Ozick and Ozick
[2012] FMCAfam 310
•16 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OZICK & OZICK | [2012] FMCAfam 310 |
| FAMILY LAW – Property – s.79A(1A) – resumption of cohabitation after final property orders – intermingling of assets and income – whether by inference parties no longer bound by previous orders – appropriate division of property – just and equitable. |
| Family Law Act 1975 (Cth), Part VIII |
| Mallett & Mallett (1984) 9 Fam LR 449 In the Marriage of Shewring (1987) 12 Fam LR 139 In the Marriage of Ferarro (1992) 15 Fam LR 1 Bourke & Bourke (2) (1994) 18 Fam LR 1;FLC 92-479 McKay (1995) 19 Fam LR 579;FLC 92-634 Kennon (1997) 22 Fam LR 1 Sommerville [1999] FamCA 958 27 Fam LR 233 Brown (2000) FLC 93-042 Hickey & Hickey [2003] FamCA 395; 30 Fam LR 355; FLC 93-143 M & M [2006] FamCA 1453 |
| Applicant: | MS OZICK |
| Respondent: | MR OZICK |
| File Number: | BRC 4013 of 2011 |
| Judgment of: | Coakes FM |
| Hearing date: | 12 March 2012 |
| Date of Last Submission: | 12 March 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| The Applicant: | Appeared in person |
| The Respondent: | Appeared in person |
ORDERS
That the Orders for property settlement made by consent in the Family Court of Australia at Brisbane on 1 July 1988 are set aside.
That within fourteen (14) days of the date hereof the husband will:
(a)Attend to the maintenance and upkeep of the lawns and garden beds including fortnightly mowing; and
(b)Attend to the cleaning of the interior and exterior of the home at Property B (“the home”) including but not limited to laundry and curtains, dusting, mopping and vacuuming of the floors.
That the husband and the wife forthwith do all acts and things and sign all necessary documents to effect a sale of the home and by way of consequential arrangement that shall be made for the purposes of effecting a sale:
(a)The home shall be listed for sale by a private treaty with [omitted] Real Estate or any other real estate agent or agents as may be agreed between the parties;
(b)The listing price for the home shall be as agreed between the parties and if there is no agreement the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of Queensland;
(c)The parties will continue to liaise with the agent or agents the home is listed with in relation to the listing price. The listing price shall be reviewed between the parties every six (6) weeks following the initial listing date. If there is no agreement in relation to varying the listing price the variation (or otherwise) of the listing price shall be determined by the same valuer referred to in Order 3(b) above; and
(d)In the event that the home has not been sold within four (4) months of the date of these orders then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all moneys equally necessary to procure a sale by public auction of the home upon the following terms:
(i)the auctioneer shall be as agreed;
(ii)unless otherwise agreed the auction shall take place within two (2) months after the deadline date for sale by private treaty;
(iii)the reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer; and
(iv)the husband and the wife shall each pay and be responsible for payment of one half of auction expenses payable before the home is auctioned.
(e)In the event that the home has not been sold by auction or by private negotiation within fourteen (14) days after the said auction then the husband and the wife do all acts and sign all necessary documents and shall pay all moneys equally necessary to procure a second auction within a further five (5) weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
Upon completion of the sale of the home the parties are to do all acts and things to cause the proceeds of the sale to be applied as follows:
(a)Firstly to pay all legal costs, real estate commissions, auctioneers costs and expenses of the sale; and
(b)Lastly the balance then remaining to be divided in the proportions of:
(i)Fifty (50) per cent thereof to the husband; and
(ii)Fifty (50) per cent thereof to the wife.
That until the home is sold:
(a)Neither party is to encumber the home without the written consent of the other party;
(b)Neither party is to remove, destroy, damage or any way deal with any items attached to or part of the home including the home itself;
(c)The husband will have sole right to occupy the home and that during such occupation the husband will pay all rates, water rates and all other utilities in respect of the home as they fall due;
(d)The husband the wife hold their respective interests in the home upon trust pursuant to these Orders; and
(e)That the husband preserve the condition of the home and deliver vacant possession of the home in accordance with the party’s contract and the sale of the home under these Orders.
That within twenty-eight (28) days of the date hereof the husband and wife are to do all acts and things and sign all necessary documents to transfer fifty (50) per cent of the [M] investments held in the [M] Trust under customer number [1] in respect of the wife and customer number [2] in the name of the husband and with the account entitled Mr Ozick and Ms Ozick to each of them.
That the wife do all acts and things and sign all necessary documents to transfer to the husband any interest she may have in the party’s shareholding with the Suncorp Group.
That on a date to be agreed, but no later than 27 April 2012, the husband is to deliver, or cause to be delivered, to the wife items of personalty set out in annexure A to the wife’s Amended Initiating Application filed 6 January 2012 and of three (3) pages and a copy of which will be annexed to the short reasons for judgment.
That no later than 27 April 2012 the wife is to deliver to the husband, or cause to be delivered to the husband, the remaining family history papers in her possession, photos and original documents relating to shipping lists and the photos, paper clippings of Uncle [Mr T] taken from Uncle [Mr J]’s and the desktop computer and external hard drives with data in its present state and otherwise complete having regard to its present state.
That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:
(a)Each party is solely entitled to the exclusion of the other to all property (including those in action) in the possession of such party as at this date including but not limited to any motor vehicles, furniture and moneys;
(b)Moneys standing to the credit of the parties in any joint bank account to be divided equally between the parties within twenty-eight (28) days;
(c)Each party hereby foregoes any claim each may have against the other in respect of any superannuation benefits belonging to or earned by the other;
(d)All insurance policies to become the sole property of the beneficiary named within such policy; and
(e)Each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
That the parties do all such acts and sign all such documents necessary to give effect to the operation of these Orders.
That in the event that either party refuses or neglects to execute a deed and/or instrument in compliance with the provisions of this order the Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the parties and do all acts and things to give validity and operation to the deeds and or instruments.
That liberty is reserved to either party to apply with respect to the terms and conditions of and execution of the sale and occupation.
IT IS NOTED that publication of this judgment under the pseudonym Ozick & Ozick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 4013 of 2011
| MS OZICK |
Applicant
And
| MR OZICK |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
(Edited from the transcript)
In the matter of Ozick I am now delivering an ex tempore judgment having heard the matter on Monday but other matters in the list this week precluding me from delivering a judgment until today.
Introduction
After a marriage of 41, almost 42, years interposed with a separation of two years or about that and after 18 and a half years of marriage and a resumption of cohabitation until final separation in December of 2009 the parties are unable to agree upon a resolution of the present proceedings.
The impasse flows from a property settlement effected by the parties on 1 July 1988 in the Family Court of Australia at Brisbane when final orders were made by consent and provided as follows, both parties being represented by lawyers at the time:
(i)That the wife transfer to the husband all her right, title and interest in and to the former matrimonial home situated at Property L in the State of Queensland, more particularly described as lot [omitted], having an area of 733 square metres, being all that parcel of land contained in certificate of title volume [omitted] absolutely within 30 days from the date of this order.
(i)That the husband pay the wife the sum of $16,000 within 30 days from the date of this order in exchange for the said transfer.
(ii)That the husband assume responsibility for the mortgage debt under the mortgage to the Queensland Housing Commission over the said former matrimonial home and payment of all moneys thereunder and the husband indemnify and save harmless the wife against all demands, claims, proceedings, actions and suites whatsoever which exist now or may hereinafter exist in respect of such matters.
(iii)It is noted that the wife warrants she has not and will not encumber charge or otherwise prejudicially affect the former matrimonial home in any way whatsoever.
(iv)By way of further order that the wife retain all right, title and interest in and to the following items of property:
(a)a Morris Mini Minor Deluxe 1969,
(b)the goods and chattels and any other personal property in the wife’s possession as at the date of this order, and
(c)the goods and chattels listed hereunder which shall be made available to the wife at a mutually agreeable time at the said former matrimonial home within 30 days from the date of this order:
(i)a Commodore C64 computer and all associated attachments,
(ii)one Kenwood tumble clothes dryer,
(iii)World Book encyclopaedias,
(iv)two mirrors,
(v)one set of cast iron saucepans,
(vi)one set of stainless steel mixing bowls,
(vii)ladders,
(viii)one garden sprayer,
(ix)all camping gear excluding the three way fridge and large tent,
(x)one whipper snipper,
(xi)equal amounts of tools including spanners and screwdrivers,
(xii)Stitch by Stitch encyclopaedias,
(xiii)vacuum cleaner,
(xiv)equal distribution of all photos, records, tapes, souvenirs and ornaments.
(v)That the husband retain all right title and interest in and to the following items of property:
(a)Toyota HiAce, registered number, [omitted],
(b)the boat which was constructed by the husband, presently stored at the former matrimonial home,
(c)the husband’s superannuation benefits or entitlements existing now or in the future with [T] or any superannuation fund he has or will contribute to during his employment with [T] or any other employer with whom he is employed from time to time, and
(d)the goods and chattels and any personal property in his possession as at the date of this order save and except those goods and chattels referred to in paragraph (v)(c) above.
Those have not been the subject of any variation or discharge between the time they were made and now. I am satisfied, on the evidence before me, those orders were put into effect, both as to the transfer of the home and the payment to the wife of $16,000 and the husband making the mortgage repayments.
Divorce Orders
The only other existing order is a divorce order which was made on 30 November 2011 to become effective in one month. The application for divorce was brought by the husband who filed his application on 20 September 2011. In that application he showed the date of separation as 4 December 2009.
Applications
The wife relies upon her amended initiating application filed on 6 January 2012. She seeks by way of final orders, firstly, that if the court deems fit pursuant to section 79A of the Family Law Act 1975 the orders of 1 July 1988 be set aside and substituted with the following orders.
In essence the wife proposes a division of property and essentially on a 50/50 basis with no further adjustments for what is sometimes called the section 75(2) factors or for any other reason.
It is not specified in the wife’s amended application which sub-section of Section 79A she relies upon but in seeking to have set aside the orders of 1 July 1988 and based upon her material it is clear in my view that the wife’s application is brought pursuant to section 79A(1A), which is in the following terms:
“A Court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings and with the consent of all the parties to the proceedings in which the order was made vary the order or set the order aside and if it considers appropriate make another order under section 79 in substitution for the order so set aside.”
That is the only possible basis in my view upon which the wife could have brought this application based upon her evidence. The husband does not seriously contend otherwise.
The husband in his amended response filed on 27 February 2012 sought orders that the orders of 1 July 1988 be upheld. He agreed with the division of shareholdings as sought by the wife. As to the division of chattels as sought by the wife he proposed to arrange for a removalist to pick up and deliver to the wife the items she had listed in annexure A to her application.
The husband agreed with a declaration or general order as to retention of personalty currently in the possession of each of them. The husband also agreed to orders relating to the parties being required to sign documents to effect any orders, secondly, the Registrar to sign in default and, thirdly, that the parties have leave to apply with respect to the terms and conditions of and execution of the contract for sale and occupation of the home if that was to be sold.
The division of shareholdings to which the husband agreed in his response relates to moneys on deposit with the [M] Trust about which there will be some findings by me shortly in relation to the origin of those funds, and the Suncorp shareholdings, similarly about which I will make findings shortly.
The husband also sought in his application the return to him of all family history papers, photos, shipping lists and not copies, photos, paper clippings of Uncle [Mr T] taken from Uncle [Mr J]’s and, thirdly, that the wife return a desktop computer and external hard drives with data intact and complete as built and paid for by him.
The husband confirmed with me at the commencement of the proceedings that was his application. He confirmed also with me that he resists the sale of the former matrimonial home at Property B which he regarded as his and that he has a right to retain the property which flows from the orders of 1 July 1988.
The Issues for Determination
It seems to me the issues are these:
a)Was there a resumption of cohabitation after the present property orders were made?
b)If so, was there a subsequent intermingling of the party’s financial affairs and what was the nature of their relationship?
c)If so, do the circumstances of the resumed relationship and their conduct give rise to an inference that amounts to an implied consent to set aside the existing orders so as to enable the court to make fresh property orders or at the very least an intention no longer to be bound by the previous property orders and if so, the consequence?
d)If so:
i)What are the contributions made by each of the parties from cohabitation to the date of final separation and the weight to be attached to such contributions.
ii)What are the contributions from the date of final separation until the time of hearing and the weight to be attached to such contributions?
iii)What are the relevant section 75(2) factors and what adjustments are required, if any, in favour of either party?
iv)What is a just and equitable division of the whole of the property?
e)If not, is the court empowered to make any further order altering the property interests of the parties.
Background
The applicant, who is the wife, is 63 years of age. Her current income is in the form of a widow’s allowance of about $263 a week. She also receives rent allowance of $42.50 per week. The husband is 65 years of age. He now receives an old age pension. He lives in the former matrimonial home at Property B owned jointly by the parties. The wife rents premises together with her daughter, one of the three children of the marriage, who in the last six months became eligible for a disability pension. The daughter, [Ms J], receives about $600 per fortnight. Together the wife and [Ms J] share the expenses of that accommodation each paying half the rent. The husband’s pension income is in the sum of $374 per week.
The parties were married [in] 1968. They did not cohabit prior to their marriage. The relationship continued for about 18 and a half years until their separation in July 1986. There was a resumption of cohabitation in either September of 1988 or ‘89. They continued living together until their final separation on 4 December 2009.
I have referred earlier in these short reasons for judgment to the divorce order which has been made.
There are three children of the marriage. The eldest child, [name omitted], is now 43 years of age. He was born [in] 1968. He was 17 years of age at the time of separation in July 1986. The second child, [Ms J], to whom I have referred, is now 41 years of age. She was born [in] 1970 and she was almost 16 years of age at the time of separation in July of 1986. Their third child, [name omitted], is now 38 years of age. He was born [in] 1973. He was about 13 years of age at the time of separation in July 1986.
The evidence before me establishes that both parents had a relationship with all three children between July 1986 and resumption of cohabitation in 1988 or ‘89.
The husband has not re-partnered on the evidence before me, and I am satisfied he occupies the home at Property B alone. The wife has not repartnered on the evidence before me. Consequently this is a marriage of 41 or almost 42 years subject to the period of separation in 1988.
The Wife’s Case
The wife contends that reconciliation occurred and there was a resumption of cohabitation, that there was extensive intermingling of financial affairs, an application of the proceeds of the previous property settlement not only by her but also by the husband for their mutual benefit consequent upon their reconciliation. It is the wife’s case that these events following resumption of cohabitation in 1988 or ‘89 lead to an irresistible inference that there was an implied consent to discharge or vary the orders of 1 July 1988.
The Husband’s Case
It is difficult to understand the husband’s case in some respects. He contends, essentially, that because of the previous orders and his entitlement to retain his [T] superannuation and retrenchment benefits, most of which went to buy the land and build the present home at Property B, that he should keep that, but that the other, or the balance of the remainder of presently acquired joint assets from the time of resumption of cohabitation or flowing from that time should be divided equally.
The Evidence and the Hearing
In the wife’s case the wife relied upon, and I read, her affidavit sworn 12 September 2011 although it is entitled Affidavit of Mr Ozick but annexed to that affidavit is a valuation of the real estate at Property B, Queensland by Mr C. Next, the wife’s affidavit sworn 3 November 2011 and filed the same day, an earlier affidavit upon which she relied sworn 6 April and filed 15 May 2011, her financial statement sworn and filed 3 November 2011 and her final affidavit sworn and filed on 11 January 2012.
In the husband’s case I read the documents he asked me to read and they comprised his first affidavit sworn 18 August 2011 and filed on 19 August, his affidavit sworn 27 February 2012 and filed the same day and his financial statement also sworn 27 February this year and filed the same day.
I was also assisted by outline of case documents prepared and filed by each of the wife and the husband. I also had the benefit of sworn oral evidence from both the wife and the husband and was able to observe each of them in the witness box as they gave their evidence and cross-examined each other although somewhat briefly.
I was left with the distinct impression that both the wife and the husband were truthful and both made appropriate concessions allowing for some failing memories of precisely when events occurred or otherwise and the finer points of their financial transactions over a number of years.
The parties have at all times represented themselves. The wife had some assistance with preparation of documents from the Women’s Legal Services.
It was necessary for me to obtain evidence and particulars from each of them to better explain some of the history of their transactions as they were disclosed in their respective affidavits and in particular from 1988 until their final separation.
At the end of the day there were very few disputed facts or factual issues and certainly none of any significance. Neither party challenged the others assertions as to the nature of the relationship between them both in its first phase from 1968 until 1986 and from reconciliation in 1988 or ‘89 till final separation at the end of 2009.
Significantly there was no dispute reconciliation occurred, nor that there was significant intermingling of financial affairs consequent upon the resumption of cohabitation following their reconciliation.
Discussion
With some minor discrepancies of no consequence the evidence establishes the following events as they occur.
At the time of marriage the husband commenced employment with [P] and I think I recall he told me one week after the date of marriage. During the first period of their relationship of about seven years before they bought their first home they lived in variously [omitted] and then [omitted] and then ultimately Brisbane.
The husband worked variously for [P], as it then was, as I surmise in the state of Queensland and primarily in the Brisbane district.
In 1975 the parties purchased their first home from the Housing Commission at Property O which was subject to a mortgage to the Queensland Housing Commission. It was that property which was the subject of the property orders in 1988.
About the time of the purchase of that house the husband [employment details omitted] or just prior to that. In 1984 he [left said employment]. The wife took up employment as she describes in her case document. There is no challenge to that employment nor the nature of it.
In 1986 at the time of the first separation the wife, as I understand the evidence, left the then matrimonial home with all three children and she rented a property at [W], then started full time employment at [G].
In 1987 the wife purchased a home with a colleague, with a work colleague, in [M] and the children moved into that home with the wife although it seems on the material before me the children were spending time with the husband. The wife could not recall the purchase price of that home nor the amount of the mortgage used to assist its purchase or obtained, rather, to assist its purchase.
In about 1988 or possible 1987 the husband asserted that he lent $10,000 to the wife to buy out her work colleague’s interest in the property. Whilst the husband asserts it was a loan and the wife says it was a gift I find on the whole of the evidence before me and the evidence of the parties that it was in fact a gift, and for these reasons. There was no loan account. There was no agreement in writing, not that that’s necessary to establish a loan, there was no provision for interest, no repayments were made and the husband has not sought to compel enforcement of any such agreement but for the reasons that I gave during the course of the hearing I find on the balance of probabilities it was in fact a gift and that was consistent with their relationship at that time moving toward a reconciliation.
In 1988 the husband took redundancy from [T] or [P], as it perhaps then was, and his evidence before me is that he received about $150,000. That comprised about $120,000 for superannuation, and a combination of accrued recreation leave, annual leave and long service leave of about $26,844 and which became his eligible termination payment.
It was at about this time that the property orders were made to which I have referred. It is not possible to determine, on the evidence, with accuracy which events at about this time preceded one or the other or followed one or the other and it was about mid 1988 that the wife bought out her colleague’s interest in the [M] property.
The wife, in 1989, or thereabouts then rented her aunt’s house at [L] for a period of about 12 months. She told me in evidence it became necessary to rent that home because her aunt had gone into a nursing home and it was necessary to fund the aunt’s stay at the nursing home. The rent being paid was one means by which that was done.
It is the wife’s recollection that the resumption of cohabitation occurred prior to that event. It is the husband’s recollection that it occurred at about that time. The wife conceded the husband could be right. In any event the evidence establishes that the parties resumed cohabitation in about 1988 or ‘89.
It was also at about that time that the parties opened a joint bank account with the National Australia Bank for deposit of their respective earnings from their various employments during the course of the relationship.
In 1990 it is common ground, on the evidence, that the parties bought five acres of land at Property B and that such purchase was in joint names. It is the husband’s recollection that the land cost about $65,000. The husband gives evidence which the wife supports that subsequently they bought a kit home from Nu-Steel and constructed a home on the land over a period of time and to which they both contributed both in the form of labour and with assistance from family members and children.
The purchase price of the land and subsequently the cost of the Nu-Steel home the husband says was met primarily from his superannuation benefits from [T]. In May 1990 the husband purchased a new Suzuki motor car for the wife costing $15,000 again from his superannuation benefits.
In 1991 or 1992 the home at [M] which the wife had purchased ultimately with a colleague, but then came in to her own name, was sold. She does not recall the sale price but told me in evidence that there was a little profit which she applied towards general living expenses and other expenses the family were incurring at that time. It was at about that time or a little earlier that the husband [employment omitted].
In 1993 the husband sold the former matrimonial home at Property L to a friend of his, [name omitted]. He told me in evidence that the sale price was about $60,000. There was some money owing under the mortgage to discharge to the Queensland Housing Commission and his recollection is that the net proceeds were between 20 and $25,000. That, in part, went towards the cost of the kit home from Nu-Steel.
In 1994 the husband’s Uncle [Mr T] was killed in a motor vehicle accident and subsequently the husband inherited about $50,000 from his estate. From that he bought a boat which cost about $19,000 he told me and otherwise applied those moneys towards other expenses he had at the time and, in part, improvements to the property at Property B.
It was at about that time that the wife took a redundancy package from [G] as a consequence of it being taken over. She received some redundancy payment and ultimately she received some superannuation to which she had contributed over about four years or, I think, on the evidence before me, it may have been a bit longer. She cannot recall exactly how much her redundancy benefit was nor her superannuation.
In 1996 the husband contracted fibromyalgia from which he continues to suffer or it may have been a little bit later. In 1995 the husband took part in his last [occupation omitted]. In October of 1997 the wife started working part time at [omitted]. In 1998 her aunt, Ms R, died and she inherited about $200,000 from her estate.
It is common ground, on the evidence before me, that from those moneys about $100,000 was invested in joint names and interest derived from those investments was paid to their joint account and applied to their ordinary living expenses. Of that amount the husband’s recollection is that $80,000 was placed with [M], $10,000 with [omitted] and $10,000 with another investment fund. The two latter amounts were withdrawn at some stage and applied towards ordinary household expenditure.
Of the amount of $80,000 with [M] the evidence at trial was that about $30,000 was withdrawn for household improvements and living expenses and that a joint decision was made each time moneys were withdrawn and expended. The residue of the [M] investment is now reflected in the current assets of the parties to which I will refer in a moment.
In 2003 the husband became eligible to receive his disability support pension which commenced and which has now been converted to an old age pension.
After leaving [B] in 2002 the wife assisted her brother with a [omitted] business which she continued to run with the assistance of her brother’s wife. That ceased in 2006 and about that time the wife’s mother, Ms D, died and she inherited a sum of about $24,797. Prior to that she had received five lots of about $3000 each gifted to her by her mother over a period of time. Final separation occurred on 4 December.
Insofar as the property settlement and orders of 1988 are concerned there is no evidence before me as to what division of property that represented at that time.
The Relevant Law
I have referred to section 79A(1A) earlier in these short reasons for judgment. There is no doubt and I find, on the evidence, that reconciliation occurred in either August or September of 1988 or ‘89 when cohabitation recommenced by mutual agreement and the husband moved to the home of the wife which then occurred either at the wife’s home at [M] or the wife’s aunt’s house at [L].
That by itself did not mean that the husband consented to relinquishing the rights and interests he acquired by virtue of the 1988 consent orders.
The purchase of the land at Property B in joint names to which I have referred, the occupation of the husband’s home at Property O by their son [name omitted], the opening of the joint account with the National Australia Bank, the application of combined earnings, which I find, on the evidence, occurred to meet household expenses and the joint homemaker contributions by the parties all point to an intention to not only establish a continuing relationship as husband and wife but also to merge their assets, common use of those assets and with an intention to share them. This related to both real and personal property.
To this end the sale by the husband of the former matrimonial home at Property O and the application of the proceeds to the Nu-Steel kit home at Property B as well as part of his superannuation benefits, and the sale by the wife of her property at [M] to which she had applied some moneys to the mortgage from her property settlement of $16,000 as well as a Mitsubishi motor vehicle all lead to, not only, an irresistible inference but a clear intention by both parties to no longer be bound by the property orders of 1 July 1988.
I am fortified in coming to this conclusion when I consider the husband’s contribution of his [T] superannuation retirement benefits to the acquisition of the jointly owned land and Nu-Steel kit home for the home at Property B. In those days he was able to withdraw his pre-1983 superannuation contributions without penalty.
The husband clearly intended to build a home for he and his wife and they both went about making it into their home and also a home for their children or those who then wanted to live in that home.
The subsequent application by the husband in about 1994 of the legacy from his Uncle [Mr T]’s estate to a boat and the house and living expenses further supports this conclusion.
The subsequent application by the wife of her inheritance from her aunt in 1998 or 1999 and the inheritance from her late mother’s estate in 2006 to the investments found in the residual fund with [M] and to home improvements, a new car and a second-hand caravan and general costs of living for the benefit of both the husband and the wife again establish a continuing intention to no longer be bound by the original orders.
For the husband to maintain and assert to the contrary I find, on the evidence, is untenable. I find that the husband abandoned the rights he may have had to his superannuation fund and retirement benefits at the time he left [T] by his subsequent conduct[1].
[1] McKay (1995) 19 Fam LR 579; FLC 92-634, Sommerville [1999] FamCA 958; 27 Fam LR 233, Brown (2000) FLC 93-042, Bourke & Bourke (2) (1994) 18 Fam LR 1; FLC 92-479
I find both parties conducted their personal relationship and their financial relationship in such a way that each made a deliberate choice to no longer be bound by the original orders of 1988.[2]
[2] M & M [2006] Fam CA 1453
Conclusion
I am satisfied therefore that the parties resumed their marital relationship from September 1988 or ‘89 and which continued without interruption until final separation in November or December of 2009.
Relevant Law in Relation to Alteration of Property Interests
The courts approach to determining property disputes is well established. In Hickey & Hickey[3] the Full Court of the Family Court of Australia described the approach in the following terms:
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of section 79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a),(b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in section 79(4)(d),(e),(f) and (g) (“the other factors”) including because of section 79(4)(e) the matters referred to in section 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established in step two. Fourthly, the court should consider the effect of those findings and determine and resolve what order is just and equitable in all the circumstances of the case.”
[3] Hickey & Hickey [2003] FamCA 395; Fam LR 355; FLC 93-143
In this case the party’s superannuation interests are vested and form part of their property and therefore it is unnecessary for me to consider whether there is any superannuation to be treated as property.
Evidence and Findings of Fact
Findings of fact are made on the test of balance of probabilities having regard to the evidence and my observation of both the husband and the wife during the course of their evidence. In these reasons for judgment, unless stated to the contrary, statements of fact constitute findings of fact.
Assets, Liabilities and Financial Resources
Assets
The court is required to make a finding as to the property of the parties at the time of the hearing. I am satisfied, on the evidence before me, that the assets at the time of hearing are as follows:
a)Real property at Property B in the joint names of the parties valued at $460,000.00. The property at Property B stands in the name of the husband and the wife as joint tenants. It is subject to a mortgage to the National Australia Bank Limited dated on or about 5 May 1992 but during the course of the hearing when that became apparent from the title search obtained on the day of the hearing both the husband and the wife tell me that there is no mortgage to the National Australia Bank Limited and that inquiries were made to that effect, I think, by the wife from recollection. I am satisfied therefore there is no liability to the National Australia Bank in respect of the home.
b)The second asset is the [M] Trust in the name of both the husband and the wife with a current balance of $50,038.63.
c)1030 shares in Suncorp Group Limited with a value of $8.01 per share as at close of business on 9 March 2012 and therefore having a value of $8250.30.
d)The balance of the wife’s superannuation benefits with [M] with a value of $9482.43. That represents the residue of the wife’s superannuation following her retirement from the [omitted] where she had worked she having drawn some during the relationship and about which she deposed.
e)The joint account with the NAB with a balance of $1200.
f)The husband’s Ford Falcon motor car which he assesses has a value of $100 which I regard as an admission against interest and there being no evidence to the contrary it will be regarded as such. It was bought five or six years ago at a cost of $1600 and is not a new motor car.
g)The wife’s Ford Falcon motor car, 2000 year model, which the wife asserts has a value of $3000. For the same reason I accept that figure. It was bought from part of the proceeds of her mother’s estate.
h)Household contents in the possession of the wife at her home which she assesses at a value of $10,000.
i)Household contents in the husband’s home which he assesses has a value of $10,000. There is no evidence to the contrary and I admit those amounts in the amounts asserted as admissions against interest.
j)The wife’s account with the Commonwealth Bank with a balance of $810.26. That represented the balance of one of the draw downs of $4000 from her superannuation.
k)The wife’s account with NAB in her name alone being the account into which she receives her pension and with a current balance of $100.
l)The husband’s account with the Bendigo Bank with a balance as at 27 February of $7913. That represented in part the residue of his superannuation fund and other contributions.
m)A funeral plot in the name of the wife purchased for $1200. In the absence of any other evidence admitted at that amount.
There is also a caravan about which there was evidence but it is submitted by the husband it is of no commercial value. It is 25 years old. It was purchased in 2006 and is currently in poor condition. I am satisfied for the purposes of these proceedings that it has no commercial value.
Consequently the value of the assets is $562,094.62 and I am satisfied that based upon the evidence that I heard that those represent the entirety of the present assets of the parties, as reflected in the following table for ease of reference.
Asset
Value
Property B (Joint)
460,000.00
[M] Trust (Joint)
50,038.63
1030 shares in Suncorp Group Limited (Joint)
8,250.30
[M] Super (W)
9,482.43
NAB Bank account (Joint)
1,200.00
Ford Falcon Motor car (H)
100.00
Ford Falcon Motor Car (W)
3,000.00
Household contents (W)
10,000.00
Household contents (H)
10,000.00
CBA Bank Account (W)
810.26
CBA Bank Account (H)
100.00
Bendigo Bank Account (H)
7,913.00
Funeral Plot (W)
1,200.00
Total Value
562,094.62
Liabilities
There is none on the evidence before me. Further I find, on the evidence, that no assets have been acquired or disposed of since separation in 2009.
Financial Resources
Neither party discloses any financial resource in their respective financial statements.
Evaluation of the Contributions
The obligations placed on the court by virtue of section 79 call for and require an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of a number of previous decisions. The contributions of a parent and homemaker are to be assessed not in any merely token way but in terms of their true worth to the building up of the assets[4].
[4] Mallett & Mallett (1984) 9 Fam LR 449, In the Marriage of Ferarro (1992) 15 Fam LR 1
There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties during the course of their relationship, both financial and non-financial, direct and indirect, in that the court can become involved in questions of the quality of contributions which go far beyond the real world expectations of the parties[5].
[5] In the Marriage of Shewring (1987) 12 Fam LR 139
It seems to me that the most appropriate and most convenient manner to deal with the contributions of the parties in this case is to adopt a global approach as opposed to an asset by asset approach.
It seems to me appropriate also for the reasons I have given to include the residual superannuation of both parties as part and parcel of that property when considering their contributions.
I find, on the evidence, that at the commencement of their relationship when they were married that neither party brought into the relationship either any asset of significant value or any liability of any significance.
It seems to me I should consider the contributions over the whole period of the marriage and until final separation in December of 2009. My rationale is that the separation from July 1986 until September of 1988 or ’89 did not result in loss of property as the division of property pursuant to the orders of 1988 resulted in such property effectively and ultimately being brought back into the relationship albeit in a changed form but with no diminution. Further, section 79A(1A) empowers the court to vary the original order or set the order aside and if it considers appropriate make another order under section 79 in substitution for the order so set aside.
This was a relationship of 38 or 39 years after taking into account the separation in 1986. Both parties work hard. The husband was employed by the [P], later to become [T], from the week after their wedding until his retirement in 1988 when he took a redundancy package. From that time he had various jobs including some self-employment and was [omitted]. The onset of fibromyalgia restricted his activities and ability to work as he had in the past and as I have said in about 2003 or thereabouts he became eligible for and received a disability pension.
The wife in the early years of the marriage was involved primarily in the upbringing of the three children. From 1979 until 2005 she worked in various jobs, both full time and part time, including [omitted] and as a [omitted] at [G] between 1980 and 1994. This was followed by work at [omitted] and some [omitted] for her brother.
The evidence establishes that the party’s superannuation retirement benefits and legacies and earnings were all applied to the acquisition and improvement and maintenance of real and personal property and to the maintenance and support of the family which comprised both the husband and the wife and their three children.
It is likely that the wife made a greater contribution as a homemaker and parent, certainly in the earlier years of the children’s lives, but that is not to say the husband made no contribution. It seems he became more involved as the children grew older.
The wife raises some matters in relation to conduct of the husband during the relationship. I make no findings about those allegations. They were not the subject of any testing during the course of the hearing and it is not evidence which, on any interpretation, would amount to an adjustment or further adjustment in favour of the wife within the meaning of the case of Kennon[6]. Consequently taking all those matters into account I find the contributions of the parties to the date of separation, that is 2009, to be equal and that such contributions were made by them from the time of their marriage.
[6] Kennon (1997) 22 Fam LR 1
Post Separation Contributions
The husband has had the benefit of occupation of the home at Property B since separation and the wife has rented a home for a period after living with her sister for a while and now rents a home which she shares with her daughter, [Ms J]. The wife became eligible for a widow’s allowance from 2009 plus a rent allowance of $42.50 per week. The wife has used some of her superannuation moneys to meet her day to day living costs post separation. In all the circumstances I find, on the evidence, that no further adjustment is warranted for the period from separation until the date of hearing this week.
Section 79(4)(d)
I find, on the evidence before me, that there is no adverse effect of any proposed order on the earning capacity of either party.
Section 79(4)(e)
These are the matters which the court is required to consider under section 75(2). The relevant matters would seem to me to be subparagraphs (a), (b), (d)(i) and (d)(ii), (e), (f)(i) and (f)(ii), (m), (n)(i) and (ii) and (o).
(a)The age and state of health of each of the parties.
I have referred to this earlier in these short reasons of judgment. The wife is 63 years of age and the husband is currently 65 years of age. Neither enjoys especially good health at the present time. The husband suffers from fibromyalgia which the wife described as being full of arthritis and this restricts his movements and causes him pain. The wife suffers from arthritis and annexed to her affidavit of 3 November last year, is a report by her GP, Dr O, who was, at the time of the report, 26 September 2011, the wife’s GP for some 20 years. Dr O describes the wife as having severe osteoarthritis in her left knee and will undoubtedly need total knee replacement surgery in the next few years and he goes on to describe the frequent and severe pain that she suffers in that knee especially when walking and standing. I am satisfied, on the evidence before me, that both the husband and the wife are unfit for sustained employment for wages and presently do not have any working capacity or ability.
(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.
For the reasons I have given I am satisfied neither party has physical capacity for continuous and substantial employment. The evidence would suggest they each have the mental capacity but that does not assist their physical impediments at the present time. As to their income in each case it is derived entirely from the Centrelink benefits and some small amount by way of interest from the investments. The shareholding in Suncorp is the subject of a dividend reinvestment plan with further shares issuing as and when a dividend is paid instead of that dividend. Their property together is found in the list of assets to which I have referred. That property is not substantial and the principal asset comprises the former matrimonial home at Property B. As I have said there are no financial resources.
(d)Commitments of each of the parties that are necessary to enable the parties to support, (1), himself or herself and, (2), a child or another person that the party has a duty to maintain.
Each party has commitments necessary to support themselves and in particular as far as the wife is concerned the necessity to obtain rented accommodation, and in each case day to day recurring needs. Neither party has an obligation to support any other person.
(e)The responsibilities of either party to support any other person.
The evidence establishes that neither party is responsible for supporting any other person.
(f)Subject to subsection (3) of the eligibility of either party for a pension allowance or benefit under, (i), any law of the Commonwealth, of a State or Territory or of another country or, (ii), any superannuation fund or scheme whether the fund or scheme was established or operates within or outside Australia and the rate of any such pension, allowance or benefit being paid to either party.
Both parties are eligible for, and receive, Centrelink benefits under the laws of the Commonwealth of Australia. Neither party is now eligible to receive any superannuation benefit from any fund or scheme. I have referred to the amounts of the present Centrelink benefits paid to each of the parties.
(m)If either party is cohabiting with another person; the financial circumstances relating to the cohabitation.
The evidence establishes the husband is not living with any other person. The circumstance of the wife’s co-residence with her daughter, [Ms J], I have referred to earlier in these short reasons for judgment. That does not give rise to any benefit to the wife save for the partial sharing of the rent of the home that she and [Ms J] occupy.
(n)The terms of any order made or proposed to be made under section 79 in relation to the property of the parties or vested bankruptcy property in relation to a bankrupt party.
The value of the property available for division between the parties is modest and to which I have referred earlier. There are no liabilities.
(o)Any fact or circumstance which in the opinion of the court the justice of the case requires to be taken into account.
Neither of the parties has the ability, on the evidence before me, to make any adjustment of their property without the sale of the home and consequently and, perhaps, unfortunately for the husband it becomes necessary to consider as necessary the sale of the home to bring about a division of property between them.
Weighing all these factors I find that no further adjustment is warranted for the reason that none favours one over the other and the fourth requirement is, then, to consider when I come to make the orders that are appropriate whether that result is just and equitable. I am satisfied in all the circumstances that it is. The available assets should therefore be divided on an equal basis between the parties.
Conclusion
In conclusion I say this. The assets have a combined value of $562,094.62. Setting aside the home the wife will retain the balance of her [M] fund of $9482.43, the motor car worth $3000, her CBA bank balance of $810.26, her furniture and furnishings of $10,000, her NAB bank balance of $100 and the funeral plot worth $1200. They together total $24,592.69.
The husband retains his motor vehicle worth $100, his balance in the Bendigo Bank of $7913 and his household furniture and furnishings of $10,000 for a total of $18,013.
Those amounts together come to $42,605.69 there being a difference in favour of the wife of $6579.69.
To bring about an equal division that disparity is best adjusted, in my view, by the husband receiving the Suncorp shares and meeting the cost of removal to the wife of her personal property which he has agreed to do.
The remainder of the assets are to be realised to bring about an equal division both in respect of the proceeds of sale of the home and the moneys on deposit with the [M] Trust together with the NAB joint account.
For these reasons I make the following orders.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Coakes FM
Date: 10 April 2012
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