initiating Application filed on 26th November 2013;
b)her Financial Statement filed on 26th May 2015;
c)her trial affidavit sworn on 25th May 2015;
d)the affidavit of Mr N sworn on 25th May 2015;
e)the affidavit of her solicitor, Raymond Vincent James,
f)a Notice to Admit Facts dated 22nd May 2015; and
g)a Notice to Admit Facts dated 25th May 2015.
Both the Applicant and Mr N gave oral evidence and were cross-examined by Ms McMahon of Counsel for the Respondent.
The Respondent initially sought to rely on the following documents:
a)his Response filed on 17th January 2014;
b)his affidavit sworn 17th January 2014;
c)his affidavit sworn 17th July 2014;
d)his Amended Financial Statement filed 17th July 2014;
e)his affidavit sworn 22nd May 2015; and
f)his affidavit sworn 3rd June 2015.
However, at the final hearing his affidavit of 3rd June 2015, which was sought to be filed in Court, was the subject of a successful objection as it was out of time.
The Respondent gave oral evidence and was cross-examined by Ms Beck of Counsel for the Applicant.
The Proper Approach to Determination of a Property Application
The proper approach to determine a property application under s.79 of the Family Law Act 1975 is, first of all, to follow the principles set out by the High Court of Australia in Stanford v Stanford.[3]
[3] (2012) 47 Fam LR 481; FLC 93-518; [2012] HCA 52
First, the Court must consider the requirements in subsection 79(2), which prescribes that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Their Honours[4] held at [36]:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s.79 is not “to be exercised in accordance with fixed rules”, nevertheless three fundamental propositions must not be obscured.[5]
[4] French CJ, Hayne, Kiefel and Bell JJ
[5] [2012] HCA 52 at [36]
The three fundamental propositions are:
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s.79(1)(a) itse4lf, which refers to “altering” the interests of the parties to the marriage in the property (emphasis added)…
38.Second, although s.79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion…
…
40.Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s.79(4).[6]
[6] Stanford v Stanford [2012] HCA 52 at [37]-[38], [40]
Clearly, the decision in Stanford v Stanford means that the Court must consider the requirements of s.79(2) before embarking on the four step process set out by the Full Court of the Family Court in Hickey & Hickey[7], or at least before taking the second step, identifying and assessing the contributions of the parties. Satisfaction that it is “just and equitable” to make an order is condition precedent to considering the matters referred to in s.79(4). The Court must first of all be satisfied that it is just and equitable to make an order at all.
[7] (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395
In Hickey & Hickey the Full Court set out at [39] a process of four interrelated steps that must be taken by a court when determining a property application:
Firstly, the Court should make findings as to 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 subsection 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 subsection 79(4)(d), (e), (f) and (g), (“the other factors”) including the matters referred to in subsection 75(2) so far as they are relevant. Fourthly, the Court resolve what order is just and equitable in all the circumstances of the case.[8]
[8] Hickey & Hickey [2003] FamCA 395 at [39] per Nicholson CJ, Ellis & O’Ryan JJ
It is neither contradictory nor redundant to consider again whether a proposed order is just and equitable under s.79(2) because the Court is considering the matter after having undertaken the three previous steps referred to in the Hickey decision.
Just and equitable
Although there is no evidence that the parties are divorced, it is clear that from about January 2010 the parties have accepted that the marital relationship between them has ceased. Indeed, the Wife has now formed a live-in relationship with Mr N. It is appropriate to make orders resolving the property issues between the parties.
It is just and equitable in all the circumstances to bring the parties’ financial relationship to an end.
Issues
In the Applicant Wife’s Case Outline, Ms Beck submitted that there were five issues for consideration:
a)The extent to which the Wife’s financial contribution toward the marital property should be considered relevant in determining the final division of property in light of the absence of any such financial contribution by the husband;
b)The financial and non-financial contributions of each party during the marriage;
c)Assessment of s.75(2) factors, in particular the Wife’s responsibility to care for the three disabled children;
d)Consideration of the Wife’s post-separation inheritance of her mother’s property on the final property division; and
e)Whether the funds allegedly owed by the Husband in respect of legal fees for criminal proceedings should be considered an add-back or excluded from the balance sheet.
The Parties’ Assets and Liabilities
Before making a finding about the parties’ assets and liabilities, the Court must first consider the situation of the house at Property E, in which the Wife resides. There is no issue as to the fact that it is valued at $1,150, 000.00, as the Valuation Report by the Court Expert, Mr A attests. Interestingly, according to the valuation, the title to the property still stands in the name of “Mr F & Ms H” (the Wife’s parents, both of whom are now deceased).
The evidence is that the Wife commenced living in the Property E property in December 2002 to care for her ill mother[9] and never returned to live in the Property B property with the Husband.[10] The Wife considered that the marriage was at an end in January 2010 and informed the Husband of her view.[11]
[9] Affidavit of Ms Metcalfe 25.5.2015 at paragraph [5]
[10] Ibid at [8]
[11] Ibid
The Wife’s mother died in (omitted) 2010 and she inherited the property from her mother.
In my view, this property should not be included in the matrimonial asset pool but should be regarded as a financial resource of the Wife. The Husband never lived in the property and made no contribution to it. The Wife inherited the property after the parties separated. It should clearly be treated as a financial resource (Bishop & Bishop[12] at [28]-[33]; Jarrott & Jarrott (No.2)[13] at [9]; GS & TS[14] ).
[12] (2013) FLC 553; [2013] FamCAFC 138
[13] [2012] FamCAFC 72
[14] (2005) 32 Fam LR 575; FLC 93-213; [2005] FamCA 40
Counsel for the Respondent included a balance sheet in the Respondent Husband’s Outline of Submissions. There was no agreed balance sheet tendered. I have had recourse to the Applicant’s Financial Statement of 26th May 2015 and the Respondent’s Amended Financial Statement of 17th July 2014 for information about their assets and liabilities.
Non-superannuation Asset Pool
I find the value of the non-superannuation asset pool to be:
a)The house at Property B (joint) $825,000.00[15]
b)Applicant's (omitted) Bank account $100.00
c)Respondent’s Holden Barina motor car $1,000.00
TOTAL$826,100.00
[15] Agreed value, see Valuation Report of Mr A 28 May 2015 (Exhibit 2)
Liabilities
The Respondent owes the sum of $131,347.00 to his solicitors for legal work performed for him in another jurisdiction. He claims in his response that the Applicant should pay to him the sum of $106,836.00 to reimburse him for those legal costs.
This is a fanciful concept. There is nothing in the Family Law Act that would permit this Court to make an order that the Applicant should reimburse him for legal costs which he incurred in connection with criminal proceedings in a State Court.
No evidence has been produced to show that the Applicant owes the Respondent that amount of money. What the Respondent is seeking is tantamount to an order for indemnity costs against a person who was not a party to the proceedings in another court. This appears to be a debt that the Respondent incurred long after the parties physically separated.
The debt to the Respondent’s solicitors is purely a matter for him.
I find the parties’ liabilities to be:
a)Applicant's (omitted) Visa Card $E37,500.00
b)Respondent's (omitted) Bank loan $3,000.00
TOTAL $40,500.00
By deducting the liabilities of $40,500.00 from the non-superannuation assets of $826,100.00 I arrive at a total of $785,600.00.
I find the net total of the non-superannuation asset pool to be $785,600.00.
Superannuation
The Applicant did not disclose any superannuation interest.
The Respondent disclosed two superannuation interests in his Amended Financial Statement:
a)(omitted) Fund[16] $41.00
b)(omitted) Super $107,492.59
[16] It is actually called “(omitted)”
A benefit statement from (omitted) Super was tendered by the Applicant’s Counsel showing a closing balance of $76,175.48 as at 30th June 2010. This is significantly less than the sum of $107,492.59 in the Respondent’s Amended Financial filed on 17th July 2014. However, the Respondent deposed in his affidavit of 22nd May 2015 that:
The purpose of the Amended Financial Statement and associated Affidavit was to more correctly disclose my financial circumstances, as I had previously been unaware of the extent of my superannuation entitlement with (omitted) Super.[17]
[17] Affidavit of Mr Garvey 22.5.2015 at paragraph [3]
Annexed to the Respondent’s affidavit of 17th July 2014 are a statement from (omitted) Fund showing a balance of $41.84 and statement from (omitted) Super showing a balance of $107,492.59 as at 31st December 2013.[18]
[18] Affidavit of Mr Garvey 17.7.2014 Annexures “A” and :B”
I find the parties’ superannuation to be:
a)Respondent's (omitted) superannuation $42.00[19]
b)Respondent's (omitted) superannuation $107,493.00[20]
[19] Rounded up to the nearest dollar
[20] Rounded up to the nearest dollar
TOTAL $107,535.00
The total of the parties’ superannuation stands at $107,535.00.
By adding the net total of the non-superannuation asset pool, $785,600.00, to the total of the superannuation pool of $107,535.00, I arrive at a total of $893,135.00.
I find the net value of the parties’ superannuation and non-superannuation assets and liabilities to be $893,135.00
The Contributions of the Parties
In my view the contributions favour the Applicant Wife.
Neither party had a great deal by way of assets at the commencement of the relationship.
There appears to be no real issue that the Applicant contributed the sum of $50,694.18, including a term deposit of $38,797.10 and a gift of $10,000.00 from her parents towards the purchase price of the house at Property B in April 1987. The balance of the purchase money came from a loan from the (omitted) Bank, which was secured by a mortgage. The mortgage was paid off when the Applicant resigned from her employment from the (employer omitted) in late 1992.
The evidence is that the Applicant worked at the (omitted) Bank from 1977 until about November 1992. The Respondent worked throughout the marriage until 2003.
There are nine children of the marriage. Each parent played a role in the upbringing of the children but the Applicant became the children’s primary caregiver from the time she left work in 1992.
In my view, the contributions favour the Applicant by 55% to 45%.
I assess the contributions by the parties as 55% by the Applicant and 45% by the Respondent.
Other Factors taken into account under subsection 79(4)(d) to (g)
Paragraph (d) of subsection 79(4) requires the Court to take into account the effect of any proposed order on the working capacity of either party. The evidence is that neither party works in paid employment, for health reasons, so there will be no effect of either party’s working capacity.
Paragraph (e) of subsection 79(4) requires the Court to take into account the matters referred to in subsection 75(2) of the Act so far as they are relevant.
The Applicant was born on (omitted) 1959. She is now 56 years of age. She deposed that she is not in good health. She receives monthly counselling for anxiety and stress.[21]
[21] Affidavit of Ms Metcalfe 25.5.2015 at paragraph [86]
She has been diagnosed with Hypertension.[22]
[22] Ibid at [87]
She suffers from severe carpal tunnel syndrome, which at times limits the work that she can do around the house. She feels weakness in each hand and wrist and an “almost constant dull ache”. She has been told that it cannot be operated on.[23]
[23] Ibid at [89]-[90]
The Respondent was born on (omitted) 1957. He is 59 years of age. He deposed in his affidavit of 22nd May 2015 that he has a number of significant health problems, including:
a. Type 2 Diabetes;
b. Amputated toes (side effect of diabetes);
c. Macular retinopathy;
d. Ongoing infections in left foot;
e. Arthritis;
f. Hypertension/high blood pressure.[24]
[24] Affidavit of Mr Garvey 22 May 2015 at paragraph [20]
The Applicant has a significant financial resource, being the house at Property E, in which she resides. It is unencumbered and has been valued for these proceedings at $1,150,000.00. However, her income is mainly derived from the Department of Social Security as follows:
49.1 Family Assistance – Energy Assistance $18.90 per fortnight
49.2 Family Tax Benefit Part A $866.88 per fortnight
49.3 Family Tax Benefit Part B $105.00 per fortnight
49.4 Large Family Supplement $24.64 per fortnight
49.5 Carer Pension $860.20 per fortnight
49.6 Carer Allowance $243.40 per fortnight.[25]
[25] Affidavit of Ms Metcalfe 25 May 2015 at [49]
The Applicant is not in employment and is unlikely to re-enter the paid workforce in the foreseeable future for these reasons:
a)her own poor health;
b)the fact that she has been out of the workforce since 1992; and
c)the need to care for three children under the age of 18 years, two of whom have a disability.
The Respondent is not in employment. He deposed in his affidavit of 22nd May 2015 that:
18.At the time of swearing this affidavit I have a number of significant health problems that prevent me from entering the workforce, and I am currently on New Start Allowance from Centrelink, although given my inability to work I am not required to apply for jobs every fortnight and I have been issued with a Pensioner Card, which entitles me to all the benefits of a person on a Disability Pension.
19.I currently am being assessed for a Disability Pension by Centrelink, although at the time of swearing this affidavit I have not been advised as to the outcome of the assessment.[26]
[26] Affidavit of Mr Garvey 22.5.2015 at [18]-[19]
The Respondent lives in the former matrimonial home at Property B, which is unencumbered.
The Applicant has the care and control of three children of the marriage who are under the age of 18 years.
X was born on (omitted) 1999. She is now 16 years of age and is a High School student.
Y was born on (omitted) 2001. He is now 15 years of age. He has Down’s Syndrome and attends (omitted) School, which is a school for children with an intellectual disability. The mother deposed at paragraph 27 of her affidavit:
From my observation and my caring for him I have observed the following:
27.1He requires someone to help him get dressed and undressed;
27.2 I need to check that his shoes are on the correct feet;
27.3He cannot make any meals for himself. He cannot cut up his meals;
27.4He has no control of his bodily functions and this must be checked and cleaned;
27.5He requires constant supervision for his own safety and wellbeing;
27.6He cannot bath or wash himself without constant supervision;
27.7There are almost no normal day to day activities that he can do himself. He requires almost constant supervision and monitoring and requires assistance in almost all normal day to day activities.[27]
[27] Affidavit of Ms Metcalfe 25.5.2015 at [27]
Z was born on (omitted) 2002. He is now 14 years old. Z has been diagnosed with ADHD and has been prescribed the medication Ritalin. The Applicant describes him in her affidavit in this way:
31.From my observation and my caring for him I have observed the following:
31.1From the moment he wakes up he needs to be reminded what is required to be done to get dressed and ready to leave the house;
31.2He is easily distracted, has a short memory span and has short term memory issues, that is he has difficulty recalling [any] instruction that has just been given to him;
31.3He is generally not fully aware of his surroundings and needs constant supervision and monitoring and in particular around roads and traffic;
31.4He is easily angered and overly emotional with extreme highs and lows that can occur almost from one instant to another;
31.5He can act irrationally without thinking or with regard to the circumstances he is in or the possible danger that his action might cause him or others.[28]
[28] Affidavit of Ms Metcalfe 25.5.2015 at [31]
The Applicant has three of the parties’ adult children living with her, Mr P, Ms M and Mr T. Mr T was born on (omitted) 1998 and has recently attained the age of 18 years. He is still at High School.
Mr T has been diagnosed with Autism. The Applicant described him at paragraph [23] of her affidavit as follows:
23.From my observation and my caring for him I have observed the following:
23.1He lacks the ability to concentrate for any length of period;
23.2 He rarely makes eye contact with me or other people;
23.3When I ask him a question quite often the answer has no relevance to the question;
23.4 His vocabulary is limited;
23.5He does not socialise well or interact with the rest of the family often;
23.6He spends a lot of time on the computer playing computer [games] and becomes upset if I take him away from it but when he plays the games he seems contented and happy;
23.7In some day to day activities like dressing he has a set routine that he must follow otherwise he becomes very upset;
23.8At school I have seen that he does not play a lot with other children or generally engage in activities with them.[29]
[29] Ibid at [23]
The Applicant relied on relied on the following medical reports which, curiously, were annexed to an affidavit of her solicitor, Mr James:
a)Dr M of 27th March 2014, who confirmed the diagnoses of Autism with Mr T, Down’s Syndrome with Y and ADHD with Z;
b)Dr R of 2nd November 2012 who assessed Mr T and diagnosed him as meeting the criteria for the diagnosis of Autistic Disorder; and
c)Dr A, who on 28th May 2013 diagnosed the child Z in this way:
Z from history may have some signs of ADHD but may not fulfil the diagnostic criteria of ADHD. He has learning difficulties and this is likely due to an underlying intellectual disability and comprehension difficulty.
The Applicant has re-partnered with Mr N, who gave evidence in the proceedings. It is the evidence of Mr N that he suffered a back injury in 2008 and settled a common law claim in April 2013, whereby he received a sum of about $305,000.00. He paid debts out of that money and then put most of the money into carrying out repairs to the property at Property E, where he lives with the Applicant. He deposed:
I cannot work because of my disability. I do not receive any Centrelink payments at the moment and cannot claim Centrelink payments until 8 December 2017 because of the nature of the settlement that I received. I do not receive any income from any source.[30]
[30] Affidavit of Mr N 25.5.2015 at paragraph [9]
The Applicant made arrangements to place Mr N’s name on the title to the property.
Because Mr N has no income, the Applicant is supporting him from her income.
The parties’ son Mr J, aged 24 years, lives with the Respondent. The Respondent has not re-partnered.
In my view, there should be an adjustment in favour of the Applicant. Neither she nor the Respondent will be able to work again, on the evidence before the Court. This is a matter to be taken into account in respect of each party but it can be argued that the parties’ inability to work due to health reasons cancels each other out, so to speak.
What does lead to an adjustment in favour of the Applicant is that:
a)She has the care and control of three children of the marriage, two of whom have disabilities; and
b)She has living with her and under her care the parties’ adult son Mr T, aged 18 years and about six weeks who suffers from Autism.
In my view, those factors point to an adjustment in the Applicant’s favour of 15%.
Thus, I assess the parties’ entitlements at 70% to the Applicant and 30% to the Respondent.
However, the Court must still consider whether the orders proposed to be made are just and equitable.
Conclusions
The net asset pool amounts to $893,135.00.
The Applicant will be entitled to 70% of the value of the net asset pool, which amounts to $625,194.50.
The Respondent will be entitled to 30% of the net asset pool, which amounts to $267,940.50 or thereabouts.
The Respondent will retain his superannuation, amounting to $107,535.00. He will retain his car with a value of $1,000.00. This means he has a further entitlement of $159,405.50 or thereabouts, which is significantly less than the value of the house at Property B in which he is living, and has been living rent-free and without any mortgage payments to meet.
The Respondent will clearly be unable to raise the finance to pay the Applicant the amount to which she is entitled. The house will obviously need to be sold and the Respondent will have to find himself rental accommodation.
The Respondent should be responsible for his $3,000.00 loan from (omitted) Bank.
It is the Applicant’s uncontradicted evidence that the (omitted) Bank credit card, although in her sole name, was used by the Respondent as well, up until she cancelled it on 26th May 2011.[31] The amount owing to the (omitted) Bank should be regarded as a joint debt and should be paid out of the proceeds of sale of the property at Property B.
[31] Affidavit of Ms Metcalfe 25.5.2015 at [70]-[78]
The Respondent should be responsible for all his outstanding legal costs.
I am satisfied that in all the circumstances the proposed orders are just and equitable.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 12 July 2016
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