Tearle and Tearle

[2014] FCCA 2117

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEARLE & TEARLE [2014] FCCA 2117

Catchwords:
FAMILY LAW  ̶  Distribution of property.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79

Applicant: MS TEARLE

Respondent: MR TEARLE

File Number: DGC 2605 of 2013

Judgment of: Judge Phipps

Hearing date: 3 September 2014

Date of Last Submission: 3 September 2014

Delivered at: Dandenong

Delivered on: 12 September 2014

REPRESENTATION

Counsel for the Applicant: Mr Stanley

Solicitors for the Applicant: Chris Woods & Associates

The Respondent: Appearing in person

ORDERS

1. The money held in trust for the parties by [omitted] Lawyers being the proceeds of sale of Property W, [W] Victoria be dispersed as follows:

   (a)By paying $102,200 to the husband;

   (b)By paying the balance to the wife.

2. The court declares that the wife is entitled to the exclusion of the husband to all the right title interest and possession of the property situated at Property S, [S] Victoria.

3. Otherwise each party is declared to have no interest in any property, including superannuation, in the possession of the other party.

IT IS NOTED that publication of this judgment under the pseudonym Tearle & Tearle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2605 of 2013

MS TEARLE

Applicant

And

MR TEARLE

Respondent

REASONS FOR JUDGMENT

1. The parties dispute the distribution of property after the end of their marriage.  The property is agreed:

   a)Proceeds of sale of [W] property held in trust by husband’s former solicitors.  The wife’s case outline says it is approximately $155,000.  The husband in submissions said it is approximately $158,000.  The wife has sworn to the figure of $155,000 in her affidavit.  The husband has not.  I will use the figure of $155,000;

   b)Property S, [S] Victoria $480,000 less mortgage of approximately $51,000;

   c)Net value $584,000.

2. The wife’s financial statement dated 10 September 2013 says that she has an estimated amount of $60,800 in superannuation.  The husband’s financial statement dated 3 September 2014 says that he has superannuation of $2013.18.  Neither party proposes any order in relation to superannuation.

3. The wife owned both the [W] property and the [S] property before the parties met.  She purchased them from the inheritance she received from her deceased husband with the assistance of money borrowed on mortgage.

4. The parties have separated and the basis upon which they shared their lives and finances has come to an end. Both propose orders under s.79 of the Family Law Act 1975 (Cth). It is just and equitable to make an order.

5. The wife proposes that the husband be paid $65,000 from the proceeds of sale of [W] and she retain the [S] property.  The husband proposes that the assets be divided in half by him being paid the proceeds of sale of the [W] property plus a further cash amount.

6. The parties commenced living together in 2000.  They married on [omitted] 2003 and separated on 6 November 2011.  There are no children of the marriage.  The wife has three children, [name omitted] born [omitted] 1985, [name omitted] born [omitted] 1994 and [name omitted] born [omitted] 1995.

7. The wife owned both properties at the commencement of the relationship.  The parties lived in the [S] property and at some point the oldest child commenced living in the [W] property.

8. The wife was employed throughout the relationship although for a time after she had a motorcycle accident she received payments from the Transport Accident Commission.  At the commencement of the relationship she was employed with [omitted] leaving home at 5.30am and returning at about 2.45pm although sometimes later if she worked overtime.

9. The husband had two periods of employment.  In November 2008 he worked with [omitted].  He worked there for about 12 months.  In 2009 and 2010 he worked for nine months with [omitted].  He obtained this employment after he had undertaken training and passed the test to obtain a [omitted] licence.  The wife paid for the training and the licence.

10. In June 2011 the husband obtained employment with [omitted].  He was involved in a fatal accident in July 2011 when his truck struck a cyclist who died.  He says he has been diagnosed with post-traumatic stress disorder and has not worked since.  He produced no medical evidence to this effect.  He acknowledged in cross examination that he had made a claim as a result of the accident but it was rejected.  His income is Social Security benefits.

11. The husband claims that he and the wife agreed that he would be the house husband.  He says that when the relationship commenced he was paying child support payments for the four children of his previous marriage and that the wife said that if he did not work he would not have to make the payments.

12. The husband says that from 2000 to 2005 he was the homemaker.  He said he would prepare breakfast, make the children’s lunches, have the uniforms ready for school, walk them to school, make sure their homework was completed and attended school meetings with teachers.  The wife disputes that the husband provided the amount of care he did.  She says she did the washing and ironing, prepared the children’s lunches and put their school clothes out.  She acknowledges that the husband walked the children to school and then on some occasions prepared lunches and did other tasks.  She says that the children got their own breakfast, cereal and milk.

13. The husband in his second affidavit of 2 September 2014 describes work he said he did in both properties.  He says that he installed floorboards in the [S] property; two water tanks were purchased and delivered to [S] which he says he physically put in place around the house and fixed them to the downpipes.  He says that the front lawn was completely pulled up and a cherry tree was removed from the rear of the premises and put in the front, and the whole front lawn was landscaped into garden beds.

14. He says that the [W] property needed a whole new makeover.  He says he did a complete renovation of the [W] property.  He says he cut the lawns, installed a new shed, completely stripped the inside of the two-bedroom house, removed the bath tub and installed a shower, retiled the bathroom, sanded the lounge and kitchen area, removed the wall from the kitchen into the lounge room and made it into an open living area.  He said they purchased a new wood fire and he removed the old wood fire so the new one could be installed by a plumber.  He says that both parties painted inside the two-bedroom [W] property.

15. The oral evidence of both parties shows that what was done was this.  The husband installed floorboards over the existing floor in [S] but they were not punched, filled and sanded and some boards against walls were not complete.  At [S] an ornamental cherry tree was moved from the rear of the house to the front garden, taking at most half a day and the husband planted flower seeds around it.  The wife says that because there was a drought and water restrictions the lawn was dead and it was not replaced.  Garden beds had been installed by her and her deceased husband’s father prior to the relationship commencing with the husband.  The water tanks were purchased by the wife’s eldest daughter as a Mother’s Day present and the husband helped place them under downpipes from the house which he cut so that the water ran into the top of the tanks.  The husband, using chicken wire, erected some makeshift or make do fences around the back door of the house and around garden beds to keep chickens away.

16. At [W] lining boards had been removed leaving adhesive on the walls which the husband removed.  In the bathroom a shower and toilet was installed by a plumber and the husband did the tiling.  The wife says that the plumber who installed the new wood heater removed the old one and her description has a ring of probability and I accept what she says.  The shed was a small metal shed purchased by the wife’s elder daughter who was living at [W] at the time and was erected by the husband.

17. When working for the furniture movers the husband was able to obtain items of furniture which customers no longer wanted and so it was used to furnish both the [S] and [W] property.  He made no payment for the furniture.

18. In his affidavit the husband overstated the extent of the work he did on both properties.  This makes it probable that he also overstated the extent of his care for the children.  I prefer the wife’s evidence and so I find that the husband did help with the children but to a much lesser extent than he says.  I accept what the wife says about her doing the washing and ironing, shopping preparing lunches and laying out uniforms.  The husband acknowledges that the wife was responsible for the payment of all bills.  I find that the wife was the principal manager of the household and that the husband helped but not to a great extent.

19. In June 2011 the wife had a motorcycle accident.  The husband says that while she was off work he had to take her to appointments as she could not walk or drive.  The wife says this was only one appointment and after that the Transport Accident Commission paid for taxis for her to attend appointments.  Again, the husband is exaggerating his involvement and I accept what the wife says.

20. The husband acknowledges that he deliberately caused some damage to the house about the time of separation.  The extent of the damage is disputed but what is clear is that at about that time the wife spent some thousand dollars in repairs.

21. In assessing contribution s.79(4) requires I take into account:

    a)The financial contribution made directly or indirectly by or on behalf of the parties to the marriage, to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them;

    b)The contribution (other than a financial contribution) made directly or indirectly by on behalf of the party to the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage;

    c)The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;

    d)The effect of any proposed order upon the earning capacity of either party to the marriage.

22. The overwhelming financial contribution was made by the wife.  She owned both properties at the commencement of the relationship and contributed most of the income during the 11 years of the relationship.  The mortgage over the properties was reduced but the major part of payments for the mortgage came from the wife.  The husband acknowledged that the wife managed the parties’ finances and managed payment of the mortgage, rates, taxes, utilities, and other expenses.

23. The husband made some non-financial contribution by the work he performed on both properties but the time involved was a small proportion of the 11 year relationship.  There is no evidence that the work improved the value of the properties but the inference is that it did although not to a large extent.

24. The husband made a contribution to the welfare of the family and as a homemaker. The wife’s three children are not children of the marriage and so his contribution to their welfare is not a contribution to be taken into account under s.79, but it still remains a contribution to the welfare of the marriage between him and the wife. I am satisfied that much of the normal homemaker duties were carried out by the wife. She did the washing and ironing and the grocery shopping. As I have already said, I am satisfied that the husband has overstated the extent to which he cared for the children. I am satisfied that the wife was principally responsible for the management of the household.

25. Any order I make will not affect the earning capacity of either party.

26. The property pool is $584,000.  It consists of property and the proceeds of sale of property all of which was owned by the wife at the commencement of the relationship.  The relationship was for 11 years during which the husband was in paid employment for 21 months.  He made a small amount of income through [omitted].  The wife was employed or receiving Transport Accident Commission payments throughout.  The husband made some non-financial contribution to the maintenance or improvement of this property which I infer did increase the value but not to any great extent.  The husband made a contribution to the welfare of the family which I have described.  The assessment of the husband’s contribution is 12.5%.

27. Next I must consider whether any adjustment should be made for the matters set out in s.75(2). The relevant ones in this case are the age and state of health of each of the parties, the income property and financial resources of each of the parties, the commitments of each party to enable a party to support himself or herself, whether either party has a responsibility to support any other person, the duration of the marriage and the extent to which it has affected the earning capacity of a party. Neither party is cohabiting.

28. The wife is working as a [omitted].  She has a serious injury claim arising out of her motor vehicle accident.  There is no evidence of her prospects of success or what any quantum of damages might be.

29. The husband is not working.  He says his only qualification is to work as a [omitted] and because of his age and history and his state of health is unlikely to obtain work.  He says he has had only a few short jobs since the accident in 2011.

30. The wife was born on [omitted] 1965 and so is nearly 49. The husband’s age is not in the material but he appears to be of a similar age to the wife.

31. The wife has the house in [S] to live in.  The husband is living in a caravan in [W], his income being a social services payment of $225 a week.  The wife’s financial statement of 10 September 2013 gives her salary as $779 per week.  The wife has approximately $60,000 superannuation and the husband about $2,000 in superannuation.

32. All of the wife’s children are over 18 although the youngest is only 19.  I have no evidence about the financial position of this youngest child but it is reasonable to infer that the wife may have some obligation to assist her if she is unable to otherwise support herself adequately.

33. The husband says he suffers from post-traumatic stress disorder but there is no medical evidence that this is so, and so no medical evidence of his ability to work.  He says he has had some short jobs since the fatal car accident and his history shows that he is capable of obtaining employment.  He says that he [omitted] at the home charging $900.  The wife has employment and was sufficiently injured in her motor vehicle accident that for a time she could not walk.

34. I am satisfied that the husband has the ability to obtain employment equivalent to the wife’s ability to work.  The wife is in a better position financially because she has the house to live in and she is able to pay the mortgage.  She has more superannuation than the husband.  These matters, taken into consideration with the other relevant matters mean that there should be a further adjustment in favour of the husband of 5%.

35. The payment to the husband is 17.5% of $584,000, which is $102,200.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  12 September 2014