Tanning and Tanning

[2007] FamCA 1318

FAMILY COURT OF AUSTRALIA

TANNING & TANNING [2007] FamCA 1318

APPEAL – From decision of Federal Magistrate – PROPERTY SETTLEMENT – Long marriage – Neither party in employment at trial – Six children of the marriage – Small pool of assets – No significant superannuation interests – Small mortgage liability – Federal Magistrate found that earnings of parties were applied to acquisition and improvement of their property and for the welfare and benefit of their relationship and family – Husband continues to reside in the matrimonial home post-separation in 1998 – No challenge to the Federal Magistrate’s treatment of contributions or assessment of s 75(2) factors – Federal Magistrate made adjustment in wife’s favour as she had the predominant care of the children – Husband relied on an agreement that existed between the parties stipulating that the wife would continue after separation to have use of the husband’s credit cards up to the amount of half her share of the matrimonial home – On appeal the husband challenged the Federal Magistrate’s findings about the extent of the credit card debt and payments made by the wife – Whether a failure by the Federal Magistrate to give sufficient weight to the credit card debt incurred by the wife – Limited evidence before the Federal Magistrate from which only broad conclusions could be drawn

Family Law Act 1975 (Cth) ss 75(2); s 117(2A)

APPELLANT: MR TANNING

RESPONDENT: MRS TANNING

FILE NUMBER: BRM 3061 of 2003

APPEAL NUMBER: NA 54 of 2007

DATE DELIVERED: 9 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: WARNICK J

HEARING DATE: 29 October 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 12 July 2007

LOWER COURT MNC: [2007] FMCAfam 425

REPRESENTATION

SOLICITOR FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Kissick

SOLICITOR FOR THE RESPONDENT: Merbusch Munro Maguire Lawyers

Orders

1. That the appeal be dismissed.

2. That the husband pay the wife’s costs of an incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Tanning & Tanning.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 54 of 2007
File Number: BRM 3061 of 2003

MR TANNING

Appellant

And

MRS TANNING

Respondent

REASONS FOR JUDGMENT

1. In his reasons for judgment in respect of competing applications between Mr and Mrs [Tanning], for alteration of property interests, Slack FM observed:

   62.… Neither party will have any significant property as a result of these proceedings and it is unlikely that either party will be in paid employment.

2. In this, the husband’s appeal against the orders made by Slack FM, both his grounds of appeal and his oral submissions are somewhat emotionally charged.  He is distressed by the financial circumstances in which he finds himself.  He does not acknowledge the possibility that the undoubtedly difficult circumstances of his life are due to his loss of employment in the early nineteen nineties, raising six children and the necessary division, upon breakdown of a marriage of approximately 17 years, of a modest estate of approximately $205,000.00.

3. Rather he contends that an unaccountable court system relied upon misinformation, indeed perjured evidence, of the wife.

4. From his self-drawn Notice of Appeal and Summary of Argument, four challenges to findings of fact likely to have been of some significance to the result before Slack FM, emerged.

5. Some further challenges were of a trivial nature; for example, a reference in an order for the sale of a property to the deduction of any mortgage debt to [W] Bank, when that bank did not hold a mortgage over the property; and a reference in the Federal Magistrate’s reasons to the wife having remarried, when she in fact had not legally married her partner and father of her youngest child.  The insignificance of these and some other similar points raised by the husband, who was not legally represented at the trial or on the appeal, was discussed with him during submissions and I make no further mention of them here.

6. I am satisfied, as I will shortly discuss, that there is no merit in the four challenges to findings of fact.  However, in the discussion about one of them, relating to use after separation of the parties by the wife of credit cards in the husband’s name, it emerged that the husband possibly was aggrieved, not so much by erroneous fact-finding, but by a possible failure of Slack FM to give sufficient weight to the credit card debt incurred by the wife over a period of about two and a half years, but in some part, possibly a large part, met by the husband.

7. I entertained this consideration even though it probably did not fall within the grounds of appeal.  Mr Kissick, counsel for the wife, took no point about that and made submissions on the question.

8. I will discuss the arguments on appeal after a short background.

Background facts

1. The Federal Magistrate found that cohabitation commenced some time in 1981.  The parties married at the end of that year.  The husband was in employment at the commencement of cohabitation and as Slack FM found:

   47.…

   (e)I accept that the husband acquired the [K] property prior to the commencement of cohabitation of the parties but the property is now worth only $20,000.  There is no evidence of the purchase price of the property.

2. He also found that at that time:

   11.The wife had some limited personal chattels.

   12.… [the wife] acknowledges that the husband had a motor vehicle and some chattels.

   13.Apart from the [K] land, neither party had chattels of any significant value.

3. There were six children of the marriage, aged, at the time of trial: [G] 23, [J] 21, [S] 17, [P] 16, [A] 12 and [Z] 9.  It seems that [G] lived independently.  [S] resided with the husband, and the other children with the wife.

4. The husband continued in employment until the early nineties and since that period he has not worked.

5. Slack FM found himself satisfied “that the husband and the wife applied their earnings to the acquisition and the improvement of their property and for the welfare and benefit of their relationship and their family”.

6. At separation in mid-1998, the property of the parties was the matrimonial home at [C], the [K] property, a motor vehicle, a time share in a resort, jewellery, furniture and chattels.  There was a debt over the [C] property and the parties had some credit card liabilities.

7. Since separation, the husband has continued to reside in the home.  For a number of years after separation, the husband continued to pay the time share fees but then ceased payment.  At trial the parties no longer had an interest in the time share.

8. At trial in June 2007 the husband was 56 years of age; the wife 46.

9. As to post-separation matters and factors relevant under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), about which the appeal raises no issues, Slack FM said:

   30.In October 1999 the wife commenced a relationship with

   
   

   Mr [S].  She continues to live with Mr [S].  There is a child of that relationship, [X] born 18 May 2002.

   31.The wife and her partner currently reside [in Logan City].  Mr [S] is not working in paid employment and I gather the family is in receipt of Centrelink benefits.

   32.The husband has not worked since the early 1990s and he is in receipt of Centrelink benefits.

   33.The husband has a disability with respect to his legs and it seems unlikely that he will ever return to paid employment.

   34.The wife has not worked in paid employment since the birth of her first child.  She will continue to be responsible for the care of the children and it seems unlikely that she will return to full-time paid employment.

   35.Neither party has any significant superannuation interests.

   …

   41.The property pool consists of the following:

[x] [H] Avenue, [C]	$190,000
[x] Road, [M] via [K]	$20,000

42.The liabilities of the parties that I intend to take into account are as follows:

Mortgage debt to [W] - approximately $4,000

1. Beyond the issues indicated at the outset, there was no challenge to the treatment by Slack FM of the matter of contributions, nor to his assessment of the s 75(2) factors described in the passages quoted earlier. The learned Magistrate said:

   53.This was a long marriage in which the parties had six children.  At the end of it, they have very few assets. I do not consider that either party has made a greater contribution than the other.

   …

   62.This is a matter where I consider there should be an adjustment to the wife for the s.75(2) factors. The salient factors that warrant such an adjustment are:

   a)The wife will predominantly have responsibility for the continuing care, welfare and development of the children who are still relatively young.

   b)It is unlikely that she will receive any financial assistance by way of child support from the husband in the raising of the children.

   c)Otherwise the parties are in similar positions.  Neither party will have any significant property as a result of these proceedings and it is unlikely that either party will be in paid employment.

   …

   64.In the context of this case, I consider that a 10 percent adjustment is an appropriate adjustment for the s.75(2) factors.

2. The orders made required that the husband pay the wife within 42 days, the sum of $111,600 in exchange for a transfer to the husband of the wife’s interest in the [C] property, otherwise that property be sold, that the [K] property be sold and in each case, net proceeds be divided 60/40 percent in the wife’s favour.

The first two challenges to findings of fact

1. The learned Magistrate found:

   14.During the course of the marriage, the wife worked and earned income up to shortly before the birth of [G]. …

   …

   16.I am satisfied that the husband and the wife applied their earnings to the acquisition and improvement of their property and for the welfare and benefit of their relationship and the family.

2. The husband said that the findings about the wife’s work and therefore her contributions from earnings were wrong.  He pointed to his evidence which, in reply to the wife’s affidavit, was that after cohabitation commenced, the wife had obtained a job in 1981 and worked for only six months.  He ignored the wife’s evidence which was:

   6.At the time I commenced residing with the husband in 1979 I was unemployed however soon after I obtained a position as factory hand at [X] products at [Brisbane].  I held this position for approximately 18 months until my pregnancy with [G] was too advanced for me to continue with this work.

3. From the above, one can see a degree of uncertainty as to just when the period of work by the wife fell.  Relevant to the treatment of this conflicting evidence are Slack FM’s findings as follows:

   5.There is a dispute between the parties as to when they commenced cohabitation.  The wife asserts that it occurred in 1979. …

   …

   (d)I accept that the parties knew each other in 1979 and probably had a relationship.  However, I do not accept that they started living together at that time. I accept that cohabitation commenced some time in 1981.

4. [G] was born in April 1984 so on part of the wife’s evidence her work of eighteen months extended into the pregnancy with [G].

5. The contribution in question was a minor matter.  While some lack of clarity about this issue may well have remained, in the absence of further exploration of the question, I am satisfied that the learned Magistrate’s findings in paragraphs 14 and 16 were open to him.

The issue about credit card use and payment of credit card debt, post-separation

1. Slack FM found:

   25.After the separation the parties, for a number of years, continued to use some credit cards in the name of the husband.  There is a dispute between the parties as to the use of those cards.  The wife acknowledges that she did make purchases using the credit cards but says that she regularly made a monthly payment to pay off her expenses.

   26.The husband denies that and says that the wife made no payments off the credit cards.

   27.The credit cards were returned to the husband on 31 January 2001. 

   
   

   He alleged that the wife continued to use the credit card facility after that time but I have no evidence about the extent to which he says that she used the credit facility.  The wife denies that she used the credit card after January 2001.

   28.In January 2001 the credit card liability had reached approximately $5,000.

   29.The children lived with the wife after separation.  [S] went to live with his father in December 2000 and has remained living with him since that time.  [G] has been living independently of the parties for some time although I gather he maintains some contact with his father.  [J], [P], [A] and [Z] continue to live with the wife.

2. Later, in his assessment of contributions, Slack FM said:

   (f)Since the separation in 1998 the wife has largely been responsible for the care, welfare and development of the children.  The husband has cared for [S] since December 2000.

   (g)Between 1998 and 2001 the wife did have access to the husband’s credit cards.  I accept the husband’s evidence that the wife made limited contributions to the repayment of those cards.  I do not accept her evidence she made monthly payments.  However, her use of those cards was clearly for the benefit of the family.  She had the care, welfare and development of the then five children.  The husband was not paying any child support and the husband had the benefit of occupying the matrimonial home and had possession of most of the other property.

   (h)I accept that the husband since the separation has made contributions in the sense that he has paid the mortgage, rates and other outgoings with respect to the matrimonial home.  He has though had the benefit of the property. There is no evidence that he has made any substantial improvements to the matrimonial home.

   48.Ultimately I consider that the contributions made by the parties to the date of trial should be regarded as being equal.

   …

   50.The husband may have made a greater initial contribution but the wife has made a much more significant contribution to the welfare of the family since the separation than the husband.

   51.Both parties made contributions during the marriage and I consider that their contributions during the marriage were relatively equal.

   52.I accept that the husband made a financial contribution to the family after separation by allowing the wife use of his credit cards but otherwise the wife had the predominant responsibility for the care of the children. (emphasis added)

3. In his oral submissions before me, the husband started out by challenging the findings about the extent of the credit card debt.  He probably misconstrued the finding in paragraph 28 of the Federal Magistrate’s reasons earlier quoted, that in January 2001 the credit card debt was about $5,000.00, taking it to be a finding about the total debt incurred over the years.  He also challenged findings about when the credit cards were returned to him and in particular, about with whom the children lived in the period from separation to the beginning of 2001.  However, he could not support any challenge by reference to the evidence, and his argument devolved into one about the weight given to the issue by Slack FM.

4. As can be seen, however, the evidence before the Federal Magistrate lacked detail.  Slack FM noted that he had no evidence about the extent to which the husband said that the wife had used the credit facility.  Some statements for credit cards were before the Federal Magistrate.  There were some handwritten markings upon them.  However, there was no attempt by the husband to depose to the full extent of the use by the wife of the cards, or to cross-examine the wife about that.

5. In the circumstances, as the reasons of Slack FM disclose, his Honour had before him evidence from which he could draw only broad conclusions.  As seen, he found that, between separation and early 2001 the wife did use the credit cards but that she had the care of five children during that period.  Moreover, she had made some payment herself in respect of that usage.  He found in the husband’s favour that the husband made payments in respect of credit card debts incurred by the wife, and gave weight to that factor.  In my view, these findings were open to the learned Magistrate and were taken into account in regard to the assessment of contributions in a manner in which no appealable error appears.

6. Before me and in submissions before Slack FM, the husband endeavoured to mount an argument about an agreement between himself and the wife that, in return for his payment of the credit card debt for a period post-separation, the wife’s share of the [C] property would be transferred to him.  Even had the husband established that such an agreement existed, it would have had no compelling effect and in my view, the approach of the Federal Magistrate would have remained open to him.

Conclusion

1. As I have found no merit in any of the points argued, the appeal should be dismissed.

Costs

1. The wife seeks costs. The husband says nothing in resistance. Having regard to the financial positions of the parties and the result of the appeal, they being the particular features of those relevant under s 117(2A) of the Act, I consider that the husband should pay the wife’s costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate: 

Date:  9 November 2007