Oswald and Malkin
[2010] FMCAfam 1337
•3 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OSWALD & MALKIN | [2010] FMCAfam 1337 |
| FAMILY LAW – Property – long marriage – former matrimonial home – whether former matrimonial home should be transferred to wife or husband – insufficient evidence. |
| Family Law Act 1975, ss.75, 79, 106A |
| In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355 |
| Applicant: | MS OSWALD |
| Respondent: | MR MALKIN |
| File Number: | CAC 2040 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 December 2010 |
| Date of Last Submission: | 1 December 2010 |
| Delivered at: | Canberra |
| Delivered on: | 3 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tonkin |
| Solicitors for the Applicant: | Evans Yeend Family Lawyers |
| Counsel for the Respondent: | Mr Howard |
| Solicitors for the Respondent: | Capon & Hubert Lawyers & Mediators |
ORDERS
That within 42 days the Applicant and the Respondent join and do all acts and things and sign all documents necessary in order to effect the sale of the property situated at and known as Property B in the Australian Capital Territory being all that piece or parcel of land contained in Certificate of Title Volume [omitted] being Property B.
That the parties contribute equally to the costs associated with the sale of Property B, with such costs being:
(a)The costs, expenses and commission of the real estate agent or agents acting on the sale of the said property;
(b)The costs, fees and disbursements of the lawyer or lawyers acting for the parties on the sale of the said property;
(c)Adjustments of water rated and council rates; and
(d)Any Capital Gains Tax incurred as a result of the sale of Property B.
The Applicant Wife is to be entitled to the residual of the proceeds of the sale of Property B and the parties are to have liberty to apply on seven (7) days notice in relation to the terms and conditions of the sale in the event that they cannot agree.
Contemporaneously with the sale of Property B the Applicant wife is to take all such steps and sign all documents as may be necessary to transfer her right title and interest in the property situate at and known as Property C in the Australian Capital Territory being all that piece or parcel of land contained in Certificate of Title Volume [omitted] being Property C to the husband.
That upon the transfer set out in Order 4 above the Respondent husband is to pay to the Applicant Wife a sum of money calculated in accordance with the following formula:
A + [50% x (B + C)] – D
Where
A = the amount payable to the Applicant Wife
B = the total of all non-superannuation assets, not including the proceeds of sale of Property B
C = the net proceeds of sale of Property B (including the deposit) being the total sale price less the sale costs including agent’s fees and commission and legal fees associated with the sale
D = $29,300.00 being the amount of non-superannuation assets to be retained by the Applicant Wife
That the Respondent Husband is to sign all documents as may be necessary to transfer to the Applicant Wife all his right title and interest in Hyundai motor car registration number [omitted].
That in accordance with section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of the husband Mr Malkin (date of birth [omitted] 1950) (Member number [omitted]) from his interest in the [omitted] Superannuation Scheme (“the Fund”) the wife Ms Oswald be entitled to be paid by the trustee of the Fund the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base Amount of $334,358.15 and that there be a corresponding reduction in the entitlement the Husband would have had but for these orders.
That the operative time for Order 7 be 4 four (4) business days after the service of these orders on the trustee.
That the trustee in accordance with the obligations set out under the Act and the said Regulations do all such things and sign all such documents as may be necessary to calculate the entitlements of, and make payment to, the Wife in accordance with these Orders.
That within fourteen (14) days the husband make available for collection by the Wife the following chattels:
(a)the washing machine from Property C;
(b)the video camera;
(c)the grey lounge room suite;
(d)the pine desk with shelves;
(e)the camphorwood chest;
(f)a blue lounge suite from the family room; and
(g)such other items as the parties agree.
That otherwise and as provided by these Orders each party be declared the owner of and entitled to all items of personal property, furniture and effects in the name of that party or in the possession of that party at the date of these Orders including but not limited to bank accounts, shares, life insurance policies, motor vehicles and entitlements to superannuation.
As provided by Section 106A of the Family Law Act 1975 if either party refuses or neglects to comply with a direction to execute any deed, document, instrument or writing to give effect to these Orders within fourteen (14) days of being called upon to do so then a Registrar of the Federal Magistrates Court of Australia is appointed to execute the deed, document, instrument or writing in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed, document, instrument or writing.
IT IS NOTED that publication of this judgment under the pseudonym Oswald & Malkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2040 of 2009
| MS OSWALD |
Applicant
And
| MR MALKIN |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for property orders. Each party now seeks an order that the other party transfer to them his or her interest in the former matrimonial home at Property C. The parties own another property at 1Property B in the ACT, but neither one wants to have that property transferred into their name. The applicant is currently living in the Property B property.
Background
The parties were married [in] 1979 in Ireland. They separated on 26th January 2007, although they have not divorced. There are three children of the marriage, all of whom are now adults.
The wife was born [in] 1952 in Ireland. She is 58 years old. The husband is 60 years old. He was born [in] 1950, in the United States of America. They are [omitted] by profession and have both been employed by [omitted] since 1980.
The wife commenced proceedings on 9th December 2009 by filing an application for property orders. In that application she originally sought orders that:
a)The husband should transfer the Property B property to her;
b)She should transfer the Property C property to him;
c)The husband should pay her the sum of $195,000.00; and
d)The husband should transfer the parties’ Hyundai motor car to her;
e)There should be superannuation splitting orders so that the parties should each receive an equal entitlement;
f)The parties should divide the furniture, furnishings and effects in the Property C property between them; and
g)They would retain what other property they had in their respective possession or control.
On 1st February 2010 Federal Magistrate Brewster directed that the parties were to attend a conciliation conference with a Registrar of the Court on 30th March 2010.
The husband filed a response on 15th February 2010, agreeing to all the orders sought by the wife except that he sought an order that he should pay her the sum of $54,000.00, rather than the $195,000.00 that she had asked for.
The parties attended the conciliation conference but did not resolve the matter on a final basis.
On 3rd August 2010 Federal Magistrate Baumann ordered that:
a)The parties were to file and serve an agreed statement of assets and liabilities within fourteen days; and
b)The parties were to file and serve a minute of the orders that they were proposing within twenty-one days.
The applicant wife filed a Notice of Address for Service on 6th August 2010, showing that she was now represented by her present solicitors.
On 6th September 2010 the respondent husband filed a Minute showing the orders that he sought. In brief, those orders were:
a)That the parties were to sell the Property B property;
b)That the wife would receive the net proceeds of sale;
c)That the wife should transfer her interest in the Property C property to the husband;
d)That the husband pay an amount to the wife representing the balance needed to pay to the wife a figure that would give to her a total of one half of the non-superannuation pool less the value of the assets that she either held or would otherwise receive;
e)That the husband would transfer his interest in the Hyundai motor car to the wife;
f)That there be splitting orders of the parties’ superannuation entitlements so that they would receive an equal entitlement;
g)The husband would provide certain items of sentimental value to the wife; and
h)The parties should retain the items already in their possession or control.
The following day, the 7th September, the wife filed a Minute of the orders that she proposed. Those orders were different from those that she sought earlier. Essentially, the orders now sought were that:
a)The husband should transfer his interest in the Property C property to the wife;
b)The wife should transfer her interest in the Property B property to the husband; and
c)Other orders dividing the parties’ assets between them.
Curiously, the wife sought an order under s.106A of the Family Law Act 1975, providing that the Registrar of the Family Court of Australia should be empowered to execute any deed or document if one or other party defaulted in their obligations. Presumably, this was an oversight, and what was meant was an order empowering a Registrar of the Federal Magistrates Court of Australia.
The applicant’s solicitor also filed a Schedule of Assets and liabilities, showing a total value of the asset pool of $2,173,585.00.
The Property C property was valued at $515,000.00 and the
Property B was valued at $420,000.00.
On 8th September 2010 Baumann FM listed the application for final hearing on 1st December 2010. His Honour made the following order:
That the Court having determined that the issues in dispute relate to the form of order (not the issue of contributions or relevant s. 75(2) factors) and in particular who retains the Property C and how that should be so ordered, the Court makes the following directions:
(a) each party will file and serve by 4.00 pm on 10 November 2010 an affidavit they wish to rely upon of any further evidence limited to the matters in issue;
(b) each party file and serve (by) 4.00 pm on 10 November 2010 an updated financial statement.
The parties have complied with this direction. Each party filed an affidavit and an updated financial statement on 10th November 2010.
Evidence
The applicant swore an affidavit on 10th November 2010 in which she deposed that:
a)The Property C property was purchased in 1986 and was the matrimonial home until 2007;
b)It has deep significance to the applicant, who wishes to use it as the family home;
c)She does not wish to remain living in the Property B property, which is an apartment;
d)The parties’ daughter [X] (who was born [in] 1982) lives in the Property C property with her father because there was no room for her in the Property B property whilst her brother [Y] (born [in] 1989) and his girlfriend were living there;
e)The Property B property has only two small bedrooms whilst the Property C is a comfortable four bedroom family home;
f)The parties separated in September 2011 when the respondent left the home;
g)They reconciled in July 2002 and the respondent moved back into the home;
h)The marital relationship deteriorated;
i)The applicant left the home in January 2007 and lived in the Property B apartment;
j)She states that after leaving the home she was diagnosed with depression and anxiety and was prescribed anti-depressant medication by her general medical practitioner;
k)The applicant attended counselling with a psychologist;
l)The applicant does not like living in the Property B apartment, which was only ever an investment property and was never intended by the parties to be their residence;
m)She moved into the Property B property believing that it would be a temporary arrangement;
n)The respondent advised the applicant on 3rd August 2010 that he intended to sell the Property C property eventually, but later told her that he did not wish to sell it;
o)The applicant wants to live in the Property C property and will transfer the Property B property to the respondent, saying:
Any difference in equity between the two properties I proposed[1] to resolve by paying the Respondent a cash amount.[2]
[1] sic
[2] Affidavit of Ms Oswald sworn 10.11.2010 at paragraph [42]
The applicant has also deposed to other health issues that she sees as relevant to her application, in particular:
a)A degenerative back condition called lumber spondylosis;
b)Cervical stenosis; and
c)Alopecia resulting from stress and anxiety.
The applicant has deposed that she has dealt with the back and problems by:
a)A regular exercise program prepared by the personal training staff at the health club which she has attended since 2002; and
b)Physiotherapy.
The applicant claims that living in the Property B apartment is detrimental to her back problem whilst the Property C property would be beneficial to her. She deposes that:
47. One significant issue that exacerbates both my neck and back pain is walking up and down stairs and carrying loads up and down stairs. Since 2007 I have resided in the Property B property. This is an apartment complex that has about 18 Stairs between the garage and the front door of the apartment.
48. I am required to carry bags, groceries and other items to and from the garage to the front door, up and down the stairs on a daily basis. I find this both physically challenging and a burden on my back.
49. The Property C property on the other hand has no stairs. It is a single story dwelling that has a flat path between the garage and the house. I would not be required to navigate stairs on any basis at the Property C property as there are none.[3]
[3] Affidavit of Ms Oswald 10.11.2010 at [47]-[49
The applicant also believes that moving back into the Property C property would help her manage the stress and anxiety that she says she still feels as a result of the breakdown of her marriage.
The applicant tendered without objection two sets of photographs of the Property C property, one set taken in the 1990s and the others taken on 23rd November 2010.
The respondent has affirmed an affidavit on 10th November 2010. In that affidavit he deposes that;
a)He did not agree to the applicant moving into the Property B apartment in 2007 because there were tenants in it at the time;
b)He has lived in the Property C property since separation, paying the rates and land taxes and, until recently, paying half of the Body corporate fees for the Property B apartment;
c)He has expended sums of money to maintain and improve the Property C property, including:
i)$2500.00 to replace the heating system; and
ii)$4,000.00 for the addition of a retaining wall and parking space.
d)He seeks an equal division of assets between himself and the applicant, because he believes that the parties made equal contributions over their 28 years of marriage:
i)The parties had no significant assets when they married in 1979;
ii)The parties both worked for [omitted] since 1980 and bought and sold a number of properties jointly;
iii)The only financial windfall received by the parties during the marriage was an inheritance of $3000.00 from the respondent’s mother’s estate;
iv)The respondent states that he and the applicant made an equal contribution to the upkeep and general maintenance of the home and shared the domestic chores such as cooking, ironing and house cleaning equally;
v)Being a [omitted] by profession, he was able to take an active role in the children’s care and welfare, especially after school and during school holidays.
e)The respondent deposes that the Property C property is unencumbered and he would be able to obtain mortgage finance to pay out the applicant;
f)He estimates that he would need to pay the applicant approximately $59,600.00.
The respondent states that he would contribute equally to the costs of sale of the Property B property if the applicant wished it to be sold, but he considers that he should remain living in the property in Property C. He states:
I am also currently making plans to retire in February 2011, and have made the improvement to the Property C property mentioned above in paragraphs 6 and 7 in preparation for my retirement. I was led to believe, due to the Applicant’s non interest in the Property C property for almost 4 years that the Property C would be where I would retire.[4]
[4] Affidavit of Mr Malkin 10.11.2010 at paragraph [22]
There was no other affidavit evidence. Neither party was required for cross examination.
The parties tendered an agreed document, being two lists of items of furniture and other chattels which they sought. Eventually, they agreed on the disposition of these items without the need for a judicial decision.
Submissions
Counsel for the applicant, Ms Tonkin, submitted that the respondent husband wants to stay living in the Property C house but has not kept the premises maintained. The photographs tendered in evidence do not show much in the way of improvements at all. Despite his stated plan to retire from work in February 2011, there husband had shown no solid basis for remaining living at Property C. Indeed, she submitted, there was no certainty that he actually would retire, as he is only
60 years old and apparently in good health.
By comparison, the house at Property C has deep significance for the wife, as she deposed at paragraph [7] of her affidavit. The significance arises from the fact that it is the house where the parties’ three children, now all adults, were reared.
The apartment at Property B is too small for the wife and does not suit her, because of her medical condition. She has lumbar spondylosis and cervical stenosis. The house at Property C is more suitable for her with that medical condition.
If the Court were unable to decide between the competing claims of the parties, it was submitted that an order be made for the house to be sold. In that case, the wife would wish to bid for the house.
It was further submitted on behalf of the wife that she left the home in January 2007 because she found the situation intolerable. She felt that she could not cope and had to escape.
Ms Tonkin submitted that the Court should not find that the husband would be unable to obtain the resources to purchase another property. There was no guarantee that he would retire as he claimed and, in any event, he would be receiving 50% of the assets. He could relocate to another property.
In answer to a question from the Bench, Ms Tonkin was unable to provide a reason as to why the applicant had commenced proceedings in December 2009 seeking completely different orders, namely that the apartment at Property B should be transferred to her and the Property C should be transferred to the husband.
Counsel for the respondent husband, Mr Howard, submitted that the wife’s inability to explain why she now sought the Property C property was precisely the reason why the property should stay with the husband. The wife left in January 2007 and did not commence proceedings until December 2009. When she did bring her application, she sought an order that she should receive the Property B property.
The husband has now made his plans on the basis that he would be living in the Property C property. The wife would continue to work; she in fact earns a little more than the husband, but no point was sought to be made about that fact in terms of an s.75(2) adjustment.
Mr Howard submitted that the husband had fewer resources to obtain other accommodation than the wife because of the slight disparity of their incomes. The husband acknowledged that the wife did not want to live in the Property B apartment. He accepted that the apartment had to be sold and that there would be some Capital Gains Tax to be paid.
It was further submitted that the property was clearly significant to both parties and it has memories for both of them. That was not a reason for transferring the Property C property to the wife.
Relevant considerations
The preferred approach to be taken by a court to determination of matters involving alteration of the interests of property under s.79 of the Family Law Act has been authoritatively set out by the Full Court of the Family Court in its decision In the Marriage of Hickey:[5]
· First, the court makes findings as to the identity and values of the parties’ property, liabilities and financial resources at the date of the hearing;
· Second, parties’ contributions are identified and assessed within the meaning of ss 79(4)(a), (b) and (c) and entitlements are expressed as a percentage of the net value of the parties’ property;
· Third, other factors as listed to in ss 79(4)(d), (e) [which refers to the matters in s 75(2) so far as they are relevant], (f) and (g) are assessed and any adjustment is made to the contribution based entitlements of the parties; and
· Fourth, the court should consider the effects of the findings and determination and resolve what order is just and equitable in all the circumstances of the case.[6]
[5] [2003] FamCA 395; (2003) 30 Fam LR 355
[6] Per Nicholson CJ, Ellis and O’Ryan JJ at [39]
Consideration
This matter is unusual in that the parties are asking the Court to decide on a limited issue, namely, the form of order (not the issue of contributions or relevant s.75(2) factors) and in particular who retains the Property C property and how that should be so ordered. However, the Court must consider the matters, albeit briefly, the matters referred to by the Full Court.
The Parties’ Property
As I understand it, the Schedule of Assets and Liabilities filed on 7th September 2010 represents a joint view. The total of the asset pool is said to be $2,173,585.00, made up as follows:
Property C ACT $515,000.00
Property B ACT $420,000.00
Cash (wife) $28,000.00
Cash (husband) $40,000.00
IAG shares (wife) $5,000.00
IAG shares (husband) $5,000.00
Telstra shares (wife) $1,500.00
Telstra shares (husband) $1,500.00
Car (wife) $2,000.00
Car (husband) $$7,000.00
Superannuation ([omitted]) (wife) $246,000.00
Superannuation ([omitted]) (wife) $16,914.00
Superannuation ([omitted]) (wife) $32,760.00
Superannuation ([omitted]) (husband) $806,949.00
Superannuation ([omitted]) (husband) $52,904.00
TOTAL $2,173,585.00
As to the parties’ liabilities, the husband has deposed that the Property C property is unencumbered.[7]
[7] Affidavit of Mr Malkin 10.11.2010 at [20]
In her updated Financial Statement filed on 10th November 2010, the applicant shows no liabilities. Similarly, in his Financial Statement, filed the same day, the respondent discloses no liabilities.
I find the net total of the parties’ assets and liabilities to be $2,173,585.00.
The Parties’ Contributions
In his affidavit of the 10th November 2010, the husband states that the parties’ contributions during the marriage, both financial and non-financial, were equal. The wife’s affidavit sworn 9th November 2010 is silent on that issue.
However, I am satisfied that the Court should proceed on the basis that the parties’ contributions were equal during the course of a long marriage.
Matters to be taken into account under s. 79(4)(d)-(g)
The orders proposed by the parties would not appear to have any effect on the earning capacity of either of the party. There are no other orders affecting a party to the marriage or a child of the marriage. There is no child support payable.
Subsection 79(4)(e) requires the court to consider the matters referred to in subsection 75(2) so far as they are relevant.
The wife is 58 years old. Her date of birth [omitted] 1952. As to her health, she deposes to back and neck problems and claims to be suffering from stress and anxiety, with the symptom of alopecia.
The husband was born [in] 1950, and so he is now 60 years of age. He does not claim to have any health issues.
The parties are both in full-time employment as [omitted]. The wife discloses her weekly income as $1488.00 before tax.[8]
[8] See her Financial Statement filed 10.11.2010 at item 16
The husband discloses his total average weekly income as $1370.00 before tax.[9] He is making plans to retire in February 2011. There is no evidence that either party does not have the physical or mental capacity for appropriate gainful employment.
[9] See his Financial Statement filed 10.11.2010 at item 16
Neither party has the care or control of a child of the marriage who has not attained the age of 18 years. Their children are all adults.
Neither party has a duty to maintain a child or other person or a responsibility to support any other person.
The parties are not currently receiving any pension or benefit. They each have superannuation entitlements.
The parties are separated but not divorced. The husband continues to reside in the former matrimonial home. The wife lives in the
Property B apartment, which she states is small and cramped. In each case the parties have a reasonable standard of living.
The parties were married [in] 1979 and separated on 26th January 2007. Thus, the marriage was of almost 28 years’ duration. There is no effect on either party’s earning capacity. Their marriage certificate shows the husband to have been a [occupation omitted] and the wife to have been a [occupation omitted] on the day they were married. They both work as [omitted] at the present time.
The parties’ daughter [X], who was born [in] 1982, lives in the former matrimonial home with the husband. The wife apparently lives by herself.
The children are all adults and neither the applicant nor the respondent has any liability under the Child Support (Assessment) Act 1989.
There are no other relevant matters under subsection 75(2) of the Act.
Just and Equitable
Subsection 79(2) provides that the Court shall not make an order under s.79 unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Conclusions
This is a case where the wife left the matrimonial home at Property C in January 2007 as a result of the deteriorating situation between her husband and herself. Whilst the causes of the breakdown of the relationship between the parties are not relevant to the matters the Court has to decide, it is apparent that there were difficulties between the parties for some time before the parties separated. It is hardly surprising and not unreasonable that the wife chose to leave the former matrimonial home when she did.
The wife moved into the Property B apartment and has lived there ever since. Whilst she said in her affidavit that she only ever saw it as a temporary arrangement, it is surprising, therefore, that she commenced this application by seeking an order that the premises should be transferred to her.
There may well have been reasons why the wife chose not to commence this application until 9th December 2009, two years and nearly ten months after the parties separated. However, she has not explained why she did not seek an order that the Property C property be transferred to her until she filed Proposed of Minutes of orders on 7th September 2010. The husband had reason to believe that it was the wife’s intention that he should be allowed to remain living in the Property C property.
However, that is not of itself a sufficient reason for making an order that one or other party should transfer their interest in the former matrimonial home to the other.
The order sought by the wife would require the husband to vacate the former matrimonial home and find other accommodation. This is not uncommon in proceedings for alteration of property interests between parties, especially where the only way that one or other party can obtain their proper share of the matrimonial assets is by selling the former matrimonial home.
That is not the case here. The wife can receive her full entitlement by means of payment by the husband, even though he will need to obtain mortgage finance to do so. This should not be an insuperable problem, however, as the property is unencumbered and the husband appears to be debt-free.
The wife claims that she should occupy the Property C property because:
a)Being a single-storey dwelling it is better for her neck and back problems;
b)It will assist her to deal with the depression and stress that ensued from the deterioration and break-up of the marriage; and
c)She wishes to return to the house which has happy memories of her children growing up.
The husband wants to stay in the house because;
a)He was led to believe by the wife’s actions and statements that she did not want to live there;
b)He plans to live there when he retires in 2011; and
c)He has expended money on improving the property to meet his needs.
The wife has deposed to the fact that she has been diagnosed with lumbar spondylosis, affecting the lower spine, and marked cervical stenosis, being the narrowing of the spinal and nerve canal. The husband does not take issue with these diagnoses, and I accept it as fact that the wife suffers from these conditions.
However, the wife then relies on these conditions as a reason for her to occupy the Property C property. She has not provided any evidence from any medical practitioner or other health professional in support of her claim. When asked about the absence of this sort of evidence, counsel for the wife suggested that it may have been due to the wife’s desire to keep the costs down.
The wife’s evidence that she suffers from those conditions does not support her claim that the Property C property, and no other, will help her deal with her back and neck problems.
Again, the wife deposes that when she left the Property C property she was diagnosed with depression and anxiety. Her general medical practitioner prescribed anti-depressant medication for her and she undertook a course of counselling with a psychologist.
The husband does not challenge those statements and, again, I accept it as fact that she suffered from these conditions and received that treatment. She has also made an unchallenged claim that she suffered from alopecia as a result of stress and anxiety.
What the wife has not done is to provide any medical or psychological evidence in support of her claim that returning to live in the Property C property, admittedly in the absence of her husband, would assist her to deal with these issues.
The nearest the wife gets to articulating her claim appears to be in paragraphs 38 and 53of her affidavit. In paragraph 38 she says:
Since separation I have lived at the Property B apartment. This has been a very stressful and unhappy experience for me. I have been resident in a family home for almost 30 years prior to 2007. Living in a small apartment complex in the inner city was very difficult for me both physically and emotionally.
In paragraph 53 of her affidavit, the wife says:
I believe that I could more appropriately manage the stress and anxiety I still feel in relation to the breakdown of my marriage and relocation to Property B if I were able to move back into the Property C property.
Clearly, the wife does not want to stay living in the Property B apartment. It does not follow, however, that this is a convincing reason for moving back into the Property C property, where she lived for
21 years and where her marriage broke down, causing her to leave.
The wife’s third reason for moving back into the Property C property is to have her family, comprising her adult children, staying with her. This reason is articulated in paragraph 53 of her affidavit:
It would also allow me the pleasure of having my family stay with me which is one of my greatest joys.
This stated reason is, again, unconvincing. The children will be able to stay with her wherever she lives, provided that there is room. The wife quotes her daughter, [X], who stayed with her for two weeks at Property B at a time when her son [Y] and his girlfriend were also living there, as saying:
“You’ll need to get a bigger house mum”.[10]
[10] Affidavit of Ms Oswald 9.11.2010 at [10]
This may well be so, but it is not a reason for the wife to live in the Property C property rather than another suitable house in Canberra.
It is noteworthy that the children are all adults and will most likely be living their own lives from now on. [X], who is living with her father, is 28 years old, [Z] is 26 and [Y] is 21 years old. [Z] and [Y] already live independently.
The wife’s argument that she needs the Property C property for those occasions when her adult children will stay with her is not to my mind a realistic one.
In short, I am not satisfied that the evidence provided or the arguments advanced by the wife are sufficient to establish her claim that the husband should be required to vacate the Property C property so that she can reside there.
The husband remained in the property after the wife left. He has made his plans in the belief that the wife did not wish to move back into the home. Indeed, the wife commenced these proceedings seeking an order that she should receive the Property B property and a sum of money.
Counsel for both parties have submitted that if the Court were not satisfied about either party’s claims to remain living in the Property C property, then it would need to be sold. If the only way for the wife to receive an amount equivalent to one half of the assets would require a sale of the former matrimonial home, as is often the case, then such an order would be required.
It is clear, however, that the husband has the ability to raise funds to pay the wife, as the property is unencumbered. Why, one asks rhetorically, should he have to move? The parties’ daughter, [X], who is currently staying there, would also have to move out. That is a relatively minor consideration, and it is to be expected that she will be likely to move into her own accommodation in due course, as her brothers have already done.
I am not persuaded that an order should be made requiring the sale of the Property C property because neither party can agree who should live there. I do not see that to be just and equitable.
Counsel for the respondent husband submitted an amended minute of orders on the morning of the hearing, to the effect that:
a)The parties do all things necessary to sell the Property B property, including contributing equally to the costs;
b)The wife to receive the net proceeds of sale;
c)The wife to transfer the Property C property to the husband;
d)The husband pay to the wife an adjusting amount so that she receives 50% of the value of the assets;
e)The husband to transfer his interest in the Hyundai motor car to the wife;
f)A superannuation splitting order to be made;
g)The husband to make available certain agreed chattels; and
h)The parties otherwise retain those items in their possession or control.
The parties have now agreed about the chattels each should receive. Orders will be made, setting out the items each will receive. There is no dispute about the form of the superannuation splitting order, as the wife proposed an identical order.
There will be an order under s.106A of the Family Law Act, appointing a Registrar of the Court to execute any document if that should be necessary.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3rd December 2010
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