Taveray & Wedgewood & Anor (No. 2)
[2018] FamCA 562
•27 July 2018
FAMILY COURT OF AUSTRALIA
| TAVERAY & WEDGEWOOD AND ANOR (NO. 2) | [2018] FamCA 562 |
| FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the parties were in a relationship for 11 years – Where the parties are unable to agree about what, if any, property settlement order should be made – Where the husband made the overwhelming financial contributions to the parties’ marriage – Where each of the parties were meticulous in paying their share of expenses during their relationship and both contributed in the role as homemaker– Where the wife is in poor health and has no income other than the spousal maintenance provided by the husband – Where the husband is in good health and has the capacity for ongoing full time employment – Where it is just and equitable to make an order – Where the husband shall receive 75 per cent of the property pool. FAMILY LAW – SPOUSAL MAINTENANCE – Lump sum – Where the wife seeks an order for a lump sum payment of spousal maintenance – Where the wife has a serious medical condition – Where wife may be unable to work in the future – Where the wife, by way of a property order, is to receive a cash sum payment – Where the wife is unable to adequately support herself at this time – Where the husband has the financial capacity to pay spousal maintenance to the wife on a weekly basis until 14 March 2021. |
| Family Law Act 1975 (Cth) |
| Chancellor & McCoy (2016) FLC 93-752 Fielding & Nichol (2014) FLC 93-617 In the marriage of Bevan and Bevan (1995) FLC 92-600 Mitchell & Mitchell (1995) 19 Fam LR 44FLC 92-601 Stanford & Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Taveray appearing by her case guardian Mr Darcy |
| 1st RESPONDENT: | Mr Wedgewood |
| 2nd RESPONDENT: | E Pty Ltd ACN … A/T for Wedgewood Family Trust |
| FILE NUMBER: | BRC | 1533 | of | 2017 |
| DATE DELIVERED: | 27 July 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 28 - 29 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shoebridge |
| SOLICITOR FOR THE APPLICANT: | Mark Treherne & Associates |
| COUNSEL FOR THE RESPONDENTS: | Mr Bunning |
| SOLICITOR FOR THE RESPONDENTS: | Creevey Russell Lawyers |
Order
Pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) the husband pay or cause to be paid to the wife the sum of $318,612.50 less one half of the cost of the valuations obtained for the business and the property at F Town.
Within 30 days the wife return or cause to be returned to the husband the German motor vehicle registration number ….
Pursuant to s 74 of the Act the husband pay or cause to be paid to the wife the sum of $1,200 per week until 14 March 2021.
Each party otherwise retain to the exclusion of the other all property including superannuation currently in their respective possession or control.
All extant applications be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Taveray & Wedgewood and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1533 of 2017
| Ms Taveray appearing by her case guardian Mr Darcy |
Applicant
And
| Mr Wedgewood and E Pty Ltd Pty Ltd ACN … A/T for Wedgewood Family Trust |
Respondent
REASONS FOR JUDGMENT
Ms Taveray and Mr Wedgewood are a married couple who separated in August 2016. They are unable to agree about what, if any, property settlement order should be made and for how long and in what form Ms Taveray’s spousal maintenance should be paid. They require the Family Court of Australia to make a decision for them.
Ms Taveray contends that the property pool should be divided in the proportion sixty-five per cent to Mr Wedgewood and thirty-five per cent to her. In addition she contends that Mr Wedgewood should pay spousal maintenance in a lump sum of $216,000 or alternatively a periodic sum of $1,500 until she turns 58.
Mr Wedgewood contends that there should be no property settlement order and rather reluctantly concedes he should pay spousal maintenance of $1,500 per week for six months or at most twelve months.
A family trust controlled by Mr Wedgewood and treated as his own property has been joined as a third party but adds nothing to the dispute. The trust is represented by Mr Wedgewood’s legal representatives.
On 24 May 2018 Mr Darcy, solicitor, was appointed as Ms Taveray’s case guardian. Ms Taveray’s mental health had deteriorated to such an extent that she no longer had capacity to provide instructions. By the time of the commencement of the trial Ms Taveray had commenced a course of electro convulsive therapy (“ECT”) to aid her recovery from a severe depressed state.
issues
The issues identified as relevant in this case are as follows:
a)Is it just and equitable to make a property settlement order in circumstances where the parties kept their finances separate during the relationship?
b)Were the financial arrangements established by Ms Taveray and Mr Wedgewood nothing more than the product of Mr Wedgewood’s background aimed at minimising taxation?
c)If it is just and equitable to make an order, how should the individual contributions both financial and non-financial to the acquisition, conservation and improvement of property and to the welfare of the family be assessed in light of Mr Wedgewood’s superior initial contribution?
d)What if any adjustment should be made under s 75(2) of the Family law Act 1975 (Cth) (“the Act”)?
e)Should Ms Taveray receive a lump sum maintenance payment of $216,000 calculated on the basis of a capitalisation of a weekly sum of $1,500 for 144 weeks (being the time when Ms Taveray will have access to her superannuation)?
f)If Ms Taveray does not receive a lump sum when should the periodic sum cease?
background
Ms Taveray and Mr Wedgewood commenced cohabitation in 2005 and married in 2015. They separated in August 2016 and Ms Taveray was excluded from the family home in October 2016.
There are no children of the relationship but Ms Taveray has a daughter who was six years old when she and Mr Wedgewood commenced cohabitation. Mr Wedgewood has two children who were 14 and 12 years old respectively when they commenced cohabitation.
Ms Taveray is 55 having been born in 1963 and Mr Wedgewood is 57 having been born in 1961.
Mr Wedgewood operates his own business. Ms Taveray is not currently employed. At the time of the trial she was an inpatient at a psychiatric clinic.
Ms Taveray worked in administration up until 2007 when she joined Mr Wedgewood’s business. In her last job before joining Mr Wedgewood’s business she was earning $150,000 per annum. When she commenced working in Mr Wedgewood’s business Ms Taveray did so under a contract of employment where her salary was set at $80,000.
Ms Taveray’s child lived in a week about arrangement with the child’s father. Mr Wedgewood’s children visited on some Wednesdays, Sundays and holidays.
At commencement of cohabitation Mr Wedgewood owned significant assets including:
a)A property at Suburb G which was sold in 2008 and Mr Wedgewood received $435,000 net sale proceeds;
b)2000 Commonwealth Bank shares sold for $100,000;
c)Cash of $110,000 held in the Wedgewood Family Trust;
d)Superannuation of approximately $152,000; and
e)His business.
At commencement of cohabitation Ms Taveray owned assets of modest value.
It is common ground that the parties maintained a ledger of expenses particularly from 2012 which they tallied at the end of each month and made adjustments. It seems this keeping of ledgers became more detailed upon the purchase of a home at F Town by Mr Wedgewood’s family trust in which the family lived until separation in 2016. Prior to 2012 Ms Taveray and Mr Wedgewood each purchased groceries and Ms Taveray generally paid Mr Wedgewood rent for living in accommodation owned by Mr Wedgewood’s family trust. Mr Wedgewood paid the same sum as Ms Taveray and the rent was used to pay the mortgage and other outgoings.
The parties have different versions for why the ledgers were kept. Ms Taveray contends that it was part of Mr Wedgewood’s controlling behaviour while Mr Wedgewood contends it was because they agreed at the outset of their relationship that they would keep their finances separate as they had each been ‘burned’ from previous relationships. Ms Taveray contended at trial that the keeping of ledgers and the financial arrangements they entered into during the relationship were a product of Mr Wedgewood’s background which ensured their arrangements were the most tax effective.
The ledgers tendered are in Ms Taveray’s handwriting.
When Ms Taveray commenced to work in Mr Wedgewood’s business she signed a contract of employment. They each have different contentions about why Ms Taveray left her highly paid job to work for Mr Wedgewood. She contends it was at Mr Wedgewood’s request to enable her to be more available for their relationship. He contends it was at her request to enable her to be more available for her child.
When Ms Taveray sold her home and bought a unit at Suburb H Mr Wedgewood arranged the finance but the property was in Ms Taveray’s sole name. Mr Wedgewood earned a commission on the finance arrangement. Ms Taveray and Mr Wedgewood spent time together at the unit. Mr Wedgewood did not pay rent during these stays. There is one document relating to the unit which bears both names but relates solely to listing the property for rent. Mr Wedgewood contends his name appears only so that there was an alternative contact for the agent.
When the Suburb H property was sold Ms Taveray used the modest net proceeds of $45,000 to purchase a car.
In 2009 the F Town land was purchased. It is common ground that Ms Taveray managed the building project to a degree. However, Mr Wedgewood contends that Ms Taveray was paid for her work and given extra benefits including extra superannuation contributions in recognition of her work on the project. Ms Taveray contends that this was a joint project undertaken by them for their future benefit. Mr Wedgewood’s family trust owned the home and Mr Wedgewood and Ms Taveray paid rent to the trust which then paid the mortgage and other outgoings. In 2010 Ms Taveray’s salary package was increased to $120,000 per annum and certain expenses such as her telephone were also paid. In 2015 Ms Taveray received a distribution from Mr Wedgewood’s trust of $58,500. Mr Wedgewood contends that the distribution to Ms Taveray was only made so as to minimise her income tax.
In 2009 and 2012 Mr Wedgewood made provision in his will for Ms Taveray. He contends that he did so in order to protect his children from a family provision claim by Ms Taveray.
At separation Mr Wedgewood changed the locks on the F Town home while Ms Taveray was in hospital. He provided $20,000 to Ms Taveray to enable her to obtain alternate accommodation. The money was used by Ms Taveray for legal fees. A further two tranches of $20,000 each were paid by Mr Wedgewood to Ms Taveray. Mr Wedgewood contends that if there is a property settlement order these sums should be deducted as payments already made by him. Ms Taveray concedes that $20,000 should be deducted.
Applicable legal principles
Section 79(1) of the Act relevantly provides that:
In property settlement proceedings, the court may make such order as it considers appropriate … altering the interests of parties to the marriage in the property.
Section 79(2) relevantly provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) prescribes matters that must be taken into account in considering what if any order is made under the section.
The High Court in Stanford v Stanford[1] reaffirmed a number of propositions to be applied when considering whether it is just and equitable to make an order. Firstly, it is necessary to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. Secondly, the discretion as to whether or not to make a property settlement order, although extraordinarily wide, must nevertheless be exercised in a principled way. Thirdly, there is no presumption that the parties’ rights to or interests in property are or should be different from those that currently exist. The consideration of whether it is just and equitable to make an order should not be considered by reference only to the matters in s 79(4). Lastly, it is necessary to give separate consideration to ss 79(2) and (4) and not ‘conflate’ the two subsections.
[1] (2012) 247 CLR 108.
Section 90MC provides that a superannuation interest is to be treated as property and this enables the Court to make an order that splits a party’s superannuation if necessary.
Application of legal principles
Is it just and equitable to make an order?
The assets of the parties were ultimately the subject of agreement and are set out in the table below (it being acknowledged that where there was no evidence that a disputed item had value I could not attribute any value to the item):
Owner Description Value Assets Wedgewood Family Trust (WFT) “J Group” - E Pty Ltd Pty Ltd atf Wedgewood Business Trust (WBT), J1, J2, J3 $1,712,937 Wedgewood Family Trust Matrimonial home - F Town street, F Town Qld … $2,151,000 Wedgewood Family Trust All sub trusts, entities and other assets of the Wedgewood Family Trust other than the items referred to in 1 and 2 above. Nil E Pty Ltd PL D Pty Ltd shareholding Nominal E Pty Ltd PL K Pty Ltd Nominal Husband Husband Personal Bank Accounts $7,409 Husband L Share Portfolio $14,347 Husband Jewellery and Watches No evidence of value Total gross assets of husband $3,885,693 Liabilities Wedgewood Family Trust (WFT) WFT Mortgage + WFT Loans to WFT Trust Entities / Beneficiaries $1,175,606 Total net assets of husband $2,710,087 Wife Company P Shares $721 Wife Jewellery and Watches No evidence of value Wife Wife’s Bank Accounts $261 Total net assets of wife $982 Total combined net assets excluding superannuation $2,711,069 Superannuation Wife M Super $220,100 Wife M Super $187,675 Wife N Super $333,541 Wife $741,316 Husband $911,257 Total superannuation $1,652,573 Total combined assets including superannuation $4,363,642
In most cases when determining whether or not it is just and equitable to make an order a court will have regard to the following passage from Stanford & Stanford:[2]
42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to a make property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order…
[2] Supra.
Mr Wedgewood emphasised the reference in the above decision to ‘express and implicit assumptions that underpinned the existing property arrangements’ in circumstances where the arrangements in this case were that the parties had conducted their financial affairs entirely separately since 2005. While I accept that to be largely the case, it needs to be considered in the unique circumstances of this case where Mr Wedgewood was concerned with the minimisation of taxation at every turn. For instance the matrimonial home was owned by his family trust. Ms Taveray was a discretionary beneficiary of the family trust. Mr Wedgewood and Ms Taveray paid rent to the trust (or rather she paid rent to him) and his family trust was then able to claim deductions for interest and outgoings. Accepting that, I find that Ms Taveray’s contributions to the rent were an indirect financial contribution to the payment of the mortgage. Although the home was owned by the trust the parties undertook its construction as a team where they were each involved to a significant extent although Mr Wedgewood retained ultimate responsibility for decisions of significance.
In a rather belated attempt to add a gloss to his claim that there should be no property settlement order, Mr Wedgewood said in oral evidence that the acquisition and building of the F Town property was a ‘business project’ conducted for the purposes of producing an increase in wealth for the family trust. I reject that contention. The fact is, this was the family home which Mr Wedgewood, Ms Taveray and their respective children shared.
To quote the other part of the paragraph from Stanford above: ‘It will be just and equitable to make a property settlement order in such a case [when they are no longer living in a marital relationship] because there is not and will not thereafter be the common use of property by the husband and wife.’ The common use of the family home ceased upon separation or shortly thereafter when Mr Wedgewood changed the locks and excluded Ms Taveray from the home.
Mr Wedgewood also made provision for Ms Taveray in two wills. That decision may well have been made to protect Mr Wedgewood’s children from a family provision claim but it also indicates an intention contrary to the one stated by Mr Wedgewood i.e. the arrangements with Ms Taveray were all of a business character.
Ms Taveray is now very unwell and unable to work. She has no property and no access to her superannuation. Her only income is spousal maintenance.
While there are factual similarities with the cases relied upon by the husband[3] there are also facts unique to this case which in my view make it just and equitable to make an order.
[3] Fielding & Nichol (2014) FLC 93-617; Chancellor & McCoy (2016) FLC 93-752.
Contributions
The overwhelming financial contributions to this marriage were made by Mr Wedgewood. His initial contributions included the business and real estate which was sold and used to purchase other property including the F Town property. The operation of the business continued and increased substantially in value. While Ms Taveray made some contributions to the business, she was paid a salary and received other benefits including superannuation and a distribution from the family trust. The property that now exists remains in large part the property introduced into the relationship by Mr Wedgewood although its form may have changed to some extent. Ms Taveray’s initial contributions were insignificant.
During the marriage (including the period of pre-marriage cohabitation) each of the parties were meticulous in paying their share of expenses. Ms Taveray maintained a ledger for that purpose. When they lived in rented property they each paid half the rent and when the F Town property was completed in 2012 they each paid $400 in rent to the family trust. I regard this as an indirect financial contribution by each of them to the payment of the mortgage. They employed a gardener and a cleaner but each of them contributed to the maintenance of the properties in which they lived. Mr Wedgewood mowed the lawn and Ms Taveray kept the home clean. They jointly employed a cleaner and an ironing lady in the latter part of their marriage.
Ms Taveray and Mr Wedgewood were each employed for the duration of the relationship. Mr Wedgewood acknowledges the contributions made by Ms Taveray particularly to the acquisition of business licence. While Mr Wedgewood contends that Ms Taveray was fully recompensed for her role in the business, the fact is she made the contributions which Mr Wedgewood acknowledged were ultimately beneficial to the ongoing success of the business and ultimately to their joint benefit.
Ms Taveray received an inheritance during the marriage but I am not persuaded that this was a contribution made by her to the joint benefit of the parties.
Ms Taveray’s daughter lived alternate weeks with the parties and Mr Wedgewood’s children spent some Wednesdays, Sundays and holidays with the family. Mr Wedgewood provided some limited assistance to Ms Taveray in parenting her daughter. Ms Taveray provided some limited assistance to Mr Wedgewood in parenting his children. Each party made contributions to the welfare of the family.
Overall I assess contributions as favouring Mr Wedgewood in the proportion eighty-five per cent to fifteen per cent. The most significant factor is his initial contribution which provided a ‘springboard’ for the growth in the property pool.
section 75(2) factors
Ms Taveray is 55 years of age and Mr Wedgewood is 57 years of age.
Mr Wedgewood is in good health and has the capacity for ongoing full time employment. Mr Wedgewood’s income is $228,956 per annum including a pension of $15,808 per annum and benefits paid on his behalf.
Ms Taveray is in very poor health. She suffers from a major depressive disorder which has been exacerbated by this litigation. She currently has no income other than the spousal maintenance of $1,500 per week being paid by Mr Wedgewood.
Shortly prior to the trial her health deteriorated significantly such that she ceased to have legal capacity and a case guardian was appointed to represent her interests. While her treating psychiatrist, Dr B, was reasonably optimistic as to Ms Taveray’s prognosis at the time of his report on 13 April 2018, he was decidedly less so in his oral evidence given the deterioration in Ms Taveray’s condition. In particular he said:
Subsequently then [to the ECT treatment being initiated] I planned to review her progress weekly, at least weekly, perhaps twice weekly visits if and when she is discharged from the hospital to determine that that treatment remains effective. I make that point because this is the beginning then to a long road to recovery. It is a very serious matter to undertake this sort of treatment at this time and it will require an ongoing relapse prevention treatment to ensure that in the first two years she is not again having to be admitted to this facility for another course of this sort of treatment. I think there is a 50/50 risk that that might be the case to be honest in weighing up the issues in her particular case.
As to her capacity to return to her workforce Dr B opined:
… I am supportive, as are some of my colleagues, if she is a good responder to the ECT treatment to continue to have that treatment once a week or once a fortnight or once a month to maintain mental wellbeing. There are many patients that will have weekly treatments numbering in the hundreds. With no medication that can be an excellent maintenance treatment and if that is the case then her other activities will be centred around her safely being transported to the hospital for those treatments – she is not allowed to drive before or after the treatment – and it will be preparation for the treatment and then recovery and that could result in a requirement to very carefully monitor her activities and what she might do in terms of voluntary work, which is always my first thought in terms of being active, and then secondly some other sort of less stressful part time work if and when she is well enough to undertake such activity, if that is indeed what we decide is a good idea. And I am being very proactive with respect to the importance, the benefits of work at her age and stage of life given her education, training, qualifications and experience I think it is essential that that be an early focus of long term planning. As opposed to this all means that she must retire prematurely on medical grounds. That is certainly not the case and certainly not something that has come up in the short time that I have known her.
Ms Taveray has no property to speak of and her superannuation cannot be accessed until she turns 58 in March 2021.
Each party has personal loans and outstanding legal fees.
The most significant s 75(2) factor is Ms Taveray’s poor health and incapacity for employment.
A ten per cent adjustment to her would mean an additional $436,642 and I consider that to be an appropriate sum.
what order is appropriate?
Overall I assess that a just and equitable outcome can be achieved if the property is divided in the proportions of seventy-five per cent to Mr Wedgewood and twenty-five per cent to Ms Taveray. To achieve this outcome, Ms Taveray will keep the property in her name, including superannuation, and Mr Wedgewood will pay Ms Taveray a cash sum.
In determining the cash sum, I note that Mr Wedgewood paid Ms Taveray three sums of $20,000. The first in November 2016, the second in December 2016 and the third on 31 March 2017.
Ms Taveray concedes that $20,000 should be deducted from any cash payment to be made to her as it was used for legal fees but she resists the balance being deducted on the grounds that it should be treated as spousal maintenance. Mr Wedgewood contends that the entire $60,000 should be deducted. Mr Wedgewood was ordered to pay spousal maintenance of $1,500 per week on 31 March 2017. Ms Taveray contends that the spousal maintenance is in arrears by $3,000 but no evidence to support that contention was produced.
As Ms Taveray had no other income from the time of her vacating the home in October 2016 (although she may have received sick leave until 2 November 2016) until the order made in March 2017 I propose to treat part of the additional $40,000 received by her as spousal maintenance at the rate of $1,500 per week for 20 weeks i.e. $30,000. The balance of $10,000 will be deducted from the cash sum ordered to be paid pursuant to the property settlement order in addition to the $20,000 conceded by Ms Taveray.
Mr Wedgewood has also met the cost of valuing his business and the F Town property. Ms Taveray should reimburse Mr Wedgewood for one half of those costs.
My proposed order will see Ms Taveray retain her bank accounts and shares (total $982) and her superannuation ($741,316) and receive a cash payment of $348,612.50. Her total property settlement will be $1,090,910.50 less the sum of $30,000 (i.e. legal fees and additional cash paid by husband after separation) and less one half the cost of valuations.
Mr Wedgewood will retain assets (including superannuation) to the value of $3,272,731.50 after making the cash payment to Ms Taveray.
I am satisfied that such an order is an appropriate one in the circumstances.
spouse maintenance
Ms Taveray has a right to maintenance if she is unable to support herself adequately by reason of one of the matters set out in s 72 of the Act and if Mr Wedgewood is reasonably able to support her.
An award of spousal maintenance involves:
a)A threshold finding under s 72;
b)Consideration of ss 74 and 75(2);
c)No fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit it; and
d)A discretion exercised in accordance with the provisions of s 74, with reasonableness in the circumstances as the guiding principle.[4]
[4]In the marriage of Bevan and Bevan (1995) FLC 92-600.
It is not in contention that Ms Taveray is currently unable to support herself adequately for at least a six to twelve month period.
The evidence from Dr B is persuasive. Ms Taveray’s condition is very serious and the prognosis, even if all goes well, will see her requiring an easing into the workforce possibly by volunteer work and then part time work. According to Dr B there is a 50/50 chance that Ms Taveray’s condition may again deteriorate.
Ms Taveray contends that I should make an order for a lump sum payment of $216,000 calculated at the current spousal maintenance rate of $1,500 per week for 144 weeks from the date of trial (i.e. until she turns 58).
There is no evidence to establish a need for a lump sum payment particularly in circumstances where the property order I propose to make will require a cash sum to be paid.
While I must take into account any proposed order for property settlement when considering an application for spousal maintenance Ms Taveray is not required to deplete her capital before being entitled to spousal maintenance.[5]
[5]Mitchell & Mitchell (1995) FLC 92-601.
Ms Taveray contends that her weekly expenses are $2,658. In the circumstances of this case it was not possible for Ms Taveray to be cross-examined about her claimed expenses but she bears the onus of establishing that the expenses claimed are reasonable. That requires evidence, particularly in circumstances where an expense appears on its face to be unreasonable. I set out in the table below certain expenses which appear on their face to be unreasonable and in the absence of evidence I propose to deduct Ms Taveray’s expenses by the total of those sums.
Item
Weekly expense
Comment
Food
$80
No explanation for a weekly sum claimed of $280 when Mr Wedgewood’s food is $200 per week. Sum claimed will be reduced by $80.
Household supplies
$66
In the absence of evidence to explain this sum, it will be deducted.
House repairs
$35
Ms Taveray does not own a home and in the absence of evidence to explain this sum, it will be deducted.
Medical dental optical (not including health insurance premiums)
$255
Although I note that Ms Taveray is currently an inpatient at a psychiatric hospital there is no evidence of any gap payments not covered by Medicare or private health insurance. I note that Ms Taveray claims health insurance premiums as an expense.
Education
$70
There is no evidence that Ms Taveray is undertaking any study so this sum will be deducted.
Chemist
$175
Although I note that Ms Taveray is currently an inpatient at a psychiatric hospital there is no evidence of any gap payments not covered by insurance.
Gardening
$10
Ms Taveray does not own a home and in the absence of evidence this sum will be deducted.
Cleaning
$15
Ms Taveray is not employed and would therefore be able to do her own cleaning. In the absence of evidence this sum will be deducted.
Repairs furnishings, appliances
$40
In the absence of evidence this sum will be deducted.
Other necessary commitments
$220
Ms Taveray did not specify what these ‘other necessary commitments’ were. Accordingly the sum claimed will be deducted.
Total
$966.00
A reduction in Ms Taveray’s expenses by that sum would result in weekly expenses of $1,692. Ms Taveray’s claim is for $1,500 per week until she is eligible to access her superannuation at age 58. Given my assessment of her reasonable expenses I consider her claim to be a reasonable one.
Mr Wedgewood’s average weekly income is $4,403 which includes a government pension and benefits from his employment. The cash component of his weekly income is $3,731. Mr Wedgewood contends that his weekly expenses are $4,307 (not including spousal maintenance). While Mr Wedgewood was cross-examined and the expenses unchallenged he still bears the onus of establishing that his claimed expenses are reasonable. I set out in the table below certain expenses which appear on their face to be unreasonable. In the absence of evidence to support the expenses claimed I propose to deduct them for the purposes of the spousal maintenance application.
Item
Weekly expense
Comment
Superannuation
$192
In circumstances where Mr Wedgewood’s employment provides superannuation contributions of $480 per week this sum appears unreasonable and in the absence of evidence it will be deducted.
Household supplies
$810
On its face this is an unusually high sum for household expenses and in the absence of evidence to justify it, I am not satisfied that it is a reasonable expense.
Entertainment/hobbies
$120
Mr Wedgewood claims as an expense $220 per week for entertainment. His obligation to support his wife takes precedence of his entertainment expenses and accordingly I propose to reduce the sum claimed to $120.
Holidays
$100
Mr Wedgewood’s obligation to support his wife takes precedence of his holiday expenses and accordingly I propose to deduct the sum claimed
Total
$1,222.00
A reduction in Mr Wedgewood’s claimed expenses by $1,222 would reduce his expenses to $3,085 leaving an excess of income over expenses of $1,318 per week. As no cash sum has been identified from which Mr Wedgewood will be able to pay the cash sum proposed by the property order I consider it appropriate to take into account the possible need to borrow at least part of that sum. Accordingly I assess Mr Wedgewood’s capacity to pay spousal maintenance to be $1,200 per week until Ms Taveray’s 58th birthday in 2021.
conclusion
I have found that although Ms Taveray and Mr Wedgewood kept their finances separate, the common use of property including the former matrimonial home ceased upon their separation. The assumptions made by each of them as to the use of their property also came to an end on separation. Indeed, Mr Wedgewood changed the locks on the former matrimonial home, thereby excluding Ms Taveray. Any assumption that any adjustment to those interests could be effected consensually ‘as needed or desired’ was also brought to an end. Ms Taveray now has no property and cannot access her superannuation until she turns 58. She has no income and no current capacity to work. In such circumstances it is just and equitable to make a property settlement order.
I propose to divide the property pool, including superannuation, in the proportion seventy-five per cent to Mr Wedgewood and twenty-five per cent to Ms Taveray having regard to the contributions made by each party during the relationship but in particular Mr Wedgewood’s significant initial contribution which enabled the growth in the property pool. Ms Taveray’s poor health and incapacity for employment is a significant factor resulting in an adjustment in her favour pursuant to s 75(2).
As Ms Taveray has cash and shares to the value of $982, and superannuation valued at $741,316 Mr Wedgewood will be required to pay a cash sum to Ms Taveray of $348,612.50 less $30,000 (already paid by Mr Wedgewood) and less one half the costs of valuations.
Ms Taveray is unable to support herself adequately at this time. I find that Mr Wedgewood has the capacity to contribute towards Ms Taveray’s support in the sum of $1,200 per week payable until Ms Taveray turns 58 and has access to her superannuation.
other matters
Ms Taveray included in her application an order for an injunction against Mr Wedgewood to restrain him from approaching her. In the absence of evidence to support the application I propose to dismiss it.
Mr Wedgewood also seeks an order for a Mercedes motor vehicle currently in Ms Taveray’s possession to be returned to him. It is property of the business and it is appropriate in the circumstances for such an order to be made. No submissions were made to the contrary. Ms Taveray will have a cash sum from which to purchase a motor vehicle should it be required.
Mr Wedgewood did not press his application for a return of the engagement ring belonging to Ms Wedgewood Snr.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 July 2018.
Associate:
Date:
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Remedies
0