Rickard and Rickard
[2008] FamCA 109
•18 February 2008
FAMILY COURT OF AUSTRALIA
| RICKARD & RICKARD | [2008] FamCA 109 |
| FAMILY LAW – PROPERTY – Balancing contributions |
| Family Law Act 1975 (Cth) |
| Kennon and Kennon (1997) FLC ¶92-757 |
| APPLICANT: | Mr Rickard |
| RESPONDENT: | Mrs Rickard |
| FILE NUMBER: | SYF | 4372 | of | 2006 |
| DATE DELIVERED: | 18 February 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 21-22 January 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mater |
| COUNSEL FOR THE RESPONDENT: | Mr Cook |
Orders
Each of the husband and the wife be declared as against the other the legal and beneficial owner of the property owned by them.
The wife is to quit occupation of the premises situate at and known as N within 28 days of the making of these orders.
Contemporaneously with the wife vacating the former matrimonial home the husband to pay to the wife the sum of $135,000.00.
IT IS NOTED that publication of this judgment under the pseudonym Rickard & Rickard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4372 of 2006
| Mr Rickard |
Applicant
And
| Mrs Rickard |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter is one in which a later marriage was undertaken by people of differential age later in life for the husband. The husband comes before the court when he is aged 90 and unwell seeking orders for the adjustment of the parties’ property rights when the wife is aged 67 and also has health problems.
Uncontested facts
The husband was born in July 1917 and is presently aged 90 years and is retired.
The wife was born in May 1940 and is presently aged 67 years and is retired.
The husband suffers from a number of ailments including peripheral neuropathy, urinary retention, osteoporosis, diabetes, sight and hearing impairment and is described as legally blind.
The wife suffers from a number of disorders including hearing impairment, anxiety and elevated blood pressure.
The parties married in November 1981.
There are no children of the marriage.
The wife was previously married and of that marriage there are two adult children namely N born in 1962 and Y born in 1963.
The husband was previously married and of that marriage there was one adult child namely M born in 1962.
None of the children of the parties’ prior marriages lived with them for any significant period of time following their marriage.
Each of the husband and the wife had assets at the date of the marriage.
Each of them throughout the marriage kept in their ownership those assets and assets acquired utilising them. They maintained separate bank accounts and savings.
Save for payments made by the husband to the wife as a contribution to housekeeping the wife received and kept her own income and applied it to her purposes and the husband received his own income and applied it for his purposes.
The husband was solely responsible for payment of the outgoings of the former matrimonial home in which the parties lived until the husband departed the home in October 2006 and took up residence in a nursing home.
Part of the matrimonial home was let during the marriage and the income derived from the letting received by the husband.
The wife has had sole occupancy of the matrimonial home since October 2006 and the husband has been obliged to apply capital and income to the provision of his current occupancy. Capital in the sum of about $197,000 on deposit with the nursing home which receives the interest derived from it and income at the rate of $215 per week. He has continued to meet the outgoings of the home.
It is agreed that the financial contribution of the husband to the acquisition, conservation and improvement of the assets of the parties or either of them was higher than that of the wife.
That the present assets of the parties are as follows:
| ($) | |
| · N property (h) | 750,000 |
| · National Australia Bank (h) | 1,169 |
| · National Australia Bank (h) | 194,764 |
| · Catholic Health Care (h) | 197,292 |
| · Home contents (h) | 1,000 |
| · B property (w) | 475,000 |
| · Greater Building Society (w) | 178,066 |
| · National Australia Bank (w) | 13,679 |
| · Provident Capital (w) | 23,915 |
| · City Pacific (w) | 70,009 |
| · Elderslie (w) | 5,000 |
| · ING (w) | 40,467 |
| · Home contents (w) | 2,000 |
| · Monies owed to the wife and held in trust on her behalf by her solicitor | 15,087 |
| Total | $1,967,448 |
That the husband’s paid costs are $100,000.00.
That the wife’s paid costs are $33,662.25.
Issues
The date of separation and its relevance to this determination.
The extent and value of the wife’s non financial contribution in the capacity of homemaker.
The effect of the “conduct” of the wife in the home on the value of the contribution made by the husband and the effect of his disabilities on the contribution made by the wife.
Whether the present ownership of property constitutes a fair reflection of the parties’ contributions to the acquisition, conservation and improvement of the property of the parties or either of them or whether indeed it reflects all contributions including non financial contributions.
What if any adjustment should be made to reflect those matters which are relevant and required to be taken into account under the provisions of section 75(2)?
How should the legal costs of the wife and the husband be treated and in the case of the husband should there be any discount in the usual process of add back in order to accommodate the fact that his costs were said to be higher by reason of his disabilities and the additional time taken to procure instructions coupled with the necessity for his legal advisers to travel to him rather than the reverse?
Credit
It is urged upon me by Mr Mater that the wife’s evidence should not be preferred to that of the husband. He said the wife’s answers contained inconsistencies and that some of her answers were non responsive. She also took the opportunity to volunteer information which was seen by her to advantage her case. She was vague and sometimes forgetful in circumstances where the answer might be thought not to assist her case.
Mr Cook for the wife urged upon me that the wife was afflicted with hearing impairment and that that affected her answers. The husband was also thus afflicted but his answers were in some cases so definite when they favoured his case that one might have doubts about them. His lack of recall of events in relation to the sale of a property on the Gold Coast were pointed to as unlikely. The husband to be fair said that he had problems with recall.
In most cases I would accept the husband’s evidence of those matters he could recall as being more reliable than that of the wife but not always so. My findings on credit where there is conflict between the parties on matters relevant to my determination is reflected in the findings of fact on those issues.
The Pool of Assets
The first task I must undertake is to consider the extent of the property of the parties or either of them and its value. Fortunately this is agreed between the parties in terms of the balance sheet set forth above.
The add back of costs
I am advised by Counsel for the husband that the costs of the husband paid are $100,000.00 and by the solicitor for the wife that the costs of the wife paid are $33,662.25.
I am asked by Counsel for the husband whether I will discount the add back in the case of the husband by $50,000.00 because of what is said to be the incurring of higher fees given:
a)The geographical location of the husband and his advisers and the age and lack of mobility of the husband. This necessitated I accept travel by the legal advisers from the City to the northern outskirts of Sydney (in the case of counsel for conferences) and from northern Sydney to the northern outskirts of Sydney (in the case of the husband’s solicitor).
b)The husband’s age and infirmity and the extent to which it was necessary to make other inquiries to ascertain the history of the husband’s past financial dealings and present his case. Although the husband’s affidavit detailed a great deal of the past history of the husband’s life prior to his marriage it was asserted by his Counsel that this history was important since it dealt with the way in which the assets held by the husband had been generated from years of his efforts rather than some immediately pre marital windfall.
c)I am further asked to take into account the application made for expedition and the defended nature of the proceedings for a divorce decree.
d)The wife’s Counsel says that the history is not significant and the evidence was really within a short compass and involved few documents or valuations.
e)He further submits that what happened in the divorce proceedings is not a matter for these proceedings and is an issue of costs which properly should have been dealt with in those proceedings.
f)As to the history I think that it has perhaps been overly detailed in its attention to pre marital matters and I agree with the Counsels submission in relation to the divorce proceedings. I do not see that the application for expedition demands a discount on the costs to be added back. It may not necessarily be seen as a shared advantage to the parties and in any event the proper place for some allowance with that was an order for costs at the time. I accordingly will make no allowance on account of these matters.
g)It is further urged on me by the wife’s Counsel that a client must be taken with all the problems they have and that those problems are as it were just a vicissitude of life. I think that in a case where the ill health and immobility of the husband occasions higher costs that it may be a burden to which the parties could make a joint contribution.
However even though I have sympathy with the justice of the proposal to make some allowance for this reason, I would be unable on the material before me to ascertain that discount with fairness to the parties since no evidence is adduced as to the amount of the increase. I am invited to simply make an assessment absent that evidence. I do not intend to do so and the costs will be added back to the balance sheet in the sums paid by each of the parties.
Accordingly the total assets available for division are found to total in value $2,086,023.
| ($) | |
| · Present assets of the parties | 1,967,448 |
| · Add back – husband’s paid costs | 100,000 |
| · Add back – wife’s paid costs | 33,662 |
| Total | $2,101,110 |
The Financial Contributions of the parties to the acquisition, conservation and improvement of the property of the parties or either of them
As at the date of the marriage the husband had the following assets:
| ($) | |
| · The property at N of value $135,000.00 with an equity in the property after mortgage of | 55,000 |
| · A taxi cab and plate valued at | 40,000 |
| · Savings | 20,000 |
| Total | $115,000 |
As at the date of the marriage the wife had the following assets namely:
| ($)AUD | |
| · $22,238.00 Singapore Dollars | |
| · $26,930.00 Australian Dollars | 40,000 |
| Total | $40,000 |
Subsequent financial contributions made by the parties to the Marriage
The wife
For a period from the date of the marriage the wife works at a northern Sydney Hotel at the rate of $6.33 per hour.
In 1982 the wife commences work at a Hotel in Sydney and works there until 1993. Her earnings commence at $250.00 per week and increase over the years to her final salary of $420.00 per week. It is a part of her employment contract that she is supplied with a main meal at her employment. The wife leaves that employment after her hands become blistered making her unfit for employment.
The wife then purchases the property at B for $107,500.00 and pays a deposit of $77,000.00 with the balance financed by mortgage. In addition the wife pays stamp duty and legal costs on the acquisition of the property. The property is let and the income derived from the property is paid to the wife. Her evidence is that the rent has risen over the years but that the present rent amounts to $350.00 per week from which she pays a commission to the agent for collection of the rent. The rent has not risen during the past 2.5 years.
The wife is in 1993 employed at a Motel but again ceases work due to a problem with the blistering of her hands. In that same year the husband gives to the wife an amount of $100.00 per month for housekeeping which rises to $120.00 per month in 2001.
In 1994 the wife is employed at the N Hotel and works there until October 1997 when she is dismissed.
The wife then in the same year takes employment at the N fruit shop until the shop is sold and thereafter the wife is engaged as a carer for an elderly lady until that lady was admitted to a nursing home in 2005.
The husband
As at the date of the marriage the husband operates a taxi business. That business continues until he sells his taxi and plate in 1990 for $70,000.00 but he continues then to drive a taxi for others until the age of 80 years.
In 1998 the husband leased the self contained unit at the former matrimonial home for $170.00 per week.
He is able by 1983 without the assistance of the wife to discharge the mortgage on the matrimonial home which as at the date of marriage stood at about $80,000.00.
Throughout the marriage the husband pays the outgoings of the matrimonial home which include mowing contractors from late 2004.
In 2006 the husband pays from his resources the bond on the nursing home room that he presently occupies in the sum of $190,000.00 as part of the bond, and pays interest on the balance due of $10,000.00, and a daily rate for his occupancy of that room of $48.59.
It is asserted by the husband that the financial contributions of the husband and the wife to the acquisition and conservation and improvement of the property of the parties or either of them is reflected in the current ownership of that property by them. The husband says that those contributions were in the proportion of about 60% from him and 40% from the wife. The wife’s Counsel agrees with that proposition except as to the percentages asserted given the different views of the parties on the add back of costs.
My calculation is that including the add backs the present ownership of property would reflect a contribution financially to the acquisition, conservation and improvement of that property in the percentages of 39.2% to the wife and 60.8% to the husband.
The Non Financial contribution of the parties to the acquisition, conservation and improvement of the property of the parties or either of them and their contributions to the welfare of the family consisting of the husband and the wife in the capacity of homemaker
Each of the husband and wife gave evidence by affidavit. Each relied on corroborating affidavits and each was cross examined on their affidavits as were a number of the supporting witnesses.
Much time was spent on seeking to support each of the parties’ assertions as to the date upon which they separated.
a)It is common ground that they did separate but it is asserted on the husband’s part that they separated once they took up occupancy in separate rooms in September 1989.
b)The wife’s Counsel pointed out that if the parties then separated the husband did not inform the wife and the husband’s Counsel pointed out that for a separation to occur there was no requirement that he inform his wife of his view that the marriage was ended. I agree with that submission.
c)The wife said that the parties separated later and gave a number of dates the latest of which was the date upon which the husband departed for the Nursing home in which he resides and a number of other possible dates were given in the earlier part of the century.
d)The proceedings between the parties for divorce were not helpful on this question since the finding on separation was a “not later than” finding and that did not resolve the actual time of separation.
e)The wife’s case outline document puts the date at 2003. She referred to other dates in her cross examination. It is clear that the marriage has been unhappy for some time prior to that.
f)It probably started to deteriorate prior to the date the husband relies on as to the date of separation. He asserts that after that date the parties occupied separate bedrooms and that the wife ceased washing for him and cooking for him except on rare occasions and on occasions when he had been in hospital.
g)However the date on which the “consortium vitae” was destroyed was hard to say given amongst other things the snapshot nature of the supporting evidence in each party’s case and the contradictory documentary evidence.
h)The wife produces cards which are undated in the hand of the husband but which are said to bear the date inscribed by her on which she received them offering messages of goodwill on anniversary occasions. The wife and the husband are jointly invited to a wedding. These documents are said by the wife to be indicative of the subsistence of a life in the matrimonial relationship and certainly no public disavowal of that relationship by the husband.
i)The husband produces documents comprising letters from the wife’s daughter in which she adds support to the husband’s assertions as to the wife’s conduct in the home, conduct which he says in part gave rise to the failure of the marriage. That conduct is also relied upon as adding value to the contributions he made in the marriage (see Kennon (1997) FLC ¶92-757 below).
Although a great deal of time was spent on this issue I am unable to determine the actual date of separation but believe it to be some time between 1989 and 2003. In any event that is not a matter of great assistance to me since whether contributions are made prior to marriage, during marriage or following separation and even after divorce they are contributions which are relevant to a determination of whether and if so what alteration of property interests should be ordered by the Court.
The wife then pointed out her further non financial contributions which need to be taken into account in determining this matter. She says her contribution to the welfare of the family in her role as homemaker is significant and that she made a contribution in terms of managing the home when the husband was absent from the home in his Queensland property from time to time over a period of about three years.
It appears the wife was the principal cleaner of the home until late 2005 when the house is said to be in an untidy state and an Aged Care Assessment team recommends the employment of Anglicare to assist.
The wife says that her house cleaning contribution became the more arduous because of the husband’s increasing frailty and his propensity to incontinence and dropping food and cups. His poor vision she says meant that he put his hands on walls which caused extra cleaning. It was conceded by the husband that the wife cared for him following some of the difficulties he had had requiring operations.
The wife says that she washed for the husband but the husband’s evidence is that he usually washed his own clothes after 1989.
The husband says that he prepared some of his own meals and the wife prepared some initially but later reduced the number prepared by her. The husband’s daughter supports his assertion that in 1987 the husband appeared to be preparing his own meals. In 1997 when she again visited the home after a period in South Africa she observed the same thing and an exchange between the husband and his wife when he seeks to borrow some tea cups of hers and she refuses. The daughter says that at this time she observed the house to be untidy and that the kitchen was dirty. In 2001 she again returns to Australia and regularly visits the home. She describes the condition of the home as dirty.
Some attempt was made to suggest that this witness’s evidence was unreliable since she was motivated by the fact that she was a beneficiary under her father’s will. I reject that. I observed her in the witness box. She answered questions directly. I accept her evidence was not a product of any such motivation and was credible.
The wife says that she made a contribution in the gardening she did, albeit that the husband forbad it. She describes weeding and tending to pot plants amongst other things and the husband agrees she did do that. He made also a contribution to the gardening and he says that it was his efforts which procured an award for his garden. He mowed lawns, although later in the marriage, some initially, and then all of that work was taken over by others.
It is asserted by the husband that the wife’s contribution in that manner is limited and his contribution in providing accommodation to the wife at no cost and permitting her thereby to accumulate assets is of greater value because of the conditions under which he lived and in particular because of the wife’s conduct which included playing loud music or radio and knocking on his bedroom door late in the night which had the effect of making his life unenjoyable, indeed miserable and depressing and at times driving him to contemplation of suicide.
Mr Mater put the position that he was not required to and indeed did not say that the wife’s conduct complained of was deliberate on her part and that the authorities did not require it to be so. The wife’s Counsel conceded that view of the law.
The supportive evidence of the wife does not much assist. I accept that the wife was houseproud and did initially in the marriage work hard to keep the house clean. I accept that later in the marriage the effort might not have been as great or alternatively impeded by the husband’s frailty. I accept that the wife did some gardening and some food preparation and washing but also accept that the husband as the marriage deteriorated after 1989 increased his involvement in those activities, in so far as they benefited him.
I note that after the wife acquired her property in Queensland the husband assisted her in the management of that property in arranging repairs and the like when he was in Queensland staying at his property.
Overall I assess the parties’ non financial and homemaker contributions in proportions equivalent to their financial contribution and that they were equal in value. I do not think that there should be any adjustment on the basis of Kennon since if there was to be an adjustment it would favour each of them equally. The wife’s contribution being made more difficult in the later stages of the marriage by reason of the husband’s frailty and the husband’s contribution in the provision of accommodation being made more difficult by the wife’s conduct referred to in the evidence.
Accordingly on an assessment of the parties’ contributions, financial and otherwise, I would make no alteration to the parties’ present interests in property.
I turn now to the parties’ relative needs and means and the matters referred to in section 75(2) of the Act to the extent that they are relevant to this determination.
Section 75(2)
The husband is aged 90 years. He is in indifferent health and is legally blind. He suffers from the disorders set out above.
The wife is aged 67 years and suffers from anxiety and deafness, litigation stress and some elevation of blood pressure.
The husband has the property described in the balance sheet provided. His income was as set out in his statement of financial circumstances filed herein on 2 August 2007 and amounted then to $615.00 per week.
The wife has the property described in the balance sheet provided. Her income was as set out in her statement of financial circumstances filed herein on 8 August 2007 and amounted to $665.00 per week. Part of that income comprised rental received for her Queensland property but the tenant did appear to have been paying the same rent for now three years.
I accept that the husband does not have a capacity for appropriate gainful employment and his evidence is that he has passed the management of his financial affairs to the hands of his daughter.
It was submitted by Counsel for the wife that it is unlikely that she will again work in gainful employment and given her disabilities and health I accept that that is unlikely.
The wife deposes in her financial statement that she has a present income of $665.00 per week and outgoings of $379.00 per week. This is in circumstances where she has cost free accommodation. Were she to purchase another property then she would have the outgoings of that property and if she rented another property she would have a requirement to meet rental payments. No evidence is tendered and in submissions it is said by the wife’s Counsel that she does not now seek the transfer of the matrimonial home to her which she accepts is not possible but she does seek to be able to purchase in the same area a house or other residence for her occupation. There is no evidence before me of the cost of such a home. Mr Mater says I could assume that it would be less than the value of the husband’s home but that does not give me much help either.
The husband deposes that he wishes to be discharged from his present accommodation and be able to return to his home for the remaining years of his life. It seems accepted that on average one would expect that his wife would outlive him. There is no evidence before me as to his life expectancy and given the vicissitudes in health that he has already suffered and not succumbed to apart from saying that the probability is that he will die before the wife the consideration is speculative. He deposes that his present income is $615.00 per week and that his outgoings are some $1,054.00 but that expenditure includes payments to his nursing home and legal fees which I am informed are paid. On the husband moving back to his home and this litigation ending there will be a substantial improvement in his financial position.
Given his disabilities he will require ongoing care in his home and may in due course have to return to a nursing home for higher level care. Meeting his needs because of his age and frailty is going to be an additional expense for him.
The evidence before me is that neither of these parties has the receipt of any pension or superannuation entitlement.
These parties have by all accounts lived at a standard of living which could best be described as extremely modest. I got the impression that frugality was the order of the day. I have determined that the order which I will make will provide them with the opportunity to live at a reasonable standard of living having regard to the standard of living which they have hitherto experienced.
I do not find in the evidence any suggestion that the earning capacity of either party has been adversely affected by the marriage. The earnings of each of the parties will have been assisted to some extent by the other party by reason of the roles they filled which gave some support to each of them and the provision of accommodation to the wife enabled her to apply her capital to the generation of income and assets.
The husband’s home has been his home for 46 years and he has asked in his submissions whether at the age of 90 he might return to his home of 46 years to live out the rest of his life. I have determined that that order can be made whilst doing justice aliunde to the parties’ entitlements and accordingly I find it appropriate to agree to his proposal.
Given the matters referred to above and in particular the probability of the wife having a longer life span in which she will have to support herself and her desire which is not unreasonable to continue to live in the same area I have determined that the distribution based on contributions should be varied and that the wife should receive an additional amount.
She accordingly will retain the property she has and her expended costs and the husband will pay her an additional $135,000.
As a result of my judgment the wife will receive:
| ($) | |
| · B property (w) | 475,000 |
| · Greater Building Society (w) | 178,066 |
| · National Australia Bank (w) | 13,679 |
| · Provident Capital (w) | 23,915 |
| · City Pacific (w) | 70,009 |
| · Elderslie (w) | 5,000 |
| · ING (w) | 40,467 |
| · Home contents (w) | 2,000 |
| · Add back – costs paid added back | 33,662 |
| · Payment from husband | 135,000 |
| · Monies owed to the wife and held in trust on her behalf by her solicitor | 15,087 |
| Total | $991,885 |
This represents 47.2% of the total assets.
The husband will receive:
| ($) | |
| · N property (h) | 750,000 |
| · National Australia Bank (h) | 1,169 |
| · National Australia Bank (h) | 194,764 |
| · Catholic Health Care (h) | 197,292 |
| · Home contents (h) | 1,000 |
| · Add back – costs paid added back | 100,000 |
| Total | $1,244,225 |
| · Less amount provided for payment to wife | 135,000 |
| Total | $1,109,225 |
This represents 52.8% of the total assets.
I find that this distribution does justice to the parties overall and that no further adjustment is required for that purpose. The husband will have his home and some of his investments from which he can derive some income and the wife will have her investments and some additional monies to help her in procuring accommodation.
For these reasons I make the orders set forth above.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.
Associate:
Date: 18 February 2008
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