Musson and Sargent
[2007] FamCA 471
•24 May 2007
FAMILY COURT OF AUSTRALIA
| MUSSON & SARGENT | [2007] FamCA 471 |
| FAMILY LAW - PROPERTY SETTLEMENT - Application for adjustment of property interests - Contributions - Just and equitable |
| APPLICANT: | Mr Musson |
| RESPONDENT: | Ms Sargent |
| INTERVENOR: | Ms A Musson Ms C Musson |
| FILE NUMBER: | NCF | 916 | of | 2002 |
| DATE DELIVERED: | 24 May 2007 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Stevenson J |
HEARING DATE WRITTEN SUBMISSIONS: | 30 May 2006, 15 December 2006, 22 January 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | The husband in person |
| SOLICITOR FOR THE APPLICANT: | Self-Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Hamilton |
| SOLICITOR FOR THE RESPONDENT: | Mr McFadden |
| COUNSEL FOR THE INTERVENOR: | Mr Bates |
| SOLICITOR FOR THE INTERVENOR: | Barbara Garrick & Associates |
Orders
That all outstanding applications and responses are dismissed.
That each of the parties be declared solely entitled to all items of property, whether real or personal, which are presently in his or her respective possession or control.
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: NCF 916 of 2002
| MR MUSSON |
Applicant
And
| MS SARGENT |
Respondent
REASONS FOR JUDGMENT
THE PROCEEDINGS
By an Amended Application filed on 20 June 2006 the husband sought orders in the following terms:
1.That pursuant to section 106B, that the gift of either the purchase price or the gift of a legal estate in the real estate Folio … being O property from the wife to the parties’ daughters and/or a direction by the wife to the vendor of the property to constitute the daughters the registered proprietors be set aside thus resulting in the wife being constituted the owner at both law and equity of the property known as O.
2.That pursuant to section 106B, that the gift of either the purchase price or the gift of a legal estate in the real estate dealing Request Number … A title …, [executed on 27/12/1997 and lodged by the Applicant wife of O] requesting that all new residential buildings be contained within the building envelope as approved on the …/… , from the wife to the parties’ daughters be set aside, thus resulting in the wife being constituted the owner at both law and equity of all new residential buildings contained with the building envelope as approved on the … .
3.That once the wife is constituted the owner at both law and equity of the property referred to in paragraph 1 and 2 above that pursuant to FLA section 79 the court then order that it is just and equitable that the status of the title of O property be transferred to the wife and the husband as tenants in common as to sixty six and two third per cent share to the wife and thirty three and one third percent share to the husband.
The first respondent to the application is Ms Sargent the former wife of Mr Musson . The second and third respondents, the elder daughter and younger daughter are the daughters of the parties. They are the registered proprietors of the principal asset in the proceedings, a property known as O. The parties’ daughters hold this property as tenants-in-common in equal shares, subject to a life estate in favour of the wife.
Part of the delay in the delivery of these reasons for judgment and orders came about due to a lack of time for the parties to make oral submissions at the conclusion of the evidence. The written submissions which I directed should all have reached me by about November 2006. The submissions on behalf of the wife were prepared and filed well within this time frame but, unfortunately, were lost within the registry before reaching me. The husband did all which was required of him in relation to his written submissions. Ultimately, I received all of the submissions late in January 2007.
BACKGROUND
In this background material, statements of fact are to be construed as findings of fact unless I indicate otherwise. Where a significant factual dispute exists, I will endeavour to state accordingly.
The husband, who is now 62, and the wife, who is now 55, met in 1978. They developed a friendship.
At this time the husband was married to his first wife, Ms G. They lived at B with their twin daughter and son.
When the parties met in 1978 the wife was employed as a public servant. She owned a home at C, which she had purchased in 1976 for $27,000. The wife borrowed $22,000 from a Building Society to assist with this purchase.
In February 1980 the husband and his wife Ms G purchased K property for $83,000, all of which was borrowed. They lived in these premises until December 1986. The husband alleged that he and his first wife lived in a state of separation under one roof between June 1981 and December 1986. This allegation was disputed by the wife.
The husband and his first wife sold B property in 1982 for $100,000. They discharged the mortgage on the K residence and used the balance of the sale proceeds to commence substantial renovations to this property.
The wife had purchased vacant land in W in approximately 1970, using money borrowed from her father. This property was sold in 1981, with the net proceeds amounting to approximately $18,000.
In 1982 the wife purchased an investment unit at L for $37,000. This property was sold in 1993 for a gross price of approximately $42,000. Contracts for sale were exchanged in 1988 but completion was delayed due to litigation, to which the wife was a party.
The husband’s first marriage was dissolved by a decree nisi pronounced in June 1984. The parties were married in November 1984. There was a substantial dispute as to the extent of their cohabitation following the marriage.
Two children were born to the parties, being:
The elder daughter born in May 1985 (21) and
The younger daughter born in March 1988 (19)
The extent of the husband’s emotional and financial support of the children was also a matter of significant dispute.
The husband and his first wife sold their K property for $390,000 in July 1988. They received approximately $145,000 and $217,000 respectively from the net sale proceeds. From his share, the husband paid $22,549 to his first wife as lump sum child support for their daughter. He thus received approximately $121,000 from the proceeds of sale of the K property.
The first wife purchased property A for $239,000 in August 1988. There was a dispute as to whether the husband lived in these premises after 1988. He agreed that he has lived there since July 2005 but maintained that he occupies one room as a boarder. The wife alleged that there is an ongoing relationship between the husband and his first wife, from which he derives a financial benefit.
On 2 May 1988 the wife filed an application in the Metropolitan Children’s Court, seeking orders for custody, access and child maintenance in relation to the parties’ two daughters. Consent orders were apparently made on 23 May 1988, when both she and the husband were present in court. These orders provided, inter alia, that the husband pay child maintenance for each of their daughters in the sum of $25 per week.
Between 7 July 1989 and 13 October 1989 the husband was in the United States of America, in pursuit of ambitions relating to his career. He made another trip to the United States to pursue his ambitions between 25 November 1993 and 6 February 1995. During the latter period the wife and the children spent 6 weeks in the United States with the husband.
On 30 March 1993 the parties purchased a Camry motor vehicle for $15,700. The husband had use of this vehicle until 2002, when an order was made for its return to the wife.
Due to ill-health, the wife ceased her employment as a public servant in April 1995. She received approximately net $8,600 on account of long service and holiday entitlements, together with approximately $24,700 by way of a redundancy payment. On 8 June 1995 the wife was paid approximately $157,000 as a gross superannuation entitlement.
Early in 1996 the wife moved to a rented home at A with the parties’ children. There was a dispute as to whether the husband lived in this property with them at any time.
In September 1996 the wife purchased 1435 Property O for $146,000. She provided the whole of the purchase money price, from the benefits paid to her upon her retirement from the workforce in 1995. The parties’ daughters were constituted the registered proprietors of the property as tenants-in common in equal shares, subject to a life estate for the benefit of the wife. She gave a direction to her conveyancing solicitor to bring about that result. It was common ground that the wife did not tell the husband that she held only a life estate in the property.
On the completion of the purchase the wife and the children moved into a small cabin on the property. The husband lived in the cabin with them from about September 1996 until December 1997 or early 1998. He then lived in a caravan at I until December 1999, when he moved into a rented home at O property.
In April 1997 the wife sold the C property for $242,000, from which she received a net sum of approximately $229,400. She purchased a Nissan Patrol motor vehicle for approximately $28,500 and used the balance of the money to commence construction of a new house on the O property.
The wife obtained an owner/builders’ permit on 18 November 1997. There was a substantial dispute as to the extent of the husband’s involvement in the planning and construction of the new house.
In April 2000 the wife sold the Nissan Patrol for $21,500. She spent this money and also an insurance payout of approximately $1,200 on the building work in 2000. In July 2000 the wife applied for the release of her remaining superannuation funds on the grounds of hardship. She received $7,154, which she also expended on the construction of the house.
The wife and the children moved into the new home in September 2000. The property is still in an incomplete state, as is apparent from the valuation report which was prepared for these proceedings.
There was a very large amount of material in evidence in these proceedings. The affidavits were numerous and, in some cases, quite large and lengthy. The oral evidence occupied several days. The written submissions filed on behalf of the wife exceeded 100 pages in length and those of the husband amounted to more than 150 pages. It is simply impossible for me to refer to the whole of this huge volume of material in these proceedings and I do not attempt to do so. I would observe that some of the evidence adduced by the husband was of marginal or no relevance to the issues which I am required to determine.
THE CREDIT OF THE PARTIES AND THEIR WITNESSES
I am referring to those witnesses who gave oral evidence and whose demeanour I had the opportunity to observe. The applicant, the husband, impressed as a self-serving witness whose evidence was of questionable reliability. There were several instances when his evidence was demonstrated to be unbelievable and/or incorrect.
A particular example was his evidence in relation to the maintenance and custody proceedings in the Local Court family matters in 1988. As pointed out in the written submissions on behalf of the wife, the husband swore in an affidavit on 16 April 2002 as follows:
“I have now discovered that [the wife] took out a maintenance order for child support against me dated […] April 1988.
I wish to state that this order was never served on me, I was unaware of its existence and only discovered that it had been taken out when I read her information sheet filed in these proceedings.”
In cross-examination the husband conceded that he signed the consent orders made on 23 May 1988. It was plain that he made payments pursuant to this order. He could not explain satisfactorily how the contents of his affidavit could be reconciled with the factual material contained in the file of the Local Court.
There were several further examples of seemingly unbelievable and/or inaccurate evidence given by the husband. Examples are referred to below in my consideration of the periods of cohabitation between the parties. There were several occasions when documentary evidence was plainly inconsistent with the husband’s version of events.
I should say that I was far from persuaded by the husband’s disingenuous attempt to portray himself as a witness of truth in his written submissions. He said as follows:
“The husband gave thoughtful answers in respect of specific matters and said words to the effect ‘I am trying to be honest here’ and ‘I didn’t know at the time I would need an itemised list of what was spent.”
The husband’s self-serving assertion of honesty does nothing to bolster his credit, in my assessment.
The husband called a number of members of his family as witnesses in his case. His siblings, Mr D, Ms V, Mr R and Ms P all gave oral evidence and impressed generally as truthful people. Much of their written and oral evidence was of little relevance to the issues for determination.
The husband directed close focus to the inconsistencies in the evidence of the wife and these members of his family. These matters, in my view, were not of real assistance to his case. Generally, the evidence of these witnesses seemed to be intended to corroborate the husband’s contentions as to the periods of cohabitation. His siblings gave evidence of visits to the parties at various times, at both the C and O properties. The wife did not dispute that there were occasions when members of the husband’s family visited them. She agreed that the husband spent time at both the C and O properties over the years.
The husband also called evidence from his brother Mr W. This gentleman was a patient in C Hospital and, clearly, he labours under serious health problems. For that reason, I treat his evidence with caution. He denied the wife’s contention that the husband devoted a great deal of time to assisting him with his litigation concerning his stay in C Hospital. I am not persuaded by Mr W’s denials, for reasons which appear below.
The husband also called evidence from his first wife, Ms G. It was submitted on behalf of the wife that the first wife was a witness who lacked objectivity and gave unreliable evidence. I accept this submission and I will say more about the evidence of the first wife below in the context of section 75(2) factors. I note also that she has provided around $40,000 to the husband to meet his legal costs incurred in criminal proceedings involving the wife and elder daughter. It was apparent that both the husband and his first wife hold the wife, and perhaps elder daughter, entirely to blame for his being charged with these offences.
The husband placed great emphasis on instances where he demonstrated that the wife’s written evidence was incorrect. On numerous occasions, these matters were minor in nature and not particularly relevant to the issues for determination. Despite these demonstrated inconsistencies, I regard the wife as a more reliable witness than the husband. It should be remembered that she was cross-examined by a person with whom she had shared a turbulent, intimate relationship, whereas the husband was questioned only by counsel.
The second respondent, the elder daughter, was cross-examined by the husband. It was obvious that she “hates” the husband, as he pointed out in his written submissions. In fact, the situation seemed to be rather more complex for the elder daughter. She actually said:
“I hate you but on the other hand you are my father and I want to love you.”
These feelings on the part of the elder daughter seem to me to be consistent with the account given by her and the wife of the husband’s cavalier treatment of them over the years.
It is no part of my task to examine the reasons advanced by the husband for what he describes as “alienation” of the children from him by the wife. He may care to reflect, however, upon the likely effect of his question to his elder daughter the proposition that her maternal grandmother had advised her mother to procure an abortion when she was pregnant with her. The outrageousness of this question seemed to be apparent to everyone in the courtroom except the husband. Not surprisingly, the elder daughter became so upset at this point that she required a break in giving her evidence.
Generally I accept that the elder daughter was a truthful witness. In particular, I prefer her evidence to that of the husband in relation to his involvement with her and her sister as a parent. I also accept her observations of his limited assistance in the construction of the house at O. I allow for the elder daughter’s adverse view of the husband in making this assessment of her credit.
The other witness in the wife’s case was a friend and neighbour, Ms M. She also impressed as a truthful witness. Specifically, I reject the husband’s suggestion that Mrs M “was giving untrue evidence in support of [the wife’s] case because my brother could not pay her son’s professional fees”. Ms M’s son is a solicitor who, apparently, had some involvement with Mr W’s litigation with C Hospital.
In relation to the evidence generally, I would observe that I was not assisted in determining the issues before me by the husband’s focus on inconsistent accounts of events which occurred in the 1980’s and 1990’s. As I have said, it is simply impossible for me to canvass all of the evidence in these reasons and I do not intend to attempt to do so.
THE APPLICATION PURSUANT TO SECTION 106B
Section 106B of the Family Law Act provides as follows:
(1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
(1A) If:
(a) a party to a marriage is a bankrupt; and
(b) the bankruptcy trustee is a party to proceedings under this Act;
the court may set aside or restrain the making of an instrument or disposition:
(c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the bankrupt; and
(d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
(1B) If:
(a) a party to a marriage is a debtor subject to a personal insolvency agreement; and
(b) the trustee of the agreement is a party to proceedings under this Act;
the court may set aside or restrain the making of an instrument or disposition:
(c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the debtor; and
(d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
(2) The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order.
(3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
(4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.
(4AA) An application may be made to the court for an order under this section by:
(a) a party to the proceedings; or
(b) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or
(c) any other person whose interests would be affected by the making of the instrument or disposition.
(4A) In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1).
(5) In this section:
"disposition" includes:
(a) a sale or gift; and
(b) the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust.
"interest" :
(a) in a company includes:
(i) a share in or debenture of the company; and
(ii) an option over a share in or debenture of the company (whether the share or debenture is issued or not); and
(b) in a trust includes:
(i) a beneficial interest in the trust; and
(ii) the interest of a settlor in property subject to the trust; and
(iii) a power of appointment under the trust; and
(iv) a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and
(v) an interest that is conditional, contingent or deferred.
The requirements to be established in a successful application pursuant to section 106B were set out in Gelley & Gelley (2) (1992) 15 FamLR 483, as follows:
1. There are on foot proceedings under the Act or completed proceedings, the orders from which still have force and effect.
2. The instrument or disposition has been made or is proposed to be made.
3. The instrument or disposition is any one of a series of transactions by which that disposition is carried out.
4. The instrument or disposition is intended to defeat the existing or anticipated order, and has that effect, or, irrespective of intention, is likely to defeat such order.
5. The order defeated, or likely to be defeated, must be existing or anticipated; it is not an anticipated claim.
6. Insofar as the order be anticipated, it is one anticipated by the reasonable disponer at the time of the disposition, properly considering all the circumstances of the case.
7. The effect of the instrument or disposition is that the disponer lacks the capacity to satisfy the orders unless the instrument or disposition be set aside.
8. The onus of proof, on the civil standard, is upon the applicant.
There is no issue that there exist proceedings under the Act in the present case. The husband has filed an application for orders pursuant to section 79.
In this case, any ‘instrument or disposition’ which may be caught by section 106B, must have been made at the time of the purchase of the O property. There is no issue, therefore, that any such instrument or disposition “has been made”.
The only “instrument” which might be caught by section 106B is the transfer of the O property from the vendor to the wife as life tenant and the parties’ daughters as tenants-in-common in equal shares as to the remainder. The husband did not join the vendor of the property, thus he cannot seek to have the transfer set aside.
The question thus is whether there exists any “disposition” which, if set aside, would constitute the wife the sole registered proprietor of the property. “Disposition” is defined in section 106B(5), relevantly for present purposes as “including a sale or a gift”.
In Official Trustee in Bankruptcy & Bassola (3) (1986) FLC 91-769 Murray J said (at page 75,560):
“The only assistance given by section 85 (now section 106B) of the meaning of ‘disposition’ is section 85(5) (now section 106B(5) which says: ‘In this section ‘disposition’ includes a sale or a gift.
The significance of this subsection is that these two forms of alienation are voluntary although it does not necessarily follow that all involuntary alienations are excluded.
Certainly in my view in the context of this subsection the disposition must have a disponor namely one of the parties to the marriage and a disponee (Re Mal Bowers Macquarie Electrical Centre Pty Limited and the Companies Act 1974 1NSWLR 254 at 257). That in itself implies that the property must pass from one to the other and moreover to come within section 85(1) (now section 106B(1) but it passes to the disponee by virtue of some action taken ‘by or on behalf of’ or by the direction of, or in the interests of, the disponor. The subsection does not use the passive tense. To me this can denote some control, management or arrangement on the part of the disponor which vests the property in the disponee.”
In Heath & Heath (2) (1985) FLC 91-517 the Full Court referred with approval to a passage from Cameron v Cameron (1968) 12 FLR 22 at page 27 as follows:
“The word disposition in subsection (1)is used in contrast with the word ‘instrument’. In my opinion the word ‘disposition’ in this section has applied to a situation in which the disposition is carried out by a sequence of transactions as in the case of a contract for the sale of land, covers each and all of the steps in that sequence. If that is right, the intention to which the section refers may be found either at the time when the contract for sale is entered into or at a later stage in the sequence if the form given to the transaction in the sequence or the procedure adopted in those transactions is influenced, not only by the original obligations under the contract but also by the intention referred to in the section.”
On behalf of the wife, it was submitted that “the court may at best, only have power to set aside the transactions, the alleged dispositions between the wife and the children which resulted in the children receiving gifts to enable them to acquire a remainder interest in [the O property]”. Reliance was placed upon section 23(C)(e) of the Conveyancing Act New South Wales 1919, which provides that no interest in land can be created except by writing. It was submitted that it follows that no interest in the O property has been validly created in favour of the parties’ daughters.
It was said that it follows that the only “dispositions” upon which the husband can rely would be an indirect gift by the wife to the children of a “quantum of money which was representative of the acquisition of a remainder interest in [O property] and the proportion of the payment of improvements to [O property]which would be representative of the responsibility of a remainderman to pay for that proportion”. It was pointed out that there was “no quantification” by the husband of these dispositions and that the court could do no more than order a refund to the wife of the amounts representative of these gifts by the second and third respondents.
On behalf of the parties’ daughters, it was submitted as follows:
“At best it might be argued that the wife disposed of some identifiable amount of money at the time she purchased the property by arranging for the children to become entitled to the estate in remainder. There is no evidence before the court to quantify what that interest at the time of the purchase was and therefore the sum of money which the children effectively received the benefit of.
Whilst the application of the wife’s funds in this matter might constitute a disposition in the sense of that caught by section 106B it is submitted that the difficulty is that the court cannot set aside a disposition of some part of the purchase price attributable to the value of an interest in remainder without evidence before it to establish the value of such interest.”
The husband identified the disposition which he seeks to set aside in these terms:
“What the applicant husband seeks to set aside is the directive (disposition) by the wife to the vendor (via her conveyance of the wife’s agent ‘thereunto lawfully authorised in writing or by will or by operation of law’) that the vendor constitute the daughters in written agreement (instrument – contract) the registered proprietors. The result of which is that the person described in the certificate of title, first schedule as a registered proprietor of an estate in fee simple is [the wife].”
It seems to me that the wife’s direction to the vendor can be considered a “disposition” for the purposes of section 106B. The ‘directive’ was one of a series of ‘transactions’ by which the parties’ daughters were constituted the registered proprietors of the property. If I am wrong in reaching this conclusion, then the husband’s application pursuant to section 106B should have failed at this point. For reasons which appear below, I have determined that this application should be dismissed in any event.
There was no order for property settlement in existence at the time of the wife’s purchase of the O property. The issue thus is whether the directive to the vendor either was intended to defeat an anticipated order or, irrespective of the wife’s intention, was likely to defeat such an order.
The husband submitted that the wife’s evidence “supports an intention to defeat any future order. The evidence is that the wife was setting things in place ‘in case either of the parties remarried in future’.”
In support of this contention the husband referred to a number of statements made by the wife in the course of cross-examination. The wife denied that she said to the husband: “I did it in case you remarry” and maintained that she in fact said: “I said in case I remarry – in the event that I remarry”. The wife also said: “I was frightened if I met another unscrupulous person down the track”. Further, she said: “I did it to protect the children’s inheritance in case I died”.
On behalf of the second and third respondents, it was submitted that the husband’s proposition that the wife intended the disposition to defeat an anticipated order is inconsistent with his own evidence and the tenor of his case. It was pointed out that the husband maintained that the parties were in a “harmonious matrimonial relationship” at the time of the purchase of the O property. It was his case that this “harmonious matrimonial relationship” continued until 2001. It was said correctly in my view, that the onus of proof rests on the husband and that he is bound by his own evidence.
Authorities such as Whittaker & Whittaker (1980) 5FamLR 769 make it clear that there must be some causal connection between the disposition and the defeat or likely defeat of the order. In that case Nygh J said:
“Section 85(1) (now section 106B) refers to a disposition which is made to defeat an existing or anticipated order or which, irrespective of intention, is likely to defeat any such order. This indicates that there must be some connection between the disposition and the defeat or likely defeat of the order. Section 85 is not a provision which enables a party long after the event to upset past transactions because the present funds or resources of the respondent turn out to be insufficient. Such an interpretation would mean that any transaction made at any time by the respondent could subsequently be set aside if at any future time the assets of the respondent were insufficient to meet the demands of an order. A more reasonable interpretation is that the disposition must be shown to have the direct effect or likely direct effect of defeating an existing or anticipated order in the sense that if that disposition had not taken place the order would have been effective. Hence, if the order was, or would in any event have been, defeated by other supervening circumstances, it cannot be said that the order was defeated by the disposition or was at any time likely to have been defeated by it.”
In terms of her “intention” it is useful to consider the wife’s perception of her situation at the time when she purchased the O property. On her case, for years the husband had come and gone from her life as he chose while she hoped for a committed relationship with him. There had been little or no financial intermingling between herself and the husband and she had been left to shoulder the burden of the children’s financial support. She had provided the whole of the purchase price for the O property. The husband was making one of his irregular forays into the lives of herself and the children but devoting a great deal of time to his brother’s litigation with C Hospital.
The wife’s evidence was that she took the steps which she did “to protect the children’s inheritance” in the event of her remarriage. She referred to her fear that she would become involved with “another unscrupulous person down the track”. These matters suggest that any concerns which the wife may have entertained were not connected to her relationship with the husband. For these reasons, I am not satisfied that the wife intended to defeat an anticipated order in favour of the husband at the time when she purchased the O property and gave the relevant directive to the vendor.
Further, I am not satisfied that a reasonable disponer, in the position of the wife, would have anticipated an order in favour of the husband at the time of the purchase of the O property, if proper consideration is given to all of the circumstances in the case. In essence, I reach this view for similar reasons to those which persuade me that the wife did not intend to defeat an anticipated order when she gave the direction to the vendor.
For reasons which are examined in the context of the husband’s application pursuant to section 79, I accept substantially that the wife’s account of the parties’ financial and relationship history is correct. The consequence is that I accept that the husband made little financial contribution to the support of the children and no direction financial contribution to the assets which the wife possessed when she purchased the O property. I accept, further, that the husband had played an insignificant role as a homemaker and parent, in comparison to her responsibilities in this regard. In my view, a reasonable disponor in the position of the wife would not contemplate that an order for property settlement would be made in favour of the husband at some time in the future.
Even if I was satisfied that the wife intended to defeat an anticipated order or that her direction to the vendor of the O property would be likely to have that effect, I would exercise discretion against making an order pursuant to section 106B in favour of the husband. I take into account the husband’s delay in bringing an application pursuant to section 106B and the fact that, in my view, his application pursuant to section 79 lacks merit.
The husband’s case was that he became aware that the wife was not the sole registered proprietor of the property in 1997. He made no application in respect of the O property until 2001 and he did not bring proceedings pursuant to section 106B until 2003.
The husband, of course, maintained that the parties did not separate until October 2001. Presumably he would thus say that there was no reason for him to commence proceedings for property settlement before he filed his application in the Local Court on 30 October 2001.
I simply do not believe the husband’s version of the history of the parties’ relationship. I am of the view that he is now attempting to reconstruct the past in order to bolster his case. I reject his evidence that the parties separated in October 2001 and accept that the final separation occurred in 1997. He moved out of the O property in December 1997 or early 1998. It may be that he returned from time to time and that the wife still harboured and expressed hope for a mutually respectful, committed relationship with him. These factors do not prevent a finding of separation in December 1997. In these circumstances, I am of the view that the husband’s delay in commencing proceedings pursuant to section 106B is relevant to the exercise of discretion.
For reasons set out below, I am of the view that the husband’s case for adjustment of property interests, pursuant to section 79, substantially lacks merit. That being so, it would be an inappropriate exercise of discretion to overturn an arrangement put in place by the wife, years before the husband filed his application.
In the context of the exercise of discretion, reliance was placed by the wife and by the second and third respondents on the fact that the disposition was made for the benefit of children of the marriage. Attention was drawn to the provisions of section 43 of the Act. It was said that “the exercise of the discretion of the court in favour of the husband would result in a contribution made to the welfare of minor children being rescinded and therefore not in accordance with the spirit of section 43 of the Act”. There may be substance to this submission but the other factors to which I have referred weigh more heavily in the exercise of discretion.
For these reasons, I propose to dismiss the application brought by the husband pursuant to section 106B. The result is that the wife’s life estate in the O property will be included in the list of assets.
THE APPLICATION PURSUANT TO SECTION 79 APPROACH TO THESE PROCEEDINGS
According to guidelines established through a series of leading decisions, the Court is required to determine the following matters on the evidence:
· firstly, the assets, liabilities and financial resources of the parties to the marriage are to be determined
· secondly, all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other
· thirdly, the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution
· finally, an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.
THE ASSETS, LIABILITIES AND FINANCIAL RESOURCES
The Assets
As a consequence of the dismissal of the husband’s application pursuant to section 106B, the wife’s life estate in the O property will be included in the list of assets at a value of $421,000. Otherwise it seemed that the husband and wife were agreed as to the existence and value of the following items of property:
1.
F Super (W)
$1,300
2.
Savings (W)
$500
3.
Mitsubishi motor vehicle (W)
$2,000
4.
Household contents (W)
$2,500
5.
Savings (H)
$800
6.
Holden motor vehicle (H)
$400
7.
Electrical goods (H)
$1,400
The husband urged the inclusion in the list of assets of an amount of $14,324 which he maintained has been paid by the wife on account of her legal fees. He suggested that she sold a Camry motor vehicle, described by him as “the parties’ property” and that she used a further sum of $8,324 “from the proceeds of sale of the previously owned [C property]” for this purpose.
These two propositions were not established by the evidence. The husband pointed to evidence from the wife that she purchased the Camry motor vehicle in 1993 for $15,700 and to her statement in an affidavit that: “I still retain this vehicle although I am attempting to sell the vehicle to pay my legal fees. I have advertised the vehicle for sale at $6,000”. There was no evidence of the sale price of the Camry or of the use made by the wife of this money. The husband simply presumed that the wife sold the Camry motor vehicle for $6,000 and that she used this money for legal fees.
The husband then presumed that the wife paid additional legal costs of $8,324 from the proceeds of sale of the C property. Four years elapsed between the sale of that property in 1997 and the commencement of these proceedings in 2001, which is the earliest time when the wife would have paid legal costs. During that period she received income by way of a pension, which must have been intermingled with whatever money remained from the sale of the C property. She also received an inheritance of $27,000 from her father in 1998 and a personal injuries compensation payment of $1,300 in 2000. It is merely a self-serving assumption on the part of the husband that the wife used $8,324 from the proceeds of sale of the C property to pay legal costs.
For these reasons, I decline to include in the list of assets a sum of $14,324 being legal fees paid by the wife. I would reach the same conclusion even if the evidence had supported the propositions put by the husband. The C property and the Camry were acquired with money generated by the wife independently of the husband. It is clear that I have a discretion in this regard: Chorn & Hopkins (2004) FLC 93-204.
I thus find the assets of the parties to be as follows:
1.
Life estate in O property (W)
$421,000
2.
F Super (W)
$1,300
3.
Savings (W)
$500
4.
Mitsubishi motor vehicle (W)
$2,000
5.
Household contents (W)
$2,500
6.
Savings (H)
$800
7.
Holden motor vehicle (H)
$400
8.
Electrical Goods (H)
$1,400
TOTAL:
$429,900
The Liabilities
It was not entirely clear whether the husband sought to include as liabilities the following alleged debts:
1.
The first wife for legal costs in criminal proceedings
$40,000
2.
The first wife for car loan
$5,000
3.
Mr P for living expenses
$7,000
I will assume that the husband does seek to include these alleged debts for the purpose of determining the net pool of property.
If I were to include these alleged liabilities, the effect would be to cast liability for part of the husband’s criminal costs and post separation living expenses upon the wife. I can see no valid reason for doing so. Additionally, there was no evidence of the precise quantum of these alleged debts nor of any requirement or conditions for repayment. At its highest, the husband’s case was that he has a “moral obligation” to repay these alleged loans. For these reasons, I decline to include the alleged debts of the husband, set out in paragraph 76, in the list of liabilities.
The wife has a credit card liability of $28,000, which was incurred to meet her legal costs. I am not inclined to include this liability for the purpose of determining the net pool of property. The effect would be to assign part of the responsibility for this debt to the husband.
I find that the parties have no liabilities which should be taken into account for the purpose of determining the net pool of property.
Financial Resources
The husband contended “that the wife’s mother is a financial resource”, a proposition which seemed to be based on certain transactions said to be connected to her father’s estate. This submission was somewhat difficult to follow but appeared to amount to a contention that the wife is assured of an inheritance from her mother. The basis of this suggestion, apparently, was this statement in the will of the wife’s late father:
“Previously negotiated with my wife any financial discrepancy in allocation of my property and moveable assets to be sorted out by her last will as to nobody be short.”
There was no evidence of the provisions of any will of the wife’s mother, nor any indication of her testamentary intentions. In my view, this submission clearly lacks merit. I find that neither party has a financial resource.
THE CONTRIBUTIONS OF THE PARTIES
The task of identifying and evaluating the parties’ contributions was complicated by the dispute as to the periods of their cohabitation and as to their domestic arrangements generally. The wife maintained that the parties lived together for a total period of approximately 21 months between the date of the marriage on 21 November 1984 and the final separation, which she alleged took place in December 1997.
The husband maintained that the parties “cohabitated from the date of marriage until just prior to the divorce in February 2002”. He described the marriage as “unconventional” and maintained that the parties “lived separately but not apart”. According to the husband, “they had the marriage which the wife wanted”. As I have said, the wife claimed that the husband came in and out of the lives of herself and the children as he pleased.
Of course, the court is required to consider all relevant contributions, whether made while the parties were cohabiting or otherwise. It is still necessary to attempt some determination of the periods of cohabitation for the purpose of considering the respective contributions, particularly issues such as homemaking and parenting.
Essentially, the husband maintained that the parties agreed to occupy separate residences at various times for different reasons. On his case, the consortium vitae nonetheless continued from the date of marriage until 2001.
It was common ground that the husband lived at K property between the date of the marriage in November 1984 and December 1986, while renovations to that property were being completed. There was a dispute as to the frequency and duration of his stays at the C property with the wife.
There were proceedings in relation to property settlement between the husband and his first wife during the 1980’s. In an affidavit sworn in September 1987 the first wife stated as follows:
“Paragraph 6. Substantial alterations were made by the husband and myself between 1982 and 1986, to the property at [K].
The husband said ‘you and [our daughter] are my only family’. On this basis I permitted the respondent to take his time with the renovations and to take breaks from the renovations whilst I was supporting the household and to go to Queensland with his mother to plan the building of a house for her and to take time off and even though we were divorced, this continued until June 1986. In June 1986 I became aware that the respondent had in November 1984 married [Ms Sargent] and they had a child who was now aged 2 years. The respondent concealed from me his marriage and continued to reside under the same roof as me at [K] after our divorce in June 1984 until June 1986 and thereafter continued to reside under the same roof until December 1986.”
On 5 October 1986 the wife wrote a letter to the husband which stated, inter alia, as follows:
“I am tired of having to wait, I want you to move in by next weekend and no ifs and buts but if you do not, then you leave me no option but to proceed with a divorce because as you agree, this situation is beyond a joke……you will be able to see [the elder daughter] on Saturdays between 9 and 12 but if you don’t visit her here, I will personally bring her to [the shopping centre] and follow you around so that she can feel and understand what rejection is about.
Please believe me, this is not a bluff. I once again repeat, if you cannot decide between your ex-wife and present one, please do not make my life unbearable or there will be drastic consequences over which, I will, due to emotional disturbances have no control…..please I implore you, act now, otherwise the overwhelming love I feel for you will no doubt turn into a very destructive hate.”
In my view, these two pieces of evidence sit most uncomfortably with the husband’s contention that he and the wife agreed that he would remain at the K property to complete the renovations and arrange its sale. Rather, it would appear that he was duplicitous to both his first wife and second wife during this period.
The first wife commenced proceedings for property settlement in September 1987. In a Financial Statement the husband gave his address as F, which was the home of his sister. The husband did not list the wife or the baby first daughter as members of his household in this Financial Statement. Affidavits of service in these proceedings show that the husband was served with court documents at the F address.
In the face of this evidence, the husband simply maintained that the parties in fact lived together at the wife’s C property at this time. It is patently incorrect for him to submit, as he does, that the wife “concedes that the husband was living with her at [C]” prior to mid-1997 (this reference in his written submissions must in fact mean 1987). The wife was very firm in her denial that the husband lived with her at her C home prior to mid-1987.
In May 1988 the wife commenced proceedings for custody and maintenance in the Metropolitan Children’s Court. An affidavit sworn on 13 May 1988, by a Sheriff’s officer, shows that service was effected upon the husband at K property. The husband’s convenient explanation was that he attended the K property regularly, in order to finalise its sale and spend time with his daughter from the first marriage.
The records of the Metropolitan Children’s Court contain an address for the husband of ‘[A1]’ or ‘[A2] which was a home purchased by the first wife after the sale of the K property. The Court file included an affidavit of service of the husband of a summons for non-compliance with a maintenance order, at that address. The husband denied that he had been served with this summons at the A address and relied on a note in the file dated 6 August 1990 “not served/no return of service/no parties” in relation to a Registrar’s callover. I do not accept the husband’s denial as truthful, in the face of an affidavit of service sworn by a Sheriff’s officer.
On 15 September 1990 the husband signed an application for cancellation of the registration of his company. He stated his address as D. On 24 January 1996 the husband signed an application for transfer of a motor vehicle to his daughter from his first marriage, again showing his address as D. On 31 January 1996 the husband showed his address as C when he renewed his driver’s licence. By 31 January 1996, the wife and the children had by then moved to the Central Coast and the husband had the use of the C property.
Between 7 July 1989 and 13 October 1989 the husband was in the United States in order to pursue his career. He was again in the United States between 25 November 1993 and 6 February 1995. It was common ground that, on the husband’s return from the second overseas trip he moved into the C property with the wife and the children.
In January 1996 the wife and the children moved into rented premises at J. The husband remained at the C property but maintained that he spent time on the Central Coast with the wife and the children, in the context of an ongoing relationship.
The wife and the children moved into the O property in September 1996 upon completion of the purchase. She agreed that the husband came to live with them upon the sale of the C property in April 1997. On her version of the relevant facts, the parties lived together at the O property between April 1997 and December 1997.
It was common ground that the husband and his brother Mr W moved into rented accommodation at T in December 1997. Despite his occupying these premises until 2001, the husband asserted that there was an ongoing relationship between the parties.
The wife’s account of the husband’s coming and going from the lives of her and the children was corroborated, to some extent, by the evidence of the elder daughter. Generally, I prefer the evidence of the wife as to the periods when she and the husband lived together. I do not accept as completely accurate the dates set out in the written submissions on behalf of the wife but I am satisfied that the relationship did not subsist for the entirety of the period from November 1984 until 2001, as the husband claimed. It may be that the wife expressed love for the husband and a continuing hope for a committed family life with him over the years. I regard it as convenient for the husband now to assert that the parties’ domestic arrangements were the result of mutual choice, rather than his focus on other priorities in his life.
The periods of cohabitation and the subsistence of the relationship are relevant at least to the husband’s opportunity to make a contribution as a homemaker and parent. On the wife’s account of the relationship, there would have been a lesser opportunity for the husband to contribute regularly to the financial support of the family and to make non-financial contributions to the improvement of the O property. Put simply, he is less likely to have made these contributions if he was living independently of the wife and the children. In making this observation, it is not necessary that I accept as completely accurate the submissions on behalf of the wife as to the periods of cohabitation. I am satisfied that her evidence far more accurately portrays the true situation than does that of the husband.
It is open to the court to adopt either an asset-by-asset or a global approach to the assessment of contributions, depending on the circumstances of the case: Norbis & Norbis (1986) FLC 91-712. In this case I propose to adopt an asset-by-asset approach although I will take into account the husband’s reliance upon contributions of a non-financial nature and as a homemaker and parent.
The written submissions on behalf of the wife summarised her contributions as follows:
1.At the date of the marriage she owned the property [C], which she had purchased in 1976 for $27,000. She borrowed $22,000 to fund the purchase and made mortgage repayments for 8 years prior to the marriage.
Upon the sale of the [C] property in 1997, [The wife] received net proceeds of approximately $229,500. She purchased a Nissan Patrol motor vehicle for $28,500 and the balance was expended on the improvements to the [O] property. The Nissan Patrol motor vehicle was sold and this money also was applied to the improvements to the [O] property.
2.In 1982 [the wife] purchased an investment property [L property], which was sold in 1993 for $42,500. She used the sale proceeds to purchase a motor vehicle and to support herself and the children.
3.[The wife] joined the New South Wales Public Service and remained in this employment until March 1995. She used her income to support herself and the children, in circumstances where [the husband] provided little financial support for the family.
Upon the termination of [the wife’s] employment in 1995 she received the following lump sum payments:
· $8,619 for long service, holiday pay and other entitlements
· redundancy payment of $24,761
· superannuation rollover of $157,140,
amounting to a total sum of approximately $157,000.
From these funds, [the wife] applied approximately $149,000 to purchase the [O] property, and spent the balance on the improvements.
4.In 1998 [the wife] received an inheritance of approximately $27,000 from the estate of her late father. She used approximately $18,000 to renovate a property at [W] which was inherited by [the parties’ daughters]. The balance of about $9,000 was applied by [the wife] to improvements to the [O] property and general living expenses.
5.In 2005 [the wife] received approximately $8,200 by way of victim’s compensation. She paid approximately $2,000 to reduce a credit card debt and made the balance available to [the elder daughter] for a nose operation.
6.In 2000 [the wife] received the sum of approximately $1,300 by way of compensation for personal injuries suffered in a motor vehicle accident in 1999. This money was used for the benefit of the household.
7.[The wife] was “the major financial provider for the children”. [The husband’s] only contribution was payment of child maintenance, using the old terminology, pursuant to the order of the Metropolitan Children’s Court. His payments amounted to a total of approximately $5,600.
8.[The wife] was the primary carer for the children, in circumstances where [the husband] “made fleeting appearances at the wife’s home and provided minimal emotional support for the children…..”
9.[The wife] made an indirect contribution to the improvements at the [O] property by organisation of tradesmen. She undertook the role of owner/builder and carried out physical work herself.
10.[The wife] provided [the husband] with rent-free accommodation at the [C] property for approximately 1 year from January 1996 until February 1997. During this period she was responsible for payment of the outgoings on the property.
11.[The wife] made a contribution to the welfare of [the husband] by providing him with a motor vehicle which he retained at separation and returned only in mid-2002.
In his written submissions the husband appeared to allege that he made the following contributions:
1.He brought $121,000 in cash into the marriage in 1998. This money was his share of the proceeds of sale of the [K] property, after payment to [the first wife] of a lump sum child support for their daughter.
2.He worked as an entertainer between 1982 and 1995 and was paid in cash. He provided money to [the wife] for the support of the family.
3.He negotiated the purchase of the [O] property with the owner. Implicitly, it seemed to be suggested by [the husband] that the property was purchased on favourable terms due to his efforts.
4.He designed the [O] home and facilitated council approval for the plans.
5.He laboured on the construction site at [O].
6.He made a contribution as homemaker and parent.
I accept that the husband received $144,733 from the proceeds of sale of the K property and that he paid lump sum child support of $22,549 to his first wife. I thus accept that he had cash reserves of $121,751 in July 1988. It does not follow that he made a cash contribution in that amount to the relationship of the parties.
The husband could not point to a single use of these funds for the joint benefit of the parties and/or the children. He did not, for example, claim that he purchased any particular asset for the use or benefit of the family. He did not claim that he made any direct financial contribution to the acquisition or improvement of the O property. In fact, he made only a general assertion that he used these funds for the benefit of the wife and the children. Otherwise, there was simply no evidence that he did so. The fact that he possessed $121,000 in 1988 does not, of itself, mean that he contributed this money to the acquisition, conservation or improvement of the property of the parties. In fact, he failed to account for how this money was spent and relies on an inference that he used these funds for the benefit of the wife and/or the children. I am not prepared to make such an assumption.
The husband spent two periods in the United States in pursuit of his career, the second of which was of some 14 months’ duration. He maintained that he worked during these two periods but he gave no estimate of his income or his expenses. It is thus not open to me to infer that the husband supported himself from his income in the United States, if that is what he suggests. He said that he was “pretty broke” when he returned from the second overseas trip. He conceded in cross-examination that nothing of his property settlement money remained, at this point. For these reasons, it seems to me to be more probable than not that the husband relied on his property settlement money for his own support while he was in the United States. In my view, it is not open to me to draw an inference that he earned sufficient funds to support himself in the United States.
There was a suggestion that the husband told the wife that he had contributed $50,000 to the renovations of his first wife’s home in D. It was inferred that this money came from the proceeds of sale of the K property. There were aspects of the evidence which might raise suspicions as to the relationship between the husband and his first wife and as to his financial involvement in her A property. Her use of the phrase “my husband and I” in a letter relating to the installation of a swimming pool at the premises is one example (exhibit 3). The husband’s lame explanation was that a mistake was made by a representative of the swimming pool company.
The husband and his first wife both denied that he has made any financial contribution to her A property. The evidence does not warrant finding that he did so.
The wife, on the other hand, gave detailed evidence as to the lump sums which came into her hands and she was able to trace the uses to which she put these funds. She received the following lump sums between 1997 and 2005:
1.
Proceeds of sale of the L property received in 1993
$42,500
2.
Money received on termination of her employment in 1995
$198,000
3.
Proceeds of sale of the C property received in 1997
$229,000
4.
Inheritance from her father received in 1998
$27,000
5.
Victim’s compensation received in 2005
$8,200
6.
Personal injuries compensation received in 2000
$1,300
$506,000
The wife made mortgage repayments in respect of the C property between 1976 and the time of the marriage in 1984. There can be no suggestion that the husband made an indirect financial contribution to the mortgage repayments during that period. He may suggest that he made such a contribution between November 1984 and the discharge of the liability in 1991. The evidence which the husband presented does not satisfy me that he provided money to the wife on a regular basis, or in any meaningful amount, during this period. I thus reject any suggestion that he made an indirect financial contribution to the acquisition or conservation of the C property. For the same reasons, I made a similar finding in respect of the L property.
The husband relied upon non-financial contributions to the O property. He alleged that he had a beneficial involvement with the negotiations with the vendor, a claim which was disputed by the wife. He alleged that he designed the home and was instrumental in having the plans approved by the local council. Further, he maintained that he played a role in selecting fixtures and fittings for the property. While I doubt that he did so, I will assume that he made these contributions for the purpose of these reasons.
The husband also alleged that he made a significant direct non-financial contribution to the improvement of the O property by way of his physical labour. This allegation was strongly disputed by the wife, who maintained that his physical work on the property was of very limited scope. Her evidence in this regard was corroborated by the parties’ elder daughter. In particular, both the wife and her elder daughter said that the husband declined to assist with the physical work. They maintained that he declined to assist with this work when asked to do so, saying: “as [an entertainer], I have to consider my hands”.
I accept that the husband carried out some physical work on the O property but, in my view, he exaggerated and overplayed his efforts in an attempt to bolster his case. I regard the evidence of the wife and the elder daughter as more persuasive in this regard.
The husband also relied upon a contribution as homemaker and parent, a claim which was disputed by the wife and elder daughter. In his written submissions the husband criticised the wife’s parenting of the children and blamed her for their estrangement from him. As the husband noted:
“The wife conceded that the children stood over her but the reasons for it she said: ‘that’s because they couldn’t believe that I had chosen such a prick to be their father’”.
In my view, these criticisms of the wife’s parenting of the children do not assist the husband’s case.
The husband failed to elicit agreement from his elder daughter that he participated in pleasurable family activities with her and the younger daughter. For example, he focussed on her horse-riding activities but she refused to agree that his involvement was anything more than minor or peripheral. He relied upon seemingly loving cards written to him by his daughters while he was in the United States. The wife and elder daughter both said that she told the children to write these messages to him. The elder daughter said also that activities prescribed at school accounted for some of these cards and letters. The elder daughter gave poignant evidence as follows:
“I can remember…..I was writing letters to someone who was overseas and who I did not really know” and
“I did not really have a concept of a father/daughter relationship – I knew what I had to call you but other kids lived with their parents” and
“Mum always wanted the happy family but it never happened”.
I am satisfied that the husband made a contribution as homemaker and parent. The significance of this contribution is curtailed, however, by the limited periods during which the husband lived with the children.
The wife alleged that the presence in the home of the husband’s brother Mr W disrupted the household. She maintained, and the husband denied, that he devoted considerable time and effort to Mr W’s litigation with C Hospital. The husband’s denial sits uncomfortably with a document dated 19 June 1995 (exhibit 7) in which Mr W wrote:
“Bless [the husband] (my brother) who is my main Legal Representative give him and bless him with the words, the knowledge… to present my claims to the defendant for resolution…..without the need to process my claims through the courts.”
The husband’s unconvincing explanation for this document was that it was “a prayer for resolutions outside the legal system” and “did not appear to be a prayer to bless [the husband] with legal knowledge to represent [Mr W] in court”. I am unpersuaded by this pedantic distinction and I am satisfied that the husband did devote substantial time to Mr W’s claim against C Hospital.
CONCLUSION AS TO CONTRIBUTION
I assess that the contributions of the wife overwhelmingly outweigh those of the husband. I accept or assume that he made limited contributions to the improvements to the O property and as homemaker and parent. I accept that he made a contribution to the support of the children, by way of maintenance payments, but that was no more than a court-ordered fulfilment as to his alleged contributions.
It is appropriate to consider the weight to be given to these contributions in the context of the benefits which flowed to the husband from the relationship. He had the benefit of rent-free accommodation in the C and O properties, albeit for the limited periods on my view of the evidence. He had the use of the Camry motor vehicle until 2002, when its return was ordered by the court.
In my view, the husband’s minor contributions are cancelled out by the benefits which he received from the relationship and/or outweighed completely by the contributions of the wife. I am here referring to the assets held in the wife’s name. Similarly, I am of the view that the wife could not point to any contribution to the minor assets held in the name of the husband.
Accordingly, I find that the wife made a 100% contribution to the following assets:
1.
Life estate in O property
$421,000
2.
F Super
$1,300
3.
Savings
$500
4.
Mitsubishi motor vehicle
$2,000
5.
Household contents
$2,500
$427,300
I find that the husband made a 100% contribution to the following assets:
1.
Savings
$800
2.
Holden motor vehicle
$400
3.
Electrical goods
$1,400
$2,600
SECTION 75(2) FACTORS
I will refer only to those factors set out in section 75(2) which appear to me to be relevant to the present proceedings.
Section 75(2)(a): the age and state of health of each of the parties;
Section 75(2)(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;
The wife is 55 years of age and has been out of the workforce for 12 years. She receives a social security pension and is unlikely to be able to secure gainful employment in the future.
The husband is 62 years of age and maintained that he no longer works as and entertainer. In light of his age, I accept that his career is virtually at an end. As far as I am aware, he has not engaged in paid employment for a considerable period.
Both of the parties claim to suffer from health problems but there was no medical evidence to this effect. It seems to me that, leaving health issues aside, the capacity of each of the parties to engage in gainful employment in the future is practically non-existent.
Section 75(2)(m): the terms of any order made or proposed to be made under Section 79 in relation to the property of the parties;
The wife alleged that the husband is in a de facto relationship with his first wife, Ms G. He maintained that he rents a room in her home as a boarder and that there is no other relationship between them. On the evidence available to me, I cannot be satisfied that there exists between the husband and his first wife a relationship which brings to him any financial benefit.
Section 75(2)(o): any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
On 20 November 1984 the parties executed a document which purportedly set out an agreement for the treatment of their property, in the event of a breakdown of their marriage. Essentially, the document recorded an intention that neither party would make a claim on assets owned by the other prior to the marriage. Any property acquired in their joint names would be divided equally between them.
It is clear that this document was not binding on the parties, and, in my view, is of no relevance to the determination of the present proceedings. If I had determined that it is appropriate to make an order in favour of the husband, this document would have proved no barrier to my doing so.
I take into account that the wife’s most valuable asset is her life estate in the O property. Otherwise, she possesses only minimal savings, household contents, an old car and a small superannuation benefit.
The life estate is virtually an unrealisable asset. The valuer, Mr T, stated specifically in his report that:
“There is no real market in Australia for life interests or reversions” and
“Unlike a normal asset valuation it does not provide an estimate of what either party’s interest could be sold for”.
There is thus no source of funds available for the wife to make any payment to the husband.
CONCLUSION AS TO SECTION 75(2) FACTORS
I can see no basis upon which it is appropriate to make an adjustment in favour of either party pursuant to section 75(2). I find that no such adjustment is warranted in all of the circumstances of the case.
RESULT AND JUST AND EQUITABLE OUTCOME
The result is that I find that each of the parties should retain all items of property in his and her respective possession and accept ongoing responsibility for their liabilities.
The circumstances of this case are unusual and exceptional. A close consideration of the relevant evidence, however, leads me to the conclusion that this result is just and equitable.
I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate:
Date: 24 May 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MUSSON & SARGENT
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Statutory Interpretation
Legal Concepts
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Remedies
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Jurisdiction
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Statutory Construction
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