Wilks and Wilks

FAMILY COURT OF AUSTRALIA

WILKS & WILKS

[2007] FamCA 110

FAMILY LAW - PROPERTY SETTLEMENT - Contributions - Future needs

Family Law Act 1975 (Cth) - S 79 & S 75(2)

APPLICANT:

Mrs Wilks

RESPONDENT:

Mr Wilks

FILE NUMBER:

ADF`

740

2005

DATE DELIVERED:

27 February 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

15-17 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Whittle

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Noble

SOLICITOR FOR THE RESPONDENT:

Andersons Solicitors

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Wilks & Wilks

Orders

S1 and S2 in the State of South Australia be placed upon the market and sold upon terms and at a price to be agreed between the parties or ordered by the Court and the net proceeds of sale after payment out of the mortgage over the S properties with ING and all costs of sale including adjustment of rates, taxes and charges be paid to the trust account of the husband solicitors on account of the husband.
Simultaneously with the settlement of the last sale referred to in (1) above:
(a)the husband transfer to the wife his interest in the former matrimonial home situated at L in the State of South Australia and C1 and C2 in the State of South Australia.
(b)the wife discharge the mortgage in the parties’ joint names over the C properties with H Lending;
(c)the wife pay to the husband a further sum to effect an equal division between the parties of the pool of matrimonial assets, calculated according to the following formula:
$741,703 + x – y - $123,343 - x
2
in which
x equals the net proceeds of sale of the S properties, including interest, paid to the husband by his solicitors pursuant to subparagraph (1) of this order; and
y equals the outstanding balance at settlement of the mortgage in the parties’ joint names over the C properties with H Lending discharged pursuant to subparagraph (2)(b) hereof;
(d)until settlement of the sales referred to in paragraph (1) and payment referred to in subparagraph (2)(c) the parties shall share equally in the income and expenses of the rental properties at S and C.
The wife retain as her own property absolutely:
(a)the Nissan Pulsar motor vehicle, to which intent the husband shall transfer to the wife his interest therein;
(b)all of items of personalty retained by the wife as her own property pursuant to paragraph 2 of the order made on 16 January 2007;
(c) her superannuation;
(d)one half of the balance then remaining in Bank SA joint account number …;
(e)all other savings and investments and other property in her own name or possession.
The husband retain as his own property absolutely:
(a)the Nissan Navara and the Holden Monaro motor vehicles, to which intent the wife shall transfer to the husband her interest therein;
(b)all items of personalty retained by the husband as his own property pursuant to paragraph 2 of the order made on 16 January 2007;
(c)     the Commonwealth bank shares in his own name;
(d)     the motorbikes and trailer in his possession;
(e)     the ski boat;
(f)     his superannuation
(g)one half of the balance then remaining in Bank SA joint account number …;
(h)all other savings and investments and other property in his own name or possession.
There be no further adjustment on account of Capital Gains Tax assessed against the parties as a result of the sales referred to in (1) above.
Forthwith upon receipt of any arrears of rent received by the wife from any former tenant who owed rent for a period prior to this judgment the wife do pay one half of such rent received to the husband.
Liberty to apply as to consequential orders.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF` 740 of 2005

Mrs Wilks

Applicant

And

Mr Wilks

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings are for property settlement between the applicant wife Mrs Wilks and the respondent husband Mr Wilks. In general terms the wife sought an equal division of the assets and liabilities of the parties and the husband sought a division of 60 per cent to him and 40 per cent to the wife.

Trial

The trial commenced before me on the 15 January 2007 and concluded on the 17 January 2007 when I reserved judgment. The wife was represented by Mr Whittle of counsel, the husband by Mr Noble of counsel.

At the commencement of the trial negotiations took place between the parties, with the assistance of their counsel. As a result I made consent orders in relation to the issues concerning the children of the marriage which can be summarised as providing that the parties agreed to have equal shared parental responsibility for the children L who was born in August 1990, J who was born in May 1992 and B who was born in March 1997. The consent orders provided that L would live with the husband and spend time with the wife four nights per fortnight (at weekends and during school terms from Friday to Tuesday); J would live with the wife and spend time with the husband four nights per fortnight and that B would live with the parties week and week about during school terms. The children will spend half of each school holiday with each of the parties. There were other associated orders.
On the second day of the trial the parties reached agreement about delivery up of certain personal property and a further consent order was made providing for the husband to remove certain items from the former matrimonial home.
The parties relied upon their affidavits and Statements of Financial Circumstances prepared in anticipation of the trial and each gave oral evidence.
At the conclusion of the trial counsel indicated that it had been agreed that steps would be put in place to place the S units on the market for sale pending delivery of my judgment.

Background and Chronology

The husband was born in August 1963. He is now aged 43. He has been working in his current occupation as a roof plumber for many years.
The wife was born in September 1963 and is also aged 43. She is an allied health worker. The wife completed her training just after the marriage of the parties.
The parties were married in February 1986. There are three children of the marriage, L who is now aged 16, J who is now aged 14 and B who is aged 9. The parties are not agreed about the date of separation, but it was around April/May 2005. The wife has resided in the former matrimonial home at L since that time.
In April 1989 the parties purchased the former matrimonial home at L using a small deposit they had saved. There is a dispute about the amount borrowed from or given by the husband’s mother at that time.
After the birth of each of the children the wife took periods of maternity leave from her employment. When B was born the wife returned to work after approximately 12 months. She has been in employment as a health worker for approximately 65 hours per fortnight since April 1997.
In 1997 the husband was involved in a boating accident. There is dispute about whether the boat was owned by the husband’s brother or the husband and his brother jointly. Following the boating accident the husband alleges that his brother gave him $7,000. The wife asserts that this represented his share of the insurance money recovered after the boating accident. The money was used to discharge the mortgage over the matrimonial home.
Commencing in 1991 the parties carried out extensive renovations to the former matrimonial home. There is a dispute about the wife’s contribution to the renovations.
In 2000 and 2001 the parties together purchased units in C and S. These four units have subsequently been let. They were financed by a deposit from the parties’ savings and secured mortgages.
The relationship of the parties had broken down by mid April 2005. The final separation of the parties occurred in either late April or May 2005. The wife has continued to reside in the former matrimonial home. The husband moved out of the former matrimonial home on the 20 May 2005 and since that time has been residing at the home of a friend Ms J.
The wife commenced Family Court proceedings in relation to children’s issues on the 25 May 2005.
Interim orders were made in June 2005 which provided that the children reside with one parent one week and with the other parent the next week on an alternating basis.
In October 2005 the orders were continued in relation to J and B, but the order was varied in relation to L providing that he reside with his mother on alternate weekends from the close of school on Friday to the commencement of school on Tuesday and the balance of the time with his father.

Main Issues, Evidence and Findings

The parties are not agreed on the nature and the amount of monies allegedly provided by the husband’s mother. The former matrimonial home was purchased in April 1989 for $69,000 or $69,500.
The husband’s affidavit of evidence in chief filed on the 16 August 2006 (document 42) says:
“15.The wife and I saved an $8,000.00 deposit. My mother lent us $10,000.00 as the bank would not lend us the full amount to buy the home. We borrowed $52,000.00 by way of mortgage.”

The wife’s affidavit of evidence in chief filed on the 18 August 2006 (document 45) says:
“19.On 1 April 1989 the husband and I purchased in joint names the former matrimonial home at [L] (sic) for an amount of $69,500.00. It is my recollection that the husband and I had saved a deposit of approximately $10,000.00 and that we obtained a mortgage with Bank SA for the balance of the purchase price and costs. It is also my recollection that the husband and I borrowed an amount of approximately $6,000.00 from the husband’s parents. The husband and I repaid to the husband’s parents the amount of approximately $4,000.00. The husband’s parents agreed to waive the balance of the outstanding debt in order to assist the husband and I financially.”

The wife as the applicant gave her evidence first. When cross-examined by Mr Noble she maintained that the only money provided by the husband’s mother was the sum of $6,000 of which the parties repaid $4,000 and the husband’s mother waived the balance of $2,000.
When giving his evidence in chief the husband said that there were two amounts provided by his mother, one of $10,000 and one of $6,000. He said that paragraph 15 of his affidavit was incorrect. He then said that his mother had advanced $10,000 and there was a second borrowing of $6,000. He was unable to give any explanation for the omissions in the affidavit evidence which did not specify the two amounts advanced nor that the mother had forgiven part of the debt of $6,000.
When cross-examined by Mr Whittle, counsel for the wife, the husband was asked whether the $10,000 was borrowed from his mother. He said no. His evidence then was that the $10,000 was a gift from his mother and that $6,000 had been borrowed from his mother. He was specifically asked whether, from the start, the $10,000 was a gift and he said “yes”. During that part of the cross-examination he said that paragraph 15 had been “worded wrong”. He denied that the only sum provided by his mother was the sum of $6,000.
There was no independent evidence presented by either party. The inconsistencies in the husband’s evidence makes it inappropriate for me to be satisfied that the husband’s mother made a gift of $10,000 to the parties. I am satisfied that in 1989 the husband’s mother provided assistance to the parties when they purchased the former matrimonial home. However I am not satisfied to the requisite standard of proof that the husband has established that his mother gave him $10,000 towards the purchase of the former matrimonial home, as well as providing the $6,000 loan, $2,000 of which was later forgiven.
The husband maintained that he should be given credit for the contribution he made because of a gift from his brother after a boating accident. The wife agrees that the husband received money in about 1997 which monies were used to discharge the balance of the mortgage over the former matrimonial home at that time. The wife however says that the money received by the husband was his share of the insurance payout for the damaged boat.
Paragraphs 16, 17 and 18 of the husband’s affidavit of evidence in chief filed on the 16 August 2006 states:
“16.On 5 December 1997 I was driving a boat owned by my brother when the boat suffered a structural failure and split in two.
17.As a result of this accident I was injured and had about a month or six weeks away from work. I had an income protection policy to protect my wages and therefore received about 80% of my normal wages for a portion of that period. On 21 February 2001 I received an insurance compensation payment of $2,358.39 after payment of medical bills and legal fees. This money was deposited in our joint account and used for family purposes.
18.Because of the cost to me my brother felt responsible for my losses. When he received insurance money for the damage to the boat he gave me half of it, that is $14,000.00. I used the money to pay off our mortgage.”

The wife’s affidavit of evidence in chief says as follows:
“24.The husband and I made a final payment of one of the mortgages over the former matrimonial property on 23 July 1997. We paid off the remaining mortgage over the property on 4 February 1998 with the proceeds of an insurance payout received by the husband’s brother for damage to a speed boat that the husband and his brother had purchased in approximately October 1997. The husband alleged that the payment from his brother was a gift. I deny absolutely that the payment was a gift. The husband purchased a 50% share in the boat with the husband’s brother.”

The husband’s brother did not give evidence.
During her oral evidence, the wife maintained that the money received was as a result of the husband owning a half share in the boat.
During his evidence, the husband maintained that the boat concerned was owned by his brother alone. He agreed that an earlier boat had been owned with his brother.
In cross-examination he maintained that he had not provided any money to his brother in relation to the latter boat. He maintained that the proceeds from the jointly owned boat had been used by him to buy the jet ski. He agreed with the date upon which the mortgage was paid off as asserted by the wife. He also agreed that the sum of $2,358.39 was the net amount he received after his claim for damages as a result of suffering injury in the boat accident and being off work .
Towards the end of the husband’s evidence the following exchange took place:
“HER HONOUR: Mr [Wilks], in the affidavit you've sworn for this trial you refer to the boat money - in paragraph 17 we've referred to - where you say you received 80 per cent of your normal wage for the period that you weren't working and that you received that $2300-odd for pain and suffering compensation?---
MR [WILKS]: Yes.
HER HONOUR: In the next paragraph you say, "Because of the cost to me, my brother felt responsible for my losses." What were the losses that he felt responsible for?
MR [WILKS]: ---Well, the boat. He bought the boat as a bonus because his business done (sic) well - as a bonus, because earlier, the first boat we had blew up and he said, "Well, this one, we'll make sure that it's got all the safety features." We waited a couple of years, and he bought that boat and he said, "That's ours." When it sunk we decided, well, do we test our fate a third time on a boat or do we just buy a jet ski each, which was the intention? And he bought a new jet ski with the half that he retained and I was going to buy one with mine, but I was a bit dubious about boats for a while.
HER HONOUR: Sorry, you were saying that - I was asking you about what the losses were that he felt responsible for, your losses?
MR [WILKS]: ---Well, the pain and suffering through it. I nearly lost the kids; the three boys went in only two seconds - two minutes before it sunk, and yes I was a bit sort of uptight for a while.”
(My Underlining)

Shortly thereafter Mr Whittle, counsel for the wife, asked the following questions:
“MR WHITTLE: Mr [Wilks], you described the boat as “a bonus for us”?
MR [WILKS]: ---Mm’hm.
MR WHITTLE: So the two of you owned it?
MR [WILKS]: ---No. I’ve never had anything to do with it. He organised it; he paid for it; he registered it; he insured it.
MR WHITTLE: That was the way you described it, but why then – going back to her Honour’s question – did you get the $14,000 to compensate you for your loss, as you’ve described it in your affidavit?
MR [WILKS]: ---I’m just trying to explain it. He give me half of it because he did, right?
MR WHITTLE: But if you didn’t own it ---?
MR [WILKS]: ---As a good gesture to me.
MR WHITTLE: --- it wasn’t your loss?
MR [WILKS]: No. That’s right. My loss was injuries.
MR WHITTLE: I put it to you that you were a half-owner of that boat --?
MR [WILKS]: Not at all. No.
MR WHITTLE: ---as understood between you and your brother?
MR [WILKS]: No.”

The husband’s evidence was that the insurance company paid out for his normal wages and medical bills. The oral evidence of the husband does not explain adequately the expression in paragraph 18 of his affidavit “because of the cost to me my brother felt responsible for my losses”.
The husband’s evidence about why his brother gave him $7,000 (half of $14,000) was inconsistent with the affidavit which referred to compensation for losses.
The money was received and the mortgage discharged in February 1998, more than seven years before the parties separated.
I am not satisfied to the requisite standard of proof that the husband’s brother simply gave the husband $7,000 at this time.
In any event the receipt of the money should be considered in the history and context of these proceedings. The amount is not significant in the overall sense of the earnings and expenditure of the parties during the marriage. The money was received some time ago.
The husband alleged that he should be given a greater share of the property settlement because of his greater non-financial contributions. Specifically, he referred to various factors which can be divided into three categories.
(1)the husband’s greater contribution to the renovations of the former matrimonial home;
(2)the husband’s greater contributions to the family by way of homemaker and parent; and
(3)the reduced contribution by the wife due to her alcohol and health problems.
Both parties referred to renovations undertaken to the former matrimonial home, and to a lesser extent, maintenance and renovations to the rental properties.
The husband asserted that the wife did not assist at all with the renovations except for cleaning. The wife said that she “assisted with the building where I could as well as looking after the children and running the house”. (Paragraph 26 of the wife’s affidavit).
The oral evidence of the wife was that she not only assisted with the cleaning, but also assisted by transporting bricks and carrying out painting, such as painting to the interior doors and suede painting.
The wife said in her affidavit at paragraph 53 and 54:
“53.I acknowledge that the husband carried out, with the substantial assistance of other tradespeople, the renovations to the property in 1999 however I also contributed as much as I could at the time to the renovations. The husband and I saved money together for the renovations and planned the renovations together. I have been responsible for the maintenance of the home, including most of the cleaning, since the husband and I purchased the property. I have decorated the home, including painting, and I chose the decorations and furniture for the home, apart from a lounge suite that was purchased in approximately 2003. I worked hard to establish the garden and outdoor area. I am very attached to the home and do not want to leave. The home requires maintenance and repairs which have not been done for some time and which will be reasonably expensive including stripping the outside brickwork of a lacquer which the husband applied which unfortunately has caused a build up of salt in the bricks.
54.………….. I repainted the kitchen ceiling on one occasion while the husband was at work. …….....”

The husband denied the extent of the wife’s contribution to the renovations. He said that the wife rarely cleaned up. He also asserted that both of them did the suede painting. The husband in cross-examination also asserted that both of the parties looked after the children while he was carrying out the renovations.
I accept that the husband carried out the bulk of the actual physical labour involved in the renovations of the former matrimonial home. The husband however appeared to minimise and downplay the contribution of the wife, both as to the extent of her physical contribution to the work involved in the renovations, her assistance in cleaning up, assistance in the role she played in caring for the children and attending the household duties whilst the renovations were being completed.
The husband asserted that he was the primary caregiver for the children and made a greater contribution as homemaker and parent than the wife.
His affidavit sets out that he has worked “full time throughout the marriage”, working seven days a week for the first five years of the marriage and then six days a week until 1992. The husband asserted that he cared for the children while the wife was at work and in particular that he had the care of the children “virtually every weekend from when [B] was born”. He referred to the wife working night-shifts and sleeping through the day.
The wife maintained that she worked a maximum of three or four nights a week and often less than that. She maintained that she slept whilst the children were at school. The wife conceded that she worked on Public Holidays because of the extra money that was available.
Her evidence was that for a short period of approximately 18 months, they had the assistance of a child carer and also used family day care for a short time.
The husband’s evidence was that he worked during the school holidays while the wife looked after the children.
Whilst I accept the evidence of the husband that he spent more time attending to the children’s extra-curricular activities, sporting activities and holiday activities than the wife, because of the hours the wife worked, I do not accept that the husband’s contribution as parent greatly outweighed that of the wife.
The husband also claimed that he should receive a greater proportion of property settlement because of a greater contribution as homemaker.
He conceded that the wife did most of the cleaning in the home and managed the financial affairs. On a relatively low level of income for both the husband and the wife the parties managed to save sufficient to invest in the units.
The parties did not agree about the contribution to the cooking and washing. Both conceded that the other did a portion of the cooking and cleaning. I am not satisfied that the different contributions of the parties to household duties such as cooking, cleaning, washing and managing family finances were significant enough to require an adjustment over a long marriage such as this.
The husband asserted that the wife’s psychiatric health and abuse of alcohol were factors which should be brought into account when assessing contributions. The wife admitted suffering from depression and an anxiety disorder, but vehemently asserted that this did not reduce her proper contribution to the care of the household or the children.
Whilst the wife admitted to drinking alcohol, she denied the extent alleged by the husband and denied any alcohol problem. She admitted passing out after drinking on one occasion only.
The husband initially admitted to smoking marijuana only “occasionally” but when pressed in cross-examination said “it was not everyday, maybe three or four nights a week”.
The evidence does not establish that the wife’s health or any use of alcohol were sufficient to require an adjustment between the parties’ contributions.
The husband also asserted that he should receive a greater proportion of the net assets because of the wife’s greater income earning capacity. The wife is an allied health worker. She has maintained her experience and qualifications and has an annual income of approximately $40,000. She conceded that she could possibly earn more because health workers were in high demand, but remarked that she needed to consider her health.
Following upon the consent orders in relation to children’s issues, the parties’ responsibility for the day to day care of the children will be equally shared in the general sense. Both will have the primary care of one child and share the care of the third child.
The husband gave evidence that his taxable income for the financial year ended June 2004 was $41,419; for the financial year ended June 2005 was $36,552 and for the financial year ended June 2006 was $31,383. He works as a permanent contractor to his brother’s business.
Notwithstanding this arrangement the brother’s business has also paid the husband’s superannuation. At the 30 June 2005 this was $45,858 and at the 14 August 2006 it was $56,543.
The wife’s superannuation at the 30 June 2005 was $25,040 and at the 14 August 2006 was $30,917.
During cross-examination the husband agreed that, following the consent order in relation to children’s issues, he would be able to increase his hours of work by at least 10 hours a fortnight which would result in an extra income of approximately $10,000 per annum before tax. Thus the husband’s future earnings are likely to be above $41,000.
The husband conceded that working as a contractor for his brother’s business permitted him to claim a depreciation of approximately $5,000 to $6,000 per annum for his motor vehicle.
The husband has skills as a roof plumber. The wife has skills as an allied health worker. The evidence of the husband does not support a finding that the earning capacities of the parties differs to a sufficient extent to require further adjustments.
L is now 16. He will be 17 in August 2007. The evidence of both the husband and the wife indicate that L is unlikely to remain at school to the end of the year. L wishes to leave school and find employment, probably an apprenticeship. It is likely therefore that L will, in the immediate future, find some employment. I accept that this will not discharge the husband’s responsibility towards the care of L, but that it will reduce the husband’s parental role, both financially and otherwise, as L moves towards independence. J who is 14 will remain in the primary care of the wife. The parties share the care of B who will be 10 soon. The wife’s responsibility in relation to the child J is therefore likely to continue longer than the husband’s responsibilities in relation to L.
The husband placed emphasis upon the fact that the wife had resided in the matrimonial home rent free since May 2005, whilst he had been obliged to pay rent to his friend at $90 per week. The mortgage on the former matrimonial home had been discharged many years ago. The wife asserted that she had maintained the former matrimonial home by paying rates, taxes and other outgoings and kept the property in good condition.
$90 per week paid by the husband since the 20 May 2005 for approximately 2 years represents approximately $9,360. The wife has of course also enjoyed the benefits of the much larger former matrimonial home whilst the husband has chosen to share accommodation with his friend and her children. A mathematical calculation and precise adjustment is not appropriate but $9,360 represents approximately one per cent of the total net assets and liabilities of the parties (including the superannuation) ($991,460).
The benefit of residing rent free in the former matrimonial home must be considered in the context of the long marriage and balanced with other factors.
The husband conceded that since the separation the wife had continued to manage the finances of the four rental properties, including taking proceedings for the recovery of arrears of rent.
Counsel for both parties conceded that the parties had incurred legal costs but did not seek to make any adjustment on account of the costs paid or payable.
Neither party was seeking a splitting order in relation to the superannuation. Both parties asked the Court to take into account the superannuation of each of the parties by adding it to the pool of assets to be considered. The husband’s counsel asked that the superannuation be included at the figures for the 30 June 2005, because this was close to the separation of the parties in April/May 2005. The wife’s counsel included the superannuation of the parties as at the 14 August 2006, which was the last date for which figures were available.
The cases all indicate that the assessment to be carried out by the Court is one relating to the financial circumstances of the parties as at the date of trial. Taking into account the history of this matter there are no particular circumstances which would indicate that it is appropriate to limit the evaluation of superannuation to that which existed at about the time of separation. I propose therefore to include the superannuation of the parties at the figures applicable to August 2006, but to take into account the contributions the parties have made and received since the separation.
Both parties wish to retain the sole ownership of the former matrimonial home. The wife has been residing in the former matrimonial home since the husband vacated the premises in May 2005. He wishes to move back in.
The husband said in his affidavit:
“169.I would like to either move with the children into the former matrimonial home or obtain larger and more appropriate accommodation for them. However, until property settlement issues are resolved with the wife I cannot afford to obtain better accommodation. I do not propose to live with [Ms J] when I have my own home.”

The husband also said at paragraph 170:
“170.……………………………..It would be my intention to purchase a home with sufficient bedrooms for all of the children to have individual rooms.”

At paragraph 175:
“It is my intention to obtain accommodation in the vicinity of the [P] schools so that [J] and [B] can continue to attend their current schools.”

In her affidavit the wife says at paragraph 52:
“52.The husband has made it abundantly clear to me through the orders that he seeks in this Court, in correspondence from his solicitor to my solicitor and in statements that he has made to me since separation that he considers that he should reside in the former matrimonial home. I am opposed to the orders sought by the husband that the former matrimonial home be transferred to him. I seek orders that the husband transfer his interest in the former matrimonial home to me.”

The wife has said in paragraph 53 that she is “very attached to the home and do not want to leave”.
The husband instructed his counsel to inform the Court that if he could not reside in the former matrimonial home then he sought an order that the property be sold. He similarly sought orders that all of the rental properties be sold, notwithstanding that the wife wished to retain the C properties and make an appropriate payment adjustment to the husband.
During his oral evidence in chief the husband, for the first time, gave evidence that he thought it would be better for the children if the husband resided in the former matrimonial home because the wife had had conflict with the neighbours. During cross-examination by the wife’s counsel, the husband admitted that both parties had obtained statements from a neighbour in support of their claims. When asked whether the first time he had mentioned this factor was in oral evidence, the husband was unconvincing when he replied, “that he couldn’t be sure”.
The wife was not cross-examined about the claim that her relationship with the neighbours was a factor.
During cross-examination the husband also admitted that J and B had told Ms T, who had prepared a family assessment, that they were quite happy living in the house with the wife.
The husband’s motive for seeking the transfer to him of the former matrimonial home, or its sale if he were not able to live in it, may have been disclosed in his reply in cross-examination when he indicated that he did not think it was “fair” for the wife to keep the former matrimonial home. He said he did not think it was good “that I’ve had nothing for 18 months”. Again, when asked why the C units should be sold rather than retained by the wife with an appropriate monetary adjustment, the husband replied that he thought it was “just fair”. He was unable to give any other explanation.
The wife’s proposal is that there is no adjustment for any potential Capital Gains Tax in relation to the C units because she intends to keep them and not sell them in the immediate future.
I am not satisfied that there is any significant factor which would require the sale of the former matrimonial home. I am satisfied that it is appropriate, just and equitable for the wife to retain the former matrimonial home on the basis that an appropriate amount is adjusted.
The sale of the former matrimonial home would incur costs to the parties, although no Capital Gains Tax would be payable.
The wife is prepared to make payment to the husband of an appropriate amount in order to retain the C units. There is no sensible basis for the husband’s opposition to the wife retaining the C units.
Both parties agreed that the S units were to be sold. At the conclusion of the trial when I reserved judgment, counsel indicated that steps would be taken to place them on the market for sale with the proceeds to be divided in accordance with the judgment.
Currently the wife’s income exceeds that of the husband. However, the wife did not seek any adjustment of Capital Gains Tax payable by each of the parties on the sale of the S units.

The Law

Section 79(1) states:
“(1)In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines.”

The established cases have developed a preferred approach when considering the provisions of Section 79 of the Family Law Act (including Section 75). The general direction is that a four step process is appropriate. The following steps are suggested in appropriate cases.
A.Identify and value the property liabilities and financial resources at the time of the trial;
B.Identify and assess the contributions in accordance with the provisions of section 79(4) (a), (b) and (c), thereafter determining as appropriate the contribution based entitlements of each party expressed as percentages;
C.Assess the relevant factors under section 75(2) and section 79(4) (d), (f) and (g) determining whether any alteration should be made to the conclusions reached at step B.
D.Consider by way of overview whether the conclusion reached and any proposed order are just and equitable in the circumstances of the particular case. (See Hickey and Hickey (2003) FLC 93-143; Lee Steere and Lee Steere (1985) FLC 91-626; Clauson and Clauson (1995) FLC 92-595).

Assets and Liabilities (including superannuation)

The parties agreed on the value and the list of assets and liabilities to be taken into account. The only difference was the submission by the husband’s counsel that the parties’ superannuation should be brought into account at the value of the 30 June 2005 near the date of separation, whilst the wife’s counsel preferred the last date of valuation being the 14 August 2006. For the reasons already given I consider it appropriate to bring into account the parties’ superannuation as at the 14 August 2006.
The parties were agreed that the S units were to be sold, so their valuations are included in the list only as a guide. It is also appropriate to bring into account when considering the overall outcome the estimated cost of sale of the S units. There was no evidence provided but the counsel for the wife suggested a total figure of $10,000. (I assume there was an error in the final summary of argument provided by counsel for the wife where the estimated cost of sale was referred to as “cost of sale of [C]”. I understand it should be cost of sale of the S units).
The assets and liabilities, including superannuation to be taken into account are therefore as follows:
Assets
The matrimonial home  $230,000.00
Investment Property C1  $160,000.00
Investment Property C2  $160,500.00
Investment Property S1 (to be sold)  $179,000.00
Investment S2 (to be sold)  $179,000.00
Bank SA joint account no: … (15.1.06)
(balance at settlement to be divided between the parties)               $2,561.00
Savings at separation – Wife  $14,895.00
Savings at separation – Husband                   $20,000.00
Less taxation in respect of 2004/2005
paid after separation  $6,024.00               $13,976.00
165 Commonwealth Bank of Australia shares – Husband
(at 10/01/07)  $8,169.00
Nissan Navara – Husband  $27,500.00
Holden Monaro - Husband  $9,000.00
Nissan Pulsar – Wife  $15,000.00
Motorcyles/trailer/drill – Husband  $3,300.00
Ski boat – Husband  $1,500.00
Other personalty retained by the wife  $7,048.00
Other personalty retained by the husband  $3,355.00
Superannuation – husband’s (as at 14.8.06)  $56,543.00
Superannuation – wife’s (as at 14.8.06)  $30,917.00
Total:            $1,102,264.00
Liabilities
ING – Mortgage secured over S properties (18.1.07)                   $54,876.00
H mortgage secured over C properties (29.12.06)  $45,928.00
Estimated cost of sale of S properties  $10,000.00
Total:            $110,804.00
Net Assets:   $991,460.00

Conclusions on Contributions

The husband’s oral evidence about the monies provided by his mother was inconsistent with his affidavit. I prefer the evidence of the wife and therefore bring into account that the husband’s mother provided $6,000 to the parties when the former matrimonial home was purchased and that the parties paid back all the monies owing to the mother, other than $2,000. The husband’s mother then forgave that debt of $2,000.
The husband worked initially long hours in his business. The wife has often worked night-shift. The husband has attended to renovations. The wife has assisted in the renovations but to a lesser extent and has continued in her role as homemaker and parent.
The mortgage outstanding on the former matrimonial home was discharged following the receipt of the monies from the husband’s brother after a boat accident. The husband’s evidence about the reason for the monies paid by his brother to him was ambiguous and unsatisfactory. However, I am not satisfied that the husband had a legal interest in the boat which was the subject of the insurance payout. Money was received from the husband’s brother but in the overall context of the ongoing contributions of both parties, both financial and otherwise over a long period this factor is not significant.
Taking into account all of the evidence I am satisfied that the contributions of each of the parties, being their financial contributions and contributions as homemaker and parent should be considered equal.

Section 75(2) and Section 79(4)(d), (f) and (g) Factors

I set out my findings on the relevant factors in this matter.:

(a) the age and state of health of each of the parties

The parties are of similar age. There are no significant health factors to be taken into account. The wife admitted that there is a demand for nursing staff. She also mentioned the need to consider her health when determining the hours she worked.

(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

The parties have the capacity to earn a similar income, particularly taking into account the agreement in relation to the children’s issues and the ages of each of the children.

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and

(ii) a child or another person that the party has a duty to maintain; and

(e) the responsibilities of either party to support any other person.

Both parties have similar responsibilities to support the children of the marriage and no other persons.
L is 16, he will be 17 in August 2007. He proposes to leave school this year and seek an apprenticeship. The husband’s responsibility to provide for L is likely to conclude earlier than the wife’s responsibility to provide not only financially, but also emotionally and psychologically, for the care of the child J who is 14 years old. Both parties share responsibility for B.
Sub-paragraphs (f) to (k) are not particularly relevant in this matter.

(l)the need to protect a party who wishes to continue that party’s role as a parent’

Both parties wish to continue to provide for the children of the marriage.

(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;

The husband said that he was residing with his friend, but was not in a de facto relationship with her. His evidence was that he intended to live separately when property settlement proceedings had concluded.

(n)n/a
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;

The child support provisions will be adjusted taking into account the shared care arrangements the parties have entered into and their individual incomes.

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

Since cohabitation the wife has had the benefit of residing in the former matrimonial home. The husband has chosen to reside with a friend, contributing $90 per week towards the rent of the premises. The wife has continued to maintain the former matrimonial home.
As set out earlier in the judgment a full re-imbursement of the amount paid by the husband represents an amount equal to less than one per cent of the net assets.

Conclusion on Section 75(2) Factors

The benefit to the wife of her occupation and use of the former matrimonial home since separation is offset by the likelihood that the husband’s responsibility for the support of L will be reduced earlier than the wife’s responsibility for the care of J.
Balancing all of the relevant factors I am satisfied that no further adjustment is appropriate. An equal division is the result.

Overview

It is appropriate to consider whether the conclusion reached and proposed orders are just and equitable in the circumstances of this particular case.
The parties are of similar age. The period of cohabitation was approximately 20 years. There are three children of the marriage. Both parties have worked hard in their respective occupations. Both parties have contributed to the improvement of the assets. The husband carried out extensive renovation work. The wife managed the finances and on occasions worked night-shift and on Public Holidays to increase the savings of the parties. Both parties have made significant contribution as homemaker and parent and continue in those roles. The parties have a similar capacity to earn income. They have agreed to share the arrangements for the care of the children. L is proposing to leave school and seek an apprenticeship, J and B are younger.
The wife seeks to retain the former matrimonial home and the two C units. For reasons already given this is an appropriate arrangement. The wife also retains her savings, motor car, personal property and superannuation. It is also proposed that the Bank SA joint account (which is the account into which the tenants rent is paid) be divided equally. That is currently standing at approximately $1,280. Using the figures currently available the property to be retained by the wife is as follows:
The matrimonial home  $230,000.00
C1 Property  $160,000.00
C2 Property  $160,500.00
Savings at separation  $14,895.00
Nissan Pulsar   $15,000.00
Half of Bank SA Freedom joint account No: …
(balance at settlement not known)  $1,280.00
Other personalty retained by wife  $7,048.00
Wife’s superannuation  $30,917.00
Total:  $619,640.00
  Less H Mortgage on C Units  $45,928.00
  Total Net Assets:  $573,712.00
Fifty per cent of the net assets of $991,460 is $495,730. On these figures the husband would receive all of the S units net proceeds (approximately $293,000), half of the Bank SA Freedom account and a further sum of about $78,000 from the wife, as well as retaining:

Savings at separation  $13,976.00
Commonwealth Bank shares  $8,169.00
Nissan Navara motor vehicle  $27,500.00
Holden Monaro  $9,000.00
Motor cycles, trailer and drill  $3,300.00
Ski boat  $1,500.00
Personal property  $3,355.00
Husband’s Superannuation  $56,543.00
  Total:  $123,343.00

Taking into account all of the factors I am satisfied that an equal division is just and equitable in this matter.
$741,703 represents the sum of all of the assets ($1,102,264) less the presently agreed value of the S units ($358,000) less the amount standing in the credit of the Bank SA joint account ($2,561).
The figure of $123,343 is the sum of the assets retained by the husband, not including the net proceeds of sale of the S units or his share of the Bank SA joint account.
The orders proposed by the wife provide for the net proceeds of sale of the S units to be determined at the time of the concluded sale and for those amounts to be paid to the husband (x in the formula) with the C mortgage discharged and the Bank SA account divided equally.
Counsel for the wife provided a formula which takes into account the variables relating to the net proceeds of sale of the S units and the amount of mortgage balance outstanding in relation to the C units at the time of settlement. The orders proposed by the wife’s counsel take into account the equal division of the net assets and superannuation of the parties.
It was agreed that the money standing to the credit of the account in which the rent is received would also be divided on settlement.
The orders provide for each party to pay the Capital Gains Tax assessed on the sale of the S units in accordance with their individual circumstances without further adjustment.
The formula provides an appropriate method of ensuring that the actual net amount can be calculated and an equal division achieved.

I certify that the preceding one hundred and twenty seven (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date: 27 February 2007

[2007] FamCA 110

27 February 2007

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