Stanic and Stanic
[2008] FMCAfam 911
•1 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STANIC & STANIC | [2008] FMCAfam 911 |
| FAMILY LAW – Property dispute – property in [Z] – consideration of contribution and s.75(2) factors. |
| Family Law Act 1975, s.75(2) |
| Applicant: | MS STANIC |
| Respondent: | MR STANIC |
| File Number: | MLC 1178 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 23 July 2008 |
| Date of Last Submission: | 23 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms E. Swart |
| Solicitors for the Applicant: | Cuthberts |
| Counsel for the Respondent: | Mr G. Ambrose |
| Solicitors for the Respondent: | Cahill & Rowe |
IT IS NOTED that publication of this judgment under the pseudonym Stanic & Stanic is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1178 of 2007
| MS STANIC |
Applicant
And
| MR STANIC |
Respondent
REASONS FOR JUDGMENT
This is a property dispute. The only matter now remaining for determination is how much each of the parties get of the total agreed property pool of $300,000.00.
The property pool is constituted by two properties. The first is the former matrimonial home at [N] which is worth $235,000.00 and the second is a property in [Z], Croatia, worth $65,000.00.
For the reasons that follow, I have determined that the Respondent should retain all interest in the [N] property and the Applicant should retain all interest in the [Z] property.
The size of the pool
Although there was an issue in the proceeding as to various chattels, that matter has been resolved and, as I have said, both parties agree that the size of the pool is the two properties.
Contribution
The parties met in Geelong in 2001. At that time the husband already owned the [N] property outright. The wife had her own property in Croatia and also had a housing commission flat in Ballarat.
Following a short period of cohabitation, the parties married on 2 March 2002 and lived together until separation on 23 March 2005. For at least part of that time, one of the adult sons of the husband lived with the parties. The wife performed all the usual household duties including looking after, at least to an extent, the son.
The wife gave up her flat and the parties lived together in the [N] property. During the period of cohabitation, the wife sold her property in Croatia and the parties jointly bought the [Z] property which is now the subject of dispute.
Much of the evidence in the proceeding went to the extent of the parties' financial contributions to the purchase of the [Z] property. Neither side spoke English and their answers were not always easy to follow, notwithstanding the excellence of the interpreter.
Each of the parties sought to prove that it was they to the exclusion of the other who provided not only the vast bulk of the cash for the purchase of the [Z] property, but that they had either paid for and/or performed substantial amounts of renovation work at it. Neither side was in a position to produce any meaningful proof by way of documentation of the amounts for which they contended, and it is to be noted that even the purchase price of the property is not agreed. The wife asserts in effect that the purchase price on the contract was artificially lowered for the purposes of defrauding the relevant revenue authorities in Croatia.
The only firm findings of fact I am prepared to make are that:
a)The wife undoubtedly sold her former property in Croatia and contributed whatever was realised by that sale (a figure I am not able on the evidence to determine) towards the purchase of the [Z] property.
b)The husband contributed something at least by way of cash towards the [Z] property, although the evidence does not permit me to say how much.
c)
I reject as totally implausible the husband's assertion that the vendor in Croatia insisted that the payment be in Australian dollars. There is nothing to suggest that such currency would be more attractive to a vendor than Euros or American dollars
(the wife's evidence was that the purchase price was paid in Euros).
d)The husband's evidence that he took with him the purchase price in full in cash in two allotments in excess of $13,000.00 and $12,000.00 respectively is inherently incredible. He said he took these moneys out strapped to his body, and I simply do not accept it. It would be an enormous amount of cash.
Thus, as I indicated to counsel during the running of the proceeding, I find that each of the parties contributed to at least an extent in respect of the purchase of the [Z] property, but I am not able to say exactly how much. I will return to this matter later.
It is clear that the contribution by the husband of the [N] property means that he made by far the greater financial contribution to the assets of the parties as a whole but for the reasons that will follow this is not as decisive as it would otherwise normally be.
The section 75(2) factors
The husband is 73 years old and says that apart from some blood pressure problems he is in generally good health. It seems as though he still has some employment. Although his most recent affidavit says he lives solely on his pension, his most recently filed financial statement appears to disclose an ongoing income of $60.00 per week. This latter is consistent with the wife's earlier filed material that he has some part-time work.
The wife is 68 and is wholly dependent upon her Australian pension and a small pension in Croatia. Her health is likewise good.
The wife says she has maintained the [Z] property since separation, and I accept that that is the case. The husband certainly has not done so, and it is only common sense that she should do so. The wife says she wishes to remain in Europe and to live in the [Z] property. She points out that she would have nowhere else to live if that property is not made over to her.
On the figures disclosed in the financial statements of the parties, it is plainly totally impracticable for either side to make any financial payment to one another out of their recurrent income, which is on any view low, being approximately a third of average weekly earnings.
The only issue therefore, as a matter of practical politics, is whether the house in [Z] is sold as the husband suggests in order to give him a payment said to be more correspondent to the actual input of the parties as assessed by reference to the value of the properties they owned at the onset of cohabitation. The husband seeks a payment of $20,000.00 from the sale of the [Z] property to him.
The wife points to the fact that she, being younger, is likely, all things being even, to live longer and will therefore have a greater ongoing need in terms of financial needs.
Just and equitable
This is an unusual case. Either the [Z] property must be sold and the proceeds divided or not.
I find that the wife has no capacity to purchase out the interests to the extent that they exist of the husband in the [Z] property. I accept that the wife will have nowhere to live in the event that the [Z] property (which appears to me to be relatively modest) is sold.
In my view, it is just and equitable in the light of all the relevant circumstances that the wife retains the [Z] property and the husband the [N] property. The considerations that lead me to this conclusion are:
a)On any view, the wife had a property and a housing commission flat at the commencement of the relationship. The husband had the [N] property alone.
b)The property in [Z] was certainly bought, at least in part, with the proceeds of the wife's property in Croatia.
c)The wife made a significant contribution to the domestic wellbeing not only of the husband but also one of his sons for a period of three and a half years.
d)Although I have not been able to precisely tabulate the amount of contribution of the parties to the purchase of the [Z] property, I have no doubt that the wife's contribution was greater. Her evidence about the payments she made to the various tradesmen was believable, and her criticism of the husband's feckless inactivity during the period of time he was in Croatia was given with conviction, and I accept it. I find that the wife's contribution to the [Z] property was substantially greater than that of the husband.
This is a case where one needs to look at the positions of the parties in a realistic way. However much they contributed to the [Z] property, the funds are now wholly constituted by that property itself. Realistically, it seems more probable to me than otherwise that if I order the sale of the [Z] property, the wife will have nowhere to live.
As counsel for the wife pointed out, the value of the [Z] property is some 21.67 per cent of the total pool. The wife is younger and will live longer and her needs, in a purely crude way, are in that sense greater. As counsel for the wife pointed out, 21.67 per cent is not a substantial proportion of the total pool.
In these unusual circumstances, I find that it is just and equitable that the wife retains the [Z] property and that the husband retains the [N] property.
I will require the parties to draw up minutes of orders to give effect to these reasons for judgment.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 1 September 2008
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