Minterly & Minterly
[2013] FamCA 418
FAMILY COURT OF AUSTRALIA
| MINTERLY & MINTERLY | [2013] FamCA 418 |
| FAMILY LAW – PROPERTY – LUMP SUM MAINTENANCE – where the parties had a volatile relationship characterised by some incidents of violence – where the wife regularly consumes alcohol to excess – where the wife asserts she should receive an 8 per cent adjustment on contributions because the husband’s violence made her contributions significantly more arduous – where it was held there was no systemic family violence perpetrated by the husband on the wife – where orders were to be made for alteration of property which were less than the wife’s claim – alternatively, in the event the wife was not wholly successful in her property claim, she sought lump sum maintenance – where it was not proper to make an order for lump sum maintenance |
| Family Law Act 1975 (Cth) |
| Kennon & Kennon (1997) FLC 92-757 Spagnardi & Spagnardi [2003] FamCA 905 |
| APPLICANT: | Ms Minterly |
| RESPONDENT: | Mr Minterly |
| FILE NUMBER: | CSC | 498 | of | 2011 |
| DATE DELIVERED: | 4 June 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 30 - 31 October 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fellows |
| SOLICITOR FOR THE APPLICANT: | Cope Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Jacobs |
| SOLICITOR FOR THE RESPONDENT: | Murray Lyons Solicitors |
Orders
Pursuant to s 79 Family Law Act 1975 (Cth) orders be made in accordance with paragraphs 2 - 5 below.
Within 90 days the husband pay to the wife the sum of $246,081.
In default of the payment by the husband in accordance with Order 2, the husband sign all documents and do all such acts and things as are required to sell the real property at … S Street, Suburb T (“the property”) and upon the settlement of the sale of the property, the proceeds be applied as follows:
3.1.Payment of costs of sale including agent’s commission and legal costs;
3.2.Discharge of any encumbrance on the property;
3.3.Payment of $246,081 to the wife together with interest on that sum calculated in accordance with the Family Law Rules 2004 (Cth) from 90 days from the date of these orders;
3.4.Balance to the husband.
Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.
Each party be responsible for any liabilities currently in their own name and indemnify the other party against any responsibility for those liabilities.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Cairns Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act1975 (Cth) to execute such documents on behalf of such party.
Either party have liberty to restore the matter on 14 days notice in respect of implementation of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Minterly & Minterly has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CSC 498 of 2011
| Ms Minterly |
Applicant
And
| Mr Minterly |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties to this marriage had a tumultuous relationship characterised by alcohol abuse and some incidents of violence. Both parties seek that an order be made altering their rights in property.
APPLICATIONS
The wife seeks 44 per cent of the overall asset pool, to be effected, according to the wife’s calculations at trial, by the husband making a payment to the wife in the sum of $550,000. In the event the wife does not fully achieve that outcome, the wife seeks the husband pay by way of spousal maintenance, within 30 days, a lump sum amount which equates to $250 per week, indexed by 3 per cent, until she is 65.5 years old. The wife quantified this amount to be $60,778.
The husband concedes that an alteration of property should be made in this case. The husband seeks that the parties each retain assets in their name (the parties do not have any joint property) and that there be a 4 per cent adjustment of the overall pool of net assets in the wife’s favour. Overall, that would result in a 72.4/27.6 percentage split of the overall asset pool in the husband’s favour.
DOCUMENTS RELIED UPON
The documents relied upon by the parties are set out in Schedule 1.
SHORT HISTORY
The husband was born in 1949 and is now aged 64.
The wife was born in 1952 and is now aged 60.
The parties commenced cohabitation in August 1994.
The parties married in June 2006.
It is agreed that the parties cohabited together as a couple under the one roof for a total of 8.8 years. The period of the cohabitation extended over 13 years 7 months (the husband’s version) or 15 years 6 months (the wife’s version) and the wife says the parties continued their relationship even during periods they were living in separate residences.
It is an agreed fact that the relationship between the parties was a volatile one. It featured a number of separations and reconciliations. From the wife’s point of view, it was a relationship of unrequited love in the sense that she felt she did not receive back from the husband the level of affection or emotional commitment that she believed that she gave the relationship. From the husband’s point of view, he explained the reconciliations as primarily being driven by the strong physical and sexual attraction that the husband and wife had for one another.
The husband asserts the parties separated on a final basis on 10 April 2008. The wife agrees this was the date she moved out of the former matrimonial home, but she does not agree that the marriage ceased at that time.
The wife asserts the parties separated on a final basis on 14 February 2010.
As to when the marriage ended, both parties agreed that in the last two years before February 2010 the parties lived in separate residences. However, they did go on a number of holidays together and the wife attended the husband’s home on a considerable number of occasions, usually on weekends. The parties maintained a sexual relationship even though they were not living in the same residence. Not a lot turns on what happened in that last two year period as on either version, there were no significant contributions made by one party directly or indirectly or in the role of homemaker to the other in that period.
So the parties were cohabiting and in a marriage with numerous separations over an approximate period spanning either 13.5 years or 15.5 years.
CREDIT
Wife
Counsel for the husband submitted that the wife was not forthright in her evidence, and that I should prefer the evidence of the husband.
The wife agreed that her written evidence about her contributions to maintaining spreadsheets on the husband’s rental income from his New Zealand properties was incorrect.
The wife gave evidence about an incident of family violence in May 2003. In a letter from the wife’s solicitors to the husband dated 18 August 2010, the wife’s solicitors assert the wife “angrily passed the remote to the [husband] hitting [his] side through the blankets.” In her affidavit sworn 30 March 2012, the wife says that the parties were arguing over the use of the television remote and the husband “attempted to grab the remote control”. She goes on to say that she “threw the remote at the husband hitting him in the abdomen area.” In her oral evidence, the wife initially denied she threw the remote. The wife eventually conceded that she threw it, but that it hit the quilt cover (while the husband was underneath). The inconsistency in the various versions is relevant to an assessment of her credit.
The wife described herself on an online dating website as a person who “drinks moderately”. She agreed that was an inaccurate description of her level of drinking. The wife conceded to Mr B that she thinks she is an alcoholic.
Counsel for the wife submitted that the wife made admissions against her interests, such as when specific questions were put to her regarding throwing a jewellery box at the husband.
Husband
Counsel for the wife made a submission that I should make an adverse finding in relation to the husband’s credit because he initially failed to remember that in 1998 there was a third occasion where he made physical contact with the wife’s face. Counsel for the wife submitted that the husband’s concession on that incident happened only when he saw his diary in the hand of counsel for the wife. That submission loses some force in circumstances where the husband had actually voluntarily produced that diary, having tagged the relevant entry, on the Friday prior to the hearing commencing. The husband had read that entry on the Friday. I do not make any significant credit finding against the husband for not immediately bringing that to mind when he was asked about the number of times he made physical contact with the wife’s face over the course of the relationship.
The husband’s tax return for the year ended 30 June 2011 became exhibit 10. That document shows the husband has a net foreign income (from his share portfolio and properties in New Zealand) of $19,441. The husband did not include this in his amended financial statement.
Conclusion on credit
Whilst the parties gave differing versions of various events, in the end it is not necessary to reach a concluded view as to whose memory was more accurate. The wife’s illness is such that I find that some of her memories are unreliable, but in order to reach a conclusion about a just and equitable division of property between the two parties I do not need to make a finding preferring one party’s credit over the other.
DETAILED CHRONOLOGY
The husband was born in 1949 and is now aged 64.
The wife was born in 1952 and is now aged 60.
In 1977, the husband’s first child C was born. She is now aged 36 years.
In 1987, the wife’s first child D was born during her marriage to her second husband. D is currently aged 26 years.
In 1989, the wife’s second child G was born. He is currently aged 23.
The parties commenced cohabitation in August 1994. The wife moved into the husband’s property at E Street, Suburb T (“the E Street property”) with her two children. D was 7 and G was 4 at that time. The husband’s daughter C (then aged 17) was also residing in the E Street property.
In 1997 the husband received a significant superannuation payout which he invested in the share market.
In 1999, the wife purchased an investment property at F Street, subject to a line of credit.
In 2001, the wife’s son G (then aged 12) began residing with his father Mr H.
On 8 May 2003 the wife obtained a domestic violence order (“DVO”) against the husband.
On 29 January 2004 the husband obtained a DVO against the wife.
The parties married overseas in June 2006.
In August 2006, the wife’s daughter D went to Townsville to live but in late 2007 or early 2008, D came back to the E Street property.
The husband asserts the parties separated in April 2008. He concedes they travelled on a number of holidays together after that date and continued a sexual relationship.
On 29 January 2009, the husband sent the wife an email which stated that he had told the wife’s mother that “we [the parties] are over”. He said to the wife “Please return my key ASAP. I would prefer that you stay well away from my home.”
In September 2009, the parties travelled to Europe together for five weeks to attend the husband’s son’s wedding.
The wife asserts the parties separated on 14 February 2010.
In August 2012, the husband retired.
APPROACH
In this matter my task is to:
41.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
41.2.Determine whether it is just and equitable to make an order altering those interests and if so;
41.3.Identify relevant contributions and assess them;
41.4.Consider relevant matters referred to in Section 79(4)(d) – (g) Family Law Act 1975 (Cth)(“FLA”);
41.5.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.
BALANCE SHEET
I set out below a balance sheet. The parties have agreed upon all values in the balance sheet:
Assets Item no. Title Description Value 1 W I Street, Suburb J $295,000.00 2 W K Street, Suburb L $240,000.00 3 W F Street, Suburb M $275,000.00 4 H E Street, Suburb T $340,000.00 5 H S Street, Suburb T $295,000.00 6 H Property A, New Zealand $515,607.00 7 H Ord Minnett shares $108,096.00 8 H First NZ Capital shares $280,156.00 9 W Telstra shares (200) $811.00 10 W Mercedes Benz motor vehicle $15,650.00 11 H Ford motor vehicle $22,000.00 12 H Harley Davidson motorcycle $22,500.00 13 H Bank of NZ Ready Money (…00) $615.00 14 H Bank of NZ Call Account (…25) $13,254.00 15 H Turner Hopkins Solicitors Nominee Co (…5-2) $102,391.00 16 H Bank of NZ Term Saver (…01) $30,353.00 17 H ANZ V Plus (…88) $2,166.00 18 H Everyday Options (…60) $74.00 19 H Husband's boat, tools and equipment $8,510.00 20 W Wife's mink coat $500.00 21 W Super $22,370.00 22 H Super Fund N $164,755.00 23 H MLC Super $184,889.00 Total assets $2,939,697.00 Liabilities Item no. Title Description Value 24 W Viridian line of credit (…52) $202,292.00 25 W ANZ credit card (…80) & (…21) $4,475.00 26 H Citibank credit card (…81) & (…75) $7,024.00 Total liabilities $213,791.00 Total net assets $2,725,906.00
WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE
The parties have separated and their marital partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities.
The husband concedes there is a need to make an adjustment to the legal and equitable interests of the parties, as set out in the balance sheet, in order to achieve a just and equitable outcome. The assets are currently held as to 76.4 per cent to the husband and 23.6 per cent to the wife.
The husband contends that the legal and beneficial interest of the net assets should not be altered based on the respective contributions of the parties, but concedes there needs to be an adjustment in the wife’s favour when matters in s 79(4)(d) – (g) FLA are considered, which he says should be 4 per cent.
The wife’s primary position is that, based on contributions, she should receive 32 per cent of the net assets without any adjustment for her Kennon claim. Thereafter she should receive an 8 per cent adjustment for her Kennon claim, bringing the overall adjustment on contributions to 40 per cent to the wife and 60 per cent to the husband.
The wife’s secondary position is that in the event that her Kennon claim fails, that 32 per cent should be the minimum adjustment to be made in relation to contributions.
The total period of time the parties actually lived together was 8.8 years. Even on the husband’s version, the parties’ cohabitation spanned over a 13.5 year period during which time both parties made significant contributions to the acquisition, conservation and improvement of the asset pool.
I find that in all the circumstances, it is just and equitable to make an order altering property.
WHETHER A GLOBAL APPROACH OR ASSET BY ASSET APPROACH SHOULD BE USED
Counsel for the husband contended that I should take an asset by asset approach rather than a global approach.
Counsel for the husband relied upon McMahon & McMahon (1995) FLC 92-606, however as counsel for the husband conceded, the parties in that case had cohabited for two years. The parties in this case have cohabited for 8.8 years (their cohabitation and marriage spanning a total period of either 13.5 or 15.5 years).
I find there is little utility when embarking upon a consideration of the contributions to assets and liabilities to divide them into different pools. A global approach is more appropriate.
CONTRIBUTIONS
Initial Contributions
At the date of cohabitation, the husband owned three properties; the E Street property (item 4) which was unencumbered, a property in New Zealand (item 6) with a mortgage of approximately $100,000 (which mortgage is now discharged), and an unencumbered property at Suburb T (item 5). He also had a share portfolio in Australia of approximately $100,000, a share portfolio in New Zealand of approximately $350,000, a motor vehicle worth $20,000, superannuation worth $100,000 and personal possessions worth approximately $5000.
At the date of cohabitation, the wife owned a property at Suburb J (item 1), and an investment property at Suburb L (item 2). She also owned a Toyota motor vehicle, superannuation and personal possessions. The wife had a debt of $110,000.
Financial Contributions
The parties both worked during the marriage.
The husband worked full time. The wife worked part time. The husband’s income was greater than the wife’s and financially he contributed a greater amount towards the expenses of the parties.
To a large degree, the parties kept their finances separate. In the main, each paid the expenses of the properties which they brought into the relationship. The husband asserts the wife “never paid any outgoings or expenses in relation to the [E Street] property.” He later deposed he “paid all the rates, expenses and the insurance” in relation to the E Street property. The wife asserts that until the parties were married she paid half of the expenses at E Street, except for the rates and insurance. After the parties married, she says the husband paid the bills and she “paid for some of the groceries.”
In so far as there is some difference in the evidence of the parties about payments, neither party was challenged in cross examination about their respective versions, probably because little turns on these differences.
Non-Financial Contributions
The husband asserts he made some improvements to the wife’s property. The wife says that the husband’s contribution to her property was minimal. She concedes that he replaced the guttering and toilet in the I Street property and on five occasions helped her mow the lawn at that property. She says he also installed a hot water system at the K Street property. The parties agree the husband carried out some improvements to the wife’s properties.
The husband says he also installed a new hot water system at the wife’s I Street property. The wife says she asked him to install the new system and “he told [her] to look up the yellow pages.” I am unable to resolve whose version is accurate.
As I have already mentioned, the wife said in her affidavit that she assisted the husband in 2006-2008 by “doing spread sheets on his rental properties to send to New Zealand.” The husband denied she did this. In her oral evidence, the wife agreed she really did not have anything to do with the husband’s New Zealand properties.
The husband does not deny that the wife was the primary homemaker but says he regularly cooked and they shared the cooking. The husband says that when they lived together in E Street, the wife “helped with cleaning and she was certainly a better cleaner than I was”. The wife says she did most of the cooking and cleaning at E Street. Based mainly upon my findings about the wife’s use of alcohol (see below), I find that the husband gives the more reliable evidence about the homemaker contributions. I accept the husband’s evidence that the wife “never helped [him] clean” the S Street property.
Post Separation Contributions
The husband has made significant improvements to the E Street property since the wife moved out. It is the wife’s evidence that he has “concreted and tiled the second bedroom, plastered and repainted the walls of the second bedroom, tiled the laundry, bought a new fridge and TV, bought new recliner chairs, installed a solar panel and replaced the roof.” She also says he installed an air conditioner when D relocated out of the E Street property.
The wife’s use of alcohol
The wife is an alcoholic.
The husband alleges that the wife’s alcoholism began before their relationship. He says that “at the time we got together [the wife] did drink excessively.” I find that the wife was a heavy drinker from the time the husband met her. The wife’s daughter confirmed that her mother’s level of alcohol consumption from early on was a bottle of wine each day. She said that that level of consumption did not seem to visibly affect the wife’s demeanour. I infer the wife had a high level of tolerance to be able to drink that amount of alcohol on a daily basis without apparent effect. In fact, based on Mr B’s expert evidence, the wife was an alcoholic from early in the cohabitation. He said that assessment could be made if the wife was drinking one bottle a day.
I accept that the wife’s drinking increased over the period the parties were in a relationship and at the current time the wife’s evidence is that she drinks alcohol at a level of about three bottles a day (that is consistent with her evidence that she spends about $100 a week on alcohol and buys wine at $5 a bottle).
I infer that the level of expenditure by the wife on alcohol during the marriage had a small impact upon the overall financial position of the parties.
The applicable principles relating to the wife’s Kennon claim
The Full Court in Kennon & Kennon (1997) FLC 92-757 said the following:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, to put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
In Spagnardi & Spagnardi [2003] FamCA 905 the Full Court referred to the above passage in Kennon and emphasised the words “which is demonstrated” saying:
The question is whether a trial judge may infer from the evidence that the result must be that a party’s contributions have been affected.
The Full Court in Kennon went on to say that considerations of this nature only apply in a relatively narrow band of cases and that it was not directed at conduct which does not have that effect and, of necessity, it usually did not encompass conduct proximate to the breakdown of the marriage basically because there would be insufficient time for any impact to be relevant to contributions.
In Spagnardi, the Full Court approved a statement by the trial judge, when the trial judge had commented on the difficulty in that case which arose from the wife’s material, because although it gave evidence about specific acts of violence, it did not expressly refer to the impact of the violence on her contributions. The trial judge went on to say:
It cannot, however, be the law that the failure to state such matters expressly is necessarily fatal to such evidence; there must be cases where it is obvious or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person’s contributions.
The Full Court in Spagnardi also commented upon the reference to “exceptional cases” and “the relatively narrow band of cases”. The Full Court in Spagnardi adopted the trial judge’s comments that:
…the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernable impact’. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon.
The Full Court in Spagnardi at [47] said:
An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
·The incidence of domestic violence;
·The effect of domestic violence; and
·Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to "contribute" as defined by section 79(4).
The wife is seeking an adjustment of 8 per cent on account of the application of the principles in Kennon. This equates to a 25 per cent uplift factor for Kennon considerations on what the wife otherwise says should be a finding in her favour based upon contributions (8/32 = 25 per cent).
Detailed history of alleged family violence
The parties have different recollections as to the level of family violence during the relationship. Both parties on one occasion each had domestic violence orders made in their favour during the relationship.
The husband conceded that on three occasions his hand came into contact with the wife’s head.
In her affidavit, the wife alleges that in December 1994, the husband kicked her up the backside and pushed her into the bedroom. The husband denies this but says he “pushed her with [his] foot once only.” In her oral evidence, the wife said the husband kicked her about four times, and she fell to the floor. She conceded that the parties had been to a party, and she had been drinking, although she was not sure how much alcohol she had consumed.
The wife did not remember the first occasion the husband hit her in the head and she gave no evidence about it. The husband concedes he hit the wife in 1998. Evidence about that incident is only before the court because the husband produced his diary entry of the event (exhibit 11):
Softens early. Please come to Green. Reasonable day. Drinks full bottle [of] champers on beach plus glass on way out plus rum on way back. Aggressive again once home. Money argument again. ‘You should support me financially, feed me etc’. Roars. Slapped left side of face in attempt to shut her up. Stressed again.
Makes statement during day at beach ‘I hope [D] has many men early in life. That was my mistake’!
In many ways that diary entry encapsulates what happened during the marriage, namely, that the wife from the commencement of the relationship was an alcoholic (consuming at least one bottle of wine per day and three by the end). I find that the wife behaved badly on regular occasions during the marriage and on occasions she confronted the husband physically. On occasions the husband reacted in a physical way to restrain the wife. On occasions he crossed the line. The husband conceded that on a number of occasions he lost control.
On two occasions the wife suffered bruising to her face either on or near her eye as a result of a single contact by the husband with his hand to that part of her face. It is agreed that no long term physical injury was occasioned to the wife.
One of the occasions when the husband hit the wife in the face was on 4 or 5 May 2003, when the parties fought over the television remote control and the wife threw the remote at the husband’s abdomen. The wife asserts the husband proceeded to strike her in the nose and left eye, causing the wife’s nose to bleed and her eye to swell up and partially close. The husband says the wife hit him in the crotch with the remote control. He “lashed out in shock making contact with [the wife’s] cheek with the palm of [his] hand.” As a result of this incident in May 2003, the wife obtained a DVO against the husband.
The husband asserts the wife was violent towards him. He says she has thrown at him “glasses, cups of coffee, food (both hot and cold), a cut glass jewellery box, chairs, [and] plates”. He says she has smashed a fax machine, a DVD recorder and thrown a table against a wall causing damage to both the table and wall. On 29 January 2004, the husband obtained a DVO against the wife.
Conclusion on the wife’s Kennon claim
I am not satisfied that the course of the husband’s conduct has been demonstrated as being one that would lead to a conclusion that there was systemic family violence perpetrated by the husband on the wife. That is not to say that the husband did not, on occasions, behave in a totally unacceptable way. I accept also that the husband was sometimes unpleasant and aloof during the period of his relationship with the wife. But it was a relationship characterised by a volatile interaction between the two of them over a long period of time and involved regular excessive drinking by the wife.
Even if I am incorrect in relation to the finding that there has not been a course of conduct by the husband, I would not find that any such course of conduct made the wife’s contributions significantly more arduous in a way that would allow me to quantify them in the manner proposed by the wife and entitle me to make a significant adjustment in the wife’s favour, based upon contributions.
Conclusion on contributions
The weightiest considerations are the initial financial contributions, the manner in which both parties dealt separately with their own finances during the marriage and the length of the period the parties were actually together. Notwithstanding her consumption of alcohol, the wife did fulfil the primary role as homemaker, but the husband did help. I find that the wife is entitled to a 4 per cent adjustment in her favour based on contributions.
FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS
In the event the court made a 32 per cent adjustment to the wife on contributions, then the s 79(4)(d) – (g) FLA adjustment sought by the wife was in the range of 5 – 10 per cent. A 10 per cent adjustment would lead to an overall adjustment of 42 per cent to the wife and 58 per cent to the husband. Based upon the wife receiving 40 per cent of the assets, the wife seeks a further 4 per cent adjustment in her favour as a result of s 79(4)(d) – (g) FLA factors. This leads to the wife receiving 44 per cent of the assets.
The husband is prepared (on the basis of a 76.4/23.6 division on contribution) to accept a 4 per cent adjustment on s 79(4)(d) – (g) FLA matters which would require him to pay from his shares and/or cash an amount equivalent to 4 per cent of the overall pool of assets.
Following my findings on contributions, there is still a significant disparity in the net assets of each of the parties. The husband is in a far stronger financial position than the wife.
The wife is 60 years of age. The wife consumes a large amount of alcohol. She told Dr O that she consumed 1 to 2 bottles of sparkling wine per day. The wife said to Mr B “I have between one and three (3) bottles of champagne every day.”
Dr O opined that the wife suffers from “chronic depression, chronic Adjustment Disorder with depressed mood with symptomatic substance abuse/dependence with alcohol.”
The wife said in her oral evidence that she has been to Organisation P (an alcohol treatment service) twice since 1994. Mr B noted that the wife said to him “I can’t really make promises about my drinking; because I don’t want to give it up. I look forward to it; and it calms me down. It is like a friend to me now”. The wife agreed in cross examination that her position remains that she does not want to stop drinking.
The husband made a submission that I should not place any weight on the wife’s medical condition in circumstances where she was failing to get treatment for her alcoholism. That is a somewhat simplistic view about the wife’s illness, and I have regard to the debilitating nature of the wife’s illness.
Despite her illness, the wife has been able to continue work in a clerical position. She says that she has lost contracts; she only has one weekly client and several quarterly clients. I find that the current problems the wife experiences with her mental status (associated with her use of alcohol) will impact upon her earning capacity.
The wife says in her Amended Financial Statement filed 26 October 2012 that her weekly income is $961, and her weekly expenditure is $2,233. The expenditure figure contains expenses relating to a negatively geared investment property and an allowance of $1085 per week (including $210 per week for entertainment and holidays) for personal expenses. The husband did not seek to challenge that evidence.
The husband is 64 years of age. He says he suffers from “osteoporosis in hips, ribs and bulging discs in [his] back.” In his 2011 affidavit he said he intended to retire in May 2012 and by the time of the hearing said he had done so.
I do not accept that the husband has no earning capacity, notwithstanding the fact that he says he has retired. The husband asserted he was “losing sharpness” but he did not present that way in the courtroom when he was giving evidence.
The husband concedes the wife assisted with his daughter C but asserts this assistance was “much less…than [he] provided for [the wife’s] two children.” The wife denies the husband assisted with her children but I accept he did. The assistance that the wife gave in caring for the husband’s child C and the husband gave to the wife’s children are matters to be taken into account (see Robb & Robb (1995) FLC 92-555).
Conclusion on s 79(4)(d) – (g) matters
The major consideration is that the husband, as a result of the contribution finding, is in a far stronger financial position than the wife. The wife’s medical issues (including her alcoholism) are more debilitating on her earning capacity than are the husband’s different medical issues. I take into account the husband’s age and my comments about his remaining earning capacity. I find that an adjustment of 5 per cent is appropriate in the wife’s favour.
JUST AND EQUITABLE
The wife seeks an overall division of the assets, 44 per cent to the wife; 56 per cent to the husband, and the husband seeks the adjustment to be 72.4 per cent (76.4 – 4%) to him and 27.6 per cent to the wife.
Based upon my findings on contributions and s 79(4)(d) – (g) considerations, the overall pool of assets should be divided by giving a 9 per cent adjustment from the total net assets to the wife. The assets are currently held on the balance sheet as to 76.4/23.6 to the husband. The adjustment will mean that the husband will receive 67.4 per cent of the net asset pool and the wife will receive 32.6 per cent.
This can be achieved by a distribution in accordance with the following table:
Husband gets 67.4% Assets Item No. Description Percentage Value 4 E Street, Suburb T 100% $340,000 5 S Street, Suburb T 100% $295,000 6 Property A, New Zealand 100% $515,607 7 Ord Minnett shares 100% $108,096 8 First NZ Capital shares 100% $280,156 11 Ford motor vehicle 100% $22,000 12 Harley Davidson motorcycle 100% $22,500 13 Bank of NZ Ready Money (…00) 100% $615 14 Bank of NZ Call Account (…25) 100% $13,254 15 Turner Hopkins Solicitors Nominee Co (…5-2) 100% $102,391 16 Bank of NZ Term Saver (…01) 100% $30,353 17 ANZ V Plus (…88) 100% $2,166 18 Everyday Options (…60) 100% $74 19 Husband's boat, tools and equipment 100% $8,510 22 Super Fund N 100% $164,755 23 MLC Super 100% $184,889 Liabilities Item No. Description Percentage Value 26 Citibank credit card (…81) & (…75) 100% $7,024 Husband pays Wife $246,081 Net Assets to Husband $1,837,261 Wife gets 32.6% Assets Item No. Description Percentage Value 1 I Street, Suburb J 100% $295,000 2 K Street, Suburb L 100% $240,000 3 F Street, Suburb M 100% $275,000 9 Telstra shares (200) 100% $811 10 Mercedes Benz motor vehicle 100% $15,650 20 Wife's mink coat 100% $500 21 Super 100% $22,370 Liabilities Item No. Description Percentage Value 24 Viridian line of credit (…52) 100% $202,292 25 ANZ credit card (…80) & (…21) 100% $4,475 Wife receives $246,081 Net Assets to Wife $888,645
Standing back I find that a distribution in this manner is just and equitable.
The husband should have three months to organise his finances to payout the wife and in default there should be a sale of the property at S Street, Suburb T.
The wife sought an order pursuant to s 106A FLA that a Registrar be able to execute documents in the event either party refuses or neglects to execute such documents. I accept that is an appropriate order to make.
I give the parties liberty to restore the matter on 14 days notice in respect of implementation of my orders.
SPOUSAL MAINTENANCE
Counsel for the husband submitted there was no basis for making an order for spousal maintenance.
The husband did not challenge the wife about what she said about her ability to earn income.
The husband sought that any order for spousal maintenance should be made on a weekly basis rather than a lump sum payment.
As a result of my findings based on contributions and s 79(4)(d)-(g) factors, the wife will receive $246,081.
I have already dealt with the significant s 75(2) FLA matters when discussing the parties’ alteration of property interests. The wife has not established that she has a need for lump sum maintenance given the order for alteration of property that she is receiving and the earning capacity that she still has. It would not be proper in the circumstances for the husband to have to provide an additional capital sum to the wife by way of lump sum spousal maintenance.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 4 June 2013
Associate:
Date: 4.6.13
SCHEDULE 1 – Documents relied upon
The applicant wife relied on the following:
1.1.Third Amended Initiating Application filed 25.07.2012
1.2.Wife’s affidavit affirmed 30.03.2012
1.3.Wife’s financial statement filed 28.02.2012 and her amended financial statement filed 26.10.2012
1.4.Affidavit of D sworn 12.03.2012
1.5.Affidavit of Dr O affirmed 1.09.2011
1.6.Affidavit of Mr B sworn 4.04.2012
The respondent husband relied on the following:
2.1.Response filed 30.09.2011
2.2.Husband’s affidavit sworn 19.4.2012
2.3.Husband’s financial statement filed 30.09.2011 and his financial statement sworn 31.10.2012 (filed in court)
2.4.Affidavit of Mr Q affirmed 19.04.2012
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