Tulloch and Mountford
[2011] FMCAfam 697
•21 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TULLOCH & MOUNTFORD | [2011] FMCAfam 697 |
| FAMILY LAW – Property – limited pool – argument as to possible wastage – argument as to non-disclosure – determination of entitlements pursuant to the four step procedure – specific consideration of just and equitable distribution as between the parties. |
| Family Law Act 1975 (Cth) |
| Pastrikos and Pastrikos (1980) FLC 91-987 Whitely and Whitely (1996) FLC 92-684 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626 Russell and Russell (1999) FLC 92-877 |
| Applicant: | MS TULLOCH |
| Respondent: | MR MOUNTFORD |
| File Number: | TVC 1055 of 2007 |
| Judgment of: | Coker FM |
| Hearing date: | 5 May 2011 |
| Date of Last Submission: | 5 May 2011 |
| Delivered at: | Townsville |
| Delivered on: | 21 July 2011 |
REPRESENTATION
| Applicant: | Self-represented |
| Solicitors for the Respondent: | Groves & Clark |
ORDERS
That the wife assign all her right, title and interest in the partnership assets of “[B]” to the husband and that the wife attend to the execution and return of all documentation necessary to effect such assignment forthwith upon receipt of such documentation from the husband.
That the husband assume the partnership debts to the Taxation Department as well as personal taxation liability, miscellaneous debts and bankcard debts in his name, his partnership name or the joint names of the parties as at the date of this Order.
That each party otherwise retain all property in their possession or control including chattels, white goods, motor vehicles, bank accounts, insurances and superannuation entitlements as and for their own property absolutely.
That each party otherwise indemnify the other in relation to any liability relating to them either as a result of these Orders or in relation to any other debt held in their name.
That any child support liability owed by either party be discharged as and from the date of this Order.
IT IS NOTED that publication of this judgment under the pseudonym Tulloch & Mountford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 1055 of 2007
| MS TULLOCH |
Applicant
And
| MR MOUNTFORD |
Respondent
REASONS FOR JUDGMENT
This application has had a very lengthy history. It was initiated by
Ms Tulloch on 21 August 2007. For convenience I shall refer to her during these reasons as “the wife”. The respondent to the application is Mr Mountford. Again, for convenience, I shall refer to him during these reasons as “the husband”. The initiating application by the wife sought orders in very simple terms. They were as follows:
1. That the assets of the business Mr Mountford and Ms Tulloch (trading as [B]) be sold so all the liabilities of the business can be paid.
2. That the assets of the marriage be distributed on a 65 per cent/35 per cent basis in favour of the wife.
3. That the husband pay the wife’s costs.
The wife was represented at the time that that application was filed, and in fact continued to be represented for some time thereafter. However, when the matter finally came to hearing, the wife was self represented. In her case outline filed on 29 April 2011, she sought to more specifically set out the terms of the orders that were required by her and they were as follows:
1. Enforce the injunction to prevent Mr Mountford from moving/selling cattle.
2. The respondent forfeits the NVD and/or Waybill book he is currently using.
3. I request access to all the [omitted] waybills and vendor declarations used by Mr Mountford to move/sell cattle.
4. Plant and equipment to be sold so that the liabilities of the business can be paid.
5. An administrator be appointed to investigate the cattle remaining in the [omitted].
6. That the assets of the marriage be distributed 65 per cent/35 per cent in favour of the wife.
7. That the husband pay the wife’s costs.
The husband’s initial response was filed on 17 November 2007. The final orders that he sought in relation to this matter were vastly different to those proposed by the wife. The orders were in these terms:
1. That the house property and contents situated at Property S, be transferred to the husband and that the husband assume the mortgage liability to the National Australia Bank.
2. That the vacant allotment of land situated at Property S, be transferred to the wife free of encumbrances.
3. That the wife assign all her right, title and interest in the partnership, Mr Mountford & Ms Tulloch, on the basis that the husband indemnify the wife in relation to the debts of the partnership including income tax liabilities, Elders debt, bankcard debts to the ANZ Bank and Westpac Bank.
4. That the wife retain all other property currently in her possession including superannuation entitlements.
5. That the husband retain all other property in his possession including superannuation entitlements.
6. Such further or other orders as the court may make.
7. That the wife pay the husband’s costs.
Again, the position taken in relation to the final orders which were sought by the husband were more specifically detailed in the submissions on behalf of the respondent which was filed on 3 May 2011. The final orders sought were in these terms:
1. That the wife assign all her right, title and interest in the partnership assets of “[B]” to the husband.
2. That the husband assume the partnership debts to the Taxation Department as well as personal taxation liability, miscellaneous debts and bankcard debts.
3. That the husband retain all superannuation entitlements and other property currently in his possession.
4. That 50 per cent of the wife’s superannuation entitlements be transferred to the husband’s superannuation fund.
5. That the wife retain all the items of property currently in her possession.
6. That the wife waive all arrears of child support claimed by her.
7. Such further or other orders as the court may make.
What is obvious from the very significant changes that have been made to the orders proposed in relation to this matter, is that the circumstances had changed radically from the commencement of proceedings, in or about the middle of 2007.
Firstly, it is noteworthy that the orders originally proposed by the parties included reference to arrangements that might necessarily be made in respect of a house property, situated at [1] Property S, as well as a vacant allotment of land also situated at Property S.
Unfortunately, over the ensuing period of time, the parties financial circumstances have deteriorated to such an extent that actions have been taken by various mortgagees and, as a result of the inability or unwillingness of the parties to contribute to the respective payments that were required in relation to the various liabilities, those properties have been sold.
As best I can understand it, the house property at [1] Property S, was sold by Elders, who had a security in relation to the parties’ partnership debts, and the proceeds of sale, after commissions, etcetera were deducted, were paid in full to Elders. Similarly, it appears that the vacant allotment of land at Property S, also was sold and the monies received from that sale, approximately $50,000, were paid to the National Australia Bank.
They appear to have been the two principal real property assets of the parties, though there is, of course, a continuing interest in the partnership assets of [B]. Again, however, there has been a significant change in the circumstances of that [business]. It appears previously to have been the case that were in excess of 100 cattle, including breeders, owned by the business or partnership entity, as well as various items of plant and equipment which were utilised primarily by the husband, in relation to his operation of a [omitted] business and general [omitted] work.
The exact nature and extent of the value of the assets, including those contained within the entity, [B], is unknown, and appears clearly to be the subject of significant dispute between the parties. Quite simply, the husband says that all of the property of the [business] including, particularly, all cattle have been sold either by him, or by the wife, exercising a power provided to her as trustee for the purposes of sale, and that there is little if anything that remains, other than plant and equipment, which the husband says has a value of approximately $28,000.
From the perspective of the wife, she says that, quite simply, the figures that are sought to be relied upon by the husband do not match other documentary indications as to the cattle, and from her perspective, it is suggested that the husband has acted in an inappropriate way, such that there is a justifiable suspicion held that cattle have been secreted away by the husband, including perhaps arrangements having been made for the cattle to be transferred into the name of the husband’s brother, or simply held by the husband’s brother, pending the termination of these proceedings.
Additionally from the wife’s perspective, it is suggested that the value of the plant and equipment, suggested by the husband to be $28,000, is in fact a significant understatement as to the value of that plant and equipment, and that there should be a step taken in that regard, the sale of the plant and equipment so that the proceeds can be utilised with respect to the payment out of the liabilities of the business, if they can be exactly calculated.
Finally, and again significant in relation to this matter, is the superannuation entitlements of the parties. The husband indicated in evidence, but also it was contained in documentation provided to the court, that he held superannuation entitlements through a self-managed fund, prior to what is now known as the Global Financial Crisis, valued at approximately $30,000 but that the value of his superannuation now was perhaps closer to a total value of $5600. The husband says that this is reflected in the value of a share portfolio, which is the only asset of the self-managed superannuation fund.
The wife, in material filed by her at the commencement of the proceedings, indicates that she holds interests in superannuation entitlements with [2] Super, with a value of approximately $14,500, a second [2] Super superannuation policy with a value of approximately $59,000; and a third policy with [1] Super having a value of $5600. The total value that the wife attributes to superannuation, again, as best can be assessed in August of 2007, is $79,460.
I have had the opportunity of considering the various documents that have been made available in relation to this matter, and again, as best I can assess from information available to me in respect of this matter, the wife has disclosed a superannuation entitlement with [1] Super with a value, as at 30 June 2009, of $5380. There appears to be no information that I am able to access with regard to the value of the other superannuation entitlements in the wife’s name, but one can only assume that being [2] Super policies, they have that protection which is attributable to a government policy, such that they had not declined in value, though one would assume that there has been little increase in the value available to the parties, in that regard.
Accordingly, there has been little change, it would seem, in relation to the wife’s superannuation entitlements, though, as I indicated, the husband in his financial statement of 1 November 2007 indicated a self managed fund through the [B] superannuation fund of $37,000 but that it is current value, as best it can be assessed, is now only in the vicinity of $5600.
What is clear from all that I have detailed here is that there has been an enormous reduction in the assets of the parties, however that may have come about, from what was the position when the separation occurred in July of 2004 and even from when proceedings were commenced in August of 2007.
What that has meant is that there has been an enormous degree of distrust generated and what might be referred to as “blame laying” by each party upon the other, and in particular, I must say, on the part of the wife. Her stance in relation to that, is perhaps understandable in light of the fact that it was she who appears to have left the relationship after a very lengthy marriage of some 23 years or so. More particularly, there is a degree of what might be termed, I would think, “regret”, on the part of the wife, that subsequent to separation in mid 2004, the children of the relationship, [X], now aged 19 years; [Y], aged 16 years; and [Z], aged 12 years, remained primarily in the care of the husband.
Certainly, from the wife’s perspective, she says that there was joint responsibility if not, in fact, greater responsibility taken on by her in relation to the care of the children, but it is also clear that the wife, seeking to improve her circumstances, made arrangements to commence studies to become a [occupation omitted] and that, therefore, since about 2006 or 2007, she has been, to a significant degree, living in Townsville rather than [omitted] and that, accordingly, the children, continuing to attend school following separation, remained within the home occupied the husband. In any event, that is not a matter, in the whole of the circumstances of this case which will take great significance in relation to any determination.
Before turning to the best assessment that one can make in relation to this matter as to the resolution of property as between the parties, it is necessary for me to comment upon the evidence which is relied upon by each of the parties and, unfortunately, it is relevant also for me to comment upon the determinations I have made in relation to each of the parties.
The wife gave evidence in relation to this matter and it was contained within the number of affidavits that were filed by her as well as, of course, falling by way of oral evidence in respect of cross-examination, which was directed toward her. The case was made difficult by the fact, and I do not mean to be disparaging of the wife in any particular respect, that there appeared almost to be, what I might call, a scattergun approach in relation to the evidence sought to be relied upon by the wife. She appeared to me to grasp on to what she says were clear discrepancies between statements made by the husband in documents, for example, those that were provided to banks or other lending institutions, when funding was being sought by the husband or on the part of the [B], as opposed to other statements that were made by the husband, for example, in respect of the number of cattle that might have been owned by the [B].
The wife says that she had independent knowledge of the profitability of the business and by inference suggests that there was considerably greater numbers of head of cattle owned by the [B] and additionally says that there is no information provided whatsoever as to increases in the size of the herd stemming from the breeders within the herd giving birth to further cattle. Reference was made to earlier statements, which included increases in the size of the herd as a result of the birth of additional cattle, but it was noted by the wife that, for example, there was no subsequent indications after separation of any increases in the size of the herd. It was a matter that troubled her and, I think, also significantly influenced the lack of trust that she had in the husband, particularly in respect of any information provided by him as to the value of the assets of the parties.
That degree of distrust, however, led to significant difficulties in relation to the determination of this matter from my perspective. Quite simply, the wife relies upon the discrepancies in what she says are the figures reflected in one document and the figures reflected in statements or correspondence provided by the husband and, therefore, suggests that in all instances, it is essential that the court accept whatever might be the greater numbers contained within documentation. However, there is absolutely no independent evidence available in relation to the stock, the value of stock if they were able to be categorised, and information, generally, as to other assets of the parties.
I have no doubt that the wife has experienced an enormous degree of frustration in relation to these proceedings, and, whilst there may be very legitimate and genuine bases upon which the wife has this distrust of the husband, it is not a basis upon which a court can properly make findings as to what might or might not be the assets of the parties.
The husband has been less than full and frank in evidence provided in relation to these proceedings, and that, also, of course, has led to difficulties in relation to the determination of this matter. Quite simply, the husband’s accounting or record keeping practices had fallen so far short of what could properly be expected of any business proprietor or operator that there must be legitimate concerns expressed, in relation to the figures that are sought to be relied upon.
Just as clearly, however, the lack of appropriate business practice is not a basis upon which there can or should be an assessment, without any evidentiary base, of what might be the assets of the parties or their business entity, including, particularly, a guess, and that is all that it would be, as to what might or might not be cattle that remain either in the power or control of the husband, or held by some other person or entity on his behalf.
The fact is, that the distrust in relation to this matter as between the parties, has led to the current situation, the total decline in the financial circumstances of the parties. As I indicated earlier in these reasons, the parties at separation and, in fact, up to the commencement of proceedings, owned real property which included both a vacant allotment as well as property upon which there was a home that had previously been occupied by the parties and the children.
Both have now gone as a result of the inability or unwillingness of the parties to make the necessary payments to lending institutions and they having obtained, therefore, judgments against the parties and enforced those judgments against the real property, which was the security for any borrowings. The husband had suggested early on that the properties should be utilised, firstly, upon sale to pay out the debt, and the vacant allotment should, if able to be arranged, be transferred to the wife free of encumbrance, so as to provide her with some assets now and into the future.
Those properties have gone and appear, having been sales by mortgagees in possession, to have been sold for sums considerably less than what either of the parties estimated or suggested was their appropriate market value. That is a dreadful consequence for both parties, and the lack of trust, particularly by the wife toward the husband, in relation to the appropriateness of such a situation, has meant that in the end, virtually the entirety of the assets of the parties, both real and personal, have been dissipated.
The husband has been a poor businessman, but I do not on the evidence before me, find that he has been one who has either deliberately or because of lack of skill or application wasted or dissipated the assets of the parties, nor is it possible or appropriate for me to find that he has not endeavoured, as best he could, to provide continued funds so as to maintain the assets of the parties.
The tragedy here, is that with the economic circumstances that the parties found themselves in, as well as their own emotional turmoil as a result of the breakdown in the relationship and the distrust that each felt towards the other, there has been a very significant, if not in the end, almost catastrophic reduction in the assets of the parties, such that there is little, if anything, for distribution as between the parties.
The wife in her outline, seeks the appointment of an administrator to investigate the cattle remaining as an asset of the parties, as well as production of documentation, which is suggested might in some way disclose the secretive actions of the husband in relation to transfer of cattle or actions which might be seen as seeking to hide the cattle away from the wife and from the purview of this court.
However, that is a forensic exercise which should clearly have occurred prior to the hearing of the proceedings and in any event, in my assessment, would have been an exercise in futility in light of the poor quality of the records that were kept and the difficulties associated with the decline in the asset base of the parties.
I was troubled by the evidence of both of the parties in relation to this particular matter.
Firstly, from the perspective of the wife, because I gained the distinct impression that her anger towards the husband and her lack of trust in the husband, had seriously affected her capacity to rationally look at the best means by which the parties could resolve the difficulties between themselves. To refuse, I think without real consideration, to look at other steps that might be taken in respect of the sale of certain assets some years ago, so as to at least ensure that other assets of an unencumbered nature were able to be retained has been just as great a contributor therefore to the reduction of the assets of the parties as has been any failure on the part of the husband to keep accurate records or to, in any way, operate a properly managed and administered business.
I was also, of course, troubled by the husband’s behaviours in that regard, but I must say that I generally gained the impression, that whilst he was, in very many ways, what could only properly be described as an unsophisticated man, he was not one that had acted in an unscrupulous way, seeking to dissipate or hide the assets of the parties, for his own personal benefit.
The tragedy here is that the personal difficulties and persuasions of each of the parties has led to the very serious situation that both now find themselves in.
As I hope I have indicated, there are enormous difficulties confronting the court in relation to attempting to assess what might therefore be an appropriate basis for the distribution of the assets that remain, if any, as between the parties. In that regard, however, I must, of course, as best I can, be mindful of the legal requirements in relation to this matter and I turn therefore to the law to be applied.
As I said, there are two issues to be considered in relation to this matter. I need, obviously, to look at the law in respect of financial determinations between husband and wife and, in that regard, the relevant law is as follows. Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 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) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(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; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos (1980) FLC 91-987; In the Marriage ofLee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage ofClauson (1995) FLC92-595 and In the Marriage of Whitely and Whitely (1996) 92-684). The process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable (see section 79(2)). It is the justice and equity of the actual orders that the court must consider (Russell v Russell (1999) FLC 92-877).
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro the Full Court said:
A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in s79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paras (a) to (c) of s79(4), and then to consider the matters in paras (d) to (g), more especially para (e) which takes up by reference the provisions of s75(2) and which are generally referred to as the “section 75(2) factors”.
The first step, therefore, in relation to any attempt at determining what might be the assets of the parties for distribution is to first attempt to quantify those assets, as at the time of trial. It is an enormously difficult task, because there is little, if any real evidence available, in relation to this matter.
The husband suggests that the wife has superannuation which he indicated was valued at $102,143 as at 30 June 2009. The wife’s own indications, in that respect, were that as at, it would appear, 30 June 2007 her superannuation entitlements were in the vicinity of $79,460. It is not exactly clear where the husband’s figure of $102,143 was obtained, but such a specific number would indicate that there was at least some available statements in respect of the value of the wife’s superannuation, as at 30 June 2009.
I am not in a position where I can make any assessment in that regard, other than to accept that there must be superannuation held by the wife, there being no evidence of hardship provisions being utilised to obtain funds payable to the wife such that, for the purposes of this assessment, I include a value of the wife’s superannuation at $80,000. The only evidence then available, in relation to the husband’s superannuation, is that which was provided at trial, and whilst it is evidence of the most rudimentary nature, it is the only evidence available and, again, for the purposes of calculation, I would accept that the value of the husband’s superannuation is approximately $5600.
Otherwise, there appears to be some acknowledgment that there is a caravan in the possession of the wife, though, without any evidence as to its value, it would appear only to be of a notional character, having been purchased by the wife for a sum of approximately $12,000 following separation and, no doubt, would have significantly reduced in value, simply as a result of the passing of years, and no doubt the release of more modern and fashionable caravans. The wife’s own financial statement indicates that she has in her possession, a 1993 Ford Falcon motor vehicle, but again it would have, one would think, only limited value, being nearly a 20 year old motor vehicle, and I am satisfied that it would appropriately be notionally valued, in relation to these proceedings.
There appears to be little, if any, information as to the additional assets of the husband, though his financial statement clearly indicates that there is no personally owned vehicle, though reference is included to motor vehicles and plant and equipment held by [B] and therefore, no doubt available for use by him. There is a value to be attributed, as best one can, to the [B], and I do not therefore intend to include any other figures in relation to motor vehicles or other assets available to the husband.
The husband, for his part, suggests that the value of plant and equipment for the business, [B], is a sum of $28,000. Again, as best I have been able to assess in relation to this matter, plant and equipment was valued, as at 30 June 2010, at approximately $36,000, though unfortunately the situation with regard to the assets also noted that there was a total equity of, in fact, minus $74,870, though that reflected in part the significant debt to Elders Mortgage which has, to a large extent, been paid as a result of moneys received by them from the sale of the former matrimonial home, at [1] Property S.
It is noted also, that whilst the debt to Elders was not paid in its entirety, the indications given are that Elders do not intend to pursue the parties in relation to any further debt, and therefore, as best one can assess, the appropriate figure to use in relation to the value of plant and equipment, which appears wholly to be able to be utilised by the husband, is a sum of $36,311.35.
The total of the assets, as best one can attempt in the circumstances, therefore to calculate, is $121,911.85.
Again, there is information provided as to what the liabilities of the parties might be, and in that regard, there remains various liabilities to accountants, as well as stock and station agents and suppliers, Bankcard and other liabilities, as well as taxation liabilities, which would appear to approach somewhere in the vicinity of $60,000.
The best one can assess in relation to the proceedings, therefore, is that the net assets of the parties, when liabilities are deducted from assets, can be fixed at $61,911.85.
The issue of contribution is, in some respects, quite simple to calculate, but in other respects, takes on a far more difficult form, because of the actions of both parties in relation to this matter. No doubt, during the relationship, each worked as best they could and provided both financially and non financially to the acquisition and improvement of the assets of the parties.
The wife details, in her material, the fact that she had a number of positions, as well as providing significantly as a wife and a home maker to the family unit. It would appear that there was, at least to some significant degree, what might be called a more traditional family unit where, whilst the wife worked, she also took on the majority of the responsibilities within the household for provision of the non financial contributions necessary to the operation of the home. She details, in her earlier material, the fact that she contributed within the home by way of home maker and parent, as well as, she says, working outside the home in many respects, with regard to the maintenance and beautification of the property.
The husband was employed in various capacities, all of which appear to be related to his skills and abilities on the land, and it would seem that, as best one can assess, both have contributed in an appropriate and proper way and it would be inappropriate to suggest that there had been any greater contribution by one parent or the other, during the relationship.
Subsequent to separation, there were significant arguments as between the parties as to what might or might not have been the value and quality of their contribution, with there being dispute, for example, as to who took on the primary role in relation to the care and supervision of the children, as well as who might have had the principal responsibilities for the declining values of the assets of the parties.
Again, I have commented upon such issues in relation to the matter, and whilst there may never be able to be resolved any final determination with regard to who might or might not have contributed more to the support of the three children of the marriage, I am satisfied that each, as best they could, and in different ways, contributed equally, subsequent to separation, to the provision of the needs of the children, and also, unfortunately, as a result of their actions, again commented upon previously by me, have been, to a significant degree, responsible for the deterioration in the value of the assets.
In the end, I am of the mind that the only appropriate course in relation to this matter is to find that the contributions of the parties both during the relationship and subsequent to separation have been of an equal nature.
I am required, obviously, to consider those matters that are set out pursuant to the provisions of section 75(2) and it appears that there would be two matters of particular significance in relation to these proceedings. The first is, the responsibility that each has with regard to the nurture and continued support of the children of the relationship and certainly at this time, it would appear that the older of the three children, though over the age of 18 years, still remains significantly dependent upon the wife – it being the case that he is now attending university in Townsville – but that the two younger children continue to reside primarily with the husband and that he, therefore, takes on that more significant role, in relation to the care and supervision of those children.
No doubt, each at different times, contribute in different ways to the support and nurture of all three children and again, it would be in my assessment, almost impossible, but also more particularly, unreasonable, to seek to attribute to one parent or the other a greater role or responsibility in relation to the general provision and support for the children of the relationship.
The other significant factor to be looked at in relation to this matter, of course, relates to the health and wellbeing of each of the parties and their capacity for future employment, and therefore provision for themselves now and into the future.
The wife certainly, over the last years since separation, has quite properly set out to re-establish a basis upon which she could provide for herself and in that regard, has sought to obtain further educational qualifications, such that she is either now registered as a [occupation omitted] or will be able to seek registration in the not too distant future. Of course, that does not necessarily guarantee employment or income, and in the current stretched and strained economic circumstances of the whole country, it may be that she will not be able to obtain either employment at all, or employment as remunerative as she may wish. She does, however, have skills that are available in relation to providing for herself now and into the future.
Similarly, the husband also has skills attained over many years of work on and around farms and on the land, though, as he gave evidence in these proceedings, he does not necessarily hold any specific tickets or certificates which would show the qualifications and skills that he has. He has indicated, however, that he has the capacity, notwithstanding certain physical frailties, though there were not able to be evidenced by way of medical records or other evidence, which would indicate that he is able to continue to obtain employment in various fields, and certainly would be, if able to retain the assets contained within the plant and equipment remaining as held by [B], able to obtain work as a [omitted] and therefore, at least provide in part for himself now and into the future.
Both have expectations and hopes for the future, but both also have limitations and qualifications which might prevent them being able to fully provide for themselves in the future. In the end, however, both, to a significant degree, appear to weigh equally in favour of one or the other, and I am not at all of the mind to consider that any adjustment that might be able to be made, pursuant to the provisions of section 75(2) of the Family Law Act, is appropriate in this instance.
Accordingly, I am of the view that what limited assets remain, and they are only of limited compass, should be divided as best one can assess as between the parties, on an equal or approximately equal basis, subject, of course, to there being consideration of what assets might immediately be available and what assets might be more in the realm of a future availability, including, of course, significantly any superannuation entitlements, held predominantly by the wife.
If an equal distribution were to be effected in relation to this matter, it would therefore mean that each party would receive property, including superannuation entitlements, to the value of $30,955.92, and that could properly be effected by way of the husband retaining the business, superannuation entitlements, and other assets in his possession, and with the wife retaining those assets in her possession and her superannuation entitlements.
It would mean that normally there would need to be some further adjustment effected in relation to the property of the parties, but in that regard, I am mindful of the fourth step necessarily required to be considered in relation to any determination, which is to consider the justice and equity of any distribution. In that respect, I have come to the view that whilst there may be a physical or a notional difference in the value of assets to be retained by each of the parties, in light of the fact that the husband will retain significantly greater immediately available assets, it is appropriate that there should be no other adjustment made in relation to this particular matter, and in my view, the appropriate property distribution between the parties therefore would be reflected as follows:
(1)That the wife assign all her right, title and interest in the partnership assets of “[B]” to the husband and that the wife attend to the execution and return of all documentation necessary to effect such assignment forthwith upon receipt of such documentation from the husband.
(2)That the husband assume the partnership debts to the Taxation Department as well as personal taxation liability, miscellaneous debts and bankcard debts in his name, his partnership name or the joint names of the parties as at the date of this Order.
(3)That each party otherwise retain all property in their possession or control including chattels, white goods, motor vehicles, bank accounts, insurances and superannuation entitlements as and for their own property absolutely.
(4)That each party otherwise indemnify the other in relation to any liability relating to them either as a result of these Orders or in relation to any other debt held in their name.
(5)That any child support liability owed by either party be discharged as and from the date of this Order.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 21 July 2011
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