Ritchie and Ritchie and Anor
[2011] FMCAfam 720
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RITCHIE & RITCHIE & ANOR | [2011] FMCAfam 720 |
| FAMILY LAW – Property – husband’s current partner joined as party – Jones v Dunkel inference – contributions – section 75(2) factors. |
| Family Law Act 1975, ss.75(2), 79, 90MC |
| Jones v Dunkel (1959) 101 CLR 298 Ferraro and Ferraro (1993) FLC ¶92-335 Russell v Russell (1999) FLC ¶92-877 |
| Applicant: | MS RITCHIE |
| First Respondent: | MR RITCHIE |
| Second Respondent: | MS RENWICK |
| File Number: | DGC 2614 of 2010 |
| Judgment of: | McGuire FM |
| Hearing dates: | 20 & 21 June 2011 |
| Date of Last Submission: | 21 June 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pavone |
| Solicitors for the Applicant: | Malkin Lawyers |
| The First Respondent: | In person |
| The Second Respondent: | No appearance |
ORDERS
That the husband shall:
(a)Within 28 days of the date of these orders, transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(i)the former matrimonial home situate at Property N in Victoria;
(ii)all personalty and chattels in the possession of or under the control of the wife as at the date of these orders;
(iii)the wife’s 2005 Nissan Maxima motor vehicle registered number [omitted];
(iv)the balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders;
(v)the wife’s superannuation policies and entitlements.
(b)Within 28 days of the date of these orders pay to the wife a lump sum of $20,751 and should such payment not be made within the designated time, then the husband and the second named respondent transfer to the wife the 2008 Mercedes Benz ML280 motor vehicle registered in the name of either the first or second named respondent, such vehicle to be delivered by the first named respondent to the applicant in fit and proper condition not later than 42 days from the date of these orders and that the applicant be able to sell the vehicle at a fair market price with the applicant to retain the sum of $20,751 and the balance to be paid to the respondents and for these purposes the first or second named respondent as appropriate to sign and return transfer documents within 7 days of receipt.
(c)Be solely responsible for and indemnify the wife in respect of the following:
(i)any and all liabilities incurred by the husband since separation in either joint names or in his name alone;
(ii)any and all liabilities attaching to any of the assets to be retained by the husband pursuant to these orders;
(iii)the liabilities in respect of any credit cards or debit cards in the name of the husband.
That the wife shall:
(a)Contemporaneously with the transfer referred to in paragraph (1)(a) hereof, transfer, and/or vest all her right, title and interest in the following to the husband absolutely:
(i)the husband’s shareholdings;
(ii)subject to these orders, the 2008 Mercedes Benz ML280 motor vehicle;
(iii)the husband’s [M] superannuation policy and entitlement;
(iv)all personalty and chattels in the possession of or under the control of the husband as at the date of these orders;
(v)the balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders.
(b)Be solely responsible for and indemnify the husband in respect of the following:
(i)the mortgage secured by the property at Property N in Victoria and that the wife make every reasonable effort to obtain a release for the husband of his liability under this mortgage as soon as practicable;
(ii)any and all liabilities incurred by the wife since separation in either joint names or in her name alone;
(iii)any and all liabilities attaching to any of the assets to be retained by the wife pursuant to these orders.
IT IS NOTED that publication of this judgment under the pseudonym Ritchie & Ritchie & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 2614 of 2010
| MS RITCHIE |
Applicant
And
| MR RITCHIE |
First Respondent
| MS RENWICK |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the wife for property settlement. The husband is the first named respondent. The husband’s current partner,
Ms Renwick, is the second named respondent. Ms Renwick was joined as a party by my order of 4 April 2011 on the application of the wife and due primarily to the wife’s allegation that Ms Renwick was the titleholder to some assets of which the husband held a beneficial interest and hence arguably formed part of the property pool as between the husband and the wife.
Ms Renwick did not file a notice of address for service or any responding documents. When the matter was called on for trial on
20 June 2011, Ms Renwick did not appear and was not represented. The husband, Mr Ritchie, volunteered that Ms Renwick did not intend to take part in the proceedings as she was not of the opinion that the issues concerned her. The matter proceeded in her absence.
The husband and wife married in California [in] 1991. They did not cohabit prior to the marriage. They separated in February 2010 although it is the wife’s case that the husband had entered into a relationship with Ms Renwick in Queensland well prior to that date.
The husband and wife lived in both Queensland and Victoria during the course of their marriage. In about 2005 or 2006 the husband moved from Victoria to Queensland to pursue studies and a career in the building industry. The wife and children remained in Victoria. The husband has consistently lived in Queensland since that time.
There are three children of the marriage, being [X] born [in] 1992 (aged 19 years), [Y] born [in] 1993 (aged 17 years) and [Z] born [in] 2009 (aged two years).
The husband was represented by solicitors during the interim and interlocutory parts of this matter. However, he appeared on his own behalf at the trial and had apparently parted company with his legal representatives only the previous week. The husband sought an adjournment of the trial for a number of months on the basis that he needed to save funds to brief new legal representatives. However, the adjournment was refused when the husband candidly conceded that he could not guarantee being able to fund legal representatives even if an adjournment was granted for a number of months. The husband consequently conducted the trial himself and did so in an articulate, competent and proper manner.
Applications and issues
Given a number of concessions made by the husband during the course of the trial, the parties now agree the nature and value of the assets
in the property pool. There were credit card debts of $55,000 at the date of separation. The husband says that this figure should be included as a liability. The wife argues that it should be excluded.
The wife seeks a distribution of the net property pool as to 85 per cent to herself and 15 per cent to the husband based upon a loading
of 10 per cent to her after consideration of contributions and a further
25 per cent weighting in her favour after a consideration of the matters under s.75(2) of the Family Law Act 1975 (“the Act”).
The husband seeks a distribution of the net pool of property on the basis of 60 per cent to the wife and 40 per cent to himself in arguing that the contributions of the parties have been equal but conceding
a 10 per cent adjustment to the wife on account of the relevant factors under s.75(2) of the Act.
There were numerous issues of credit generally between the parties on their evidence. Much was made by the wife of the suggestion that the husband may not have been divorced from his first wife when these parties married in California in 1991. The wife relies to a large extent on circumstantial evidence to mount this argument. She says that the parties spontaneously decided to travel to the United States to marry in late January or early February 1991. The marriage certificate shows that the husband had obtained a divorce from his previous wife on 6 January 1991. The wife says that she has never seen any documentation to evidence this divorce. The husband’s best recollection is that he had provided the wife with the divorce document and also had to produce it for the purposes of his second marriage. The husband says that he obtained the divorce by contacting an attorney in the United States which resulted in a divorce application being sent to him. He completed the application and returned it to the United States with a cheque and soon thereafter obtained advice and evidence of divorce.
The wife highlights some unusual aspects of the husband’s evidence. Firstly, the husband has not produced evidence of his divorce despite this being an issue known to him since the commencement of these proceedings in 2010. He says that he cannot remember the name of the attorneys who acted for him. He has apparently made no efforts
to search records to obtain copies of his divorce documents.
The husband was, however, an Australian citizen in 1991. He agrees that he had never previously travelled to the United States. He agrees that his former wife was an Australian citizen. He agrees that he did not serve her with the application. All of these would ordinarily
be highly unusual antecedents to a divorce in this jurisdiction. Nevertheless, no evidence was adduced by either party as to the requirements for a divorce in the Californian jurisdiction.
The issue is further compounded and confused by the fact that in 1999 the husband applied for dissolution of marriage in the Family Court
of Australia. He concedes that he did not mention his alleged prior divorce from his first wife. The previous Ms Ritchie was not called as a witness to these proceedings. The husband says that he applied for the divorce simply to oblige the current Ms Ritchie who “wanted a divorce in Australia”.
Certainly, all of the above leads to some suspicion in respect of whether or not the husband was divorced from his first wife when he married the second Ms Ritchie. The interest for me in the current proceedings is essentially as to credit although obviously the Court should consider the seriousness of dealing with and referring the matter to the appropriate authorities if there is evidence of a crime which in this case would be bigamy. Generally, the husband’s evidence in this credit issue was lacking in detail and had a sense of unreality. It is difficult to understand why, when confronted with such a serious allegation, the husband did not seek to adduce evidence to support his own claims that he had been validly divorced. This is particularly so given that the husband was consistently represented until shortly before the trial. Similarly, the fact of the husband making a “second” application for a divorce in the Family Court of Australia is difficult to reconcile with his consistent claims that he had been validly divorced in the United States of America.
The wife had adduced some evidence in the form of a search of the divorce records of Orange County, California. They do not reference the husband’s alleged divorce. However, on reflection, the evidence of the husband goes no further than to say that he was divorced in California and does not specify Orange County.
Although I have difficulties generally with the veracity of the husband’s evidence in respect of this credit issue, in my view there
is no evidence of such specificity that I should refer this matter to the authorities for investigation as to whether or not the husband has committed the crime of bigamy. The issue is peripheral only to the property proceedings before me and it was perhaps for the wife to raise the matter at the time of the divorce in the Australian court or pursue the matter in the criminal jurisdiction.
Generally the wife was an impressive witness. In the most part her evidence was unchallenged and uncontroversial. Having seen and heard the wife in the witness box I accept her as a witness of the truth.
The husband of course suffered from the difficulty of being unrepresented. He was challenged in detail as to many matters
of credit which impact upon the prime issues in this case. Specifically, he was challenged as to his use and payment of credit cards. He was challenged as to his employment history and particularly from 2006 until the present day. He was challenged as to the nature of his financial relationship with Ms Renwick.
The husband did make some candid concessions. For example, he readily conceded that he had transferred a Mercedes motor vehicle of some considerable value to Ms Renwick by way of gift after that vehicle had been highlighted for its possible sale in interim spousal maintenance proceedings before me in 2010. The result of that concession is that the Mercedes motor vehicle is now in the pool of property by consent. Similarly, the husband readily conceded a number of share transactions and share ownership are beneficially his even though there had previously been a connection with finance provided by Ms Renwick. However, in other aspects of his evidence the husband was vague and uncertain when challenged in cross-examination. Specifically, as to his employment history in Queensland since 2006, the husband’s evidence is contradictory and essentially unbelievable. For example, a document was produced to the husband which purported to be a re-financing application made in 2010 by
Ms Renwick to a bank. Ms Renwick states in that document that she had been employed by the husband’s [omitted] business for the previous four or so years. She stated that she had received a sum of approximately $147,000 in wages from the husband during the previous 12 months. The husband denied that he was essentially employed himself or was running a productive business from 2006 to date. Ms Renwick, of course, chose not to attend at Court and the husband did not force her attendance by subpoena or otherwise. The husband when in the witness box continued to deny that he was the source of Ms Renwick’s earnings during 2010. When confronted with the proposition that either Ms Renwick or he himself was not telling the truth, his hesitation was obvious and telling until he finally confirmed that he was being truthful and hence Ms Renwick was being untruthful.
The issues of credit are compounded by the fact that Ms Renwick did not choose to give evidence and was not obliged to do so by the husband. This raises considerations of the inferences available to the Court under the principles in Jones v Dunkel.[1] The effect of that principle is that a Court may draw a negative inference against a party who fails without explanation to adduce evidence from a person in respect of an issue where such evidence might ordinarily be expected to come before the Court. The inference that the Court may draw is that such evidence if given in truthful fashion would not have assisted the party.
[1] Jones v Dunkel (1959) 101 CLR 298.
The wife in this case has clearly mounted a case that Ms Renwick
is a person of some means and that the husband and Ms Renwick are jointly in a financially beneficial relationship. The wife for example relies on the fact that the husband, despite his claims of little employment, possessed and drives expensive motor vehicles, and lives in a desirable home. The implication of the wife’s argument is that
Mr Ritchie has not been entirely forthcoming in his disclosures and evidence to this Court of his financial position and his financial relationship with Ms Renwick. Given my observations of the husband’s evidence in the witness box which was at times evasive and selective, together with the failure of Ms Renwick to give evidence, I have little hesitation in drawing the inference that Ms Renwick’s evidence if given truthfully would not have helped the husband’s case.
Each of the parties gave evidence and was cross-examined.
The law
Section 79 of the Act provides for the alteration of property interests between parties. The approach for the Court is now a well settled multi-step process.[2] The first step is for the Court to identify and place value on the property of the parties including assets, liabilities and financial resources. Section 90MC of the Act stipulates that superannuation interests are to be treated as property for the purposes of financial proceedings. The date of the hearing is the appropriate date for attributing value to the items of property.
[2] Ferraro and Ferraro (1993) FLC ¶92-335.
Secondly, the Court must identify and assess each of the contributions of the parties as set out in s.79(4) of the Act. Those contribution factors include:
(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…; and
(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…; and
(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 any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage…
After making an assessment based on contributions, the Court is then to identify and assess the relevant considerations listed under s.75(2)
of the Act and then to decide as to whether it is proper to make any further adjustment. Those considerations include the following:(a) the age and state of health of each of the parties; and
(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; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
…
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
…
(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; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
…
(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; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account…
Arguably there is then a fourth step for the Court to make being that pursuant to s.79(2) of the Act the Court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable
to do so. It is the justice and equity of the actual orders that the Court must consider. The Full Court of the Family Court in Russell v Russell[3] at [86,439] stated:Furthermore, it must be remembered in this regard that under
s 79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed we take the opportunity to emphasise that in what his Honour has termed “the fourth stage”, that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.
[3] (1999) FLC ¶92-877.
The property pool
Given a number of concessions made by the husband during his cross-examination and, in particular, as to the inclusion of the Mercedes motor vehicle and shareholdings, the property pool is agreed between the parties with one exception being whether or not to include the credit card liabilities as they stood at separation as a liability of the marriage. There seems no dispute that the husband’s credit card liabilities at separation in February 2010 stood at approximately $55,000. They have since increased substantially. Nevertheless, the husband argues only that the figure as of the date of separation
be included. The wife says that the husband’s credit card liability
at separation should be excluded. She does not dispute the quantum.Counsel for the wife argued for exclusion of the credit card liability
on the basis that the husband has had a substantial income and could and should have finalised the credit card debt since separation
or, alternatively, his income in the period up to separation should have been used to satisfy that liability.The husband says that the credit card was used for the benefit of the family including capital purchases for the wife.
A bunch of statements for the husband’s credit card were tendered into evidence. They relate mainly for the period for 2007-2008. They do, however, give an indication of the husband’s use of his credit card. What is evident from those statements is that the husband did make
a number of purchases in Victoria and apparently for the family. Significantly, the wife does not argue that the husband supported the family substantially from his Queensland income up until the date
of separation. There are also purchases for the husband’s benefit including the purchase of a motor bike. He says that he has disposed
of that motor bike and that the proceeds of sale went back into general family revenue. He was not seriously challenged on this assertion.
It is also noteworthy that there appeared to be a number of purchases relevant to the building trade and give some credence to the wife’s claim that the husband has been substantially employed or self-employed during his years in Queensland and contrary to the husband’s denial. Certainly, the credit card statements are highlighted by some one-off payments into the card of $20,000 or more which adds further weight to the wife’s argument.In summary, and from the evidence in the affidavits, from the husband in cross-examination, and from the tendered documents, it is my view that the credit card liability be included in the pool of property
as a liability of the marriage. The material makes it clear that both parties and the family itself benefited from the use of that card.
It is a separate question for the Court to consider whether the credit card statements assist in determining the husband’s earning capacity from his work history in Queensland.Consequently, and with inclusion of the credit card liability, the pool
of property otherwise agreed by the parties is:
Property N
$420,000
Wife’s furniture and contents
$10,685
Wife’s motor vehicle
$14,000
Mercedes Benz (conceded by the husband)
$58,000
Husband’s shareholdings – add-back (conceded by the husband)
$68,928
Husband’s 141,620 Icon Energy (ICN) Shares (conceded by the husband) at market value
$16,994
Husband’s [M] superannuation
$1,335 E
Husband’s [A] superannuation
$610 E
Wife’s [C] superannuation
$968 E
Wife’s [R] Super superannuation
$60 E
Mortgage
($186,000).
Credit card liability
($55,000).
Net property
$350,580
Contributions
At the date of marriage and commencement of cohabitation in 1991 the wife’s evidence is that she had savings of $8,000 together with a $5,000 motor vehicle and nominal superannuation. The husband did not challenge her as to this evidence.
I also accept the wife’s evidence, unchallenged by cross-examination, that her parents provided the parties with $12,000 to assist with the purchase of their home.
The husband had purchased a home unit in [suburb omitted] about seven months prior to the marriage. It was not disputed that he had contributed $47,000 from his savings towards that purchase. The fact that the home unit was later sold at a loss does not in my opinion detract from the husband’s initial contribution. The husband also owned a quantity of house contents and effects and some minimal superannuation.
In about 2005 the husband received a lump sum compensation
payment of $25,000 in respect of a work related back injury he suffered in 2003. There was no evidence provided as to the breakdown
of the husband’s payment into categories for pain and suffering or loss of future earnings. There is no doubt following the general principle
of the Full Court in Aleksovski v Aleksovski[4][4] (1996) FLC ¶92-705.
that this payment
is a contribution by the husband. Nevertheless, it is a contribution
that must be seen against all other contributions and within the context of the marriage. The injury and the payment both occurred well before separation. The husband’s own evidence is that he is incapacitated
in some aspects of his employment relative to his situation prior to the accident. The implication of the husband’s evidence is that
his preferred work in the building industry has been affected.
The husband has undergone a period of re-training post separation and, on his own evidence, his employment and income was limited
for a period. It follows that during this time the wife must have taken on a greater responsibility for her contributions to the household, the children, and her financial input. Consequently, within that context
and given the quantum of the damages payment, I am not satisfied that the damages payment amounts to any special or superior contribution by the husband.
In 2003 the respondent husband received a further compensation
or damages payment in a sum of $19,250 as a result of him being
a victim of sexual abuse by a member of the Catholic clergy when only a child. It is not disputed that these monies were used for the benefit
of the family and the wife concedes this to be a direct financial contribution by the husband.
The wife concedes that the husband continued to contribute support
to the family unit in Melbourne despite living mainly in Queensland from about 2005 or 2006. The husband himself however maintains that his employment in Queensland has always been limited.
The parties dispute when exactly the husband went to Queensland.
The wife says it was in 2004. The husband said it was in 2006.
They appear to agree that it was soon after their eldest daughter’s thirteenth birthday. This might indicate the actual date to be 2005.
The fact of the husband living mainly in Queensland and only travelling back to Victoria irregularly and for short periods, inevitably added to the responsibility that the wife took on as homemaker
and parent until separation in February 2010. The evidence is that the wife assumed a more onerous role and greater responsibility in these areas than would be expected in the normal family unit.
The wife was the unchallenged primary homemaker and the carer
for the children throughout the relationship. Further, she returned
to work on a part-time basis for the last three years of the marriage.
The wife has made superior and significant post-separation contributions. She has been almost the prime financial provider
for the children given that the husband pays $7 per week child support. This contribution by the wife is highlighted and compounded by the findings that I will make as to the husband’s recent earnings
and earning capacity. Further, the husband’s contact with the children has been minimal and hence the wife has had the almost total responsibility for the care of the children, including the infant [Z], who is still only two years of age.
In summary, there is no doubt that the husband has made the greater financial contribution, at least until separation, in this relationship and should be given credit for the contributions from his damages payment from the Catholic church and his initial contribution. The latter of these, however, was made some 20 years ago and should be given weight in accordance with the other contributions of each of the parties since that time. Further, the wife receives credit for a contribution of $12,000 from her family and her own initial contributions.
The most significant contributions in my view have been made
by the wife since about 2005 or 2006 when the husband went
to Queensland. The husband himself says that his earnings were limited whilst he studied for qualifications and established himself
in the building trade. It follows on his own evidence, whether I accept his assertions as to his earnings during this period, that his direct financial contributions for a period of time were commensurate. In the year and a half since separation the wife’s contribution both financially
and actually to the children has been almost total. I am of the view however that the husband has had the ability to contribute significantly by way of financial support during this recent period but has elected not to do so. He has owned and driven expensive cars. He has lived
in desirable property in Queensland. He has operated a business which, on the evidence before me, Ms Renwick says has been
able to pay her a substantial wage. He has been able to trade many thousands of dollars on the stock market. During this period the wife and children have been supported by the wife’s limited income
and Centrelink benefits. The wife has had little or no respite from
her responsibilities for the actual care of the children.
Taking all of these contribution matters into account, I am satisfied
that a loading to the wife of 7.5 per cent on account of contributions would be appropriate.
Section 75(2) factors
The wife is 42 years of age. She is employed part-time as a [omitted] from which she earns something less than $15,000 gross per annum. The wife’s capacity for employment is directly impacted on by she being left as the sole carer for two-year-old [Z].
There is no evidence that the wife has re-partnered.
The wife also has financial responsibilities towards her older two children. The eldest daughter is now 18 years of age but intends
to continue her studies and hence is likely to require some continued financial support from the parents. The second daughter, [Y], is still a full-time student and dependent upon her mother for financial support.
I accept as entirely reasonable the mother’s evidence that she
is required to support herself and her three daughters in part
by borrowing from family members.
The simple fact is that the mother will have the support of [Z]
for the next 18 years and recent history suggests that she can expect little voluntary financial support or dedicated actual assistance from
the husband.
The husband says that his own financial circumstances are dire. In his sworn financial statement he deposes to no income whatsoever. He says that he is unemployed. He receives no government benefits. He says that Ms Renwick contributes to his accommodation and general living expenses. Put simply, after hearing the husband cross-examined and considering the evidence tendered together with the apparent reluctance of his partner Ms Renwick to attend Court, I do not accept this evidence. Firstly, there is evidence tendered before me of an application made by Ms Renwick only a matter of months ago for a refinancing of her home loan. She deposes that she works for
Mr Ritchie of [address omitted] in Queensland. She says that she has been so employed for four years and six months. In the same bunch of documents Ms Renwick deposes to working for “Ritchie [business omitted]”. The evidence is that she works full time and derives an income of approximately $147,000 per annum. From the witness box the husband denies that this is so. His evidence was hesitant, evasive and unconvincing in the extreme. The fact remains that Ms Renwick obtained the financial advantage of a bank loan with this evidence. She is a party to these proceedings. She has chosen not to come to Court. She lives with the husband. The only real inference available to me is that her honest evidence would not have assisted the husband’s case.
Further, the husband has lived in Queensland for approximately the last six years. His credit card statements show a high level of use and regular large repayments which can only be consistent with a regular injection of income or funds from another source not disclosed by
Mr Ritchie. Until February 2010 both parties say he was able to provide some financial support for the family back in Melbourne. He concedes injections of funds into his bank account from some work for which he calls himself a “supervisor” and claims outgoings from these monies. He has produced no evidence of the alleged outgoings. There is no evidence of tax returns.
I do not accept that the husband is disabled for employment as he claims. There is no medical evidence before me. In any event, a relatively simple forensic exercise suggests that he has been able to earn a substantial income over recent years and so be able to pay for what is clearly a pleasant lifestyle including luxury motor vehicles, the purchase of motorcycles, and living in a valuable property in a desirable part of Queensland. I refer again to the evidence brought to court under subpoena of Ms Renwick’s application to her bank for finance.
On the evidence before me, either the husband’s business has been able to pay Ms Renwick a wage of close to $150,000 or, alternatively, there is a financial arrangement between Mr Ritchie and Ms Renwick. The inference I make in respect of Ms Renwick’s failure to give evidence and with evidence of her application to the bank referred to above, I prefer that the husband is self-employed and achieves a generous income. Either way, all the evidence points to the husband having a comfortable lifestyle and one relatively free of financial stress.
The documents tendered in relation to Ms Renwick’s refinancing application also go to show her own financial position. She is clearly
a woman of some wealth disclosing net assets of near two million dollars together with her gross monthly income of $12,250. If, as the husband says in his sworn financial statement, Ms Renwick provides
him with his financial support, then she appears very able to do so and particularly when viewed against the relative lifestyle of the wife
and three children in Melbourne.
I am satisfied therefore that the husband has either an income
or a means of support dramatically superior to that of the wife
and the children. Further, this current situation is likely to continue
into the future. The husband says that he is in a committed relationship with Ms Renwick. He could reasonably expect his lifestyle to continue. The prospects are not so bright for the wife and children.
Financial support for [Z] will be ongoing and onerous. There is no evidence of a brightening of the wife’s employment and earning capacity and opportunities.
Neither party has any significant superannuation and importantly
for the wife she is 43 years of age and unlikely to be able to adequately superannuate herself in the remainder of her working life and given
the nature of her work and her responsibilities. The husband’s circumstances and prospects are entirely more promising.
Taking all of these matters into account I am satisfied that
an adjustment on account of the considerations under s.75(2)
with emphasis on the relative earning capacities and responsibilities
for the care of children, of 22.5 per cent of the net property pool would
be appropriate.
Conclusion
Consequently, after consideration of the contribution and s.75(2) factors I am of the opinion that the wife should receive 80 per cent
of the net pool of property. I calculate the net pool inclusive
of superannuation entitlements to be $350,580. If the wife is to receive 80 per cent then this would give her $280,464. The husband would receive $70,116.The wife is to receive the following:
Property N
$420,000
Furniture and contents
$10,685
Motor vehicle
$14,000
Wife’s [C] superannuation
$968 E
Wife’s [R] Super superannuation
$60 E
Mortgage
($186,000).
Net property to be retained by wife
$259,713
Consequently I calculate that there will be a further cash adjustment from the husband to the wife of $20,751.
The husband is to receive the following:
Mercedes Benz
$58,000
Shareholdings
$68,928
Icon Energy (ICN) Shares at market value (141,620 shares at .152c each)
$16,994
Husband’s [M] superannuation
$1,335 E
Husband’s [A] superannuation
$610 E
Credit card liability
($55,000).
Cash adjustment to the wife
($20,751).
Net property to be retained by husband
$70,116
Taking into account the circumstances of the parties with emphasis
on the wife’s ongoing responsibilities for [Z] together with the history of the contributions of the parties, I am satisfied that orders in these terms are just and equitable.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 22 July 2011
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