Munt & Munt
[2007] FamCA 807
•18 July 2007
FAMILY COURT OF AUSTRALIA
| MUNT & MUNT | [2007] FamCA 807 |
| FAMILY LAW - PROPERTY SETTLEMENT – Contributions – Husband suffered work injury and received WorkCover payment – Consideration of treatment of award of damages - Husband in receipt of disability support pension and has not worked for 13 years – Husband provided no recent evidence regarding his capacity to obtain work - Husband contributed significant capital sums – Wife contributed through earnings from her employment – Wife has care of 12 year old child of the marriage - Contributions assessed at 62.5%/37.5% in favour of the husband - Adjustment of 5% in favour of wife for s 75(2) factors – Husband assessed to have 25% interest in wife’s superannuation FAMILY LAW - SPOUSAL MAINTENANCE – Application by husband for spousal maintenance dismissed |
| Family Law Act 1975 (Cth) ss 72, 75(2) & 75(3) Child Support (Assessment) Act 1989 (Cth) s 117(7B) |
Omacini & Omacini (2005) FLC 93-218
Coghlan & Coghlan (2005) FLC 93-220
Pierce & Pierce (1999) FLC 92-844
Williams & Williams (1985) FLC 91-628
Aleksovski & Aleksovski (1996) FLC 92-075
Farnell & Farnell (1996) FLC 92-681
Brandt & Brandt (1997) FLC 92-758
K & K [2004] FamCA 360
| APPLICANT: | MRS MUNT |
| RESPONDENT: | MR MUNT |
| FILE NUMBER: | ADF | 1001 | of | 2006 |
| DATE DELIVERED: | 18 July 2007 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | JR Forbes |
| HEARING DATE: | 30 & 31 May 2007, 1 June 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr D Whittle |
| SOLICITOR FOR THE APPLICANT: | Nelson & Co |
| THE RESPONDENT: | In person with interpreter |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the Reasons of the Court delivered this day will for all publication and reporting purposes be referred to as MUNT & MUNT
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 1001 of 2006
| MRS MUNT |
Applicant
And
| MR MUNT |
Respondent
REASONS FOR JUDGMENT
The wife applies for settlement of property. In an application filed 13th July 2006 she sought an order in general terms, that is to say, the identification of all items of real and personal property and a division thereof as may be determined by the court.
The husband by way of his Response, Amended Response, and Further Amended Response adopted the approach taken by the wife and in addition, sought $195.00 per week by way of spousal maintenance. Each party sought costs against the other.
Introduction
This was a 13 year marriage with one child. The parties for all but the first year of the marriage have lived in Australia where they remain. Early in the marriage the husband suffered a work injury and received periodic and a lump sum WorkCover payout as well as pre-payment of his superannuation because of disability. The husband also inherited a house property, the proceeds of which were placed into the matrimonial home. There is an issue about the weighing of the husband’s contributions as well as his present earning capacity.
For the wife, she worked as a teacher as and from 2000. She continues in that work and has the care of the 12 year old child. She concedes a loading in favour of the husband for contribution but says that he has an unfulfilled earning capacity. She opposes his application for spousal maintenance.
General background
The parties married on 10th August 1991. They married in Poland. It was the country of their birth. The wife was 26 years of age. She had obtained qualifications as a teacher and majored in science. The husband was 31 years of age. He had obtained a Diploma … but had undertaken work as to which he was over qualified. He described himself as a machinist, first class.
On 18th January 1992 the parties migrated to Australia. The husband said that they held the sum of $5,000 or $6,000 by way of savings at that time. In the circumstances in which he gave that evidence, there was no opportunity for the wife to comment. Then again, there is no reason why his evidence on that matter should not be accepted. Neither of the parties could speak English and forthwith upon arrival they commenced English classes and were so involved for the rest of that year.
In March 1993 the husband obtained work. The wife attended a teaching course to obtain accreditation of her existing qualifications. In 1994 the wife graduated with a degree from University.
In February 1994 the husband suffered a work related injury.
In October 1994 the child M was born.
In May 2004 the parties separated under the same roof.
Contribution - wife
In 1996 the wife commenced a TAFE course as a Bilingual Assistant at a languages centre. Her employment was on a casual basis.
In 2000 the wife completed a Certificate in disability studies and commenced work at a disability agency on a casual basis. The wife says that this was at a time when she did not feel sufficiently confident in the English language to commence teaching. She did undertake voluntary teacher training and in 2001 commenced as a temporary relief teacher with the Department of Education. She was employed on contract and has continued work under contract since. A schedule of her earnings from 2000 is as follows:
2000/2001 $16,394.00
2001/2002 $39,083.00
2002/2003 $39,955.00
2003/2004 $49,018.00
2004/2005 $52,594.002005/2006 $53,240.00
Following the birth of the child M, the wife provided for her. The wife then resumed work in 1996 as a carer and continued in that work until the year 2000 when she commenced teaching.
Contribution - husband
Following the husband’s back injury at work in February 1994, he was placed on WorkCover with occasional periods of light duty at work until 1995 or 1996. He has not worked since. He became eligible for a part Disability Support Pension which was means tested as against the wife’s income. The husband from time to time would receive, subject to the wife’s income, a pension entitlement.
In 1996 the husband received a lump sum payment from WorkCover of $49,500. He also received a lump sum payment by way of redemption of weekly income of $15,632. The husband alleged that the payment received was $18,759 but conceded that he had failed to make allowance for costs and deductions and that the lesser sum was accurate.
In 1999 the husband obtained an early release of his superannuation entitlement with Superannuation Trust of Australia. The fund trustee accepted that the husband satisfied the ground of total permanent disablement. He received the sum of $47,038.
In 2001 the husband received by way of inheritance a property at C. He was required to pay $7,000 to the executors of the estate to settle outstanding accounts. The property was in poor condition. The wife says that she and the husband renovated it. The wife concedes she was working full-time but indicates that her contribution was of a weekend. The husband says that the wife’s input was none. He himself says “I had to hire man to do the main job for me”. The wife says that $10,000 was expended in the cost of renovations. The husband denies that assertion but fails to provide particulars as to moneys spent. This property was sold in April 2002 for $107,000 and with selling costs the husband received $102,403.
Purchase and sale of property
In March 2000 the husband bought 2 blocks of land at R. The allotment at U was purchased for $31,244 and sold in September 2001 for $41,892. The allotment at S was purchased for $24,635 in the year 2000. The husband retains this allotment. It is currently on the market for sale.
The matrimonial home at M was purchased on 7th September 2001 at a cost of $197,000. It was purchased in the joint names of the parties. A mortgage was taken with the Commonwealth Bank in the sum of $164,600. The husband contributed the proceeds from the land at R, the sum of $40,380. The repayment on the mortgage was $452.50 per fortnight. The wife’s salary was used to pay this sum although generally she was without income during school vacation periods. The husband’s disability support pension in those periods was paid at the maximum rate. Nevertheless the mortgage commitment was at a level that imposed hardship upon the family and the wife sought that the husband sell the inheritance property at C and use the proceeds to reduce the mortgage. Upon the sale of the C property in April 2002, the husband then refused to apply any sum towards the reduction of the mortgage until the wife signed an agreement. It was an agreement dated 17th April 2002 and it provided that the husband would pay the sum of $91,936.63 towards the mortgage balance, the wife agreeing to make no financial claim against that sum. By way of notation the agreement also records:
“As of 2/05/2001 [the wife] is employed in the capacity of […] teacher and is the only breadwinner in the family. Interest on the mortgage is being paid off only form (sic) [the wife’s] income. All other current home expenses, like water rates, gas, telephone, electricity, food purchases etc. are also financed for (sic) [the wife’s] income.”
The Commonwealth Bank mortgage was in the sole name of the wife. Upon payment of the proceeds from the C property, the loan was refinanced from a mortgage to a Viridian Line of Credit. This occurred in September 2002 or thereabouts and had the effect of reducing the fortnightly repayments to $186.50. The wife continued to meet the payments from her salary. The Viridian Line of Credit was an account also in her sole name. The wife thereafter continued to meet payments under the Viridian Line of Credit until the 1st April 2006.
Overseas holidays
The parties travelled to Poland in October 1998 and returned to Australia in January 1999. In 2001 the husband travelled to Poland. He was away for about 7 weeks.
The separation
In May 2004 the parties separated under the same roof. Thereafter the husband received the Disability Support Pension at the full rate. He says as a consequence he was financially independent of the wife. The parties remained under the same roof from May 2004 until the wife left the home in April 2006. The child M accompanied her. Thereafter the wife and the husband have lived separately and apart. The marriage was dissolved on 22nd December 2005.
The account record is not to hand but it seems that when the wife undertook the Viridian Line of Credit, which was as she says September 2002, the sum owing was $72,600 or thereabouts. There was a settlement statement of the 6th September 2001 which shows that the balance of funds taken on mortgage on the purchase of M was $164,600. It is also common ground that with the funds that the husband then contributed from the sale of C, that that was an estimated $92,000, leaving a balance then in April 2002 of $72,600. The Viridian Line of Credit was taken in September 2002. It is not clear from the wife’s affidavit evidence whether the husband’s contribution of the $92,000 took place at the same time that the account was made with the Viridian Line of Credit. In the latter instance we know that to be September 2002 and as mentioned, it had the effect of reducing the payments to $186.50 per fortnight.
When the parties separated under the same roof in May 2004, the balance owing under the Viridian Line of Credit is not to hand but as of 1st June the account records an opening balance of $37,697.03. It will be recalled that the Viridian Line of Credit permitted the wife to deposit all of her salary and then any balance not taken by way of personal living expense or other costs, was credited against the account. Both parties say that they were both very careful of their finances and it seems that they lived quite frugally. On all accounts it seems that they effected a reduction in the balance of the account from $72,600 in April or September 2002 to the figure of $38,000 rounding up in June 2004. This constitutes a $34,000 reduction in the mortgage over a period of 2 years or thereabouts, a significant repayment.
Further reductions in the account were achieved from separation. As at 15th December 2005, the balance of the account was $25,702. That sum was the minimum that the account got to. It will be remembered that from May 2004 when the parties separated under the same roof, the husband then received a Disability Support Pension at the full rate so his additional income no doubt freed up further funds enabling the account to be further reduced. At the time that the wife left the home on 1st April 2006 there was owing $44,269. On 3rd April 2006 the wife made a withdrawal of $6,373 which took the balance in the account to $50,642. The wife concedes that the difference in the lowest balance to the balance owing at 3rd April 2006 was a sum of $25,000 in round figures which sum is attributable to drawings by her. It will also be remembered that the wife ceased payments into the Viridian Line of Credit upon separation. No payments have been made under the mortgage since save for a payment of $1,667 on 6th April and I infer this was a final payment made by the wife as she was the only person making payments to the account. When she ceased to do so, the husband did not make any payments and the account has grown, such that as of 30th March 2007 it has a closing balance of $56,664.61. Interest is charged on the account at the rate of 8.070% per annum to a balance of $65,000 and any excess is then debited at the rate of 14.950%. As can be seen, the account is yet to grow to the level at which it would be incurring the penalty interest rate.
Add backs
It will be recalled that the balance in the Viridian account as at 15th December 2005 was the sum of $25,702. It grew to the sum of $50,642 by 3rd April 2006. That represents an increase of $25,000 which the wife says can be explained as follows:-
(a) $7,000 withdrawn to purchase a motor vehicle;
(b) $5,000 withdrawal to open a separate savings account
(c) $2,000 withdrawn to pay solicitors fees
(d) $3,500 withdrawn for 10 day holiday for wife and daughter in Queensland
(e) $600 holiday – husband, wife and daughter at G(f) $4,000 for whitegoods (fridge, washing machine), furniture and TV
As mentioned, the wife was without salary from 16th December 2005 (although I note there is an unexplained credit to her on account of $1,304.72 on 29th December) until 9th February 2006.
The whitegoods, furniture and effects purchased by the wife have not been included in any valuation.
The wife also refers to reductions in the account post separation in May 2004 represented savings achieved from her salary.
Land in Poland
Subject to a life interest in favour of his mother, the husband owns a rural holding including a house property. It was transferred to him in November 1996. The wife estimates its value at $AUD60,000 - $AUD70,000. The husband estimates its value at $AUD20,000 - $AUD25,000 and says further that whilst he holds the interest in remainder that proceedings are contemplated to return the property to either his sisters or to his mother. The husband relies upon a letter from a Polish law firm, an annexure to his affidavit evidence. Unfortunately the letter is in the Polish language and the husband has failed to have it translated. To the extent to which the husband asserts these matters, it is not possible to know the contents of the letter. Whatever may be the status of the husband’s interest in the property, it is clear that it was not the subject of contribution by either party during the marriage and it seems equally clear that the husband’s interest is subject to the life interest of his mother. As well as that it may be that the husband will need to concede an interest in favour of his sisters. In the circumstances it seems to me that it is a matter that can be considered for the purposes of Section 75(2) but otherwise it would be inappropriate to include it in the property of the parties of the marriage.
Mercedes Benz motor vehicle
At separation the husband owned a Mercedes Benz motor vehicle. He agrees that following separation he sold the vehicle and received the sum of $10,000. He says that he paid some money to purchase a business which consisted of selling knives. The husband says that business cost $4,250. The husband says that he withdrew the sum of $5,750 in cash on 10th May 2006. He says of that sum he spent $2,000 in solicitors costs but the balance he held by way of cash in an envelope at his home. He says it has all now been spent. He says the expenditure has been in respect of food and other incidental costs. He said of the knives that remain he would estimate that those would have an estimated value of $2,000.
Award Saver account
This is an account opened by the wife after separation with a deposit on 17th June 2005 of $5,225.12. This money represented the wife’s tax refund for the year ending 30th June 2004. That account has thereafter been credited with payments of Family Tax Benefit A and B. That account grew to the sum of $15,357 as of 10th May 2007. Since then the wife has effected withdrawals of $8,000 on the account being $3,000 on 10th May and $5,000 on 29th May.
Property of the parties to the marriage
Non contentious items
M home $310,000
S vacant land $105,000
Landrover motor vehicle (husband) $4,250
Campervan (husband) $1,000
Furniture and effects (husband) $3,755
Daewoo motor vehicle (wife) $1,000Furniture and effects (wife) $1,345
Contentious items – add backs
a) proceeds of sale of Mercedes $10,000
The sale price is determinative of value. The vehicle was held at separation. In these circumstances it would be appropriate to include the item at its full value. To do otherwise would be to overlook that its sale represents a premature distribution of matrimonial assets as referred to in Omacini & Omacini (2005) FLC 93-218.
b)drawings by wife against Veridian Line of Credit
The total amount involved is $25,000. I am satisfied that of that sum $20,000 should be brought to account. The wife has used the equity in the home (comprising her capacity to draw on the mortgage). She has done this post separation and without reference to the husband. I calculate the sum as follows:
i) for the purchase of a motor vehicle $7,000
ii) to open a separate savings account $5,000
iii) solicitors costs $2,000
iv) ½ costs of holiday to Queensland $2,000
v) whitegoods purchased $4,000
$20,000
The $5,000 balance not brought to account includes a $2,000 allowance as against the Queensland trip. In other words I bring to account that it was a holiday with a child of the marriage and that the parents had an obligation to share the costs of the trip: the other $3,000 is not accounted for in terms of property in specie. It is likely to be living costs undertaken as to a period (the school holidays) when the wife was not in receipt of income and the husband had the Disability Support Pension.
c)Award Saver account
To the extent to which the balance in the account represented a pre separation entitlement (until May 2004 at least) then it should be added back. That would be the sum of $5,225. Further additions to that sum are post separation accumulations, mostly of Family Tax Benefit payable on account of the child.
d)superannuation
The wife’s entitlement with Super SA at 12th April 2007 is $36,396. Given that the parties separated in May 2004, there is nearly 3 years of further contributions to the scheme post separation. For example, as per the wife’s affidavit evidence, the value of the superannuation at 30th June 2006 was $27,859.19. Not knowing the entitlement at separation might be a matter of concern save that the wife is 42 years of age, (she was born on … November 1964) and therefore (save as to invalidity) many years need to run before she is eligible. The preservation age is 60 years for those persons born after 30th June 1964. For the wife that is a very long period: some 18 years. As mentioned, there is little evidence which relates to the superannuation although it is apparent that the interest was created when the wife started work as a school teacher in the 2001 financial year: and in that event, the wife was contributing to the superannuation for 3 of the 6 years which constitutes her period of membership.
Nevertheless the superannuation requires consideration as an item of property. It has those special features, peculiar to superannuation which require consideration. Mention has been made of the wife’s position and her capacity to access the entitlement. Were a splitting order to be made on the husband’s application and a superannuation interest created to his benefit, he may well, because of his Disability Support Pension satisfy criterion such as to permit a payment to him without undue delay. Neither the husband nor wife made specific mention of this matter and it only arises because of the generality of their respective applications. Even so, the superannuation must be included (see Coghlan & Coghlan (2005) FLC 93-220 at page 79,646, paragraphs 65, 66, 67 and 68).
In summary, I am satisfied I should consider the property pool as follows:
i) property pool (common ground) $426,350
ii) add backs – being
Husband’s car proceeds $10,000
Wife’s drawing on bank account $20,000
Wife’s Award Saver account $5,225
$461,575
Less mortgage $56,664 $404,911
Other Property:
Superannuation Super SA $36,396
Further thoughts as to contribution
The husband has made significant contribution of capital sums: from WorkCover of $49,500; redemption of weekly income $15,632; superannuation $47,308 and the inheritance $95,000 ($102,403 less $7,000). The proceeds of U property were contributed to the home which left a mortgage of $164,600 and the inheritance of $91,936 was then paid so as to reduce it to manageable proportions in terms of repayments. The husband explains what he has done with $55,859 of the initial moneys but the total sum is $112,440 so there is a significant sum which is not accounted for - $56,581 to be precise. I think the wife provides part of the answer to that question when she says that whilst the WorkCover payment was made in August 1996, it was not until the end of 1997 that the husband became eligible for a part Disability Support Pension. It is likely, I believe, that part at least of the capital sum was used to meet day to day living costs. Is this an explanation for all of the expenditure? It is the wife who points out in her affidavit evidence that the husband would accuse her of putting away money for her benefit and of having “a hidden stash of money” to which she rejoins by saying that finances were particularly tight when they were both receiving unemployment benefits in the periods 1992 to 1993 and 1997 to 2000 and that the husband had unrealistic expectations about what the wife could do with “the limited amount of money we had”. The husband in his affidavit evidence is not accepting of these allegations. At trial it was not the subject of evidence.
The wife points out that the husband had control of his compensation money which he used to buy the vacant land at R. To the extent that it is possible to take a point of view on this matter, I must say that I prefer the wife’s version of events. She seemed to have much the better memory of the history, she was matter of fact in her evidence and at times gave evidence against interest (e.g. the spending on the line of credit account prior to her leaving the home with the child). The husband did not seem to have the same grasp of the financial history, was more emotional and tended to be pre-occupied by events to do with the breakdown of the marriage.
The cost of the overseas travel in 1998 – 1999 would also be a factor to explain where the moneys went.
The answer to this question as to the use of the unexplained funds is to be found, I believe, in the financial circumstances as they related to the parties. I do not accept as the husband would allege that the wife has used the money in some clandestine manner. Certainly he produces no evidence to support his allegation.
Other financial contributions of the husband would arise from his pension income although this was means tested as against the wife’s income and in the latter years, of relevance, only when the wife was not working viz during school holidays.
As to the husband’s contribution as a home maker and parent, this is something which was not the subject of specific enquiry. No doubt the back injury had a part to play in the husband’s capacity to contribute to feeding, clothing and care of the child. She was born shortly after the husband suffered the injury so it is likely that his capacity to become physically involved only arose after the symptoms associated with his prolapsed disc injury had been allowed to settle. That is the tenor of the reports of the specialists which are to hand and in that respect they seem to agree that he suffered a permanent 10% loss of function of the lumbar spine. Mr B by report dated 19th September 1994 estimated some 16 to 18 months for the prolapsed disc to be allowed to settle. On the question of rehabilitation there is the comment in a report of 4th April 1996:
“[Mr Munt’s] wife at present is not working, however she is attending a Skill Share Program two days a week with the goal of obtaining employment. He has an eighteen month old daughter and his wife is the primary care giver.
[Mr Munt] understands that in the event his wife obtains employment, appropriate child care arrangements would need to be put in place to ensure he is available to work.”
This is a long time ago, but a contemporaneous account nonetheless which is suggestive that the husband was caring for the child for 2 days of the week whilst the wife was training for work. It was the wife who eventually obtained full time work as a teacher. Her capacity to contribute at the level of income earned has been mentioned. The husband did not ever return to paid employment. As a general comment, it seems that the husband’s ill health, and it included depression, prevented him from contributing at the same level as that of the wife in the period from late 1994 until separation, some 10 years later. I do not understand the evidence to be that the husband’s depressive condition continued throughout that period. The question of the husband’s failure to test his capacity to obtain work in that period was not the subject of evidence or comment.
In Pierce & Pierce (1999) FLC 92-844 the Full Court at page 85,881 said:-
“28. In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.”
In this matter there is the need to weigh the capital sums received, an amount of $112,440, as against the other contributions of each of the parties. The wife concedes that the weighing of contribution in favour of the husband could not be more than 60:40. The husband was not specific as to the actual apportionment except in the context of a final adjustment. It is clear, however, that he seeks consideration because of the contribution of the capital sum and he is very conscious that as to the WorkCover payment, that it represented finality as to his agreed and assessed entitlements for injury and disability as well as the payment out of his future earning capacity.
The husband effectively argues that these moneys should be considered separately, certainly that as an item of contribution they require special consideration. This is a matter which has been the subject of judicial comment from time to time:
i) on the question of whether an award of damages can be considered to be property, the subject of assessment of contribution, the Full Court of the High Court in Williams & Williams (1985) FLC 91-628 said:
“The short answer to this submission is that when the property available for division between the parties represents an award of damages for pain, suffering and loss of amenity, it may be relevant, in some situations, to have regard to the circumstances relating to that award, but there is no general presumption that the award should be left out of account in determining what order should be made under s 79 of the Family Law Act 1975 (Cth).”
ii)on the question of whether an award of damages can be considered to be a contribution in isolation from other contribution of the parties, the Full Court in Aleksovski & Aleksovski (1996) FLC 92-705 at page 83,437 said:
“In our opinion, in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.”
iii)on the question of what weight should be accorded an award of damages, the Full Court again in Aleksovksi (supra):
“It is therefore necessary that trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.
It really comes down to questions of weight. Whilst weight would and must be given to a contribution which a party makes shortly before the separation, less weight may be given to a contribution made by one of the parties to a marriage early in the cohabitation period of a long marriage, particularly in circumstances where the contribution has gone into the parties' assets or been used up in the payment of family expenses.”
These statements of principle were accepted and adopted by the Full Court in an unreported decision of K & K [2004] FamCA 360.
The property pool totals $404,911. 10% of that sum is $40,491.
The WorkCover moneys and the superannuation represent the sum of $112,440. Of those moneys, as noted, the investment in the land at U finished up becoming the deposit on the home at M: $40,380 and then the inheritance, $91,936, was paid in reduction of the mortgage. Another $24,635 of the original moneys was put into vacant land at S and that is now represented in the property pool at $105,000.
If the $56,581 is a sum of money which has not been accounted for, we can be satisfied, I believe, that there was a sum of $146,879 which was contributed to property which remains, namely the home and the remaining block of land at E.
The marriage was of 13 years. There is the one child. Each party has made contributions by way of effort and endeavour. The husband has contributed all of the capital sums received: then again, he has not been in a position to match the wife’s contributions by way of earnings in the latter part of the marriage. The wife would also refer to her post separation contribution in her care of the child, the financial costs of which she has had to mostly bear herself.
On the one hand, a 30% allowance for the husband (65:35), a sum of $120,000 (rounding down) would be excessive because it is almost as much as the capital sum identified above, a 10% adjustment 55:45, or in monetary terms $40,000 (rounding down) would seem too little. But I would have thought that these are the figures which represent the boundaries of the dispute.
The husband may say that it is something of the order of $202,000 which can be attributed as capital contributions. I accept the observation but I am more mindful of the identified capital contributions. The other contributions whilst of a capital nature seem to have been absorbed in the day to day living expenses and as a consequence can be characterised much as the other contributions by the parties in work, training, pension income, child care and matters of that nature.
I believe it would be just and equitable to apportion contribution at 62.5 : 37.5. That is a difference of 25% and an amount of something over $100,000. That would give to the husband a contribution based property entitlement of $253,069 and to the wife $151,841.
Superannuation
There is a paucity of information. The best that can be achieved is to consider a joint contribution by the parties for the period 2001 until 2004. If that is half of the total period of contribution then without further consideration, the husband could be assessed as having a 25% interest (half of a half). As mentioned, the exercise is almost hypothetical from the wife’s point of view: not necessarily so for the husband. The relevance of the superannuation may require further consideration under the question of what is just and equitable for the purposes of resettlement of property
Wife’s superannuation Super SA $36,396
Apportioned: 75:25
Wife’s entitlement $27,297Husband’s entitlement $9,099
Section 75(2)
a) the age and state of health of each of the parties;
The wife is 42 years of age. She describes herself of not being of good health. She says she suffers chronic back pain and has done so over the last 20 years. As well as low blood pressure and low iron levels which at times require injection, she says that she has polycystic ovarian syndrome which causes significant pain. She is concerned that she has received advice to the effect that the condition can lead to diabetes. She says her teeth are in poor condition and she is in need of implants. She says she has reflux which itself has an affect upon her ability to be fitted with dentures.
The husband is 47 years of age. As mentioned, he suffered a work related injury to his lower back and lumbar spine on 22nd February 1994. Later he was diagnosed with hearing loss as of 27th March 1995. Later again on 19th May 1995 he was diagnosed with depression and anxiety. The husband has tendered a number of medical reports relating to his injury, treatment and permanent disability. As mentioned, the husband received a payout from WorkCover because of his injury, as well as a payment in redemption of an obligation to pay weekly wages. In 1997 he was found to be diabetic. Eventually he required insulin. The diabetic condition may lead to further disease developing i.e. retinal, renal and neurological damage particularly to his feet. Heart disease is also a possibility as is hypertension. Recently his psychiatrist, Dr A, recommended resumption of Zoloft because of depression. That condition is thought to arise because of the Family Court proceedings.
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;
Wife:
Property
i) Contribution based property entitlement $151,841
ii) Contribution based property entitlement superannuation $27,297
iii) Commonwealth Streamline account as at 29/5/07 $692
iv) Commonwealth Bank Visa at 30/5/07 $746
v) Daewoo motor vehicle sold 1/2/07 $1,000
Liabilities
Solicitors costs (disregarded – see Farnell (1996) FLC 92-681)
Income
Average Weekly Salary $1,111.00 pw
Family Tax Benefit A .50 pwFamily Tax Benefit B $65.00 pw
$1,177.00 pw
The wife received Child Support in a lump sum of $333 paid as to the period of 12 months ending 1st April 2007 and paid on 6th February 2007. That represents $6.40 per week.
Personal Expenditure
Fixed expenditure claimed $500 pwOther expenditure claimed (per W1) $757 pw $1,257 pw
Husband
Property
i) Contribution based property entitlement $253,069
ii) Contribution based property entitlement superannuation $9,099
iii) Commonwealth Bank – Pensioner security a/c $6iv) ANZ – GST Management a/c $41
Liabilities Nil
Income
Disability Support Pension $259 pw
P Australia Import virtually Nil
Personal Expenses
Fixed expenditure claimed $74 pw
Other expenditure claimed $448 pw $522 pw
Financial Resources
Interest in property in Poland Value unknown
“… physical and mental capacity of each of them for appropriate gainful employment”
Mr L by report of 8th February 1995 reported of the husband being “… slightly in depression.” He was seeing the psychiatrist, Dr A, in the period 1994 to 1996 and more recently from 2005. This was for depression. The more recent depressive condition came from the marital situation. As mentioned in paragraph 14, the husband has a work related back injury which occurred some 13 years ago. The reports relating to rehabilitation undertaken in 1994 and 1996 indicate that a range of work was open to him. The husband does not address this question. He fails to explain the circumstances in which he cannot undertake work which is suitable to his medical condition. He has a long standing lower back injury, some hearing loss, and is diabetic. I would not have thought that these conditions of themselves were matters which would preclude the husband from obtaining work. He also suffers depression. This medical condition in conjunction with the other medical history may well prevent the husband from obtaining work at this time. However, the qualification voiced by his medical advisors is that the depression is related to these proceedings. The husband fails to address the question of his ability to resume work once these proceedings have been resolved. In these circumstances, I should not discount the capacity of the husband to resume work. He is 47 years of age. He impresses with an ability to articulate the issues in the matter. I thought him to be quite resourceful. On an issue such as this, it is very much a matter of attitude.
As mentioned, the husband pre-supposes that the acceptance of a loss of earning capacity under the WorkCover legislation and for Social Security purposes provides the answer to what may be his earning capacity for the purposes of these proceedings. The medical evidence provided by him does not of itself provide the answer. The husband refers to and relies upon the report of Dr T dated 3rd May 2007. That report has been very generous to the husband. It refers to the various medical conditions of the husband including the depression which has been induced by these proceedings. What it fails to address is the underlying capacity of the husband to undertake work. What the doctor says is this:-
“Since marital failure has occurred there has been a dominance of his thinking which pervades our consultations pertaining to his marriage failure, the potential for a poor outcome through the Family Law Court which may result in financial hardship and the loss of his children. I am sure that the relationship between his resultant depression and levels of anxiety are implacable in his poorly controlled diabetes at this time.”
I think the husband has turned away from the idea of obtaining work, certainly at this juncture when he perceives that his property is already at risk. Ultimately it becomes a matter of personal assessment and as mentioned, he impressed as a person with the intelligence and resourcefulness so very necessary, if rehabilitation were to become an option. In the context of a determination of an earning capacity for the purposes of these proceedings, I am not satisfied that the husband has no earning capacity. It is a matter to which I will return.
c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The child M resides with the wife. I made a consent order at the commencement of the trial which provided:
a)that the child live with the wife
b)that the child spend time with the husband from 6pm Friday to 6pm Sunday on each alternate weekend, for half of school holidays, on special occasions (including Christmas, Easter, the child’s birthday, the husband’s birthday and Father’s Day) and such other times as the parties may agree.
It was further ordered that the times that the child shall spend with the husband shall be subject to her wishes.
Prior to the making of the order, there had been a recent history of the child not seeing the father. She is now 12 years of age. It is to be hoped that under the order the child would wish to see the father but the recent history indicates that there may still be difficulties with this happening.
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;
The wife’s expenditure:
The question of the wife’s expenditure is not without some difficulty. The wife referred to and relied upon her financial statement filed 2nd April 2007. In that document she alleged total personal expenditure of $1,257 per week made up of fixed expenditure of $574 and other expenditure of $683 per week. The item “other expenditure” was not the subject of particulars as per Part N of the document. In evidence the wife then tendered a schedule of Part N expenditure. This totalled $757 per week. The wife did not otherwise seek to make adjustments as to her total expenditure. The matter nevertheless has been adjusted upon the basis that the wife’s expenditure comprises a total of $574 for fixed expenditure and $757 for other expenditure, a total of $1,331.
The wife’s expenditure comprises:
Income tax $290 per week
Rent $260 per week
Medibank Private $7 per week
Contents insurance $7 per week
Computer hire $10 per week
$574 per weekTotal other expenditure $757 per week
$1,331 per week
The husband’s expenditure
A similar situation arose in respect of the manner in which the husband completed his financial statement. His amended financial statement filed on 26th April 2007 alleged total personal expenditure of $471 per week but has in fact been incorrectly totalled and the sum should be $522 per week.
The husband’s expenditure comprises:
Mortgage – Commonwealth Bank nil
Rates $30 per week
Other rates $21 per week
House insurance $5 per week
Car insurance $3 per week
Car registration $3 per week
Hire purchase – Camera $4 per week
Visa Credit Card $1 per week
Child Support $7 per weekOther expenditure $448 per week
$522 per week
Child Support
The payment by the husband of the $333 mentioned above seems to be a payment made by the husband which is unrelated to an assessment of child support. The payment was received on 6th February and the wife did not register for child support purposes until 12th February 2007. As a result the husband received a credit for the period 1st to 31st March 2007 and a further credit as to 7th May. Otherwise the husband has the obligation to pay the sum of $27.75 per calendar month. He was owing the sum of $26.33 as of 7th May and paid that sum on 8th May. Neither party chose to make the period when the parties were separated and living under the same roof the subject of comment. The payment by the husband represents the 12 month period when the wife and the child were living at separate premises. The husband paid the child support for 12 months in arrears. He did so without reference to an application or claim by the wife. The wife would be entitled to believe that child support will continue to be paid, given that the husband is in receipt of pension income.
Further matters as to Section 75(2)
I would summarise the respective positions of the parties as follows:
Husband Wife
Age 47 years 42 years
Health a number of health issues a number of health issues
Earning not recently tested teacher
Capacity
Property based on contribution:
general $253,069 $151,841
superannuation $9,099 $27,297other presently $47 $2,438
Income $259 per wk $1,177 per wk
Expenditure claimed $522 per wk $1,331 per wkResources interest in property in Poland:
value not known
Dependants Child M born October1994
12 years
It can be seen from the above summary that the husband has the greater property entitlement, the wife the greater income. The wife has a 12 year old dependant child and has the cost of providing for her. The husband has an application for periodic or lump sum spousal maintenance so that is a matter which will require determination. To that extent there will be a need to consider whether the wife has capacity to contribute to the husband’s needs, in circumstances where he can show that he is in need of maintenance. Both in that context and for present purposes, the question to be asked is “has the husband an earning capacity?” The husband answers that question by pointing to the documents which were gathered for the purposes of his WorkCover claim. These documents whilst providing a useful background fail to address the question asked. The information is many years old. The husband does not produce any evidence of his capacity at this point in time to obtain work. The husband’s many health issues are acknowledged but I do not understand that they will prohibit him from obtaining work. The husband impressed as an intelligent and resourceful person. He was persuasive although somewhat consumed by matters to do with his health. He pointed to his depression as being a matter which affected his attitude to these things. I understand the evidence on the subject to indicate that it is the court proceedings themselves which have had so much to do with that condition. The evidence does not point to the condition being a long term feature of life for the husband. As mentioned, the husband seems pre-occupied with health issues. The question of his suitability for work or his capacity to re-enter the workforce is something which he has failed to address.
Rather than showing the efforts he has made in recent years to get work or to undertake rehabilitation or retraining to qualify for re-entry into the workforce, the husband points to the moneys received from the WorkCover claim to emphasise that this was money which was expected to provide for him for his working life. He takes the view that he has been compensated for his disabilities, that the disabilities were assessed to be permanent and that he is under no further obligation to show an inability to work. He believes his circumstances, both as to the compensation moneys and the disabilities assessed all those years ago, are determinative of his current position. As mentioned, the matters are relevant but they are not determinative as to the matter. I am satisfied that the question of the earning capacity of the husband presently remains unresolved. I would expect that upon the resolution of these proceedings he will be motivated to get work. He impressed me as the sort of person that if he put his mind to it he could get work. His depressive condition should resolve itself in due course. As can be seen, it is very much caused by the husband’s perceptions of how these proceedings will finish up.
The earning capacity of a party has been the subject of recent legislative amendments to Section 117 of the Child Support Assessment Act. The amendment which became operative on the 1st July 2006 is in the following terms:-
“Determinations in respect of paragraph (4)(da)
(7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)the parent has changed his or her occupation, industry or working pattern; and
(b)the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent's caring responsibilities; or
(ii) the parent's state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.”
Given the husband’s capacity to contribute to child support from property, it may be that the new provision affords the wife the opportunity to test her eligibility for child support against the husband’s earning capacity. I do not think that I can take that matter any further. The amendment was not drawn to my attention and the wife’s rights and entitlements in this area were not the subject of comment.
The wife’s care of the child M has implications beyond the financial imposition on a day to day basis which it represents. There are also the significant capital costs associated with providing accommodation and the other ancillary features associated with educating and raising a child, for example, a motor vehicle and furniture. Electronic equipment is also part and parcel these days of having a teenage child. In Brandt & Brandt (1997) FLC 92-758 at page 84,345 the Full Court said:
“It is proper to take into account the economic ramifications of having responsibility for the children and the quasi-economic contributions involved in raising children which include washing, ironing, cooking, transporting and the like. It is appropriate to bear in mind salary and income opportunities foregone because of responsibilities to children. It is appropriate to recognise that such responsibilities involve sacrificing leisure and recreation time.”
The property pool is $404,911. As mentioned, 10% of that sum is $40,491.
The husband argues for a final adjustment in his favour of 60:40. To that extent he would be conceding 2.5% of his contribution based property entitlement. The wife starts off from a different position to the husband, based on contribution and then argues for an additional 10% because of the factors concerning the care of the child.
I am satisfied that the wife should receive 5%. I would accept perhaps a greater percentage if I had thought that the wife would be confined to child support from the husband based upon his pension income. I do not know that that will happen. The husband may have a capacity to contribute a greater sum by way of child support were he to obtain employment. The husband’s property may also be a basis for the wife to seek a departure order.
Overall I would make an allowance of 5% in favour of the wife. This represents the sum of $20,245. It is this sum which the husband must concede from his property: he will finish up with 57.5% or $232,823 and the wife 42.5% or $172,087.
The superannuation requires consideration. It may provide part of the means by which the parties would seek to give effect to the property distribution and I will return to it.
The parties are then left in the situation where the husband will receive an additional 15% or $60,735 greater than what the wife will receive. The husband is living in the home. Were he to remain there he would need to pay the wife $144,518 calculated:
M property $310,000
Less mortgage $56,664 $253,336
E property $105,000
Landrover Motor Vehicle $4,250
Campervan $1,000
Furniture & effects $3,755
Husband’s motor vehicle proceeds $10,000 $377,341Property settlement – general $232,823 $144,518
Alternatively, the wife seeks the sale of the home and the parties to otherwise keep what they have got. Under this proposal:
Husband would receive: $232,823
Already holds:
E property $105,000
Landrover Motor Vehicle $4,250
Campervan $1,000
Furniture & effects $3,755Motor Vehicle proceeds $10,000 $124,005 $108,818
Based on a percentage of proceeds of sale, the husband would receive $108,818 or 42.95%.
The wife would receive $172,087
Already holds:
Daewoo motor vehicle $1,000
Furniture & Effects $1,345
Wife’s drawings $20,000
Wife’s Award Saver account $5,225 $27,570 $144,517
Based on a percentage of proceeds of sale, the wife would receive $144,517 or 57.05%, whichever is greater.
The superannuation with Super SA can be the subject of a splitting order. If that is to happen, the husband may well seek an immediate payment. The terms of the trust fund would determine that matter. They are not before me. For the wife, the position is a little more clear. Save as to unforeseen events, she has many years to work. In that same period she is of course in a position to make further contributions for and on behalf of her entitlement. The apportionment of the entitlement was based upon an assessment of contribution. I would not otherwise make any further adjustment because of Section 75(2) factors. The other alternative is for the parties to include the husband’s share of the superannuation as part of the settlement which is payable to him. The $9,099 payable to the husband of the total net pool is 2.06%. I have not heard from them on this matter. It remains a way of dealing with the question if it meets the justice and equity of the matter.
Spousal maintenance
The application of the husband is that the wife do pay him by way of periodic maintenance the sum of $195.00 per week. At the hearing, the husband indicated that he would accept a lump sum in settlement of his entitlement to periodic maintenance.
Section 72 of the Family Law Act is in the following terms:
“(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).”
It can be seen then that under the provision, the first question to be asked is whether the husband is in need of maintenance. Is the husband unable to support himself and does that arise because of the matters in (a), (b) or (c). These are matters which require consideration under the terms of Section 75(2) of the Act. We have already given consideration to the matters in Section 75(2) for the purposes of making orders for settlement of property. So it is now, in the context of the husband’s application for spousal maintenance, that further consideration is required. The context is different although, clearly, there are matters which will be equally relevant to the determination of spousal maintenance.
I referred earlier to the claim as being for an amount of $195.00 per week. That is how the application is formulated in the husband’s Amended Response filed 11th December 2006. In the husband’s Further Amended Response filed 20th February 2007 he amends that claim by seeking the following:
“2. Spouse maintenance.
Husband applies for spouse maintenance paid by ex wife [Mrs Munt].
Payment asked, is between $95 and $195 dollars weekly.
Maintenance to be paid by transfer of property, under property settlement.
Honorable court to determine the amount of payment should apply, and percentage of property to be transfer’.In paragraph 64 aforementioned, I summarised the respective positions of the parties. The changes which should now be brought to account are that the husband has a property settlement of $232,823 and the wife, $172,087.
In paragraphs 61 and 62 aforementioned, I indicated what each of the parties were claiming by way of expenditure. The husband has an income from his business in selling knives although that seems to be at a level where it could be considered to be nominal. The Disability Support Pension would seem to come under the umbrella of a pension for the purposes of Section 75(3). The husband concedes his pension was income tested; maintaining that he only received it when the wife was on school holidays and without income under the terms of her contract. The husband claims expenditure of $522.00 per week. That sum does not include the mortgage of $95.00 per week. The expenditure does include an item – other rates $21.00 per week – which must relate to the land at E. The real question mark about the husband’s expenditure arises from the claim for $448.00 per week. It is made up of:-
Food $E150
House repairs $E15
Gas $E10
Electricity $E10
Telephone $E18
Motor vehicle:
petrol $E30
maintenance $E20
Clothing and shoes $E30
Children’s activities $E10
Medical, dental & optical (not $E10
including health insurance premiums)
Entertainment/hobbies $20
Holidays $50
Chemist/pharmaceutical $E10
Gardening/lawnmowing $E10
Cleaning (house/pool) $E5
Repairs – furnishings & appliances $E5
Dry cleaning $E20
Books and magazines $E10
Gifts $E10
In the generality of the claim, there seems to be no explanation of how the husband can provide for himself at this level on what is a pension based income: viz, income $259.00 per week as against expenditure claims of $448.00 per week. There are also the fixed commitments to allow for, another $74.00 per week, a total of $522.00 per week.
Specifically, in almost every item claimed it could be the subject of the comment that it seems overstated, particularly when viewed as mentioned as against the husband’s income. Then there are items such as entertainment/hobbies, holidays, gardening/lawnmowing, dry cleaning, books, magazines and gifts which without explanation would not readily come within the description of “commitments … that are necessary to enable the party to support himself” per Section 75(2)(d).
As it is, the husband has alleged expenditure of $522.00 per week or $27,144.00, that is expenditure at a level which I believe more readily equates with his earning capacity. I have already referred to this matter on several occasions (see paragraphs 57, 59, 65 and 66). I do not believe it is possible to realistically look at the financial circumstances of the husband without bringing to account that he should be striving to test his work capacity in the market place. He has not done this. As mentioned, I believe he has an unfulfilled earning capacity. Certainly there is no recent history of his having tested it. If I am wrong in my assessment of the husband’s position on this matter, then he would be in a position to show a shortfall of income as against commitments.
In that event, has the wife got a capacity to contribute to the husband’s needs? Her income is $1,177.00 per week plus child support of $6.40 per week: a total of $1,183.00 per week. She claims commitments of $1,142.00 per week including the following weekly expenses:-
Food $E200
House supplies $E10
Gas $E12
Electricity $E15
Telephone $E16
Motor vehicle:
petrol $E80
maintenance $E40
Fares/car parking $E5
Clothing and shoes $E40
Medical, dental & optical (not including $E40
health insurance premiums)
Entertainment/hobbies $10
Holidays $40
Chemist/pharmaceutical $E15
Repairs – furnishings & appliances $E5
Dry cleaning $E5
Books and magazines $E10
Gifts $E15
Hairdressing, toiletries $E10$568
In evidence, the wife explained that as to food costs, at least half of the expense, $100.00, should be attributable to her daughter.
For the child M she claims expenses of $189.00 per week as follows:-
Clothing and shoes $60
Children’s activities $15
Medical, dental & optical (not including
Health insurance premiums) $10
Entertainment/hobbies $10
Holidays $40
Education expenses, including fees & levies $10
Chemist/pharmaceutical $10
Books and magazines $10
Gifts $5
Hairdressing toiletries $10
Internet $9 $189
Under Section 75(2)(d) it would be appropriate to include the commitments necessary to support the child M. As can be seen they total $189.00 per week. The wife’s weekly commitments would then total the sum of $1,331 per week. As with the husband, I believe that there would be difficulty in accepting certain items viz:-
Entertainment/hobbies $20
Holidays $80
Dry cleaning $5
Books and magazines $20
Gifts $20 $145.00
If that sum were deducted, the commitments would total $1,186 ($1,331 - $145) as against an income of $1,183.00 per week. That would leave a deficit of $3 per week. The husband would argue that the wife should pay him an amount from $95 up to $195 per week. The husband wants the maintenance to be paid as a lump sum. He says he could use these moneys paid by the wife so that he could show to the child M that he has the wherewithal financially to contribute to her costs whilst she is with him. Two things should be said about this: firstly, it is not clear to what extent the child will choose to spend time with the husband. The other matter is that the wife would be supplementing the husband’s income with maintenance payments and hence giving the husband the opportunity to make the representation. Be that as it may, and following the argument through, the husband then would seek the payment of a capital sum; calculated I thought initially for a period of a year or two, although the husband added another dimension to his claim when in final addresses he intimated:
“One more word, your Honour, if I can add? If wife is asking to take my compensation off me, then I would be asking for 50 per cent of her earnings till the retire time. If she wants to take my compensation money off me then I would say, “Okay, but please, I wish to have 50 per cent of your income till the retirement time”. That’s what it is. This is my future losses. Thank you.”
Again, following the argument the husband would say that at the very least he should have at least 12 months so as to return to the work force. He would say that would be time enough to allow for retraining for him to prepare himself for the work force. However, as mentioned on this subject, I take the view that these are matters which the husband should have attended to in the history of the matter. It can be seen then that the husband has two significant difficulties with this application: the first is that he cannot show that he is unable to support himself. The second is that the wife is unable to pay or contribute to this support. I would dismiss the husband’s application for spousal maintenance.
Returning to the matters in paragraph 75, I believe that the husband should be given the opportunity in the first instance to pay out the wife’s claim. The usual time in which he would be required to settle the wife’s claim would be a period of between 28 and 42 days. Taking the mean, I would allow the husband 35 days in which to pay to the wife the sum of $144,518, failing which the property at M should be sold. If the home is to be sold, the wife should receive 57.05% and the husband the balance which represents 42.95%.
As mentioned in paragraph 77 the choices in respect of the superannuation are either that there be a splitting order in respect of it or alternatively, the husband receive a further 2.06% which percentage interest represents the $9,099 mentioned. I will hear from the parties as to what they would propose as to the final orders as to superannuation but otherwise I would intend to make orders as indicated.
I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Forbes.
Associate:
Date: 18 July 2007
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