T and T
[2000] FMCAfam 37
•21 September 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & T | [2000] FMCA fam 37 |
| PROPERTY ORDERS s5(2) FLA |
| Applicant: | G D T |
| Respondent: | V S T |
| File No: | ZB 2741 of 2000 |
| Delivered at: | Brisbane |
| Hearing Date: | 21 September 2000 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Jarrett |
| Counsel for the Respondent: | Mr Rosen |
ORDERS
That the HUSBAND shall pay the WIFE $5,500.00 within 30 days.
Simultaneously with the payment under paragraph 1:
(a)The WIFE shall assign to the HUSBAND all her interest or estate in the property at 205 H Road, J, more particularly described as Lot 2 on RP813533, Parish of M, County of W;
(b)The HUSBAND shall cause the WIFE to be released from all liability (contingent or otherwise) under the St George Bank mortgage.
The HUSBAND shall indemnify the WIFE against any claims arising from the said J property in the name of or created by the HUSBAND;
Otherwise, the HUSBAND and the WIFE shall retain as their property absolutely, all assets in their possession, ownership or control at the date of this order including all bank accounts, superannuation, motor vehicles or other personal property.
The party retaining any property or financial resource shall indemnify the other in respect of any outgoing, liability or encumbrancing attaching thereto.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 2741 of 2000
| G D T |
Applicant
And
| V S T |
Respondent
REASONS FOR JUDGMENT
Introduction
V S T (“the wife”) commenced proceedings for property settlement against G D T (“the husband”). The application was transferred to this Court by order of Warnick J made 11 September 2000.
Documents relied upon
The applicant wife relied upon:
a)Application filed 21 November 1999;
b)Financial Statement filed 6 September 2000;
c)Her Affidavit filed 6 September 2000;
d)Affidavit of valuer B M filed 12 September 2000.
The husband relied upon:
a)Response filed 12 January 2000;
b)His Affidavit filed 15 September 2000;
c)Affidavit of valuer S J H filed 20 September 2000;
d)Financial Statement filed 15 September 2000;
e)Affidavit of A G filed 20 September 2000;
f)Affidavit of M S filed 20 September 2000.
Orders sought by the parties
The wife in her case outline sought essentially a division of all matrimonial property of 65%/35% in her favour, with the husband to retain the former matrimonial home.
The husband in his case outline sought a division of all matrimonial property of 70% / 30% in his favour, with him retaining the former matrimonial home.
Issues
As a result of discussions and proper concessions between the parties, the parties agreed on the value of all assets save for the former matrimonial home. The value of 205 H Road, J, which was in dispute, was an issue to be determined by me on the evidence.
Whether any “negative contributions” should be taken into account and if so in what manner. The general nature of these “negative contributions” were asserted:
a)By the wife, as the husband’s trucking business failure and the husband’s losses from horse racing and/or training; and
b)By the husband, as the dissipation or wasting of the wife’s long service leave; the net proceeds of sale of vacant land at
15 H Court, L V; and the part payment of superannuation.The assessment of contributions:
a)To separation;
b)Post separation.
The assessment of the impact of s75(2) factors.
Background
Most of the chronology was agreed between the parties. The wife is 40 years of age being born on 22 July 1960. The husband is 45 years of age being born on 1 July 1955. The parties commenced co-habitation in 1976 and were married on 5 April 1980. There are
2 children of the marriage, J G T (born 11 August 1984) and T A T (born 6 November 1987).
It was a long relationship. The wife asserts the parties separated in January 1996, but continued to live under the same roof until she vacated the home in July 1997. The husband says separation did not occur until July 1997.
The husband is currently employed as a bus driver by the Brisbane City Council and has been so employed since approximately May 1986. The two children reside with him and because of the wife’s current reliance on a newstart allowance the level of child support is the minimum monthly payment.
The wife had also worked for many years as a full time bus driver with the Brisbane City Council until she resigned by letter dated 9 November 1999 effective 12 November 1999., She gave as her reason for resigning as “health” and “personal”. After her resignation she received:
a)Payment for long service leave of $6,658.00 on 19 November 1999;
b)Superannuation payment of non-preserved amount of $23,011.52 (net of PAYE tax).
Evidence was given by the wife of how she spent these moneys. I am satisfied the wife did not disclose receipt of these moneys to the husband. She says that she didn’t think she hard to, even though the financial statement filed 25 November 1999 incorrectly:
a)Shows the balance of her Credit Union Australia account as “$500” rather than the correct balance of approximately $6,500; and
b)In the alternative, the item for disclosure of long service leave was blank.
I was invited by the husband to infer the non-disclosure was intentional, designed to allow the wife to dissipate the funds without trace. Because, to some extent, I have brought these receipts into account and the wife made full disclosure in her material, I’m not required to make such an inference in this matter.
The wife says she has suffered from “major depression” and presently takes anti-depressants. Under cross examination, the husband’s Counsel sought to establish when the symptoms of her depression (which she described as headaches and not coping) first became apparent. She said it began in 1998. The report of consultant psychiatrist, Dr A dated 20 September 2000, says the wife related a history of depressive illness since “approximately mid-1999”. Not surprisingly, Dr A opines that the symptoms “arose in the context of an acrimonious marriage break-up with her husband, G” and “there has been a near complete resolution of her symptoms and she is now in a psychologically fit state to assume more responsibilities”. Essentially as a result of these problems, the wife says she resigned from work and has been unemployed. She is entitled to claim and receive Newstart Allowance at least until 26 December 2000.
Valuation of 205 H road, J
B J M prepared a valuation dated 4 September 2000 as a result of an inspection on 4 September 2000. He was subject to cross examination. Mr M was suitably qualified as a valuer and, in my view, importantly indicated experience in the J area of 11 years, 5 years as an assistant Valuer and 6 years as a registered Valuer. He apportioned his valuation of $190,000 as being $110,000 for land and $80,000 for improvements. He said the home was in a reasonable state of repair for its age and had a range of value between $175,000 and $200,000. He expressed a view that the distinction between his valuation and that of Ms H, was not in methodology (both Valuers adopting a direct comparison method), but rather in the properties she chose to compare to the subject property. His strong and consistent view, from which he did not resile, was that in that area the subject land of 7.94 hectares could not properly be compared to land of only 1 hectare which Ms H had used. He said he thought the difference in value attributable to the larger land was between $30,000 to $40,000.
S J H prepared a valuation dated 3 September 2000 as a result of an inspection on 3 September 2000. She was subject to cross-examination. Ms H was suitably qualified as a valuer but conceded that she hadn’t “done enough work in the area” to be able to apportion her valuation between land and improvements. She also said she had not investigated the sales evidence for the purpose of determining an apportionment, asserting that the method of direct comparison made it unnecessary to do so. She further asserted that, in her view, no more than $10,000 extra should be attributed to the difference in land size between a 1 hectare allotment and an allotment of nearly 8 hectares.
In submissions, I was referred to the general principle of how a Court should resolve dispute between Valuers. Although the Full Court in BORRIELLO v. BORRIELLO (1989) FLC 92-049 rejected the proposition in LENEHAN v. LENEHAN (1987) FLC 91-814, that the Court must choose between two competing valuations, in this case I formed a strong opinion that the Valuation of M should be preferred to that of H. Mr M was capable of confidently asserting the reason for the difference for the valuations (which also sounded logical), whilst Ms H was less persuasive. I adopt a value of the former matrimonial home of $190,000.00.
Negative contributions
The wife asserted that the husband should bear responsibility for the effect of losses arising from a trucking business purchased by the husband. This occurred in 1985/86. The husband apparently acknowledged he had been the subject of a serious misrepresentation as to the profitability of the business. The wife says she didn’t support the acquisition of the business. There is no evidence to suggest that the business decision was, at the time it was made, reckless. The business activity seems to me to be nothing more than one of those decisions in life which did not work out as expected, despite the husband’s (and probably wife’s) best endeavours. It is not an issue which bears in my view upon contributions.
Similarly, the evidence of the husband’s involvement in horses for a period of 7 years was somewhat vague. At best, the husband says they may have lost $2000.00 to $3000.00 per annum, but that some benefit for these losses and the trucking business losses, accrued in later years for taxation purposes. It seems that few people make money out of horses. The husband was working full time as a bus driver during this period, and as such, the horses were probably better described as a hobby rather than a business. I propose to make no allowance for these alleged losses.
The husband’s assertion, as against the wife in respect to her dissipation of proceeds received has, in my view, greater merit. I deal with each component separately as follows:
a)$2,850.00 – net proceeds of sale of Lot 15 H Court, L V property. The property has purchased in October 1996. The wife says that was after separation – which the husband denies. The husband says the wife did make payments to him of $150 per month, to cover the additional payments incurred by the increase in the housing loan associated with the land purchase, and acquisition costs. The evidence on this property was limited to assertions by the parties. On balance, I accept the evidence of the wife on this point where it differs from the husband, and in so doing find that the purchase of the land was regarded by the parties as an acquisition by the wife (although jointly owned and mortgaged for the reasons explained by the wife), and that on sale, all acquisition costs were discharged. The wife may retain the proceeds without accounting for them.
b)$6,658.95 – received for long service. These moneys were apparently (and it would seem quickly) utilised by the wife to meet her living expenses in that period when she had no income, from her resignation (in November 1999) until receipt of her newstart allowance in early 2000. I accept that the moneys were so used and no accounting for those moneys is required.
c)$23,011.52 from her superannuation. The wife says that she spent these funds on “clothes of about $2,000; $1,000 on furniture and $200 on shoes”. The balance of $20,000.00 (approximately) which her sister gave her in cash from the superannuation payment banked to her account, was “blown at the Casino”. The wife concedes now that it was foolish to do so, and attributes her actions in part to her depression. There is no evidence that she has retained any of these funds. In my view, the proper way to adjust for these funds used by the wife, is to add a sum of $20,000.00 to the pool of assets, and on distribution, credit the wife with receipt of that sum. By crystallising part of the superannuation the vested amount changed from a financial resource to property, capable of division. Authority for this approach is found in the decision of TOWNSEND (1995) 92-569.
Contributions
For the reasons referred to above, and considering the length of the marriage and the roles adopted by the parties as both hard working and the shared responsibilities towards the two sons, I find equal contributions under s79(4) to the time of separation.
I believe the husband has made a greater contribution, post-separation, as a result of his actions in preserving the matrimonial home and mortgage (which included some personal loans, “added into” the home loan); his role with the children without significant financial support (especially since January 2000) from the wife. The wife, during this period has utilised funds available to her apparently for her own support only.
The evidence in respect of a contribution made by the husband of $14,869.00 in October 1998 (para (16) of his affidavit) is uncontradicted. He says it came from his superannuation scheme “to help with the mortgage repayment, which had fallen behind”. A disappointing gap in the evidence, which could have so easily been filled, was the effect of the payment. In the absence of the production of one page of the St George loan statements, the best evidence of the effect of the payment of $14,869.00 on the loan, was that the balance at 3 August 1998 was $164,460.00 whilst the balance at 3 September 1999 was $160,259.00 I can only reasonably infer that the payment met some arrears (which an examination of Exhibit 7 suggests began to accumulate in May 1998) and perhaps some future payments, without greatly affecting the loan balance. Generally the payments during his sole occupation were an incident of his possession.
On consideration, I would make a 5% adjustment in the husband’s favour for post separation contributions.
Section 75(2) factors
In considering the factors under section 75(2) the most relevant factors in this case appear to be:
a)Although the husband is 5 years older than the wife, the age difference is not significant;
b)The financial resources of the parties are significantly in favour of the husband. A combination of the balance of his superannuation $81,611.00) and Long Service Leave ($10,600.00) is $91,711.00. The wife’s superannuation is $50,000.00. Because I have chosen to “add back”, a significant part of the superannuation received by the wife in December 1999, the future financial resource disparity requires an adjustment in the wife’s favour (also consider s75(2)(f);
c)Whilst the husband has the major present role in the care of the children, the age of the children and recent history do not suggest he is impaired in earning an income as a result;
d)The wife will, I believe on the evidence, be able to shortly return to gainful employment. She had the onus to persuade me if she wished to show an inability to earn income. She failed to do so. At 40 years of age, with no physical impairment, I find no adjustment for respective earning capacities is justified. When she returns to work she will have imposed upon her a liability for child support, which will lessen the burden on the husband.
In respect of all factors, I propose to make an adjustment to the wife for s75(2) factors, of 10%.
Summary
I find the assets and liabilities to be distributed are as follows:
a)J home........................................................... $190,000.00
b)Horse float......................................................... $3,000.00
c)Horses................................................................... $800.00
d)1995 Holden Commodore............................ $10,500.00
e)Husband’s furniture, saddlery & tack.............. $1,060.00
f)Wife’s furniture.................................................. $2,505.00
g)Sub-total...................................................... $207,865.00
h)Add back part of wife’s superannuation...... $20,000.00
i)Total.............................................................. $227,865.00
j)St George Loan............................................ $157,684.00
k)NETT SAY...................................................... $70,000.00
Because of my analysis above, the wife shall receive 55% of the net pool or $38,500.00.
This sum shall be made up as follows:
a)Monies received............................................. $20,000.00
b)Commodore Car............................................ $10,500.00
c)Furniture............................................................. $2,505.00
d)SUB-TOTAL.................................................. $33,005.00
e)Payment by husband, say................................ $5,500.00
f)TOTAL............................................................ $38,505.00
Orders
(1)That the HUSBAND shall pay the WIFE $5,500.00 within 30 days.
(2)Simultaneously with the payment under paragraph 1:
(a)The WIFE shall assign to the HUSBAND all her interest or estate in the property at 205 H Road, J, more particularly described as Lot 2 on RP813533, Parish of M, County of W;
(b)The HUSBAND shall cause the WIFE to be released from all liability (contingent or otherwise) under the St George Bank mortgage.
(3)The HUSBAND shall indemnify the WIFE against any claims arising from the said J property in the name of or created by the HUSBAND;
(4)Otherwise, the HUSBAND and the WIFE shall retain as their property absolutely, all assets in their possession, ownership or control at the date of this order including all bank accounts, superannuation, motor vehicles or other personal property.
(5)The party retaining any property or financial resource shall indemnify the other in respect of any outgoing, liability or encumbrancing attaching thereto.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
0
0
0