WESTAR and WESTAR

[2016] FCWA 53

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WESTAR and WESTAR [2016] FCWA 53

CORAM: THACKRAY CJ

HEARD: 23 & 24 FEBRUARY 2016, 28 JUNE 2016

DELIVERED : 1 JULY 2016

FILE NO/S: PTW 2343 of 2014

BETWEEN: MS WESTAR

Applicant

AND

MR WESTAR
Respondent

Catchwords:

PROPERTY SETTLEMENT - Contributions assessed as 54% in favour of the wife - Adjustment of 6% in favour of the wife for prospective factors

Legislation:

Family Court Act 1975 (Cth), s 75(2), s 79

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Dickons & Dickons (2012) 50 Fam LR 244

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1I am required to determine a property settlement dispute between [Ms Westar] (“the wife”) and [Mr Westar] (“the husband”).

2Parenting issues were settled during a trial earlier this year, but I was unable to deal with the property issues then because the husband said he was too unwell to continue. The trial was completed this week, with both parties self-represented.

The law

3The Family Law Act 1975 (Cth) authorises an alteration of property interests if the court is satisfied it is just and equitable to do so. In determining the extent of the alteration, the court considers the “contributions” described in s 79(4)(a) to (c) and the prospective factors set out in s 79(4)(d) to (g), which incorporate s 75(2).

Just and equitable requirement

4The separation of the husband and the wife brought an end to their common use of property and the assumptions implicit when their relationship was intact. It is therefore accepted that it would be just and equitable to make orders altering property interests. Both parties seek such an adjustment.

5The just and equitable requirement governs not only whether an alteration of existing interests should be made, but permeates the entire process. Any orders made must be “just and equitable” and “appropriate” within the meaning of s 79(1) and (2).

Existing legal interests in property

6The assets and liabilities were largely agreed. The table below represents the position in January 2016, prior to the wife paying $50,000 by way of part settlement.

ASSETS	HUSBAND	WIFE
[Property A]	237,500	237,500
Household contents	6,540
Superannuation	48,209	36,408
[Vehicle A]	1,500
[Vehicle B proceeds]	4,000
[Trailer]	400
TOTAL ASSETS	$289,709	$282,348
LIABILITIES
Mortgage on [Property A]	(13,870)	(13,870)
[Bank A] debt	(3,073)
Shire rates arrears	(1,110)
Water consumption	(114)
Debt to mother for firebreaks	(200)
TOTAL LIABILITIES	($13,870)	($18,367)
TOTAL NET ASSETS	$275,839	$263,981

7My reasons for including/excluding items were largely given during the trial following dialogue with the parties. The only other findings I need to make are these:

•the parties are indebted to the wife’s mother for $200 for firebreaks;

•the figure for the shire rates arrears is the “overdue” amount noted on Exhibit 1 which, as best I can tell, represents monies the husband ought to have paid when living in the home; and

•the figure shown for the husband’s superannuation represents his entitlement prior to him making a $10,000 withdrawal, which was used for legal costs.

The orders sought

8The wife wants to keep Property A. Otherwise, she proposes a convoluted suite of orders, the overall intention of which is that there will be a roughly 70:30 division of the property and superannuation in her favour.

9The husband proposes Property A be sold, but accepts that the wife can keep it if she can afford to acquire his interest. He seeks a 55:45 division of the equity in his favour, but he also wants reimbursement of $20,000 he inherited, along with a “$12,000 compensation payment made to [him] for future medical expenses”.

The parties and their relationship

10The wife is 42 years of age and is employed as a [social worker]. The husband is 50 years of age and is a part-time student. He is either in receipt of “sickness benefits” or “[a government allowance] with a medical exemption”.

11The husband and wife started living together in WA in early 1998 (although they had previously lived together [interstate]). They were married in May 2004.

12There are two children of the marriage, [Margaret], born in November 2005, and [Harry], born in August 2007. Pursuant to orders made in February 2016, the children primarily live with the mother. The father has the children for half of the school holidays and for a total of seven nights every three weeks during school terms.

13The parties separated under the same roof in September 2013. In February 2014, the mother went to live with her parents for about a year, before obtaining rental accommodation. Earlier this year, the wife moved back into the home and the husband moved out, after he received his $50,000 partial property settlement.

The acquisition of the matrimonial home

14The husband and wife purchased a block in [Suburb A] in 1999, at a cost of $74,000. They successfully submitted a tender to acquire an old house in [Town A], which was cut in half and transferred to the block. The house only cost $20,110.

15The work involved in dismantling, transporting and reconstructing the house was undertaken by the wife’s family, who operate a business specialising in this work. Although the husband and wife paid the wages of some of those involved, the wife’s parents refrained from sending a bill for work they did and for the profit they would ordinarily have taken. The husband says that the bill would only have been $10,000, whereas the wife’s mother gave evidence that it would have been $18,000. I accept that the saving to the husband and wife was somewhere between the two figures.

16I accept that the wife’s parents lent $30,000 to cover the cost of the house and expenses. I accept that this help made the project possible; however, the money was repaid quickly, without interest, when the parties obtained bank finance.

17The husband’s mother also lent the parties $10,000. I accept that this was not for the deposit on the block, but was advanced a little later to cover some expenses associated with clearing the property. I was also inclined to accept the wife’s evidence that some interest was paid on the advance from the husband’s mother.

18For a period of two years, the husband’s mother allowed the parties to use her home as security for borrowings of $120,000 relating to Property A.

Contributions at the commencement

19Apart from minor items, including a motor vehicle, the only asset of substance at the commencement of cohabitation was the one-third interest the wife had in a house in [Town B], for which she received $10,000 in 2002 (and from which she derived some very modest rent until the property was sold).

Financial contributions

20The husband worked for the wife’s father for a few months after the parties commenced cohabitation, but then obtained full-time employment in March 1998 with [Company A], where he remained for nearly 10 years.

21The wife was studying for a [degree] at the commencement of the relationship and graduated in July 2000. Although the evidence is unclear, it seems she received some modest [government] payments.

22In November 2000, the mother commenced full-time work as a social worker. She gave up work a month prior to Margaret’s birth in 2005. By that time she had earned around $211,000. The wife then remained out of the workforce for five years caring for the children. She calculates that she lost $240,000 in wages in that period, and she did not accrue any superannuation benefits.

23The husband was diagnosed with [a medical condition] in 1999, but was asymptomatic at the time. In 2007, he commenced a course of treatment although he was still asymptomatic. The husband became increasingly unwell as the treatment progressed and he was unable to work. Although the evidence is unclear, it seems likely the husband ceased work prior to the birth of Harry. For a number of months, the husband was so unwell that the wife not only had to look after the children but also had to care for him on a full-time basis.

24It was around this time that the husband received $20,000 from his father’s estate. This money was used to reduce the amount outstanding on the mortgage.

25In the latter part of 2008, the husband commenced casual work [as a labourer], but then ceased that work in January 2010. In 2010, he received a workers’ compensation payment of $15,000 relating to an injury sustained some years previously. I accept that the husband expended significant sums on trips to visit his family interstate and three trips [overseas] for dental work.

26In January 2010, the husband enrolled in [an undergraduate degree]. He ceased studying in November 2012, without sitting the end of year exams. He received benefits of $10,918 in 2011–12 and $10,997 in 2012–13. It is unclear what benefits he received in the earlier part of his studies.

27In November 2010, the mother returned to her employment on a casual basis. She earned $9,200 in 2010–11, $12,247 in 2011–12 and $16,030 in 2012–13. She also received benefits of $7,821 in 2010–11, $6,301 in 2011–12 and $4,824 in 2012–13.

28In August 2013, the husband started full-time casual work in [an office]. In mid-December 2013, he became unemployed. The wife found the situation untenable with the husband at home all the time. After she moved out, with the support of her mother, she was able to increase her workload and provide for the children. In April 2014, her employment status changed to permanent part-time.

Parent and homemaker contributions

29There was a strong divergence in the evidence about the homemaker and parent contributions. The parties have an acrimonious relationship and neither was prepared to give the other a great deal of credit. Although the wife was inclined to overstate her case, I nevertheless consider that she was a somewhat more accurate historian than the husband. I accept the wife’s evidence that she was much more active than the husband in attending to the needs of the children and the household, and that this was the case whether or not the husband was working at the time. Notwithstanding the husband’s denial, I consider it likely that he developed something close to an addiction to prescription medicines, and from time to time consumed drugs. This would have limited his capacity to assist with the children and around the house, and may explain why he was sometimes short tempered and irritable with the children.

Non-financial contributions

30The house the parties erected on the block was about 70 years old and in need of repair. The block itself was heavily timbered and required a great deal of work. Over the years they lived in the property, a significant amount of work was done renovating and improving the home and laying out the gardens and playground.

31In her affidavit, the wife only described the work that she had undertaken. She explained in her oral evidence that she thought she only needed to give evidence about her own contributions. She accepted under cross-examination that the husband had, in fact, done some work around the property, including painting and plastering. Nevertheless, she continued to strenuously maintain that the greater proportion of the work was done by her and by members of her family. I gained the impression that the wife is a very energetic and “driven” individual, whereas the husband, whether because of ill health or natural inclination, could not be described in the same way.

32While I again felt that the wife overstated her case, I accept that she, with the assistance of her family, took on much more responsibility in relation to the property than did the husband. I nevertheless accept that, from time to time, he did work which was of value in improving and maintaining the property. I do not intend to detail here all of the work done by the wife and her parents around the property, which was set out in meticulous detail in her affidavit. It is sufficient to say that her evidence about a great deal of the work was unchallenged. The wife was also responsible for very successfully managing the family finances, and undertook all the paperwork associated with tendering for the home and arranging its relocation.

33The husband drew attention to the fact that the wife failed to call one of her brothers as a witness, and noted that the brother had been on site for lengthy periods, as he was paid to assist with work done around property. I accept the wife’s explanation that she did not consider it necessary to call her brother given that she, as a self-represented litigant, thought her own evidence would be sufficient.

Post-separation contributions

34Although the parties initially had an equal shared care arrangement, the mother has had the children with her for a greater proportion of the time since the separation. She has continued to work, and I find that she has been primarily responsible for the maintenance of the children and for their overall management, especially in relation to their health and education. In my view, the division of the children’s time between each household has not been reflected in the work done in their management and care. That work has been more onerous than what might be considered “average” because of Harry’s behavioural, educational and medical issues. The wife has also had significant assistance from her mother in managing the care of the children.

35The husband had the benefit of living at a modest cost in the home from the time the wife vacated until she moved back in earlier this year. I accept that she had to pay rent for a 12-month lease at a cost of $14,400. I also accept that she paid $625 towards the mortgage during the husband’s occupancy. It is not appropriate, however, for the wife to be reimbursed for these amounts in the way that her application proposes. These facts are merely part of the overall picture that I am required to consider in arriving at my assessment. (The same can be said for the reimbursements the husband wants related to his inheritance and compensation payment.)

Assessment of contributions

36The assessment of contributions is not a scientific or accounting exercise. The Full Court in Dickons & Dickons (2012) 50 Fam LR 244 has said that:

24.There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 … ) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.

26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.

37The husband submitted that contributions should be assessed 55:45 in his favour. The wife submitted in her Papers for the Judge that they should be assessed 90:10 in her favour.

38In my judgment, the assessment of contributions favours the wife when regard is had to the interest in the Town B property, the assistance from her family, and what I find to be her overall greater contribution during the relationship and after the separation. I have not overlooked the husband’s inheritance, the assistance provided by his mother, his compensation, income earned during the relationship, and his own work on the home and around the property.

39Taking all of these matters into account, I conclude that contributions should be assessed as having been made in proportions 54:46 in favour of the wife.

Section s 75(2) and other prospective factors

40Although the husband stressed his age and health in his oral submissions, he ultimately submitted that there should be no adjustment for the s 75(2) factors. In her submissions, the wife placed emphasis on her belief that it is highly likely she will have primary responsibility for looking after and maintaining the children because of what she considers to be the husband’s aversion to work.

41The husband is eight years older than the wife. He has a problem with a [cyst] and an expectation he will die in his 60s because he regards [his medical condition] as a terminal condition. The wife does not accept that the disease is terminal and points out that the husband has failed to provide proper medical evidence, notwithstanding her requests. Although the wife is unsympathetic to the husband’s position, and while I accept that she has some basis for being sceptical about the full extent of his poor health, I nevertheless find that the husband does not enjoy good health, and I accept that his health and work history may impede his capacity to obtain work. I am nevertheless not convinced that the husband is unable to complete his studies.

42Even if he cannot complete this degree, it is likely the husband could become an [administrator]. I find it is more likely than not, if the husband turned his mind to it, that he would be able to obtain employment in [an office]. When giving evidence in the parenting proceedings, the husband said that all of the places at which he worked will have him back, and that he “can’t hack not working”.

43The wife appears to enjoy generally good health, and appears to retain the energy and drive mentioned earlier. I accept, however, that she has a [medical condition] requiring expensive, ongoing treatment, and that she has suffered from depression.

44The wife is earning about $50,000 per annum and is likely to continue to do so. She continues to have the major responsibility for the care of the children. I consider that she is justified in predicting that this will continue to be the case, and that she will be the parent to whom the children will primarily need to look for support. She is fortunate in that she has, for the time being, the assistance of her parents, but they now also have responsibilities for another grandchild in Perth.

45I take into account that, during the relationship, the wife was able to obtain a qualification which has improved her earning capacity, but I also take into account that the husband had the opportunity, and took time, to work towards obtaining a qualification during the relationship. I also take into account that the marriage has impacted on the earning capacity of both parents, as they have responsibility to care for the children, although this impact falls more heavily on the wife, because she has the children more often.

46Neither party has re-partnered, although the wife was in a romantic relationship when I heard the evidence relating to the parenting dispute. I would certainly not rule out the possibility that the wife will form another relationship which may assist in sharing expenses. Neither party has responsibility to support any other person.

47Both parties are eligible for social security. I consider it likely that the husband will have greater than usual healthcare costs, but I also consider it probable that the wife’s costs associated with Harry will be greater than usual.

48The parties enjoyed a modest standard of living. Neither is likely to earn a large income in the future, and I accept that the amount they receive in this settlement will likely be the most important issue in determining their future security. Although I do not place any great significance on it, I record that the wife said her parents are comfortably placed, and she anticipates that they will assist her to obtain the funds necessary to acquire the husband’s interest in the home.

49The husband has never paid child support. In fact, the wife has been assessed to pay him $10 per week even though she has the children for the majority of the time. It is possible that the amount the wife will have to pay the husband will increase to $30 per week later this year.

Assessment of the prospective factors

50Balancing all of these matters, I consider there should be an adjustment of 6% in favour of the wife. In arriving at this assessment, I have primarily taken into account that the wife has a greater responsibility for the care and maintenance of the children, and that she is likely to bear the greater burden in the future. I would have made a greater allowance in favour of the wife were it not for the husband’s health problems, which impact on his earning capacity.

The orders

51I have determined that it is just and equitable for there to be a division of assets and superannuation in proportions 60:40 in favour of the wife.

52The parties are agreed about the assets each should retain, save for a dispute in relation to the trailer. The husband conceded that the wife’s need for the trailer is as great as his own. Given it is unregistered, and is in the wife’s possession, I intend to allow her to retain it as part of her settlement. On this basis, the wife needs to pay the husband $163,719 to bring about the proposed division.

53The husband has received an advance of $50,000. The further amount the wife will need to pay him is therefore $113,719, which I will round down to $113,500.

54For these reasons, I propose to make the following orders.

1.Within 60 days the wife pay the husband the sum of $113,500.

2.Upon payment of the said sum, the husband shall transfer and assign to the wife all of his interest in [Property A].

3.The wife shall indemnify the husband in relation to all liability concerning the property including the mortgage, and the husband and wife shall do everything necessary to secure the release of the husband from all obligations under the mortgage.

4.The husband and wife shall retain all property in their possession or under their control including their superannuation.

5.The husband shall sign all documents necessary to ensure that the [trailer] is registered in the wife’s name.

6.The parties have liberty to apply for alternative orders to give effect to the 60:40 division of the assets in the event the wife is unable to obtain funds to meet her obligation pursuant to Order 1.

7.The application and response be otherwise dismissed.

I certify that the preceding [54] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
1 July 2016