Sigfusson and Calder
[2010] FamCA 739
•20 August 2010
FAMILY COURT OF AUSTRALIA
| SIGFUSSON & CALDER | [2010] FamCA 739 |
| FAMILY LAW – PROPERTY – Settlement in relation to marriage |
| 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 |
| APPLICANT: | Mr Sigfusson |
| RESPONDENT: | Ms Calder |
| FILE NUMBER: | SYC | 773 | of | 2009 |
| DATE DELIVERED: | 20 August 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 9 & 10 August 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levy |
| SOLICITOR FOR THE APPLICANT: | York Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
Orders
That within 50 days the wife pay to the husband the sum of $187 197.
That simultaneously with the wife complying with the above order the husband shall do all things and sign all documents necessary to transfer to the wife his interest in the former matrimonial home at G, New South Wales folio identifier … (“the G property”).
That in the event that the wife fails to comply with order 1 above the parties shall forthwith do all things to list the G property for sale for the best price reasonably obtainable in the following manner:-
(a)list the G property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement as to agent within 14 days 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;
(b)the sale price at which the G property shall be listed shall be mutually agreed upon by the parties or, in the absence of agreement reached within 14 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 New South Wales Division of Australian Institute of Valuers and Land Administrators (Incorporated) (“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;
(c)the parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):
(i)making the key available to the agent;
(ii)allowing inspection of the G property at all reasonable times requested by the agent;
(iii)doing or saying nothing to hinder or prevent a sale being effected;
(iv)ensuring the G property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(v)signing all documents requested by the agents in relation to the listing for sale of the G property except a contract or agreement for sale which has not been authorised by the parties’ solicitors;
(d)the parties shall each execute a contract for sale in the form prepared by the solicitors 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 order 3(b) above;
(e)the parties shall instruct such solicitor as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within 14 days shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales (“the solicitor”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
(f)neither 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 G property or to any commission;
(g)the party not in possession shall be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the G property;
That in the event the G property is not sold by private treaty within three months from the date of order 3 becoming operative, then:
(a)The parties shall list the G property for sale by public auction with the agent appointed pursuant to order 3(a) above;
(b)The reserve price for the purpose of such auction shall be such as the parties agree upon within 14 days after the date upon which the G property is first listed for sale in accordance with order 3 above or in the absence of agreement a price determined by the auctioneer;
(c)In the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the G property at a price which is not more than 5 percent below the reserve price;
(d)If the G property remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the G property for sale by public auction again, on a date nominated by the said agent and at such auction the relevant provisions in orders 3 and 4 above shall apply.
That in the event that order 3 and/or 4 come into operation, then the proceeds of sale of the G property shall be paid in the following manner and priority:
(a)All costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees, and auction expenses;
(b)The amounts required to pay all municipal and water rates outstanding with respect to the G property;
(c)To the husband 50.594 percent of the balance and to the wife 49.406 percent thereof.
That within 14 days the wife deliver to the husband the following items:
(a) Large Icelandic flag used to cover the husband’s late father’s coffin;
(b)Personal items belonging to the husband and which remain in the former matrimonial home;
(c)Copies of photos of the children;
(d)All documents belonging to the husband, whether of a financial and/or personal and/or medical nature;
(e)The husband’s Icelandic to English hardback dictionary;
(f)Two Icelandic language learning books gifted to the husband in 2003/2004.
That the husband and wife be declared the sole owner respectively of all other property and superannuation in their possession and/or control.
That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these orders a Registrar of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A(1) of the Family Law Act 1975 to execute such documents on behalf of such party.
That the above orders not commence operation until 7 September 2010.
That both parties have leave to re-list these proceedings for further submissions in relation to the form of the orders only at any time until 6 September 2010.
That all exhibits be released.
IT IS NOTED that publication of this judgment under the pseudonym Sigfusson & Calder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 773 of 2009
| MR SIGFUSSON |
Applicant
And
| MS CALDER |
Respondent
REASONS FOR JUDGMENT
Introduction and applications
These are property proceedings. The parties are Mr Sigufsson and Ms Calder. For convenience I shall refer to them as “the husband” and “the wife” respectively.
The husband seeks orders to the following effect:
·That within 42 days the wife pay to him the sum of $272 278.
·That contemporaneously with the wife’s compliance with the above order the husband do all things and sign all documents necessary to transfer to the wife his interest in the former matrimonial home at G, New South Wales;
·That in the event that the wife fails to pay the husband in accordance with the above order the parties do all things and sign all documents necessary to list the former matrimonial home for sale and after paying costs of sale and rates adjustment the net proceeds be paid in the amount of $272 278 together with interest at the prescribed rate to the husband and the balance be paid to the wife;
·That the wife deliver certain specified items of personal property to the husband;
·That each party be declared the owner of all other property and superannuation in their possession and / or control respectively;
·An enforcement order and
·That the wife pay the husband’s costs of the proceedings.
On the other hand the wife seeks orders to the following effect:
·That within six weeks the wife pay to the husband the sum of $161 818;
·That simultaneously with the above payment the husband do all things and sign all documents necessary to transfer to the wife his interest in the former matrimonial home at G, New South Wales;
·That the husband’s interest in Australian Super be the subject of a splitting order such that a base amount of $38 306 is allocated to the wife; and
·That the parties each be declared the owner of all other property and superannuation in their possession and / or control respectively.
Background
The husband was born in 1952 in Iceland. The wife was born in 1955 in Australia. They met in 1979 and commenced cohabiting in Iceland in approximately mid 1980. They married in 1981 in Australia and separated finally in March 2003.
There are 2 children of the marriage both now adults namely K who was born in 1985 and S who was born in 1987.
At the time the parties commenced cohabiting the husband’s property consisted of a motor vehicle, some livestock and slaughtered animals, and a very modest parcel of shares. He did not have any liabilities. The parties lived with the husband’s parents rent-free for approximately one year, then rented a unit together. The husband was working in various seasonal jobs including agricultural and factory worker.
At this time the only assets of any significant value of the wife were an inheritance held in Australia of approximately $10 500 and some modest savings. The wife spent these funds for the benefit of the parties including on the parties’ wedding and on holidays by the parties to Australia. The wife was working in a factory.
In 1985 the parties and the husband’s parents commenced construction of a home on land owned by the husband’s parents. The home was two storeys and sufficiently large to accommodate the parties and the husband’s parents. The parties borrowed funds on mortgage to assist in financing this work. The wife also drew her Icelandic superannuation and paid this towards the costs of the new home.
The wife continued to work full time until shortly before the birth of the parties’ elder child K.
The husband’s parents subsequently transferred the land on which the jointly occupied home had been built to the husband.
After some time the parties started to experience difficulties in their marriage. By 1992 the wife wanted to separate from the husband and move to Australia with the children. The wife so informed the husband. The husband sold the family’s sheep and gave the proceeds to the wife. The wife moved to Australia with the boys in November 1992. The husband decided to sell the farm and equipment and follow the family to Australia.
Upon their arrival in Australia the wife and children lived with a friend for a few weeks. Then the wife rented a home at G. The husband arrived in Australia in November 1993. The parties reconciled and the husband moved in to live with the wife and children at the G home.
The husband obtained full time work in the position which he has continued working in to the present time. This is a factory position. It is manual work involving operation of a mechanical saw which the husband uses to cut metal frames.
In approximately May 1994 the wife received approximately $58 568 from her late mother’s estate.
The property in Iceland sold in approximately October 1994. The net proceeds of sale were shared in the proportions of one-third to the husband’s mother (his father having died) and two-thirds to the husband. The husband subsequently received $60 000. The husband has retained a small part of the land.
In January 1995 the parties purchased the former matrimonial home at G in joint names for $165 000. This was funded by using the $60 000 from the proceeds of sale of the property in Iceland, the wife’s inheritance of approximately $58 000, a mortgage of $40 000 and the balance from savings.
In 1995 the wife commenced voluntary, unpaid part time work as a teacher’s aid. The wife worked in a similar position which involved longer hours from 1998 but was paid for her services.
In 2000 the husband visited his sick mother in Iceland. He says he arranged for two bank accounts he still held there to be closed and the balance transferred to the parties’ joint account in Australia. He said that approximately $29 000 was transferred. The wife denies this and I shall refer to this again below.
The parties separated in March 2003 and the husband left the home. There is an issue about this and I shall refer to this again below. The wife continued living with the boys in the home. By this time the home loan had been all but repaid.
The husband initially slept in his car and at motels. Then he lived in a rented room in a converted garage.
The husband became quite depressed and sought medical assistance.
At the time of separation the only accounts the husband had were the joint New South Wales Teachers Credit Union account and 2 accounts in Iceland. The wife had a personal account with the New South Wales Credit Union. This account had a balance of $9 323.86 as at 30 June 2003.
In April 2003 the husband opened a personal account with the New South Wales Credit Union. The husband arranged for his employer to deposit $150 per week from his wages to his personal account and the balance to the joint account as from May 2003.
In December 2003 the husband’s mother died and he inherited approximately $47 000 from her estate. These funds were paid to the joint account in two instalments the latter by late January 2004.
From February 2004 to February 2005 the husband arranged for his employer to pay $250 per week from his wages to his personal account. The balance was paid to the joint account.
The parties’ son S moved from his mother’s home and commenced residing with his father in May 2004. There was an issue about his because the husband asserted that this happened in January 2004. But I prefer the evidence of the wife about this matter. In any event I accept that during much of 2004 when S was living with his father he often went to his mother’s home and used the computer there.
In February 2005 the parties transferred their joint account with the Teachers Credit Union into the sole name of the wife.
In March 2005 the husband changed his previous practice concerning deposits from his wages to what had been the joint account. From that time he arranged payment of $250 per week to the wife’s account and this continued to April 2006.
In July 2005 the parties decided that they would divide the balance of the jointly held funds, in what had become the wife’s account, between themselves equally. In July 2005 the sum of $29 600 was transferred from that account to the husband’s account.
In August 2005 the parties’ son K moved from the wife’s residence and commenced living with his father.
In April 2006 the husband reduced his payments to the wife’s account from $250 per week to $150 per week.
The parties started to have discussions about the possibility of constructing a granny flat at the former matrimonial home. Their idea was that the husband and the boys could then live in the home and the wife could live in the granny flat. The husband had wanted to sell the home but he agreed to the wife’s proposal to endeavour to have a granny flat built. Quite some preparatory work was undertaken with an architect, other professionals and the local council.
Between July and October 2006 the wife transferred to the husband’s account a total of $76 625. These monies were to assist in the funding of the construction of the granny flat. But over the next year it became clear that the parties would not be pursuing the building project. The wife asked the husband to transfer the funds back to her. In December 2007 the husband returned a total of $55 000 of the $76 625 to the wife’s account.
In November 2007 the husband suffered a stroke. He subsequently underwent an operation to have a stent inserted into his coronary artery.
In May 2008 the husband stopped paying any money to the wife’s account.
Since separation the wife has undertaken some repairs and improvements to the former matrimonial home.
Separation
There is an issue between the parties about when they finally separated. The husband said that this was in March 2003. The wife said that this was in January 2004.
There is no dispute that they separated in March 2003. It is common ground that they had a falling out in March 2003. It is also common ground that the husband left the former matrimonial home then. As indicated above, initially he lived in his car and at motels but after a short time he rented a room. He was depressed. The wife remained living with the parties’ sons in the former matrimonial home.
The wife said that by late 2003 the parties had reconciled. The wife said that in December 2003 the husband was at her home when a telephone call was received from a friend in Iceland to inform them that the husband’s mother was gravely ill. The wife said that some days later a further telephone call was received at the former matrimonial home and the husband was still there. This time the parties were informed that the husband’s mother had passed away. This was in late December 2003.
The husband agreed that he had been at the home at these times but said that he was there because there was something special on in relation to the boys including Christmas. He denied that he was staying at the home and said that he just went there. He said that he might have stayed a couple of nights because his mother had just died and that the wife was being very nice to him in those circumstances. He said that he was quite depressed. The wife helped him make his travelling arrangements to return to Iceland to attend the funeral and put his mother’s affairs in order. There is no question that when the husband returned to Australia in January the parties lived separately and apart.
In my view the onus is on the wife to establish the fact that the parties had reconciled after their separation in March 2003. I prefer the husband’s explanation about the circumstances in which he stayed at the former matrimonial home in late December 2003. In my view the wife has failed to establish that the parties became reconciled. In all the circumstances I am comfortably satisfied that the parties separated for the final time in March 2003 as alleged by the husband.
Sale of property in Iceland
There was also a dispute about the circumstances in which livestock and farming equipment were sold. The wife said that after she informed the husband of her intention to take the children to Australia to live the husband sold all the parties livestock and farming equipment and gave her the proceeds to fund the living costs of herself and the children in Australia. The husband would remain in Iceland until he had been able to achieve the sale of their home.
The husband said that prior to the wife and children leaving for Australia he had only been able to sell the sheep. I accept that he gave the proceeds of sale thereof to the wife. He also said that after the wife had left, he sold the horses, the farming equipment and a quota for the slaughter of animals which he sold to the Government. The husband said that he brought money from Iceland to Australia in November 1993 but cannot recall how much. He said that the proceeds of sale from the items of property referred to above were transferred to the parties’ joint account in Australia.
I must say I prefer the husband’s version of this to that of the wife. Accordingly, I accept that after the wife and children left Iceland the husband sold the items of property described by him and brought the proceeds to Australia. But I am not at all clear how much money this actually was.
In any event the home in Iceland was eventually sold. The net proceeds of sale were paid in the proportions of one-third to the husband’s mother and two-thirds to the husband. The husband’s share was $60 000 and the parties subsequently paid this towards the purchase of a home at G.
Alleged transfer of $29 000 from Iceland
As indicated above, the husband said that when he was visiting Iceland in 2000 he closed 2 accounts there, arranging for the transfer to Australia of $29 000. The wife denied this saying that no such monies were transferred. The husband was not able to produce any document to support his assertions about this matter. The onus to establish this is on the husband. Although I had quite a favourable view of the husband as a witness of truth, in the face of the wife’s denial I am unable to make a positive finding in his favour about this matter.
The Applicable Law
Sub-section 79(1) of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate.
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.
There is a long-standing preferred approach to the determination of property applications. 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 s 79(4) 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 consider the effect of any proposed order upon the earning capacity of either party, the relevant matters in s.75(2), any other order made under the Act affecting a party or child and any child support that a party has provided or for which a party might be liable. The Court is to 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 its findings and determination and resolve what order is just and equitable in all the circumstances of the case.
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
The property available for division between the parties consists of the following:-
$
1. G property
370,000
2. Husband’s land in Iceland
4,592
3. Husbands TCU account … n-s1
441
4. Husband’s TCU account … – s55
4,542
5. Husband’s first Iceland account
560
6. Husband’s second Iceland account
57
7. Husband’s IAG shares
4,180
8. Husband’s Mitsubishi Mirage
2,900
9. Husband’s paid legal fees (add back
44,111
10. Husband’s superannuation
77,641
11. Wife’s VTCU account … – s1
276
12. Wife’s VTCU account …– s10
4,000
13. Wife’s account … – s89
65,330
14. Wife’s paid legal fees (add back)
57,971
15. Wife’s superannuation
43,026
_____________
$679,627
There are no liabilities.
Contributions
At the time they commenced cohabiting each of the parties owned some modest property. As indicated above the husband owned some livestock including slaughtered animals, a motor vehicle, some shares and savings. The wife had her initial inheritance which was used towards the wedding and the trips to Australia as indicated above. The husband was working in seasonal jobs and on the hobby farm and the wife was working in a factory.
When they decided to build the home in Iceland together with the husband’s parents, each of the parties undertook both physical and organisational work in relation to the project. The wife cashed in her Icelandic superannuation and paid this towards the costs of the project.
After the children were born the wife was their primary parent and she concentrated on caring for them and the husband. The husband continued to earn income in his various jobs as he had done from the time cohabitation commenced. Then the wife received her inheritance from her mother’s estate of $58 568.
At this point the parties decided to purchase their own home and the inheritance and the $60 000 net proceeds of the parties’ share of the sale of the property in Iceland were paid towards the costs of acquiring that property together with the mortgage and savings referred to above.
The husband was working in his present position and providing his income for household purposes. The wife was attending to the needs of the children and the husband in the home.
Then the parties separated, this being in March 2003 as I have indicated above.
It was submitted on behalf of the husband that the Court would probably find that up to the time of separation the contributions by the parties have been equal. But it was further submitted that the Court ought to find that after separation the husband’s contributions have been greater than those of the wife. This was said to be on the basis that since separation he had made generous payments to the wife up until May 2008, that he had inherited the $47 700 after separation and he has had permitted the wife to occupy the former matrimonial home in circumstances where he had to pay rent on his accommodation since separation.
On the other hand it was submitted on behalf of the wife that so significant were the contributions by the wife after separation that the Court would ultimately find that her contributions overall had been greater than those of the husband. This was on the basis that firstly the wife had inherited the $58 568 from her late mother’s estate, that the wife had parented the two children without assistance from the husband in the first year after she brought them to Australia, that the wife had been a frugal manager of her own finances since separation and had it not been for her efforts in this regard there would not be anything like the savings available for division between the parties, and finally, on the basis that wife has maintained and improved the former matrimonial home since separation.
The matters which might set the parties apart in terms of their contributions are several in my view. Firstly, there was the gift to the husband and the wife by the husband’s parents of the land on which their part of the property in Iceland was constructed. Clearly this had some value although what that was at the time of the gift and subsequently when the property was sold was not in evidence before the Court. One would have thought on the basis of common sense and experience that the land would be a significant component in the value of the property. In the absence of satisfactory evidence about this matter all I can do is take into account the fact that part of the land which must have been represented in the net proceeds of sale of $60 000 received by the parties in 1994 came from the husband’s parents. As such it has come in on the husband’s side of the ledger as it were. Having said this, many years have passed since that time and whatever the value of the land, this can only have been a modest proportion of the overall costs of acquisition of the former matrimonial home at G.
Another significant difference of course is the wife’s inheritance of $58 568 without which it would have been difficult for the parties to have obtained the funds to purchase the former matrimonial home. Having said this, the husband also received his inheritance of $47 700. The difference between the two inheritances was $10 868. One cannot be precise about these matters but one would have thought that looking at it broadly it would be surprising if the value of the land component of the $60 000 being the parties’ share of the proceeds of sale of the Iceland property would have been worth any less than such an amount.
It is true that the wife has been a very careful manager of finances including since separation. But the husband has also been careful to ensure that he continued in employment and continued to provide funds to the wife until May 2008 when their financial relationship ended. In my view to single out the wife’s frugal management of her finances and the other funds available to her in the context of all the many and varied contributions which have been made by these parties over a very long time would be to visit an injustice on the husband.
The husband did not return the whole of the $76 000 the wife transferred to him for the purpose of funding the proposed granny flat. It appears that he had the benefit of approximately $21 600. But there is also a difference between the parties so far as their interests in superannuation are concerned as indicated above.
I was urged by learned counsel for the husband to consider the question of the parties’ superannuation separately from that of their property and determine that each of the parties should simply take the superannuation which they have. This was on the basis that it would be difficult for the wife to assert that she had made any contribution to the husband’s superannuation which accrued after the date of separation. It was submitted that at approximately the time of separation the value of the husband’s superannuation was $28 546. It was submitted that the difference between this and the current value of the husband’s superannuation at $77 641 namely $49 095, is not very different from the value of the wife’s superannuation currently at $43 026 and therefore each party should simply retain their respective superannuation interests without adjustment.
In my view this would be quite unfair to the wife. Firstly, it would result in her having no benefit whatsoever from that part of the husband’s superannuation attributable to the period of marriage. But in any event, in my view, what is proposed is a too technical approach to this part of the exercise. As I have said above, the parties continued their financial relationship until May 2008. There appeared to be an intermingling of funds and certainly in the year after separation they continued to do things for one another to some extent. So I propose to include the superannuation with the assets in the pool rather than deal with superannuation separately.
In my view it is sufficient to observe that the husband’s contributions to superannuation have been greater than those of the wife. This is one of many matters which leads me to the view that the husband’s contributions to the assets since separation have been greater than those of the wife.
It is the case that the wife has made a greater level of contributions to the welfare of the family constituted by the parties and the two boys over the years. As I have said after the birth of the parties’ elder child her focus was primarily on caring for the children, the husband and the home. The husband’s focus was to be the breadwinner. The wife made some criticism of the husband in respect of his welfare and homemaking contributions. But in my view, given that they had different opportunities for such contributions, in all the circumstances, the husband cannot reasonably be criticised. It is clear to me that he has undertaken his responsibilities and fulfilled those to the children and he has also undertaken a considerable amount of work around the various homes.
This was a long cohabitation and marriage by any measure. The parties have made many and varied contributions as I have said and I have referred to the matters which might have been, in different circumstances, a basis for finding some inequality in contributions. From the time they commenced cohabiting to the time of their separation the wife’s contributions overall have been greater than those by the husband because of her inheritance. But shortly after separation the husband received his inheritance and these monies became intermingled with the joint funds of the parties and must be represented, at least to some extent in the property now available for division between the parties. The parties’ financial relationship continued until May 2008 and each of them continued to make relevant contributions. In the circumstances, in my view the husband’s contributions since separation have been greater than those by the wife. However, at the end of the day, when one considers all the financial and non-financial contributions over this long period, in my view it becomes clear that their contributions have been equal. That is the finding that I make.
s 75(2) and other relevant matters
The husband is 58 years of age. There are some problems in terms of his health. In November 2007 he suffered a stroke. It is common ground that the husband was diagnosed with lacunar infarct and ischaemic heart disease in 2007. He has had the surgical insertion of a stent in his coronary artery.
Since sustaining the stroke the husband has noticed that he tires a lot more quickly than he used to. He works full time in manual work in a factory. He said that previously he had been able to do on average two hours per day overtime and Saturdays when it was available. Since the stroke he finds that he can only do one hour overtime per day when that is available.
The husband’s income from this work is $1074 per week gross including overtime. In addition the husband said he receives a benefit from his employment in the form of superannuation of $80 per week giving him the total average weekly income of $1154 per week.
On the other hand the wife is 55 years of age. There are also serious problems in terms of her health. I am satisfied that the wife suffers from frequent migraine headaches and has done so for many years. To some extent she is able to control the symptoms by prescription medication. The wife said that in the last year or two she has had migraine headaches on a daily basis. The wife works as a school learning support worker, her income from this position being $787 per week.
There is a dearth of expert evidence about the effect which the health issues suffered by each of the parties have on their capacity for employment. Notwithstanding the serious medical problems that each of them has had to manage, they have been able to continue in their present employment. One can only wonder how long this can continue. Given the husband’s age and state of health, it is my view that the Court would be cautious about anticipating that he would be able to work in his current employment for many more years.
I have a similar reservation about the wife’s capacity for gainful employment. She says that when she suffers a migraine at work she needs to leave the classroom because the effects of the migraine are to cause her to be physically sick.
Another relevant s 75(2) matter is the fact that the husband will be entitled to receive an Icelandic pension upon attaining 67 years of age which on present monetary values will provide him with approximately $41 per week. The wife would have no equivalent pension available to her.
The husband has a new relationship and his partner is pregnant.
The orders I propose will not affect the capacity of either party to earn income.
It is submitted on behalf of each of the parties that, because of their poor health which it is submitted must affect their capacity to earn income in the future, there should be a set off of available property and superannuation in favour of that party. Doing the best I can without a crystal ball, in my view the wife’s overall situation is more precarious than that of the husband. In any event she has capacity to earn income only at a lower rate than that at which the husband is able to earn. It was also submitted on her behalf that the duration of the marriage has caused an adverse effect on her income-earning capacity. I accept that to a slight extent. But given the overall financial circumstances of these parties, that is not a matter of much significance in my respectful view.
Doing the best that I can in these difficult circumstances, in my view there should be a very small set-off of property in favour of the wife to take account of the relevant matters. In my view this should be 2 percent of the property and superannuation available for division.
Conclusion and fourth step
The husband is to have 48 percent of the property and superannuation available for division between the parties. This would be property and superannuation with a value of $326 221.
The husband has the following:
$
1. Land in Iceland
4,592
2. TCU account …641
441
3. TCU account …641
4,542
4. First Iceland account
560
5. Second Iceland account
57
6. IAG shares
4,180
7. Mitsubishi Mirage
2,900
8. Paid legal fees (add back)
44,111
9. Superannuation
77,641
_____________
$139,024
The husband has no liabilities.
To achieve property and superannuation with a value of $326 221 the husband will require additional property and superannuation with a value of $187 197 ($326 221 - $139 024 = $187 197). This can only come from the former matrimonial home.
On the other hand the wife is to have 52 percent of the property and superannuation available for division between the parties. This would be property and superannuation with a value of $353 406.
The wife has the following:
$
1. VTCU account …061
276
2. VTCU account …061
4,000
3. account …061
65,330
4. Paid legal fees (add back)
57,971
5. Superannuation
43,026
_____________
$170,603
To achieve property and superannuation with a value of $353 406 the wife would require additional property and superannuation with a value of $182 803 ($353 406 - $170 603 = $182 803).
The wife wishes to retain the home. This has equity of $370 000. If the husband transferred his interest in the home to the wife the wife would have $182 803 of the equity. This would leave her to pay the balance of the equity to the husband. This would be $187 197 ($370 000 - $182 803 = $187 197).
The wife will have the opportunity to retain the former matrimonial home. But she will have to pay the husband the sum of $187 197 for his interest therein. She has some money in accounts. But she still has some legal costs to pay. The wife would have to borrow some funds in order to retain the home.
If the wife is unable to so pay the husband then the home will have to be sold and the net proceeds of sale be paid to the parties in accordance with this judgment. That is, the wife would receive 49.406 percent ($182 803
:$370 000 x 100/1 = 49.406 percent) thereof and the husband would receive 50.594 percent ($187 197:$370 000 x 100/1 = 59.594 percent) thereof.The wife should be able to purchase a modest home. She would also have the property and superannuation referred to above.
On the other hand the husband would receive a payment of $187 197 and retain the property and superannuation referred to above. The husband would also still have some legal costs to pay. Given the level of his income the husband should be able to borrow sufficient funds to enable him to purchase a modest home and service such a mortgage.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice W P Johnston delivered on 20 August 2010.
Associate:
Date: 20 August 2010
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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Jurisdiction
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