WEBLEYS & WEBLEYS
[2020] FCCA 946
•30 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEBLEYS & WEBLEYS | [2020] FCCA 946 |
| Catchwords: FAMILY LAW – Property settlement – 22 year relationship – wife’s inheritance – wife’s insurance payment – wife’s health and disability. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2)(o), 79. |
| Cases cited: Stanford & Stanford [2012] HCA 52 In the Marriage ofHickey (2003) 30 Fam LR 355 NHC v RCH (2004) 32 Fam LR 158 Calder & Calder (2016) 56 Fam LR 1 Fields & Smith (2015) 53 Fam LR 1 Clauson v Clauson (1995) 18 Fam LR 693 In the Marriage of Dickson (1999) 24 Fam LR 460 Hoffman & Hoffman (2014) 51 Fam LR 568 Lee Steere (1985) FLC 91-626 |
| Applicant: | MR WEBLEYS |
| Respondent: | MS WEBLEYS |
| File Number: | ADC 1261 of 2016 |
| Judgment of: | Judge Cole |
| Hearing dates: | 16 & 17 May 2018, 21 & 22 May 2019 and 18 July 2019 |
| Date of Last Submission: | 31 October 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 30 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGinn |
| Solicitors for the Applicant: | Mead Robson Steele |
| Counsel for the Respondent: | Ms Pangallo |
| Solicitors for the Respondent: | Bartel and Hall |
ORDERS
That the wife pay to the husband the sum of TWO HUNDRED AND THIRTY-SIX THOUSAND SIX HUNDRED AND SEVENTY DOLLLARS AND FIFTEEN CENTS ($236,670.15) to the husband’s solicitors’ trust account for and on behalf of the husband within ninety (90) days.
That in default of the payment of the sum referred to in paragraph 1 herein that the parties do all things and execute all documents necessary to cause the property situate at B Street, Suburb C being the whole of the land comprised and described in Certificate of Title Register Book Volume ... Folio ... to be sold upon such terms and conditions as agreed between the parties or in default of an agreement as determined by this Honourable Court and to cause the net proceeds of sale to be applied as follows:
(a)In payment of the costs and expenses of sale;
(b)In payment of any loan secured by mortgage encumbering the said property and in discharge of the said mortgage;
(c)In payment to the husband of any sum outstanding pursuant to paragraph 1 herein together with the interest calculated from the date of default to the date of payment at the rate of interest specified in the Rules of this Honourable Court as shall apply from time to time; and
(d)The balance to the wife.
That the wife do make available for collection by the husband at the said property within thirty-five (35) days at such time as is agreed between the parties or in default of agreement as fixed by this Honourable Court the items referred to in paragraph 259 of the husband’s affidavit filed on 27 April 2018 in good order and repair (fair wear and tear excepted).
That upon payment in full of the sum referred to in paragraph 1 herein then and in such event the husband do all things and execute all documents necessary to remove any caveat he has placed over the title of the said property.
That subject to these Orders each party do otherwise retain those items of real and personal property in their respective possessions free from any claim or entitlement of the other party.
That each party do all things and execute all documents necessary to give effect to these orders.
That all outstanding applications are otherwise dismissed.
That there be liberty to apply as to consequential orders.
IT IS NOTED that publication of this judgment under the pseudonym Webleys & Webleys is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1261 of 2016
| MR WEBLEYS |
Applicant
And
| MS WEBLEYS |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband seeks an order for the division of the parties’ assets. The wife opposes this seeking that the application be dismissed.
The parties married in 1992 and separated on 22 November 2014.
There is one child of the marriage namely Mr X who was born in 1996. Mr X is aged 24 this year and at the time of trial was engaged as his mother’s carer.
The husband has a child from his first marriage namely Mr D who is aged 34 this year. The wife has a child Ms E from her first marriage who is aged 33 this year. Mr D and Ms E each live independently.
The evidence
The husband relies on:
a)His amended initiating application filed on 20 July 2016;
b)His affidavit filed on 27 April 2018;
c)His financial statement filed on 27 April 2018; and
d)The affidavit of Ms Webleys (his wife) filed on 27 April 2018.
The husband and Ms Webleys gave evidence and were cross-examined.
The wife relies on:
a)Her further amended response filed on 14 May 2018;
b)Her trial affidavit filed on 27 April 2018;
c)Her financial statement filed on 27 April 2018;
d)The affidavit of Mr F (physiotherapist) filed on 26 April 2018;
e)The affidavit of Dr G (occupational physician and pain physician) filed on 26 April 2018; and
f)The affidavit of Ms H (financial advisor) filed on 14 May 2018.
The wife and Mr F gave evidence and were cross-examined. Dr G and Ms H were not required.
A number of objections were raised to the evidence provided in the affidavit. It was agreed that this would be dealt with should any reliance be placed upon the controversial material in my Reasons.
The proceedings commenced on 16 May 2018. At the conclusion of the two days allowed for hearing, counsel requested a further two days and time was allocated on 15 and 16 November 2018.
On 15 November 2018, noting that the wife was currently in hospital having sustained injuries following a fall, the trial was adjourned to 21 and 22 May 2019.
On 22 May 2019 a further day was requested and the trial was adjourned to 18 July 2019.
On 18 July 2019 evidence concluded with orders that the parties file written submissions.
Written submissions were finally concluded on 31 October 2019.
Agreed facts
The parties in the course of the hearing, prepared a schedule of agreed facts which was subsequently tendered as Exhibit G. Some of those matters have been previously referred to.
There is no dispute (using the terminology adopted by the parties) that:
a)At the commencement of cohabitation the wife was working as a health care worker part-time and the husband was working as a labourer;
b)The wife received $75 per week for Ms E’s maintenance from her father;
c)At cohabitation or soon after the wife was convicted of Centrelink fraud and was required to pay money to the Commonwealth;
d)In 1990 the parties agreed to buy J Street, Suburb C from the wife’s mother. The purchase price was $67,000 (with vendor finance) and the parties borrowed a further $60,000 to renovate/extend the J Street property;
e)Ms E resided with the parties during their relationship;
f)The husband’s employment took him away from the family home;
g)In 1998 the husband received a redundancy payment of $25,000;
h)In 2000 the wife ceased employment;
i)The wife received WorkCover based on two days per week;
j)In 2001 the wife received a s.43 Workers Compensation Act 1987 payment of $48,022;
k)In 2002 the parties sold J Street, Suburb C;
l)In 2002 the parties purchased vacant land at Suburb K and built upon it. They lived in a rental property whilst the property was built. Funds were borrowed from the Commonwealth Bank to finance the building of the property and the mortgage was in joint names;
m)In 2004 the husband ceased employment with Employer L. The husband subsequently obtained employment with Employer M;
n)The parties sold the Suburb K property in 2004 and applied part of the proceeds to car purchases, and purchasing furniture and effects;
o)From 2004 to 2006 the parties rented accommodation in Suburb N, they then moved into the City O property;
p)In 2006 the wife’s father Mr P passed away. The wife received an inheritance from her late father’s estate which included:
i)Shares subsequently sold totalling $201,269; and
ii)A share in property sold in 2012 realising $108,392 for the wife;
q)In 2011 the wife’s mother passed away. The wife received from the estate:
i)The property situated at B Street, Suburb C with an agreed value of $850,000; and
ii)Cash in the sum of $47,437;
r)In 2013 the wife suffered a stroke. She was admitted to the Q Hospital;
s)In 2013 she was admitted to the repatriation unit. A wheelchair was and is required for her mobility;
t)In 2013 the parties sold the City O property for $405,000. A joint mortgage was obtained by the parties over B Street, Suburb C to fund renovations. The renovations were completed by builder Mr R;
u)On or about that date the wife made a claim for Total Permanent Disability insurance;
v)In mid 2014 the wife commenced receiving individualised funding with Disabilities SA;
w)In mid 2014 the husband was transferred with work to Suburb C;
x)In late 2014 the husband took sick leave for stress and depression;
y)On 22 November 2014 the parties separated;
z)In early 2015 the wife received redemption of WorkCover payments of $103,522;
aa)In mid 2015 the wife received from the superannuation fund a Total Permanent Disability payment for the sum of $54,541;
bb)In mid 2016 the wife received the sum of $414,902 from the Total Permanent Disability insurance under her superannuation policy; and
cc)On receipt of the $414,902, the wife attended to the discharge of the total of the balance of the loan secured by the mortgage over the former matrimonial home by way of a payment of $250,000 in mid 2016 and a payment of $78,532 in late 2016 (Exhibit G). The receipt of monies was effected by the wife through the S Bank every day account number ...01.
The law
The wife submits that it is not just and equitable for the Court to make an order altering the interests of the parties in the matrimonial property.
I am referred to the decision of the High Court in Stanford [2012] HCA 52. In that matter, the majority of the Court stated:
In every case in which a property settlement order under s.79 is sought, it is necessary to satisfy the Court that, in all the circumstances, it is just and equitable to make the order.[1]
..it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying according to the ordinary common-law and equitable principles, the existing legal and equitable interests of the parties in the property.[2]
Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is just and equitable to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist.[3]
…whether making a property settlement order is just and equitable is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in the marital property which is fixed by reference to the various matters set out s.79(4).[4]
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of the choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of the property by the husband and wife.[5]
[1] Stanford [2012] HCA 52, 35.
[2] Stanford [2012] HCA 52, 37.
[3] Ibid, 39.
[4] Ibid, 40.
[5] Ibid, 42.
The parties have agreed on the identification and value of the pool and tendered an agreed schedule of assets and liabilities which was marked Exhibit D. That is as follows:
| Schedule of Assets and Liabilities at Trial | ||||
| Assets | Owner | Value | Notes | |
| 1. 1. | B Street, Suburb C | W | $1,200,000 | Joint Valuation-m3 |
| 2. 2. | S Bank – Everyday Acc ...01 | W | $331 | Agreed |
| Assets | Owner | Value | Notes | |
| 3. 3. | S Bank – Disability SA ...26 | W | $2,068 | Agreed |
| 4. 4. | S Bank – Online Saving ...33 | W | $642 | Agreed |
| 5. 6. | Motor Vehicle 1 | W | $24,040 | Add back sought by husband (subsequently conceded by wife) |
| 6. 7. | Household contents | W | $9,730 | T Valuers May 2017 |
| 7. 9. | Commonwealth Bank Smart Access | H | $5 | |
| 8. 10. | Motor Vehicle 2 | H | $6,000 | Agreed |
| 9. 11. | Household contents | H | $8,050 | U Valuers May 2017 Agreed |
| 10. 12. | 821 V shares (to be reassessed at trial date) | H | $3,589 | @$4.06 |
| 11. 13. | 90 M shares (to be reassessed at trial date) | H | $2,197 | @27.02 Agreed |
| 12. 14. | 6 W Shares (to be reassessed at trial date) | H | $14 | @2.32 26 April 2018 |
| SUB TOTAL ASSETS | $1,256,666 | |||
| Liabilities | Owner | Value | Notes | |
| 1. 1. | Westpac Altitude Card | W | Nil | |
| 2. 2. | BankSA personal loan ...04 ...00 | H | $27,000 | |
| 3. 3. | Go Mastercard | H | $7,663 | |
| 4. 4. | ANZ Platinum Visa | H | $8,856 | |
| 5. | SUBTOTAL LIABILITIES | $43,519 | ||
| TOTAL NON SUPER NET | $1,213,147 |
| Superannuation | Owner | Value | Notes |
| 5. 1. | Super Fund Y (accumulation) | H | $80,447 |
| 6. 2. | Super Fund Z (accumulation) | H | $39,933 |
| 5. | SUPERANNUATION TOTAL | $120,380 |
The evidence is that the parties have accumulated a pool with a net value in excess of $1,200,000.
They have engaged in a number of joint endeavours over the period of their relationship, including the building of houses and the financing and renovation of the Suburb C properties.
They have supported and in turn relied on the support of the other during the period of the relationship including the period in which the wife was a patient at the Q Hospital and subsequently at the Repatriation Unit.
They have a child of the relationship who has grown up under their roof with their support and subsequently post separation with that of the wife.
I would therefore consider that it is just and equitable that consideration be given to the alteration of the parties interests in their property.
In any event I consider that this matter comes well within the parameters of paragraph 42 of their Honours reasons in Stanford [2012] HCA 52 referred to in paragraph 18 of these Reasons.
Steps to be taken
In determining what orders should be made for the division of the matrimonial assets, I would take an approach similar to that set out In the Marriage ofHickey (2003) 30 Fam LR 355 that involves four inter-related steps, namely to:
a)identify and value the property, liabilities and financial resources of the parties at the date of the hearing (“the asset pool”);
b)identify and assess the contributions of the parties within the meaning of s.79(4)(a), (b) and (c) of the Family Law Act 1975 (“the Act”), and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties (“the contributions”);
c)identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g), including the matters referred to in s.75(2) of the Act so far as they are relevant and determine the adjustment (if any) that should be made to the contributions-based entitlements the parties established at step two (“financial resources and needs”); and
d)consider the effect of these findings and determination and review whether the order is just and equitable in all the circumstances of the case.[6]
[6] In the Marriage of Hickey (2003) Fam LR 355, 357.
The asset pool
The pool of assets and liabilities as at the date of separation is set out above. It is noted that the value of some items such as the W Shares ($14) and the Motor Vehicle 1 ($24,040), were conceded during the course of the trial.
There are issues raised about the wife’s expenditure however I propose to address that issue pursuant to s.75(2)(o) of the Family Law Act (supra).
I note that the wife subsequently sought in the written submissions to include a loan of $30,000 obtained to pay legal fees. I accept the husband’s submission that it is consistent with NHC v RCH (2004) 32 Fam LR 158, Calder & Calder (2016) 56 Fam LR 1 that a liability sustained following separation to meet legal fees (as well as a liability for legal fees) should be omitted from the pool of assets and liabilities considered for division. I therefore do not include that amount.
Contributions
Consideration of the contributions of the parties is assisted by reference to the agreed facts.
Counsel for the husband refers me to the matter of Fields & Smith (2015) 53 Fam LR 1 at 168 where the Court said:
…the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the Court to weigh all of the contributions of all types prescribed by s.79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post separation period.
This is a relationship of some 22 years and it would not be unusual in a lot of relationships of this length for the parties to agree that they had contributed equally to the acquisition, conservation and improvement of the matrimonial assets.
The relationship however is marked by a number of factors including:
a)The care of the wife’s child from her first marriage;
b)The wife’s unfortunate health issues starting with her back complaint and then progressing with the stroke that she suffered and its subsequent effects;
c)The impact of the injuries and/or symptoms suffered by the wife on her role in the partnership of the marriage including her ability to contribute to the weekly financial commitments of the family and her ability to provide any non-financial contribution to the acquisition, conservation and improvement of the assets or contribution to the care and welfare of the family simply by reason of her physical inability;
d)The financial contributions received by the wife from the inheritances received from family;
e)The funds received by the wife from her WorkCover claim;
f)The funds received by the wife from her superannuation benefit in respect of her claim for a payout on the basis of the total and permanent disability; and
g)The expenditure by the wife of the funds received by her.
The agreed facts show that at the commencement of cohabitation both parties were working. Ms E resided with the wife and maintenance was being received from the husband.
Shortly after the cohabitation the wife was convicted of Centrelink fraud and was required to repay a sum of $1,200. It is not clear whether she received a fine however she conceded she was required to undertake community service.
The parties joined in purchasing the property at J Street, Suburb C from the wife’s mother for $67,000 (with vendor finance) and separately borrowed $60,000 to renovate and extend that property.
It is acknowledged that the husband’s employment took him away from home which left the wife responsible for the care of the parties’ son Mr X and her daughter Ms E.
In 1990 the husband received a redundancy payment of $25,000. His evidence is he spent $1,000 on fishing equipment with the balance being used to reduce the mortgage owing on the J Street, Suburb C property. He immediately obtained employment with Employer L and was off work for less than a week.
In 2000 the wife ceased employment suffering from ongoing back pain and discomfort which required amongst other things double level spinal fusion. She was further diagnosed of having ongoing pain disorder and major depression. She did not return to work.
Following the discectomy the wife received income maintenance payments from WorkCover. In 2001 the wife received a permanent disability payout on WorkCover for the back injury of $48,022.
There is some controversy over whether the wife’s mother was fully paid for the J Street, Suburb C property. That property was sold in 2002 with the husband stating that from the proceeds of sale, the remaining amount of the loan from the mother was paid out and the wife stating that she received $30,000, effectively gifting the parties the remaining $37,000. In the context of this matter, the significant element is the vendor finance provided by the wife’s mother.
The parties then entered into the joint venture of purchasing vacant land at Suburb K and constructing a house on the land. Additional funds for the construction the property were raised by a joint mortgage from the Commonwealth Bank. There is no dispute that joint funds were used to service the mortgage.
In 2004, the husband ceased employment with Employer L and commenced working for Employer M. The parties sold the Suburb K property, resided in a rental property, and applied part of the proceeds to car purchases and furniture and effects.
I note, from the agreed facts that:
a)In 2006 the wife’s father died and the wife subsequently received an inheritance from his estate. In 2011 the wife’s mother died and the wife received an inheritance from her estate. I will refer to this later.
b)In 2013 the wife suffered a stroke and did not return home until late 2013. On her return home she required a mobility wheelchair.
c)The City O property was sold for $405,000. Around this time the parties obtained a joint mortgage over B Street, Suburb C to fund renovations to the property.
d)The parties separated on 22 November 2014.
e)In early 2015 wife received redemption of WorkCover payments in the sum of $103,522.
f)In mid 2015 the wife received $54,541 from her superannuation policy for total and permanent disability. In mid 2016 she received a further $414,902.
g)In mid 2016 $250,000 of the funds received by the wife were paid to the joint mortgage on the B Street, Suburb C property. In late 2016 a second payment of $78,532 was made discharging the loan.
There is no dispute that the wife received significant funds from her parents’ estates. These have been referred to previously in these proceedings and include:
a)From her father’s estate:
i)Shares subsequently sold totalling $201,269; and
ii)A share in a property sold in 2012 realising $108,392 for the wife.
b)From her mother’s estate:
i)The property at B Street, Suburb C received with an agreed value of $850,000 at the time of transfer to the wife; and
ii)Cash of $47,437.
Little of the funds received remain.
The husband worked throughout the period of the relationship.
The wife did not work for the last 14 years of the relationship. She did receive:
a)WorkCover based on two days per week;
b)Section 43 WorkCover payment of $48,022 in 2001; and
c)Redemption of WorkCover payments $103,522 in early 2015.
The funds received are acknowledged as a contribution to the conservation and improvement of the assets and the welfare of the family.
In addition, the wife received $54,541 and $414,902 from her Superannuation fund for her Total and permanent disability of which $328,532 was used to discharge the mortgage against the property at B Street, Suburb C.
The reason the wife was entitled to receive the WorkCover and Total Permanent Disability payments provides context to these payments. At paragraph 31 of the wife’s trial affidavit she summarised her injuries and complaints as follows:
a)Fractured coccyx and sacrum in 1987;
b)In 1990 severe back pain resulting in L5/S1 laminectomy;
c)Ongoing pain and discomfort in back and legs requiring discectomies in 1998 and 1999;
d)Ongoing back pain discomfort requiring double level spinal fusion in 2000;
e)Ongoing pain disorder and major depression in 2000;
f)Fractured right ankle;
g)2004-2013 teeth extraction resulting in full upper and lower dentures;
h)2013 type II diabetes;
i)2013 stroke (right hemiparesis); and
j)Depression.
Her evidence is that she has limited mobility and has since shortly after her return from hospital used a powered wheelchair. She has limited use of the right side of her body. She takes antidepressant medication, medication for pain relief, anticoagulant, hypertension and cholesterol medication and medication for restless legs syndrome.
The evidence of Mr F, the physiotherapist who provided a report on the wife notes amongst other things:
a)Ms Webleys’s psychiatric condition deteriorated in late 2002. She became significantly inactive, and gained a significant amount of weight;
b)Ms Webleys was admitted to the AA Psychiatric Clinic in 2004 for inpatient treatment of major depression and chronic pain disorder;
c)The discharge summary from the occupational therapist following the stroke suffered by the wife noted her right upper limb was non-functional;
d)The wife continued to attend the repatriation unit as a day patient from early 2014 to mid 2014. Some gains were made over that time however the right upper limb remained non-functional; and
e)The wife is always going to require assistance for tasks such as cooking, domestic cleaning, gardening, household maintenance and grocery shopping.
Considering the unfortunate health of the wife, it is difficult to accept the submission that she did not require some level of contribution from the husband to assist with not only the day-to-day commitments associated with living in and running the house, but also attendance upon and liaising with the medical team, and with the legal team, tasked with looking after her interests.
The husband’s submission that the party’s marriage and home life was dogged by the wife’s health difficulties has some weight.
The medical reports provided to Mr F disclosing the long history of the wife experiencing acute difficulties in functioning day to day and the wife’s concession under cross examination that the parties had from time to time struggled on account of her health issues are noted.
The wife says that she relied heavily on assistance from her mother. While the wife’s mother who resided in Suburb C may have been able to help, I do not accept that her assistance removed in any way the burden that would have fallen on the husband. The husband was for a significant period the only able bodied adult in the house.
I note it is common ground that the husband was required to work away which required him to be absent from the home until he left his employment with the Employer L in 2004. Thereafter however he resided at home commuting to his employment.
The husband was the only able bodied member of the family in a position to undertake any significant work particularly having regard to the evidence of the wife in respect of her health and the medical history found in the file of Mr F and contained in Exhibit AE.
Counsel for the husband submits Mr F’s file and his evidence records that the wife had inter alia the following health issues:
a)In 2000, following surgery, the wife spent 12 to 14 hours a day in bed for several months (Ms E was 13 and Mr X was 4);
b)The wife had a history of being admitted or otherwise treated as an inpatient or outpatient of various clinics in 2000 and 2002 and hospitals in 1992, 1998, 1999, 2000, 2002, 2004, 2011;
c)Depressive illness and suicidal ideation in 2000;
d)In 2013, she had a stroke with a hospital admission for 3½ weeks and three months of subsequent rehabilitation;
e)She was on disability support for 14 years;
f)In 2014, she was reported as being unable to drive. She could do some dusting around the house and some laundry, but not much else;
g)In 2011, she had morbid obesity, opioid dependence, sleep apnoea, and following surgery “took to her bed to an extraordinary degree”;
h)In 2002, she spent 20 days as an inpatient at a pain management clinic; experienced a major depressive disorder with non-existent energy levels; and, poor sleep;
i)In 2005, she experienced a severe aggravation of back injury;
j)In 2011, bipolar disorder was noted;
k)In 2011, her activity was limited by fatigue and daytime sleepiness;
l)In 2006, Dr G and the chronic pain team noted she was resting all but four hours per day;
m)In 2004, she was referred to Dr BB, psychologist, who noted she was on an extremely high dose of medication;
n)In 2001, it was noted she was not doing heavier housework such as vacuuming; and
o)In or about late 2002, she became significantly inactive.
The submission that “the husband’s role as homemaker and carer was unusual and extended on account of the wife’s chronic health difficulties and inability to make progress with those health matters”[7] is accepted.
[7] See the written submissions on behalf of the applicant husband dated 31 October 2019, 127.
Counsel for the husband refers to the evidence of the husband assisting with the WorkCover claim as being consistent with the husband undertaking a homemaker role of an administrative type. The submission has some merit.
I note the wife conceded that her superannuation entitlements commenced following the parties commencing cohabitation in 1992.[8]
[8] Exhibit L.
The parties attended on a financial planner in 2012, received and adopted the advice which included increasing the wife’s level of insurance cover within the Super Fund CC scheme. There is some weight in the husband’s submission that the superannuation benefits received by the wife represent the funds of:
a)That financial plan developed by the parties with professional assistance following many years of ill health experienced by the wife;
b)The payment of increased premiums by the parties; and
c)An application for benefits made subsequent to the increase of benefits as a result of advice.
I accept that submission.
The wife’s health event of 2013 provided the catalyst for the parties to recover some financial benefit from the planning recommendations they had undertaken.
I note the husband’s submission that the wife received from WorkCover and superannuation post-separation a total of $572,875.
The aide memoire tendered by consent and marked Exhibit AG which I have had reproduced in the body of this Judgment shows the following:
a)Wife’s affidavit says:
i)at [93] received 2015 $103,522
ii)at [99] received 2015 $54,451
iii)at [100] received 2016 $414,902
b)Total received between 2015 and 2016 is $572,875
c)Wife’s affidavit says the following was spent:
i)at [95] $19,199 in 2015
ii)at [96] in 2015 $24,047
iii)at [101] in 2016 $328,532
iv)at [102]:
1. $9,137 Visa
2. $16,634 Australian Tax Office
3. $1,600 Revenue SA in 2016
4. $5,000 Suburb C Council in 2016
5. $1,000 SA Water in 2016
6. $5,191 Store DD in 2016
7. $1,392 Store DD in 2016
8. $3,523 Store EE in 2016
9. $1,176 Store FF in 2016
10. $1,000 Suburb C Council in 2016
11. The total of expenditures at [102] $45,653
d)Total wife says by her affidavit spent (other than living expenses) $19,199 + 24,047 + 328,532 + 45,653 = $417,431
e)Difference between that received and spent is $572,875 – 417,431 = $155,444.
f)Wife says at [103 and 104] $24,000 and $20,000 held or remained in accounts. This is a total of $44,000.
g)The difference between $155,444 and $44,000 is $111,444.
h)Early 2015 to late 2016 is 19 months.
i)$111,444 divided by 19 months is $5,865 per month.
j)The amount of $5,865 per month divided by 4 is $1,466
In her trial affidavit the wife also refers to sums of $24,069 and $20,000 shown in her bank accounts. These are the figures used to calculate that there is a sum of $111,444 unaccounted for.
This supports the conclusion that over the period from 2015 until 2016 (a period of some 19 months) the wife spent on average the sum of $5,865 per month in addition to the claimed payment of rates and taxes ($16,634), holidays for the parties’ son and his then girlfriend ($3,253) and the Motor Vehicle 1 purchase ($24,040).
I accept that the wife was well aware that the issue of the division of the matrimonial property had yet to be decided.
Her evidence that she wished to spoil her children does not assist her.
Her actions which in effect removed any funds that may have been utilised to address her future needs including any amount necessary to pay out the husband appear deliberate.
There is no doubt that her financial contributions through her inheritances significantly outweigh those of the husband.
She did not work for the latter part of the relationship (2000 onwards) however funds received from WorkCover, amongst other things would have eased the financial pressure on the parties.
At the same time, the parties obtained joint mortgages to:
a)Renovate the J Street, Suburb C property they purchased from the wife’s mother;
b)Purchase and build on the Suburb K property; and
c)Renovate the current property at B Street, Suburb C.
The ability of the parties to rely on the income stream from the husband’s employment no doubt assisted this process.
Furthermore, the decision to maintain the wife’s superannuation meant that significant funds were obtained from the payout for the wife’s Total Permanent Disability claim.
The wife’s unfortunate health history meant that she had significant issues maintaining herself let alone making any significant non-financial contribution or contribution to the welfare of the family.
I accept the submission that this case demonstrates that the competing significances of financial and non-financial contributions is not to be regarded as “an accountancy interest or mathematical calculation”[9] or a “matter of offsets”.[10]
[9] Clauson v Clauson (1995) 18 Fam LR 693 at 699
[10] In the Marriage of Dickson (1999) 24 Fam LR 460.
I agree that “this is a matter where there should be a global assessment of contribution otherwise there is a risk of adjectival quantification”[11] distorting the assessment of contributions.
[11] Hoffman & Hoffman (2014) 51 Fam LR 568.
I therefore consider having regard to the above matters that contributions should be assessed on the basis that the wife receive 70% and the husband 30%.
Financial resources and needs
The husband is in reasonable health and remains employed. The wife’s health issues are significant and have been addressed in these Reasons. The wife is aged 57 this year, date of birth, 1963 and the husband is aged 57, date of birth, 1963.
The husband submits the wife has a reduced life expectancy.
The wife concedes that due to her health issues she has a reduced life expectancy.[12]
[12] See the wife’s written closing submissions dated 17 September 2019, 101.
The husband continues in his employment with Employer M and receives a modest income. The wife is in receipt of a benefit from Centrelink.
Neither party has the obligation to support any other person. The parties’ son Mr X is engaged as a carer for the wife and receives an allowance. That is not to say however that external providers of care could not be obtained. The wife also receives assistance through the National Disability Insurance Scheme.
I accept that since the parties separated the wife, knowing that the husband sought to divide their assets between them spent significant funds on amongst other things:
a)Spoiling her children;
b)Purchasing a car for Mr X for approximately $24,000;
c)Gifting the trade-in benefit to her son; and
d)Providing holidays (including flights) for her son and his girlfriend).
I do not accept that this represented a standard of living that was in any way reasonable.
The husband continues to reside in his rental accommodation and live a relatively modest life. It is notable that unlike the wife, he has nothing on which he can draw or sell to augment his current standard of living.
The husband cohabits with his current wife, Ms GG. She is employed on a casual basis. She has no assets of significance. The parties meet their expenses from their combined resources.
The wife’s health is a significant factor. At the same time the husband has, after 22 years of relationship, nominal available resources and a modest superannuation benefit on which he can rely.
I note that prior to any division of the assets the wife holds assets and resources of approximately $1,200,000 while the husband holds assets with a negative worth of $23,664 and superannuation of approximately $120,000.
Taking into account the respective financial resources and needs of the parties I consider the adjustment in favour of the wife should be 5%.
This would then require a division of the assets and resources such that the wife receive 75% and the husband 25%.
Review
The net value of the assets held by the parties is $1,213,147. The husband has superannuation with an agreed value of $120,380.
The husband’s proportion (25%) of the combined assets and resources ($1,333,527) is $333,381.75.
The husband’s net position of (-$23,664) is calculated as follows:
a)Commonwealth Smart Access $5
b)Motor Vehicle 2 $6,000
c)Household contents $8,050
d)821 V shares $3,589
e)90 M shares $2,197
f)6 W Shares $14
$19,855
Liabilities
a)Bank SA personal loan $27,000
b)Gold MasterCard $7,663
c)ANZ Platinum Visa $8,856
$43,519
Allowing for his superannuation the husband would require a payment of $236,670.75 being calculated as follows:
a)Husbands net entitlement $333,381.75
b)Less super ($120,380) and net debt (-$23,664)
$236,665.75
The wife submits that her legitimate expectation of retaining the Suburb C property trumps the husband’s needs for sufficient cash.
Her submission is that should she be ordered to pay money to the husband she would at best struggle to obtain a loan and at worst be unable to raise any funds.
The Suburb C property would have to be sold and she would face a daunting task in seeking suitable new accommodation.
Alternative accommodation is not available to meet her needs and those of her son Mr X, noting that her current accommodation has been adapted for her needs and enables her and Mr X to live in different parts of the house.
The difficulty with these submissions is that I am not directed to any evidence that would assist me to make orders as sought by the wife.
I am unable to form the conclusion, for example, that she is unable to raise any funds although I acknowledge that her income is limited. I cannot exclude the option of a reverse mortgage being available.
I am not directed to any evidence of any attempt to canvas alternative options for the wife. There is nothing, for example, about the availability of a house that met or could easily be adapted to meet the wife’s needs including the separate area for Mr X.
In an era where it is not uncommon for allowance to be made for separate living areas for the children, I have some difficulty with the submission that the Suburb C property represents the only option.
Some assistance is gained from cases such as Lee Steere (1985) FLC 91-626 when the court had regard to what was known as “farming cases”, and the prospect of the sale of the family farm to satisfy the wife’s entitlement.
The fact that the subject property was a farm in that matter may give rise to considerations as to the ways and means by which the property division could be given effect to, but it did not take away from the other party’s claim to receive their entitlement.
If there was a way of providing that entitlement without causing the sale of the primary asset then it should be considered. I am not however asked by the wife to consider any options other than if there is any payment to be made it should be made to the wife or if a payment is to be made to the husband it should be less than what he is claiming.[13]
[13] Wife’s closing submissions dated 17 September 2019, [66] and [126].
The husband notes that from early 2015 the wife has been aware of his claim for property settlement.
Between separation and trial she was afforded ample opportunity to pursue alternative accommodation enquiries. No information in respect of this was placed before the Court.
Any funds she had which may have been used to pay out the husband were disbursed by her knowing this claim would be made.
The wife presents the Court with the argument that it would not be just and equitable that an order be made for payment to the husband or for the sale of the Suburb C property which would deprive her and Mr X of their home.
No other option is presented and there is no evidence of what she proposes to pay should that be ordered.
While I appreciate Mr X is currently her carer, I struggle with any suggestion he has any entitlement to remain in the home. I do not accept that he is the only option available to care for the wife.
The wife is in receipt of an “individualised” funding package. Her evidence is that this amounts to approximately $56,000 per annum. She has the discretionary power to divert these funds into different services as she deems necessary. The only consideration appears to be that the services are necessary or appropriate and the expenses fall within the funding budget.
I have difficulty accepting that if the property is to be sold that the wife will not have sufficient funds to rehouse herself in a property that meets her needs.
I accept that the sale of the current property and the re-housing of the wife will be onerous however I do not accept that this operates as a bar to the husband’s claim.
I accept that the evidence of Mr F did not support the wife’s case that she required a live-in carer.
I note his evidence that he was not able to advise the Court of the modification of the provision of State and Federal government funding which might be available. He advised other agencies could advise on those matters. There was no suggestion however that the funding would be reduced.
I have difficulty accepting that the wife is reliant on the full time care of Mr X. Even if that were the case the evidence does not support a conclusion that the property at Suburb C is the only option for them.
The submission that her legitimate expectation of retaining the Suburb C property trumps the husband’s need for sufficient cash is not accepted.
Selling the house would mean the loss for the wife of the property she received pursuant to the Deed of Family Arrangement, however, I do not accept the wife’s counsel’s submission that this trumps the husband’s right to his share of the assets.
The events of the COVID-19 pandemic have cast a shadow over the resolution of this matter. Neither party however has sought to reopen the proceedings.
The parties had the property valued in early 2018. The value of $1.2 million was agreed at the commencement of trial in 2018.
The agreement remained in place with closing submissions being provided on 31 October 2019.
The house is located on B Street, Suburb C and is in a prime location.
The concerns in respect of the COVID-19 pandemic also relate to how it has affected (if at all) the value of the husband’s superannuation benefit.
There are issues for both parties. They may well be resolved once the pandemic is brought under some degree of control and restrictions are eased.
While neither party has asked me to address these issues some allowance has been made in the time for payment of the funds due to the husband.
The banks’ response to any application for funds is also unknown. I would therefore allow a slightly longer time for the payment, however due to the evidence presented by the wife, consider this should be kept to 90 days.
In the event of the payment not being made, then steps will have to be taken for the sale of the property.
The husband concedes the wife will require assistance in day to day living however there is no evidence that she would not be able to obtain that assistance from her son or from another source in the absence of her son.
I do not accept that he is the only option as her carer, particularly when other options do not appear to have been canvassed by her.
I would therefore for the reasons set out above make the orders set out at the commencement of these Reasons.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Cole
Associate:
Date: 30 April 2020
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