West and West
[2008] FMCAfam 180
•19 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEST & WEST | [2008] FMCAfam 180 |
| FAMILY LAW – Property dispute – no evidence of husband’s gambling problem – division in favour of wife. |
| Family Law Act 1975, ss.75(2), 79(4) |
| Applicant: | MR WEST |
| Respondent: | MS WEST |
| File Number: | MLM 5279 of 2006 |
| Judgment of: | Turner FM |
| Hearing dates: | 1 & 4 February 2008 |
| Date of Last Submission: | 4 February 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Staindl |
| Solicitors for the Applicant: | Frank Randle |
| Counsel for the Respondent: | Mr. Taylor |
| Solicitors for the Respondent: | Robert D. Taylor & Associates |
ORDERS
The legal representatives of the parties are to draw and file an agreed form of orders to give effect to this decision within 28 days.
IT IS NOTED that publication of this judgment under the pseudonym West & West is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 5279 of 2006
| MR WEST |
Applicant
And
| MS WEST |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a dispute about how assets of the parties should be divided between the husband and the wife.
The Court decides that the assets should be distributed 85/15% in favour of the wife and that the parties retain their superannuation.
The asset pool
| The matrimonial home at |
| |
| Less loan from wife’s parents | $ 154,856 | |
| Less debt owing to Timber Walls and Trusses |
|
|
| Sub total | $ 216,144 | |
| Contents of Property N | $ 11,000 | |
| Motor Vehicles – It is agreed that the Ford Territory is not the wife’s property – therefore it is not included. The husband’s Toyota Van has a value of $10,000 but $12,000 is owing on it – it is not in the pool. The Chrysler Sedan taken by the husband has a value of $6,000 but more than that is owing – it is not included in the asset pool. Cash taken by the husband on separation $1,666; same amount taken by the wife – therefore not included in the asset pool. | ||
| Money brought into marriage. | ||
| Total pool | $ 227,144 |
A subsidiary question is whether any amount should be added back to the pool for money alleged to have been lost by the husband when gambling without the knowledge of the wife.
There is no proof of the actual amount alleged to have been lost gambling: indeed there is no proof that the husband spent more than $50 to $60 per week gambling, and that ceased in 2003. Later he stated that it ceased in 2005. It is not enough to say that the husband withdrew funds at hotels where gambling facilities exist, and for the wife to say that she suspects that the money was lost gambling. It is also not enough to say that money was withdrawn from other accounts and that it must have been lost gambling. The husband has given evidence that he used the money withdrawn from ATMs in the course of his business as a tradesman, then to buy petrol for his courier van and for his and his family’s living expenses. He also says that he used funds to buy supplies for his plumbing business.
One thing is clear – the husband is a very poor financial manager who has had many credit cards and other loans taken out to cover existing debts, and who has moved money through accounts to be able to pay back loans, including to his family, on what appears to be erratic, and sometimes very low, income. Some of his credit cards were eventually cancelled. The husband has sworn that he did not use the money for gambling, and that the repeated withdrawals of $200 were made, as that was the transaction limit at those machines. He says that he spends $300 to $400 per week on petrol for his van (court transcript page 68, line 24) and that as a tradesman he needed to buy services and to pay wages (court transcript page 105 lines 13 and 40; page 111 line 36). No evidence has been produced to disprove that evidence.
After hearing and observing the husband giving evidence, the Court is not satisfied that he is a fabulist: he just cannot manage finances: he kept borrowing to pay off existing loans and debts: he admits that he has “no idea how to run the actual business side of things” (court transcript page 61, line 35). He gave evidence that he gave up gambling on a football trip in 2005/2006 (court transcript page 60, line 25) when he had a $20 bet. The husband may have gambled $50 to $60 per week, but that amounts to a maximum of $3,120 per year which in no way equates with the amounts alleged by the wife to have been lost gambling.
The Court makes a 10% adjustment in favour of the wife for this factor, but adds nothing back to the asset pool.
The Court accepts the husband’s evidence that the wife’s parents agreed not to charge interest on the housing loan of $160,000, on which $154,856 is outstanding. The wife’s parents were in Court but were not called to give evidence to refute the allegation. It must be presumed that their evidence would not have assisted the wife’s case.
The Court accepts also that the wife is a truthful witness who has found it hard to unravel and understand the financial mess they descended into.
The husband made significant input into building Property N (court transcript page 122, line 17): that is offset by the wife’s input and upkeep of their house and her home duties.
It is alleged that the husband took money from their son L’s accounts. The husband has given evidence that that money was used for living expenses. There is no evidence to disprove this. The parties maintained a similar standard of living after the wife ceased earning an income. Extra money had to be found to maintain that standard of living.
It is alleged that the husband took $7,900 from the wife’s streamline account without her consent: such allegations are the subject of proceedings in the County Court and are not appropriate for comment here.
It is alleged that the husband paid $52,217.22 to his family members. The evidence is that the husband’s family made significant input into building Property N. There is no proof that the amount was not incurred and paid for that input.
The figures produced by both parties are very loose and obscure. Doing the best that the Court can on the available information the value of the assets for distribution is $227,144.
The wife is a young woman who is responsible for the care of her two young children. She is the primary carer by order dated 12 December 2006. The children, L born in 1999 and R born in 2003, are to live with the wife and the wife has sole responsibility for the day to day care, welfare and maintenance of them. There is to be a 15% adjustment in favour of the wife for this factor.
The Court is very troubled by the large amounts of money shuffled about by the husband, and the lack of detailed explanation about it. This leads the Court to accept the wife’s allegations that $6,961, $13,793 and $7,900 was withdrawn by the husband from the family’s accounts and used for his own purposes. The Court makes a 10% adjustment in favour of the wife for this factor. This totals 85% in favour of the wife, and 15% in favour of the husband.
Of the asset pool of $227,144 the wife will get $193,072 with $34,072 to the husband. The wife is therefore to retain the matrimonial home and contents, but must pay the husband $34,072 within 28 days.
The wife is responsible for repaying the loan of $154,856 to her parents.
The orders proposed by the Court will not effect the earning capacity of the parties.
Consideration of factors in s.79(4):
(a)apart from the husband’s land (later netting $23,989) there is no evidence about how much money each party brought into the marriage, which was used towards purchasing the matrimonial home. It seems that the loan from the wife’s parents was the only cash injection. The husband and members of his family worked on the matrimonial home.
(b)the husband made a significant contribution to improving the matrimonial home.
(c)both parties contributed as homemaker and parent, with the wife’s contribution being greater.
(d)the orders proposed by the Court will not affect the earning capacity of either party.
(e)section 75(2) is considered below.
(f)no other orders need to be taken into account.
(g)the husband pays $80 per week for the support of his children.
Consideration of factors in s.75(2):
(a)the wife is now 34 years old, the husband is 36 years old: both are in good health.
(b)both parties are capable of earning an income to support themselves.
(c)the wife has the care and control of the children of the marriage.
(d)the husband will need to find accommodation.
(e)not relevant.
(f)not relevant.
(g)the division ordered will enable the parties to maintain a reasonable standard of living.
(h)not relevant.
(ha) not relevant.
(j)not relevant.
(k)the duration of the marriage has not decreased the earning capacity of either party.
(l)the division ordered will protect the wife’s ability as primary carer of the children.
(m)not relevant.
(n)not relevant.
(na) the husband pays $80 per week for the benefit of the children
(Financial Statement Item 31).
(o)the Court has taken into account amounts of money used by the husband.
(p)the wife and husband signed a loan agreement with the wife’s parents.
Superannuation
The husband’s superannuation is $57,000 and the wife’s superannuation is $14,516.
Having regard to the matters in s.79(4), the Court decides that it is just and equitable that each party retain their superannuation.
Summary
The effect of these orders is that the wife will retain the matrimonial home, its contents, use of the Ford Territory, and her superannuation.
The husband will not have an unencumbered vehicle with which to conduct his business; he will have his superannuation and a modest amount of $34,072 to put towards the purchase or rental of a residence or to otherwise re-establish himself. The Court considers that this is just and equitable. The wife must pay the husband $34,072 within 28 days.
The legal representatives of the parties are to draw and file an agreed form of orders to give effect to the above decision within 28 days.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 19 March 2008
0
0
1