MICHI & MICHI
[2011] FMCAfam 531
•20 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MICHI & MICHI | [2011] FMCAfam 531 |
| FAMILY LAW – Parenting – two children aged 17 and 13 – children live with the wife and are currently estranged from and spend no time with the husband – orders made for therapeutic counselling. FAMILY LAW – Property – long relationship of 33 years – parties found to have contributed equally in their respective roles as homemaker and income earner – parties agree that the wife should receive a 15 percent loading pursuant to section 75(2) arising from her responsibilities for the care of the children and her lower earning capacity – orders made for a division of the parties’ realisable assets 65:35 in favour of the wife and for the equalisation of their respective superannuation entitlements. |
| Family Law Act 1975, ss.75, 79 Family Law (Superannuation) Regulations 2001 |
| Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 |
| Applicant: | MS MICHI |
| Respondent: | MR MICHI |
| File Number: | MLC 10354 of 2010 |
| Judgment of: | Bender FM |
| Hearing date: | 26 May 2011 |
| Date of Last Submission: | 26 May 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Hillier Quinn Law |
| Counsel for the Respondent: | Mr Middlemis |
| Solicitors for the Respondent: | J A Middlemis |
PARENTING ORDERS
Each of the husband and the wife and the children of the marriage [X] born [in] 1994 (“[X]”) and [Y] born [in] 1998 (“[Y]”) attend upon
Mr O (or such other counsellor as agreed between the parties in writing) to undertake therapeutic counselling with an aim to:
(a)try and reconcile the differences between the husband, [X] and [Y];
(b)endeavour to resume contact between the husband, [X] and [Y] if same is deemed by the therapeutic counsellor to be in [X] and [Y]’s best interests;
(c)to assist [X] and [Y] with their current emotional difficulties; and
(d)to assist the husband and the wife in gaining insight into the needs of [X] and [Y].
The costs of the therapeutic counselling referred to in order 1 herein are to be borne equally between the parties.
The parties are to provide the therapeutic counsellor with:
(a)a copy of the Family Report prepared by Ms S dated 7 February 2011; and
(b)a copy of the reasons for judgment in this matter as delivered on 20 July 2011.
Each of the husband and wife, and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and [Y] or any of them, and from permitting any other person so to do.
PROPERTY ORDERS
The husband pay to the wife the sum of $143,725.00 (“the payment”) within 30 days of the receipt of monies from the sale of the last of the parties’ motorcycles or by 31 December 2011, whichever occurs first (“the date”).
Contemporaneously with the payment:
(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, all of her right, title and interest in the real property situate at and known as Property S (“the real property”); and
(b)upon such transfer the husband procure the discharge of the mortgage registered on the real property and indemnify the wife against all payments and liabilities for all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
In the event that the whole of the payment has not been made on or before the date, interest is to accrue at the rate of 10.75 per cent per annum.
In the event the husband remains in default of payment with accrued interest after a further 30 days from the date, the real property shall be sold altogether out of court on the following terms:
(a)by a licensed Real Estate Agent either as appointed by the parties or failing agreement the Estate Agent as appointed by the President of the Real Estate Institute of Victoria;
(b)at an agreed reserved price, or failing agreement at a price to be determined by the Estate Agent;
(c)
on an unconditional Real Estate Institute Contract of Sale of
30 days duration pending settlement or as determined by the Estate Agent;
(d)the real property may be sold by public auction on the recommendation of the Estate Agent;
(e)the parties shall do all such acts and things and sign all documents necessary to effect the sale, including cooperating with any reasonable request of the Estate Agent including making keys available, allowing inspection of the home at times requested by the Agent and ensuring the home and garden is in a neat and clean condition at the time of inspection and auction; and
(f)the parties shall appoint a neutral firm of solicitors to represent them for the sale of the real property.
Upon the sale of the real property, the proceeds be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrances affecting the real property;
(c)thirdly, so much of the payment as is then outstanding, together with interest at the rate of 10.75 per cent per annum adjusted monthly from the date to the wife; and
(d)fourthly, the balance to the husband.
In the event the real property is to be sold, the husband and wife shall abide by the Estate Agent’s advice as to the presentation of the real property and the wife arrange for removal of any chattels, wrecks or debris in accordance with the Estate Agent’s request, such expense to be reimbursed to the wife as an expense of the sale.
In the event that the real property is to be sold the husband’s agent be permitted to attend the property and remove the items referred to in orders 16 and 17 herein, and the time for this to occur shall be arranged between the wife and the agent.
Pending the payment or completion of the sale:
(a)the wife have the sole right to occupy the real property and during such right of occupation the wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber the real property without the consent in writing of the other party.
The husband and wife sign all necessary documents to engage [S] Auctioneers (“[S]”) to sell the motorcycles referred to in the valuation prepared by them dated 24 May 2011 and the following terms shall apply to the sale:
(a)the sale of the motorcycles shall be staggered such that they are offered for sale in the September 2011 and November 2011 Auctions conducted by [S];
(b)the terms and conditions of the sale, including which of the motorcycles are to be listed at which auction and the reserve price for each motorcycle shall be as recommended by [S];
(c)the husband shall make available to [S] the necessary keys to release the motorcycles and the wife shall liaise with [S] or their nominee to arrange the collection and transport of the motorcycles for the purpose of the sale; and
(d)the costs of the collection, transportation and any storage costs of the motorcycles incurred by [S] pursuant to order 13(c) herein, are to be deemed to be selling costs of the motorcycles.
The husband and wife are at liberty to attend the auction/s for the sale of the motorcycles, to bid for any of the motorcycles and, if the successful bidder, to purchase any of the motorcycles.
The proceeds of the auction in respect to the motorcycles be applied as follows:
(a)firstly, to pay all selling costs, commissions and expenses of the sale;
(b)secondly, to reimburse the wife’s mother the sum of $3,524.00;
(c)thirdly, the balance then remaining to be divided in the proportions of:
(i) 65 per cent to the wife; and
(ii) 35 per cent to the husband.
The husband retain the chattels listed in the [C] valuation as set out in Schedule A annexed hereto.
The husband retain:
(a)the coin collection, and the farm, plant and equipment inherited from his father;
(b)his tools and electrical equipment; and
(c)the two remaining guns.
The husband and wife do all necessary acts and things and sign all necessary documents to place the coins in the wife’s possession in a safety deposit box in the names of [X] and [Y] to be held on trust for them until they both attain the age of 18 years.
The wife retain the items located at the real property listed and described in Schedule B annexed hereto.
The wife shall:
(a)maintain the husband’s items as set out in orders 16 and 17 herein in good repair and condition pending her vacating the real property and until the husband takes occupation of the real property or collects them pursuant to order 11 herein; and
(b)be restrained from allowing any person to damage or remove any property which is to remain the property of the husband or which is to pass to the husband pursuant to these orders.
The balance of the chattels valued by [C] Valuers are to be sold by auction as agreed by the parties or in default of agreement are to be sold on such terms and conditions as determined by [C] Valuers, with the net proceeds of the sale to be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale; and
(b)secondly, the balance then remaining to be divided in the proportion of:
(i) 65 per cent to the wife; and
(ii) 35 per cent to the husband.
For the purpose of these orders, pursuant to Section 90MT(1)(a) of the Family Law Act 1975:
(a)the operative time is the date four days after service of these orders on the trustee;
(b)the member spouse is the husband Mr Michi born [in] 1959; and
(c)the non-member spouse is the wife Ms Michi born [in] 1959.
The base amount allocated to the non-member spouse is $32,164.00 of the interest held by the member spouse in [A] Super.
Whenever the trustee makes a splittable payment for the interest held in [A] Super by the member spouse, Mr Michi born [in] 1959, the trustee shall pay to the non-member spouse her entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement that the member spouse would have had but for these orders.
The husband be restrained by himself his servants or agents from making any binding death benefit nomination to the trustee of [A] Super in favour of any child who is an eligible beneficiary within the meaning of Regulation 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the wife of the splitting order made in paragraph 23 of these orders.
Paragraphs 22 to 27 (inclusive) of these orders are binding on the trustee of Australia Super.
Each party and the trustee of [A] Super have liberty to apply in relation to the implementation of the orders affecting the superannuation interest.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all items of property including money, motor vehicles, shares, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively unless otherwise specified in these orders;
(b)each party retain absolutely any superannuation benefits, long service leave, sickness payments or other employment entitlements belonging to or earned by them;
(c)all insurance policies remain the sole property of the life assured named therein;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and
(f)each party foregoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.
SCHEDULE A – ITEMS TO BE RETAINED BY HUSBAND FROM THE COUNTRY WIDE VALUATION
Item 1 – lathe
Item 3 – welder
Item 4 – bench drill
Item 5 – pedestal grinders
Item 7 – blower
Item 8 – chainsaws (3)
Item 9 – chain block
Item 10 – safes (3)
Item 11 – ride on mower
Item 13 – generator
Item 15 – winch
Item 17 – saw bench and saw blade
Item 20 – wood splitter
Item 21 – boat motor and trailer
Item 18 – press
Item 19 – band saw
SCHEDULE B – CHATTELS TO BE RETAINED BY WIFE FROM FORMER MATRIMONIAL HOME
Kitchen:
All contents save for the small freezer which is to be retained by the husband.
Dining Room:
TV
DVD
Video players
Video cupboard and videos
(Husband to retain glass top table and chairs)
Lounge Room:
Lounge suite
Plasma TV
Buffet (gift from wife’s parents) and contents
DVD’s
Rocking chair (gift from wife’s parents)
Oil Paintings
(Husband to retain stereo and his records, prints, painting of husband and Ford clock)
Bedrooms:
All bedroom furniture
Book Case:
All contents, save for husband’s personal photographs and books
Hall:
Sewing machines
Sewing Cabinet and attachments
Tin horse
Crystal Cabinet and contents
Bathroom:
All contents
Laundry:
Washing Machine
Dryer
Linen and laundry items
Vacuum Cleaner
Iron and ironing board
[X]’s Shed:
[X]’s motorcycles being:
oCRF 230F Honda 2010
oXR 75 Honda 1979
oXR 75 Honda
oQR 50 Honda 1984
Go Cart 250CC
Sander
Drill
Angle Grinder
Cordless Drill
[X]’s Tools
Shed:
Sewing items
Wardrobes
Wife’s personal childhood items
Two treadle sewing machines
One red ladder (husband to retain one red ladder)
Two large silver ladders
Large freezer
Lawn mower (wife’s mothers)
Two old lawn mowers (wife’s fathers)
Small trailer
IT IS NOTED that publication of this judgment under the pseudonym Michi & Michi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CASTLEMAINE |
MLC 10354 of 2010
| MS MICHI |
Applicant
And
| MR MICHI |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the division of the parties’ property after the breakdown of their 17 year marriage.
In his Response filed 17 December 2010, the husband also sought to raise parenting issues in relation to the two children of the marriage [X] born [in] 1994 (“[X]”) and [Y] born [in] 1998 (“[Y]”). The wife did not file an Amended Application setting out the orders sought by her in relation to parenting issues.
Orders were subsequently made for the preparation of a Family Report which was conducted by Ms S and released to the parties and the court on 9 February 2011.
The matter proceeded before the court by way of final hearing on the final day of the Castlemaine Circuit on 26 May 2011. Evidence was given by both parties in relation to property issues and it was agreed that closing submissions would be put before the court by way of written submissions to be filed by the husband within 14 days and by the wife within a further 14 days.
When the matter commenced before the court, parenting issues were briefly eluded to by Counsel for each of the respective parties. The court was advised that [X] and [Y] continue to live with the wife and are currently not spending any time with the husband. Counsel for both parties indicated that their clients were not seeking any formal orders for [X] and [Y] to spend time with the husband, however they did make brief reference to an agreement that the children should undergo therapeutic counselling.
Neither party gave any evidence about any parenting orders they sought, nor were they cross-examined about same.
Upon the court receiving written closing submissions, both parties have raised parenting issues in the context of orders sought in relation to the therapeutic counselling. The husband further raised that he is seeking the wife undergo a post separation parenting programme and that orders be made restraining her from denigrating him to or in the presence or hearing of the children.
In light of the issues raised in the written closing submissions filed on behalf of each of the respective parties, parenting issues will be dealt with in the body of this judgment.
With respect to the property dispute between the parties, it is the wife’s proposal that the parties’ realisable assets be divided such that she receive 65 per cent of same and the husband receive 35 per cent of same.
The wife argues that the parties’ contributions throughout their 33 year relationship and 17 year marriage should be considered equal. She claims that an adjustment should be made in her favour in the amount of 15 per cent pursuant to section 75(2) factors arising from her care of the parties’ children and the disparity in the parties’ respective earning capacities.
It is the husband’s proposal that the parties’ realisable assets be divided such that the wife receive 60 per cent of same and he receive 40 per cent of same. The husband seeks, if possible, to retain the former matrimonial home.
The husband argues that he made superior contributions throughout the relationship, particularly in regard to his collection, renovation and restoration of old motorcycles which now form approximately 35 per cent of the realisable asset pool. He claims that these contributions should attract a five per cent loading in his favour. The husband agrees that the wife should be granted a 15 per cent loading with respect to section 75(2) factors.
The parties are in agreement that a superannuation splitting order be made to achieve a 50:50 division of the parties’ superannuation entitlements. Noting that evidence of procedural fairness to the superannuation trustee is before the court, orders will be made equalising the parties’ respective superannuation entitlements.
Background
The wife was born [in] 1959 and is 51 years of age. She has recently commenced part-time employment as an [omitted]. The wife’s payslips for the period 9 December 2010 to 19 May 2011 were tendered into evidence. Perusal of her payslips reveals the wife is working on average 15 hours per week and receives a net pay of $235.00 (save for the week commencing 25 February 2011 where she worked 20 hours and received a net pay of $303.00). The wife has not re-partnered.
The husband was born [in] 1959 and is 52 years of age. At the time of filing his material, the husband was an apprentice [tradesman]. At the final hearing of this matter, the husband gave evidence that he has completed his apprenticeship and was starting a new job the following week with [company omitted]. It was the husband’s evidence that he will be paid $1,200.00 per week for 40 hours work. The husband confirmed that if there was any overtime available, his wage would increase, however he understood this to be his “starting rate”. The husband has not re-partnered.
The parties commenced cohabitation in 1977 (according to the wife) or 1979 (according to the husband), married [in] 1992 and separated on 3 December 2009. The parties have two children [X] and [Y]. [X] and [Y] live with the wife, and are currently estranged from and spend no time with their father.
At the commencement of cohabitation, the husband owned a motorcycle, some personal effects and modest savings. He claims the wife also had some personal effects. The wife deposes that neither party had anything by way of assets or savings.
The husband was employed in various positions throughout the relationship, although was unemployed for a couple of years. Most significantly, he was employed by [L] for 15 years, initially as a [occupations omitted], between 1991 and 2006. In 2006, [L] closed down and the husband was made redundant. The husband then embarked upon an apprenticeship as an [omitted]. He claims that at various points throughout his apprenticeship he was working up to 20 hours overtime and thus was able to generate a good income.
The wife was employed in various [workplaces omitted] for the first
16 years of the relationship and worked up to the birth of their eldest child [X]. Following this time, the wife was engaged in home duties. The wife’s evidence is that upon the children reaching school age, she began to consider engaging in part-time employment, however this was objected to by the husband. The husband disputes the wife’s evidence in this regard and claims he encouraged the wife to seek employment. The wife did obtain some part-time work throughout 2006 to 2008 doing [omitted]. The wife has recently obtained part-time employment as an [omitted].
The parties purchased their first home at Property C. At the time of purchase this property was valued at approximately $45,000.00. The parties paid a deposit and took out a mortgage for the remaining purchase price. This mortgage was repaid by the time the parties sold the Property C property in 2001 for in excess of $90,000.00.
During the 1990’s, the parties had also purchased land at Property S for $30,000.00. This purchase was funded through borrowings. Following the sale of the Property C property, the parties applied the sale proceeds towards reduction of the mortgage over the Property S property. They moved a relocatable home onto the Property S property and commenced living in that property in 2002. The husband renovated and completed its’ construction as an owner builder and the parties resided in this property up to the time of separation.
In 2001, the husband inherited a coin collection and various machinery and tractors from his late father. The coin collection was estimated to be worth $15,000.00 and the machinery and tractors worth approximately $25,000.00.
The wife’s evidence was that the parties have continued to purchase coins over the years for the children, with the intention that their coin collection would be maintained for the benefit of the children. At the final hearing, it was agreed that the husband should retain the inherited coin collection from his father and that the balance of the coins collected by the parties over the years should be held by the parties on trust for the children. It is agreed that the coin collection will not form part of the matrimonial asset pool.
At the final hearing of this matter, evidence was adduced that a number of the chattels inherited by the husband that remained at the former matrimonial home had been damaged post-separation and hence their value substantially eroded. Photographs of these chattels were tendered into evidence and showed motor vehicles with smashed windows and extensive rust, boats that had been left unprotected out in a dam that were filled with water and partially submerged, caravans with smashed windows and a safe that had been forcibly broken into with a crowbar.
In her evidence, the wife conceded that a lot of this damage had been perpetrated by [X] as a result of his struggling with the breakdown of his parents’ relationship and his upset and hurt at the actions of his father. The wife claimed that [X] had attempted to “reach out” to the husband, but that this had not been met with a great deal of success. The wife gave evidence that [X] has started “cutting” himself and arrangements had been made for him to commence counselling. The wife further conceded that she had broken into the shed in front of [X] and had:
“probably set a bad example.”
It was also put to the wife that [X] had called the husband and made allegations that he had sexually abused [Y]. The wife conceded that she had recently spoken to [X] about discussions she had with a school counsellor three years ago where it was suggested that:
“something like that was going on.”
The wife also conceded she did not believe [Y] had been sexually abused by the husband.
This evidence did not reflect well on the wife and was indicative of her lack of insight into [X] and the possible causes for the self-harming behaviours he is currently exhibiting. It reiterates the need for the therapeutic counselling that will be ordered for this family.
It was agreed that the chattels inherited by the husband from his late father are to be retained by him and should not form part of the matrimonial asset pool, albeit the husband remains aggrieved that these inherited items have been damaged post separation.
Throughout the relationship the parties also purchased a number of motorcycles, some of which were restored, and some of which remained in their unrestored state. The wife, in her evidence, conceded that the collection and restoration of motorcycles was a hobby of the husband and that without his labour and efforts over the years, the motorcycle collection would not have come into existence.
At the final hearing of the matter, a valuation of the motorcycles, conducted by [S], was tendered to the court. The valuation suggests the combined value of the motorcycles is somewhere between $134,500.00 and $163,200.00.
Whilst it was initially agreed that three of the motorcycles were to be retained by the husband, being the 1925 Harley-Davidson JE Model Motorcycle with Sidecar, the 1928 Harley-Davidson J Model Motorcycle with Sidecar and the 1981 Harley-Davidson Super glide Solo Motorcycle, in his written closing submissions the husband withdraws from this position and seeks that the entire motorcycle collection be sold.
There was agreement from the wife that the husband be permitted to use his share of the sale proceeds to “buy her out” as the husband seeks to retain the former matrimonial home if at all possible.
PARENTING MATTERS
As set out earlier in this judgment, when this matter commenced before me at the final hearing, it essentially proceeded with respect to property matters only. Brief reference was made to parenting issues and the wife conceded that she would be agreeable for therapeutic counselling for both [X] and [Y], as sought by the husband. Neither party gave any evidence or was cross-examined as to any further parenting orders sought by them.
At the conclusion of the evidence at the final hearing of the matter, orders were made for both parties to file written closing submissions. Those submissions are now to hand.
In their written closing submissions, both parties set out in much more detail their positions with respect to parenting matters and accordingly the court will address these submissions and make orders that are deemed to be in the best interests of [X] and [Y].
As noted previously in this judgment, Ms S prepared a Family Report in this matter which was released to the parties and the court on
9 February 2011.
In her Report, Ms S confirms that both [X] and [Y] have not spent any time with the husband since April 2010, and both have expressed that they do not wish to spend time with the husband at this time. During the Family Report process, both children refused to participate in any joint session with the husband.
[X] is reported to be struggling with the issues surrounding the separation of his parents. The wife gave evidence that he is currently very hurt and upset and has been “cutting” himself. [X] was to commence counselling the day after the final hearing with his school counsellor.
[Y] does not appear to be having the same difficulties as her brother, however she has refused to spend any time with the husband since separation and was described by the Family Report Writer as being:
“angry”
and also showing:
“a depth of sadness and emotion”.
At paragraph 20 of her Family Report, Ms S notes as follows:
20.Both children are clear and determined in their wish not to spend time with their father. It would appear that not only are they distressed and hurt by the ill-treatment they received from their father, but that they do not have a relationship with him or a history of sharing and connecting with him as a father. What bond there may have been, seems to have been completely eroded and tested by the ongoing verbal abuse that seems to have contaminated almost all of their interactions together. While [Y] is able to retain some positive and pleasant memories of her father, as does
Mrs. Michi, [X] holds only negative ones. [Y] is hurt and saddened and she is dealing with her trauma by ignoring and dismissing him from her life. [X] remains angry, hurt and saddened and is rejecting of his father. Both children seem to have legitimate and expected responses to abuse and their wishes need to be considered and respected. It is recommended that no Court orders be made requiring the children to spend time with their father and that the children be free to determine for themselves if and when they wish to spend time or communicate with their father.
In her Recommendations, set out in paragraphs 24 to 26 of her Report, Ms S states:
24.Unless there is evidence to the contrary, it is recommended that that the children live with their mother and spend time with their father when they wish to do so. It is recommended that no Court orders be made that require the children to spend time with their father unless they are willing to do so.
25.It is recommended that Mr Michi attend upon a Counsellor to assist him with anger management issues, behaviour change and parenting issues.
26.It is recommended that Ms Michi ensure the children receive any cards, gifts, etc sent by Mr Michi to them.
In their written closing submissions, neither party sought any formal orders for [X] and [Y] to spend time with the husband. This accords with the recommendations made by Ms S in her Family Report and is considered by the court to be appropriate in light of the concerns raised, particularly with respect to [X].
Accordingly, the court will not make any orders for the children’s living arrangements, but rather will focus on the necessary arrangements surrounding the need for therapeutic intervention and support for [X] and [Y].
The husband seeks that the parties and their children undertake therapeutic counselling with Mr O. Mr O saw the parties for the purposes of child inclusive counselling prior to the commencement of these proceedings. Following such counselling, [X] commenced spending time with the husband each alternate weekend, however [Y] remained unwilling to spend time with her father. [X]’s time with the husband ultimately ceased in April 2010 and, as previously noted, neither child has spent time with the husband since this time. The husband argues that the children are familiar with Mr O and that he is a competent and appropriately qualified and experienced counsellor to assist the parties and the children in this matter.
The wife’s closing submissions seek that a counsellor other than
Mr O be nominated to provide the therapeutic counselling. The wife offers no explanation as to why she seeks an alternate counsellor. The wife further claims in her closing submissions that she does not have the financial capacity to pay for half of the costs of the therapeutic counselling.
At the final hearing of the matter, Counsel for the wife submitted to the court that the wife was agreeable for both children to undertake therapeutic counselling. It was clear to the court from Ms S’s observations and the evidence of each of the respective parties that it will be essential for both children to undertake the therapeutic counselling to address the issues surrounding the breakdown of their relationship with their father and to assist them in moving forward.
The children are familiar with Mr O. Following his involvement with the family last year, there was a successful resumption of time between [X] and the husband, albeit for a relatively limited time. There is no evidence before the court as to any alternate counsellor in Bendigo who is in a position to provide the therapeutic counselling for this family. There is also no evidence before the court as to the costs of alternate counsellors, and whether a more affordable option, particularly for the wife, is available.
There was some very concerning evidence given at the final hearing of this matter in which the wife indicated [X] has recently been
self-harming. Accordingly, to assist with the costs of any therapeutic interventions, it is open to both the husband and the wife to attend upon [X]’s treating GP and seek a referral to the therapeutic counsellor under the mental health referral scheme. Such a referral will attract significant funding from Medicare which would greatly assist, if not completely alleviate, the costs of the therapeutic counselling.
In all of the circumstances, the court is satisfied that the parties and the children should undertake therapeutic counselling with Mr O and orders will be made accordingly.
Otherwise the husband also seeks orders that the wife undergo a
post-separation parenting program and that she be restrained from denigrating the husband to or in the presence or hearing of the children.
Attached to the wife’s closing submissions is a certificate confirming her successful participation in a post separation co-operative parenting education workshop and accordingly no further orders will be made in this regard. It is to be hoped, however, that the wife will continue to develop and improve her post-separation parenting with the benefit of therapeutic counselling with Mr O.
In light of the evidence before the court, particularly the evidence surrounding the wife’s disclosures to [X] arising from her discussions with [Y]’s school counsellor, a mutual order will be made restraining both parties from denigrating the other to or in the presence or hearing of the children.
PROPERTY MATTERS
The Issues
The parties’ financial history is set out in the detailed background in this judgment and I believe is an accurate reflection of the parties’ evidence before the court.
The issues identified by me in relation to the division of property can be summarised as follows:
a)What constitutes the matrimonial asset pool and in particular:
i)What is the value of the generator, fridge/freezer and solar panel being retained by the husband?
ii)Should the sum of $4,325.00 borrowed by the wife from her mother to buy beds, pay house insurance and purchase food be a joint liability of the parties?
iii)Should the spray outfit, land master rotary hoe and collection of kerosene lamps claimed by the wife to be left to the husband’s sister, Ms W, by the husband’s late father and claimed by the husband to have been left to him by his late father be given to the husband’s sister or retained on the property for the husband?
iv)Should the press and the bandsaw claimed by the husband to be the property of his cousin Mr M form part of the property pool?
v)Miscellaneous minor matters that will be expanded upon in the judgment.
b)Should there be a loading in the husband’s favour in respect to his contributions arising from his restoration of the parties’ valuable motorcycle collection?
c)Is the agreed 15 per cent loading in the wife’s favour for section 75(2) factors appropriate in this matter?
d)Should the wife vacate the former matrimonial home prior to the settlement of the sale of the parties’ motorcycle collection?
The legislation
Section 79 of the Act defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides 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.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under section 75(2) of the Act are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The four-step approach
In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. 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 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), ("the other factors") 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 ….
Assets and liabilities
Value of the generator, fridge/freezer and solar panel
It was common ground between the parties that at the time of separation, the husband removed a number of items from the matrimonial home including a generator, fridge/freezer and a solar panel.
In her affidavit sworn 1 November 2010, the wife deposes to the generator being worth an estimated $5,000.00, the fridge/freezer being worth an estimated $1,000.00 and the solar panel being worth an estimated $1,500.00.
In his affidavit sworn 15 December 2010, the husband disputes the values attributed to these items by the wife and claims the generator cost $1,800.00 to purchase as new and would now be worth less than $500.00, that the fridge/freezer cost approximately $1,000.00 and would now be worth $300.00 and that the solar panel cost $1,100.00 and would have a second hand value of about $500.00.
Both parties maintain their respective values of these items as being accurate in their closing written submissions filed with the court.
Neither party was cross-examined as to the basis for the value they attributed to these items, although the court notes that in his affidavit the husband did set out the initial purchase price which gave some basis for the depreciated value he claims these three chattels are now worth.
On balance, I am persuaded that the husband’s values of the generator, fridge/freezer and solar panel are the more appropriate and these values will be inserted into the asset pool.
Monies loaned from the wife’s mother
On the day prior to separation, the parties purchased new beds for themselves and the children.
The wife claims that after the beds were purchased, the parties separated and that the husband refused to pay for them. The wife therefore sought assistance from her mother who loaned her the sum of $3,524.00 to pay for the beds. The wife further claims her mother loaned her an additional $710.00 to pay for the house insurance and $90.00 for food.
It was the husband’s evidence that shortly prior to separation the parties had agreed to purchase beds for themselves and the children and that the purchase price would be put onto their housing loan. The husband’s evidence is that he paid a $50.00 deposit for the beds, that it was his intention to fund them through the housing loan, but that the parties separated before that occurred.
It is clear that the parties had a common intention to purchase the beds and to fund that purchase from matrimonial funds. It is therefore appropriate that the sum of $3,524.00 be deducted from the asset pool and repaid to the wife’s mother.
With respect to the monies loaned from the wife’s mother for the house insurance payment, the wife has remained living in the former matrimonial home since separation. It follows that she should be responsible for outgoings in relation to the property, such outgoings found to include house insurance.
With respect to the monies loaned from the wife’s mother for food, it is accepted that each of the parties should bear their own living costs. The wife is in part-time employment, and is in receipt of Family Assistance and Child Support payments.
Accordingly, the loans provided to the wife from her mother for the house insurance and food will not form a liability to be taken into account in the matrimonial asset pool.
Chattels allegedly the property of Ms W
Ms W is the husband’s sister. The husband concedes that he does not enjoy a good relationship with his sister and that they fell out many years ago. The wife however does enjoy a good relationship with
Ms W, who was in attendance at court to support the wife at the final hearing of the matter.
It was the wife’s evidence at the final hearing of the matter that a spray outfit, land master rotary hoe and collection of kerosene lamps which remain at the former matrimonial home are in fact property of
Ms W, those items having been left to her by her late father as set out in his will.
A copy of the will was not produced. Ms W was not called to give corroborative evidence in this regard, nor did she file any affidavit material in these proceedings.
It was the husband’s evidence that these items had been left to him by his late father and should be retained by him.
The question of who is entitled to property under a will, a copy of which was not produced into evidence, and in circumstances where one of the purported beneficiaries is not a party to these proceedings, is not an issue that this court is able to determine.
In these circumstances, these three items will not form part of the matrimonial pool and their ownership will need to be resolved between the husband and his sister.
Chattels allegedly the property of Mr M
It is the husband’s evidence that two of the items valued by [C] Valuers in their valuation report dated 25 February 2011, being a press (item 18) and a bandsaw (item 19) are actually the property of his cousin,
Mr M and thus should be excluded from the pool of assets to be divided between the parties.
These items were attributed a combined value of $1,000.00 by [C] Valuers in their report.
Mr M was not called to give evidence as to his ownership of the aforedetailed items, nor did he file any affidavit material in these proceedings.
In the closing written submissions filed on behalf of the wife, she disputes that Mr M owns these items however is not opposed to them being retained by the husband subject to there being an appropriate adjustment for same in the asset pool.
Once again in these circumstances it is very difficult for the court to ascertain who these items belong to. There was no evidence provided to the court as to why these items purportedly belonging to Mr M were stored at the former matrimonial home. Further, it is difficult to fathom why the husband would consent to a valuation of chattels, for the purposes of these proceedings, that were not matrimonial assets available for division between the parties.
However, following separation the wife sought and obtained an Intervention Order against the husband which precluded him coming onto the property. [C] Valuers were appointed to value the collection of chattels on the property and the husband did not have an opportunity to inspect same prior to the valuation taking place.
Corroborative evidence from Mr M would have greatly assisted the court in determining this matter, even something as simple as a letter of demand or his presence in court. One also speculates why, when there was nothing to prevent him from so doing, he didn’t attend upon the property and reclaim the items in question.
On balance, I find that these items should be included in the matrimonial pool and shall be retained by the husband.
Other Issues
The parties sought to include their saving account balances at separation as part of the matrimonial pool. Given the parties separated two years ago and both would have utilised these monies for their reasonable living expenses during that time, I do not intend to include them in the matrimonial pool.
It was the wife’s evidence that post separation the Ford Fairmont motor vehicle retained by her “blew up” and was sold for scrap for $300.00. It is this amount that will be included in the asset pool as reflective of the value of her motor vehicle.
The parties’ chattels, plant and equipment remaining on the former matrimonial home were valued by [C] Valuers and a report dated
25 February 2011 was produced. The husband has identified certain items on that list that he wishes to retain and this is not opposed by the wife. They disagree as to how the remainder of those items should be dealt with, with the wife arguing they should be sold and the proceeds divided in the percentage as determined by this court and the husband seeking they be divided in specie.
Where parties are unable to agree on how to deal with the chattels neither wish to retain, I am of the view that the value of those chattels should not form part of the property pool. The parties will be ordered to sell the items and divide the sale proceeds in accordance with the percentage split as determined by the court.
In light of the aforedetailed, for the purposes of determining the asset pool, only the value of those items which the husband seeks to retain shall be included in the pool.
Accordingly, I find the matrimonial asset pool of the parties to be as follows:
Assets:
Former matrimonial home situate at
Property S$265,000.00 Husband’s 2000 Mazda Bravio motor vehicle $5,000.00 Wife’s 1996 Ford Fairmont motor vehicle $300.00 Wife’s current motor vehicle $1,000.00 Husband’s [M] Shares $15,158.00 Wife’s [M] Shares $8,826.00 Proceeds received by husband from sale of gun collection $1,820.00 Tandem Trailer (retained by husband) $1,250.00 Car Trailer (retained by husband) $2,000.00 Generator (retained by husband) $500.00 Fridge/Freezer (retained by husband) $300.00 Solar Panel (retained by husband) $500.00 Motorcycle Collection $148,850.00 Chattels to be retained by the husband $8,450.00 Total $458,954.00 Liabilities:
Mortgage over the Property S property $69,886.00 Loan to the wife’s mother $3,524.00 Total $73,410.00
NET TOTAL ASSETS: $385,544.00 Superannuation:
Husband’s [A] Superannuation $49,956.00 Husband’s [C] Superannuation $15,271.00 Wife’s [B] Superannuation $900.00 Total $66,127.00
Contributions
As set out previously in this judgment, both parties had minimal assets at the commencement of cohabitation and the court accepts that neither party brought any assets of significance into the relationship.
Throughout the relationship both parties were engaged in employment up until the birth of the parties’ eldest son [X], the wife being employed in a number of positions as a [omitted] and the husband holding long-term employment as a [omitted] with [L], save for a couple of years where the husband was unemployed. Following [X]’s birth, the wife was primarily engaged in home duties whilst the husband continued to be employed on a full-time basis.
At or around 2006, the husband was made redundant from his long term position with [L] and subsequently embarked on a four year apprenticeship as an [omitted]. It was the husband’s evidence that on occasion he worked up to 20 hours per week by way of overtime in an effort to generate a good income.
The wife gave evidence that she obtained some part-time work between 2006 and 2008 as a [omitted] and otherwise continued to be engaged in home duties and was the primary carer for the parties’ two children.
Throughout their relationship, the parties were able to purchase their first home at Property C with the assistance of a mortgage which they had discharged by the time they sold the property in 2001.
A relocatable home was subsequently moved onto the land the parties had purchased at Property S during the 1990’s. It is the husband’s evidence that he renovated and completed the construction of this home as an owner builder.
Throughout the relationship, the husband actively participated in the collection and restoration of motorcycles. The motorcycle collection now forms more than 35 per cent of the realisable matrimonial asset pool that is to be divided between the parties.
It was submitted on behalf of the wife that the contributions of the parties should be considered equal. She argues that both parties were employed throughout the relationship up to the birth of their eldest child at which time she engaged in home duties and had the primary care of the children. It is the wife’s evidence the husband had minimal involvement in the parenting of the children.
The wife further argues that there should be no adjustment in the husband’s favour arising from his collection and restoration of motorcycles. Whilst acknowledging the husband was solely responsible for the motorcycle collection, she argued that this increased her parenting and domestic responsibilities. She also argued that matrimonial funds were applied towards the purchase of the motorcycles and the cost of their restoration.
It was submitted on behalf of the husband that he should receive an adjustment of five per cent in his favour arising from his superior contributions with respect to the acquisition, renovation and conservation of the motorcycle collection. The husband submits that the wife conceded in cross-examination that these assets would not be in existence save for the husband’s efforts in this regard.
The balancing of the contributions the parties make in their respective roles of income earner, homemaker and, in this instance, through the skills that enabled the acquisition and renovation of the parties’ motorcycle collection is a difficult one.
Both parties argue they made the greater contribution to the marriage in the context of their respective roles. The wife argues that the husband had little involvement in the rearing of the children and as a homemaker, and that her contributions in this regard were much greater than those of the husband. The husband argues that his role as income earner, including considerable hours of overtime, as well as the significant increase in the parties’ asset pool because of the existence of the motorcycle collection is such that his was the greater contribution.
In this matter, the parties were in a very long relationship of over
30 years. Both have made considerable contributions over the many years of their relationship as income earners, home makers and in pursuing their interests. Looking at the evidence before the court, I am of the view that the parties’ respective contributions evenly balance, one as against the other, and as such find that their contributions over this very long relationship should be considered equal.
Section 75(2) factors
It was argued on behalf of the wife that there is a significant disparity in the parties’ earning capacities. The wife has spent a significant part of the marriage engaged in home duties, has no formal qualifications and therefore has a limited earning capacity.
At the final hearing of the matter, the wife gave evidence that she was working part-time as an [omitted] and generating a net income of $235.00 per week. The husband, who is now a qualified [omitted], gave evidence that he has recently completed his apprenticeship and obtained new employment from which he expected to be paid $1,200.00 per week.
It was the wife’s evidence that she is reliant on government payments including Family Assistance, Youth Allowance and Child Support payments from the husband, albeit she argued that the amount of child support paid by the husband was minimal and did not meet the expenses involved in raising the parties’ two children.
It is common ground that the wife has the sole responsibility for the children, who are currently estranged from the husband, and it is likely that this responsibility will continue to be borne by the wife into the future.
The wife argued that following the determination of this matter she will have limited capacity to rehouse herself and the children with the funds received by her by way of property settlement.
The husband argued that whilst he has a superior earning capacity, he is required to pay child support and significant income tax from his annual wage. He further noted that in addition to the wage received by the wife from her part-time [omitted] work, she receives government assistance and child support payments.
In light of the aforedetailed, both parties submitted that it was appropriate to find an adjustment in the wife’s favour of 15 per cent arising from section 75(2) factors. The court is satisfied that this is an appropriate adjustment and will allocate a loading in the wife’s favour of 15 per cent for section 75(2) factors.
Should the wife vacate the former matrimonial home prior to the settlement of the sale of the parties’ motorcycle collection?
As previously set out in this judgment, it is the husband’s wish to retain the former matrimonial home, if possible, as part of the property settlement effected between the parties. To achieve this, it will be necessary for the husband to provide the wife with a capital payment in consideration for her transfer of the former matrimonial home into his sole name.
It is the wife’s proposal that settlement between the parties should take place when the motorcycle collection is sold so that she receives the entirety of her property settlement at the same time. She therefore seeks orders that settlement take place upon the sale of the entirety of the motorcycle collection or 31 December 2011, whichever is the sooner.
It is the husband’s proposal that he pay the wife an amount representative of the percentage split of the parties’ assets determined by this court, excluding the motorcycle collection, within 30 days, that the former matrimonial home be transferred to him and that the wife and children then vacate the former matrimonial home. He proposes the proceeds of the sale of the motorcycle collection be divided between the parties as they are sold.
The court notes that it is [S]’s recommendation that there should be a staggered sale of the motorcycles to optimise the likely sale proceeds. [S] recommend that the motorcycles be placed in their next two auctions scheduled to take place in September 2011 and November 2011.
It is the wife’s submission that the staggered payment of settlement monies to her as proposed by the husband would seriously disadvantage herself and the children. It is her argument that she will require both the capital payment from the husband and her share of the proceeds of sale from the motorcycle collection in order to have sufficient funds to purchase an alternate property for herself and the children.
The wife argues that if she and the children are required to leave the former matrimonial home before all those funds are received, she will be forced to rent alternate accommodation until such time as all the funds are received, resulting in a reduction of her capital which will in turn impact on her capacity to rehouse herself and the children.
The husband submits that the wife has provided the court with no evidence that she would be unable to purchase alternate accommodation absent her share of the proceeds of sale of the motorcycles.
The husband further argued that it was unfair that he be excluded from occupation of the former matrimonial home in circumstances where he was in a position to pay the wife for her share of the property within
30 days and where she has had its’ sole use for the past 18 months.
When considering what orders to make in property proceedings, section 79(1) of the Act provides that the court must make such orders as it considers appropriate:
“for the benefit of either or both of the parties to the marriage or a child of the marriage.”
In this matter, the wife has and will have into the future, the primary responsibility for the parties’ two children [X] and [Y]. As both parties’ proposals are that the husband retain the former matrimonial home upon finalisation of this matter, the wife will be required to find suitable alternate accommodation for herself and the children.
Whilst the husband argues the wife has not provided evidence that she needs the entirety of the capital she will receive pursuant to these orders, including her share of the sale proceeds of the motorcycles, to enable her to do this, I am satisfied, given the relatively small property pool and her current level of income, that her arguments in this regard have real weight.
Given her responsibility to rehouse not only herself but the parties’ children, and given the requirements of section 79 of the Act that the court is to consider the impact of its’ orders on the parties’ children, I am of the view that orders in the terms proposed by the wife are appropriate.
Accordingly, orders will be made for a staggered sale of the motorcycle collection as recommended by [S] in order to optimise their likely sale price, with the motorcycles to be placed in their next two auctions scheduled to take place in September 2011 and November 2011.
Upon the sale of the entirety of the motorcycle collection or
31 December 2011, whichever is the earliest, the orders will provide that the husband makes a payment to the wife and contemporaneously she shall transfer to the husband all of her right, title and interest in the former matrimonial home. Until such time as the motorcycle collection has been sold and the payment effected, the wife shall be permitted to continue to have sole use and occupation of the former matrimonial home for the benefit of herself and the children. During such time of occupation, the wife shall continue to be responsible for all mortgage payments and outgoings associated with the property.
How should the motorcycle collection be transported to [S] for sale?
In their respective written closing submissions, each of the parties put to the court arguments as to how the motorcycle collection should be transported to [S] for sale.
The husband proposes that the motorcycle collection remain at the former matrimonial home and, upon him taking possession of the home, he shall maintain the motorcycle collection in good repair and ensure it is in a saleable condition. The husband proposes that he be responsible for arranging transportation of the motorcycle collection to the auction yard at [S].
In support of his proposal, the husband argues that there is no evidence before the court that he would damage or reduce the value of the motorcycles.
The wife opposes the husband’s proposal that he be permitted to make the necessary arrangements to sell the motorcycles through [S].
On behalf of the wife it was submitted that she had made enquiries of [S] with respect to the collection and sale of the motorcycles, and they have advised it will cost between $1,100.00 and $1,200.00 for the motorcycles to be collected and sold by them. She further argues that there is no need for the husband to maintain the collection or to bring it up to a saleable standard as the valuation of the motorcycle collection that is before the court is reflective of the value of the motorcycles in their current state.
In light of the orders I have made which permit the wife to remain in the former matrimonial home until the sale of the motorcycle collection or 31 December 2011, the husband will not have the opportunity to take possession of the former matrimonial home and maintain the motorcycle collection prior to its’ sale.
Accordingly, I am persuaded that the collection and sale of the motorcycles should be handled by [S], and that the motorcycle collection should be collected from the former matrimonial home by them in a timely manner to enable them to be placed in the auctions scheduled to take place in September 2011 and November 2011.
Orders will be made for the costs incurred by [S] in collecting and selling the motorcycle collection to be paid from the sale proceeds prior to their division between the husband and wife in the percentages I have determined.
Just and equitable
It was argued on behalf of the wife that the parties’ realisable assets should be divided such that she receives 65 per cent of same and the husband receive 35 per cent of same. The wife argued this would reflect a finding that the parties’ contributions throughout the relationship should be considered equal and her greater section 75(2) factors arising from her sole care of the parties’ two children and the disparity between the parties’ respective earning capacities.
The husband argued that he made superior contributions throughout the relationship arising from his collection and restoration of the motorcycles which now form a significant part of the matrimonial asset pool and that a loading in his favour of five per cent is appropriate. He is agreeable that a 15 per cent loading should be allocated to the wife to reflect her greater needs arising from section 75(2) factors.
I have determined that the parties’ contributions over their lengthy 33 year relationship should be considered equal. I have also concluded that the wife’s ongoing responsibilities in her sole care of the parties’ two children, together with the disparity in the parties’ respective earning capacities, should attract a 15 per cent adjustment in her favour.
Accordingly, I have determined that the parties’ realisable assets should be adjusted such that the wife receives 65 per cent of same and the husband receives 35 per cent of same.
As noted earlier in this judgment, orders will be made for the sale of the parties’ motorcycle collection, following which the husband shall make a payment to the wife and contemporaneously she shall transfer to him all of her right, title and interest in the former matrimonial home.
The husband shall retain the inherited coin collection and chattels left to him by his late father.
The coin collection that has been acquired throughout the relationship by the parties for the benefit of the children shall continue to be held on trust by them for the benefit of the children.
The chattels listed in the [C] valuation that neither party seeks to retain are to be sold and the proceeds divided between them on the basis the wife receive 65 per cent and the husband receive 35 per cent of such proceeds.
In the property pool is the amount that reflects the proceeds of sale of the husband’s gun collection. At the final hearing there was reference to there being two guns that had not been sold. No value was given to the remaining two guns. As a matter of completeness, those guns will be retained by the husband.
Finally, in relation to superannuation, a superannuation splitting order shall be made such that the parties’ respective superannuation entitlements are equalised.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 20 July 2011
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