Talbott and Talbott & Anor
[2014] FamCA 193
FAMILY COURT OF AUSTRALIA
| TALBOTT & TALBOTT AND ANOR | [2014] FamCA 193 |
| FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Just and equitable – Where each party worked throughout the marriage – Where there are two adult children of the marriage – Where each party benefitted from the receipt of inheritances – Where the husband and the adult son of the parties are engaged in a partnership –Where an adjustment is made pursuant to s 75(2) in favour of the husband. | |
| Family Law Act 1975 (Cth) ss 79, 75(2), 114(1)(b). | |
| Bevan & Bevan [2013] FamCAFC 116. Bolger & Headon [2014] FamCAFC 27. De Angelis & De Angelis (1999) FLC 93-133. Dickons & Dickons [2012] FamCAFC 154. Farmer & Bramley (2000) FLC 93-060. G & G (1984) FLC 91-582. Lovine & Connor & Anor (2012) FLC 93-515. Mallet v Mallet (1984) 156 CLR 605. Norbis & Norbis (1986) 161 CLR 513. Stanford & Stanford (2012) 247 CLR 108. |
Steinbrenner & Steinbrenner [2008] FamCAFC 193.
White & Tullock & White (1995) FLC 92-640.
| APPLICANT: | Ms Talbott |
| FIRST RESPONDENT: | Mr D Talbott |
| SECOND RESPONDENT: | Mr K Talbott |
| FILE NUMBER: | BRC | 2469 | of | 2010 |
| DATE DELIVERED: | 28 March 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 5 & 6 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGregor |
| SOLICITOR FOR THE APPLICANT: | Carswell and Company |
| FOR THE FIRST RESPONDENT: | Mr D Talbott in person |
| FOR THE SECOND RESPONDENT: | Mr K Talbott in person |
Orders
IT IS ORDERED BY WAY OF FINAL ORDERS
That the First Respondent transfer to the Applicant all his right, title and interest in and to Lot A on Crown Plan … County of …, Parish of …, Title Reference … (Lot A).
That the First and Second Respondents transfer to the Applicant all their right, title and interests in and to the following:
(a)the 2005 Johnno’s Camper Trailer serial number …, registration number …;
(b)the Subaru Forrester motor vehicle registration number … presently in the possession of the Applicant;
(c)the following chattels currently located in and around Lot A:
(i)2006 Honda Quad
(ii)Massey 65 Tractor
(iii)Ford 4600 Tractor
(iv)Ford 5000 Tractor
(v)New Holland Hayliner
(vi)New Holland Haybine
(vii)Claas Comet Harvester
(viii)Massey Ferguson MF44 Wheel Loader
(ix)Bedford Tray Truck
(x)Homemade log splitting and sleeper bench
(xi)Fertilizer Spreader/Seeder
(xii)Rolls of barbed wire
(xiii)Bedford Rigid Tray Truck
(xiv)Molasses Storage Tank
(xv)Hay Trailer
(xvi)Quantity of old farm implements
(xvii)Fertilizer Broadcaster
(xviii)Grain Sorghum Bin
(xix)Fabricated Steel gates and cattle crush
(xx)Massey Planet
(xxi)Hardi duster
(xxii)Husqvarna chainsaw
(xxiii)Workshop tools
(xxiv)Taurus High Pressure Cleaner
(xxv)Workzone high pressure cleaner
(xxvi)Steel welding bench
(xxvii)Taurus Dremel drill kit
(xxviii)AMP Battery charger
(xxix)Assorted chainsaws
(xxx)Pneumatic nibbler, rattle gun & drill
(xxxi)Ryobi cordless drill
(xxxii)4 x 16” steel mags with tyres
(xxxiii)Lecia Laser Level with tripod
(xxxiv)2 x small gensets
(xxxv)Sheets of steel
(xxxvi)Steel rack with off cuts
(xxxvii)Assorted crab pots
(xxxviii)Manual rotary oil pump Hardwood railings and posts
(xxxix)Alloy irrigation pipe and black poly pipe
(xl)2 x 3 linklage grader blade and attachments
(xli)Small sprung harrow
(xlii)6’ PTO driver slasher deck
(xliii)Kreisel F650 rotary hoe
(xliv)Rotary hoe machinery attachment
(xlv)Fertilizer broadcaster
(xlvi)44 seater bus
(d)the home-made horse float (pig trailer) registration number … .
Within fourteen (14) days of the date of these Orders, the First Respondent do all acts and things and sign all documents necessary to ensure that Lot A is free of all encumbrances and the First and Second Respondent do all acts and things and sign all documents necessary to ensure that the property referred to in Order 2 is free of all encumbrances, and, without limiting the generality hereof, that the QRAA mortgage number …55 is released insofar as it may encumber Lot A AND the First and Second Respondents shall do all acts and things and sign all documents reasonably necessary to procure the release of the Applicant from and in respect of all and any liability to QRAA and Suncorp Bank in relation to any loan agreement, mortgage, and, or alternatively, guarantee of any loan executed by the Applicant for the benefit of the First and, or, the Second Respondent (in particular and without limiting the generality of the foregoing, the QRAA mortgage …50 secured on the property Lot B on Crown Plan … County of … Parish of … Title Reference … and the property Lot C on Crown Plan … County of … Parish of …) AND the First and Second Respondents shall indemnity the Applicant from and in respect of any action, suit claim and or demand made by QRAA, Suncorp, or any other claimant in relation to the business carried on or any property owned or held by the First and Second Respondents or either or them or the D & K Talbott Partnership.
The Applicant shall retain as her sole property, all of the money held in trust by Messers Carswell & Company, Solicitors being the net proceeds of sale of her interest in the property situated at Lot L, E Street, Town F.
The First Respondent retain as his sole property all his right title and interest in and to the properties situated at:
(a)Lot G, H Street (Lot G on Crown Plan … County of … Parish of …);
(b)Lot C, E Street (Lot C on Crown Plan … E Street, Town F);
(c)Lot B, I Street, Town J (Lot B on Crown Plan … County of … Parish of … Title Reference …);
(d)the plant and machinery currently in the possession of Talbot Partnership;
(e)M Street, Town N;
(f)any liability (jointly or jointly and severally with Mr K Talbott) under the QRAA mortgage …50; and
(g)save for the plant and equipment referred to in Clause 2 above, the plant and machinery currently in the possession of the First Respondent or owned by the partnership formerly carried on by Mr and Ms Talbott.
The First Respondent and the Second Respondent, as the case may require, indemnify the Applicant from and against all liabilities associated with the property to be retained by the First Respondent pursuant to Clause 5 and, without limiting the generality of the foregoing, any income tax, capital gains tax, land tax or any other tax or levy assessed or payable in relation to any of the properties retained by the First Respondent or in relation to the partnership of D & K Talbott.
Unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any monies due under these Orders:
(a)each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of either party in any separate bank account is to remain their own separate property;
(c)each party hereby foregoes any claim they may have to any superannuation except as provided by these Orders, long service leave, annual leave or sick leave belonging to or earned by the other or to which the other may become entitled;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which the party is entitled pursuant to these Orders.
That the husband and the second respondent are hereby restrained from entering onto Lot A unless such entry is permitted by the wife.
In the event that any party refuses or neglects to do any act or sign any document required to be done or executed in compliance with the provisions of these Orders, then, pursuant to s106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the Order and the affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance.
IT IS ORDERED BY CONSENT
The Applicant and the First Respondent forthwith do all acts and things and sign all documents reasonably necessary to mutually release each other from the Deed executed by them, dated 8 September 2006, whereby they agreed to execute mutual wills in favour of their children.
IT IS FURTHER ORDERED
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Talbott & Talbott & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2469 of 2010
| Ms Talbott |
Applicant
And
| Mr D Talbott |
First Respondent
And
Mr K Talbott
Second Respondent
REASONS FOR JUDGMENT
The husband, now 65 years of age and the wife, now nearly 59 years of age, married in 1973 and, after approximately 36 years of cohabitation, separated voluntarily in about November 2009. Their separation has meant that they no longer enjoy the common use of property and superannuation acquired during this lengthy cohabitation. Such separation has also brought to an end any “assumption that any adjustment to those interests could be effected consensually as needed or desired”.[1]
[1] Stanford and Stanford (2012) 247 CLR 108, [42].
Whilst agreeing that it is just and equitable that orders altering their interests in property are made, the parties are in conflict as to the terms of the orders which are appropriate to reflect properly those matters which must be considered in proceedings such as these.
What are the differences in the contentions of the parties as to those orders which are just and equitable?
Both parties seek to receive real property situated at Property O, I Street, Town J in the State of Queensland, more particularly described as Lot A on Crown Plan … County of …, Parish of …[2] (“Lot A”). Lot A is owned by the wife and the husband and was the ‘home block’ until separation in November 2009. Since then, the wife has lived there alone. She wants to receive Lot A free from encumbrance and, in order to achieve this, seeks that both the husband and the second respondent do all things necessary to refinance the existing liability owing to QRAA, obtain the release of the mortgage secured over Lot A as security for this facility and secure her release from any guarantee previously executed by her.
[2] Title Reference … .
The husband was agreeable to this course in the event that I determined that the wife receive Lot A in these proceedings. Whilst noting that it may be a matter for QRAA to determine whether or not to release the wife from any guarantee she has previously executed, he was clear in asserting that he and the second respondent would do everything they needed to do to ensure that Lot A was unencumbered at the time of transfer to the wife and that she was released from any guarantee previously provided. I accept his assurances in this respect.
The wife sought to retain plant and equipment currently located on Lot A. In contrast, the husband (who was supported by the second respondent in this respect) sought the return of this plant and equipment and that the D & K Talbott Partnership retain all plant and equipment owned by it. Included in this category is the camper trailer and home-made horse float which the wife seeks to retain.
Counsel for the wife submitted that an order in the terms sought by the wife would see her receive property valued at $756,430.00 – being approximately 50.97 per cent of the total property (inclusive of monies received by each party by way of inheritance) of the parties.
The husband sought orders that would see the wife receive Lot G – currently owned by him and the second respondent within the D & K Talbott Partnership. I am not persuaded that such an order would be just and equitable because:
a)the wife would have to relocate from Lot A where she has lived since separation; and
b)the evidence clearly establishes that, since the August 2010 valuation of Lot G, the husband and the second respondent have continued to remove agricultural crops from this land and sell it, applying the monies obtained to the D & K Talbott Partnership – thus, there is no way to determine the current value of Lot G given that all Lots were valued on the basis of the crops then present on each of them.
In such circumstances, I consider it just and equitable that Lot G remain owned by the husband and the second respondent in the manner in which it has always been. They have obtained benefit from it and can continue to do so should they wish to.
The property of the parties and related issues
There is dispute between the parties as to their existing legal and equitable interest in the assets of the D & K Talbott Partnership. Neither party asserted the existence of any equitable interest in any other property.
The D & K Talbott Partnership
The wife’s case initially advanced that a consideration of the manner in which the parties actually operated the D & K Talbott Partnership would lead inexorably to the conclusion that, despite its title, she too was, for all intents and purposes, a partner in the D & K Talbott Partnership. Relying on this proposition, she originally sought that two thirds (rather than one half) of the assets of the D & K Talbott Partnership be considered property of the parties amenable to an order pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
However, her Counsel advised that, but for relying on her contributions to the operation of the D & K Talbott Partnership – which included permitting Lot A to be used as security for borrowings undertaken by the husband and the second respondent in partnership to real property – as the basis upon which the Court would conclude that justice and equity required that she receive the plant and equipment, valued at $61,539.00, remaining on Lot A, the wife did not pursue her claim to a one third interest in the assets of the D & K Talbott Partnership.
Thus, save for that particularised plant and equipment, the wife makes no claim on the D & K Talbott Partnership assets. It follows that it is no longer in dispute that, save for this plant and equipment, both the husband and the second respondent will retain their interests in this partnership.[3] The resolution of this issue reduced the second respondent’s role in these proceedings.
[3] Amended Case Outline for the Applicant filed by leave 5 March 2014.
How should the plant and equipment be dealt with?
In a manner consistent with their repeated emphasis that the wife wanted nothing to do with the D & K Talbott Partnership, both the husband and the second respondent sought that the husband receive all of the plant and equipment owned by that partnership.
Such assertion forgets, however, that the wife permitted Lot A – property she owned jointly with the husband – to be used as security for borrowings undertaken by the D & K Talbott Partnership. She did so in circumstances where, according to the husband, without the same he and the second respondent would not have been able to obtain the borrowed funds to purchase real property.
It is useful, given the husband’s repeated references to the ‘D & K Talbott Partnership” and its accounts and books as being definitive of the limits of the wife’s entitlement to plant and equipment recorded in accounting documents as property of the D & K Talbott Partnership, to have regard to Barwick CJ in Whiteley Muir v Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506:
…a partnership is a relationship in point of fact between the partners in which they conduct a business in common with a view to profit and that the question of partnership is not to be decided merely by what the parties call each other or by the way in which they referred to the relationship vis a vis one another.
I accept the submission made by Counsel for the wife to the effect that the evidence clearly shows that, prior to separation, little regard was paid by the parties to what was and what was not D & K Talbott Partnership property: for example, the Toyota Cruiser Utility listed by the husband as being ‘his’ property in the Financial Statement[4] was recorded in the books of the D & K Talbott Partnership as an asset of the partnership; further, the husband paid the registration costs of the vehicle as a personal expense, when, according to the accounting documents, it was a partnership expense.
[4] Filed 2 August 2012.
The inheritances
Each party received an inheritance. The wife’s inheritance, in an amount of $144,891.00, obtained after selling inherited real property, is held in her solicitor’s trust account. The husband inherited a quarter interest in a house in which he and his brother live. His interest has been valued at $60,000.00.
The wife asserts that the Court would not be persuaded in the circumstances that it is just and equitable that an order be made altering the legal interest of either party in the respective inheritance monies. She does so on the basis that there is no evidence before the Court which would permit of a conclusion that either made any contribution to the same. The husband, on the other hand, seeks that he receive half of the wife’s inheritance but that the wife receive none of his inheritance.
Authority clearly establishes that in most cases it is appropriate to consider property as forming one ‘pool’ of property available for consideration and I propose to do so here.
The value of the property of the parties as found by me is summarised below:
| Item | Ownership | Description | Expert Value | Husband’s Share | 2nd Resp’s Share |
| 1. | Wife and Husband | Lot A | $550,000.00 | ||
| 2. | Husband & Second Respondent | Lot C, E Street | $535,000.00 | $267,500.00 | $267,500.00 |
| 3. | Husband & Second Respondent | Lot B, I Street, Town J | $300,000.00 | $150,000.00 | $150,000.00 |
| 4. | Husband & Second Respondent | Lot G, H Street | $460,000.00 less value of Lot Q, H Street | $137,500.00 | $137,500.00 |
| 5. | Husband & Second Respondent | Cat D7 Dozer | $50,000.00 | $25,000.00 | $25,000.00 |
| 6. | Husband & Second Respondent | Honda Davey Firefighter | $1,154.00 | $577.00 | $577.00 |
| 7. | Husband & Second Respondent | Honda Quad | $2,800.00 | $1,400.00 | $1,400.00 |
| 8. | Husband & Second Respondent | Cattle | $66,318.00 | $33,159.00 | $33,159.00 |
| 9. | Wife & Husband & Second Respondent | Plant & Equipment | $200,358.00 | ||
| 10. | Wife | Inheritance from the Wife’s father | $144,891.00 | ||
| 11. | Husband | Inherited share of house from Husband’s Mother | $60,000.00 | ||
| Gross assets | Not inclusive of 2nd Respondent’s Share | $1,570,385.00 | |||
| 12. | Husband & Second Respondent | QRAA Mortgage | ($172,626.00) | ($86,313.00) | ($86,313.00) |
| Total liabilities | Not inclusive of 2nd Respondent’s Share | ($86,313.00) | |||
| 13. | Husband | Superannuation | $3,700.00 | ||
| 14. | Wife | Superannuation Fund | $500.00 | ||
| Total Super | $4,200.00 | ||||
| Net All Assets | $1,488,272.00 | ||||
The s 79(4) considerations
In considering the relevant matters mandated by s 79 of the Act, it must be remembered that:
a)“community of ownership arising from marriage has no place in the common law”[5]; and
b)the exercise of the discretion conferred on the Court must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;[6] and
c)there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union;[7] and
d)the assessment of the contributions made by parties is holistic – not a matter of mathematical computation[8] – and is part of a further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of the particular relationship: the essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship;[9]
e)a trial judge is bound to analyse and weigh all of the contributions, including indirect contributions (which are to be given significant weight[10] and which should not be undervalued[11]), of all of the types made by the parties;
f)there is no requirement that contributions be ‘tied’ to particular assets -the Court’s role is to evaluate the significance of various contributions.[12]
[5]Stanford and Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J.
[6] Bevan & Bevan [2013] FamCAFC 116, [73].
[7] Mallet v Mallet (1984) 156 CLR 605.
[8]G & G (1984) FLC 91-582, at 79,697; Norbis& Norbis (1986) 161 CLR 513 at 523, per Mason and Deane JJ.
[9]Dickons & Dickons [2012] FamCAFC 154; Lovine & Connor and Anor (2012) FLC 93-515; Bolger & Headon [2014] FamCAFC 27 at [28].
[10] Mallet v Mallet (1984) 156 CLR 605.
[11] For example : Ferraro & Ferraro (1993) FLC 92-335 79,568-9.
[12] Farmer & Bramley (2000) FLC 93-060.
Consideration of the contributions of the parties
There was no real dispute that the parties commenced their cohabitation with property of relatively limited value.
Whilst the husband corrected the assertion that he had bought a house at Town P for $5,000.00 – by saying that it cost $4,000.00 – he did not challenge the wife’s evidence that she contributed savings of about that amount which were used to pay off the loan he had obtained for purchase of the same.
Both parties were working for remuneration at the time of their marriage: the wife in a hospitality business and the husband for a government agency. The parties’ two children were born in 1974 and 1977 respectively and it is not in dispute that the wife was primarily responsible for their care while the husband continued to work to support the family financially.
The parties bought Lot A in 1977. They continued to live in the Town P property while they built a house on Lot A. They purchased plant and equipment for use on that Lot. The parties sold the Town P property in 1981 for $30,000.00 – applying the money to the support of the family and/or the development of Lot A and/or the purchase of plant and equipment – and moved to live at Lot A. At this time, the husband ceased working for the government agency and applied whatever money he received as a payout and superannuation entitlement toward the family and expenses associated with Lot A.
It is clear that both the husband and the wife have worked hard during all of their adult lives. After moving to Lot A they continued this hard work by engaging in various work for remuneration: for example, they worked ‘off-site’ and baled hay.
In about 1993 the husband and the second respondent (then aged about 16 years) went to work away from Lot A, doing manual work. The wife remained at Lot A and, I find, continued to be responsible for its management in the husband’s absence.
The husband and the second respondent bought Lots Q and G, Town R for $135,000.00 in 1994. Money was borrowed for this purchase. All parties worked hard to contribute to the repayment of this debt, whether directly by applying money earned from working for remuneration or indirectly by supporting those who were working for remuneration.
Whilst the husband was adamant in his assertion that the monies to repay this loan were paid from the D & K Talbott Partnership account, he also accepted that, from the time the D & K Talbott Partnership was formed, all monies – however earned – were paid into this account. In such circumstance, it is not remotely surprising that the funds used to repay the loan were, therefore, drawn from it.
I accept that the husband and wife and the second respondent all worked hard to earn the funds necessary for self-support and the repayment of the loan. The husband and wife worked on farms and the second respondent worked in a quarry. There can be no doubt that each of them worked long and hard in what was, at that time, a common endeavour to buy lots of land for the purpose of cattle grazing.
In 1999 the husband and the second respondent purchased an agricultural business. The second respondent contributed about $30,000.00 towards this purchase. I accept that both of them worked very hard in this business. I also accept that the wife contributed by undertaking some administrative work, assisting in the workplace and cooking and cleaning for labourers who assisted the husband and the second respondent in carrying out the agricultural business and associated duties.
With the money earned in the agricultural business, to which I have found all parties contributed, the husband and second respondent, in the D & K Talbott Partnership, purchased Lot B, I Street, Town J – adjacent to Lot A.
In 2005, the husband and second respondent bought Lot C, E Street, Town F at a cost of $450,000.00. Most of the funds for this purchase were borrowed. The wife guaranteed the loan and permitted Lot A to be used as security for these borrowings. Her actions in doing so belie the husband and second respondent’s contention that she “wanted nothing to do” with the D & K Talbott Partnership and its activities.
In about 2010 the agricultural business ceased as a consequence of decisions taken by Government. Whilst some limited compensation – in an amount of about $80,000.00 – was provided as a consequence, these funds were soon spent on meeting the costs of living.
I conclude that all of the parties continued to work hard in what remained, at that time, the joint enterprise of working together in order to ensure a better future via land accumulation so as to support a cattle grazing venture. I accept the wife’s evidence that, whilst the husband and second respondent were away doing contract work in order to obtain funds, she undertook farm work. I also accept that, on occasions, she took food to the husband and second respondent when they were working away from Lot A and that she was, in essence, the general rouseabout.
I accept that the wife contributed her manual labour, cooked and cleaned for the workers who on occasion worked on the properties, did bookwork, cared for the second respondent when he remained living at home (as he did until the husband and wife separated in September 2011), paid her $4,000.00 inheritance (received in the 1990s) toward meeting household bills and costs and drove both the husband and second respondent around when each lost their driving licences.
I accept that the husband and second respondent both worked very hard physically during the course of the husband and wife’s relationship. It is clear on the evidence that they took whatever paying employment was available to them and that this, on occasion, necessitated them living in difficult circumstances away from the home block. I accept that they endured the deprivations associated with these circumstances in order to acquire the property considered in these proceedings.
As outlined above, the wife has continued to live on Lot A since separation in September 2009. Save for undertaking one minor piece of remunerated work, the husband has not worked for remuneration since separation. Rather, he has been supported from the D & K Talbott Partnership, which itself has continued to earn income as a consequence of the second respondent’s efforts. The wife has not received the benefit of any funds from the D & K Talbott Partnership since separation: rather, she has been supported via the receipt of Government benefits.
Beyond continued care for, and management of, the real property practically under each party’s control, neither the husband nor the wife has made any significant contribution to the acquisition, conservation and improvement of property following separation.
In assessing the contributions made by the husband and wife, the Court exercises a broad discretion in respect of which reasonable minds may differ. This process is neither an accounting or mathematical exercise,[13] but it does involve a movement from “a qualitative evaluation of contributions to a quantitative reflection of such evaluation” – that is, a “leap” from words to figures.[14] As noted above, it is a holistic exercise.
[13] See: Norbis v Norbis (1986) 161 CLR 513 at 522; Brandt and Brandt (1997) FLC 92-758.
[14]Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] per Coleman J.
Here there is absolutely no evidence whatsoever to establish that either party contributed in any way to the other’s receipt of property inherited (whether held as cash at bank following the sale of real property – in the case of the wife – or as an interest in real property – in the case of the husband). In the circumstances, I conclude that each party should be regarded as solely contributing the inheritance each received.
The wife’s inheritance of $147,891.00 represents about 9.76 per cent of the value of the property of the parties. The husband’s inheritance, valued at $60,000.00 represents about 4.04 per cent of the value of the property of the parties.
But for the inheritances received, I would have concluded that, as at the date of trial, the parties had contributed equally. However, taking the disparity of the value of the inheritances into account, I consider that, as at the date of trial, the assessment of contributions slightly favours the wife: I assess her contribution at 52.5 per cent and the husband’s at 47.5 per cent.
None of the orders proposed by either the husband or wife will have any effect on the earning capacity of either party.
Relevant s 75(2) matters
The wife is nearly 59 years of age. She hopes to run cattle and an orchard on Lot A. She seeks to retain the plant and equipment currently located on this Lot to assist her in earning a future income from it.
Counsel for the wife quite properly adduced evidence that the wife has an expectation that she may receive an inheritance from the estate of a long term friend, recently deceased. It appears that her now deceased friend was engaged in property settlement proceedings, which continue, in the Federal Circuit Court and, as such, the quantum of the wife’s likely entitlement is unknown.
The wife gave evidence to the effect that she thought she may receive property having a value of somewhere between $200,000.00-$500,000.00 but, beyond this, was unable to particularise the matter any further.
Upon becoming aware of this inheritance, the husband sought that it be taken into account in these proceedings. Counsel for the wife accepted that the wife’s unquantified inheritance amounted to a financial resource which may become available to her in some unknown amount at some unknown time in the future.
Doing the best that I can on the evidence before me, I take into account that the wife may well receive property, inherited from a friend at some future time.
Whilst the husband submitted that the wife would also inherit property from her mother at some stage into the future and, by inference, that this prospect should be, in some way, considered, there is no evidence before the Court to establish the likely amount of such inheritance or the possible timeframe within which it may be received. There is no evidence that the husband contributed in any way to whatever property the wife may at some indeterminate future time inherit. I am not persuaded that injustice is caused to the husband by a failure to have any further regard to this issue.[15]
[15]White & Tulloch & White (1995) FLC 92-640 at 82,464; De Angelis & De Angelis (1999) FLC 93-133 at [96]-[98].
The husband is 65 years of age. Whilst he says that ill-health has prevented him from engaging in any paid employment since separation, he has had the benefit of financial support from the D & K Talbott Partnership.
The second respondent submitted to the effect that he wanted the husband to have his share of the partnership property – which would see the husband own property valued at over $1,000,000.00.[16] Whilst I am not prepared to act on the basis that the husband will, in fact, receive this property, the possibility remains that the second respondent may put his words into effect.
[16] Rather than his half interest in partnership property valued at approximately $500,000.00.
The husband and the second respondent may continue to operate in the future as they have in the past – that is, in partnership and in support of each other. They may seek to dissolve the partnership, take accounts, potentially sell or transfer real property between them and to go their separate ways.
Whatever is decided, I am confident that the second respondent would not act in any manner to deprive the husband of his proper entitlement to partnership property.
Conclusions as to s 75(2) factors
I take into account that the effect of the conclusions as to contributions will see the husband receive property valued at $706,929.20, and wife receive property valued at $781,342.80. Both will continue to have the means, via land ownership, to earn a living – albeit that this is likely to be modest. The wife may inherit property which may have a fairly significant value. There is a possibility that the husband may receive the second respondent’s interest in the D & K Talbott Partnership assets.
In all the circumstances, I consider that an adjustment of 1.5 per cent in the husband’s favour properly reflects the wife’s potentially superior future financial position.
The totality of my assessment will see the wife receive about 51 per cent of the value of the property of the parties and the husband receive about 49 per cent of the value of the property of the parties: the wife will receive property and superannuation entitlements valued at $756,930.00 and the husband will receive property and superannuation entitlements valued at $731,342.00.
Justice and equity of the proposed orders
The consequence of the conclusions outlined above is that, having regard to the parties’ respective contributions to trial and the relevant s 75(2) matters, at the conclusion of a long relationship, productive of two now adult children, during which each contributed fully and to the best of their respective abilities, the husband and wife will share relatively equally in their combined property and superannuation interests.
The total value of the plant and equipment remaining on Lot A[17] is $67,693.00 (inclusive of GST) or $61,539.99 (exclusive of GST). I accept that the husband and the second respondent removed plant and equipment valued at $97,990.00 in 2010 and plant and equipment valued at $114,173.00 in late 2013 from Lot A.[18]
[17] Affidavit of the wife filed 4 March 2014, paragraph 7; JD Dodd’s valuation.
[18]Affidavit of the wife filed 4 March 2014, paragraphs 4 & 5; Order of Forrest J made 23 September 2013.
I am persuaded that it is just and equitable that the wife receive Lot A and retain that plant and equipment currently located on it. I arrive at this conclusion having regard to the fact that she has lived there since separation in late 2009, her contributions to the D & K Talbott Partnership – as discussed above – and that, looking to the future, she wishes to be able to operate whatever business or venture she can on Lot A. She, like the husband, will require plant and equipment to assist her in carrying out this venture. It is just and equitable that both she and the husband share in the plant and equipment accumulated over time.
The consequence of the conclusions outlined above is that the parties will receive or retain the following property:
| HUSBAND | WIFE | ||
| Property | Value | Property | Value |
| Lot G, H Street | $137,500.00 | Lot A - Property O, I Street | $550,000.00 |
| Lot C, E Street | $267,500.00 | Plant & Equipment | $61,539.00 |
| Lot B, I Street | $150,000.00 | Wife’s inheritance | $144,891.00 |
| Cat D7 Dozer | $25,000.00 | Wife’s Superannuation | $500.00 |
| Honda Davey Firefighter | $577.00 | ||
| Honda Quad | $1,400.00 | ||
| Cattle | $33,159.00 | ||
| Plant & Equipment | $138,819.00 | ||
| Husband’s inheritance | $60,000.00 | ||
| QRAA Mortgage | ($86,313.00) | ||
| Total Non-Super assets | $727,642.00 | Total Non-Super assets | $756,430.00 |
| Total Superannuation | $3,700.00 | Total Superannuation | $500.00 |
| TOTAL | $731,342.00 | TOTAL | $756,930.00 |
| $1,488,272.00 | |||
For the reasons outlined above, I am satisfied in all the circumstances of this case that it is just and equitable within the meaning of s 79(2) of the Act that, pursuant to s 79(1) of the Act, orders altering the interests of the husband and wife in property, owned by each of them, are made in terms of those set out at the commencement of these Reasons.
The restraining order sought by the Wife
Counsel for the wife submitted that, pursuant to ss 114(1)(b) or (e ) of the Act, the Court should make an order restraining both the husband and the second respondent from attending on Lot A. He did so given the following – which I accept:
a)in 2010, the husband and second respondent entered Lot A “without permission” and removed plant and equipment;
b)in March 2014, the husband caused his cattle - which had been on the adjacent Lot - to enter Lot A which risked an intermingling with cattle the wife had agisted there;
c)in March 2014, the husband entered Lot A and removed a feed bin belonging to the farmer who owned the agisted cattle.[19]
[19] Affidavit of the wife filed 4 March 2014, paragraphs 4, 5 &15-26.
It is clear from his evidence that the husband continues to see Lot A as “his”. He continues to regard hay stored there but accumulated after separation as something to which he is entitled, whenever he chooses to take it and in whatever amount he determines.
These orders will bring the husband and wife’s financial partnership to an end. Each will retain property for their sole benefit. Neither has any ongoing “right” to continue to share in the property of the other.
Given the husband’s evidence, I am persuaded that, without an order restraining him from entering onto Lot A, it is more likely than not that he, with the assistance of the second respondent as has occurred previously, may enter onto Lot A in the future. These circumstances persuade me that it is proper to make an order restraining both the husband and the second respondent from doing so unless permitted by the wife.
I make orders in the terms appearing at the commencement of these Reasons to give effect to the conclusions outlined above.
I certify that the preceding sixty- seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 28 March 2014.
Associate:
Date: 28 March 2014
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