WEISS & COOPER
[2011] FMCAfam 1520
•14 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEISS & COOPER | [2011] FMCAfam 1520 |
| FAMILY LAW – Property – 30 year de facto relationship – substantial initial contribution – adjustment under section 75(2). |
| Family Law Act 1975, s.75(2) |
| McTaggart & McTaggart (1988) FLC 91-920 Zappacosta & Zappacosta (1976) FLC 90-089 Anastasio & Anastasio (1981) FLC 91-093 Pierce & Pierce [1998] FamCA 74 (10 June 1998) Weinhopf & Weinhopf [2009] FamCA 1084 (17 November 2009) Brodie & Brodie [2008] FamCA 26 (25 January 2008) |
| Applicant: | MS WEISS |
| Respondent: | MR COOPER |
| File Number: | PAC 3185 of 2010 |
| Judgment of: | Henderson FM |
| Hearing date: | 22 June 2011 |
| Date of Last Submission: | 22 June 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 14 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Adams & Partners Lawyers |
| Solicitors for the Respondent: | Adrian Twigg & Co Solicitors and Conveyancers |
ORDERS
That within 60 days of the date of these orders Mr Cooper the Respondent pay to Ms Weiss the Applicant the sum of $298,120.
Mr Cooper to provide to Ms Weiss within 28 days the list of items which have ticks annexed to them as attached to these Orders.
In the event the Respondent is unable to pay the sum set out in Order 1 in the time specified, the Respondent is to place the property at [address omitted] [Suburb C] New South Wales being all that piece or parcel of land in [address omitted] on the market for sale with an agent selected by him at a price of no less than $850,000.
From the proceeds of sale of the property the Respondent is to pay:
(a)Agent’s commission, sales costs and the like;
(b)The sum of plus $298,120 interest accrued thereon at the rates specified under the Family Law Act; and
(c)The balance of the proceeds of sale to be paid to the Respondent.
The Respondent to forthwith advise the Applicant of the listing agent, selling price, solicitors and conveyancers details on the sale and likely completion date.
All outstanding applications are dismissed and the proceedings removed from the list.
IT IS NOTED that publication of this judgment under the pseudonym Weiss & Cooper is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3185 of 2010
| MS WEISS |
Applicant
And
| MR COOPER |
Respondent
REASONS FOR JUDGMENT
This is a property hearing in relation to a de facto relationship of some 30 years. Neither party has any children, nor were there any children born of their relationship. All preliminary matters necessary for this Court to exercise jurisdiction were evident and were accepted by each party and consented to insofar as it was necessary. Ms Gillies of Counsel represented the de facto wife, who was the applicant, and Mr Richardson, solicitor, represented the de facto husband, who was the respondent.
The applicant sought payment of 40 per cent of the pool of assets to her, and the respondent contended her entitlement was 20 per cent.
There is only one major asset, an unencumbered home at [Suburb C] worth on an agreed valuation $850,000. This home was gifted to the respondent by his father in 1990. The parties have lived in that home for in excess of 20 years, having been in a de facto relationship for some 10 years prior to that time and living in a rented property.
The respondent is an only child, and he spends some of his time caring for his 84 year old mother, whose health has been poor recently.
The respondent’s mother owns a home in [Suburb B] and spends time each month on a regular basis with her son in the [Suburb C] property visiting her health specialists and the like. The respondent himself is in indifferent health. He has been on a disability support pension for almost 30 years. He has type 2 diabetes and suffered a heart attack this year. He has never worked in any meaningful sense or earned income from working and has no capacity to support himself by any form of employment. His disability pension is some $370 a week, and he is aged nearly 65 years.
The wife is aged 62 and is a fragile, thin-looking woman. The respondent conceded she suffered depression during the relationship and on one occasion suffered a significant impairment to her nervous system causing profound pain in her legs resulting in her being unable to walk or stand for periods of time. This debilitating condition lasted for some four years towards the latter part of the relationship. Happily this condition has resolved.
The applicant like the respondent has no skills for paid work. She has not worked for 30 years in paid employment and like the respondent has no skill, aptitude or training for any form of paid employment.
The applicant admitted to having been offered a [omitted] job recently two days a week, for four hours a day at $20 an hour, giving her a possible income of $160 gross a week. She gave three reasons why she did not take up this position:
a)This court case;
b)The reduction in her pension and other entitlements if she earned money; and
c)She does not feel well enough to be able to carry out a physical job such as [occupation omitted] at this time or into the future.
Her pension entitlement is about $250 a week and with rental assistance of $30 a week, she receives a shade under $600 a fortnight.
The respondent receives a disability pension of $670 a fortnight. Both parties have modest and low incomes. However the respondent’s is some 10% higher than the applicant’s.
The applicant is privately renting and pays rent of $180 per week. The respondent has remained in their former home.
The short chronology relevant to the matter is as follows.
The parties commenced living together in September 1980.
In mid 1981 they moved from a rented [property] in [Suburb A] to [Suburb D]. The de facto wife commenced employment at a [omitted] store.
The applicant commenced working as a casual [occupation omitted] in 1982, and she ceased same in 1983.
The respondent was injured in the motor vehicle accident in 1986. He had a further motor vehicle accident in 1987.
He inherited the [Suburb C] property in 1990.
The respondent commenced receiving a disability pension in 1991.
In 1995 the respondent was diagnosed with diabetes.
The applicant asserts the respondent became abusive to her at this time and this abuse continued during the relationship.
In March 1997 to June 1998 the applicant asserts she assisted in the care of the respondent’s grandmother. The applicant agrees the respondent cared for his grandmother and that she assisted him in this task.
Although the respondent’s grandmother was living on her own it is clear that the parties visited her daily and carried out tasks for her such as shopping.
In 1998 the applicant asserts the respondent threatened her with a knife and tried to choke her.
From mid 1998 until about August 1999 the respondent’s grandmother moved into their home. The applicant says she then cared for the grandmother with some assistance from the respondent.
There was a period of time of about 18 months in 1999 when the parties did not have a washing machine and clothes were hand washed or occasionally taken to a laundry by the applicant.
In May 2001 the applicant says the respondent became abusive to her and attempted to evict her physically from the home. He grabbed her arm which left bruises. The applicant produced photographs of bruises she says the respondent caused.
In July 2001 the applicant intended to leave the respondent. She did not carry this out due to a conversation she says she had with the respondent where he said she would get nothing if she left and thus she stayed.
The applicant commenced counselling in about March 2002. The respondent continued to threaten the applicant in an attempt to have her move out of the home. The applicant says he left many abusive and distressing notes which read, “That’s it. You move out now, you cunt.”
The applicant was diagnosed with a medical condition in 2002 affecting her bones. In about 2003 the applicant won a competition of a kitchen as a prize. The kitchen was installed at the parties’ cost but otherwise cupboards and other fixtures for the kitchen were free.
The parties are living in straitened circumstances at this time and are unable to afford a fridge for 14 months.
The applicant says this was about the time her nervous condition arose although the respondent says it was earlier in time.
In May 2006 the applicant won a further competition, the prize being a bathroom, which the applicant says the parties installed at their cost and the respondent says at his cost alone.
The parties separated on a final basis on 5 March 2010 in circumstances where the applicant says she was preparing the evening meal, police come to the door and asked her to leave.
The applicant complied and she left the home with two shopping bags of personal items.
The De facto wife’s evidence
The applicant’s primary affidavit was filed on 2 June 2011, her financial statement on 8 July 2010, and there was an affidavit of Ms M filed on her behalf.
The applicant was cross examined.
Her exhibits were as follows.
Applicant’s Exhibit 1, the list of personal items the applicant sought the respondent return to her.
Applicant’s Exhibit 2, colour photographs of injuries she sustained in May 2001 which she asserted were caused by the de facto husband.
Applicant’s Exhibit 3, property search of the respondent’s mother’s home.
Applicant’s Exhibit 4, subpoenaed documents from the wife’s doctor dated 16 July 2009 relating to the allegations of violence in May 2001 and July 2009.
The applicant was cross-examined.
The De facto husband’s evidence
The material I read for the husband was his response filed 21 February 2011, affidavit of 8 June 2011, financial statement of 27 October 2010 and an affidavit of Mr D Cooper the respondent’s cousin.
The respondent did not tender any exhibits and was cross-examined.
A joint valuation of the property by Mr W, valuer was filed on 29 April 2011.
There were objections to affidavits which were dealt with in writing.
In relation to Mr D Cooper’s affidavit, I did not read the whole of paragraph 2, in paragraph 3 the word “considerable” and the third sentence save for the words “I have never seen any marks, bruises or injuries of any type on Ms Weiss”, and the whole of paragraph 5.
In relation to the respondent’s affidavit, I did not read sentences 2 and 3 in paragraph 11, the whole of paragraph 13, the last sentence of paragraph 14, the whole of paragraph 26, the whole of paragraph 34, and the last sentence of paragraph 35.
In relation to Ms M’s affidavit, I did not read in paragraph 3 the words “appear anxious” in the second sentence, the words “beginning to” and “and was” in the third sentence, the whole of the fourth sentence, whole of paragraph 4, the first and second sentences in paragraph 5, and the first, third, fourth and fifth sentences in paragraph 6.
In relation to the applicant’s affidavit, I did not read the last sentence in paragraph 32, the third and last sentences in paragraph 33, from the words “and had” to the end of the third sentence in paragraph 34, the words from “does become” to the end of the first sentence in paragraph 40, the last sentence in paragraph 41, in paragraph 42, the words “controlling and manipulative” in the first sentence, the third sentence beginning with the words “to depression” to the end, in paragraph 43 the last sentence to the word “again”, in paragraph 44, in paragraph 48 the first two sentences and in the last sentence, “but it is” to the end of the sentence.
The assets are the house at [Suburb C], worth $850,000; a ring, a possession the applicant won, worth $1200; and a Ford car in the husband’s possession worth $4000 a total of $855,200.
Furniture loomed large in this matter. The parties were each cross-examined and some time was spent by Ms Gillies with the respondent husband going through items he would agree to the applicant having, and these items will form part of my orders.
The applicant entered a number of competitions during the relationship and she was successful. The parties had no money. No one was working to enable funds to be accumulated. The applicant won a bathroom, a kitchen, an outdoor setting and many whitegoods such as electric kettles, toasters etc which the respondent conceded she had won in cross-examination.
I accept the respondent’s submissions that these were windfalls and consistent with the cases of McTaggart & McTaggart (1988) FLC 91-920, Zappacosta & Zappacosta (1976) FLC 90-089, and Anastasio & Anastasio (1981) FLC 91-093, are considered as a joint contribution by each to the matrimonial assets.
However I find that it was the applicant alone who entered these numerous competitions and who alone used her time and energy to do so. I find the respondent took no interest in or gave any assistance to the applicant in entering such competitions despite neither him or the applicant working and him clearly having time available to do so.
I cannot discern that this couple had any hobbies, engaged in any activity jointly or singly other than the applicant entering competitions despite having 24 hours a day 7 days a week available time on their hands.
The respondent’s submission that they were idle as a couple is correct. This couple led a contained, modest and low-key life not having to work or engage in any income-earning activities, as most citizens of this country do, as they lived in an unencumbered home gifted to the respondent by his father.
The valuation states under the heading Age and Condition:
“The kitchen and bathroom have been modernised with the remainder of the home feeling tired and would benefit from a renovation.”
Thus, the winning of the bathroom and kitchen and the installation of the prizes in the home are clearly the only significant improvements made to the home. No other improvements were made and it remains otherwise in a similar state to which it was in when the respondent inherited it from his father’s estate.
The respondent conceded that the applicant did the majority of cooking, cleaning and washing. I accept that when the applicant wife was disabled for those four years from either 2001 or 2005 he would have had to step up and do some of those tasks as she could not.
The respondent also conceded that the applicant had many pot plants at the home which she cared for and that this beautified the home. He complained he has had to maintain these plants since separation by watering. The applicant wishes these plants and pots be returned to her. The word “lazy” springs to mind however “idle” is the more appropriate phrase.
Thus if it is conceded by the respondent that the applicant did the majority of homemaking including washing, ironing, cooking, cleaning, and used her income for the shopping what did the respondent do?
He mowed the lawns. The applicant conceded he fixed things such as replacing light globes and the like and that he was a pretty good handyman. He was able to fix things when they were broken. He paid the rates and taxes on the property from his income. The respondent conceded the applicant visited his grandmother from 1997 to 1998 daily and that she took her shopping. He said he also visited his grandmother, but did not say what he did for her other than visiting her.
It is clear that the respondent’s grandmother lived at their home from 1998 up to her death in 1999. The responded conceded in cross-examination that this would have meant more work domestically for the applicant although I accept the grandmother was well until only a few months before her death. However she was 84 and the additional burden of caring for her in a physical sense would have fallen on the applicant and not the respondent.
The respondent agreed the applicant won competitions. However he said he expended $12,500 on having the prizes installed, plumbing, redoing the sewerage, electrical work and the like. Two issues arise from this as I accept money was expended to install these prizes.
The first is that there is no evidence from the respondent how he on a disability pension could raise or save that sort of money. Secondly if he did save the money it was saved during the relationship and thus he and the applicant saved it together as they pooled their modest incomes to support themselves. Thus the applicant has made an equal contribution to the installation costs of those valuable prizes. In the absence of any other contrary evidence I find this money was jointly saved by the parties during the relationship.
As to the allegations of violence and poor behaviour the applicant asserts the respondent perpetrated upon her and referred to in her affidavit at some length. The evidence I have accepted is that supported by objective medical evidence contained in Applicant’s Exhibits 2 and 4.
I find on the evidence that the respondent did assault the applicant and inflicted bruising to her arm in May 2001. I accept the applicant’s version of events. It is supported by her colour photographs and the doctor’s notes tendered in Applicant’s Exhibit 4.
I accept the respondent behaved poorly towards the applicant in July 2009 from an incident she described to her doctor, Dr S on 6 July 2009 when the respondent threw a jar of fish oil tablets at her causing bruising. The bruising was observed by Dr S in Exhibit 4.
The respondent agrees he and the applicant had fights. The manner by which the applicant was removed from the home on 5 March 2010 supports the applicant’s assertion of coercive and poor behaviour towards her by the respondent. The police attending the home without warning while she was cooking the evening meal, having only 10 minutes to pack her bags, being two shopping bags, indicates coercive tendencies.
The events at separation are not disputed by the respondent. They are consistent with the applicant’s description of the respondent’s behaviour towards her during the relationship. The applicant said the respondent had wanted her to leave for some time, his ownership of the house was very important to him and he had used this fact as a weapon against her on many occasions.
The applicant said he would say to her, “This is my house. I can throw you out any time I like,” and that is exactly what he did on 5 March 2010. It is apparent that the respondent is anxious to protect his ownership of the home and his conduct is consistent with the words the applicant has used in her affidavit. Thus, I prefer the wife’s specific incidents of actual physical violence, her use of actual threatening words such as “This is my home. I can kick you out, anytime I want” to the respondent’s blanket denials that he never said these things or behaved badly towards her.
This behaviour would have caused significant emotional suffering to the applicant in circumstances where the applicant had nowhere to live, no family or children and no work income or savings. Her only asset was the ring she won. This is in stark contrast to the respondent who owned the home and has a supportive family. In light of these findings I accept the applicant’s case that she was emotionally and at times physically abused by the respondent to a degree and at a level that made her contribution to the conservation, maintenance of the home and her contribution as homemaker by way of cooking, cleaning, washing, ironing, gardening all the more onerous than it needed to have been. That case is made out on the evidence.
Going now to the four-stage approach I must follow in property matters.
There are gross assets of $855,200 being the home, the ring and the car.
The respondent contributed 100% initially to the major asset the former home it having been gifted to him by his father in 1990. The leading authority on how to assess initial superior contributions by one party is Pierce & Pierce [1998] FamCA 74 (10 June 1998).
This decision and its ratio decendi was well summarised in the written submissions by the respondent’s solicitor. The Full Court said:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contribution by a party with all other relevant contributions of both the husband and wife. In considering the weight to be attached to the initial contribution -
I now substitute for husband and wife, de facto husband and de facto wife–
regard must be had to the use made by the parties of that contribution. In the present case, that was a substantial contribution to the purchase price of the matrimonial home.
In this matter it was provision of a home in which to live mortgage free.
There is an obligation on a trial Judge not only to identify the relevant contributions but also to assess them. In this case, his Honour failed to adequately, or at all, assess those contributions. In our view, he failed properly to weigh the greater initial contribution of the husband with all other relevant contributions and seems not to have had regard to the use made by the parties of the husband’s greater initial contribution.
Other cases to which I was referred were Weinhopf & Weinhopf [2009] FamCA 1084 (17 November 2009) and Brodie & Brodie [2008] FamCA 26 (25 January 2008). As I read these cases they are but a restatement of the principle in Pierce & Pierce, which is the leading case in this area.
The sole contribution by the respondent of an unencumbered home for the parties is a significant and substantial contribution.
The home was gifted to the respondent during their relationship and was their shared joint home for 20 years until final separation on 5 March 2010 when the respondent caused the applicant to be evicted by police. The respondent has remained in the home since separation with sole use of all the personal possessions acquired jointly during that relationship. The wife had taken her ring and two bags of clothes.
The wife’s rent which she pays at $180 a week is two-thirds of her limited income. The respondent has remained in the home without having to pay any rent.
On an initial contribution basis the respondent made a 100% per cent contribution in providing the home 20 years ago and the applicant accepts that is the case.
Both earned similar incomes during the relationship. Perhaps the respondent earned somewhat more than the applicant as he still does today. I find that the respondent paid the rates, electricity, and maintenance cost for the property and the applicant used her income to buy food for both of them, her clothes and the household items each used.
I find the parties equally contributed to the $12,500 it cost to install the bathroom and kitchen that were won in competitions entered by the applicant and redo the sewer to the kitchen and bathroom.
It is clear on the evidence the applicant made the overwhelming contribution by way of homemaking being washing, ironing, cooking, cleaning and shopping over this 30 year relationship and rendered assistance to the respondent’s grandmother for almost three years. I have found this overwhelming homemaker contribution by the wife was made the harder due to the respondent’s poor behaviour towards her physically, verbally and emotionally. I accept the applicant’s case that the respondent let the applicant know he could and would remove her from his home at any time that he wished as a means of control. The manner in which he had the police attend his home to remove the applicant at separation supports the applicant’s version of the history of the relationship and not the history given by the respondent.
I also find the applicant’s homemaker contribution was made harder due to a lack of modern day necessary items such as a washing machine and refrigerator for years at a time.
Consistent with the principles enunciated in Pierce & Pierce, my task is to now assess what is the financial and non-financial contribution made by the applicant over the 30 year relationship to the home brought into the relationship solely by the respondent husband 20 years ago.
I have assessed the wife’s contribution based entitlement for all the reasons aforesaid to be 30 %.
The next stage is to determine whether I should make a further adjustment to either party’s contribution based entitlement having regard to their future needs as set out in 75(2) of the Act and in particular section 75(2)(O), which is any other matter that the justice of the case requires or put another way, is there something additional I should take into account in order to do justice between the parties.
The respondent has been in sole occupation of this home since separation and made no effort to provide the applicant even with her own personal items such as clothes, jewellery, makeup, perfumes and the like. This is significant for parties like the applicant on a low income as she has little capacity to re-equip herself with any personal items let alone furniture and the like.
This behaviour by the respondent further supports my findings of his dismissive and demeaning attitude to the applicant as a woman and his de facto wife of 30 years. The respondent has a slightly higher pension benefit than the applicant, and this pension is not subject to the same change as is the applicant’s as it is a disability pension. However, it is clearly a modest income.
The applicant has no capacity to work in any meaningful sense to provide her with an income or increase her income above that of the respondent. Even if she was able to work as a [occupation omitted], and I accept she is not able to carry out such a physical activity, she would earn at best $160 a week gross. That would reduce her pension and she would pay tax putting her in the same or similar position as if she did not work and a no better financial position than the respondent.
The applicant would stand to lose rental assistance, and perhaps some health benefits. So for this woman working is not of financial benefit giving her limited physical capacity and lack of skill for work other than menial domestic work.
Thus I find the applicant like the respondent has no capacity to support herself by working and is in the same position as the respondent, this couple having been supported by the public purse for the majority of their adult lives. I note the applicant will be 65 years of age in 3 years, an age when people no longer work physically and retire.
I find I should make a further adjustment to the applicant of 5% over and above her contribution based entitlements for the following:
a)The respondent’s sole occupation of the home and use of the relationship assets since the separation;
b)That as a consequence of the respondent’s actions in having her forcibly removed from the home by police she has paid rent for almost 12 months costing two-thirds of her modest income;
c)The respondent’s initial response to the application was to pay the applicant 10% which rose to 20% by the hearing; and
d)That response combined with his careless and dismissive behaviour towards the applicant, disregard for her needs to be re-housed and have available to her at minimum her own personal items such as perfume, jewellery and clothing are matters that I consider should be taken into account under section 75(2)(O) of the Act in order to do justice between the parties.
The fourth stage is to look back at the consequences of the orders and determine whether they are just and equitable in all the circumstances.
I have found the respondent’s entitlement is 65% of the asset base and the applicant 35%. The assets are $855,200. 65% is $555,800 to the respondent; 35% is $299,320 to the applicant. The respondent told the Court he had a capacity to borrow $170,000 by borrowing from his uncle. This tells me that as ever and continuing the respondent has a financial resource in his family which on the evidence the applicant does not.
If orders are made for the applicant to receive 35% I must take into account the ring in her possession with a value of $1200. That will result in a figure of $298,120 cash and her ring and the balance of $551,800 cash to the respondent plus his car at $4,000.
Are these orders just and equitable in all the circumstances? I find they are, and I will divide the personal items in accordance with the evidence obtained from the respondent during cross-examination being ticked items he agreed the applicant could have and those items will form part of the orders.
The respondent will be receiving some $256,000 in assets over and above that which the applicant will be receiving or, put another way, 30% more of the total asset base than the applicant and almost twice as much in hard cash terms as the respondent after a 30 year relationship.
I find these orders do take account of the respondent’s 100% cent initial contribution of the provision of the home 20 years ago and 10 years into the relationship; the applicant’s overwhelming and superior contribution as homemaker and that this contribution was made harder by the respondent’s behaviour towards her during the relationship and the lack of modern facilities for years at a time; that the respondent remained in the home to the exclusion of the applicant with she paying private rent, being one-third of her modest income; and that he retained all of her personal items making it even harder for her to sustain her lifestyle modest though it was .
I will give the respondent an opportunity to buy the applicant out as it is clear he has financial resources available in his family to do so. As to personal items, the applicant will receive the ticked items on page 2 of Applicant’s Exhibit 1, including all her personal items such as clothes, jewelleries, toiletries, hats, aprons and the like.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Henderson FM
Date: 15 February 2012
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