Vincent and Vincent
[2008] FMCAfam 32
•26 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VINCENT & VINCENT | [2008] FMCAfam 32 |
| FAMILY LAW – Property – contribution – age difference between spouses – income-earning potential. |
| Family Law Act 1975, ss.75 (2), 79, 79 (2), (4), (4)(a) – (d). |
| Barker v Barker (2007) 36 Fam LR 650 Borriello and Borriello (1989) FLC ¶92-049 Elsey v Elsey (1997) FLC ¶92-727 Ferrero and Ferrero (1993) FLC ¶92-335 Garrett and Garrett (1984) FLC ¶91-539 Georgeson and Georgeson (1995) FLC ¶92-618 Hayne and Hayne (1977) FLC ¶90-265 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) ¶93-143 Lenehan and Lenehan (1987) FLC ¶91-814 M & M [2002] FMCAfam 118 (31st January 2002) Mallet v Mallet (1984) 156 CLR 605; (1984) FLC ¶91-507 Noetel and Quealey (2005) FLC ¶93-23 Omacini and Omacini (2005) ¶93-218 Phillips and Phillips (2002) FLC ¶93-104 Pierce v Pierce (1999) FLC ¶92-844 Russell v Russell (1999) FLC ¶92-877 Spencer v The Commonwealth (1907) 5 CLR 418 The Commonwealth v Milledge (1953) 90 CLR 157 |
| Applicant: | MR VINCENT |
| Respondent: | MS VINCENT |
| File Number: | CAM 1770 of 2006 |
| Judgment of: | Neville FM |
| Hearing dates: | 8 and 9 November 2007 |
| Date of Last Submission: | 9 November 2007 |
| Delivered at: | Canberra |
| Delivered on: | 26 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tonkin |
| Solicitors for the Applicant: | Phelps Reid Lawyers |
| Counsel for the Respondent: | Ms Vincent appeared on her own behalf |
ORDERS
That the wife sign such documents as are necessary to transfer to the husband all her right title and interest as registered proprietor of the property known as and situated at Property K in the Australian Capital Territory together with her interest in the furniture, furnishings and effects contained therein.
(a)That the husband do all things and sign such documents as are necessary to cause the Westpac bank to release the wife from all liabilities with respect to the loans secured by mortgage over Property K but if such release cannot be obtained within 60 days then order (1)(b) shall apply.
(b)That the husband do all things necessary to cause the mortgage to be discharged at the expense of the husband.
That the husband pay to the wife, the sum of $42,978.00.
Except as otherwise provided in this Order the husband and the wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
IT IS NOTED that publication of this judgment under the pseudonym Vincent & Vincent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 1770 of 2006
| MR VINCENT |
Applicant
And
| MS VINCENT |
Respondent
REASONS FOR JUDGMENT
Introduction
Adopting the language and the fundamental principle of s.79(2) of the Family Law Act 1975 (Cth) (“the Act”), the issue for determination in these proceedings may be stated simply in the following terms: “in the light of all the circumstances what is the just and equitable order to be made between the parties regarding their competing property claims?” The answer to that question is largely dependent on deciding the respective contributions of the parties to the relationship. Subject to what is said below, “contributions” and income-earning capacity were, in large measure, the focus of the parties during the trial. That said, as with many cases, the reality here is not completely removed from the Full Court’s description in Ferrero and Ferrero:
The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field.”[1]
[1] (1993) FLC¶92-335 at p.79,572. In referring to this part of the Full Court’s judgment, the focus is on “the level playing field”, for reasons that will become apparent in due course, and not on the Court’s description of the roles of the parties in that case as applicable to these proceedings.
The facts of the matter are relatively straight-forward, as is the long-standing judicially sanctioned “four-step” approach to determine applications of this kind that are brought pursuant to s.79 of the Act.[2]
[2] There is abundant authority in relation to the judicial prescription to use the “four inter-related steps” approach. See, for example, the Full Court decisions in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) ¶93-143 at p.78,386, and Omacini and Omacini (2005) ¶93-218 at p.79,619.
For ease of reference, the “four important steps to be taken in determining a property dispute are”:
(a)“To identify and value the net property of the parties (usually at the date of trial);[3]
(b)to consider the contributions of the parties within paragraphs (a) – (c) of s.79(4);
(c)to consider the s.75(2) factors; and
(d)to consider whether the order proposed is just and equitable.”[4]
[3] For a recent discussion of identification and disclosure of property, see the Full Court judgment in Barker v Barker (2007) 36 Fam LR 650.
[4] This is the `four-step’ process as described in Omacini, at p.79,619.
Facts & Circumstances of the Parties
Dr Vincent, the applicant, is a 63 year old Medical Professional. Although not formally in evidence, there seemed little dispute that his relationship with the 43 year old respondent, Ms Vincent, was not his first, it having been preceded by an earlier marriage and a de facto relationship. That said, Ms Tonkin, Counsel for Dr Vincent, referred to only two relationships (including the relationship with the current Respondent, Ms Vincent), while Ms Vincent’s Chronology clearly refers to two prior relationships, one with Ms D and secondly, with Ms E. In any event, I do not think that anything necessarily or directly turns on Dr Vincent’s earlier [marital] relationships and the resolution of issues involving the parties to them, other than to note that it also seemed to be uncontested in this matter that as a result of earlier legal proceedings involving one of Dr Vincent’s former partners, substantial material goods and resources were no longer part of Dr Vincent’s assets that he brought to the marriage with the respondent, Ms Vincent, in April 1998.[5] It also follows that the property to be divided in these proceedings under s.79 is not what it might have been.
[5]Dr and Ms Vincent began to co-habit in July 1993, having commenced a dating relationship in 1991. When they met, Ms Vincent was unemployed. They married in 1998, and separated in September 2006. It was also accepted that from 2005 the parties essentially led separate lives, although Dr Vincent gave evidence that there remained an active sexual relationship between the parties up until the night before
Ms Vincent left the matrimonial home.[6] Thus, if measured from the date of commencement of co-habitation in July 1993 until the de facto separate existence in early 2005, the relationship lasted approximately 13 years.
[6] In relation to the separate existence of the parties from 2005, see Transcript (8th November 2007) p.15; on the latter, see p.17.
There were no children of the marriage. Dr Vincent did have children from an earlier relationship, T and B. At the commencement of the parties’ co-habitation in 1993, T was 12 years of age and B 9. There is an older son, E, who does not feature in the current proceedings, among other reasons because, according to Ms Vincent, he was aged 20 years in 1993. It is also the case that there was little formal evidence in relation to B other than, as set out below, claims by Ms Vincent, accepted by Dr Vincent, that she played a reasonably significant role in the lives of T and B, at least for a few years when these Vincent children were younger. However, the only “child” who played something of a substantive part in the proceedings was T, for reasons that I will get to in due course. He lived with the parties from March 1995, beginning when he was 14 years old.
Ms Vincent has an honours degree in French and German. She has worked as a librarian, and is currently employed in a Commonwealth Government Department, at a level described as “ASO 5.”[7] She has worked occasionally at higher levels in the Department. She commenced a law degree a little time ago, but has completed only a few subjects. She acknowledged that she could return to those studies but would have to re-apply to university to do so. If she completed a law degree, Ms Vincent acknowledged that her employment opportunities in the Department would likely increase.[8]
[7][8] Transcript (8th November 2007) pp.66-67.
In submissions, largely due to health and age considerations, it was indicated that Dr Vincent would likely be seeking to retire from his practice, or at least to move to part-time practice.[9] However, given his financial liabilities and modest superannuation, it may be that that hope is not, or cannot be, realised as soon as Dr Vincent would wish.
[9] Transcript (8th November 2007) pp.71-72. It was indicated that Dr Vincent’s professional indemnity insurance would remain at the same level ($25,000 p.a) irrespective of whether he worked full- or part-time.
Orders Sought
Dr Vincent seeks orders that he pay to Ms Vincent the sum of $35,000.00, and that otherwise each party “be entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in possession or control of each of them respectively.” The payment of $35,000.00 represents approximately 27% of the [non-superannuation] asset pool.
Ms Vincent seeks orders whereby she is paid $100,000.00 by
Dr Vincent. In the event that he is unable to pay her this sum, the matrimonial home is to be sold and out of the proceeds of sale, that amount [$100,000.00] be paid to her, and that otherwise, “each of the parties … retain whatever assets and superannuation and liabilities are in their respective names.”[10]
[10] Ms Vincent confirmed that she had previously sought payment of $50,000.00, and that she altered her claim to $100,000.00 late in the day on advice from her colleagues at a Commonwealth Government Department. Transcript (8th November 2007) p.6. There was no evidence that her colleagues had any experience or expertise in family law.
This order may need to be, or perhaps should have been, qualified on the basis that in her written submissions (p.8), Ms Vincent refers to the “non-superannuation assets of the parties”. There she refers to “net assets” and provides three sets of figures that reflect three different values of the matrimonial home. Her calculations refer to a half-share of the net assets. It may be inferred from that document that
Ms Vincent was in fact seeking a half share of the net assets, which is less than what she sought in her formal “Minutes of Order Sought by the Wife” dated 5th November 2007. Her written submissions were filed in Court on 9th November 2007.
Property of the Parties
Respectfully, the asset pool of the parties is modest. The most significant asset is the matrimonial home. An appraisal (rather than a formal valuation) of its value was provided by Dr Vincent. The range was $460,000.00 - $480,000.00. The property is encumbered with a mortgage of $286,829.00. There is no dispute about this debt. Nor is there dispute over Dr Vincent’s credit card debts, which total $21,429.00 (Westpac Visa: $6457; ANZ Mastercard: $10,836; Members Equity: $2660; Virgin Mastercard: $1476).
Dr Vincent claims business debts arising from his medical practice of $23,103.00. There was some contest about these, although Dr Vincent was not cross-examined on his medical practice assets and liabilities, save that Ms Vincent sought to make something of the fact that
Dr Vincent was able to claim a range of tax deductions that she, as a wage and salary earner, could not. In any event, on these figures, total liabilities are $331,361.00.
Dr Vincent’s [non-realty] assets, excluding the matrimonial home and superannuation, are very modest. Even on Ms Vincent’s calculations, they amount to the unexceptional sum of $25,500. According to
Ms Vincent, this is comprised of a motor vehicle said to be worth $5000.00, savings of $500.00, household furniture worth $10,000.00, and business equipment of $5,000.00.
For her part, Ms Vincent contends that her assets are very minimal, with no savings, furniture worth $5000.00, and no car. There is nothing to dispute here.
On Dr Vincent’s calculations, the net asset pool (not including superannuation) is $128,639.00. On Ms Vincent’s [highest] calculations, the net asset pool (also excluding superannuation) is $154,139.00. The difference between the respective calculations is explained by the wife including sums for furniture, savings and the motor vehicle, and not deducting the value of her furniture.
There is little dispute as to the superannuation of each of the parties, with Dr Vincent having $95,000.00 in super (Ms Vincent claims it is $100,000.00), and Ms Vincent has $76,051.00 in her fund.
Issues in Dispute & Evidence
As indicated above, the principal issues in dispute at the trial were: (a) the value of the matrimonial home, and (b) the contributions to the marriage (financial and non-financial). A third, but in my view a somewhat subsidiary, issue related to the income-earning capacity of the parties. I say “somewhat subsidiary issue” for the simple reason that the parties can only play with the cards that they possess, which in this case include the following facts: (i) Dr Vincent is 63 years of age and therefore not at the beginning of his medical career, nor is he in completely robust health, (ii) Dr Vincent is a medical specialist, who by virtue of that profession, is able to earn an income that is greater than Ms Vincent, (iii) Ms Vincent is significantly younger than
Dr Vincent and therefore has, in all likelihood, a greater time over which to earn a living, albeit that her qualifications and areas of expertise do not, at this stage certainly, indicate that she could earn an income that might fully approximate that of her [former] husband.
Value of Matrimonial Home
I have already indicated that the appraisal of the value of the matrimonial home is within a very modest range, namely between $460,000.00 and $480,000.00. From submissions by Ms Tonkin, it would appear that Ms Vincent initially accepted that the lower figure was appropriate, and only claimed the benefit of the higher figure quite recently.[11]
[11] See the discussion at Transcript (8th November 2007) p.6. The appraisal provided to the Court is from a well known Canberra real estate agency, dated 1st November 2007.
The principles to be applied in determining the value of an asset are well known. A helpful overview of them is provided by the Full Court decision in Phillips and Phillips.[12] After reviewing a number of authorities,[13] the Court quoted the following passage from Borriello with obvious approval:
Valuation is rarely such an exact science that in such circumstances [of considering two different valuations] a Judge could realistically conclude that the correct valuation was, for example, 55% rather than 50% less than the gap between the two valuations. In such a case it would be perfectly proper for the trial Judge to adopt a mid-point valuation.[14]
[12] (2002) FLC ¶93-104. The Full Court comprised Finn, Kay and O’Ryan JJ.
[13] The authorities included Mallet v Mallet (1984) 156 CLR 605 & (1984) FLC ¶91-507, Lenehan and Lenehan (1987) FLC ¶91-814, Borriello and Borriello (1989) FLC ¶92-049, Georgeson and Georgeson (1995) FLC ¶92-618, Elsey v Elsey (1997) FLC ¶92-727, and The Commonwealth v Milledge (1953) 90 CLR 157. To these might be added the old High Court decision in Spencer v The Commonwealth (1907) 5 CLR 418.
[14] Borriello at p.77,559, cited in Phillips and Phillips at p.88,982. In Spencer v The Commonwealth, the High Court (Griffith CJ) simply referred to a `fair market value.’ See the comments of Griffith CJ (at p.432) cf. Barton J (at pp.436-437) & Isaacs J (at 442-443).
On the facts of this matter, the “mid-point valuation” is $470,000.00. For the purposes of what follows, I propose to take that figure as the relevant value. In any event, the end result is not significantly affected by whichever figure (from $460,000 to $480,000) is used.
Contributions (Financial & Non-Financial)
From an early time in the life of the Family Court in determining disputes involving property, the general principle has been as described by Pawley SJ in Hayne and Hayne where his Honour said that in such matters “one cannot approach the problem with an eye for meticulous detail. It should rather be dealt with broadly so that the end result can be said to be just and equitable.”[15] There are more recent statements to similar effect to which I refer later in this judgment. With an appropriate level of detail, I note the following.
[15] (1977) FLC ¶90-265 at p.76,415.
Summarily, the evidence I accept is as follows. First, when the relationship between the parties commenced in 1991, and equally when co-habitation began in 1993, Ms Vincent was unemployed. She confirmed that she had no full-time permanent employment before 2001, and that at least up until 1998, she did not contribute financially to the household. As she put it, this was because of Dr Vincent’s significantly greater income.[16] In Ms Vincent’s words (from her affidavit of 22nd January 2007):[17]
[par.16] As I never had permanent full time work before 2001, and before 1998 never had ongoing full time work, I was supported by the applicant with regard to the expenses of the household. The applicant’s income was always far greater than my own.
[par.18] My contribution to the household before 1998 was non-financial, as an intimate companion and valuable emotional support to my husband.[18]
[16] Transcript (8th November 2007) pp.56-58.
[17] This “January” affidavit of Ms Vincent also consistently bears a date on each subsequent page of 22nd February 2007. The inconsistency between the dates was not raised at the trial or otherwise explained. Nothing material turns on the inconsistency of the dating in the affidavit.
[18] Ms Vincent confirmed this evidence, regarding her employment and her contribution to the household prior to 1998, in the course of her testimony. Transcript (8th November 2007) pp.56-57. Ms Vincent also confirmed that she had modest savings at the time she married Dr Vincent. She used them to pay off her HECS bill. Transcript (8th November 2007) p.62.
The converse of this evidence, which I also accept, is that Dr Vincent paid all household outgoings prior to 1998. Ms Vincent confirmed that her husband had no expectation that she contribute to household expenses, at least up to that time.[19]
[19] Transcript (8th November 2007) p.62.
In the light of the above, it is clear that there were few, if any, financial contributions that Ms Vincent brought to the relationship.[20]
[20] Ms Vincent also confirmed that she brought little if any furniture with her to the matrimonial home because Dr Vincent’s residence was already well furnished.
In what follows, I consider the financial contributions after 1998, followed by the non-financial contributions of Ms Vincent. In relation to, and within, both matters there was some dispute. However, the differences between the various contentions of the parties are of a kind, in my view, that do not impact significantly upon the ultimate outcome. This is so for the factual matters noted below, and in the light of the judicial approach adopted in both the Family Court and in this Court.
For example, in Garrett and Garrett, the Full Court (Evatt CJ, Lindenmayer & Strauss JJ) said:
The wide and finite terms of para. [79(4)] (a) themselves suggest that where appropriate … a broad estimate of the financial contribution of each party must be made. Under s.79(4)(b) non-financial contribution of each is to be taken into account. This must of necessity be a matter of judgment and not of computation. Similar indications can be found amongst the relevant matters in s.75(2). It is also worth noting that para.(a) and (b) refer to the “contribution” and not to the contributions of each party.[21]
[21] (1984) FLC ¶91-539 at p.79,372.
A similar approach, which expressly endorsed and followed the judgment in Garrett and Garrett, was taken by [then] Federal Magistrate [now Justice] Ryan in M & M.[22]
[22] [2002] FMCAfam 118 (31st January 2002) at [41].
Financial Contributions
The financial contribution of Ms Vincent, post 1998, falls into two categories. The first relates to her contributions concerning household items, including food. The second category relates to her direct financial contribution to the mortgage. It is necessary to deal with both of these aspects briefly.
Non-Mortgage Financial Contributions: Here the principal issues relate to the nature and the degree of the contributions. For her part, Ms Vincent provided the Court with an exercise book of receipts relating to food purchases dating from an early period of the relationship. She contended that not only did that show she contributed financially to the household in the purchase of food, but also that the Court should, in effect, be able to extrapolate from those purchases to conclude that she made similar contributions thereafter.
Upon considering the exercise book with receipts, Dr Vincent conceded that there were some purchases that Ms Vincent made that were used by the household. He queried that they were very extensive. Indeed, in the course of his evidence he strongly contended that in the course of the marriage three things were readily evident. First, that ultimately he did most of the household shopping; secondly, that Ms Vincent did not like going shopping with him when, for example, he did the major household shopping at the markets; thirdly, that from an early time in the marriage, and especially towards the latter time of the relationship, Ms Vincent’s eating habits (to a significant degree determined by her medical condition – achalasia – which affected her ability to swallow certain foods) were such that she ate very little, essentially a restricted diet, which consisted significantly of chocolate, and that she ate almost entirely alone, removed from the family.[23]
[23] See, for example, Transcript (8th November 2007) pp.11 & 13.
In my view, accepting that some purchases were made for food in the early days of the relationship, there is insufficient evidence to conclude that Ms Vincent purchased food and other items (subject to what is said below) for the general household, or at least that she did so either with such regularity or to such a degree that it would likely have any material impact on the determination that this Court is required to undertake in these proceedings.
Dr Vincent also agreed that Ms Vincent provided some funds to pay for legal expenses arising out of property settlement proceedings involving his former partner. Ms Vincent claimed the contribution was $3000.00; Dr Vincent said it was $1000.00.[24] Dr Vincent also agreed that
Ms Vincent paid for part of the installation of air-conditioning in the matrimonial home. Again, there was some dispute about the level of cost involved, which affected the competing claims as to the percentage contribution from Ms Vincent. And again, while doubtless significant to the parties, and especially to Ms Vincent, the funds involved, in the larger scheme of things, is not vast. One version puts the figure at $800.00, and another at $1290.00.[25] There was also some dispute over the purchase and cost of curtains.[26]
[24] Transcript (8th November 2007) pp.14-15.
[25][26]Mortgage contributions: In relation to mortgage contributions, it was not denied that, for a number of years, Ms Vincent paid monies to
Dr Vincent specifically to assist in mortgage repayments. There was some dispute about the precise amount paid and for how long.
Dr Vincent gave evidence that Ms Vincent paid $300.00 per fortnight, which was reduced to $200.00 per fortnight. Ms Vincent contended that she paid $250.00 per fortnight. On Dr Vincent’s view, those payments reduced when the Supreme Court litigation, previously referred to, ceased. Dr Vincent thought that case finished in 2001. Ms Vincent contended that it finished in 1999.[27] On either version, the period of mortgage contribution was not a terribly long time. As with other matters, in the larger scheme of things, I do not consider that these payments are of such magnitude as to significantly alter the ultimate determination to be made by this Court. While they are relevant factors and show something of the financial contribution of Ms Vincent, their significance was presented or relied upon disproportionately to their total import.[28]
[27][28] Although I am entitled to take into account the conduct of the parties, post-separation, and although Ms Vincent took a range of goods and chattels from the matrimonial home following separation, I do not think that either that conduct, or the value of the goods taken, is such as to dramatically affect the ultimate determination.
One financial matter I should note concerns an argument regularly advanced by Ms Vincent in the course of the proceedings concerning Dr Vincent’s income and deductions. That argument, or better described, the dispute, over various deductions claimed by Dr Vincent, centred around what Ms Vincent saw as an inequitable situation whereby Dr Vincent, because he conducted his medical practice from rooms at the matrimonial home, was able to claim a range of deductions (set out in his business records and income returns submitted to the Court as Exhibit “A”) that she, as a wage and salary earner, could not. As well, Ms Vincent contended that Dr Vincent should not be able to claim his business debts as a liability. Not surprisingly, Dr Vincent claimed that he could.
In my view, the sums involved are not such as to warrant a detailed examination and would not, in any event, alter to any significant degree the relevant determination as to what is a “just and equitable” distribution of property in this matter.
Non-Financial Contribution
The non-financial contribution issues also fall into two general categories.[29] The first relates to the emotional and related support as spouse of Dr Vincent. In this category I include matters relating to the care and welfare of the matrimonial household. The second relates to Ms Vincent’s contribution to the care and welfare of Dr Vincent’s children in their younger years. Unsurprisingly, the disparity between the parties was consistent with that in other aspects of the proceedings. This is to say that, except in instances of outright denial or opposition, most of the differences were more in relation to `degrees of separation’ than anything else.[30]
[29] In this section, I seek to deal with matters that are comprehended by s.79(4) (b) & (c) of the Act.
[30] And I will not, and need not, rehearse the various contentions about who cleaned up after whom. The earnest reader can read the Transcript (8th November 2007) at pp.29-31 in this regard.
For example, understandably, Ms Vincent made much of her contribution, as she saw it, in the care and welfare of Dr Vincent’s two younger children. She contended that family violence, she says perpetrated by Dr Vincent in his earlier relationship[s], was a significant issue and from which she sought to shield the children or otherwise help them deal with. Without conceding the contentions regarding family violence, Dr Vincent did agree that Ms Vincent did quite a bit with the children when they were younger.[31]
[31] Transcript (8th November 2007) p.28. As well, Ms Vincent submitted that issues of “violence” were raised by her solely in the context that such matters made her duties as step-mother “that much harder.” See, for example, Transcript (8th November 2007) p.4.
What is perhaps of greater moment regarding non-financial contributions, and something directly relevant to s.79(4)(c), is the disparity between, on the one hand, Ms Vincent’s contention that she continued to provide (in a non-financial way) to the household until approximately 2005, and, on the other hand, the [affidavit] evidence of Dr Vincent’s son, T.[32] He is now aged 26.
[32]Ms Vincent conceded that she did not do any of the heavy housework. That was done by a long-time house-keeper of Dr Vincent.[33]
Dr Vincent gave evidence that he did a significant amount of the cooking. Ms Vincent maintained, however, that among other household contributions she performed were cooking and assisting T in a variety of endeavours, such as showing him how to use the washing machine and other domestic appliances. This too was challenged by
Dr Vincent. After noting that he lived with Dr Vincent and Ms Vincent throughout their relationship of approximately 15 years [his figure], among other statements made in T’s affidavit is [par.13]: “I never observed her [Ms Vincent] to shop for the household and observed that she did little if any cooking.”
[33] See, for example, Transcript (8th November 2007) pp.12 & 28.
In something of contrast to this, Ms Vincent attaches to her affidavit of 29th January 2007 (Annexure “A”) an email from T to her, dated 6th November 2006, which acknowledges that Ms Vincent assisted both he and Dr Vincent. He also states that Ms Vincent was “the most influential role model for [him] throughout the earlier years of [his] life.”
Ms Vincent also claimed that she provided assistance to Dr Vincent, such as when he established his [short-lived] medical practice at Mxxx. Dr Vincent denied that much, if any, assistance was provided by
Ms Vincent.
Dr Vincent provided Ms Vincent with full private health cover.
Ms Vincent contended that because Dr Vincent did the same for T under `family cover’, it was no extra cost to have her included in that benefit.
The final matter to note relates to s.79(4)(d). In my view, the orders to be made will likely more directly affect the earning capacity of
Dr Vincent more so than the earning capacity of Ms Vincent. This is because, if Dr Vincent seeks to keep the matrimonial home, he will have to fund a payment to Ms Vincent other than from its sale. That being so, he will likely be required to borrow funds, which will thereby require him to continue his practice rather than, as he would wish to do, retire.
For her part, especially given her age (it will be recalled that Ms Vincent is 20 years younger than Dr Vincent) and that she is `debt free,’ the impact on her earning capacity of the proposed orders is zero.
I move to a consideration of the factors set out in s.75(2) of the Act. In the light of what has already been canvassed, this penultimate task can be somewhat brief.
There are relatively few parts of s.75(2) that are engaged by the facts of this matter. I accept that, at least formally, Dr Vincent has arrived at the latter end of his professional career. Thus, his income-earning potential, at 63 years of age and therefore (without wishing or intending to be morbid) simply in terms of years in the work-force that are likely still to be available to him, are significantly less than what stretches before Ms Vincent. At 43 years of age, with a secure position in a Commonwealth Government Department, she has, in theory at least, perhaps two decades of reasonably well-paid employment, which will include superannuation contributions.
Dr Vincent is not in optimum health. Exhibit “C” is a medical certificate from Dr B, dated 11th September 2007, which confirms a range of chronic physical conditions with which Dr Vincent contends. Dr B states: “Given [Dr Vincent’s] established health issues and his age of 63 years, any prediction of long term physical/medical capacity to maintain current work levels of professional workload is to be regarded as most guarded.”
In submissions (and to some extent during her testimony), Ms Vincent contended that her future was not altogether rosy. Indeed, she sought to paint a picture of her prospects, in my view, that was rather more dismal than the facts will support. As already indicated, she is and has been gainfully employed for some years in a Commonwealth government department. She confirmed that, from time to time, she has performed “higher duties” in that Department. She did not rule out returning to legal studies. In the event that she pursued and completed them, she confirmed that higher levels of remuneration would be open to her. As well, at 43 years of age, it could not be said that she was without prospects of other relationships and the promise that they might hold. I mention this latter subject, not in the context of any possible financial comfort or support that might arise from any relationship in the future, but to dispel the view, advocated by
Ms Vincent, that she was all but ready to be consigned to the dust heap of history, without any substantial future.
Summary & Conclusion
In sum, I find that the financial contributions to the relationship between the parties significantly favoured Dr Vincent. I find that, while there were not insignificant non-financial contributions made by
Ms Vincent, they were largely confined to the early years of the relationship when two of the Vincent children were quite young. Some adjustment should be made in her favour in this regard. That should be more than allowed for by Dr Vincent, but nowhere near as much for which Ms Vincent contended. As well, there is sufficient conjecture, and counter-balancing evidence, to indicate that a cautious assessment of Ms Vincent’s non-financial contributions to the household more generally should be assessed rather modestly, but not as modestly as advocated by Dr Vincent.
The proportions that seem to me to be just and equitable in this case, are not too far removed from the Full Court’s decision in Pierce v Pierce, where the contributions were assessed at 70% to the husband and 30% to the wife, with a further 5% adjustment in favour of the husband for the s.75(2) factors. This led to a final overall assessment of 75% to the husband and 25% to the wife.[34] As will be seen shortly, the adjustment is a tad more in Ms Vincent’s favour.
[34] Pierce v Pierce (1999) FLC ¶92-844.
In the light of the facts of this case, I am of the view that the so-called s.75(2) factors’ largely balance out. I am especially conscious of the income-earning years that are in front of Ms Vincent, albeit that, in the absence of further qualifications, her income will likely remain at a somewhat modest level. I am also acutely conscious that any order I make will invariably result in Dr Vincent increasing, to a sizeable degree, his indebtedness and to do so faced with less than vigorous health and very much towards the latter stage of his medical career. That said, it would appear that he will likely still have some benefit (perhaps financial, perhaps other) from his son T (and his companion) living with him, as has occurred in recent years.
In Russell v Russell, the Full Court of the Family Court said:
… under s.79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed we take the opportunity to emphasise that in what his Honour has termed “the fourth stage”, that is the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.[35]
[35] Russell v Russell (1999) FLC ¶92-877 at p.86,438. Emphasis in original. Comments to similar effect can be found also in the more recent decision of the Full Court in Noetel and Quealey (2005) FLC ¶93-230 at p.79,805.
Applying the basic and important principle articulated in Russell v Russell to the facts of this case, for the above reasons, in my view, a just and equitable determination of the property pool available to the parties is that (i) each party shall retain their respective superannuation interests, (ii) in percentage terms, Dr Vincent is entitled to 69% of the net asset pool. This leads to a percentage entitlement to Ms Vincent of 31% of the pool, rather than the 27% as proposed by Dr Vincent. On this basis, with a net asset pool of $138,639.00, Dr Vincent is to pay
Ms Vincent the sum of $42,978.00. Otherwise the orders are as set out at the beginning of these reasons.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Neville FM.
Associate: Renee Davidson
Date: 26 February 2008
A large file from the NSW Supreme Court (Equity Division) was produced on subpoena. It contained the pleadings and related documents in proceedings no.4963 of 1987 between Ms D and Mr Vincent. Although produced, there was no reference to or use of these documents during the current proceedings. However, I note that the documents in that Supreme Court file refer to the relationship between Dr Vincent and Ms D as a de facto relationship. They also refer to an earlier marriage of
Dr Vincent with a Ms P. Ms Vincent annexed to her affidavit of 5th November 2007 an affidavit of
Ms D from the Supreme Court proceedings.
Ms Vincent deposed that her taxable income for the financial year ended 30th June 2007 was $55,612.00. She was appointed to a permanent position in the Commonwealth Public Service in 2001. Dr Vincent compares his taxable income to that of Ms Vincent in annexure “F” to his affidavit of
, filed the following day. That table suggests that the disparity between their incomes is not as great as Ms Vincent claimed. Nonetheless, a disparity there is.
9th October 2007
Transcript (8th November 2007) pp.16 & 40. In the testimony of the parties, there is, of course, reference (usually by Counsel) to relevant paragraphs of the affidavit evidence of Ms Vincent and
Dr Vincent. I need not repeat those references here.
Transcript (8th November 2007) p.37. There was also a dispute, primarily but not exclusively canvassed in the affidavit evidence (see Ms Vincent’s affidavit filed on 23rd February 2007 [par.39], and Dr Vincent’s affidavit filed on 10th October 2007 [par.72]), in which Ms Vincent submitted that
Dr Vincent was addicted to marijuana and that he had wasted moneys in the cash purchase of it.
Dr Vincent strongly denied this. In the absence of formal evidence of any kind to support her contention, I do not propose dealing with this submission other than noting it here. Given the modest size of the asset pool, one might not unreasonably question the capacity for such “waste.”
Transcript (8th November 2007) pp.14 & 34. I should also note that in the course of the marriage,
Dr Vincent received a personal injury settlement of $65,000.00. Counsel for Dr Vincent submitted that that sum was applied for the benefit of both parties. That submission was not challenged. I accept the submission.
In that year it was well accepted by both parties that Dr Vincent and Ms Vincent were leading separate lives, albeit under the one roof, and notwithstanding (according to Dr Vincent) that he and
Ms Vincent still engaged in sexual relations up until the night before she moved out of the matrimonial home. As previously indicated in these reasons, see Transcript (8th November 2007) pp.15-16 (regarding separate existences) and p.17 regarding their “relationship” immediately prior to separation. T’s affidavit was sworn on 2nd November 2007 and filed on that date.
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