W and W
[2002] FMCAfam 51
•27 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & W | [2002] FMCA fam 51 |
| PROPERTY SETTLEMENT – Just and equitable. |
| Applicant: | B R W |
| Respondent: | G M W |
| File No: | ZD2147 of 2000 |
| Delivered on: | 27 February 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 14 February 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondent: | Ms Holtham |
ORDERS
(1)That in the event the husband notifies the wife’s solicitors in writing within 28 days of today’s date of his intention to assume ownership of the former matrimonial home situated at 18 M Court, B in the Northern Territory of Australia that upon presentation to her or her solicitors, the wife sign all documents presented to enable the transfer to the husband at his expense of all her right title and interest in the real property situated at 18 M Court, B in the Northern Territory of Australia and pending such transfer the husband indemnify the wife and keep her indemnified in relation to all liabilities in respect of the said property.
(2)That simultaneous with the transfer described in order 1 hereof, the husband do all things necessary and sign all writings required in order to discharge the mortgage registered on title of said property, in favour of the Australian Central Credit Union (“ACCU”).
(3)That in the event that the transfer referred to in order 1 hereof takes place or the property is sold pursuant to order 4 or 5 hereof, the proceeds of the husband’s lump sum payment of superannuation currently held in the National Australia Bank account in the name of Sivyer and Associates Trust Account, ATF B & G W are to be distributed as follows:
(i)The amount required to pay out the joint personal loan and joint overdraft of the parties held with ACCU;
(ii)The amount required to pay out the joint overdraft held with AUSDEF;
(iii)The sum of $39,418.80 to the wife;
(iv)The balance to the husband.
(4)That in the event that the husband fails or neglects to discharge the registered mortgage within 28 days from the date of these order, the parties sign all documents and writing and do all things necessary to place the said property on the open market for sale at a price to be determined by the parties and in default of agreement as determined by a person nominated by the President of the Real Estate Institute of the Northern Territory for the time being and following such sale the proceeds be distributed as follows:
(i)Firstly to pay the costs and commission of sale;
(ii)Secondly to pay the amount required to discharge the mortgage registered on title in favour of ACCU;
(iii)Thirdly to pay 75% of the balance to the wife and the remaining balance to the husband.
(5)That in the event that the said property is not sold by private treaty within 12 weeks from being placed on the open market for sale, the parties make all such arrangements and do all such acts and things and sign all documents and writings necessary to procure a sale of the said property by public auction within a further 28 days on the following terms and conditions:
(i)The auctioneer be an agent agreed between the parties and in default of agreement to be appointed by the husband;
(ii)The reserve price for the purpose of the auction sale be as nominated by a valuer appointed by the President for the time being of the Real Estate Institute of the Northern Territory or as agreed between the parties;
(iii)That the husband pay and be responsible for payment of auction expenses payable for the said property’s auction;
(iv)That each party have the right to bid at any auction held;
(v)That the husband appoint conveyancers/solicitors to act on the sale of the said property on behalf of both parties;
(vi)That in the event the said property is not sold by auction or by private negotiation within 14 days after the said auction then the parties do all acts and things and sign all documents and writings necessary to procure a further auction within a further period of one month of the date of the first auction but otherwise on the same terms and conditions as applied with the first auction save and except that the reserve price shall be set lower and be nominated by the auctioneer in default of agreement between the parties;
(vii)That upon completion of the sale the proceeds of sale be distributed as follows:
a.Firstly to pay the costs expenses and commission of sale;
b.Secondly to pay such monies as are required to discharge the mortgage registered on title;
c.Thirdly to pay 75% of the remaining balance to the wife and the remaining balance to the husband.
(6)That pending sale of the property situated at 18 M Court, B in the said Territory, the husband be solely responsible for paying all expenses and outgoings (including the mortgage repayments) of the said property and indemnify the wife and forever keep her indemnified in relation to all such liabilities.
(7)That in the event that the sale of the said property fails to realise a sum sufficient to pay the costs and commission relating to the sale and to discharge the mortgage to the ACCU the proceeds of the husband’s lump sum payment of superannuation currently held in the National Australia Bank account in the name of Sivyer and Associates trust account ATF B & G W are to be distributed as follows:
(i)The amount required to complete the discharge of the mortgage on the property situated at 18 M Court, B;
(ii)The sum required to pay any estate agents commission and the costs of sale in respect of the sale of the said property;
(iii)The amount required to pay out the joint personal loan and joint overdraft of the parties held with ACCU;
(iv)The amount required to pay out the joint overdraft held with AUSDEF;
(v)75% of the net amount left in the said accountless the sum of $2,000.00 to the wife;*plus the sum of $3,000.00 to the wife;(vi)The balance to the husband.
(8)That pending the sale of the said property or its transfer to the husband, the husband is solely responsible for the mortgage payments owing to ACCU and shall indemnify the wife and forever keep her indemnified in relation to such mortgage repayments.
(9)That the wife transfer to the husband all her right title and interest in the 1991 EA Ford motor vehicle.
(10)That the husband retain for his sole use and enjoyment the tools and equipment situated in the shed at 18 M Court, B as well as the following items:
(i)One sleeping bag;
(ii)Two tents;
(iii)Exercise equipment;
(iv)Bicycle;
(v)Tools and shelving;
(vi)Panasonic television set;
(vii)Double and single seater lounge;
(viii)Dining table and chairs;
(ix)3 piece computer desk;
(x)single bed
That otherwise the wife retain for her sole use and enjoyment all other chattels currently situated at 18 M Court, B.
(11)That the parties do all things required and sign all documents necessary to close the ACCU joint personal loan account, the ACCU joint overdraft account and the AUSDEF joint overdraft account simultaneous with the said accounts being paid out.
(12)That unless otherwise specified in these orders and except for the purpose of enforcing the payment of monies due under these or any subsequent orders:
(i)Each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of this order and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof; superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age of working future provides the conditions for payment out of such entitlements;
(ii)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(13)That in the event that the husband or the wife refuses or neglects to sign any document necessary to implement these orders within 7 days after same shall have been tendered to him or her for that purpose then in such an event a Deputy Registrar of the Federal Magistrates Service is hereby appointed to sign all deeds and any documents in the name of the defaulting party and to do all acts and things necessary to implement these orders.
(14)That from the date of the sale of the said property or its transfer to the husband, the order of Federal Magistrate Mead made on the 26th of September 2001 is discharged.
(15)That the husband’s liability to pay child support in respect of the two children of the marriage B R W born the 27th of August 1992 and C B J W born the 28th of June 1996 from the 26th of September 2001 until the sale of the said property or its transfer to the husband be fixed at nil other than any payments of child support that have already been received by the Child Support Agency from the husband.
(16)Parties have liberty to apply in respect of these orders upon giving 7 days written notice to the other party.
*Pursuant to Order 31 Rule 6 of the Family Law Rules this order is amended on the 10th April 2002.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ZD 2147 of 2000
| B R W |
Applicant
And
| G M W |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are B R W (“the husband”) and G M W (“the wife”). They seek a determination as to the division of matrimonial property.
The husband has represented himself throughout the proceedings. He refers to himself as an “SRL”, an acronym that stands for “self-represented litigant”. The wife has been represented by the same firm of solicitors throughout.
Initially, the proceedings also related to parenting arrangements for the parties’ two children B R W born the 27th of August 1992 and C B J W born the 28th of June 1996. However, on the 14th of February, 2002 the parties were able to agree on consent orders in respect of arrangements for these children. Pursuant to these orders the two children are to reside primarily with the wife and have regular defined contact with the husband.
On the 29th of June, 2001 the wife filed an amended response in which she sought the following orders:
1)That the husband make such transfer of cash, real and/or personal property to the wife as is just and equitable, the wife reserving her entitlement to amend this application at a later date.
On the 27th of August 2001 the husband filed a reply in which he sought, amongst others, the following orders:
1)Full control of the property which was jointly purchased while a couple.
2)The right to present evidence to the Court as a SRL without prejudice.
Thus initially neither party expressed the orders they sought in respect of the division of matrimonial property with any degree of precision.
In her outline of case document, filed on 13 February 2002 the wife indicated that she sought the following final orders in respect of property:
1)That within 28 days from the date hereof, upon presentation to her or her solicitors, the wife sign all documents presented to enable the transfer to the husband at his expense of all her right title and interest in the real property situated at 18 M Court, B in the Northern Territory of Australia and pending such transfer the husband indemnify the wife and keep her indemnified in relation to all liabilities in respect of the said property.
2)That simultaneous with the transfer described in order 1 herein, the husband do all things necessary and sign all writings required in order to discharge the mortgage registered on the title of the said property, in favour of the Australian Central Credit Union (“ACCU”).
3)That in the event that the husband fails or neglects to discharge the registered mortgage within 28 days from the date hereof, the parties sign all documents and writings and do all things necessary to place the said property on the open market for sale at a price to be determined by the parties and in default of agreement as determined by a person nominated by the President of the Real Estate Institute of the Northern Territory for the time being and following such sale, the proceeds be distributed as follows:
a)Firstly to pay costs and commission of sale;
b)Secondly to pay the amount required to discharge the mortgage registered on title in favour of ACCU; and
c)Thirdly, to pay the balance to the husband.
4)That in the event the said property is not sold by private treaty within 12 weeks from being placed on the open market, the parties make all such arrangements and do all such acts and things and sign all such documents and writings necessary to procure a sale of the said property by public auction within a further twenty eight (28) days on the following terms and conditions:
a)The auctioneer be an agent agreed between the parties and in default of agreement to be appointed by the husband;
b)The reserve price for the purpose of the auction sale be as nominated by a valuer appointed by the President for the time being of the Real Estate Institute of the Northern Territory or as agreed between the parties;
c)That the husband pay and be responsible for payment of auction expenses payable before the said property is auctioned;
d)That each party have a right to bid at any auction held;
e)That the husband appoint conveyancers/solicitors to act on the sale of the said property on behalf of both parties;
f)That in the event the said property is not sold by auction or private negotiation within fourteen (14) days after the said auction then the parties do all acts and things and sign all documents and writings necessary to procure a further auction within a further period of one (1) month of the date of the first auction but otherwise upon the same terms and conditions as applied with the first auction save and except that the reserve price shall be set lower and be nominated by the auctioneer in default of agreement between the parties;
g)That upon completion of the sale the proceeds of sale be distributed as follows:
(i)Firstly, to pay the costs, expenses and commission of sale;
(ii)Secondly, to pay such monies as are required to discharge the mortgage registered on title;
(iii)Thirdly, to pay the balance to the husband
5)That pending sale of the property situated at 18 M Court, B in the said Territory, the husband be solely responsible for paying all expenses for paying all expenses and outgoings (including the mortgage repayments) of the said property and indemnify the wife and forever keep her indemnified in relation to all such liabilities.
6)That in the event there is a shortfall in the sale price of the said property and the amount required to pay the costs and commission of sale and ACCU, the husband shall be solely responsible for payment thereof and shall indemnify the wife and keep her indemnified in relation to such shortfall liability.
7)That pending the sale of the said property, the husband is solely responsible for payment of the mortgage payments owing to ACCU and shall indemnify the wife and forever keep her indemnified in relation to such mortgage repayments.
8)That the wife transfer to the husband all her right title and interest in the 1991 EA Ford motor vehicle.
9)That the husband retain for his sole use and enjoyment the tools and equipment situated in the shed at 18 M Court, B and the wife retain for her sole use and enjoyment all other chattels situated at 18 M Court, B.
10)That within 14 days from the date hereof, from the monies currently held in National Australia Bank account in the name of Sivyer & Associates Trust Account ATF B&G W, the following payments be made;
a)The amount required to pay out the joint personal loan of the parties held with ACCU;
b)The amount required to pay out the joint overdraft held with ACCU; and
c)The amount required to pay out the joint overdraft held with AUSDEF;
11)That following the payments described in order 8 herein, the balance of monies held in the said National Australia Bank account be paid to the wife.
12)That the parties do all things required and sign all documents necessary to close the ACCU joint personal loan account, the ACCU joint overdraft account and the AUSDEF joint overdraft account simultaneous with the said accounts being paid out.
13)That unless otherwise specified in these orders and except for the purpose of enforcing the payment of money due under these or any subsequent orders:
a)Each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of this order and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements;
b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
14)That in the event the husband or the wife refuses or neglects to sign any document necessary to implement these orders within 7 days after same shall have been tendered to him or her for that purpose then in such an event a Deputy Registrar of the Federal Magistrates Service is hereby appointed to sign all deeds and any documents in the name of the defaulting party and do all such acts and things necessary to implement these orders.
When the matter came on for hearing on the 14th of February 2002, it became apparent that the husband had concentrated all his efforts into preparing his application in respect of the children. He had filed a ninety seven page affidavit on his behalf but this document contained no evidence in respect of property matters.
As a result, after the children’s issues were resolved by consent on 14 February 2002, the property applications were adjourned to enable the husband to prepare an affidavit of evidence in respect of this aspect of the case.
The respective applications of the parties had been fixed for hearing since 16th November 2001 and both the husband and the wife indicated to the Court that they wished to finalise the matters between them as expeditiously as possible.
On the 15th of February 2002 the husband filed an affidavit setting out his evidence in respect of the property application. Attached to this affidavit was the following statement, which I gather is the orders the husband seeks from the Court in respect of the competing applications:
“Financial support
That the father, pay such child support from his employed wage only, in accordance with CSA guidelines. That child support is to be paid by allotment to the mothers nominated bank account each fortnight or at such time that the father receives his employed wage.
That the father, provide to the mother a copy of his employee group certificate each year to determine the rate of child support payable.
That the father provide by order his Defence Force Retirement and Death Benefits pension towards the mortgage on 18 M Court B, with the mother making up any difference and paying any other such payments as rates, electricity and water.
That the property at 18 M Court, B, be maintained as joint property for the benefit of the children as either a residence or investment property. In the event of the disposal of that property, any equity in the property be equally split between the father, mother and both children. The children’s interest being invested until they reach the age of eighteen years. Or by agreement of the father and mother in the event of a medical emergency or to assist in the children’s further eduction.
That the property located at 18 M Court, be valued as at 14th February 2002 and the equity of each parents share be determined as the financial resource of that parent.
Property
That either party, be given the option of retaining all property, being real property, brought into the marriage.
That all property, being real property located at 18 M Court, B, be determined as having no financial value as personal assets.
That the mother, retain all white goods and household furniture located at 18 M Court for the benefit of the children.
That the father retains all power tools and exercise equipment.
That the father be given the television he used whilst living unaccompanied in Sydney 2000/2001.
That the father be provided and equal amount of family mementoes. Mementoes include photographs, pictures, videos and any other non-essential items.
That the father be given the motor vehicle which is joint property.
Superannuation
That all monies currently held in trust, be returned to the applicant father as the property of the father.
The father be allowed to retain $20,000.00, the remainder is to be used to reduce joint debts, as previously agreed through correspondence recorded on Sivyer and Associates letterhead. Any remainder to be used for the benefit of the children such as the purchase of Coles Myer shares, providing an ongoing financial benefit through shopper discounts, at that the be denied from disposing of the those shares.
That the father provide, to the mother copies of any group certificate or financial documentation relating to any superannuation accrued during the marriage and required as part of a tax return.
That the applicant provide the respondent with $8540.28 plus the accrued percentage/interest only as personal superannuation on maturity of the applicants superannuation policy with MLC Masterkey Super Fund. The applicant is to provide the respondent with yearly financial updates of the policy.
That the respondent, provide that applicant father $17,600.00 which is G’s component of our joint financial commitments since separation.
That as at 17:21 (SA) the ACCU joint account was as follows:
Home loan: $157,360.62
Personal loan $ 18,446.70”
Essentially, I gather that the husband wishes the parties to maintain joint ownership of the former matrimonial home situated at 18 M Court, B. The property to be held in trust by them for the benefit of the children. He further proposes that he contribute his weekly Defence Forces Retirement and Death Benefits pension (DFRDB) towards the mortgage due on the property. He also seeks that he use his lump sum DFRDB payment to reduce joint debts but seeks to retain the sum of $20,000.00 from the lump sum for his own use.
Brief background
The husband was born on the 10th of September 1962. The wife was born on the 5th of August 1971. The parties began to live together in May of 1991 and married on the 30th of October, 1992. They first separated in May of 2000 but reconciled between the 16th of April 2001 and the 28th of June 2001. The husband left the matrimonial home on the 30th of June 2001. The marriage between the parties has been dissolved.
Other relevant matters
On the 11th of July 2001 Federal Magistrate Mead made the following order:
That until further order the husband make all repayments due and owing to Australian Central Credit Union pursuant to the mortgage registered on title of the real property situated at 18 M Court, B in the Northern Territory of Australia.
On the 25th of September 2001 the husband filed a form 63 application in this Court. As a result of this application Federal Magistrate Mead made the following orders on the 26th of September 2001:
That pursuant to section 140 of the Child Support Act the operation of any existing child support assessment in favour of the wife and the collection by the Child Support Agency of any monies due under such assessment or in relation to any arrears accrued in relation to such assessment be stayed during the period of the adjournment.
This order was confirmed on the 23rd of October 2001 and is still in force. The husband has continued to make the mortgage payments in respect of the property at 18 M Court, B as they have fallen due. The wife, B and C have continued to occupy the premises until now. The husband has also paid the amounts due in respect of personal loans due to Australian Central Credit Union and AUSDEF Credit Union. The husband has not paid any child support in respect of B and C.
In his form 63 application filed on 25 September 2001 the husband sought the following orders:
1)That the Child Support Agency be prevented from obtaining child support by direct debit. And that the Child Support Agency recognise that the order made by Federal Magistrate Mead on 11th July 2001, be taken as fair and reasonable child support payments. That any monies collected after the 23rd September be returned to me.
2)That the order made by Federal Magistrate Mead be amended to include the words “the husband continue to make all payments due to Australian Central Credit Union and payments relating to health cover in lieu of child support, until further ordered.”
By this I take it that the husband means that the monies he has paid to Australian Central Credit Union by way of mortgage payments and in respect of the personal loans should be regarded as payment of child support.
On 29 October, 2001 a senior case officer of the Child Support Agency fixed the husband’s annual rate of child support from 1 October 2001 until 31 December 2001 at the rate of $3,900.00.
In mid January of 2002 the husband received the sum of $65,012.00 by way of part settlement of his entitlement to benefits as a result of his membership of the DFRDB. On the 22nd of January 2002 an order was made by this Court directing that this sum be held in the trust account of the wife’s solicitors pending finalisation of this matter.
Principles to be applied
Section 79 of the Family Law Act defines the Courts powers in determining applications for property settlement. Subsection 2 of section 79 defines 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 and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b)The contribution made by a party to the welfare of the family including any contribution made in the capacity of home maker or parent;
c)The effect of any proposed order upon the earning capacity of either party;
d)The matters referred to in sub-section 75(2) as far as they are relevant;
e)Any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f)Any child support payable.
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 16 Fam LR 1 the Full Court said at page 23:
“A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in Section 79 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 paragraphs (a) – (c) of Section 79(4) and then consider the matters in paragraphs (d) – (g), more especially paragraph (e) which takes up by reference the provisions of Section 75(2) which are generally referred to as the “Section 75 Factors”.
The Court is therefore required to determine the following matters:
a)The assets, liabilities and financial resources of the parties to the marriage;
b)The relevant contributions of each of the parties;
c)The means and needs of each of the parties and the other prospective components to the claims of each of the parties pursuant to section 75(2) and then to identify if any alteration should be made to the entitlements of either of the parties having regard to the Section 75(2) factors;
d)After determining the entitlement of each of the parties in relation to the alteration of property interests, the Court must then consider any application for spousal maintenance if relevant.
Evidence
The wife relied on the following affidavits:
a)Of herself filed 6th February 2002
b)Of an actuary A A filed 14th February 2002
The husband relied on the following affidavit:
a)Of himself filed 15th February 2002
In addition the husband gave sworn oral evidence from the witness box. He also cross-examined the wife, albeit very briefly. Counsel for the wife cross-examined the husband.
In my view, both the husband and the wife were essentially truthful witnesses. However, the husband continually presented himself as a hapless victim of the Family Law system. As a result his evidence was suffused by a flavour of self-righteous hyperbole. Although he was an honest witness I did not find him to be a particularly reasonable one, though this was the intent of his evidence. On the other hand I found the wife to be calm, sensible and willing to compromise. Where there is a difference between the evidence of the husband and the wife, I prefer the evidence of the wife.
Contributions during cohabitation
(a) Property at commencement of cohabitation
At the commencement of the marriage the parties both owned modest assets. The husband owned a car and a motor cycle and some household goods. The husband also had a debt of approximately $2,000.00 to the Police and Nurses Credit Union. The wife estimates the value of these assets as being $7400.00. The wife owned a car and some household goods. She estimates the value of these assets as approximately $9000.00.
(b) Work history of the parties and acquisition and sale of property
At the time the parties met both were employed by the Royal Australian Army. The wife joined the Army in August 1990. She worked as a clerk. The husband joined the Army in July of 1981 as a private. He was a member of the Army until the 31st of December, 2001 during which time he was in the main a military policeman. When he left the Army he had attained the rank of sergeant.
The husband was a private from 1981 until 1988. He resigned from the Army briefly in 1990 but rejoined approximately six months later. In order to avoid losing superannuation benefits as a result of this resignation he paid an additional amount of $29.00 per fortnight into his superannuation fund until he finally resigned from the Army in December of 2001. The husband was promoted to the rank of corporal in 1988 and became a sergeant in 1998.
The parties first child B was born on the 27th of August 1992. Following his birth the wife took maternity leave for five months and then returned to her previous employment. However she left the Army in mid 1993. At that time she received a pay out of her superannuation entitlement of approximately $5,000.00. I accept her evidence that this sum was used to pay family debts.
As a result of the husband’s employment in the Army it was necessary for the family to move from posting to posting within Australia. In December of 1993 the husband was posted to T. The wife worked as a family day carer in T on a part time basis. She commenced this work in 1994 and continued to be so employed until late 1995.
In late 1995 the husband was posted to S in New South Wales. The parties second child C was born in S on the 28th of June 1996. In October of 1997 the husband was posted to Darwin. Shortly afterwards in November 1997 the wife commenced employment with B W on a casual basis. Thereafter she obtained part time retail work with S, W and B. I accept her evidence that her work was casual and irregular and did not result in her receiving a large salary. The wife worked for B from November of 1998 until August of 2000.
As has been already indicated during his twenty years of service with the Royal Australian Army the husband progressed through the ranks obtaining the rank of sergeant at the time of his discharge on the 31st of December 2001. I accept the evidence of the husband that he worked hard to advance his career during this time. In particular he chose to seek posting to field units. This meant he was away from home and his family for up to six months each year. However he received an extra salary of approximately $5,000.00 per annum. He was attached to field units for all of the years of the marriage apart from three years. I accept that all his wages were applied to provide for the needs of his wife and family.
The parties purchased the former matrimonial home situated at 18 M Court, B in July of 1999. The purchase price was approximately $165,000.00. The parties borrowed ninety five per cent of the purchase price and associated costs from the Australian Central Credit Union.
Neither party provided a current valuation of the property. The husband believed that property values had fallen somewhat in the Palmerston area since the house was constructed. Both the husband and wife accepted that the property was now worth in the vicinity of $160,000.00. An amount of $157,360.62 is currently owed by the parties to Australian Central Credit Union in respect of the mortgage secured against the property. Accordingly if the property is sold in the near future it is unlikely that the proceeds of sale will fully discharge the liability.
The property was newly constructed when the parties moved into it and as a result the garden had to be planted and a fence constructed around the property.
At the time the parties separated they owned a 1991 EA Ford motor vehicle. This vehicle is not currently operative and is being stored at 18 M Court, B. It has a broken hose and leaking motor. Mrs W estimates that it will cost approximately $1,000.00 to repair it. The car is estimated by the wife to be worth approximately $1,500.00. The husband believes it is worth less but that it has some value as a trade-in.
The parties also own furniture and whitegoods. No formal valuation of these items was provided by either party. The value of furniture and household goods in the possession of both parties is estimated by the wife as being approximately $4,000.00. The husband has indicated that he wishes to have some of the chattels and furniture, in particular the exercise equipment and camping equipment that the parties own.
The parties also own a box trailer with crate. It is also stored at 18 M Court, B and is estimated by the wife to be worth $1,500.00. Again neither party provided evidence in respect of this valuation.
It is common ground between the parties that they are currently under some financial pressure because of debts jointly incurred during the marriage. Of these the major commitment is the mortgage to the Australian Central Credit Union in respect of 18 M Court, B. As has already been indicated, at present an amount of $157,360.62 is owing in respect of the mortgage.
In addition the sum of $18,445.70 is owed by the parties to the Australian Central Credit Union by way of a personal loan. This sum was borrowed to consolidate earlier debts and to purchase a spa for installation at M Court.
The husband was discharged from the Army on the 31st of December 2001. The discharge was against his wishes. A finding was made by the military authorities that he was psychologically unfit to be a soldier. The husband does not accept this finding and gave evidence that it is currently subject to challenge with the Military Complaints Tribunal. He attributes his psychological difficulties to an acute stress reaction following the break down of his marriage. At the time of his discharge from the Army he received a per annum salary as follows:
| 1) Base salary | $39,638.00 |
| 2) Service Allowance | $ 6,866.00 |
| 3) District Allowance | $ 1,690.00 |
| 4) Uniform Allowance | $ 484.00 |
| TOTAL | $48,678.00 |
The husband has been a member of the DFRDB (the Army’s superannuation scheme) during his twenty years service with the Army. He maintained his membership of the scheme in spite of his brief resignation from the Army in 1990.
As a result of his discharge from the Army the husband’s entitlements pursuant to his membership of the scheme vested. He elected to take the maximum lump sum available to him together with a CPI linked pension for the rest of his life. Currently the pension is $540.54 per fortnight or $14,092.61 per annum.
As a result of this election he received the sum of $65,012.00 after payment of tax. This sum was paid into a joint bank account of the parties and subsequently withdrawn by the wife against the wishes of the husband. As a result on the 22nd of January 2002, I made orders placing the money in the wife’s solicitors trust account pending further order. This sum is the only substantial asset of the parties at the present time.
Since the parties separated the wife has sold the spa for the sum of $2,800.00 and a fridge and freezer for $500.00. These sums have been used by her to pay debts and living expenses incurred since separation. These expenses have included car registration, school fees, electricity and other general living expenses including food.
c) Indirect contributions to the improvement of M Court
I accept both parties planted palms in the garden at M Court and that both were involved in constructing the fence there. I also accept that the husband did some painting at the property. However, sadly, none of these labours have contributed to any increase in the value of the property.
Since separation the wife has expended the sum of $3,000.00 in concreting the driveway at the property. She used her tax refund for this purpose. Once again it can not be said that this expenditure has significantly increased the value of the property concerned.
d) Contributions by way of home maker and parent
In my view the evidence indicates the wife undertook the role of primary care giver to the children for long periods of time whilst the husband was away working.
The husband was in paid employment for the whole of the marriage. For much of that time he worked at locations remote from the family home for considerable periods of each year. As a result, by necessity it fell to the wife to perform the role of homemaker and primary carer for the children in his absence. The husband is not to be criticised for this. The parties jointly decided that he would seek placement in field units so that he would receive a higher salary. The aim of this was to ensure greater financial security for the family.
Matters relevant between separation and trial
Since separation the husband has made all mortgage repayments and payments due in respect of the personal loan to the Australian Central Credit Union. However he has not paid any child support in respect of B and C. The wife has continued to occupy the property with the children. She has paid the rates on the property and other outgoings as they have fallen due. As a result the husband has been forced to obtain rental accommodation.
The wife has purchased a 1998 Daewoo Lanos motor vehicle. The vehicle is worth $8,000.00 and is subject to a loan in an amount of $14,000.00.
The husband’s present circumstances and future prospects
The husband is aged 39 years and 5 months. He chose not to call any evidence regarding his current psychological state of health other than that he deposed that he does not accept the Army’s finding that he is psychologically unfit to be a soldier. He is challenging this decision and wishes to be reinstated in the Army.
The husband deposed he suffered ankle and back injuries whilst in the Army. His ankles were injured in the period from 1982 to 1985 and his back in the period from 1984 to 1985. No formal medical evidence was presented in respect of these injuries. However the husband conceded that he took no medication for them other than panadol. On the limited evidence before me it did not appear to me that these injuries are likely to be significant in preventing the husband in obtaining employment in future. On the contrary it seemed to me that he had displayed some aptitude in obtaining fresh employment since his discharge from the Army.
The husband gave evidence that he has had limited secondary school education, leaving school after completing Year 10. During his time in the Army he has been a military policeman and had been involved in general duties and in particular in writing procedure manuals. As a result he has gained clerical and computer skills.
Following his discharge from the Army the husband obtained work in the Northern Territory Public Service. He approached the Commonwealth Rehabilitation Service following his discharge from the Army and had obtained resettlement training with the Northern Territory Department of C. He had been retained as a trainee project officer with that Department at an AO5 level for approximately one month.
Thereafter he had obtained a position as an assets clerk with the Northern Territory Department of C and I S on an AO2 level. He had obtained information regarding this position from the internet and had submitted an application for the position which he had obtained after being interviewed for it.
I accept the husband’s evidence that he finds this position boring and undemanding for him. He is involved in clerical work and computer data entry. The position is currently a probationary one but he expects to be approved for it following completion of his probationary period of six months. He is currently receiving a salary of $30,847.00 per annum. This equates to a fortnightly income of $890.00 net per fortnight. He is currently paying rent of $300.00 per fortnight.
During his evidence the husband indicated his pride in his physical fitness during the time he had been a member of the Army. He is also desirous of receiving weights and other fitness equipment as part of the orders made by the Court in these proceedings. As a result of this evidence it seems to me that the husband is generally in a good state of health and can expect to retain his position in the Northern Territory Public Service. Further I have no reason to believe that he will not advance in the Public Service. His experience in the Army, it would appear to me, would be of assistance to him in the Northern Territory Public Service. The husband indicated in his evidence that he is interested in other positions that may arise from time to time in the Northern Territory Public Service.
As has already been indicated the husband is in receipt of a CPI indexed pension for the rest of his life as a result of his military service. At the present time the sum he receives by way of this pension is $14,092.61. On any view this is an entitlement of great significance in this case and in my opinion goes a long way to ensure that the husband has a large measure of financial security for the rest of his life.
The wife provided actuarial evidence regarding of the value of this pension. This evidence was in the form of the affidavit of Allan Archer which was filed on her behalf. On the assumption that Mr W should attain on average life expectancy, Mr A was of the opinion that the value of the pension was approximately $217,400.00 provided current rates of taxation continue. I accept Mr A’s evidence in this regard. Mr A’s evidence was not challenged by the husband.
The husband gave evidence that he had been required to roll over a proportion of his military superannuation. This amounts to the sum of approximately $17,000.00 which he plans to place with the MLC Superannuation Fund.
Wife’s present circumstances and future prospects
The wife is aged 30 years old. She is in good health. As a result of the consent orders that were made on the 14th of February 2002 she has the primary responsibility for caring for the two children of the marriage B and C.
I accept the wife’s evidence that she has not been employed on a full time basis since 1993 and that since that time she has been predominantly engaged in home duties.
Since leaving full time employment the wife’s only work has been on a part time and casual basis in retail sales. She has no formal skills to speak of. At the present time her only source of income is a sole parents benefit of $728.00 per fortnight. She has received no payments of child support from the husband. I accept her evidence that at the present time her weekly expenses exceed her income. On any view her current financial position is not a secure one.
In future she can expect to obtain some part time work in either retail sales or clerical fields.
I accept the wife’s evidence that she has limited entitlements to superannuation at present of less than $1,000.00.
Assets and liabilities
Assets
I find that the assets available for distribution are as follows:
| 1) 18 M Court, B | $160,000 |
| 2) Furniture and whitegoods (in the possession of both parties estimated value) | $ 4,000 |
| 3) 1991 EA Ford | $ 1,500 |
| 4) Box trailer | $ 1,500 |
| 5) DFRDB lump sum | $ 65,012 |
| TOTAL | $232,012 |
I find that the relevant liabilities to be taken account in the division of that sum and items are as follows:
| 1) Mortgage to ACCU | $157,360.62 |
| 2) ACCU personal loan (including overdraft) | $ 18,445.70 |
| 3) AUSDEF Credit Union overdraft | $ 980.61 |
| TOTAL DEBTS | $176,786.93 |
In order to avoid distortions and undue complications to the division of these assets I have refrained from including in the list of assets and liabilities the following items:
1)The wife’s Daewoo motor car acquired after separation and the debt related to it;
2)The husband’s debt to the Police and Nurses Credit Union;
3)The husband and wife’s debts to credit cards acquired after separation.
Assessments of contributions to the time of separation
The parties were in a relationship for approximately ten years. They had modest assets at the commencement of their relationship. Regrettably at the present time the only item of any significance that remains to be divided between them is the husband’s lump sum entitlement to superannuation. The husband began to acquire this sum at the outset of his military service in 1981. Accordingly, he acquired his entitlement to a large proportion of it prior to the time he met the wife. Sadly the parties have little equity in the former matrimonial home.
Both parties worked during the relationship, the wife only leaving the work force when the first of the children was born. At other times she was in casual and/or part time employment fitting this around her responsibilities to her young family of two children.
The husband worked hard and was often away from home for lengthy periods of time. During this time the responsibility of the wife to manage the household was increased. As a result I have no doubt that the wife was the major contributor to the day to day care of the family. This was inevitable given the long periods of time the husband was away from home working. I mean no criticism of the husband in this regard. This was the choice of the parties.
During the marriage the husband earned significantly greater sums than the wife. I accept that his entire income was devoted to the financial needs of the family.
During the marriage the wife contributed the sum of $5,000.00 of her accrued superannuation to discharging jointly incurred debts and liabilities. In addition the husband contributed some monies received by him as compensations for injuries sustained to his ankles as a result of his military service.
It seems to me that during the marriage both parties contributed to the acquisition of property in their different capacities as a breadwinner on the part of the husband and as a homemaker on the part of the wife.
Were it not for the substantial contribution by the husband in respect of his superannuation prior to the commencement of the marriage I would have assessed the contributions of the parties as being roughly equal. However because of this factor I believe that some allowance should be made in respect of this in favour of the husband.
Taking all these matters into account leads in my view to an assessment of contributions up to the time of separation of 55/45 percent in favour of the husband.
Assessment of section 75(2) factors
The husband is aged 39 years and the wife is aged 30 years. In my view they are both in good health. However it seems to me that the husband’s employability and therefore his earning capacity is significantly higher than the wife’s. The husband has secure employment in the Northern Territory Public Service. In my view it is to be expected that he will maintain this employment and will secure advancement within the Public Service.
The wife has the primary care of two children who are aged 9 and 5. She has no special skills to speak of. I would anticipate that the only work she would be able to obtain in the next few years is in part time retail sales or clerical work. At the present time she is in receipt of social security payments.
Whilst it is to be anticipated that the husband will make a large financial commitment through the payment of child support to B and C and would have regular contact to the children, in my view the greater burden for the up bringing of both children will fall with the wife.
In addition, the husband has significantly greater entitlements in future to superannuation. As a result of his compulsory roll over of superannuation from his Army service the husband has a basis on which to build for his future. He is also likely to remain in full time paid employment.
However in respect of the future positions of the parties by far the greatest discrepancy in their positions is in respect of the husband’s entitlement to a CPI linked pension for life. As I have indicated I accept Mr A’s evidence in respect of the approximate value of this pension to the husband. It represents a sum that is approximately four times the net value of assets currently available between the parties for distribution. Its possession by the husband will ensure that no matter what his future position is in the work force he will always have a guaranteed income. This is not the position in respect of the wife.
In my assessment, bearing in mind these factors and in particular the greater earning capacity of the husband and his receipt of the CPI indexed pension for life this calls for a further adjustment in favour of the wife of 30%. This results in an apportionment of the net assets of the marriage of 75% in favour of the wife and 25% in favour of the husband.
Conclusions
The conclusions that I have reached mean that the wife will receive 75% of the net matrimonial assets. The husband has sought orders that would result in the former matrimonial home at 18 M Court, B being jointly retained by the parties. Given the parties current financial circumstances and the wife’s wish to make a clean break of her financial relationship with the husband this in my view is not a realistic proposition.
The wife has indicated that she would be prepared to transfer her interest in the former matrimonial home to the husband on the basis that he assumes responsibility for the mortgage and all outgoings in respect of the property. The husband has indicated in his evidence that he is not interested in this proposition. However I propose making orders that will allow the husband to accept the transfer of the house to him if he so wishes after he has considered the matter further. At the present time it seems likely that if the property is sold that the costs of the sale when combined with sum required to discharge the mortgage on the property will exceed the sum received on the sale. If this is the case the parties should bear equally the loss.
The wife has agreed that the husband should receive a number of items of property which are currently in her possession at 18 M Court, B. These items are as follows:
1)One sleeping bag;
2)Two tents;
3)Exercise equipment;
4)Bicycle;
5)Tools and shelving;
6)The Panasonic television set;
7)The double and single seater lounge;
8)The dining table and chairs;
9)The three piece computer desk; and
10)The single bed.
Formal orders should be made in respect of these items. The husband should also receive the EA Ford motor vehicle and the box trailer currently at M Court.
The parties also agree that their joint liability to the Australian Central Credit Union in respect of the personal loan and overdraft to AUSDEF should be discharged from the monies currently held in trust received in respect of the husband’s lump sum superannuation entitlement. Otherwise the parties should remain responsible for other debts incurred in their individual names.
At the present time, after subtracting the current liabilities of the parties away from the total amount of the parties assets there is left the amount of $55,225.07 available to be distributed between them. 75% of this sum amounts to $41,418.80 and 25% of this sum amounts to $13,806.27.
I concede that this is a somewhat artificial calculation given the amount of the parties’ indebtedness will change from time to time and that the amount of their equity in the property at M Court is small.
If the husband wishes to accept the transfer to him of M Court it will be necessary for him to be credited in respect of the equity in the property, the value of the EA Ford motor vehicle and the box trailer as well as the items of personal property in his possession. This amounts to the sum of $7,639.38. Accordingly, if he accepts the transfer of the property he will be entitled to receive the sum of $6,166.89 of the funds currently held in the wife’s solicitors trust account after payment from this sum of the total amounts due to the Australian Central Credit Union and the AUSDEF Credit Union.
After taking into account the value of the chattels held by the wife ($2,000.00) she would be entitled to receive the sum of $39,418.80.
If the husband elects to sell the M Court property, as the wife wishes, the possible loss resulting from this sale must be borne by both parties from the monies currently held in trust.
On either the transfer of the property to the husband or its sale to a third party, the order of Federal Magistrate Mead preventing the collection of child support must be discharged and from that date I propose making an order that would permit the wife to seek an administrative assessment of child support on the basis of the husband’s current income.
I propose making orders that would fix the amount of child support payable by the husband prior to this date as being nil. However, until either the property is transferred to him or it is sold the husband must make all mortgage repayments as they fall due.
For all these reasons the orders of the Court will be those as set out at the commencement of this judgment. In my view they represent a just and equitable division of the property of the parties.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Brown FM
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