Murrell and Murrell
[2009] FMCAfam 560
•10 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MURRELL & MURRELL | [2009] FMCAfam 560 |
| FAMILY LAW – Property – parties separated nineteen years ago – husband now retired and has used up much of his superannuation – wife still in the workforce and has acquired assets post separation – assessment of contributions – assessment of s.75(2) factors. |
| Family Law Act 1975, ss.75, 79 |
| Norbis v Norbis (1986) FLC 91-713 Z v Z (2005) FLC 93-241 |
| Applicant: | MR MURRELL |
| Respondent: | MS MURRELL |
| File number: | DNC 95 of 2007 |
| Judgment of: | Terry FM |
| Hearing date: | 15 April 2009 |
| Date of last submission: | 15 April 2009 |
| Delivered at: | Darwin |
| Delivered on: | 10 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Allan |
| Solicitors for the Applicant: | Mary M Allan |
| Counsel for the Respondent: | Ms Orwin |
| Solicitors for the Respondent: | Margaret Orwin |
ORDERS
That within fourteen days of the date of these orders the wife sign all documents and do all acts and things required to transfer to the husband at the expense of the husband the whole of her right title and interest in Property H in the Northern Territory of Australia.
That Property M in the Northern Territory of Australia be sold and that within fourteen days of the date of these orders the husband and the wife do all acts and things and execute all documents necessary to sell the property on the following terms:
(a)the property be listed for sale with a real estate agent agreed between the parties;
(b)in the event that the parties cannot agree on the nomination of such agent they shall jointly approach the President of the Real Estate Institute of the Northern Territory of Australia and accept his or her nomination of a real estate agent to sell the property;
(c)in the event the parties are unable to agree on a listing price, the time of listing, the method of sale and conditions of such sale, they shall accept the recommendations of the real estate agent appointed pursuant to these orders for the sale of the property in respect of each such matter.
That upon completion of the sale the proceeds of sale shall be applied as follows:
(i)firstly to pay all costs, commissions and expenses incurred in respect of the sale;
(ii)secondly to pay the amount required to discharge the loan secured by mortgage over the property;
(iii)thirdly to pay the remaining balance as to 62.5% less $168,750.00.00 to the husband and 37.5% plus $168,750.00 to the wife.
That until completion of the sale of Property M the husband shall be entitled to sole occupancy of the property and shall pay the mortgage payments rates and other outgoings for the property as they fall due.
That upon completion of the sale of the Philippines properties pursuant to the orders made on 21 April 2009 the net proceeds of sale be paid as to 62.5% to the husband and 37.5% to the wife.
That unless specified in these orders and except for the purpose of enforcing payment of any money due under these orders or subsequent orders, each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in possession of each party and superannuation standing in their respective names.
That in the event that either party refuses or neglects to comply with the provisions of these orders the Registrar of the Federal Magistrates Court of Australia at Darwin is hereby appointed to execute all deeds and documents in the name of the defaulting party.
IT IS NOTED that publication of this judgment under the pseudonym Murrell & Murrell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 95 of 2007
| MR MURRELL |
Applicant
And
| MS MURRELL |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Murrell and Ms Murrell separated in 1990 after a marriage of twenty years. During the marriage they purchased a home in Property M and a property in the Darwin rural area in joint names, and three blocks of land in the Philippines in the wife’s name.
After separation the husband continued to live in the former matrimonial home. The wife re-partnered. The parties had an amicable post-separation relationship.
The husband is now in his seventies however. He wishes to have some control over the disposition of assets upon his death. In April 2008 he filed an application for a property settlement.
The husband proposed that the wife transfer to him her interest in the two Darwin real properties, and that she retain the three properties in the Philippines. He proposed that he retain the balance of his superannuation and that the wife retain the assets she had acquired post separation.
The wife proposed that the husband retain the former matrimonial home, and that the other Darwin property and land in the Philippines be sold and the proceeds divided equally. She proposed that the husband retain the balance of his superannuation and that she retain the assets she had acquired post separation.
The evidence
The husband relied on his application filed on 7 April 2008 and his affidavit and financial statement filed on 15 April 2009. The wife relied on her response filed on 30 September 2008 and her affidavit and financial statement filed on 9 April 2009.
The husband and wife were both cross-examined.
To an extent the husband was the less satisfactory witness. His affidavit had some significant omissions, such as correct information about the amount he had received from his superannuation fund when he retired. When the husband was challenged in cross-examination he more than once unhelpfully said that he had documents at home in boxes which could back up what he was saying, but that he had not brought them to court.
The wife went to greater trouble than the husband to obtain documents to verify her evidence. She obtained copies of all the Credit Union loan documents for example.
There were inaccuracies in the evidence given by both parties and I do not consider that either party attempted to deliberately mislead the court. The relationship ended long ago and memory lapses about past events are to be expected. Each party, perhaps almost unconsciously, selectively presented the evidence which was consistent with their long held view about the shortcomings of the other as a spouse or financial provider and each was drawn during cross-examination to reluctantly make concessions which provided a more balanced picture.
Background
The husband is 76 and the wife is about to turn 60. They commenced cohabitation in 1967[1] and married in March 1970. They separated in March 1990, after a marriage of 20 years and cohabitation of 23 years.
[1] Wife’s affidavit filed 9 April 2009 paragraph 2, unchallenged by husband.
There are three children of the marriage: [X], about 39, [Y], about 38 and [Z], about 24. At separation [X] and [Y] were already adults, but [Z] was only five years old.
The husband was a [omitted] worker throughout the marriage. The wife (subject to some periods of maternity leave) was employed at [omitted].
The parties had no significant assets at the commencement of cohabitation. In 1974 during a visit to the Philippines, they purchased three adjacent blocks of land on the outskirts of Manila. The properties were purchased in the wife’s name, as the husband, being a foreign national, was not permitted to own land in the Philippines. The land was paid off in instalments during the marriage.
In about 1977 the husband purchased a block of land at Property H for $15,000.00. He paid a deposit of $300.00 and borrowed the balance of the purchase price. This property was subsequently transferred into joint names, and it also was paid off during the marriage.
In 1984 the parties purchased Property M from the Northern Territory Housing Commission for $63,000.00. They had been renting this property since 1977 and it continued to be the matrimonial home until separation. This property was purchased in joint names. A deposit of $5,000.00 was paid and the balance borrowed. At separation there was still a debt owing in respect of this property.
During the relationship each party acquired superannuation.
After separation the husband continued to live in the former matrimonial home with [Z]. The wife moved out and subsequently re-partnered.
The husband was employed until 2001, when he retired at the age of 69. He has since used up most of his superannuation. The husband continues to live in the former matrimonial home.
The wife took a redundancy in the early 1990’s. Some years later the wife commenced working for her old employer again and joined a new superannuation fund. The wife acquired further real estate post-separation when her partner gifted her a half interest in Property F.
The parties were divorced on their joint application on 6 April 2007 and the husband filed an application for a property settlement on
7 April 2008(6 April 2008 being a Sunday).
The applicable law
In resolving applications for property settlement pursuant to s.79 of the Family Law Act, the procedure generally adopted is:-
i)to identify and value the assets and liabilities of the parties;
ii)to assess the contributions of the parties under s.79(4)(a), (b) and (c) and to express those contributions as a percentage;
iii)to consider the matters set out in s.79(4)(d),(e),(f) and (g), which include the matters in s.75(2), so far as they are relevant, and to determine whether any adjustment should be made as a result to the contribution based entitlements;
iv)to consider the effect of the findings and resolve what order is just and equitable in all the circumstances.
The assets and liabilities
When the parties separated in 1990, they owned the following non-superannuation assets:
i)Property M, in joint names;
ii)Property H, in joint names;
iii)Land in the Philippines, in the wife’s name;
iv)Household furniture.
The debts at separation were the loan secured over Property M and a Credit Union loan in joint names.
The wife paid off the Credit Union loan after separation. The husband has made loan repayments on the home loan since separation and the current balance owing on that loan is $10,000.00.
The husband retained the furniture and whitegoods in the home at separation. It was not suggested that any of those items still existed or had a value which should be recognised in the asset pool.
The parties agreed that Property M was currently worth $435,000.00 and that Property H was currently worth $450,000.00.
The parties disagreed about the value of the Philippines land.
The wife said that the Philippines land was worth AUD$107,000.00. She produced an opinion in writing but it was extremely brief, and she relied on it as a guide only. The wife proposed that the land be sold.
The husband said that the Philippines land was worth AUD$222,000.00. He said that he had a valuation, but he was not able to make the valuer available for cross-examination.
The husband initially proposed that the wife retain the land in the Philippines. However the wife does not want it and the parties agreed at the end of the hearing that the land should be sold. On 21 April 2009 consent orders were made to this effect.
The wife said that at one time there was another piece of real property, a block of land at Property S which the husband purchased early in the relationship. The wife complained that the husband had given this land away prior to separation to his daughter from his first marriage.
The husband initially claimed that he had purchased the Propertry S land prior to cohabitation but later conceded that it was purchased in about 1970 for $125.00.
The husband did not dispute that in 1984, six years prior to separation, he gifted this land to his daughter [L], without consultation with the wife. The husband said that to the best of his recollection the land was worth $250.00 at the time of the transfer to [L].
The wife complained about the husband giving this land away, but she did not produce any evidence about the value of the land at the time of transfer or at any other time. It is impossible to deal with this issue by way of add back. It might potentially be taken into account pursuant to s.75(2)(o) but if the land was of the value the husband claimed, and there was no evidence to contradict this, then its removal from the asset pool makes no material difference to the outcome of these proceedings.
The asset pool comprising the non-superannuation assets which existed at separation and which still exist (hereinafter called the matrimonial pool) is therefore as follows:
Description
Ownership
Value
Property M Joint 435,000.00 Property H Joint 450,000.00 Land in Philippines Wife To be sold Less mortgage secured over Property M Joint -$10,000.00
The current net value of the matrimonial pool is thus $875,000.000, plus the value of the Philippines land, which the parties believe to be between $107,000.00 and $222,000.00.
When the parties separated in March 1990 they each had superannuation.
The husband was a member of the [S] Employees Retirement Fund, which he had joined in either 1972 or 1974.[2] The husband produced evidence that in December 1990, about nine months after separation, his superannuation was worth $107,940.07, made up of $64,949.35 leaving service benefit and $42,990.52 voluntary contribution benefit.[3]
[2] Husband’s affidavit filed 15 April 2009 paragraph 6 cf Annexure 1
[3] Husband’s affidavit filed 15 April 2009 annexure 1 cf paragraph 66
The wife produced a letter dated 9 August 1991 which contained an offer to the husband of early retirement and redundancy. In that letter the husband was offered $254,223.16 comprising $139,338.66 in superannuation and $114,884.50 for redundancy and leave entitlements. This corroborates the husband’s evidence about the value of his superannuation at the time of separation, but is otherwise of no relevance, as the husband did not in fact accept the offer of a redundancy.
The husband continued to work, and to accumulate superannuation, until about August 2001, when he retired at the age of 69.
In his affidavit the husband said that upon retirement he received $139,338.66, which was partially used as follows:
Repayment of Credit Union loan
(taken out post-separation) 35,000.00
Motor vehicles 16,000.00
Payment onto wife’s credit card 5,000.00
The husband also said that he had some dental work done for about $7,000.00 and paid between $4000.00 and $5000.00 for hearing aids. He also said that he helped out his sons [X] and [Z] financially.
In oral evidence the husband agreed that the amount he actually received on retirement was in the vicinity of $450,000.00 to $460,000.00. It seems most likely, although it was by no means made clear by the husband, that he received $139,338.66 and that the balance of the money was used to provide him with an allocated pension. The husband currently receives $2,300.00 per month or $28,029.96 per annum in the form of an allocated pension. He has $49,628.39 remaining in his superannuation fund.[4]
[4] Husband’s affidavit Annexure 4
No completely clear picture of exactly how the husband’s superannuation has been used up emerged, but it was not suggested to the husband in cross-examination that he had wasted any of it or that he had any of it hidden away.
At separation the wife was a member of the Commonwealth Superannuation Scheme. In 1993 she moved to Katherine with her new partner. It appeared to be the wife’s case that she cashed in this superannuation which was worth $24,988.83 at the time. Certainly the wife is no longer a member of Comsuper. The wife also received a redundancy. It is unclear to me on the wife’s evidence whether she received $50,000.00 or $25,000.00.[5]
[5] Wife’s affidavit paragraph 27 cf wife’s oral evidence
The husband’s evidence was that the wife received $100,000.00, but he conceded in cross-examination that he had no direct knowledge of the amount and was relying on hearsay. I accept that the amount the wife received was in the vicinity of $25,000.00 to $50,000.00 and that she did not receive $100,000.00.
The wife said that the total amount she received was used up on living expenses during her time in Katherine. The wife was not challenged on this evidence and I accept it.
The only superannuation which still exists and which had its genesis pre-separation is the balance of the husband’s superannuation. It is appropriate to include it in a separate pool as follows:
Description
Ownership
Value
The [S] Employees Retirement Fund Husband 49,628.39
As to post-separation assets, the husband currently owns a motor vehicle and furniture and whitegoods but he has not acquired any other significant assets post-separation. It was not suggested that the motor vehicle or furniture be included in any pool.
The wife has acquired two significant post separation assets. Firstly, after the wife returned to Darwin from Katherine, she recommenced work at [omitted] and joined NTGPASS. The wife did not provide a current superannuation figure, but provided evidence that she had $249,173.55 in NTGPASS & NTSSS as at 30 June 2008.
Secondly, after separation the wife’s partner gifted to the wife a half interest in Property F. It was agreed that the wife’s interest in that property was worth $200,000.00.
A third pool of assets therefore consists of the wife’s post separation assets, as follows:
Description
Ownership
Value
NTGPASS & NTSSS Wife 249,173.55 Half interest in Property F Wife 200,000.00 Total 449,173.55
Contributions
In Norbis v Norbis[6] the High Court held that it was legitimate to adopt either an asset by asset approach or a global approach in assessing contributions. Mason & Deane JJ observed as follows:
“Although it is natural to assess financial contributions under Sec 79(4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties’ property or to some part of the property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, ie on a global or alternatively on an “asset-by- asset” basis. Which of the two approaches is more convenient will depend on the circumstances of the particular case….
[6] Norbis v Norbis (1986) FLC 91-713
In Z v Z[7] Finn J observed as follows:
“It is my impression that there are currently coming before the Court a significant number of cases in which the period between the parties’ separation and the hearing of their property settlement proceedings is substantial. The delay seems often to arise, at least in part, because the parties have initially reached some form of informal (or even formal) settlement from which one party later resiles (often for good reason). In these long separation periods, the parties will usually have built up substantial new assets or incurred substantial liabilities. In an endeavour to satisfy the parties that any orders which are eventually made by the Court in these somewhat complicated cases are just and equitable, it can, in my view, be very useful for Judges to assess contributions to property on an asset by asset basis.”
[7] Z v Z (2005) FLC 93-241
In my view given the long post-separation period, it is appropriate to assess contributions separately in respect of:
i)the matrimonial pool;
ii)the husband’s superannuation;
iii)the wife’s interest in Property F and the wife’s superannuation.
It is appropriate to assess contributions to the matrimonial pool on a global basis. The parties were married for twenty years and cohabited for twenty three years, and only a global assessment of contributions to that pool allows for a proper weighing and balancing of all of the financial and non-financial contributions made by the parties during that period.
Contributions to the matrimonial pool
The wife’s evidence was that neither party had any significant assets at the commencement of cohabitation.
The husband’s evidence was that he owned a 25˝ caravan, and a Bedford Truck.[8]
[8] Husband’s affidavit filed 15 April 2009 paragraph 4
I am not comfortably satisfied that the husband did own the Bedford Truck at the commencement of cohabitation, as he gave somewhat contradictory evidence about this later in his affidavit when he said that “early in the marriage I had a Volkswagon and an EA Bedford truck.”[9]
[9] Husband’s affidavit filed 15 April 2009 paragraph 18
The husband may well have owned the caravan, as the wife’s evidence was that the parties lived in the caravan during the early years. However the husband provided no evidence about the value of the caravan nor indeed about the value of the Bedford Truck.
I find that neither party had any assets of significant value at the commencement of cohabitation.
During the marriage, the husband and wife each worked in paid employment. The husband was a [omitted] worker throughout. Save for a period of about two years in total when she was on maternity leave the wife worked at [omitted].
Each party was involved in the care and upbringing of the children during the marriage. They each worked shift work, and arranged child care around their shifts, and used a private child minder if they were both unavailable.
I am satisfied that each party contributed to the housework[10] and (in accordance with their respective interests and aptitudes) to work which was carried out on the Property H property from time to time.
[10] Husband’s affidavit filed 15 April 2009 paragraph 47
The parties purchased the real properties in the Philippines in 1974, the Property H property in 1977 and Property M in 1984.
After Property M was purchased in 1984, the mortgage payments were paid by direct debit from the account into which the wife’s salary was paid.
The husband said that he made the Property H repayments, while the wife claimed that the payments came from joint funds. The parties had two joint accounts, and their wages were paid into different accounts.
I consider it more likely than not that the husband, who was the driving force behind the Property H purchase, did make the loan repayments for that property from the joint account into which his wages were paid.
The Philippines property was paid off in instalments over a number of years. The husband said that he sold a boat (which on the evidence must have been purchased during cohabitation) for $1400.00 to pay some of the instalments and that he paid the remaining instalments. The wife said that she paid the instalments. I cannot resolve this dispute and in my view nothing ultimately turns on which party directly paid the instalments.
The parties were together twenty three years, they both worked in paid employment and they brought up three children. On these bare facts a finding of equality of contribution during the relationship would normally be the result.
It was submitted by the husband’s counsel however that the husband was a full time participant in the marriage and the wife only a part time participant. The husband said that the wife had a gambling problem, and that she wasted a good deal of her income on gambling, whereas all of his income was used for family purposes. He also claimed that he made the greater contribution as a homemaker and parent, because as a result of the wife’s gambling she sometimes neglected her parenting duties and her homemaking duties, whereas he was not similarly distracted.
The husband’s evidence was that:
“Throughout the marriage Ms Murrell was addicted to gambling and spent most of her wages at the Casino or other gaming establishments. Essentially Ms Murrell’s gambling took up all of Ms Murrell’s money and all of her spare time.”[11]
[11] Husband’s affidavit filed 15 April 2009 paragraph 54
This is clearly a considerable overstatement. Elsewhere in his affidavit the husband said that the wife started gambling in 1975, and commenced gambling seriously in 1977, ten years into the relationship. He conceded that the wife paid the rent on Property M prior to the parties purchasing it, and that between 1984 and separation in 1990 the home loan mortgage payments for Property M were paid by direct debit from the wife’s bank account. He also conceded that the wife paid for her own clothes and personal items and that she bought things for the children. This contradicts the husband’s claim that gambling took up all of the wife’s money.
The wife conceded that she went to the Casino, but said that there was a social dimension to this and that she met friends and had meals at the Casino. The wife conceded that she gambled, but denied that she was addicted to gambling or that her gambling was as extensive as the husband claimed. The wife pointed to her acknowledged financial contributions and said that she was only able to gamble with the little she had left over.
The husband’s evidence about the actual financial cost to the family of the wife’s gambling was as follows. Firstly he alleged that when the wife was in the grip of her gambling problem she engaged in devious means to obtain gambling money, such as receiving cash from her family members in exchange for allowing them to book up items on accounts at the chemist and the service station, cash which she retained and used for gambling while leaving the husband to pay the accounts.
The wife denied these activities but even if I was able to find that they occurred, I have no means of knowing whether they involved the wife obtaining hundreds or thousands of dollars.
The only concrete examples the husband gave of occasions when he said that he was forced to cover for the wife financially because she had insufficient funds to meet her obligations involved amounts of $100.00 and $300.00 respectively.
The husband claimed that between 1983 and 1989 the wife obtained a number of credit union loans to “deal with the financial problems her gambling created.” He listed a number of loans which appeared to total $21,912.67.
The wife agreed that she had taken out a series of loans but said that when new loans were taken out the balance of the existing loan was added to the new loan amount, and therefore the total amount borrowed over the six year period was about $9,000.00 and not $21,912.67. The wife produced documents which corroborated this claim. I accept the wife’s evidence in this regard and also accept that there was no evidence that the money obtained by way of these loans was used for gambling.
On the matter of the wife’s attention to her parenting and homemaking role, the husband made a number of general claims and pointed to only one or two specific instances. It is the husband’s word against the wife’s that those specific instances occurred but even if they did, taken in the context of a twenty three year marriage they do not establish that the husband’s contribution as a homemaker and parent exceeded that of the wife.
I accept that the wife’s gambling and attendance at the Casino made the husband unhappy. There is however simply no evidence on which I could find that the wife’s gambling was outside the realm of a recreational activity and within the realm of a problem which cost the parties dearly both financially and non-financially.
There is a considerable age difference between the husband and the wife and it was apparent from the evidence that each lacked sympathy with the interests of the other. The husband complained that the wife spent time and money socialising and gambling. The wife complained that the husband spent time and money on political activities, interstate trips for union activities, socialising and consuming alcohol. However for 23 years they each worked in paid employment and each contributed as homemaker and parent. They acquired a number of real properties. The wife made a clearly identifiable financial contribution. She paid the rent prior to the parties purchasing Property M and paid the mortgage on Property M between 1984 and separation. She paid for her own expenses and bought clothing and other necessities for the children.
In my view the appropriate finding on all of the evidence is that the parties contributions to the acquisition conservation and improvement of the assets acquired during the marriage were equal.
Post separation contributions
The husband said that he should receive credit for his post separation contributions namely paying the mortgage and doing improvements at Property M, maintaining Property H and paying the outgoings, and supporting [Z] both financially and non-financially between the ages of five and eighteen.
After separation and until about 2007 the husband paid the Property M mortgage at the rate of $500.00 per month, which he said was considerably in excess of the required rate of $130.00 per month. However he had the benefit of residing in the jointly owned property to the exclusion of the wife, and even at the rate of $500.00 per month, the husband’s mortgage payments were not at such a rate that they would attract a credit. The husband is currently paying $200.00 per month mortgage repayments, an extremely modest amount to pay in return for accommodation.
I accept that the husband carried out improvements to Property M. It was his unchallenged evidence that he spent a total of $55,000.00, made up of $12,000.00 installing a new bathroom, $17,000.00 on the installation of a spa, about $20,000.00 on building a veranda, $4,000.00 on paving and $2,000.00 on spa fencing. The husband also had the roof painted and repaired.
There was no evidence about the extent if any to which these improvements increased the value of Property M. However common sense suggests that a veranda is a valuable addition to a home, a spa is usually a valuable addition, and the new bathroom would if nothing else have maintained the value of the home.
The husband said that he borrowed $35,000.00 to assist him in paying for the improvements, and that the balance of the money for the improvements came from his wages from time to time.
The $35,000.00 loan was repaid when the husband obtained his superannuation in 2001. As the wife made an indirect contribution to the acquisition of part of that superannuation, she therefore made a small indirect contribution to the work the husband did on Property M.
The wife conceded that the husband should receive an adjustment in recognition of the work he did on Property M.[12]
[12] Wife’s affidavit filed 9 April 2009 paragraph 17
The husband gave oral evidence about paying outgoings for Property H after separation. His affidavit contained no information about this issue.
The husband said that he paid the rates. The rates are currently $770.00 per annum, but the rates have gone up over the years and I can only speculate about the total paid since 1990. The husband said that he had paid a contractor “a couple of times a year” to slash the block, and estimated that this cost $200.00 per annum.
The husband said in oral evidence that he had paid $3,000.00 to have town water connected to Property H. He did not say when this payment was made and I thus do not know if it was paid after the husband received his superannuation in 2001 or before.
I accept that the husband paid the outgoings for Property H but these currently appear to be only about $1,000.00 per annum and may well have been considerably less in earlier years.
The husband supported [Z] from the age of five to the age of eighteen.
The husband claimed that the wife paid only $16.00 per month child support for [Z]. The wife was the subject of a child support assessment however, and she annexed to her affidavit a summary of the payments she made to the Child Support Agency between 1 January 1990 and 31 December 2003.
This summary shows that between December 1990 and December 2003 the wife paid an average of about $22.00 per week child support. There were periods of time, for example between separation and December 1990 and between April 1992 and December 1993, when no payments were made.
It is beyond doubt that the husband was primarily responsible for financially supporting [Z] for the thirteen years between separation and [Z] turning eighteen.
The husband was also responsible for the majority of [Z]’s day-to-day parenting. While the wife lived in Katherine she could not have seen [Z] frequently. The husband said that after the wife returned to Darwin she spent time with [Z] every second weekend at first but that her time with [Z] became more spasmodic later on. The husband’s evidence in this regard was not challenged.
The wife said that she also had made post separation contributions which required recognition, namely paying the outgoings on the Philippines property and repaying the Credit Union loan which existed at separation.
The wife said that she had paid the rates on the Philippines land in the sum of $1,600.00 per annum. She claimed that she was required to travel to the Philippines in order to pay the rates and had thus incurred additional costs.
The wife conceded however that she frequently travelled to the Philippines for holidays and that payment of the rates was an incidental activity while she was in the Philippines. I am unconvinced that the rates payments were in the amount of $1600.00 per annum.
In her affidavit the wife claimed that she had spent $10,000.00 “securing the blocks and evicting squatters.” The wife did not expand on this statement and provided no corroborating documentary evidence. I am not persuaded that I can give this bare assertion any weight.
After separation the wife paid off the joint Credit Union loan taken out in January 1990. The documents the wife produced show that the amount borrowed was $8,609.52 and therefore the total amount the wife repaid, even with interest, is unlikely to have been $15,000.00 as she claimed. The wife conceded that when the husband retired in 2001 and received his superannuation he paid her $5,000.00 which she regarded as compensation for her assuming responsibility for the Credit Union loan.
In my view the husband’s post separation contributions clearly exceeded those of the wife. The wife paid off the Credit Union loan but was later compensated by the husband for this to an extent. She also paid the outgoings on the Philippines land but I consider that her payments were probably on a par with the husband’s payments for Property H. In contrast the husband paid the outgoings for Property H, spent $55,000.00 carrying out improvements to Property M, and brought [Z] up for thirteen years with limited financial and non-financial contribution by the wife.
In order to assess the husband’s overall contribution in percentage terms, it is necessary to have regard to the size of the matrimonial pool. The parties agreed that the Philippines land was worth somewhere between $107,000.00 and $222,000.00, which would put the matrimonial pool at between $982,000.00 and $1,097,000.00.
The wife’s counsel submitted that the husband should receive a 5% adjustment in recognition of his post-separation care of [Z] and his contributions to the Property M improvements. This would equate to a dollar adjustment in his favour of between $49,100.00 or $54,850.00.
In my view this is an inadequate recognition of the husband’s post separation contributions. He had the overwhelming responsibility for the financial and non-financial support of [Z] for thirteen years. He also directly contributed about $55,000.00 to improvements of Property M. He also paid the necessary outgoings on Property H.
I accept that the wife spent some time with [Z] after separation and paid some child support. I accept that the wife paid outgoings on the Philippines land. I accept that in a small indirect way the wife contributed to repayment of the $35,000.00 loan for home improvements which the husband took out post separation. I accept that the wife repaid the Credit Union loan. However once the husband’s post separation contributions are taken into account in my view it is reasonable to assess contributions to the matrimonial asset pool as 62.5% by the husband and 37.5% by the wife.
The husband is therefore entitled to $546,875.00 plus 62.5% of the net sale proceeds of the Philippines land on the basis of contribution. The wife is entitled to $328,125.00 plus 37.5% of the net sale proceeds of the Philippines land on the basis of contribution.
Contributions to the husband’s superannuation
The husband’s superannuation was acquired over a period of twenty seven years and the parties lived together for sixteen of those years.
In my view an appropriate finding would be that the husband’s contribution to his superannuation was 70% and the wife’s 30%. This would entitle the husband to $34,739.60 of the remaining superannuation on the basis of contribution and the wife to $14,888.40.
Contributions to the assets acquired by the wife post-separation
The husband did not make any contribution to the acquisition, conservation or improvement by the wife of her interest in Property F, which was gifted to the wife by her partner.
The husband also made no contribution to the wife’s NTGPASS superannuation. The wife’s assertion that this was all acquired post separation by the wife was not challenged by the husband.
Section 75(2) factors
The husband is 76. He is not in perfect health but he has no extraordinary health problems such as might require above average expenditure on health care or such as might affect his life expectancy.
The husband retired in 2001 at the age of 69. He currently draws an allocated pension of $2,300.00 per month. He has about $49,000.00 superannuation remaining and it is therefore apparent that his superannuation will not last much longer.
The husband’s evidence was that once his superannuation was used up he would be on the age pension. It is likely that his standard of living will drop somewhat once he becomes an aged pensioner.
The husband owns a motor vehicle and household furniture. He owes a total of $20,000.00 on two credit cards. On the basis of contribution the husband will receive some cash as a result of the property settlement. If both Property M and the Philippines land are sold then the husband could expect to receive something in the vicinity of between $159,000.00 and $236,000.00.
When the husband retired in 2001 he received about $450,000.00 in superannuation benefits.
The husband had the sole use of the money. He was able to spend it as he chose, not only for his own support but to provide for example benefits to his sons [X] and [Z]. There were no constraints on the rate at which he spent the money. Only $49,000.00 of the money now remains.
I do not suggest that the husband has wasted the money but I take into account pursuant to s.75(2)(o) that the husband was able to spend this money at a rate which he alone considered appropriate and after eight years it is almost used up.
The wife will turn 60 in ten days time. She is employed as a [omitted] and earns $1,060.00 per week or $55,120.00 per annum. The wife is in good health and expects to work until the normal retirement age of 65.
The wife re-partnered in about 1992. The wife said that her partner earned $99,840.00 per annum and that he is due to retire in 2011. The relationship is clearly a stable long term relationship which has provided and will in all likelihood continue to provide the wife with considerable benefits.
The assets which the wife owns, in addition to her share of the matrimonial property, are a half interest in Property F, valued at $200,000.00, and her superannuation, valued at $250,000.00 as at 30 June 2008. The wife owes $2,500.00 on her credit card.
I take into account pursuant to s.75(2)(o) that the wife had superannuation at separation which she cashed in and used for her own purposes. She also received a redundancy calculated on her years of service, most of which were during the marriage. The husband received no share of this superannuation or redundancy payment. While this money was legitimately used up and there is no justification for adding it back as a notional asset, I take into account as a relevant matter pursuant to s.75(2)(o) that the wife had the sole use of this money to do with as she pleased.
The wife is entitled to 37.5% of the matrimonial pool on the basis of contributions. If she receives this and retains her post-separation assets she will have something in the vicinity of $365,000.00 and $466,000.00 together with a half interest in a residential property and $250,000.00 plus in superannuation.
The wife is still in the workforce and will continue to contribute to her superannuation for another five years. She is also in a stable long term relationship with a partner earning a very good income. There is no justification for an adjustment in the wife’s favour as a result of s.75(2) factors.
A distribution of the assets on the basis of contribution will result in the husband retaining one unencumbered real property and an amount of between about $159,000.00 and $236,000.00 in cash. He can use this cash to supplement his income when his superannuation is used up in the next couple of years or to carry out improvements at Property H or in any other way he chooses.
Is there any justification for an adjustment in the husband’s favour?
The wife’s financial position is stronger than the husband’s. However this is partly due to the post separation windfall gain of a half interest in a residential property. Also while the wife is still working and will acquire further superannuation in the next five years, she will then retire and need to provide for herself in retirement. The wife is sixteen years younger than the husband and the fact that in less than eight years the husband has used up approximately $400,000.00 is a good indication of how little the wife has in reality to provide for her future.
The husband had free use of his superannuation when he retired eight years ago and has spent it as he chose.
When all the relevant factors are taken into account I am unconvinced that it would be just and equitable to make an adjustment in respect of the matrimonial pool in the husband’s favour for s.75(2) factors.
On percentages the wife is entitled to $14,888.40 of the husband’s superannuation. A splitting order was not sought by either party. The wife could only be compensated for this entitlement by an adjustment being made in her favour from the matrimonial pool. Given the strength of the wife’s current financial position and the husband’s present greater need for actual cash, I do not consider that it would be just and equitable to make any such adjustment in the wife’s favour.
On the basis of these findings the husband will remain entitled to $546,875.00 plus 62.5% of the net sale proceeds of the Philippines land. The wife will remain entitled to $328,125.00 plus 37.5% of the net sale proceeds of the Philippines land. The husband will retain the balance of his superannuation and the wife will retain her post-separation assets.
The appropriate orders
The orders proposed by the husband were that the wife should transfer her interest in both Property M and Property H to him, and that she should retain the Philippines land. This would give the husband somewhere between 80% and 90% of the matrimonial pool, depending on the sale price of the Philippines land, and the wife between 10% and 20%. Such an outcome would deliver too much to the husband and too little to the wife.
The same can however be said of the orders proposed by the wife. The wife proposed that she transfer Property M to the husband and that Property H and the Philippines land be sold and the proceeds divided equally. This would give the husband between 70% and 72% of the matrimonial pool and the wife between 28% and 30%.
It is difficult to reconcile the wife’s proposal about the appropriate orders with the submissions made on her behalf, and in particular with the submission to the effect that the husband should receive only a 5% adjustment for his post separation contributions to the matrimonial pool.
In my view it would be just and equitable for the husband to receive 62.5% of the matrimonial pool and the wife 37.5%.
On 21 April 2009 I made consent orders for the sale of the Philippines land. As the Philippines land represents between 10 and 20% of the asset pool, one of either Property M or Property H will have to be sold so that the wife can receive her overall entitlement. There was no fall back application by the husband that he be permitted time to explore the possibility of retaining both properties, and the wife did not request that she have the option to retain either of the properties.
The husband lives at Property M and has done for thirty years. He nevertheless said that if a choice had to be made, he would prefer to retain Property H.
I therefore intend to order that the wife transfer her interest in Property H to the husband and that Property M be sold and the proceeds divided. I will also make the appropriate order for the division of the sale proceeds of the Philippines land, and the husband will retain his superannuation and the wife the assets she has acquired post-separation.
Whether the proposed orders are just and equitable
The orders will result in the husband retaining the real property of his choice and some cash. The husband may shortly be on the age pension, but his ownership of an unencumbered property and the cash he receives upon the sale of Property M will provide a buffer for him.
The wife will receive cash from the sale of the Philippines land and the Propert M property. The wife will also retain her post separation assets, which on its face may make it appear that the wife is better off than the husband. However she faces a much longer period in the future during which she will have to support herself in retirement.
In my view this outcome, and the proposed orders, are just and equitable.
For all the above reasons the orders of the court will be set out at the beginning of the judgment.
I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Rachel Hodgson
Date: 10 June 2009
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