Spencer & Spencer
[2008] FMCAfam 75
•4 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPENCER & SPENCER | [2008] FMCAfam 75 |
| FAMILY LAW – Property – valuation of property – parties contributions – section 75(2) factors – just and equitable. |
| Family Law Act 1975 (Cth), ss.75(2), 79(4)(a)-(c) |
| In the Marriage of Omacini (2005) 33 FamLR 134; [2005] FamCA 195 |
| Applicant: | MS SPENCER |
| Respondent: | MR SPENCER |
| File Number: | SYC 845 of 2005 |
| Judgment of: | Lucev FM |
| Hearing date: | 30 November 2007 |
| Date of Last Submission: | 30 November 2007 |
| Delivered at: | Sydney via telephone link |
| Delivered on: | 4 February 2008 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Stuart |
| Counsel for the Applicant: | Macedone Christie Willis |
| Counsel for the Respondent: | Mr Maurice |
| Solicitors for the Respondent: | Greg Morahan & Co |
ORDERS
That both parties forthwith do all acts and things and sign all documents necessary to cause the sale of the property situate at and known as Property A in the state of New South Wales at public auction, at the best price reasonably obtainable.
That upon completion of the sale referred to in order 1 above, the parties cause the sale proceeds to be applied in the following manner and priority:
(a)legal costs and estate agents commission on sale;
(b)repayment of all sums due and owing on rates and charges in respect of the property;
(c)60% of the balance then remaining to the wife;
(d)the balance to the husband.
That both parties forthwith do all acts and things and sign all documents necessary to cause T Pty Limited to sell the business known as U Waste Services at the best price reasonably obtainable.
That upon completion of the said sale the parties cause T Pty Limited to apply the sale proceeds in the following manner and priority:
(a)agents commission and legal costs on sale (if any);
(b)any CGT or other outstanding liability of the business or company to the ATO;
(c)any liability to creditors of the business;
(d)60% of the balance then remaining to the wife;
(e)the balance to the husband.
That both parties forthwith do all acts and things and sign all documents necessary to cause the sale of the furniture and household effects presently situated at the property at Property A in the State of New South Wales at public auction at the best price reasonably obtainable, provided that the parties may agree within fourteen (14) days of the date of these orders as to the distribution of furniture and household effects, and if they do so, the furniture and household effects are not be sold at public auction. Furniture and household effects do not for the purposes of this order include any property referred to in Order 10.
Within 14 days of the date of the settlement of the sale of the business known as U Waste Services, the wife will execute and deliver to the husband or his solicitor a share transfer form duly executed by which she transfers to the husband all her shares in T Pty Limited. The husband shall thereafter be responsible for procuring the registration of the transfer of the said shares in the share register of the company.
Within fourteen (14) days of the date of the settlement of the sale of the Business known as U Waste Services, the wife will resign from the office of the director of the company and from the office of secretary of the company and from all other offices she holds in the company.
The husband hereby indemnifies the wife from any liability arising from her having been a director or secretary or any other office bearer of the company during the period that she held such office including without limiting the generality of the above any liability arising in respect of any income tax payable by reason of having been a shareholder or director of the company or payment in respect of any income declared or payable to the wife prior to the date of these orders.
Within 14 days from the date of these orders the parties shall execute any transfers or other docments required to transfer including any liabilities outstanding on each of the above. from the company:
(a)to the wife BMW motor vehicle registered Mxxxxx;
(b)to the husband the 2006 Yamaha motorcycle.
Except as otherwise provided in this order, the husband and wife are entitled to be the sole legal and beneficial owners of all items of property including money, insurances, equities, superannuation entitlements and personal effects in the possession or control of each of them respectively.
The parties shall do all things and execute all such documents as may be necessary to give effect to these orders.
If either party refuses or neglects to sign within twenty-one (21) days of written request to do so any document necessary to give effect to these orders, the Registrar or a Deputy Registrar of the Family Court of Australia is hereby appointed pursuant to the provisions of the Family Law Act to execute such documents on behalf of each party.
IT IS NOTED that publication of this judgment under the pseudonym Spencer & Spencer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 845 of 2007
| MS SPENCER |
Applicant
And
| MR SPENCER |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Spencer[1] and Mr Spencer[2] commenced cohabitation in 1993 and married in February 1994.[3]
[1] “Wife”.
[2] “Husband”
[3] Wife’s Affidavit sworn 27 November 2007 (‘Wife’s Affidavit”), para 4; Husband’s Affidavit sworn 20 November 2007 (“Husband’s Affidavit”), para 2.
At the time of their marriage the Wife was aged 47 and the Husband was aged 55. There were no children of the marriage.[4]
[4] Wife’s Affidavit, paras 2, 3 and 5, Husband’s Affidavit, para 2.
The Wife and the Husband separated in October 2006, and have lived separately and apart under the one roof since that time.[5]
[5] Wife’s Affidavit, para 6.
This application seeks orders from the Court under Part VIII of the Family Law Act, 1975 (Cth)[6] for the division of property.
[6] “FL Act”
Application
The Wife’s Application for Final Orders was filed on 8 February 2007, and at hearing short minutes of amended orders sought where tendered.[7] The Wife’s Amended Orders Sought are as follows:
(1)That both parties forthwith do all acts and things and sign all documents necessary to cause the sale of the property situate at and known as Property A in the state of New South Wales at public auction, at the best price reasonably obtainable.
(2)That upon completion of the sale referred to in order 1 above, the parties cause the sale proceeds to be applied in the following manner and priority:
(a)legal costs and estate agents commission on sale;
(b)repayment of all sums due and owing on rates and charges in respect of the property;
(c)65% of the balance then remaining to the wife;
(d)the balance to the husband.
[7] “Wife’s Amended Orders Sought”.
(3)That both parties forthwith do all acts and things and sign all documents necessary to cause T Pty Limited to sell the business known as U Waste Services at the best price reasonably obtainable.
(4)That upon completion of the said sale the parties cause T Pty Limited to apply the sale proceeds in the following manner and priority:
(a)agents commission and legal costs on sale (if any);
(b)any CGT or other outstanding liability of the business or company to the ATO;
(c)any liability to creditors of the business;
(d)65% of the balance then remaining to the wife;
(e)the balance to the husband.
(5)Declaration that each party is solely entitled as against the other to their interests in superannuation, bank accounts in their own name and personalty.
(6)That the husband indemnify the wife and keep her indemnified in respect of all liabilities of T Pty Limited and/or U Waste.
(7)That each party have liberty to apply in relation to the implementation of these order on 14 days notice to each other and this Court.
The Husband’s Response to an Application for Final Orders was filed on 28 February 2007.[8] The Husband’s Orders Sought are as follows:
(1)Within twenty eight (28) days of the making of these orders, the wife shall transfer to the husband all her right title and interest in the property situated at and known as Property A being the whole of the land comprised in folio identifier (“the home”).
(2)Simultaneously with the transfer in 1 the husband shall pay to the wife the sum of $480,000.00.
(3)Within 14 days of the date of these orders the wife will execute and deliver to the husband or his solicitor a share transfer form duly executed by which she transfers to the husband all her shares in T Pty Limited (“the company”), trading as U Waste. The husband shall thereafter be responsible for procuring the registration of the transfer of the said shares in the share register of the company.
(4)The wife hereby resigns from the office of director of the company and from the office of secretary of the company and from all other offices she holds in the company. The husband hereby indemnifies the wife from any liability arising from her having been a director or secretary or any other office bearer of the company during the period that she held office including, without limiting the generality of the above liability arising in respect of any income tax payable by reason of having been a shareholder or director of the company or payment in respect of any income declared or payable to the wife prior to the date of these orders.
(5)Within 14 days from the date of these orders the parties shall execute any transfers or other documents required to transfer from the company to the wife the BMW motor vehicle registered Mxxxxx.
(6)Except as otherwise provided in this order, the husband and wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
(7)The parties shall do all things and execute all such documents as may be necessary to give effect to these orders.
(8)If either party refuses or neglects to sign within twenty one (21) days of written request to do so any document necessary to give effect to these orders, the Registrar or Deputy Registrar of the Family Court of Australia is hereby appointed pursuant to the provisions of the Family Law Act to execute such documents on behalf of each party.
[8] “Husband’s Orders Sought”.
Principles
In determining a property dispute it is necessary for the Court to:
a)identify and value the net property of the parties (usually at the date of the hearing);
b)consider the contributions of the parties within paragraphs (a) – (c) of section 79(4) of the FL Act;
c)consider the factors under section 75(2) of the FL Act;
d)consider whether the order proposed is just and equitable.[9]
[9] In the Marriage of Omacini (2005) 33 FamLR 134 at 147 per Holden, Warnick and Le Poer Trench JJ: [2005] FamCA 195 at para 46 per Holden, Warnick and Le Poer Trench JJ.
Valuation of property
There is a measure of agreement or lack of dispute about the assets and liabilities and the valuation of much of the property.
The value of the following assets is agreed and the Court accepts the values set out:
a)A Property - $640,000.00;
b)U Waste Business - $256,083.00;
c)Wife’s A Bank Account - $300.00;
d)Wife’s legal fees held on trust - $22,000.00; and
e)furniture and effects - $50,000.00.
Whilst there was no dispute about the valuation of the Business per se, there was some debate about its value, particularly diminution in value over time. The Wife however conceded that the Court can do nothing but accept the valuation as at 30 June 2007 in evidence.[10] In the absence of any formal challenge the Court must accept the Business Valuation.
[10] Exhibit W1 – valuation of $256,083.00 as at 30 June 2007 (“Business Valuation”).
There was some suggestion that the Wife’s legal fees held on trust ought not to be included in the assets because there was a liability to pay her solicitor’s fees for these proceedings. The Wife’s liability for legal fees was not quantified in evidence. The Husband argued that if the legal fees held on trust were not to be treated as an asset on the basis of an unquantified liability for legal fees then similar treatment should be afforded to his savings of $18,000.00. It is unnecessary to consider the issue: although the money for legal fees is in trust it nevertheless remains an asset.
The value of the following assets were not seriously disputed and the Court accepts the values set out:
a)Husband’s A Bank Account - $18,000.00; and
b)Husband’s Z Superannuation - $44,000.00.
It was agreed that the value of the 2006 Yamaha motorcycle (which the Husband valued at $20,000.000 and the Capital Finance debt (the payments for which were being made by the Business) on the motorcycle (said by the Husband to be $23,000.00) effectively cancelled one another out in terms of value.[11] It should be noted that, on the evidence, the motorcycle is an asset of the Business, but the parties have agreed that the Husband will retain the motorcycle.
[11] Transcript at 43 and 49.
The value of the Wife’s Z Superannuation was disputed, the Wife saying it was $47,000.00, the Husband $51,000. There was evidence that:
a)$4,000.00 was paid to an associated person in 2007, whom the Husband said was the Wife;
b)that the Wife obtained the figure of $47,000.00 from her 2006 superannuation statement;
c)that the Wife may not have seen the 2007 superannuation statement because she has not been involved in the daily running of the business for some months; and
d)the Wife simply did not know if the $4,000.00 had been paid.
The Husband’s evidence that the money was paid to the Wife, and that she is the associated person referred to in the Company accounts, supported by the objective documentary evidence of a $4,000.00 payment to an associated person, together with the evidence that superannuation payments had been made to the Wife in previous years,[12] is sufficient in the Court’s view to establish that the $4,000.00 superannuation was paid to the Wife. The sum for the Wife’s Z Superannuation is therefore determined to be $51,000.00.
[12] Transcript at 10 and 26.
The parties have no financial resources apart from those identified above.
Aside from the unquantified legal fees referred to above[13] there was no evidence of either party having outstanding personal liabilities.
Parties contributions under section 79(4)(a) – (c)
[13] See para 11 above.
At time of cohabitation
At the time of cohabitation the Wife had:
a)equity in B Property, the property being subject to a mortgage;
b)a motor vehicle valued at approximately $14,000.00;
c)superannuation; and
d)minimal savings. [14]
[14] “B Property”; Wife’s Affidavit, paras 24 and 29; Husband’s Affidavit , para 4.
The Wife was employed as a secretary to the State manager at AFE. Her taxable income was $28,000.00 a year. The Wife also worked on Sundays at a bakehouse, and any extra money earned and saved went towards the B Property mortgage.[15]
[15] Wife’s Affidavit, para 28.
At the time of cohabitation the Husband had:
a)a truck business purchased in 1991 for $70,000.00;
b)a motor vehicle valued at approximately $10,000.00;
c)superannuation; and
d)savings of $35,000.00.[16]
[16] Husband’s Affidavit, para 3.
The Husband was engaged as an owner-driver by AFE. He had a taxable income of $73,000.00 a year, less business expenses.[17]
[17] Husband’s Affidavit, para 5.
The Wife says that following cohabitation the Husband contributed financially to the day-to-day running of the household “on a few occasions” by providing her with money.[18] The Husband says that he moved into the B Property in 1993, and that the parties divided their living expenses, with the Husband paying the groceries and household items and the Wife paying for the mortgage on the B Property.[19]
[18] Wife’s Affidavit, para 30.
[19] Husband’s Affidavit, para 6.
The value of the respective motor vehicles at cohabitation is disputed. The Wife says that the Nissan Reebok was worth $18,000.00, the Husband says it is worth $14,000.00, which is what it was sold for in April 1994. The Husband says his BMW motor cycle was worth $10,000.00, the Wife says it was worth $5,000.00.[20]
[20] Wife’s Affidavit, paras 29 and 35.
Contribution of $35,000.00 to Wife’s mortgage or to Wife
The Husband says that about four months after cohabitation he paid the Wife $35,000.00 from his savings, and as he understands it the Wife paid this sum off the mortgage on the B Property.[21] The payment of this sum is a matter disputed by the Wife, who says it never happened.[22]
[21] Transcript at 33-34.
[22] Transcript at 13.
The onus is on the Husband to prove the payment he asserts was made. There is no independent evidence of the payment, and save for the Husband’s concession that the Wife has “better recollection”[23] than he has, nothing to enable the Court to prefer the evidence of the Husband or the Wife on this issue. The Court finds that the Husband has failed to prove a $35,000.00 payment, and it cannot therefore be treated as a contribution by the Husband.
[23] Transcript at 34.
Property B Sale
Property B was sold on in August 1994. Having considered the documents related to the completion of the sale of the B property, the Court finds that it was sold for $176,000.00 gross, and net proceeds of $166,369.66 were received by the Wife after payment of fees and expenses and discharge of a mortgage of $5865.28.[24]
[24] Wife’s Affidavit, annexures C and D.
Proceeds of Property B Sale to purchase of A Property
The parties jointly purchased the A Property in August 1994 for $262,000.00.[25]
[25] Wife’s Affidavit, annexures C and D; Transcript at 34 (Husband’s admission that purchase price was $262,000.00, which he had previously disputed, saying it was $265,000.00.)
The purchase of the A Property was financed by a mortgage, which the Court finds was taken out in the sum of $150,000.00, preferring the Wife’s evidence to that of the Husband who admitted that on this issue the Wife had a better recollection and that he could not verify his assertion that the mortgage was for only $120,000.00. [26]
[26] Wife’s Affidavit, para 37; Transcript at 34.
The Wife says she contributed the net proceeds from the B Property to the purchase of the A Property (including stamp duty and legal costs), and renovations to, and the purchase of furniture for, that property.[27]
[27] Wife’s Affidavit, paras 36-37.
Wife’s Redundancy payment
The Wife was made redundant by AFE in early 1995. She received a redundancy payment of $82,000.00. $80,200.00 from the redundancy payment was put towards the mortgage on the A Property.[28]
[28] Wife’s Affidavit, paras 38.
Another Truck Purchased
In early 1995 restructuring within AFE resulted in the Husband, through T, purchasing a table top truck to replace the prime mover truck he had previously been operating. The table top truck truck was purchased for $18,000.00 under a lease arrangement. It required some fixing, which the Husband did, and with which the Wife assisted.[29] The prime mover truck was sold about a year later for $10,000.00.[30]
[29] Wife’s Affidavit, paras 39-40.
[30] Wife’s Affidavit, para 41.
Part time employment
The Wife obtained part-time employment as a receptionist at a freight forwarding company commencing in about late 1996. She worked from Monday to Friday from 1.00pm to 6.00pm (and sometimes longer). She earned approximately $18,500.00.[31]
[31] Wife’s Affidavit, paras 43-44; Husband’s Affidavit, para 14.
Husband’s Redundancy payment
The Husband was made redundant in June 1996 upon the liquidation of AFE. He received a redundancy payment of $85,000.00.[32]
[32] Wife’s Affidavit, para 47. The Court has preferred the Wife’s evidence on this point – see Husband’s Affidavit at para 11 where he says the sum was $80,000.00. Ultimately the Husband argued the case on the basis that the sum was $85,000.00.
There is a dispute about the purpose to which the Husband’s redundancy payment was put. The Husband says it was put towards the mortgage on the A Property. The Wife says that the $85,000.00 was put into the family company T,[33] and at least partially used for the purposes of the Business after its purchase at or about the time the Husband was made redundant.[34]
[33] “T”.
[34] Wife’s Affidavit, paras 47 and 50.
The Court considers that the Wife’s evidence as to the disposition of the Husband’s redundancy payment is to be preferred. This is because of the Husband’s concession that the Wife has a better recollection of these events than he has, but also because by reason of the payment of the Wife’s redundancy payment off the mortgage in 1995, the mortgage would have been significantly less than $85,000.00, and probably less than $70,000.00. It was not put that part of the Husband’s redundancy payment was paid off the mortgage, and part elsewhere. The Court is therefore of the view that the Husband’s redundancy payment was paid into the family company and used for the purposes of the Business.
Purchase of the Business
I Waste was purchased on 18 September 1996 for $200,000.00.[35] The Business had about two hundred customers and included a fifteen year old garbage compactor truck.[36]
[35] Wife’s Affidavit, para 48; Husband’s Affidavit, para 12.
[36] Wife’s Affidavit, para 48.
To purchase the Business $200,000.00 was borrowed from a bank by T and secured against the A Property.[37]
[37] Wife’s Affidavit, para 48.
Operation of the Business
The waste business, ultimately operating under the business name of U Waste, [38] was run through T.[39]
[38] “Business”.
[39] Husband’s Affidavit, para 12.
The parties ran the Business. It was at least a six day a week operation.[40]
[40] Wife’s Affidavit, para 49.
A second truck was purchased in October 2006, with money from the Husband’s redundancy.[41]
[41] Wife’s Affidavit, para 50. It would appear that for the majority of the time the Business has been operated by the Husband and Wife , a second driver has been employed, on a casual or permanent basis: see Wife’s Affidavit, paras 53 and 55-57; Transcript at 33.
The Wife worked in the office, attending to accounts and the Business’ books, and answering the telephones, but did not do so on a full time basis. Her duties thus included administration, invoicing, collection of monies and debt collecting, preparation of inputs for the profit and loss statements and the preparation of the Business Activity Statements each quarter.[42] In the early stage of the Business she also assisted the Husband with waste pick-ups.[43]
[42] Wife’s Affidavit, para 97.
[43] Wife’s Affidavit, para 49.
Whilst employed in the business, the Wife maintained her part time employment at the freight forwarding company.[44] She did so at the Husband’s behest, lest the Business fail.[45] The Wife ceased her part time employment in October 1999 because the Business’ needs necessitated her working only for the Business.[46]
[44] See para 32 above.
[45] Wife’s Affidavit, para 49.
[46] Save for domestic duties: as to which see para 53 below.
The Husband drove a truck doing waste pick-ups, washed, greased and serviced the trucks, and repaired the bins, and usually worked forty to fifty hours a week.[47]
[47] Wife’s Affidavit, para 49; Husband’s Affidavit, para 15.
There is no dispute that the Husband and Wife both worked very hard at the Business. The Husband did not seek to downplay the Wife’s role: cross-examined he readily admitted that she worked like a “little horse” and a “little slave”.[48]
[48] Transcript at paras 35 and 36 respectively.
In October 1998, seemingly as a reward for her hard work, the Husband purchased the Wife, under a lease agreement through the business, a BMW 528i motor vehicle for $110,000.00, and of which she was the main driver.[49] The parties are agreed that the Wife should keep the BMW 528i motor vehicle, presently valued at $27,000.00.
[49] Wife’s Affidavit, para 54.
$150,000.00 superannuation payment to pay of business loan
In 2000 the Husband drew $150,000.00 from his superannuation to pay off the business loan.[50]
[50] Transcript at 16 - Wife’s concession that it was $150,000.00 not $130,000.00: see Wife’s Affidavit, para 60.
Post-separation business operation
Post-separation the Wife has not worked in the business. She has drawn $550.00 a week from the business since separation.
The Husband, who continues to run and operate the business, has drawn $620.00 a week from the business since separation.
Since separation the Wife has increasingly been prevented from properly participating in the Business by reason of the Husband’s actions, which include locking her out of the room from which he now conducts the Business, changing the computer, advising clients not to deal with her and denying her access to the Business’ proper records.[51]
[51] Wife’s Affidavit, paras 80 and 98-106.
There is evidence that the Business has lost clients since the separation.[52] Given the role of the Wife as the “face” of the Business,[53] her effective departure from the Business and the Husband’s somewhat difficult nature[54] the loss of clients is, perhaps, not surprising.
[52] Husband’s Affidavit, para 16; Transcript at 30 and 42.
[53] Wife’s Affidavit, para 91.
[54] In cross-examination he demonstrated a hard and surly side to his character: see for example Transcript at 26, 31, 37 and 42.
Total capital contributions
The Court assesses the Wife’s total capital contribution as being $246,569.66, made up of the $166,369.66 from the sale of the B property and the $80,200.00 from her AFE redundancy payment.
The Court assesses the Husband’s total capital contribution as being $235,000.00, made up of the $85,000.00 from his AFE redundancy payment and the $150,000.00 payment from his superannuation payment off the Business loan.
Domestic contributions
The Wife prepared three meals a day, shopped, washed the dishes, cleaned the home and did the laundry (including the separate laundering of work clothes because of the nature of the work), as well as assisting with renovations at the A Property.[55] Hers was a major domestic contribution, not disputed by the Husband.
[55] Wife’s Affidavit, paras 73-75.
The Husband undertook maintenance tasks in and around the home.
Assessment
In assessing the parties respective contributions the Court notes that:
a)the Wife’s initial contribution was significant as it was the equity in the B Property which formed the basis for the purchase of the A Property, and it was the A Property which secured the loan for the purchase of the Business and the parties income stream for the last ten years of their almost thirteen year marriage;
b)the Wife’s overall capital contribution was greater than that of the Husband, albeit not by a significant dollar amount, but its timing was significant coming earlier than the Husband’s capital contribution;
c)the Husband and Wife both contributed to the Business by working in it, usually, but not always, in different parts, the Wife in administration and the Husband in operations;
d)because the Husband’s role was full time and operational his contribution to the Business was greater than that of the Wife, who was part time and mainly administrative, but not significantly so, given that both roles were essential to the successful running of the Business and given the Wife’s preparedness to assist in the operational sphere from time to time;
e)the Wife’s lesser contribution to the Business is made up, at least in part, by her part time employment until 2000, which supplemented the parties income stream;
f)although the Wife has contributed little to the Business post-separation, this is not of her doing, having been effectively excluded from the Business by the Husband, with the probable consequence that the Business has diminished in value since the Business Valuation; and
g)the Wife has made a greater domestic contribution than the Husband.
The Court has also had regard to the length of the marriage, and in that context, and overall, weighed the respective contributions of the parties and the use resulting from those contributions. The Court has come to the conclusion that the Wife contributions should be valued at 62.5% and the Husband’s at 37.5%.
Section 75(2) factors
The s.75(2) factors relevant to these parties are set out below.[56]
Age and health[57]
[56] The Court notes that allegations of domestic violence were ultimately not pressed.
[57] FL Act, s.75(2)(a).
The Wife is aged 61.
The Husband is aged 69.
Not unsurprisingly the Husband complained of the adverse effect of work upon him given his age, and the consequential prospect of retirement.[58] That apart, there was no evidence of particular ill health on the part of either party.
Income, property and financial resources and employment capacity[59]
[58] Transcript at 32 (“I’m getting older. I get very tired. My bones ache. It’s a hard job. I can only do so much.), 39 and 40.
[59] FL Act, s.75(2)(b) and (k).
Both parties, but more particularly the Husband, are of an age where:
a)their future working lives are probably limited; and
b)many people of their age will have retired.
The Husband argues that:
a)his hours are unsustainable for a person of his age;
b)he has no qualifications for a employment other than truck driving.
The Court does not doubt that this is the case. It does however observe that the Husband might continue driving, but perhaps not truck driving in the business and perhaps truck driving or driving in a less arduous role, for at least a year or two. There is however no question that the Husband is near the end of his working life, and he evinced an intention to retire in his evidence.[60]
[60] Husband’s Affidavit at para 17: “I wish to retire shortly.”; Transcript at 39 and 40.
The Husband also argues that his Wife has greater income earning capacity in the future because she is “considerably younger” than the Husband and has a range of clerical skills. There is no doubt that this is correct. However, it needs to be put in context. The Wife’s Diploma in Business was awarded in 1964 and at the time of her redundancy, and for some years beforehand, she worked in a series of senior secretarial positions. However, since 1996 she has been working in a small business run from home, and until 2000, part-time as a receptionist. There is no doubt that her secretarial skills would have been diminished, and that her technological skills and knowledge would be lacking, perhaps significantly so, and at her age it might be difficult for her to obtain the requisite training.[61]
[61] Wife’s Affidavit, paras110-114.
The Court considers that the Wife does have a greater long term earning capacity than the Husband, but given her age, not significantly so. In the very short term their income earning capacity is probably similar, as it has been for some time now, and if the Business is sold, as sought by the Wife, both parties will cease to earn the income they presently receive. On the evidence the Court does however consider that the Husband will be more immediately affected, probably psychologically, if not financially in the short term, by a sale of the Business and the consequent loss of income and livelihood from the Business which he has continued to operate, whilst the Wife (albeit largely excluded from the running of the Business) has adapted to the role as a grandmother.[62]
[62] Transcript at 12.
In relation to property and financial resources there is an issue as to whether the A Property and the Business ought to be sold (as advocated by the Wife) or whether the Husband ought to be allowed a period to finance and purchase them. Given:
a)the Husband’s age;
b)the Husband’s complaints about the taxing nature of the work in the Business;
c)the Husband’s indication that he intends eventually to retire, sell the house and move interstate;
d)the state of the relationship between the Husband and the Wife; and
e)the likelihood that the Business will diminish in value the longer it remains in the parties hands,
the Court considers that a clean break is best and that that necessitates the sale of both the A Property and the Business.
With respect to the furniture and household effects, and having regard to the state of the relationship between the Husband and Wife, the Court considers that they too ought to be sold, unless within fourteen days the parties can reach written agreement as to how they ought to be divided.
The sales ought to be by way of public auction.
Children[63]
[63] FL Act, s.75(2)(c).
There are no children of the marriage.
The Wife and Husband both have children from previous relationships, but none are under eighteen years of age.
Commitments, support responsibilities and standard of living [64]
[64] FL Act, s.75(2)(d), (e) and (h).
Neither party has formed a new relationship, and with no dependent children, each party’s future commitments and responsibilities will be for themselves only.
Superannuation entitlements[65]
[65] FL Act, s.75(2)(f).
The parties have similar superannuation entitlements.
Assessment
These factors relevant to these parties are for the most part equal between them, save for the issues of income and employment capacity. In that regard the Husband is and will be more affected than the Wife, and in all the circumstances, the Court considers that an adjustment of 2.5% in favour of the Husband is appropriate. This adjustment would see a split of 60% to the Wife and 40% to the Husband.
Whether the order proposed is just and equitable
The final step is to consider whether the order proposed is just and equitable.
Having regard to the agreed orders proposed with respect to the motor vehicle and cycle, superannuation, bank accounts (and including in that sum money held on trust for legal fees) and personalty, and therefore setting those to one side for a moment, the proposed 60-40 split primarily concerns the proceeds of the A Property, the Business and the furniture and household effects. The combined agreed value of those assets is $946,083.00. If the agreed values are realised a 60-40 split in favour of the Wife would see the Wife obtain $567,649.80 and the Husband $378,433.20.
Considering all of the circumstances of this case, and the proposed orders overall, the Court considers that the orders that are just and equitable will see the superannuation, the motor vehicle and cycle, bank accounts (and including in that sum money held on trust for legal fees) and personalty dealt with as agreed, and the net proceeds of the sale of the Business, A Property and furniture and household effects by public auction split 60-40 as between the Wife and Husband respectively.
There will be orders accordingly.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 4 February 2008
0