Nichol v Lane
[2012] TASSC 25
•25 May 2012
[2012] TASSC 25
COURT: SUPREME COURT OF TASMANIA
CITATION: Nichol v Lane [2012] TASSC 25
PARTIES: NICHOL, Brian William
v
LANE, Colleen
FILE NO: 49/2011
DELIVERED ON: 25 May 2012
DELIVERED AT: Hobart
HEARING DATES: 22 and 23 February 2012
(Written submissions filed 5 April 2012)
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Family Law and Child Welfare – De facto relationships – Adjustment of property interests – Relevant considerations – Just and equitable – Asset by asset approach – Claim for notional rent rejected.
Relationships Act2003 (Tas), ss40 and 47.
Aust Dig Family Law and Child Welfare [496]
REPRESENTATION:
Counsel:
Applicant: S P Bishop
Respondent: R A S Baker
Solicitors:
Applicant: Bishops
Respondent: Baker Wilson Lawyers
Judgment Number: [2012] TASSC 25
Number of paragraphs: 70
Serial No 25/2012
File No 49/2011
BRIAN WILLIAM NICHOL v COLLEEN LANE
REASONS FOR JUDGMENT HOLT AsJ
25 May 2012
Introduction
The parties, now each aged about 60, were in a significant relationship within the meaning of the Relationships Act 2003 from December 2003 until September or October 2008. An application has been filed seeking an adjustive property order.
At the commencement of the relationship the applicant was a boarder in a house at Launceston paying $150 per week. He had a before tax income of about $525 per week comprised entirely of workers compensation weekly payments. He owned a car worth about $2,000; a horse and saddle and some personal effects. During the whole of the period of the relationship he lived rent free in the respondent's house, but paid for most of the couple's groceries and dining out expenses. He now has an income of about $390 per week, being a disability pension. He owns a motor vehicle worth about $3,000 and household contents worth about $1,500. At the time of his last financial statement he had a credit card debt of about $5,000 and an accruing liability to pay legal fees in connection with this application.
The respondent had been married for 32 years, when in February 2003 her husband died suddenly of a brain aneurysm. At the commencement of the relationship she had a before tax income of about $650 per week comprised of about $445 per week being earnings from her permanent part-time employment as an administration clerk at the Huonville High School; a little over $100 per week being interest earned on her savings and a little under $100 per week being rental profits derived from two housing units which she owned at Claremont. The two Claremont units were purchased in 2002 for $53,000 and $52,000 respectively, with one of the units subject to a mortgage of about $40,000. She owned a block of land at Dennes Point on Bruny Island with an on-site caravan, the block having been purchased in 1997 for $21,000. She owned a motor vehicle purchased in May 2003 for $35,000. She owned a trailer worth about $500. She had $124,000 in savings in the bank. She had some personal effects and household contents. She owned her home at 45 Dowlings Road, Huonville, which she purchased in May 2003 for $148,000. Finally, by way of resources, she had a superannuation investment account worth about $100,000.
The respondent retired from her employment at the Huonville High School in July 2011. She now has an income derived from the rent at the two Claremont units and a small amount of interest earned on savings. She still owns in addition to the Claremont units; the Bruny Island block; the car and trailer and the home at Huonville worth respectively about $240,000, $50,000, $10,000, $500 and $285,000. Her bank savings have been reduced to about $30,000. She has shares worth about $3,340. The mortgage over the Claremont unit has increased to about $70,000. Her superannuation investment account currently has a value of about $115,000.
At the time the application was filed in January 2011 the applicant claimed an adjustment giving him 20 percent of the total value of the respondent's assets and at the start of the hearing his counsel informed me that this claim included a claim for 20 percent of the respondent's superannuation. The total claimed was accordingly about $130,000. By the end of the hearing the claim had been reduced to 10 percent, being a claim for a payment of about $65,000.
The respondent contends that she ought not be required to pay anything. Her counsel pointed out that the relationship was short, being a little less than five years. Although the applicant had undertaken domestic and handyman tasks it was said that this was adequately compensated by the fact that the applicant lived at the respondent's Huonville home rent free. The applicant and the respondent had throughout the relationship kept their finances separate. The applicant was fully reimbursed for any purchases he made relating to the maintenance or improvement of the respondent's assets. The applicant admitted in cross-examination that he had said early in the relationship: "I fall out with Colleen, I will leave with what I come with, nothing more, nothing less."
The application was brought out of time. The relationship ended in September or October 2008, but the application was not filed until January 2011. Pursuant to the Relationships Act, s38, the time limit for bringing the application is within two years of the end of the relationship. Leave may be granted to bring an application after the expiry of two years if greater hardship would be caused to the applicant if leave were not granted than would be caused to the respondent if leave were granted. The respondent does not claim that she would suffer any hardship by the application being pursued out of time and does not oppose the grant of leave. Accordingly, the matter proceeded on the basis that if it is determined that the applicant should have an adjustive property order, time should be extended for the bringing of the application.
The considerations and methodology
The question is what, if any, adjustive order is just and equitable having regard to the statutory considerations. Section 40 is as follows:
"(1) On an application by a partner for an order for the adjustment of interests in respect of the property of either or both the partners, a court may make any order it considers just and equitable having regard to –
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of either or both of the partners to the acquisition, conservation or improvement of any of the property; and
(b) the financial resources of either or both of the partners; and
(c) the contributions, including any contributions made in the capacity of homemaker or parent, made by a partner to the welfare of the other partner or to the welfare of the family constituted by the partners and one or more of –
(i) a child of the partners; or
(ii) a child accepted by either or both the partners into the household of the partners, whether or not the child is a child of either of the partners; and
(d) the nature and duration of the relationship; and
(e) any relevant matter mentioned in section 47.
(2) A court may make an order in respect of property whether or not it has declared the title or rights of a partner in respect of the property."
Section 47(2), so far as is relevant to the matters advanced by the parties, is as follows:
"In determining whether to make the order and in fixing any amount to be paid under the order, a court is to have regard to the following:
(a) the income, property and financial resources of each partner (including the rate of any pension, allowance or benefit paid, payable or entitled to be paid to either partner) and the physical and mental capacity of each partner for appropriate gainful employment;
(b) the financial needs and obligations of each partner;
…
(g) the age and state of health of each partner;
(h) the standard of living that is reasonable for each partner in all the circumstances;"
Obviously the starting point which I have already undertaken at the commencement of these reasons, is the identification and valuation of the assets of the parties. The financial and non-financial contributions to the acquisition, conservation or improvement of the property and other contributions such as that of homemaker for the welfare of the other partner or the family should be taken into account. Other relevant considerations such as the nature and duration of the relationship are then to be taken into account. Finally, "the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind" in determining what is just and equitable. This is in broad terms the approach identified by Campbell JA (with whom Santow JA and Bryson AJA agreed) as being correct in Manns v Kennedy [2007] 37 FAM LR 489. His Honour said at pars 62 – 65:
"62 McLelland J said in Davey v Lee (1990) 13 Fam LR 688 at 689; (1990) DFC ¶95-084 at 76,146, that under section 20 'the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind'. That statement was approved in this Court in Ross v Elderfield [2006] NSWCA 192 at [35] and in Kardos v Sarbutt [2006] NSWCA 11 at [36]; (2006) 34 Fam LR 550 at 561; (2006) DFC ¶95-332 at 78,542.
63 The Full Court of the Family Court of Australia (Fogarty, Murray and Baker JJ) in Ferraro v Ferraro (1993) FLC 92-335 at 79,578 approved the statement in In the Marriage of Harris (1991) 15 Fam LR 26 at 31; [1991] FLC 92,254 at 78,705 concerning section 79 Family Law Act 1975 that the task it calls for 'is not akin to an accounting exercise'. The same applies to section 20.
64 However, the 'holistic value judgment' is the final step in the process of arriving at an order, namely deciding what adjustment of property seems just and equitable having regard to the contributions identified in paragraphs (a) and (b). Carrying out the task that section 20 sets requires, before that final step is carried out, an identification and (so far as possible) valuation of the contributions that are being taken into account and an identification and (so far as possible) valuation of the property concerning which it is open to the court to make an adjustment: Howlett v Neilson [2005] NSWCA 149 at [25]; (2005) 33 Fam LR 402 at 407; Saric v Steward [2006] NSWCA 260 at [61]; (2007) DFC ¶95,401 at 78,713; Chanter v Catts [2005] NSWCA 411 at [22]; (2005) 64 NSWLR 360 at 366.
65 Further, even in carrying out that final step, 'there is no warrant for ignoring the rigour that mathematics can provide': Ross v Elderfield (at [49] per Handley JA (with whom McColl JA and Hislop J agreed)). As Hodgson JA said in Howlett v Neilson (at [39]; 411):
'... while I do not think that these matters can be determined on such mathematical calculations, I think mathematical calculations are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision-making.'"
The consideration of what is just and equitable is not an accounting exercise. Accordingly, it is an error of approach to convert non-financial contributions, such as contributions as homemaker, into money based on commercial rates for the work or its value. Here, however, counsel for the respondent submitted that I should calculate notional rent at the rate of $150 per week for the four years and nine or ten months during which the applicant had the benefit of rent free accommodation at the respondent's Huonville house and then deduct this amount from the amount of any property adjustment that might otherwise have been made.
In support of the contention counsel for the respondent referred to three cases, namely, Bilous v Mudaliar (2006) 65 NSWLR 615; Howell v Fiorenza [2008] NSWSC 163 and Sullman v Sullman (2002) DFC 95.248.
Bilous and Sullman do not support the contention of the respondent and Howell, a decision of a single judge in New South Wales is inconsistent with the New South Wales Court of Appeal decision in Bilous.
In Bilous, Ipp JA at pars114 – 128 (with whom Giles JA and McColl JA agreed) rejected a proposition by the judge at first instance that notional rent could be calculated and deducted not only in a case where the party receiving the accommodation uses his or her own house to earn a rental income, but also in a case where the sole benefit is merely the provision of accommodation in the home. His Honour made it clear that non-financial contributions should not be assessed by converting them into items of particular monetary value. Relationships are not commercial, financial or accounting arrangements.
In Howell notional rent was allowed, but only because there was no homemaker contribution by the plaintiff and no other non-financial contributions against which the provision of the accommodation by the defendant could be offset. That is not the situation here. In any event, with respect to the learned judge the decision is inconsistent with numerous authorities in the field, including Bilous, to the effect that in determining what is a just and equitable distribution of property at the cessation of a marriage or relationship it is wrong to convert non-financial contributions into commercial values and undertake the assessment as if it were an exercise in accountancy.
In Sullman, the recipient of the rent free accommodation received a rent allowance from his employer, and so it was a case of a financial benefit being taken into account in specific monetary terms and not a case where there had been a conversion of a non-financial contribution into money by reference to commercial considerations.
The rent free accommodation provided by the respondent will not be converted into a notional rent, but will simply be taken into account as a factor to which appropriate weight will be given in the overall assessment of what, if any, adjustive property order is just and equitable. On the other hand, monetary contributions, such as the purchase of groceries, the payment of dining out expenses, payments for holidays and other payments can, where appropriate, be assessed in purely monetary terms.
In most cases where an adjustive property order is under consideration the convenient approach is to adopt a global view of the entire asset pool for the purpose of considering the division. However, it is legitimate in some cases to consider what adjustment, if any, should be made using an item by item approach. In Norbis v Norbis (1986) 161 CLR 513, Wilson and Dawson JJ said at 532 – 533:
"If the parties' interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of the property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets, as was convenient in this case."
Here the relationship was of relatively short duration. The applicant did not have and does not have any assets of his own which are of significance. The respondent ended the relationship with a number of valuable assets which she has retained in her own name. The couple kept their finances separate. Any financial contributions which the applicant made to the conservation or improvement of property were promptly reimbursed. The respondent's ability to continue in the workforce and conserve and improve her assets was unaffected by the applicant's contribution as homemaker.
For the reasons which follow, I have determined that the applicant made no material contribution to any of the assets of the respondent other than in connection with the Huonville home. Accordingly, I have concluded that an item by item approach is appropriate in the circumstances of this case. The only property which will be considered for adjustment is the Huonville home. In considering what adjustment, if any, should be made in respect of that property due consideration and weight will be given, not only to the applicant's contributions but to each of the other relevant statutory considerations including the respondent's overall superior financial position.
The Claremont units
The two Claremont units were acquired by the respondent prior to the commencement of the relationship. The applicant made no financial contribution to the conservation or improvement of this property. His evidence, given in cross-examination, is that the only work he did in respect of the units was to fill a crack in one of the walls with silicone, smooth it off and then assist the respondent with painting the wall. He did this work with the respondent over the course of one or two days and at the same time undertook some minor repairs to veranda rails.
There was no contribution of substance by the applicant to the acquisition, conservation or improvement of the Claremont units.
The Bruny Island property
The respondent owned the block of land containing the caravan at Bruny Island prior to the commencement of the relationship. The applicant made no financial contribution to the conservation or improvement of this property.
In his affidavit the applicant said:
"The following is a list of works I conducted on the Bruny Island Property:
a) cleared around property with excavator;
b) new fencing all around with railway sleepers;
c) new car/boat parking space (by removing trees and bushes);
d) removed and reallocated [sic]water tanks;
e) shed gutters cleaned;
f) repairs to patio;"
Under cross-examination the applicant gave the following elaborations of the work referred to in his affidavit.
A neighbour on Bruny Island owned an excavator and the applicant asked him to do some clearing work. The work was done at the direction of the applicant and paid for by the respondent.
The fencing work was undertaken on part of the rear boundary only. The respondent arranged for the delivery of about 30 railway sleepers to the block. The applicant carted a few sleepers to the block on his trailer. He dug a trench and placed gravel in the base of the trench. With the help of the delivery truck driver the sleepers were stacked forming a solid fence emerging from the trench. The sleepers were supported by vertical steel posts and screws installed by the applicant. There is no evidence as to how long was spent doing this work.
The creation of the car and boat parking space involved the removal of some bushes and small trees. This was part of the work undertaken by the excavator driver referred to earlier. Two trees and one stump were removed. The applicant, using a chain saw and block splitter, cut the trees into firewood. He then attached the stumps to his vehicle and towed them into nearby bushland where they were left. There is no evidence as to how long was spent doing this work.
Two water tanks were emptied by the applicant, rolled into their new position and refilled. There is no evidence as to how long was spent doing this work.
The applicant occasionally cleaned the guttering on a small open shed under which the caravan sat.
The shed contained a small timber deck with a lattice fence. The applicant used a cordless drill to insert screws where staples attaching the lattice work had become loose.
Having regard to the lack of any assertion by the applicant that he spent any significant time working on the block and having regard to the nature of the work described by him, I am unable to infer that in total he spent more than a few days working on the maintenance or improvement of the block.
I conclude that there was no contribution by the applicant of sufficient substance to justify the making of an adjustive property order in respect of the Bruny Island land.
The Huonville house
The house was acquired and paid for by the respondent prior to the commencement of the relationship. It is brick veneer and comprises a lounge room, kitchen/dining room, laundry, three bedrooms, a bathroom and a toilet. It was constructed in 1987 and has a floor area of approximately 112m2. It sits on a 900m2 block. The agreed value of the house is $285,000.
The respondent's evidence is that she paid for all of the outgoings in respect of the house during the relationship including rates, building and contents insurance and expenditure on maintenance and repairs. The applicant does not dispute this.
The respondent says that when the applicant purchased materials for home maintenance or improvement she reimbursed him. The applicant does not dispute this except to the extent that there may have been some minor purchases for which he was not reimbursed. The applicant's counsel in closing submissions said:
"The probability is that small amounts were paid from time to time by the applicant in order to carry out the repairs and maintenance that he did do, such as nails, screws, glue, mortar and other minor maintenance work materials needed."
The respondent's evidence is that sums she paid to the applicant following his purchases exceeded the applicant's expenditure.
Regardless of whether the applicant was paid slightly less or slightly more than his expenditure overall, the conclusion is the same, namely that he made no material financial contribution to the conservation or improvement of the house.
The applicant's evidence as to maintenance and improvement work which he did on the house is contained in a long list of items set out in his affidavit. The major work was the refurbishment of the bathroom. The applicant's affidavit included the following:
"The following is a list of the works I conducted on the property at 45 Dowlings Road, Huonville.
…
d) Bathroom
i complete shower glass base;
ii vanity unit;
iii basin top;
iv new taps;
v wall mounted cupboard with mirrors and lights;
vi new bath;
vii extractor fan and light;"
The applicant agreed under cross-examination that the bathroom renovation involved the following. The couple selected the bathroom fittings. The applicant paid for these using his credit card. The credit card statements showed the following items of expenditure:
6/8/07 West Hobart Plumbing $1,000.00 7/9/07 West Hobart Plumbing $1,761.00 17/9/07 Montile $526.35
Internet transaction receipts show the following payments made by the respondent to the applicant's credit card account with respect to these purchases:
26/8/07 $1,500.00 27/9/07 $2,500.00 22/10/07 $600.00
These records are consistent with the respondent's evidence that she would reimburse the applicant in full and pay extra in relation to household maintenance and improvement items purchased by him.
The uncontradicted evidence of the respondent as to the bathroom renovation as set out in her affidavit is as follows:
"He assisted me to refurbish the bathroom. The Applicant and I did that work together We fitted a new bath, vanity and shower base and tiled around the bath. I bought all of the prime cost items from West Hobart Plumbing Supplies and paid for them. I paid a plumber to do the plumbing, a tiler to do the tiling and an electrician to do the electrical work. The Applicant removed the old prime cost items and built new boxing for the bath. We worked together to remove old tiles and to paint the bathroom. The applicant incurred no expense at all in relation to the bathroom."
The other work on the house which the respondent says he undertook includes, internal painting and varnishing, the installation of cupboards and shelves, the installation of light fittings, the installation of a new flu for the wood heater, the installation of ceiling insulation and general maintenance including replacing tap washers and repairing cupboards. The respondent did not dispute that the applicant did this work.
Outside the house the respondent says that he repainted the concrete garage floor twice, installed shelving in the garden shed, undertook fencing work, installed garden gates and did some landscaping. In addition, the couple often worked in the garden. The fencing and gates were required to confine the applicant's dog. The respondent does not dispute that such work was done.
There is no evidence as to the time which the applicant spent on home maintenance and improvement and no admissible evidence as to the extent to which his efforts contributed to the increase in value of the property. There is no need to go into precise details as to each and every item of work claimed to have been undertaken by the applicant. It is clear that he consistently made non-financial contributions to the conservation and improvement of the property. Such non-financial contributions are not, for reasons which I have already stated, to be converted into purely commercial terms based upon identifiable particular increases in value or the application of market labour rates.
The applicant's contributions to the welfare of the respondent
It is agreed that the applicant undertook the majority of the homemaker tasks. He would usually cook the evening meal and did the majority of the housework. It was convenient for him to do this as he had no employment to occupy his time and the respondent was often at work performing her duties as an administration clerk at the Huonville High School.
It is agreed that the applicant did most of the grocery shopping paying himself for the couple's food. The couple usually dined out on Friday nights at the local hotel and the applicant generally paid the bill.
Exact figures are not available, but it appears that the applicant spent about $200 to $300 per week on these joint expenses. This includes an allowance for the applicant's contributions to the purchase of groceries; the cost of dining out; payment towards electricity accounts and telephone expenses and miscellaneous costs such as the $11 cost of ferry transfers to and from Bruny Island. That is about $100 to $150 per week that he spent attributable to the welfare of the respondent. Taking a middle figure of $125 per week and applying it to the duration of the relationship the figure produced is about $30,000.
This contribution has diminished an asset base which the applicant acquired during the course of the relationship. Although the applicant brought no savings into the relationship at its commencement, shortly afterwards he received the sum of $25,000 being his divorce settlement. He also received two lump sums totalling about $23,000 to finalise the workers compensation entitlements. During the course of the relationship he received tax refunds totalling about $15,000. At the end of the relationship the applicant had left, only about $10,000 in savings. Of course, the erosion of these funds can only be partly attributable to his contribution of the general welfare of the couple. He had medical expenses. He purchased a boat and related items at one stage and he spent, not insignificant amounts, on alcohol and tobacco.
These non-financial and financial contributions to the welfare of the respondent will be taken into account.
The respondent's contributions to the welfare of the applicant
Although the applicant paid for most of the food, the respondent purchased cleaning products.
The respondent paid most of the cost of the couple's holidays. The applicant did not dispute this, although there may have been disagreement as to minor items of expenditure during the course of the holidays. The respondent's evidence contained in her affidavit is as follows:
"36During the time the Applicant and I were living together, we had a number of holidays together.
37When the Applicant and I first met, I had a trip booked to the Whitsunday Islands. The Applicant joined me and paid his own air fare, but I paid all the accommodation costs and most of the food, entertainment and travelling expenses.
38In Easter 2004, the Applicant and I spent 7 days in Sydney. I paid for the airfares. We stayed at the Applicant's brother and sister-in-law's home at Castle Hill. I paid for our excursions and entertainment expenses. I also contributed to food costs at that house.
39In 2005, the Applicant and I went to the Queensland Sunshine Coast for 10 days. I paid all the travel, transfers, accommodation, food, entertainment and other expenses.
40In 2006 the Applicant and I spent 7 days on the Gold Coast, I paid all the costs associated with that holiday.
41In January 2007, the Applicant and I travelled to Tonga for 10 days. I paid all of those expenses and the Applicant contributed nothing, except towards the cost of food and drinks at the resort.
42Late in 2007 the Applicant and I travelled to Victoria and purchased a caravan which we intended to use for an extended travelling holiday. I paid for that trip."
The respondent travelled to Sydney and stayed with the applicant for about two months whilst the applicant underwent medical treatment. The respondent accompanied the applicant each day that he went to hospital for treatment. The other time was spent by the couple sightseeing, eating out and enjoying leisure activities. It was agreed that the amount spent by each on the couple's expenses was about the same. However, the respondent needed to take two months leave from her employment using her accrued entitlement to long service leave. Accordingly, when she retired from work in 2011 her payment for accrued long service leave was less than it might otherwise have been. Had she not used this long service leave her severance pay would have been a little less than $5,000 higher than what it was.
There is insufficient evidence to calculate the financial contributions of the respondent in the form of paying for cleaning products and some groceries and paying for the couple's holidays, but these expenses and the financial cost of her taking long service leave will be taken into account in general terms in partial offset of the applicant's financial contribution to the couple's day-to-day living expenses which I have referred to earlier.
Some other matters to be taken into account
The applicant has an accumulation of health problems described in his most recent affidavit as follows:
13"I refer to my affidavit filed on 7 September 2011. In particular paragraph 5 wherein I deposed that I had been diagnosed with throat cancer. I had an operation whereby I had the Nodule removed. The Doctor I was previously seeing in relation to my throat was Doctor Saha. Attached hereto marked 'F' is a copy medical certificate date 10 October 2011 certifying that I had a direct laryngoscopy and biopsy larynx at the Launceston General Hospital on 14 September 2011. I was advised on 25 October 2011 that they took it at the right time, and that the cancer is now gone. I have to have regular check ups with Doctor Singh, the Throat Specialist at the Launceston General Hospital.
14I also deposed in previous affidavits that I am blind in one eye. To further elaborate on that I say that I have a lazy eye. I have had numerous operations on that eye to try and correct it. It now 'floats' and I can barely see out of it.
15The eye that I can see out of, my left eye, is the eye that has the Meningioma, as has been described in previous affidavits. I have very reduced visibility from that eye. I also have to have regular check ups to make sure that the Meningioma, that is wrapped around my optical nerve, muscle and eye is not growing. I refer to my previous affidavits and acknowledge that I referred to the cancer on my eye as Meningocoma. This name was incorrect. I have difficulty remembering the name of the tumour.
16I also have problems with my back. Occasionally, when pressure is put on my back it gets tense and also causes me pain. I have been prescribed Voltaren, which is a pain killer and anti-inflammatory. The injury to my back is from the accident I had in Melbourne, prior to me relocating to Tasmania.
17I am still in regular attendance with Doctor Ljiljiana Mujkic, and Doctor Ian Murrell.
18I am currently in receipt of a disability support pension. I have received the Disability Support Pension since 17 February 2009."
The respondent also has health problems which have been set out in her affidavit as follows:
"2I have suffered rheumatoid arthritis for several years, and that condition has been exacerbated by the stress and physical demands of my former employment as an Administration Clerk at the Huonville High School.
3I had been diagnosed as suffering from hypo-thyroidism in 2010, and I have been taking medication for that condition since then.
4My hypo-thyroidism worsened in the early months of 2011, and it has made it progressively more difficult for me to cope with the physical and mental stresses of my position.
5The effects on me of the hypo-thyroidsm [sic] have been extreme tiredness, anaemia and difficulty coping with the stressful and demanding situation at work.
6I found that it was getting progressively harder for me to get out of bed in the morning, and to perform my day's work, and by the time I had finished my day's work, I was becoming exhausted.
7As my physical condition worsened and there seemed to be no prospect of an improvement, I discussed my health problems and future with the Principal of the Huonville High School, Mrs Alison Grant in June 2011.
8As a consequence of that meeting, I learned for the first time the State Government 'Incentive for Early Retirement Program' which was designed to encourage early retirement of State employed teachers, was open to Administration Officers.
9As a consequence of that, I made an application for early retirement. At the time I was aware that if my application was successful, I would be advised by the Education Department when that resignation became effective, and I would have no input into that decision.
10I was subsequently advised by the Department that my application was successful and that my resignation would become effective from 8 July 2011."
Having regard to the age and state of health of the applicant there appears to be no prospect of him returning to gainful employment. It is possible that the respondent might return to the workforce, but if she does it would appear from her age and state of health that this is more likely to be temporary or part-time employment. The standard of living that is reasonable for each partner in the current circumstances is a little lower than was the case whilst they were together. The applicant now resides in rented accommodation and the amount he can spend on day-to-day living expenses is accordingly reduced from when he was living rent free with the respondent. It would appear unlikely that his income from a disability pension would be sufficient to afford to him much scope for holidays and he is limited with what he can now spend on alcohol, tobacco and eating out.
The respondent will also need to be frugal if she does not wish to quickly erode her capital assets. Most of her pre-relationship savings are now gone and the mortgage debt over one of the two Claremont investment units has increased from about $40,000 to about $70,000.
Overview and conclusion
For the reasons expressed earlier, I consider an item by item approach to be more convenient in the circumstances of this case than would a global adjustment of the entire property pool. All of the significant assets are owned by the respondent. The only asset to which the applicant has materially contributed in terms of conservation or improvement is the house at Huonville. In deciding what, if any, adjustment in respect of property should be made I will confine myself to the Huonville house, but will take into account and attach due weight to all of the relevant non-contributory statutory considerations.
I have regard to the non-financial contributions made by the applicant to the conservation and improvement of the Huonville house. I infer that the increase in value of the house after cohabitation commenced is partly the result of the applicant's efforts. I also have regard to the applicant's financial and non-financial contributions to the welfare of the respondent including his contribution as homemaker. Against this, however, I also have regard to the financial contributions made by the respondent. She had acquired the house unencumbered prior to the commencement of the relationship. She paid the rates and insurance and paid for all of the maintenance and improvement expenses. She also paid for holidays for the couple and she lost part of her long service leave accrued entitlement whilst she was accompanying the applicant in Sydney during the course of his medical treatment. I attach weight to the non-financial contribution of the respondent in the provision to the applicant of rent free accommodation throughout the duration of the relationship.
Balancing these contributions I consider that a just and equitable division of the value of the Huonville house is an allowance to the applicant of 10 percent of its agreed value of $285,000, being $28,500.
Next, I consider whether that allowance should be adjusted by reason of the other matters referred to in the legislation which are unrelated to the respective contributions to the property, the home and each other.
I begin with the nature and duration of the relationship. The relationship commenced when the parties were each in their early 50's. They did not pool assets or resources or conduct joint bank accounts. The respondent was meticulous to ensure that the applicant was reimbursed for any money which he spent on the maintenance or improvement of the house. There was no assertion by either party of a commitment to the other for life. The relationship was relatively short, lasting a little less than five years.
The respondent has a financial resource in the form of her superannuation investment funds worth about $115,000. However, the accumulation of this resource is unconnected to the relationship or the applicant's contributions. The respondent also has assets including the income producing investment units at Claremont, the Bruny Island land, some bank savings totalling about $30,000 and a small share portfolio worth a little over $3,000. The applicant has no assets or resources of significance. He lives in rented accommodation and lives from week-to-week on a disability pension as his sole source of income. It is extremely unlikely that he will ever be engaged again in remunerative employment.
The applicant is aged 61 and in poor health The respondent is aged 59 and has health problems which prematurely ended her employment.
The applicant's financial need is greater than that of the respondent.
The standard of living that is reasonable for each party in the circumstances is modest. Neither has become accustomed to an expensive lifestyle.
Taking these additional factors into account, I consider that it is just and equitable that the 10 percent contribution based allowance in respect of the Huonville house should be uplifted by 3 percent to make a total adjustment of 13 percent of the value of the Huonville house. Because the allowance has not been, and cannot be, taken to be the result of precise accounting or arithmetical calculation the monetary sum awarded will be rounded off.
There will be an order granting leave to bring the application and an order that the respondent is to pay to the applicant the sum of $37,000. I will hear the parties as to costs.
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