v & v
[2000] FMCAfam 59
•7 November 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| V & V | [2000] FMCA fam 59 |
| PROPERTY SETTLEMENT – Just and equitable |
| Applicant: | P E V |
| First Respondent: | R L V |
| Second Respondent: | P E V (JUNIOR) |
| File No: | ZB3200 of 2000 |
| Delivered on: | 7 November 2000 |
| Delivered at: | Brisbane |
| Hearing Date: | 31 October 2000 |
| Judgment of: | Baumann FM |
REPRESENTATION
| The Applicant in person |
| Counsel for the First Respondent: | Mrs Robinson |
| The Second Respondent in person |
ORDERS
The husband and wife shall retain an equal share, as tenants in common, in the following assets:
(a)The loan of $5,000 owed to them by their son P E V;
(b)The former family home in Chile.
The joint tenancy by which the parties hold the former matrimonial home situated at 32 W Street, I more particularly described as Lot 192 on RP 85060, County of S, Parish of O (“the home”) is severed.
The parties shall use their best endeavours and execute promptly all documents and contracts necessary to sell the home as follows:
(a)That the home be listed for sale by private treaty with 2 local real estate agents, one selected by the husband and one selected by the wife, within 14 days;
(b)The list sale price is to be agreed between the parties (and shall be the approved market value), and failing agreement, the price shall be determined by the real estate agents selected under paragraph 3.1;
(c)If the said agents cannot agree on the list price, then the price shall be determined by a valuer appointed by the President of the Queensland Law Society who shall determine the market value. The costs of any valuation shall be borne equally by the parties;
(d)The husband, whilst he remains in possession of the home shall:
(i)Make the property available for inspection at all reasonable times upon reasonable notice;
(ii)Maintain the appearance of the yard, interior and exterior of the home in a neat and presentable condition at his cost;
(iii)Be responsible for all rates, local authority, insurance and charges.
In the event the home is not sold by private treaty within 3 months from the date of this order, the parties shall take all reasonable steps to sell the home by public auction with the selected agents acting as conjoint agents for that purpose and the reserve price being the agreed list price or determined list price under paragraph 3.2 or 3.3:
(a)The parties shall contribute equally to any sums reasonably requested for advertising expenses and if one of the parties advances all the expenses, that party shall be reimbursed from the proceeds of sale;
(b)The parties shall attend at the auction sale and in the effect that an offer below the reserve price set is received, and one of the parties is not prepared to accept that offer, then the highest bidder over $65,000.00 shall be accepted.
The proceeds of sale shall be distributed as follows:
(a)In payment of Agent’s commission;
(b)Payment or reimbursement of advertising expenses;
(c)Payment of legal costs of sale;
(d)Payment of $14,000.00 to the wife;
(e)Payment of the balance equally between the husband and the wife.
Each party shall retain as their exclusive property (except for the home) any property in their possession at the date of this order and not otherwise dealt with by this order.
The husband’s application against his son P E V contained in The Third Party Notice filed 20 December 1999 is dismissed.
Certificate of Title Volume 6782 Folio 213 shall be retained by the Registrar of the Federal Magistrates Court of Australia until sale.
All other applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 3200 of 2000
| P E V |
Applicant
And
| R L V |
First Respondent
| P E V |
Second Respondent
REASONS FOR JUDGMENT
Introduction
R L V (“the wife”) filed an application against P E V (“the husband”) seeking property orders. Apart from a response and financial statement filed on 14 December 1999, the husband had filed no further material in support of his case before trial. Both parties were born in Chile.
The husband did file a Third Party Notice on 20 December 1999, against the parties son P E V JNR (“P”), seeking a declaration that the husband was entitled “to the title to the real property situated at 34 W Street, I”. P contested those proceedings.
History of the proceedings
The husband and P have not engaged legal representation in these proceedings – the husband saying that he was refused legal aid and could not afford representation. He has enlisted the assistance of Community Legal Centres in the past. His lack of representation, coupled with his claimed difficulty with the English language accounts in part for his failure:
a)To provide exchange of documents as directed by Deputy Registrar O’Reilly on 25 January 2000;
b)To comply with the trial directions made by Deputy Registrar McGrath on 14 September 2000.
Deputy Registrar McGrath ordered a transfer of the application to this Court, pursuant to s33B of Family Law Act, on 14 September. The matter was listed for trial on 30 October 2000 and commenced on
31 October 2000.
Documents relied upon by the parties
The wife gave evidence and was cross-examined and relied upon the following documents:
·Application filed 22 September 1999;
·Affidavit of C A R filed 20 January 2000;
·Affidavit of wife filed 18 October 2000;
·Financial Statement filed 18 October 2000.
The husband gave evidence and was cross-examined. He had the assistance of a sworn interpreter during the trial. He gave evidence that the Financial Statement filed by him on 14 December 1999 was still accurate at trial.
P gave evidence and was cross-examined. He relied upon:
·A response (to the Third Party Notice) filed 27 October 2000;
·His affidavit filed 27 October 2000.
Marriage history
The husband was born on 6 November 1945 and the wife was born on 17 October 1950. Both parties were born in Chile. The parties were married on 1 August 1968 and two children of the union were born, namely C (now 31 years old) and P (now 28 years old).
The parties moved to Australia in November 1976 and took Australian citizenship in 1986. Shortly thereafter, the husband suffered a serious work accident, causing the wife to leave her employment to care for her husband. Regrettably the husband has been unable to work since the accident and is in receipt of a disability pension.
The wife separated from the husband in March 1998, she claims as a result of mistreatment by the husband. This was strenuously denied by the husband, although I note the wife obtained a protection order in the I Magistrates Court on 20 October 1998.
The father was an involuntary patient, he says at the W centre, prompted he says by the actions of his family. He feels deeply upset by his treatment by the police who appear to have taken him to the institution and the stigma attached to him as a person allegedly suffering mental illness. It was clear that the breakdown of his marriage and the two separate involvements with the Police have traumatised him and he feels isolated. He admits he has no current relationship with any of his family. This history and his current situation explains why he finds it difficult to accept that the former family home at 32 W Street, I (where he still resides), could he sold “from under him”.
The law
The approach to the determination of an application pursuant to s79 of the Act, is well established by authority (see LEE STEER (1985) FLC 91-626; FERRARO (1993) FLC 92-335; DAUUT and RAIF (1994) FLC 92-503; PRPIC (1995) FLC 92-574; CLAUSON (1995) FLC 92-595; WHITELY (1996) FLC 684 and DOIG (1999) FLC 92-869). Section 79(2) provides that the Court shall not make an order, under the section, unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. The Court is required, in considering what order, if any, it should make, to take into account the respective contributions of the parties referred to in paragraphs (a), (b) and (c) of s79 (4); the effect of any proposed order upon the earning capacity of the parties; the matters referred to in s75(2), so far as they are relevant; any other order made under the Act affecting a party or a child, and any child support under the Child Support Assessment Act.
The authorities establish that the approach normally to be taken is a three-step process. The first step is to determine the extent and value of the property, liabilities and financial resources of the parties at the time of the trial: (see TOWNSEND (1995) FLC 92-569; BILTOFT (1995) FLC 92-614). The second step is to consider what contributions have been made by the parties within s79(4) (a), (b) and (c). The third step requires consideration of what is identified as the “other factors” being the matters in ss79(4)(d),(e),(f) and (g), including by reference to s79(4)(e) the matters in s75(2) (LEE STEERE (supra); FERRARO (supra); WALTERS and JUREK (1995) FLC 92-635.) Finally, it is necessary for the Court to be satisfied that, in all the circumstances, it is just and equitable to make an order.
In this matter the parties agreed that after consideration of all the factors, the property should be divided equally. As the husband was not legally represented, I considered whether the party’s agreement on this issue was proper. After consideration of:
a)The length of the marriage;
b)The roles played by the parties during the marriage;
c)The absence of any “financial windfalls” during the marriage;
d)The circumstances of separation;
e)The poor health of both the parties; their ages; their receipt of a pension; their relatively poor employment prospects;
f)The size of the matrimonial pool of property.
I come to a conclusion that a division of property equally was reasonable, just and equitable.
The issues then to be decided were the extent of the assets and the orders appropriate.
Issues to be determined
Because of the failure of the husband to file any substantive documents, including the “Outline of Case Document”, it was necessary before taking evidence to try and establish the issues in dispute. I was satisfied these issues were:
a)The party’s interest in the property registered in the name of P situated at 34 W Street, I;
b)If P was established to be the owner then did he owe any money to his parents and if so, how much;
c)The wife’s interest in real property in Chile;
d)The use by the husband of a term deposit of approximately $15,000.00 which was transferred from a joint account to the account of the husband after separation;
e)The orders which were then just and equitable.
Property at 34 W Street I
The husband gave oral evidence of what he says was the history of the acquisition of this property. He was somewhat vague and uncertain as to some critical elements of the history which he attributed to the theft of documents from his home during his period of hospitalisation at W. In essence he said:
a)The property was purchased by him, in his name, before his son had reached 18 years of age. The fact that P and his father share the same name did add a level of investigation to the documentation produced;
b)He borrowed $30,000.00 from the ANZ Bank; paid legal fees and stamp duty of approximately $2,000 and made a cash payment from funds which came from the sale of the D home of approximately $30,000.00. These funds were joint funds;
c)That the loan from the ANZ Bank was repaid by repayments of $1000.00 per month (greater than the required loan repayments) which was made up of rent (approximately $600.00 per month) and $400.00 which he admits P contributed. Exhibit 1 was a receipt book for rental paid by K (8 March 1991 to 23 August 1991) and K B (14 July 1991 to 27 July 1991). K Brazier is the wife of P;
d)He received a payment from P by a Bank Cheque although he cannot remember when and was uncertain of the amount – although he conceded it was more than $20,000.00;
e)That at the time of repayment of the large sum he lent K, $5000.00 to buy a red car and that the sum has not been repaid. This was admitted by the wife and P;
f)Generally, he was not informed of transactions undertaken by P, although he acknowledges P has paid the house rates and insurance.
P’s evidence was clear and helpful and was, in some cases, supported by documents. He says:
a)Whilst his father advised him of availability of the home for purchase, he was over 18 years at the time; signed the contract and was registered as the proprietor. Exhibit 2, being a bundle of correspondence to him from Nicholas Zapulla & Co supports that version of events;
b)The loan of $30,000.00 from the ANZ Bank was applied for by him, with his father as guarantor. His father kept the loan repayment/deposit book and became disappointed when he didn’t maintain payments of $1000.00 per month after he took possession of the home in 1993. This was a catalyst for re-financing the debt;
c)And acknowledges, that at the time of purchase in 1991, his parents paid the legal fees and contributed $30,000.00 to the purchase;
d)In early 1994, he refinanced the debt by borrowing $60,000.00 from the Commonwealth Bank which he used to:
i)Repay $30,000 to his parents;
ii)Repay the balance of the ANZ mortgage;
iii)Pay for some improvements on the house.
e)Owes $5000.00 for the car loan. Repayment of this loan has not been demanded. Whilst no agreement to pay interest was made at the time, he accepts that it would not have been unreasonable to pay interest although that should be offset against the legal expenses he has incurred in responding to the husband’s Third Party Notice.
The wife essentially corroborated the evidence of P.
I prefer the evidence of P where it differs from the evidence of the husband. I find that the parties have no interest in the property. I intend to deal with the acknowledged debt of $5000.00, which is matrimonial property, and which in a final submission P indicated an intention to repay as soon as possible.
Term deposit
Annexure “G” to the wife’s affidavit filed 18 October 2000, is a letter from the ANZ Bank, Sherwood dated 29 February 2000 which confirms that:
“the closing balance of the Term Deposit No 985709158 as at
20 October 1998 was $15151.24. As previously advised this account was closed and funds transferred directly to passbook 919833606”.
The husband in his evidence confirmed that passbook 919833606 was an account under his control. He says there are no funds left. He sought to assert that the funds were spent on various items of furniture (TV, video, dining suite etc) after separation, however during cross-examination he resiled from that position.
Ultimately the only post separation payments which the husband says he made was:
a)A bond for the wife, tenancy at O after separation;
b)Funds for the wife to travel to Sydney to see her sister. The husband’s estimates ranged from $1000.00 – $5000.00. The wife says he only paid for the ticket costing $265.00;
c)Dental work for the wife, which she said she paid on her credit card.
I am satisfied the husband used the majority of the funds for his own purposes. The wife, somewhat generously in my view, submitted that only $10,000.00 should be added back into the pool of assets. I propose to do so, as the husband has not adequately explained his dissipation of the funds; It also follows, in view of the relatively recent purchase of some major items of furniture still in the husband’s possession that the wife’s estimate of his furniture at $2000.00, again represents an allowance generous to the husband.
Chile property
The husband asserted that there was 3 properties in Chile and further that the wife had an interest in some property owned by her brother with a value exceeding US$500,000.00
Put simply, none of the evidence of the husband on this issue impressed me. He was vague and uncertain. He acknowledged that the former family home at A V M has a value of about A$8000.00 Whether it is saleable or not, is unclear, although the husband conceded it was not in a particularly good area. The whereabouts of the title for the property is unknown.
I am satisfied, on the evidence of the wife, that her interest in the inherited property at C STREET, B is a one quarter remainder interest which will not vest until the death of the life tenant, her father’s former housekeeper. The father died in 1991.
Nature of orders
The husband resides in the home and wishes to remain in the home. He said he made enquiries with his bank and that as a result of his age; his current state of health and his lack of employment prospects he is unable to purchase the wife’s interest in the home.
The husband made an emotional plea to me to allow him to rent the property, almost indefinitely. He says, if the house is sold, he will have lost everything – his home, his wife and his family. Regrettably, I am left with no other option if I am, as I believe I must, give the wife the financial independence which follows from the breakdown of the relationship and the dissolution of the marriage. Section 81 of the Act also requires finality to be achieved, if possible. The orders I propose to make are based on the findings above and this principle. I must at least indicate, I have some concerns whether the father will vacate the home, however the orders I have made will facilitate timely return to this Court for enforcement if that occurs.
Property pool
As a result of my analysis above, I find the matrimonial assets for division to be as follows:
a)32 W Street, I (jointly owned).................................... $65,000.00
b)1981 Volvo Sedan (in husband’s possession).......... $2,000.00
c)Furniture (in husband’s possession).......................... $2,000.00
d)Moneys from Term Deposit –
i)Utilised by husband (added back)................... $10,000.00
e)Moneys owed by P........................................................ $5,000.00
f)House in Chile (jointly owned)..................................... $8,000.00
g)Wife’s interest in Chile home (in B) not determined / disregarded
The orders I propose to make preserve the parties’ entitlement to the loan to P and the house in Chile. I do not believe that the husband has any interest in the wife’s inheritance.
To do justice to the parties, it will be necessary for the parties to sell the house and divide the net proceeds equally, after allowance for a payment to the wife of $14,000.00, being the value of assets and moneys utilised by the husband.
I do not propose to require the husband to vacate within 30 days as proposed by the wife. The wife has relocated to Sydney. The home represents the current residence of the husband. I suspect that the wife fears that the husband will not co-operate with the sale and/or agents engaged by the parties. The orders make it clear what I expect the husband to do. If he does not co-operate, the matter may be listed before me for enforcement and, in addition to a question of the costs which will surely arise, I would then contemplate whether it will be necessary to order the husband to vacate the home. I have chosen this path to allow the husband a reasonable opportunity to find a place to live and not place him in a position of being forced to vacate before Christmas, unless a sale has been procured and has settled. I also note the husband was uncomfortable with the wife’s solicitor holding the title deed and handed the deed to the Court, where it shall be held until settlement.’
Formal orders
(1)The husband and wife shall retain an equal share, as tenants in common, in the following assets:
(a)The loan of $5,000 owed to them by their son P E V;
(b)The former family home in Chile.
(2)The joint tenancy by which the parties hold the former matrimonial home situated at 32 W Street, I more particularly described as Lot 192 on RP 85060, County of Stanley, Parish of O (“the home”) is severed.
(3)The parties shall use their best endeavours and execute promptly all documents and contracts necessary to sell the home as follows:
(a)That the home be listed for sale by private treaty with 2 local real estate agents, one selected by the husband and one selected by the wife, within 14 days;
(b)The list sale price is to be agreed between the parties (and shall be the approved market value), and failing agreement, the price shall be determined by the real estate agents selected under paragraph 3.1;
(c)If the said agents cannot agree on the list price, then the price shall be determined by a valuer appointed by the President of the Queensland Law Society who shall determine the market value. The costs of any valuation shall be borne equally by the parties;
(d)The husband, whilst he remains in possession of the home shall:
(i)Make the property available for inspection at all reasonable times upon reasonable notice;
(ii)Maintain the appearance of the yard, interior and exterior of the home in a neat and presentable condition at his cost;
(iii)Be responsible for all rates, local authority, insurance and charges.
(4)In the event the home is not sold by private treaty within 3 months from the date of this order, the parties shall take all reasonable steps to sell the home by public auction with the selected agents acting as conjoint agents for that purpose and the reserve price being the agreed list price or determined list price under paragraph 3.2 or 3.3:
(a)The parties shall contribute equally to any sums reasonably requested for advertising expenses and if one of the parties advances all the expenses, that party shall be reimbursed from the proceeds of sale;
(b)The parties shall attend at the auction sale and in the effect that an offer below the reserve price set is received, and one of the parties is not prepared to accept that offer, then the highest bidder over $65,000.00 shall be accepted.
(5)The proceeds of sale shall be distributed as follows:
(a)In payment of Agent’s commission;
(b)Payment or reimbursement of advertising expenses;
(c)Payment of legal costs of sale;
(d)Payment of $14,000.00 to the wife;
(e)Payment of the balance equally between the husband and the wife.
(6)Each party shall retain as their exclusive property (except for the home) any property in their possession at the date of this order and not otherwise dealt with by this order.
(7)The husband’s application against his son P E V contained in The Third Party Notice filed 20 December 1999 is dismissed.
(8)Certificate of Title Volume 6782 Folio 213 shall be retained by the Registrar of the Federal Magistrates Court of Australia until sale.
(9)All other applications are dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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