SANFORD & WEVER

[2010] FamCA 87

FAMILY COURT OF AUSTRALIA

SANFORD & WEVER [2010] FamCA 87

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Contributions

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

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Townsend and Townsend (1995) FLC 92-569
Kessey and Kessey (1994) FLC 92-495

APPLICANT: Mr Sanford

RESPONDENT: Ms Wever

FILE NUMBER: SYC 247 of 2008

DATE DELIVERED: 12 February 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 11 & 12 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Millar

SOLICITOR FOR THE APPLICANT: Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Foster

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. The parties do all acts and things and sign all documents necessary to sell the property at P, New South Wales for the best price reasonably obtainable in the following manner:-

   1.1list the P property for sale by private treaty within 7 weeks with such agent as the parties may agree to appoint and in default of agreement as to agent within 7 days with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;

   1.2the sale price at which the P property shall be listed may be mutually agreed upon by the parties or, in the absence of agreement reached within 7 days, shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the Australian Property Institute Incorporated (NSW Division) (“the valuer”) the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when same fall due;

   1.3the valuer shall, if requested by either the husband or the wife at a date three calendar months after the date upon which the P property is first listed pursuant to paragraph 1.1 and thereafter at three calendar monthly intervals until the P property is sold, nominate a sale price other than the originally nominated sale price;

   1.4the wife shall cooperate in every way with the agent including (without limiting the generality of the foregoing):

   1.4.1making the key available to the agent;

   1.4.2allowing inspection of the P property at all reasonable times requested by the agent;

   1.4.3doing or saying nothing to hinder or prevent a sale being effected;

   1.4.4ensuring the P property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

   1.4.5signing all documents requested by the agents in relation to the listing for sale of the P property except under a contract or agreement for sale which has not been authorised by the parties lawyers;

   1.5the parties shall each execute a contract for sale in the form prepared by the lawyers having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer pursuant to orders 1.2 and 1.3;

   1.6the parties shall instruct such lawyer as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within 7 days shall instruct such lawyer as may be appointed by the President for the time being of the Law Society of New South Wales (“the lawyer”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;

   1.7neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the P property or to any commission;

   1.8if the agent certifies in writing to the parties it is reasonably necessary for the work specified in such notice to be carried out to the P property so as to assist in effecting a sale and provided the cost of any such work is less than $5,000 either party may cause such work to be carried out and the costs thereof shall be recoverable by that party from the proceeds of sale;

   1.9in the event the wife fails to ensure the P property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers, the husband may arrange for such work to be undertaken and the costs thereof shall be recoverable by the husband from the proceeds of sale;

2. In the event the P property is not sold by private treaty within 7 weeks from the date of the appointment of the agent:

   2.1the parties shall list the P property for sale by public auction with the agent appointed pursuant to order 1.1;

   2.2the reserve price for the purpose of such auction shall be such as the parties agree upon within 7 days after the date upon which the P property is first listed for sale in accordance with order 2.1 or in the absence of agreement a price determined by the valuer appointed pursuant to order 1.2;

   2.3in the event the bidding at the auction does not reach the reserve price the parties or such of them as attends the auction may negotiate with the highest bidders or any other interest person and effect a sale of the P property at a price which is not more than 10 percent below the reserve price or such other price as the parties agree upon in writing;

   2.4if the P property remains unsold, the parties shall do all acts and things and sign all documents necessary to continue to relist the P property for sale by public auction again at three monthly intervals, and the provisions of orders 2.1, 2.2 and 2.3 shall apply successively until the P property has been sold so that at each successive auction the reserve price shall be 10 percent less than the reserve price at the immediately preceding auction unless otherwise agreed by the parties in writing.

3. On settlement of the sale of the P property the proceeds of sale be paid in the following manner and priority:

   -all costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);

   -the amounts required to discharge the P property mortgage

   -the amounts required to pay all municipal and water rates outstanding with respect to the P property;

   -the amount required to repay to the husband or wife the cost of work carried out in accordance with order 1.8;

   -the balance then remaining shall be distributed as follows:

   ·34.647 percent to the husband; and

   ·The balance to the wife

4. The furniture and furnishings contained within the P property as at the date of the making of these orders shall remain the property of the wife.

5. Other than as is specifically provided for in these orders the parties are solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making of these orders.

6. That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Family Court of Australia is appointed pursuant to Section 106A of the Family Law Act 1975 (Commonwealth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

7. The above orders shall not commence operation until 2 March 2010.

8. That both parties have leave to re-list these  proceedings for submissions about the form of the orders only at any time not later than 1 March 2010.

9. That both parties have leave to re-list these proceedings on 7 days notice in relation to the implementation of these orders.

10. That all exhibits be released.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 247 of 2008

MR SANFORD

Applicant

And

MS WEVER

Respondent

REASONS FOR JUDGMENT

Introduction and Applications

1. These are property proceedings.  The parties in these proceedings are Mr Sanford and Ms Wever.  For convenience I shall refer to them as “the husband” and “the wife” respectively.

2. The husband seeks orders to the effect that the former matrimonial home at P, New South Wales be sold and that the proceeds of sale be paid as follows:

   ·to pay the costs of sale including agent’s commission and legal costs;

   ·to discharge the mortgage;

   ·to pay $260 889 to B Pty Limited in repayment of the loan by that company to the husband;

   ·to repay either party for any monies spent by them to make the property ready for sale and

   ·to pay the balance 60 percent to the husband and the balance to the wife;

   ·an order to the effect that each of the parties be declared solely entitled to all other property in their possession and/or control respectively; and

   ·an enforcement order.

3. On the other hand, the wife seeks orders to the following effect:

   ·that within one month the wife produce to the husband’s solicitor evidence of a written loan approval in an amount sufficient to discharge the present mortgage on the property and to pay to the husband the sum of $120 231 and that within a further 42 days the wife pay such amount to the husband and discharge the mortgage and the husband transfer to the wife his interest in the former matrimonial home;

   ·in the event that the wife fails to comply with the above order the parties sell the said former matrimonial home and pay the net proceeds in the following manner:

   oin payment of agent’s commission and auction expenses;

   oin payment of legal costs of the sale;

   oin discharge of the mortgage and

   oin payment of 70 percent of the balance to the wife as well as the sum of $107 043 and in payment of the balance to the husband

   ·an order that otherwise the parties be declared the sole owners of all other property in their possession and/or control respectively; and

   ·an enforcement order.

Background

1. The wife was born in 1963 and she is therefore 46 years of age.  The husband was born in 1972 and he is therefore 38 years of age.  The parties commenced cohabitation some time between March and May 1991.  They married in 1998 and separated in February 2002.  There are three children of the marriage namely D born in 1990 who is therefore 19 years of age, J born in December 1994 who is therefore 15 years of age and T born in May 1997 who is therefore 12 years of age.

2. At the time that the parties commenced cohabitation the husband did not own any property of significant value.  The only property owned by the wife was her second- hand motor vehicle.  The husband was working as a sportsman.  The wife was not working.

3. A close personal friend of the husband, Mr S, had provided a rented apartment in W for the parties to live in. Mr S had also paid for furniture and household goods for the apartment and he continued to pay the rent.  Mr S was one of the husband’s coaches.

4. In 1991 Mr S purchased a new Suzuki motor vehicle for the parties.

5. In early 1992 the parties moved to live at a rented townhouse at A.  Mr S paid for the bond and rent in respect of this townhouse.

6. Later that year the parties decided to purchase a home R.  They purchased this with a delayed settlement being a condition of the contract.  So they moved out of the townhouse and returned to live at the homes of their respective mothers for 2-3 months prior to the settlement.

7. This property was purchased in the husband’s name for $193 000.  The husband borrowed $160 000 from the State Bank. Mr S paid the deposit and the stamp duty.

8. The parties separated for a short period from late May 1994.  The wife made an application for child support assessment and an assessment issued.

9. In 1994 the husband traded in the parties’ Suzuki motor vehicle on a second hand Toyota Landcruiser for the wife and a Subaru WRX for himself.  Mr S paid the difference between the trade in amount and the cost of the vehicles.

10. During 1994 the husband was playing professional sport in Sydney.  Amongst other engagements the husband played overseas for one week in October 1994 and this was followed by an end of season tour overseas for three weeks.

11. In October 1995 the husband purchased the property at P for $255 000.  The deposit, stamp duty and legal costs were paid by Mr S.  The husband borrowed $200 000 on mortgage to complete the purchase.

12. The R home was sold in June 1996 for $220 000.

13. From approximately this time the husband had an arrangement with Mr S under which the husband would act in effect as a chauffeur to Mr S and undertake some administrative tasks for Mr S.

14. In 1997 the parties traded in their motor vehicles on two new Ford Lasers.  Mr S paid the difference between the trade in amounts and the cost.

15. As indicated above, in 1998 the parties married.  The wedding was celebrated at Mr S’s country property.  Mr S paid the costs of the wedding and the reception. The parties and the children then went on a three week holiday at Mr S’s property in Queensland at no cost.  Mr S paid the cost of the airfares and provided spending money.

16. In late 1998 the husband commenced operating a delivery business.  Mr S had funded the purchase of the business as well as providing the funds for the purchase of a delivery van for the business.  These costs came to a total of approximately $21 000.  But unfortunately the business failed after only a short time of operating.  The supplier from which the husband collected the products closed.

17. In December 1998 the husband commenced working for Mr C.  Mr C operated a building business.  The husband continued to train and play in professional sport.

18. In December 1999 the husband received $46 689 net following legal proceedings brought successfully by him and others.

19. In May 2000 the parties separated for a month.  The husband conceded to the wife that he had a drug problem.

20. In May 2001 the husband underwent a program of rehabilitation which cost $10 000.  The husband borrowed the required funds from his grandmother.

21. After completing the program the husband returned to living at the matrimonial home.  But by this stage the parties’ relationship was in a poor state and they separated in February 2002.

22. At separation the husband left the former matrimonial home and commenced living at a property owned by Mr S at W, rent-free.

23. The wife and children have remained living in the former matrimonial home.  Mr S has continued to pay the mortgage repayments on the home.

24. The husband played his last professional game in 2002.  He underwent a knee reconstruction at the end of that season and did not work again that year.

25. From mid 2003 the husband worked for a labour hire company for approximately 6 months.  Then the husband worked for a plumbing company for approximately one year.

26. In July 2005 the husband commenced working with E Company.  The husband continues to work in this position.

The Applicable Law

1. Sub-section 79(1) of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate.

2. Sub-section 79(2) provides that the Court shall not make an order under the above sub-section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. There is a long-standing preferred approach to the determination of an application brought pursuant to the provisions of s 79.  This involves four inter-related steps.  Firstly, the Court should make findings about the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing.  Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties.  Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two.  Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. 

4. This approach has been confirmed in numerous cases in this Court including for example Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355; Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 and Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693.

Property available for division

1. To their credit the parties were able to agree largely on their various assets, interests in superannuation and liabilities.  There were, however, a couple of issues for determination.

2. Firstly, it was submitted on behalf of the wife that an amount of $65 788 should be added back to the pool of available property.  It was submitted that this amount was the available balance as at 31 July 2004 in the husband’s Commonwealth Bank streamline account.  It was submitted that the husband was asked to account for the disposition of these funds from the account and that he did not give any satisfactory explanation.  In these circumstances it was submitted that the amount should be added back as indicated above.

3. The husband was cross-examined about this amount.  He was asked whether this was the residue of monies available from his professional sporting career to which he replied that he did not know.  He said that if it was from sport it would have gone straight to his manager at the time Mr N.  His evidence was that his arrangement with Mr N during his professional sporting career was that Mr N looked after the money, paid the accounts and the husband did not pay any close attention to financial matters. 

4. It was submitted on behalf of the husband that as a matter of law the husband is not obliged to account for every item of expenditure following separation.  Learned counsel for the wife drew my attention to the decision of the Full Court of this Court in the case of Townsend and Townsend (1995) FLC 92-569. That was a case which involved the add back of certain funds produced by the sale of a taxi by the husband. The husband had had the benefit of almost the entirety of the funds produced by the sale. The Full Court said at page 81,654 that had the husband retained the taxi licence instead of selling it that would have been brought into account as an item of property and would have been dealt with in the same way as other items of property in the case. The Full Court said that in those circumstances the correct way to deal with the husband’s receipt of those monies was to bring them back into the pool of assets on a notional basis and to make a distribution accordingly.

5. It was submitted on behalf of the husband that that situation is very different from the situation in relation to the $65 788 in the present case.  In the present case, the $65 788 appeared in the husband’s Commonwealth Bank account a couple of years after separation.  The husband was not clear about the source of the funds.  Presumably some of the monies were paid by Mr S.  In any event I agree with the thrust of the submission by learned counsel on behalf of the husband in this regard.  This is not to say, of course, that there would not be cases where, in relation to an amount of funds standing in a bank account which had been expended, it would not be appropriate to bring such back into the pool of property as a notional asset.

1. Having said this, there was a related issue about which of the parties received the benefit of regular weekly transfers of $400 from the account. The husband said that between 1 October 2001 and 30 December 2005 the wife withdrew $400 from his Commonwealth Bank account each week. The wife denied this. The husband said that the wife had a card which enabled her to undertake such transactions on his account. The wife denied that she had such a card.

2. The husband was given an opportunity to endeavour to obtain documents from his former manager, Mr N which might be able to shed some light on this issue. But the husband was unable to obtain any documents in the available time.

3. Accordingly, I am unable to make a finding that the wife has had the benefit of regular weekly withdrawals of $400 as asserted by the husband. But as indicated above, I do not consider it appropriate to add this money back into the pool of available property. However this leaves things in the position where it must be the husband who has had the benefit of most of this money. I shall therefore take this into account as a relevant matter under s.75(2) of the Act.

4. In relation to the submission that $8000 should be added back into the pool it was submitted that an amount of $8160, being the balance available in the husband’s ING direct account as at 16 May 2008, should be added back to the pool of available property.  This was on the basis that the husband indicated in his response to questions about this matter that he had spent this money.  It was in these circumstances that it was submitted that the money should be notionally added back to the pool.  I am not persuaded that there is any basis for adding back this amount.

5. In these circumstances the property available for division between the parties is as follows:-

$
1.         Former matrimonial home at P	781,250
2.         Husband’s St George bank account	2,521
3.         Husband’s Mazda motor vehicle	14,000
4.         Husband’s household contents	1,000
5.         Husband’s funds in solicitor’s trust account	12,000
6.         Husband’s paid legal fees (add back)	28,305
7.         Husband’s E Company superannuation	49,435
8.         Wife’s Toyota Corolla motor vehicle	18,000
9.         Wife’s paid legal fees (add back)	12,000
10.      Wife’s Hesta superannuation	4,000
_____________
$922,511

1. The liabilities are as follows:-

$
1.         Mortgage on former matrimonial home	38,012
2.         Husband’s outstanding rates against former matrimonial home	4,728
3.         Husband’s outstanding income tax	440
4.         Husband’s St George Visa card	4,471
5.         Loan from Mr S for legal fees	40,305
6.         Wife’s ANZ mastercard	4,674
7.         Wife’s CBA mastercard	6,402
8.         Wife’s HSBC credit card	5,437
9.         Wife’s GE Money mastercard	11,517
10.      Wife’s St George mastercard	25,084
11.      Wife’s hire purchase liability for car	12,500
12.      Wife’s legal fees loan	12,000
_____________
$165,570
Surplus	$756,941

Cohabitation

1. There is an issue about when the parties commenced cohabitation. This issue had some prominence in the proceedings. 

2. It is common ground that the parties commenced their relationship in late 1989.  It is also common ground that they were not cohabiting when their first child D was born in September 1990.  Each of the parties was then living at their respective mother’s home. The husband’s version was that the parties commenced cohabiting approximately six to eight months after D’s birth.  He said that this occurred at his rented apartment at W.

3. There is no question that the husband lived at the apartment. 

4. The wife said that she never lived at the W apartment with the husband.  She said that she continued to live in her mother’s home although she conceded that she stayed at the apartment with the husband and their son D several nights each week.

5. The husband’s mother said that she and her husband helped the husband and wife move in together to the apartment at W and to get set up.  She said that she and the wife went shopping together for household equipment for the premises. She said that she purchased a cot for baby D and put this in the W unit.

6. There was a very late affidavit filed in the wife’s case which contained some limited material about this matter.  The wife’s mother said that following D’s birth the wife continued to live with her.  The wife’s mother said that she did not recall the exact date that the wife left but said that when she did she moved into the home at R with the husband.  In my view this material does not take the matter any further.  I informed learned counsel for the husband about this and in the light of my observations learned counsel for the husband declined to cross-examine the wife’s mother about the matter.

7. I must say I am more inclined to accept the husband’s version of events in respect of this matter than I am that of the wife.  As was submitted by learned counsel for the husband, the parties were young, they had a new baby and once the home represented by the W apartment was made available to them it would be surprising if they did not make the most of the opportunity that that presented for them to have time together with their baby there.  Looking at it objectively this would tend to be all the more so when one considers that the accommodation at the wife’s mother’s home was very limited and would have to be shared not only by the wife with her mother but also with her sister.  This is not to suggest that the wife did not also live some evenings at her mother’s home which probably she did.  But I would be surprised indeed if the majority of her time was not spent at the W apartment with the husband and the parties’ son D. In any event, I preferred the evidence of the husband and his mother about this matter to that of the wife and her mother.

8. There was a similar issue about the circumstances of the parties living at the A premises.  Again it is clear that Mr S assisted by paying the bond and rental in respect of the A property.  Clearly the husband was living there and he was the tenant.  Again, the wife said that she did not live at the property but rather she lived at her mother’s home.  I have a similar view in respect of the living circumstances of the parties at this property.  I make a similar finding that it is more probable than not that they cohabited at this property subject to the likelihood that on some evenings the wife was living with the child at her mother’s home.

9. In any event, I do not regard the findings in respect of this issue to be of much relevance in the proceedings.  The really relevant matter is the extent to which they made contributions during this period. 

Contributions

1. As indicated above, the parties commenced their cohabitation in very modest circumstances.  The only asset of any significant value was a second-hand motor vehicle owned by the wife as I have said.

2. Apart from a couple of very brief periods of unemployment the husband has had continuity of employment from the commencement of the parties’ cohabitation until separation.  Having said this, the quantum of income received over the years varied considerably.  For example, in the financial year ended 30 June 1992 the husband’s taxable income was $19 697.  This rose to a peak of $179 151 in the financial year ended 30 June 1997 but fell to $34 398 in the financial year ended 30 June 1999.  Apart from a few very good years between 1994 and 1998 the husband’s income was modest.  It is clear that had it not been for the generosity of Mr S the family would not only not have been able to have the security of their own home in which to live, but during many of the relevant years, they would have really struggled to make ends meet.

3. Nevertheless, this continuity of employment by the husband has had the consequence that it is the husband who has made the overwhelming financial contributions.

4. On the other hand, the husband conceded that the wife has been the children’s primary parent and caregiver.  However, the husband did not make this concession in relation to the first 8 years of the parties’ cohabitation.  In relation to this period the husband drew attention to the fact that as a professional sportsman he was available at home throughout much of the day and that during this period he undertook much of the physical tasks involved in the care of the children.

5. The wife denied this.  She said that he was not at home much.  She denied that he bathed and fed the children and said all he did when the children were of pre-school age was that he played with them “a bit”.  The wife somewhat begrudgingly conceded that he took the children to school “only a few times” and attended their sporting activities “once every blue moon”.  However, to her credit the wife conceded that the husband was actively involved in training and supporting D in playing sports.  Given the husband’s professional sporting career it would be incredible for him not to have taken a keen interest in D’s involvement in sports.  I am sure that he did.

6. I am satisfied that the husband made a contribution to the welfare of the children and as a homemaker.  It is clear that he did some painting at the P home and was involved in the installation of a verandah.

7. Having said this, in my view, there can be no question that the wife made the overwhelming contribution to the welfare of the family and as homemaker and parent, particularly in view of her major contribution in these areas after the parties separated.

8. Following the parties’ separation until February 2004 the husband paid the wife $150 per week.  He increased this to $200 per week in February 2004 and then to $250 per week in October 2006.  As indicated above, the husband said that in addition to these monies he paid the wife $400 per week.  As also indicated above I am unable to make this finding on the available evidence.

9. The husband also made some other payments to the wife.  In August 2005 he paid $1300 to the wife towards orthodontic work for J which cost $5200.  In November 2007 the husband paid $700 in school fees.

10. In July 2008 the husband ceased paying the wife the $250 per week apparently out of frustration about his treatment by the Child Support Agency.  But the Agency garnisheed his income and the arrears have been recovered.

11. A major issue in the case is how the Court ought to deal with contributions made by Mr S.  Unfortunately, there is no evidence filed by Mr S.  This has at least two broad consequences.  Firstly, the Court cannot be clear about the quantification in money terms of the contributions.  Secondly, the Court cannot be certain about whom it was that Mr S intended the contributions to benefit.

12. Turning to the first of these matters, it is clear that Mr S has been making financial contributions which have benefited this family over the period from 1990 to the present time.  I have referred to the history of such contributions above.  Unfortunately, while the husband was able to give a general description of financial contributions by Mr S, he indicated that his primary focus, certainly over the early period of cohabitation and marriage, was to concentrate on training and playing professional sports.  He said that he left financial management of his affairs to his manager Mr N and to some extent to Mr S. 

13. There is however, some objective evidence.  It is clear from the husband’s income tax returns that Mr S’s company, B Pty Limited, paid income to the husband to a total of $206 805 for the tax years ending 30 June 1992, 1993, 1994, 1995, 1996, 1997, 2003, 2004 and 2005.  The husband indicated that he provided services to Mr S over this period.  These services included driving Mr S, undertaking banking and running errands.

14. In relation to these monies, in my view, there can be no question that it is appropriate to regard such as financial contributions by the husband.  In my view these contributions are to be regarded in the same way as any other earnings such as the husband’s income from his professional sport and his income from his other employers during his career as described above.

15. What is unclear to me is whether the money paid by Mr S by way of deposits, stamp duty and legal costs in respect of the properties purchased by the husband were part of the income paid to the husband by B Pty Limited or were additional thereto.  In my view, the relevant details should be available to the husband and he has not provided these to the Court.  One would have thought that Mr N might know such details and if not, it would be surprising indeed if Mr S was unable to furnish such details.  In these circumstances I draw the inference that such monies have been brought to account as income paid to the husband by B Pty Limited as referred to above.

16. There is evidence before the Court to establish that Mr S deposited $3034 mostly to the husband’s Colonial State Bank account during the financial year ended 30 June 2000 and 30 June 2001.  This account became a Commonwealth Bank Streamline account as from 30 June 2001 and Mr S deposited the same monthly amount to this new account during the financial year ended 30 June 2002.  These monies were not included as income in the husband’s income tax returns for these years. But there was no indication by the husband that he ceased undertaking the provision of services to Mr S during these years.  Accordingly, the money is to be regarded as financial contributions by the husband in return for which the husband provided services to Mr S.

17. There have also been the other contributions made by Mr S as indicated above.  He funded the purchase of motor vehicles for the parties, he gave them holidays, he paid the costs of their wedding and honeymoon, he paid for the delivery business and its van and he has continued to pay the mortgage repayments in relation to the former matrimonial home.  There can be no question that Mr S has made contributions well above the contributions which appear to have been made on account of the husband having provided the services described above to Mr S.

18. This raises the second matter.  This is how does the Court regard all these other contributions by Mr S?

19. It was submitted on behalf of the husband that the Court should apply to this case the approach taken by the Full Court of this Court in the case of Kessey and Kessey (1994) FLC 92-495. I note in this regard the following passage at page 81,150:

    There is certainly nothing inconsistent, in our view, between the trial Judge’s approach and the statements of principle made by Fogarty J. in Gosper.  It may well be, however, that the trial Judge’s approach and our approval of it, go somewhat further than what was said by Fogarty J. in Gosper.  This is because this case would establish that where there is no evidence of any intention by a parent-donor as to whether he or she wished to benefit only his or her child or also to benefit the spouse of the child as well as the child, then the fact of the parent-child relationship, especially in circumstances where that has been a relationship of support on the part of the child, will be sufficient to establish a contribution of the donation by or on behalf of the child of the parent.  In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.

20. It was submitted on behalf of the husband that because of the close personal relationship between the husband and Mr S, Mr S was in a similar position to that of a parent, or an uncle of the husband.  It was submitted that had it not been for the relationship between Mr S and the husband, then the contributions to this family would not have been forthcoming.  In these circumstances it was submitted on behalf of the husband that the contributions made by Mr S should be regarded as contributions on behalf of the husband, rather than contributions to both parties.

21. On the other hand, it was submitted on behalf of the wife that the husband agreed that every contribution by Mr S had a benefit to the family.  It was submitted that if Mr S intended his contributions to benefit only the husband rather than the husband and the family then Mr S should have filed an affidavit to make such an intention clear and he has not done so.

22. In my view it is inescapable to conclude that contributions which have had the effect of benefiting the wife and children would not have been made by Mr S in the absence of the close personal relationship between the husband and Mr S.  In my view the approach taken by this Court in Kessey is applicable. 

23. Accordingly, contributions by Mr S shall be taken to be contributions made on behalf of the husband in the absence of evidence to establish that it was not Mr S’s intention to benefit only the husband.

24. This is of course subject to the view that I have expressed above that so far as the payments of income to the husband are concerned, I shall treat those in the same way that the Court would usually consider income earned by one of the parties to a marriage.

25. In these circumstances I am led to the position where I am satisfied that, because of the contributions by Mr S over and above those I regard as being in the nature of income or wages for services provided by the husband to Mr S, the pendulum in relation to contributions overall must swing in favour of the husband. But bearing in mind all the contributions by the wife since separation, particularly her much greater parenting contribution since separation than that of the husband, the swinging of the pendulum shall be modest. 

26. For all these reasons I find the parties’ contributions overall to have been 57 percent by the husband and 43 percent by the wife.

s 75(2) matters

1. The husband is 38 years of age and he is in good health.  He works full-time with E Company.  His gross income is $1513 per week.  The husband has been working in this employment since July 2005 and on all current indications ought to be able to continue in this employment for the foreseeable future.

2. On the other hand, the wife is 46 years of age and she too is in good health.  The wife is working four days per week as a child care worker.  Her income is $573.50 per week gross.  The wife would like to work five days per week but this has not been offered to her to date. The wife has been undertaking this employment since March 2008.  The wife would appear to be able to continue in this type of work for the foreseeable future hopefully in a full-time capacity.

3. The wife has the sole care of the two younger children and on present indications can be expected to have their sole care for many years into the future.  Sadly, the children’s relationship with their father has broken down and they have no contact with him.  The eldest child D is 19 years of age.  He was employed as an apprentice until September 2009 when he lost his apprenticeship.  He has been unemployed since then and lives with the wife.

4. The Court is also to take account of the extent to which a party has contributed to the income, earning capacity, property and financial resources of the other party.  There is no doubt that the wife has done this.  She supported the husband in his professional sporting career and in his subsequent employment, particularly by remaining out of the workforce to attend to the needs of the children.  This has enabled the husband to pursue his career and to arrive at his present position of enjoying secure employment.

5. The Court is also to consider the duration of the marriage and the extent to which it has affected the earning capacity of a party.  The wife had been out of the work force for many years until 2008 when she re-entered it in her present employment as child care worker.  She has concentrated her skills on the primary care of the children and by doing so has not been in a position to develop work skills and experience to the extent that the husband has been able to do this.

1. The husband is paying child support in the amount of $294 per week.  On the basis that his employment appears to be secure one would anticipate that the wife would continue to receive child support at approximately this rate for the foreseeable future.

2. I note also the fact that it is the husband who has had the benefit of much of the monies in his account with the Commonwealth Bank as referred to above.

3. In my view a proper consideration of these s 75(2) matters leads to the conclusion that a just and equitable order will require a set-off of part of the available property in favour of the wife.  In particular, she will almost certainly have the responsibility, both physical and partly financial, for providing for the  children still for many years.  And this is likely to continue to be in circumstances where the husband will not be providing any physical assistance to the children.  There is also considerable difference between the husband and the wife in terms of their capacities for earning income and this is likely to continue.

4. In all these circumstances, and keeping in mind that the pool of available property is quite modest, in my view the appropriate set-off is 15 percent.

Conclusion

1. The husband is to have 42 percent of the property available for division between the parties.  This is property with a value of $317 915.

2. The husband has the following property:

$
1.         St George bank account	2,521
2.         Mazda motor vehicle	14,000
3.         Household contents	1,000
4.         Funds in solicitor’s trust account	12,000
5.         Paid legal fees (add back)	28,305
6.         E Company superannuation	49,435
_____________
$107,261

1. But the husband has the following liabilities:-

$
1.         Income tax	440
2.         Visa card	4,471
3.         Loan from Mr S for legal fees	40,305
_____________
$45,216

1. So the husband has net property with a value of $62 045 ($107 261 - $45 216 = $62 045).

2. To achieve property with a value of $317 915 the husband will require additional property with a value of $255 870 ($317 915 - $62 045 = $255 870).

3. This can come only from either a payment by the wife or from the proceeds of sale of the former matrimonial home.

4. On the other hand the wife is to have 58 percent of the available property.  This is property with a value of $439 026.

5. The wife has the following property:-

$
1.         Toyota Corolla motor vehicle	18,000
2.         Paid legal fees (add back)	12,000
3.         Wife’s Hesta superannuation	4,000
_____________
$34,000

1. But the wife has the following liabilities:-

$
1.         ANZ mastercard	4,674
2.         CBA mastercard	6,402
3.         HSBC credit card	5,437
4.         GE Money mastercard	11,517
5.         St George mastercard	25,084
6.         Hire purchase liability for car	12,500
7.         Legal fees loan	12,000
_____________
$77,614

1. Therefore, the wife has liabilities which exceed her property by $43 614.

2. To achieve property with a value of $439 026 the wife requires further property with a value of $482 640 ($439 026 + $43 614 = $482 640).

3. The wife wishes to endeavour to retain the former matrimonial home by paying the husband for his interest in it.  The value of this home is $781 250.  The outstanding mortgage balance is $38 012 and there are outstanding rates of $4728.  Accordingly, the equity is $738 510 ($781 250 - $38 012 - $4728 = $738 510).

4. For the wife to retain the home the following would be involved.  The equity is $738 510.  The wife requires additional property with a value of $482 640.  This can come from the equity in the home which would leave a balance of $255 870 ($738 510 - $482 640 = $255 870). 

5. The wife would need to pay the husband the sum of $255 870 as well as pay out the mortgage balance of $38 012 and the outstanding rates of $4728.  This is a total of $298 610.  But in addition to this amount, the wife would also have to borrow $77 614 to pay her liabilities.  This would be total borrowings of $376 224.

6. The wife has not presented any evidence which would indicate any possible way for the wife to be able to borrow an amount of money anywhere close to such an amount.  In these circumstances I can see no point in an order to the effect that the wife have opportunity to pay the husband for his interest in the home.  Regrettably, the home will have to be sold.

fourth step

1. The former matrimonial home will be sold.  As indicated above, this will produce proceeds of $738 510 (omitting sale costs).  The wife will have $482 640 thereof and the husband will have the balance of $255 870.  These proportions of the equity are 65.353 percent and 34.647 percent.  It is not clear what the sale of the property will achieve or what the costs of sale will be.  Therefore, the orders will require the net proceeds of sale after discharge of the mortgage, payment of rates, sale costs and legal costs on sale to be paid to the parties in accordance with these percentages.

2. From the wife’s payment of say $482 640 she will have to pay her liabilities of $77 614 which would leave her with an amount of say, $405 026 ($482 640 - $77 614 = $405 026) minus her outstanding legal costs to put towards accommodation for herself and the children or to spend as she might wish. 

3. On the other hand, the husband will have the sum of say $255 870 plus his net property of $62 045 referred to above.  He would probably be able to borrow sufficient funds to purchase a modest home for himself.

4. The orders I propose will not affect the capacity of either party to earn income.

I certify that the preceding one-hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judicial Registrar W P Johnston

Associate:     

Date:              12 February 2010