R and R
[2003] FMCAfam 208
•13 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & R | [2003] FMCAfam 208 |
| FAMILY LAW – Property – contributions and section 75(2) factors – cohabitation for 10 years and 6 months – no children of the marriage. |
Family Law Act 1975, ss.75(2), 79
Ferraro (1992) 16 Fam LR 1; (1993) FLC 91-335
McLay (1996) 20 FAM LR 239; FLC 92-667
Lee Steere (1985) 10 Fam LR 431; FLC91-626
Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90-897
Norbis (1986) 161 CLR 513; 10 Fam LR 819;FLC 91-712
Black & Kellner (1992) 15 Fam LR 343; FLC 92-287
Pierce (1998) 24 Fam LR 377; (1999) FLC 92-844
Clauson (1995) 15 Fam LR 693; FLC 92-595
Best (1993) FLC 92-418
Robb (1994) 18 Fam LR 489; (1995) FLC 92-555
Brandt (1997) 22 Fam LR 97; FLC 92-758
W (1980) 6 Fam LR 538; FLC 90-872
| Applicant: | P R |
| Respondent: | E R |
| File No: | PAM 4479 of 2002 |
| Delivered on: | 13 June 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 22 May 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Lynch |
| Solicitors for the Applicant: | Barkus Edwards Doolan |
| Counsel for the Respondent: | Mr Campton |
| Solicitors for the Respondent: | Newnhams |
ORDERS
The Respondent husband is to pay to the Applicant wife the sum of $71,113.00 by way of settlement of property as follows:
(a)The sum of $12,500.00 within one (1) month of the date of these Orders;
(b)The sum of $58,613.00 within twelve (12) months of the date of these Orders.
In the event that the husband fails to pay the said sum of $12,500.00 referred to in Order 1(a) hereof within the time specified, he is to pay to the wife interest on such amount as remains unpaid at the rate prescribed by Part 22 of the Federal Magistrates Court Rules until the said sum has been paid in full.
In the event that the husband fails to pay the said sum of $58,613.00 referred to in Order 1(b) hereof within the time specified, he is to pay to the wife interest on such amount as remains unpaid at the rate prescribed by Part 22 of the Federal Magistrates Court Rules until the said sum has been paid in full.
In the event that the husband fails to pay the amounts referred to in Order 1 hereof and interest accrued on any unpaid amount within twelve (12) months from the date of these Orders the husband and the wife are to forthwith list the property situate at and known as
R Road E in the State of New South Wales being the whole of the land in certificate of title Volume Folio for sale by public auction with such auctioneer as the parties may agree to appoint and in default of agreement as to auctioneer with such auctioneer as the President of the Real Estate Institute of New South Wales shall nominate.Upon the sale of the said property at E the proceeds of sale are to be paid in the following manner and priority:
(a)all costs and expenses of sale including legal costs and disbursements, agents’ commission, valuers’ fees and auction expenses;
(b)the amounts required to pay all shire and water rates outstanding in respect of the said property;
(c)such part of the amount ordered to be paid by Order 1 hereof as remains unpaid at the date of settlement of the sale of the said property together with interest accrued thereon to the wife; and
(d)the balance to the husband.
The husband may continue to occupy the said property at E until compliance by him with all his obligations under Order 1 hereof or alternatively until completion of the sale of the said property, whichever is the later, and shall be responsible for and pay all the outgoings, telephone, electricity and gas accounts, shire and water rates, insurance and necessary maintenance in relation to the said property provided that the husband shall vacate possession of the said property not less than seven (7) days prior to the date fixed for completion of the contract for the sale of the said property.
Except as specifically provided for by these Orders to the contrary, the wife is to be the sole owner of the following:
(a)the Daewoo motor car registered number in the possession of the wife;
(b)all superannuation entitlements of the wife in the MLC Superannuation Fund, AMP Superannuation Fund and Hesta Superannuation Fund; and
(c)all personal property of whatsoever nature and kind standing in the name of or in the possession of the wife.
Except as specifically provided for by these Orders to the contrary, as against the wife the husband is to be the sole owner of the following:
(a)the said property situate at and known as R Road E;
(b)the Toyota and Volkswagen motor vehicles in the possession of the husband; and
(c)all personal property of whatsoever nature and kind standing in the name of or in the possession of the husband.
The parties are to do all acts and things and execute all documents, instruments and authorities necessary to give effect to these Orders.
In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the Federal Magistrates Court is appointed pursuant to section 106A of the Family Law Act to execute such deed or instrument in the name of the defaulting party and to do all things necessary to give validity and operation to the said deed or instrument.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4479 of 2002
| P R |
Applicant
And
| E R |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife for settlement of property. In her application, commenced on 21st November 2002, the wife seeks the following orders:
(a)
That the husband pay to her the sum of $150,000.00 within
14 days;
(b)that the husband be restrained from dealing with the former matrimonial home at R Road, E in the State of New South Wales pending payment of the sum of $150,000.00;
(c)that the former matrimonial home be charged with the husband’s obligation to pay the sum of $150,000.00;
(d)that the parties should list the former matrimonial home for sale by public auction;
(e)that the wife should receive the said sum of $150,000.00 out of the proceeds of sale;
(f)that the husband be permitted to remain in occupation of the former matrimonial home pending the sale or payment of the sum of $150,000.00;
(g)that the wife be solely entitled to her motor car, her superannuation and all personal property in her possession.
For his part, the husband in his Response seeks that the wife’s application should be dismissed.
Background
The applicant and the respondent were married on 12th December 1993 and separated on 2nd July 2002. The marriage lasted for 8 years and 7 months, but the parties had cohabited before the marriage from January 1992. The parties are not yet divorced.
There are no children of the marriage. The wife was previously married in her native T, and there are two children of that marriage, both of whom are now adults. She separated from her first husband,
Mr P C in 1985, and they were later divorced. The wife married one N W S on 9th February 1989 and he sponsored her permanent residence in Australia. She separated from Mr S in 1991 or 1992. There are no children of that marriage.
The husband was previously married. His wife I died on 15th May 1991. There are no children from that marriage.
The parties commenced residing together in January 1992. They moved into the husband’s home at R Road, in the Sydney suburb of E.
The wife was granted permanent resident status in March 1992. She became an Australian citizen in December 1994.
The wife returned to T for a period of three months to care for her sick father. The father died on 28th October 1995.
In November 1995 the wife’s daughter J, then aged 15, came to Australia to live. The wife sponsored her for permanent residence.
J resided with the parties until September 2001.
In 1996 the wife’s son, J, who was then aged 19, came to Australia. He stayed with the parties for about a month. He travelled to T and back to Australia on a number of occasions between 1996 and 2001. He is now back in T.
The wife commenced paid employment in the middle of 2001. She worked at the B N H in the nearby suburb of M.
The parties separated on 2nd July 2002. The husband commenced to reside in a de facto relationship with a lady named V S in November 2002. The wife has formed a new relationship with a man, but they do not reside together.
Issues
The issues between the parties concern the weight that should be given to each party’s contribution, bearing in mind the fact that the parties cohabited for about 10 years and 6 months, and whether or not a property in T is held by her beneficially or as a trustee.
Evidence
The wife gave evidence by affidavit and was cross-examined by the husband’s counsel. There were no other witnesses for the applicant. The husband gave evidence and was cross-examined by the wife’s solicitor. He was the only witness in his case.
The wife deposed in her affidavit to having met the husband for the first time on 1st January 1992 and commencing to reside with him at the end of that month. He told her he was a widower with no children and no relatives.
When they first started living together the wife owned a quantity of furniture and a Toyota car, according to her affidavit. She was self-employed making Thai sweets, which she sold to Asian grocery shops in the C area. She estimated that she earned about $400.00 per week from that enterprise. She stated that she cooked Thai desserts and sold them throughout the marriage.
The wife contends that she did the bulk of the work around the house and in the garden, except for mowing the lawns. The wife stated that she received a carer’s pension for the husband, which ceased once the parties separated.
The wife currently works as a nursing assistant at the C N H at B for 16 hours each week. She also works for 8 hours each week at the L L G R V at E.
The wife currently resides in a flat with her daughter. She deposes that she has a boyfriend but does not reside with him.
In oral evidence in chief, the wife said that she was still employed at C and at L L G. She tendered some pay slips in evidence. She reiterated her claim that the husband had fallen off a chair and broken a rib in 1996, which meant that she had to look after him. She said that he had had a car accident in 1998 and she still nursed him. She denied that the husband had given her the sum of $2000.00 to cover her telephone bill, as he had deposed in his affidavit.
In cross-examination by Mr Campton, counsel for the husband, the wife said that she had worked as a casual teacher for a year, from 1989 to 1990. It was put to her that she had in fact earned less than $350.00 to $400.00 per week from making the Thai desserts and selling them, but she asserted that the figure was more or less correct.
The wife agreed that she had sent sums of money to her family in T over the years. The largest amount she sent in one instalment was $300.00, the smallest was $150.00. Whilst she asserted that the maximum amount that she sent to T in one year was $500.00, the wife later said that she may have sent more than $500.00 in a year but “It didn’t happen often”.
As for the wife’s personal travel to T during the marriage, she said that she only went every three years. She denied that she would travel to T two or three times a year. She said that she would pay the money for the airfares when she went to T and she denied that the husband paid.
The wife was asked about a property in T that she said is held in trust for the children. In her affidavit she referred to the fact that her parents had transferred their interest in the property to her and she held that land in trust for her two children. She deposed to the fact that the husband gave her $2,000.00 in 1996 which was used to renovate the house. She also said that the husband lent her the sum of $1,500.00 which was used to repaint the house. She claimed that the money was repaid to the husband.
In cross-examination the wife insisted that she held the property in T in trust for her children. She said that she had to pay money to maintain the property because the children do not have the money to do so. She estimated the property to be worth about $A15, 000.00.
Mr Campton asked the wife about the sum of $150,000.00 that she seeks. Her put to her that the husband would have to sell his house to raise that money. The following exchange took place:
“Question: You want your money now?
Answer: Not necessary, no.
Question: How long are you prepared to wait?
Answer: I don’t know.
Question: Are you prepared to wait five years?
Answer: As long as he is healthy and happy.
Question: You wouldn’t want to see him out in the street?
Answer: No.”
There were no further witnesses for the applicant.
The respondent gave evidence by affidavit and orally. He is a retired diesel mechanic. In his affidavit sworn on 23rd December 2002 the husband stated that at the time the parties commenced cohabitation he owned the property at R Road, E, a Toyota Camry motor car, a house full of furniture, a 1962 Volkswagen motor vehicle, approximately $120,000.00 in savings and a life policy with AMP. His savings had come from a compensation payment to him and an amount of money from his late wife’s superannuation.
The respondent deposed in his affidavit to conversations he had with the applicant where he told her that if she had children the relationship was over. He said that she told him she had no children. He deposed that he would never have agreed to be married if he knew that the wife had children. He later found out that she did have children.
It was the respondent’s evidence that he paid considerable sums of money out to the wife, or on her behalf, during the marriage. These sums included airfares between Australia and T for the wife and for her daughter J and her son J. He deposed to giving the wife sums of $2,000.00 and $1,500.00 for the renovation and painting of the house in T.
The husband stated that when the parties separated he still had the house, the furniture and two motor vehicles, but his savings had been considerably depleted. He claimed that at July 2002 his savings were down to $45,000.00.
The husband set out in his affidavit details of his health problems.
He is an insulin-dependent diabetic. He stated that he was due to undergo an operation in January 2003 and he believed that he would have to pay out about $3,000.00 over and above any amount provided by his health insurance. As it turned out, the husband gave oral evidence that he only had to pay about $300.00 for his operation.
The husband’s savings have been further depleted, he said. He has had to pay out the sum of $18,186.00 for legal expenses. He now has only about $13,213.00. He opposes paying the wife any money, but, if he has to pay, he would like the opportunity to pay her out and retain his house.
In cross-examination by Mr Lynch, for the wife, the husband claimed that the wife returned to T two or three times a year and the daughter J returned to T every school holiday period. He said that he paid all the airfares except for the last trip to Australia by the wife’s son J.
The husband asserted that he did more of the housework and the wife did less than she claimed. He asserted that he gave the wife money on two occasions for work on the home in T but she never paid a cent back to him. He claimed that the wife was responsible for the disappearance of the television set that he used to own.
The relevant law
In determining an application under section 79 of the Family Law Act 1975, the authorities make it clear that a three-stage process should be followed (Ferraro (1992) 16 Fam LR 1; (1993) FLC 92-335; McLay (1996) 20 Fam LR 239 FLC 92-667).
First, the Court should identify the property, liabilities and financial resources of the parties at the time of the hearing. Next, the Court should evaluate the contributions made by the parties as defined in section 79(4)(a), (b) and (c), which cover the contributions made by or on behalf of the parties, the contributions made directly by or on behalf of the parties, and the contribution made by a party to the welfare of the family (Lee Steere (1985) 10 Fam LR 431; FLC 91-626).
Finally, the Court has to evaluate the financial resources, means and needs of the parties and the other matters set out in section 75(2), so far as they are relevant (Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90-897). When determining what order it should make, the Court must be satisfied that in all the circumstances it is just and equitable to do so (section 79(2)).
There are two separate approaches to be taken in determining property matters, the global approach, as referred to in Norbis (1986) 161
CLR 513; 10 Fam LR 819; FLC 91-712, or the asset by asset approach. The global approach is the more common, although a particular case may suggest that an asset by asset approach is more likely to provide a fairer outcome. I am satisfied that the global approach is the more appropriate course to take in this matter.
The net property of the parties
The first step that has to be taken is to ascertain the value of the matrimonial assets. It was agreed that the husband’s legal costs should be added back into the asset pool for the purpose of these proceedings.
The parties agreed on the following gross assets:
a) R Road, E (occupies by the husband)
$520,000.00
b) Wife’s 1996 Daewoo motor car
$3,000.00
c) Husband’s 1992 Toyota Camry station wagon
$12,000.00
d) Husband’s 1962 Volkswagen
$15,000.00
e) Husband’s St. George Bank account
$34,967.00
f) Wife’s St. George Bank account
$300.00
g) Husband’s furniture and household effects
$10,000.00
h) Wife’s furniture and household effects
$1,500.00
i) Proceeds of sale of car due to wife
$500.00
j) Wife’s MLC Superannuation
$13,541.00
k) Wife’s AMP superannuation
$959.00
l) Wife’s Hesta superannuation
$1,068.00
m) Wife’s funds in solicitors’ trust account
$6,160.00
TOTAL
$618,995.00
Mr Campton, for the husband, submits that the property in T should be included as a matrimonial asset held by the wife. He referred me to the decision in Black & Kellner (1992) 15 Fam LR 343; FLC 92-287, where it was held that a party should not be able to take advantage of their failure to make a full disclosure of their assets. I am not convinced that the situation here is entirely parallel to that in Black & Kellner, as the wife has made no secret of the fact of the T property. She refers to it in paragraph 44 of her affidavit, although parts of that paragraph were excluded after objection. It would appear to me that Mr Campton may be on stronger ground when he suggests that the T property should at least be included as a financial resource for the wife.
Turning to the parties’ liabilities, Mr Campton for the husband disputes that two debts claimed by the wife should properly be included in the pool. The wife claims a personal loan from St. George Bank, which was taken out to cover a debt on the wife’s Visa Card incurred whilst she was visiting T. He submitted that the wife obtained the sole benefit of that debt.
Mr Campton also challenged the current amount of the wife’s Visa Card debt, saying that it has been increased since separation and cannot, therefore, be regarded as a contribution to the marriage. Thus, he submits, both debts, although existing, should be disregarded.
In reply to this submission, Mr Lynch for the wife submitted that the Court should consider the parties’ liabilities as at the present date. If one looks at the value of the liabilities as at the date of separation, it will be seen that shortly prior to separation the wife borrowed the money from the St. George Bank to pay the credit card debt that she had incurred. At the date of separation (2nd July 2002), the wife’s credit card debt stood at $1,225.99[1]. It is inappropriate, he submitted, to look at one party’s dealings in this way. This was not a short marriage; the parties cohabited for ten and a half years.
[1] Exhibit 6 – Visa Classic Account Statement dated 4 July 2002
In my view, the wife’s liabilities to which she deposed in paragraph 41 of her affidavit should be taken into account. These liabilities were in existence when the parties separated. The loan may have been taken out to cover a credit card debt, but that debt was incurred during the marriage. The wife owed money on her card at the date of separation.
I do not regard any amount that she has put on the card since separation as one that should be taken into account. I do not propose to take the wife’s loan from her sister, P K, into account. It was said to be for the purpose of assisting the wife with her legal expenses, and the wife’s liability to repay the debt to her sister seems to be very slight.
I find the parties’ liabilities to be:
a) Wife’s personal loan from St. George Bank
$5,000.00
b) Wife’s Visa Card debt
$1,226.00
TOTAL LIABILITIES
$6,226.00
By subtracting the liabilities of $6,226.00 from the gross asset value of $618,995.00, I arrive at a net figure of $612,769.00 for the matrimonial assets.
The contributions by the parties
In looking at the parties’ initial contributions, it seems clear that they favour the husband quite significantly. As I indicated earlier, the husband went into the marriage with the property at R Road E, two motor vehicles (one very old), a house full of furniture and about $120,000.00 in savings. The wife’s assets were relatively modest by comparison, being a Toyota motor car, which she had purchased for $2,700.00 early in 1991,[2] and a quantity of furniture.
[2] Wife’s affidavit sworn 31 October 2002, paragraph 10
The husband did not work during the marriage, but he received a disability pension. The wife worked, by making and selling Thai delicacies, and then by working for wages in her present employment, and received a carer’s pension. When the wife commenced working for wages, the pension was reduced.
There is no agreement about the number of visits to T, but subpoenaed material from the Department of Immigration and Multicultural and Indigenous Affairs (Exhibit 4) shows that the wife left Australia on four occasions between 26th January 1995 and 25th July 2002. The final trip was commenced on 7th July 2002, which was after the date of separation, but the other three took place as follows:
a)26th January to 30th March 1995;
b)10th December 1997 to 4th February 1998; and
c)8th July 2001 to 9th October 2001.
It will be seen that the visits, presumably all to T, were reasonably lengthy. The wife did not work in T, and presumably stayed with family, but she would have incurred some expenses over the visits, which kept her out of Australia for up to three months.
The wife’s daughter first arrived in Australia on 27th April 1995. She departed Australia six times between 28th March 1996 and
6th September 2000. The wife’s son is recorded as having arrived in Australia for the first time on 16th March 1997. He departed on four occasions, including his final departure on 1st May 2002.
It is the husband’s contention that he paid for most of these visits to T. It is hard to see that the wife would have had the income to pay for all or most of these trips herself. If she did, she would not have had much in the way of income to contribute to the running of the household. At the same time, the depletion in the husband’s savings over the term of the marriage indicates that he was constantly eating into his capital.
I am satisfied that the wife did make a contribution by way of homemaker. The husband, on his own evidence, clearly wishes to spend his life with a female companion. His first wife died on
15th May 1991, and he commenced cohabitation with the applicant in January 1992. He and the applicant separated on 2nd July 2002, and he commenced cohabitation with one V S in late November 2002. It appears that the longest he has gone without a live-in female companion since 1960 has been seven months.
The husband’s original contribution to the marriage has aptly been described by his counsel as “overwhelming”. The wife did not have a house, nor the wherewithal to purchase one. The husband had a house that appeared to be unencumbered and a significant amount of savings. The initial ratio of contributions would have favoured the husband to the extent of about 90 to 95%. Mr Campton for the husband has submitted that I should be guided by the decision of the Full Court of the Family Court in Pierce (1998) 24 Fam LR 377; (1999) FLC 92-844, where there was a similar imbalance of initial contributions in favour of the husband and a similar period of cohabitation. There are, of course, no children of this marriage.
I am satisfied that the husband’s contributions should be given substantial weight. I am satisfied that the contributions at this stage should be assessed as 80% by the husband and 20% by the wife.
Section 75(2) factors
Section 75(2) of the Family Law Act sets out a list of some 16 factors to be taken into account by the Court. Not all of these are relevant in every case, but I have considered their applicability in this case.
Under subsection 75(2)(a), the Court must consider the age and state of health of the parties.
The husband was born on 28th October 1928. He is aged 74 years and seven months. The wife was born on 18th May 1948. She is aged 55 years. The wife is apparently in good health, but the same cannot be said for the husband. He is an insulin-dependent diabetic. He has had surgery to his left hand, and will have to undergo surgery to his right hand in due course. He deposes to having two pins in his spine which restricts his movement and causes him pain. There was no challenge to the husband’s evidence about his health.
Under Subsection 75(2)(b), the Court must consider the income, property and financial resources of each of the parties. The wife works at the L L G R V, where she earned a gross amount of $364.00 for the fortnight 6th to 20th May 2003, according to her pay slip tendered as Exhibit 1. She also works for the C N H at B for 16 hours a week, where she is a nursing assistant. The husband has no employment. He receives an age pension of $213.00 per week and some interest from the St. George Bank in the sum of $10.00 per week.
The wife has financial resources by way of superannuation and an interest in the T property (although that property does not appear to be of any great significance in this case – the wife is an Australian citizen who appears to be committed to residing in Australia). The husband has no financial resources.
The wife has a capacity to earn income, but the husband does not. His age and state of health take him out of the workforce. In the decision of the Full Court of the Family Court in Clauson (1995) 15 Fam LR 693; FLC 92-595, Their Honours said at 81911:
“It has long been recognized that in most cases the most valuable “asset” which a party can take out of a marriage is a substantial, reliable, income-earning capacity: see Best and Best (1993) FLC 92-418 at 80,295.”
Subsection 75(2)(c) requires the Court to consider whether either party has the care and control of any children of the marriage. There are no children of the marriage.
Subsection 75(2)(d) requires the Court to consider the parties’ commitments to support themselves and other children. The wife deposed that she is sharing a flat with her daughter, J, who is an adult. The husband is sharing his accommodation with V S, who is in receipt of a pension. Neither party has the responsibility to support anyone else.
Subsection 75(2)(e) requires the Court to consider the parties’ responsibility to support any other person. Neither party has the responsibility to support any other person.
Subsection 75(2)(f) requires the Court to consider the eligibility of either party to receive a pension, allowance or benefit. The husband receives an age pension. The wife is not in receipt of any pension, allowance or benefit.
Subsection 75(2)(g) requires the Court to take into account the question of a reasonable standard of living. The wife is currently in a one-bedroom Flat with her adult daughter. They share the bedroom, so the accommodation would of necessity be cramped. The wife’s standard of living can be said to have reduced since the separation. The husband still resides in the former matrimonial home at E, so his standard of living would appear to be unchanged.
Maintenance (subsection 75(2)(h)). The wife is not seeking an order for spousal maintenance, nor are there any relevant factors under subsection 75(2)(j).
Subsection 75(2)(k) requires the Court to consider the duration of the marriage. The marriage and the cohabitation before the marriage lasted for ten years and six months. It does not appear to have had an adverse effect on the earning capacity of either party.
Subsection 75(2)(l) contemplates the protection of a party’s role as a parent. This is not relevant in this matter.
Subsection 75(2)(m) requires the Court to take into account whether either party resides with another person. The wife resides with her daughter. She said in her affidavit that her daughter pays rent of $155.00 per week for the flat, and she pays her daughter the sum of $70.00 per week.
The husband has now formed a de facto relationship with V S, who is aged 62 years and in receipt of an age pension. The husband deposed that they share the cost of food and he meets all other household expenses.
Subsection 75(2)(n) requires the Court to consider the effect of any order to be made pursuant to Section 79. I intend to order that the husband pay a sum of money to the wife. The husband fears that an order may force him to lose his house, and I accept that he should be given an opportunity to pay her out without having to place the property on the market. A lump sum of money would assist the wife either to obtain rental accommodation of her own, or assist her and her daughter to find a more spacious flat to rent.
Subsection 75(2)(na) requires the Court to consider relevant child support matters. There are no children of the marriage.
Other facts and circumstances are relevant under the provisions of subsection 75(2)(o). There are not, to my knowledge, any other relevant matters to be considered by the Court. I am aware that an Apprehended Violence Order was made against the husband at the Downing Centre Local Court on 10th January 2003. The Order is said to be in force for a period of 12 months from that date.[3] The existence of the Apprehended Violence Order does not raise any relevant issues.
[3] Wife’s Case Summary dated 20th May 2003.
I note that the Court should not attempt to give an individual weight for each section 75(2) factor, even though it I clear that some factors will clearly be more significant than others. Whilst these factors are particularly important where the asset pool is very small, they should not be allowed to dominate the Court’s decision-making process to the exclusion of the contribution factors (Robb (1994) 18 Fam LR 489; (1995) FLC 92-555). I am mindful of the fact that the process of weighing the factors is not an accounting exercise, and that it is more a process of balancing all the factors as a whole (Brandt (1997) 22
Fam LR 97; FLC 92-758).
Having considered the section 75(2) factors as a whole in the light of the size of the asset pool and the finding as to the parties’ contributions, I consider that an adjustment of 5% in the husband’s favour is called for, bringing the division between the parties as to 85% to the husband and 15% to the wife. The husband’s age, state of health and lack of earning capacity amount to a reason for adjusting the contribution-based entitlement of the husband.
The final matter to be considered is whether an adjustment of this nature would be “just and equitable” in all the circumstances, having regard to the overall asset position of the parties? It has been held that section 79(2) does not give the Court an independent power to effect “palm tree justice” and what is just and equitable depends on a proper consideration of the factors set out in section 79(4) (W (1980) 6 Fam LR 538; FLC 90-872 at 75, 528).
The husband’s fear that he may lose his house is a matter to be considered. The wife admitted in cross-examination that she did not wish to see the husband ‘out on the street’ but she must also be put in a position where she can receive her entitlement. In the circumstances,
I consider that the husband should be given the opportunity to raise the funds to pay the wife’s claim without necessarily having to sell the former matrimonial home. At the same time, as the husband has some funds at his disposal, he should make a down payment to the wife, which would assist her to meet her expenses.
Conclusions
The net total of the assets is $612,769.00. The wife will receive 15% of the net property of the parties, which amounts to $91,915.00. The husband will receive 85% of the net property, which amounts to
$520, 854.00.
The entitlement of the wife will comprise the following:
a) Daewoo motor car
$3,000.00
b) Wife’s St. George Bank account
$300.00
c) Wife’s furniture and household effects
$1,500.00
d) Proceeds of sale of car due to wife
$500.00
e) Wife’s superannuation
$15,568.00
f) Wife’s funds in solicitor’s trust account
$6,160.00
h) Payment by husband
$71,113.00
TOTAL
$98,141.00
Less Liabilities:
a) Personal loan from St. George Bank
$5,000.00
b) Visa Card debt
$1,226.00
TOTAL
$6,226.00
BALANCE
$91,915.00
The entitlement of the husband will comprise the following:
a) Property at R Road, E
$520,000.00
b) Husband’s Toyota Camry station wagon
$12,000.00
c) Husband’s 1962 Volkswagen
$15,000.00
d) Husband’s furniture and household effects
$10,000.00
e) Husband’s St. George Bank account
$34,967.00
TOTAL
$591,967.00
Less Liability – payment to wife
$71,113.00
I propose to order that the husband pay the amount of $71,113.00 in two instalments. First, he is to pay to her the sum of $12,500.00 within one month, and he will have to pay the wife interest if he does not pay the money within that time. Second, he is to pay the balance, namely $58, 613.00, within twelve months from the date of these orders. Any amount unpaid after twelve months will attract interest. If the husband is unable to pay the balance owing to the wife after twelve months then he will be obliged to sell the house at E.
It is for these reasons that I make the orders identified at the start of this judgment.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 12 June 2003
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