Reilly and Reilly

[2015] FCCA 2513

FEDERAL CIRCUIT COURT OF AUSTRALIA

REILLY & REILLY [2015] FCCA 2513

Catchwords:
FAMILY LAW – Property – distribution of property.

Legislation:

Family Law Act 1975, ss.75(2), 79

In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595

Applicant: MS REILLY

Respondent: MR REILLY

File Number: PAC 4844 of 2013

Judgment of: Judge Donald

Hearing dates: 4 & 5 May 2015

Date of Last Submission: 5 May 2015

Delivered at: Parramatta

Delivered on: 23 September 2015

REPRESENTATION

Counsel for the Applicant: Mr J. Longworth

Solicitors for the Applicant: Shephard & Shephard

The Respondent appeared in person

ORDERS

1. That the Respondent Husband pay to the Applicant Wife the sum of $310,391 within 60 days of the date of these Orders.

2. That contemporaneously with the payment to the Applicant Wife of the sum referred to in Order (1):

   (a)The Applicant Wife do all things and execute all documents necessary to transfer to the Respondent Husband all her right title and interest in the former matrimonial home situate and known as Property J, New South Wales, Folio Identifier (omitted).

   (b)The Respondent Husband pay all moneys (if any) and do all things necessary to obtain the discharge of mortgage registered number (omitted) to (omitted) Bank secured upon the title of the former matrimonial home.

3. That if the Respondent Husband fails to pay to the Applicant Wife the sum referred to in Order (1) herein within the prescribed time or if the Respondent Husband fails to obtain the discharge of mortgage pursuant to Order (2) herein within the prescribed time, then within a further 30 days the Respondent Husband and the Applicant Wife do all acts and things and sign all necessary documents to effect the sale of the former matrimonial home.  In this regard:

   (a)The former matrimonial home shall be listed for sale by private treaty with such agent as the parties may agree and in the absence of agreement within 74 days of the date of these orders then with an independent agent trading in the (omitted) area, to be nominated by the Applicant Wife (“the appointed agent”) at a list price as the parties agree in writing, and in the absence of agreement within 14 days of the nomination of the appointed agent at the list price determined by the agent. 

   (b)If the former matrimonial home is not sold within 5 weeks of first listing then the former matrimonial home is to be offered for sale by public auction through a licensed public auctioneer agreed by the parties or failing agreement to be appointed by the Applicant Wife.  The reserve price is to be agreed between the parties and if there is no agreement within 14 days of the auctioneer being appointed the reserve price is to be determined by the Applicant Wife.

   (c)The following terms and conditions are to apply to the sale of the former matrimonial home:

   (i)The parties shall have authority to conduct the sale and to receive and disburse sale monies;

   (ii)The parties are ordered to jointly instruct solicitors to act on their behalf in the sale and if the parties are unable to agree as to the firm of solicitors within 74 days of the date of these orders, the Applicant Wife shall nominate a solicitor to act on behalf of the parties;

   (iii)The parties shall have authority to approach real estate agents and to make any necessary arrangements for the sale of the former matrimonial home.

   (d)That if following any attempted sale of the former matrimonial home by public auction, the former matrimonial home does not reach the reserve price, and the parties are unable within 7 days of the date of the auction to agree as to the sale of the former matrimonial home by private treaty at a reduced price, then the parties shall list the former matrimonial home for sale by way of public auction and the terms and conditions set out herein in relation to the first public auction shall apply mutatis mutandis, save that any further auction shall not take place earlier than 8 weeks after the first and at such public auction the parties shall, if the reserve is not reached, negotiate with the highest bidder and sell the former matrimonial home.

   (e)That subject to Order (3)(f), both parties are ordered to attend any auction sale of the home referred to in Order (3)(b) and in the event that the former matrimonial home does not reach the reserve price, either agreed to by the parties or determined in accordance with these orders, then the parties are ordered to enter into negotiations with the prospective purchaser for sale by private treaty at a price either to be agreed to by the parties in writing, or 5% below the reserve price if there is no agreement.

   (f)That in the event that either party is unable or unwilling to attend any auction sale of the former matrimonial home, then that party is ordered to ensure that they are either represented at the auction sale by an attorney appointed under a General Power of Attorney authorised to do all things they may otherwise have done or that they are and remain in direct communication by telephone (or otherwise) with the real estate agent present at the auction sale for the whole of the auction sale.

   (g)That in relation to the sale of the former matrimonial home, whether by private treaty or public auction, each party is ordered to:

   (i)Execute any documents necessary to effect the conduct and completion of the sale;

   (ii)Cooperate in all reasonable ways with the real estate agent, solicitors and prospective purchasers in relation to such sale including the making available of the key, allowing for inspection of the former matrimonial home at all reasonable times requested by the real estate agent and ensuring that the home is in a neat and clean condition at the time of inspection by prospective purchasers.

   (h)That upon completion of the sale of the former matrimonial home pursuant to these Orders or otherwise, the parties are ordered to do all acts and things necessary to cause the proceeds of sale to be paid and distributed in the following manner and priority:

   (i)In payment of fees due for the nomination of a real estate agent, real estate agent’s commission and legal costs and disbursements incurred in relation to the said sale;

   (ii)In payment of fees due for the nomination of a valuer and valuation fees, if any;

   (iii)Adjustment of rates, if any;

   (iv)In payment of all monies owing in relation to the mortgage;

   (v)In payment to the parties of all reasonable costs incurred by either of them to prepare and facilitate the sale of the former matrimonial home provided that each party shall produce to the other copies of receipts, invoices or proof of payment;

   (vi)To the Applicant Wife such sum so that, taking into account all other assets and resources she retains by virtue of these Orders, the Applicant Wife receives on an overall basis 55% of the parties net assets and liabilities.

4. That:

   (a)Pending the payment to the Applicant Wife of the sum ordered herein, or pending the sale of the former matrimonial home in the alternative, the Respondent Husband has the right to occupy the former matrimonial home and he shall pay and be responsible for all repayments of principal and interest related to the mortgage as well as any rates, charges and taxes related to the use and occupation of the former matrimonial home.

   (b)In the event that at the date of completion of any sale of the former matrimonial home there are any outstanding such mortgage repayments, rates, charges or taxes, then an amount equal to 55% of the total sum required to pay those amounts shall by deducted from the monies payable to the Respondent Husband from the sale proceeds and be paid instead to the Wife.

5. That the Respondent Husband is ordered to do all acts and things and sign all documents necessary to indemnify and keep indemnified the Applicant Wife from:

   (a)All liabilities and repayments associated with any debt, loan, mortgage or other facility secured upon the former matrimonial home, whether registered on the title or not.

   (b)All rates, taxes levies and all other outgoings including utility expenses relating to the former matrimonial home.

6. That the Respondent Husband is hereby declared the sole legal and beneficial owner of his shareholdings in the company known as (omitted) Pty Ltd (“the (omitted)”).

7. That the Respondent Husband indemnify and thereafter keep indemnified the Applicant Wife in respect of all and any liability incurred by either of them in respect of the (omitted) Pty Ltd including, but not limited to:

   (a)Liability in relation to loan accounts or pursuant to a guarantee or personal covenant(s);

   (b)Liability incurred at the suit of any of the aforementioned entities or their shareholders, unit holders or office bearers;

   (c)Any taxation liability, howsoever such liability arises and in whatever capacity such liability is incurred.

8. That the Respondent Husband and the Applicant Wife are each solely entitled to the exclusion of the other to all other property and resources not already referred to in these orders in the possession of that party on the date of these orders.

9. That save and except as these orders provide to the contrary, each of the parties shall, by this order, mutually release the other from all debts owing from one to the other.

10. That each party, as against the other, is solely liable for all and any costs, debts, expenses or liabilities of any nature whatsoever attaching to any asset or financial resource to which that party is entitled pursuant to these orders and that the liable party indemnify and keep indemnified the other party in respect of all and any such costs, debts, expenses or liabilities.

11. That each party is at liberty to apply on 7 days’ notice in relation to the implementation of these orders.

12. That in the event that either party refuses or neglects to comply with the provisions of these Orders then the Registrar of a Court exercising competent jurisdiction shall be appointed pursuant to section 106A(1) of the Family Law Act 1975 to execute all deeds and documents in the name of the Respondent Husband and/or the Applicant Wife and do all acts and things necessary to give validity and operation to the said orders.

IT IS NOTED that publication of this judgment under the pseudonym Reilly & Reilly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4844 of 2013

MS REILLY

Applicant

And

MR REILLY

Respondent

REASONS FOR JUDGMENT

Applications

1. This is a matter in which the applicant wife has sought property orders whereby the former matrimonial home would be sold; and that the net proceeds of sale be divided such that the wife would receive a total property distribution of 55% and the husband 45%.

2. The wife has also sought orders whereby the husband would be the sole owner of his shareholdings in the (omitted); for an equal distribution of the household furniture and content; and certain other machinery and consequential orders.

3. The husband, in a minute of proposed orders provided to the court at the hearing, has sought orders whereby he pay to the wife a cash payment representing 35% of the equity in the former matrimonial home and a cash payment of $31,000 from his (omitted) Superannuation Fund.  He has also sought orders whereby each party would retain a motor vehicle; that he would become the sole owner of (omitted) Pty Ltd; that matrimonial furniture be made available to the wife; that if the former matrimonial home is sold he is to receive 65% of the net proceeds; and that certain amounts be removed from the asset pool.

4. An order was made by consent at the conclusion of the hearing whereby there would be an equal division of furniture and contents of the former matrimonial home.

Background

1. The wife is aged 65 years and the husband 58 years.  Each of the parties has adult children from earlier marriages.

2. The parties commenced their relationship in (omitted) 1985 and commenced cohabitation in 1988.  Mr D, a child of the parties, was born on (omitted) 1991 and is, accordingly, 24 years of age.  The wife ceased full time employment in anticipation of the birth of their child.

3. The parties purchased the property at Property J in 1994.  Joint savings and a loan from the (omitted) Bank financed this purchase.

4. In January 1996, the husband was retrenched from his employment as a (occupation omitted) with (employer omitted).  As a consequence of this retrenchment, he received a redundancy package in the amount of $51,259.93.  He commenced his own (omitted) business through the company (omitted) Pty Ltd.  Both the husband and the wife were directors and shareholders of that company.

5. The wife commenced performing work for (business omitted) in 1997 and, in November 2009, re-commenced paid employment.

6. In May 2010, the Husband made a $50,000 payment to the loan secured by the mortgage over the home.  These funds flowed from an inheritance received by him.  He later made a further deposit of $15,000 in reduction of the same loan.  The husband ceased making further payments in reduction in the loan amount in August 2010 and thereafter met the loan obligations by the use of the redraw facility on the loan.

7. The wife obtained casual employment as a (occupation omitted) at (employer omitted) in March 2012 but subsequently ceased that employment as discussed below.

8. The parties separated under the one roof in May 2013 and the wife commenced these proceedings in November 2013.

9. The wife moved out of the former matrimonial home in February 2014 and commenced renting accommodation on the (omitted), New South Wales.  At that time she ceased working in Sydney and commenced receiving a Centrelink allowance.  The Wife resigned her position as director and secretary of (omitted) Pty Ltd after the husband and wife physically separated in February 2014.[1]

   [1] Affidavit of the Husband sworn 21 April 2015 para.27

10. In March 2014, the husband made an application to the trustee of his superannuation fund to have funds released.  He received the amount of $42,000.[2]  No advice was given to the wife of this application.  I do accept, however, the evidence[3] of the husband as to the use made of these funds and find that such use was not inappropriate or of a nature that there should be an “add back” into the pool of property available for distribution between the parties.

    [2] Affidavit of the Husband sworn 21 April 2015 para.9

    [3] Affidavit of the Husband sworn 21 April 2015 paras.18 to 25

Evidence and findings of fact

1. Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses.  In that which follows, statements of fact constitute findings of fact.

2. In considering the matter, I have had regard to the affidavits referred to in the course of the proceedings, the oral evidence given in the proceedings, the exhibits tendered in the proceedings and to the submissions made by or on behalf of each of the parties.

The Law

1. Section 79 of the Family Law Act defines the Court’s powers in determining applications for property settlement. Sub-section 2 of s.79 provides that:

   “The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”

2. Section 79(4) sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:

   a)The financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;

   b)The contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;

   c)The effect of any proposed order upon the earning capacity of either party;

   d)The matters referred to in sub-section 75(2) as far as they are relevant;

   e)Any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and

   f)Any child support payable.

3. The approach to the determination of an application under s.79 is well established by authority (In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595) with the process ordinarily involving a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c). Thirdly, evaluating the matters contained in s.75(2) insofar as they are relevant.

The “Just and Equitable” Requirement

1. The settled view in relation to the process to be adopted by the Court had been that in determining what order the court should make under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s.79(2)]. It has been stated that it is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.

2. Recently, however, the High Court of Australia examined the operation of section 79 of the Family Law Act.[4]  Relevantly, some attention was focussed by the High Court on the 4th step or the “just and equitable” requirement.  Having regard to that decision, there appears to be some doubt as to whether, after taking into account the various factors identified, there is a need to then consider whether the orders otherwise proposed are just and equitable.  Rather, it would seem that there is a separate requirement to consider whether it is just and equitable to make any order in relation to the property of the parties.

   [4] Stanford v Stanford [2012] HCA 52

3. In that regard, taking into account the fact that each of the parties has made application for orders of this type; that the parties have separated; and that the community use by them of the assets of the marriage has ceased, there is a sufficient basis for it to be found that it is just and equitable to make orders for property settlement. 

4. Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.

5. In the Marriage of Ferraro (1992) 16 Fam LR 1 the Full Court said at page 23:

   “A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in s.79 proceedings.  That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paragraphs (a)–(c) of s.79(4) and then consider the matters in paragraphs (d)‑(g), more especially paragraph (e) which takes up by reference the provisions of s.75(2) which are generally referred to as the “Section 75 Factors.”

6. The Court is therefore required to determine the following matters:

   a)Whether it is just and equitable to make orders regarding the property of the parties in the particular circumstances revealed in the matter;

   b)The assets, liabilities and financial resources of the parties to the marriage;

   c)The relevant contributions of each of the parties;

   d)The means and needs of each of the parties and the other prospective components to the claims of each of the parties pursuant to s.75(2) and then to identify if any alteration should be made to the entitlements of either of the parties having regard to the s.75(2) factors.

1. After determining the entitlement of each of the parties in relation to the alteration of property interests, the Court must then consider any application for spousal maintenance if relevant.  Such application for spousal maintenance is not made here.

Assets, Liabilities and Resources

1. I find that the following are the assets, liabilities and resources of the parties that are available for distribution between them:

Assets
Property J (J)	$500,000[5]
Funds in (omitted) bank account (W)	$50[6]
Funds in (omitted) Bank account (H)	$1,500[7]
Nissan motor vehicle (W)	$4,000[8]
Holden Commodore motor vehicle (H)	$7,400[9]
(business omitted)  (H)	$1[10]
(business omitted) (H)	$3,382
(business omitted) bank account (H) [11]
Household contents (W)	$2,000[12]
Household contents (H)	$2,000[13]
Superannuation –(omitted) (W)	$8,225[14]
Superannuation – (omitted) Super (H)[15]	$91,270
Total Assets	$619,828
Liabilities
Mortgage – (omitted) Bank (J)	$29,526[16]
Loan – (omitted) Finance (H)
Mastercard (H)
(omitted) Visa facility (H)
Total Liabilities	$29,526
Net Assets	$590,302

[5] Affidavit of the Valuer Mr J filed 27 April 2015

[6] Wife’s Financial Statement para.37

[7] Husband’s Financial Statement para.37

[8] Wife’s Financial Statement para.40

[9] Husband’s Financial Statement para.40

[10] Husband’s Financial Statement para.43

[11] Transcript

[12] Wife’s Financial Statement para.42

[13] Husband’s Financial Statement para.42

[14] Wife’s Financial Statement para.45

[15] Exhibit A6

[16] Husband’s Financial Statement para.46

Section 79(4)(a) to (c)

1. I now turn to the second of the steps in the exercise under s.79, namely an assessment of the parties’ contributions within the context of s.79(4)(a) to (c). These provisions are as follows:

   Section 79(4)  In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –

   a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

   b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

   c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including contribution made in the capacity of homemaker or parent.

2. The Full Court of the Family Court in the Pierce v Pierce (1999) FLC 92–844 at page 85, 873 said as follows:

   “In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution.  It is necessary to weight the initial contributions by a party with all other relevant contributions of both the husband and the wife.  In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.  In the present case that use was a substantial contribution to the purchase price of the matrimonial home…”

3. I find that as at the commencement of cohabitation, neither party had any significant assets, financial resources or liabilities.[17]

   [17] Affidavit of the Wife affirmed 6 November 2013 para.24

4. I accept also that as at the commencement of cohabitation, the wife was employed as an (occupation omitted) with an (employer omitted).  Her salary was approximately $250 per week.[18] 

   [18] Affidavit of the Wife affirmed 6 November 2013 para.16

5. The husband was employed at the (employer omitted) as a (occupation omitted) and then appointed as (occupation omitted) of the (employer omitted) in 1988.  He was then appointed as (occupation omitted) of the (employer omitted).[19]  The wife concedes that the husband worked throughout the marriage on either an employed or self-employed basis.

   [19] Affidavit of the Husband sworn 28 January 2013 paras.22 and 23

6. I also note that the wife resigned from full time employment prior to the birth of the parties’ child.  She did not recommence paid employment until November 2009.  I am satisfied, however, that during this period the wife was the primary carer for the child and was also the primary homemaker.  In addition, the wife assisted the husband in the husband’s (omitted) business from the date of its establishment in 1996.  She did not receive payment for her assistance in that business.  It was from this time that the husband worked in that business after being retrenched from the (employer omitted) for which he had previously worked.

7. I also note the concession of the husband in cross-examination that whatever the wife earned in the course of the marriage was contributed to the household.[20]

   [20] Transcript 4 May 2015 p.49

8. The wife recommenced paid employment in November 2009 when she obtained employment as a (occupation omitted).  She earned between $200 to $400 per week in that role.[21]  In March 2013 the wife commenced her role as a casual (occupation omitted).  She earned between $300 to $500 per week in that employment.

   [21] Affidavit of the Wife affirmed 6 November 2013 para.22

9. The parties purchased the former matrimonial home at Property J in 1994.  The purchase price of that property was $125,990 and it was purchased with savings and a loan from (omitted) Bank in the amount of $119,000.[22]  A further amount of about $15,000 was spent on improvements to that property.

   [22] Affidavit of the Husband sworn 28 January 2013 para.33

10. The husband was made redundant in January 1996 and received a redundancy package net in the sum of $51,259.53.  From that sum, the husband paid the amount of $40,000 off the home loan in January 1996.  On 20 February of the same year, the husband received a further sum of $34,455 from his retirement fund.  A further preserved amount was also received in the amount of $19,261.[23]

    [23] Affidavit of the Husband sworn 28 January 2013 paras.39 to 41

11. After the husband’s mother passed away on (omitted) 2007, the husband received approximately $90,000 by distribution from her estate.  The husband also received what he has referred to as a “gift” of $15,000 from the estate of another in August 2010.[24]  I do note that the wife disputes that this was a gift and asserts that it was, instead, income.  Having regard to the evidence before me but particularly the cross-examination of the husband, I am satisfied that it was income earned by the husband.[25]

    [24] Affidavit of the Husband sworn 28 January 2013 paras.43 and 44

    [25] Transcript 4 May 2015 paras.47 and 48

12. I accept the wife’s submission that during the marriage the husband was the major breadwinner and she was the major homemaker and parent.[26]  I also accept, however, that the husband did contribute to tasks around the home as detailed by him in his first affidavit.[27]

    [26] Affidavit of the Wife affirmed 6 November 2013 para.40

    [27] Affidavit of the Husband sworn 28 January 2013 paras.64 to 71

13. I do note the evidence of the husband as to his payment of various outgoings related to the former matrimonial home and after the date the wife left that home.  I also note, however, that the husband has continued to have the use of that home whereas the wife has had to make other arrangements for her accommodation in circumstances where she has had little by way of income.  This use of the home by the husband has included providing shelter for his two daughters.

14. The payments made by the husband post separation included a credit to the account secured by mortgage over the former matrimonial home.  The evidence of the husband is that he obtained a release of funds from his superannuation fund and used a part of that for the purpose of paying down the mortgage.  It is the case, therefore, that the husband has used funds accrued in the course of the marriage to provide a benefit to himself and members of his family post separation.

15. Taking all these matters into consideration leads me to the view that, as a result of their respective contributions, the assets of the parties should be apportioned 50% to the wife and 50% to the husband.  This after balancing the direct and indirect contributions at the various stages of the marriage and as discussed above.

Section 79(4)(d) to (g)

1. I now turn to the third step in the process of apportioning the assets available for distribution between the parties.

Section 79(4)(d) - The effect of any proposed order upon the earning capacity of either party to the marriage

1. The orders to be made in these proceedings will not impact upon the earning capacity of either party.

Section 79(4)(e) - The matters referred to in sub-section 75(2) so far as they are relevant

a)          The age and state of health of each of the parties.

1. I note that the wife is aged 65 years and that, according to her first affidavit, she was in reasonable health.[28]  Her most recent affidavit, however, refers to depression and difficulty standing for long periods, difficulty bending down and difficulties with concentration.[29]

   [28] Affidavit of the Wife affirmed 6 November 2013 para.2

   [29] Affidavit of the Wife affirmed 20 April 2015 paras.48 and 52

2. It is her evidence that she could not afford the costs of producing evidence from her treating psychologist in relation to her mental health issues but her oral evidence given in the course of the hearing was that she had not seen this psychologist since before Christmas 2014 and that was because she was “feeling better”.[30]  I, therefore, place no weight upon her psychological condition.  The physical difficulties that she faces, however, are referred to and taken into account when discussing below the capacity of the Wife for appropriate gainful employment.

   [30] Transcript 4 May 2015 p.20

3. The husband is aged 58 years and has described his health as “reasonable”.[31]

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.

[31] Affidavit of the Husband sworn 28 January 2014 para.2

1. The husband is the sole director and shareholder of (omitted) Pty Ltd.  I do note that the wife has acknowledged the downturn in income flowing from the husband’s business.  The wife noted in her affidavit that the husband discontinued making mortgage payments from around 6 August 2010 and that the husband’s earnings declined.  That decline was such that the parties struggled to pay their bills on time.[32]

   [32] Affidavit of the Wife affirmed 6 November 2013 para.33

2. As to the husband’s business, it is the wife’s evidence[33]:

   I was a joint director, secretary and shareholder of the company.  My directorship ceased in around 2010 when the business started to decline during the Global Financial Crisis and many of his previous customers moved on.  There are no other employees of the company.  The business has traded poorly since August 2010 and so far as I am aware does not own significant plant or equipment.  I have not arranged for an independent valuation of the business as I do not believe it is of significant value.

   [33] Affidavit of the Wife affirmed 6 November 2013 para.38

3. On the evidence before me, I am satisfied that this company does not provide an income to the husband.

4. It is the husband’s evidence that he is otherwise unemployed and seeking alternative employment.[34]  He is in receipt of a carer payment and carer allowance.  He is the carer for his daughter Ms R, who is living at the former matrimonial home with the husband.

   [34] Affidavit of the Husband sworn 28 January 2014 para.3

5. The husband has a (omitted) certificate from a (omitted) Institution.  He has no formal tertiary qualifications.[35]  It is his evidence that he cannot readily obtain employment in the (omitted) sector as he is unlicensed and unregistered.[36]

   [35] Affidavit of the Wife affirmed 6 November 2013 para.6

   [36] Transcript 4 May 2015 p.66

6. The wife is currently in receipt of a Centrelink Newstart allowance and receives approximately $700 per fortnight.[37]  In her most recent affidavit she has referred to mental health and other health problems that limit her opportunity for employment.  Those other health problems include difficulty standing for long periods, difficulty bending down and difficulty in concentrating for long periods.  I also note that the wife has made numerous attempts at obtaining employment.[38]  She was not successful in that regard.

   [37] Affidavit of the Wife affirmed 20 April 2015 para.46

   [38] See Exhibit A1

7. I take into account those health difficulties currently faced by the wife.  I note her age.  I note the extended period during which she was the primary homemaker and parent instead of participating in the workforce.  In those circumstances, I accept that she is unlikely to find employment in the future.

8. The husband does have a qualification in the (omitted) industry.  He is younger.  He does not suffer from significant health problems.  Whilst he is a carer for his adult child, Ms R, I am not satisfied that this is likely to be an arrangement of long standing duration and given the evidence before the court, that this adult child’s future in the home of the husband is uncertain.

9. I am satisfied that this matter favours an adjustment in favour of the wife.

c)Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years.

1. Neither party has the care or control of a child that has not attained the age of 18 years.

d)Commitments of each of the parties that are necessary to enable the parties to support:

i)      himself or herself;

ii)a child or another person that the party has a duty to maintain.

1. I accept the evidence of the wife that she has a total personal expenditure of approximately $610 per week.[39]  The wife does not have a duty to support any other person.

   [39] Wife’s Financial Statement affirmed on 24 April 2015

2. I also accept the husband’s evidence of the amount required by him for his personal expenditure.  This amount is $488 per week.[40]  I note that he has two daughters living him, one of whom has an autistic foster child.  Additional commitments are incurred in relation to those adult children.  The husband is the carer for his adult child Ms R.

   [40] Husband’s Financial Statement sworn 21 April 2015

3. I also note, however, that each of the husband’s daughters are in receipt of a government provided pension or allowance.  The husband asserts that he “does not see any of it – that’s their business”.[41]  I accept the submission of the wife, however, that the husband does not have a duty to maintain these adult children.

   [41] Transcript 4 May 2015 p.51

4. A consideration of this matter does not impact upon the consideration for further adjustment.

e)          The responsibilities of either party to support any other person.

1. The wife does not have responsibility to support any other person.  I again note that the husband has two adult daughters living with him, one of who has an autistic foster child.  One of those daughters is in receipt of a pension and the other is unemployed.  The husband is the carer for his daughter Ms R.

2. I am also satisfied, however, that the period during which the husband’s children are to live with him is unclear.  The preponderance of evidence before the court indicates that the adult child Ms R is in a better state then she has been for some time and that she is only staying with the husband for a short time.[42]  Similarly, in relation to the husband’s other daughter, Ms M, there is an application before the appropriate authorities for housing in special circumstances.[43]

   [42] Exhibit R2

   [43] Exhibit R4

3. I am not satisfied that either of the husband’s daughters are living with the husband on a permanent basis.  In addition, I note the pension or government allowance that each is receiving.

4. I am satisfied that a consideration of this matter does not impact upon the question of further adjustment being considered by the Court.

f)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 any other country; or

ii)any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside Australia;

iii)and the rate of any such pension, allowance or benefit being paid to either party.

1. I note the receipt by the wife of benefits from Centrelink as detailed elsewhere in these Reasons.  The husband is in receipt of a carer payment and carer allowance.[44]

g)Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable.

[44] Affidavit of the Husband sworn 21 April 2015 para 29

1. The pool of property available for distribution between the parties, coupled with their incomes makes it likely that each party will have to maintain a modest lifestyle into the future.  Otherwise this matter is noted.

h)The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

1. This is not a matter in which either party seeks maintenance.

j)The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

1. This is not a matter in which either party seeks maintenance.

k)The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.

1. This is not a matter in which either party seeks maintenance.

l)The need to protect a party who wishes to continue that party’s role as a parent.

1. This matter is not relevant to these proceedings.

m)If either party is cohabiting with another person – the financial circumstances relating to the cohabitation.

1. Neither party is cohabiting with any other person.

na)Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

1. This matter is not relevant to these proceedings.

o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

1. There are no further facts or circumstances which the justice of the case requires they be taken into account. 

Section 79(4)(f) - Any other order made under this Act affecting a party to the marriage or a child of the marriage

1. This matter is not relevant to these proceedings.

Section 79(4)(g) - Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

1. This matter is not relevant to these proceedings.

Conclusion

1. As noted above, a consideration of the matter on a contributions basis has resulted in a determination that there should be an equal distribution between the parties.

1. I now take into account my discussion of the further matters referred to above.  I take particular note of the ages of the parties; the capacity for employment of each of them and their states of health.  I am satisfied that there should be further adjustment in favour of the wife in the amount of 5%.

2. This means that the wife should receive 55% of the net assets and the husband 45%.  In money terms, she should receive net assets to the value of $324,666.  She currently has net assets in her exclusive possession totalling $14,275.  This means, in turn, that she must receive an additional $310,391.  This must flow to her either by payment by the husband or by a share of the sale proceeds of the former matrimonial home.

3. I decline to make orders providing for the allocation to the wife of part of the husband’s superannuation in partial satisfaction of the amount determined for distribution.  I do this as the wife is in difficult financial circumstances and requires the sum.

4. I note the desire of the husband to retain the former matrimonial home.  Given the current financial circumstances of the husband and his current lack of employment, I am doubtful that the husband will be able to gather sufficient funds to pay to the wife in satisfaction of her entitlement pursuant to these findings.  He should, however, have that opportunity.

5. The time in which he should be able to do that, however, should be limited given the difficult financial circumstances in which the wife is currently living.  The husband will be allowed 60 days from the date of these orders to comply with the necessary order.  Otherwise the home will be sold in accordance with the mechanism submitted by the husband.

6. After having taken into account all of the Reasons appearing above, I am satisfied that the orders appearing at the commencement of this judgment are fair.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Donald

Date:  23 September 2015