Winter and Winter

FAMILY COURT OF AUSTRALIA

WINTER & WINTER

[2007] FamCA 218

FAMILY LAW - PROPERTY SETTLEMENT – LITIGANTS IN PERSON – S.79(4) – S.75(2) ISSUES – JUST AND EQUITABLE ORDER

Family Law Act 1975 (Cth)

APPLICANT:

MRS WINTER

RESPONDENT:

MR WINTER

FILE NUMBER:

DGF

930

2005

DATE DELIVERED:

5 January 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

5 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The wife in person

COUNSEL FOR THE RESPONDENT:

The husband in person

Orders

THAT the wife pay to the husband a sum of $100,000.00 as follows:
(a) on or before 5 February 2007 a sum of $20,000.00;
(b) on or before 9 March 2007 a further sum of $50,000.00; and
(c)upon the settlement of the sale of the former matrimonial home situate at P (“the home”) or 4 September 2007, whichever event or date first occurs, the further sum of $30,000.00.
THAT, in addition to the payments required pursuant to Order 1 hereof, should the wife enter into a contract for sale of the home within two (2) years of the date hereof and where the gross sale price of the home is in excess of $300,000.00 then forty per cent (40%) of such excess sum is to be forthwith paid on settlement by the wife to the husband.
THAT in default of payment(s) within the specific periods as provided for in Order 1 hereof the wife pay to the husband interest on moneys outstanding from time to time, calculated quarterly in arrears, at a rate fixed at 8.5% p.a.
THAT the husband sign the transfer and any other documents required to effect a transfer of ownership of the home to the sole name of the wife, all such documents to be prepared by and at the expense of the wife and be submitted to the husband for his proper execution thereof prior to 1 February 2007.
THAT if the husband fails to execute such transfer and other documents as required and remains in default on or after 5 February 2007 then, pursuant to s.106A of the Family Law Act1975 (as amended) a Registrar of the Family Court of Australia, Melbourne or Dandenong Registry, be empowered to sign in the name of the husband such transfer and other documents so as to give validity and effect to these orders.
THAT if the husband has failed or neglected to sign the transfer and other required documents by 1 February 2007 then the obligation of the wife to pay interest pursuant to Order 1(a) hereof be discharged.
THAT the husband be solely responsible to pay all municipal rates and taxes, water, gas and electricity charges and accounts owing to the date that he vacates the home (with any liability then outstanding to be adjusted against the payment required by Order 1(c) hereof) and thereafter the wife be solely responsible for all such outgoings.
THAT the husband forthwith make available to the wife, or her agent the personal chattels, possessions and furniture of the wife as are identified in Schedule A hereto, the wife being at liberty to organise to collect and remove all such items from the home forthwith.
THAT otherwise the husband be entitled to retain sole ownership and possession of the balance of furniture, chattels and contents and all of his personal possessions as are now within the home.
THAT all of the spouting purchased by the husband and located at the home, but not yet installed, is to remain at the property and be available for installation on the home by the wife.
THAT the husband vacate the home upon receipt of the sum of $50,000.00 to be paid to him pursuant to Order 1(b) hereof and thereafter he not interfere with the wife’s use and possession of the home.
THAT all extant applications, both interim and final, be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.
THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to each of the parties.
THAT there be no order as to costs of or incidental to these proceedings.
THAT each party otherwise retain their respective motor vehicles, savings and superannuation (if any) and they each be solely responsible for any liability encumbering their respective assets.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 930 of 2005

MRS WINTER

Applicant

And

MR WINTER

Respondent

REASONS FOR JUDGMENT

The matter of Winter, DGF 930 of 2005, was before me for a defended hearing. Each of the husband and wife appear in person and have, in their own way, presented their argument and submissions to the court. The issue for determination is settlement of property and the primary, indeed almost the sole asset, is the former matrimonial home at P in the State of Victoria. This is jointly‑owned in the names of the husband and wife and I am advised by both parties that its title is presently clear of the previous mortgages.
The proceedings commenced with the wife filing her Form 1 application on 30 August 2005. Subsequently, the orders sought in that document were amended and the wife then, on 26 April 2006, filed an amended Form 1 application. I have carefully read the orders sought by the wife therein, by which she sought 65 per cent of the available assets of the marriage and the opportunity to acquire the husband's right, interest and title in the home, as assessed by the court. There were other orders sought in the alternative which were detailed therein and additionally there were further financial orders seeking reimbursement for rent paid, and otherwise orders in respect of personal possessions and chattels.
Ultimately the wife filed a detailed case summary document on 2 January 2007. This is a curious document as it was clearly prepared with quasi legal assistance. It includes an update of the orders now sought by the wife in paragraph 45 thereof and otherwise seeks to incorporate the relevant paragraphs of earlier affidavits of the wife and presents a summary of argument and court extracts of earlier cases to assist and develop the wife's submissions.
The wife addressed the court on the basis of this document and at the commencement of the case the reality of the orders sought by the wife was that the home be transferred to her sole name and she pay to her former husband the sum of $32,810. The manner of calculation of that sum is explained in paragraphs 40-45 (inclusive) of that summary of argument. In reality, it is 35 per cent of the matrimonial home at its agreed value of $250,000, less a sum of $27,000 for the manner in which the husband received and retained an earlier inheritance and calculations of the loss of benefit of those moneys over the years of the marriage and separation period, together with an additional rent recovery sum of $23,900, subject to an adjustment of municipal rates and other outgoings paid by the husband.
What the wife seeks is very much an arithmetical calculation, where she has endeavoured to bring to account moneys that are not currently available to the husband but by way of a reimbursement or repayment to her of moneys either alleged lost or not properly invested by the husband or otherwise expended by her in her alternate accommodation following her decision to leave the matrimonial home. I will subsequently detail the specific orders that I regard to be just and equitable, but I say at the outset that some of the ingenious arithmetic and approach that the wife takes is inappropriate and will not be accepted by me in determining a just and equitable order.
In support of the application and orders sought by the wife, she has filed with the court three affidavits and I have read and understand her submissions in arguments in each of those documents which were filed on 30 August 2005, 26 April 2006 and, in respect of the valuation of the home, on 2 November 2006. Additionally the wife filed and I have read the two Form 13 financial statements filed on 30 August 2005 and 24 August 2006.
Additionally the wife filed supporting affidavits from individuals who were prepared to go on oath to support her cause, two of those relied upon were Ms N, filed 22 June 2006; and Ms H, filed 24 August 2006. The husband did not seek to cross‑examine either of those two witnesses. I have read their material. I am sure they were endeavouring to be helpful to the wife and I have no criticism in any way, but the material that they touch upon was in any event before the court through the evidence of the wife, although these affidavits were intended to be supported or corroborative of the wife's material.
The husband has adopted a very different attitude. Initially he responded to the wife's application by filing a Form 1A response on 8 November 2005. Unfortunately, there are no meaningful orders sought in that response. On the same day he filed a Form 13 financial statement, which I have read, and two days thereafter on 10 November 2005 he caused to be filed a reply. The husband has filed no affidavits, save for his financial statement. He has elected to put, prior to the commencement of this hearing, no evidence before the court.
From the material filed by the wife, perhaps in particular her affidavit of April 2006, the then and now attitude of the husband can be understood. In the wife's affidavit, which I accept, there is the following conversation which she said occurred between her husband and herself:
The whole thing is ungodly. The Family Law Court has no rights. There is no crime, no nothing. The Family Law Courts interfere, that's the trouble they interfere ... and it should be what the word of God says about it. They have no right; they are not Christians to start with.
Clearly the husband does have very strong views and throughout the marriage, as I read the affidavits of the wife, has adopted a very strong attitude to the wife and the children. It is unnecessary to make findings on many of the allegations made by the wife, but it does seem to be a central theme in her affidavits that the husband had a majority of his time available for his Christian activities, his church, his Bible and others but rather not his family. As I say, I find it unnecessary to further develop these issues in the context of the findings that I will make and it is clear that there was much conflict, mistrust and concern within the marriage, at least over its last decade or thereabouts, leading up to the separation in April 1999. Again I elect not to further traverse those matters.
As there are no children's issues in this case, the issue is a determination of a just and equitable property settlement pursuant to section 79(2) of the Family Law Act 1975 (as amended) ("the Act").
The husband came to the court with no specific order that he sought of the court nor, as I said, any meaningful or helpful evidence. At the outset of the case and in my discussions with him, however, he did volunteer to the court the inevitability of the sale of the property and that he would understand an order being made whereby the net assets of the parties were to be apportioned on the basis of 60 per cent to the wife and 40 per cent to himself. I record that submission arose out of specific discussion with myself and perhaps was not wholly voluntary, and, in the ideal world, no doubt, the husband would wish to simply reside in the home where he now lives with his adult daughter, K. That of course is a wholly unacceptable situation.
The wife has been out of the home and has been providing for her own accommodation now in a Ministry of Housing flat since separation. It will soon be approaching eight years since separation and the time is now to conclude this settlement of property so that the parties can finally manage and develop their future life.

LITIGANT IN PERSON(S)

Both parties represented themselves in these proceedings and accordingly it was necessary for appropriate guidelines to be considered by me in ensuring procedural fairness and for each of them to have every opportunity to put all matters, facts and evidence before the Court and to appropriately prepare and present submissions.
I was mindful of the decision of the Full Court in Re F: Litigants in Person Guideline, a decision of the Full Court handed down in June of last year and reported at 2001 (FamCA) 348.
Those Guidelines are explained by the Full Court to be as follows:
(i)A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
(ii)A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
(iii)A judge should explain to the litigant in person any procedures relevant to the litigation;
(iv)A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
(v)If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considered that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
(vi)A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
(vii)If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
(viii)A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (994) 121 ALR 148 at 150);
(ix)Where the interests of justice and the circumstances of the case require it, a judge may:
§draw attention to the law applied by the court in determining issues before it;
§question witnesses;
§identify applications or submissions which ought to be put to the Court;
§suggest procedural steps that may be taken by a party;
§clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
To that extent I have assisted the parties in seeking from them their evidence and understanding of their issues and explaining to them the way in which this case has proceeded.

FAMILY LAW ACT 1975 (CTH), S.79 AND RELEVANT CASE LAW

The proper approach to determining a section 79 application is now well established, both by the Family Law Act and by case law (see In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Davuat & Raif(1994) FLC 92-503; In the Marriage of Clauson (1995) FLC 92-595).
Section 79(2) requires that any order must be just and equitable. Section 79(2) provides:
“(Just and equitable requirement) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In considering the alteration of property orders that may be required I must have specific regard to and evaluate section 79(4) of the Family Law Act1975 (Cth). I have detailed throughout this Judgment the very specific contributions both direct and indirect, financial and non-financial and other contributions, including that of a home maker. I have referred to and incorporate within my consideration and evaluation of section 79(4) all such issues and findings.

Section 79(4) specifically provides:
[Matters to be taken into account:] In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account-
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of the, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
(d)the effect of any proposed order upon the earning capacity of either party to the marriage;
(e) the matters referred to in sub-section 75(2) so far as they are relevant;
(f)any other order made under this Act affecting a party to the marriage of a child of the marriage; and
(g)any child support order 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.
As was said by Guest J in P v P (unreported) Appeal No. WA3 of 2002:
“the mandatory prescription of the Act is to evaluate contributions pursuant to section 79(4). In Pierce v Pierce (1999) FLC 92-844 at page 85,881 the Full Court (Ellis, Baker and O’Ryan JJ) said: “… there is an obligation on the trial Judge not only to identify the relevant contributions but also to assess them”. Similarly in JEL v DDF (2001) FLC 93,075 at paragraph 152(b) the Full Court (Kay, Holden and Guest JJ) said “…it is a clear general principal, derived from recognised authority that there is a requirement to undertake an evaluation of the respective contributions”.
Accordingly I have carefully safeguarded against utilising the provisions of section 79 of the Act as a “source of social engineering or as a means of evening up the financial positions of the parties to the marriage”. See Kennon v Kennon (1997) FLC 92-757 at p. 84,303. It is not the purpose of the relevant provisions of the Act to “… equalize the financial strengths of the parties”, per Wilson J in Mallet v Mallet (1984) 156 CLR 605 at 638 when addressing his attention to the object of section 75(2) of the Act.
Section 79(4) involves a four step exercise which I have undertaken in this Judgment, namely:

a)the identification of the property of the parties, their assets and financial resources net of their liabilities;
b)the evaluation of the “contributions” and s.79(4) issues;
c)the evaluation of the matters referred to in section 75(2);
d)a determination as to whether the result is just and equitable by reference to section 79(2) of the Act. In determining whether the outcome is just and equitable it is “the real impact in money terms which is ultimately the critical issue” (JEL v DDF (supra)).

section 75(2) factors

The relevant factors which I have considered and evaluated throughout this Judgment are :
(a)the age and state of health of each of the parties;
(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;
(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;
(f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under -
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or divorced, a standard of living that in all circumstances is reasonable;
(n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(o)any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.
I have provided a copy of that sub-section to the husband. Clearly the wife has had access to the Act, because her whole summary is drawn around those sections.

BACKGROUND FACTS

These parties married in January 1964. Separation occurred in April 1999 and a decree nisi of dissolution of their marriage was pronounced, certainly without the consent or cooperation of the husband, in August 2006. The stark facts of this case are that the parties were married for 42 years. They actually lived together for 35 years. On anyone's definition, that is a long, albeit a somewhat unhappy, marriage. There are three children, now adult, of the marriage: D, born in May 1968; K, born in June 1970; and S, born in October 1971.
Both parties are in receipt of an age pension. The husband wholly relies on his age pension of some $509 per fortnight. The wife receives a somewhat reduced age pension because of her part‑time employment as a manager of a community centre. It is a significant compliment to the wife that, notwithstanding her work throughout the marriage, she rejoined after separation the workforce and is working with an agency providing community care and assistance.
The wife indicated it is employment that she greatly enjoys and looks forward to continuing working with that organisation for as long as she is able so to do. The wife's salary is approximately $290 per week take home, so it is modest, and it affords her an adequate standard of living where she has to provide only for herself. On an ongoing basis, she at least has the certainty of accommodation.
One of the significant issues confronting the husband upon any requirement for him to vacate the home and its then sale will be how and where he accommodates himself, but ultimately that is his responsibility, it is his issue. He will have a sum of money which likely will not be sufficient to buy a home or even a modest unit. He will have to carefully plan his future life in what part of Victoria he lives and in what circumstances. Those issues I otherwise leave to each of the parties to make their own separate judgment and to organise their life accordingly.
The primary obligation upon the court, as a first step in determining a just and equitable settlement of property, is to correctly understand the available pool of assets and liabilities. In this case it is a simple process. The jointly owned home has an agreed value of $250,000. There is an affidavit which the wife filed with the court annexing a professional valuation from Mr I, dated 14 September 2006. That valuation makes reference to comparable sales and to a description of the home and places a photograph of the property before the court. Both parties accept that its now value is $250,000.
There are some caveats in the submissions of the husband and in the material of the wife that touch upon the value of the home. The husband had a separate appraisal that put the value perhaps as high as $260,000. The wife's submissions clearly highlight that this property has stagnated in value over the past five or more years. Her reasoning is that the husband has substantially neglected the property, both externally and, more particularly, internally.
On numerous occasions the wife has referred in her material and submissions to the downgrading of its standard of accommodation and how the property has accumulated rubbish, has been neglected and does not reflect its true value. In that context, the wife's submission to the court involves her borrowing a sum of money, from either the National Australia Bank or the Bendigo Bank, paying a modest sum to the husband (as she would have it) and then spending money to renovate the home with the assistance of her friends or family or members of her place of employment.
Certainly no less than $20,000 has been identified by the wife as being necessary to spend on the property to bring it up to a state where it can be sold. The wife does not intend to live in the home. She would need to sell the home to discharge the mortgage debt, being the moneys that she will borrow to pay out the husband, to renovate and to prepare the home for sale. Her intention then is that the home when renovated should sell for a sum greater than $250,000 and she will then retain the balance of moneys for herself.
The husband has no proposal to borrow moneys to renovate the home. Whilst his preferred position would simply be to live in the home, that is not possible and will not occur, as there must be a just and equitable property settlement between each of these parties after such a long marriage.
Whilst it was not an issue before me, the wife in her material earlier filed did make reference to various threats that the husband had made in respect of the property. His refusal to vacate same or indeed to cause harm to the property clearly would be wholly wrong, but it is necessary for the parties, or one of the parties, to maintain appropriate insurances on the property pending its ultimate sale to a genuine third party. Again this is not a matter that the court can or should be further involved with and I make no findings on the allegations; none of them were put in cross‑examination by one party to the other party.
The case proceeded on the basis that each of the husband and wife entered the witness box. The evidence that they gave was largely in response to questions that I asked to enable me to have a better understanding of the facts and circumstances of and related to both the marriage and their current circumstances. Each of them had the opportunity to ask questions of the other, but there were minimal questions asked, and indeed the husband's preferred position was not to substantially engage in the court process and the only questions he asked were with some encouragement from the bench.
There are certain specific factual matters that I must deal with, because they are directly relevant to section 79(4) contribution issues or to section 75(2) factors. The work history of the husband and wife are detailed in the material. The wife has clearly set out her work history from January 1964 through to 2000; and thereafter in casual positions, commencing initially as a volunteer and then in paid employment with her present employer. In particular, her affidavit of 30 August 2005 gives substantial detail as to her regular employment. I accept that evidence but also it must be understood that additionally the wife was the substantial and primary person within the home as the homemaker and parent. That is a matter of very considerable relevance and importance to which I will give due and proper regard in determining contribution issues.
The husband's employment was initially substantial and responsible at the time that he was working for the emergency services. I accept the submission of the husband as to his various other forms of employment throughout the 1980s; but ultimately the husband was placed upon a disability support pension and now an age pension. In reality, he has been on that disability support pension since about 1991.
There are certain specific financial contributions that the husband has made that are of importance. He did receive $10,000 from the emergency services, his former employer, in or about 1982. Subsequently, in or about 1995 he received a $20,000 WorkCare lump sum. I am also aware that his modest superannuation sum, $6400, was also used to the benefit, or for the necessity, of the family. These are financial contributions, although they did variously assist the children all with motor vehicles, and, in the context of the years of unemployment, they were somewhat modest financial contributions.
Much of the material that the wife puts before the court does highlight the standard of living within their home, and in particular her required level of responsibility as a parent for the children. I accept her unchallenged evidence that very much she was the housekeeper, the home manager and primarily responsible for the family. That is, as I earlier said, a very significant contribution, more so if ultimately it was that the husband spent his time on his Christian or Bible interests or assisting other families to the neglect of his own family. I hesitate to make that ultimate finding, as again it would not markedly impact upon any financial adjustment that I propose to make to the assets of these parties.
Currently, K lives in the home with the husband. Her circumstances are not directly relevant, but insofar as the parties have made reference to her she is an adult and married. Her husband is currently living in Lebanon awaiting a decision of the authorities to permit his migration to Australia. That matter is under review and a further hearing or determination is expected over the next few weeks. Whatever the outcome, the reality is - and the wife has assured the court that this is the case - that K can and will move from the home. She has a job, she must be financially‑independent. It is clearly appropriate for her to reside with her father in the home until such time as he must vacate the home. There does need to be a date and time when the home is available to be renovated, marketed and sold and vacant possession given up to a purchaser.
There are other modest assets. The wife has purchased a car with the help of a bank loan. I do not propose to bring to account the asset or the liability. The wife has not asked for any adjustment in that regard and the husband does not seek an adjustment. Likewise, the husband has an old motor vehicle. Each of them have furniture, though there are specific items of sentimental or family value that the wife wants to receive from the home. I have asked her to prepare a list, which she has done. The husband has seen that list and has no issue or objection with any item on the list. My understanding from his response is that they are within the home and remain undamaged. I will be ordering that the wife or her agent can forthwith arrange for the collection of those items from the home.
Otherwise, the wife does not seek any particular item of furniture from the home, and the husband is at liberty and may remove when he vacates the home such furniture, chattels and items. What the husband must not do is to remove any furniture that is a fixture in the home, and clearly the obvious fixtures such as blinds, carpets, light fittings, built‑in shelves and the like are to remain, as would occur on a normal conveyance arrangement. I say that not because the husband has indicated he would take items from the home but just for the benefit of the parties and to make it clear that they do need to try and behave properly and, if possible, win back the respect of the other after such a long marriage.
The one item that the husband did volunteer that he had bought for the house was gutter spouting; that is not yet installed but is on the property. It clearly indicated to me a requirement that the house has for new gutters, and if the appropriate spouting is there it should remain on the property so that the wife can affix the spouting to the home and thus assist with its real value. I will be requiring the husband to leave all of that spouting behind.
The wife in her submissions has raised the issue of the inheritance that she was to be paid but which in reality the husband took and banked. The moneys were used by the husband to reduce the mortgage debt. That is an important factor, because they were not personally spent by him on his interests. The family, and indeed the wife, received a benefit because the mortgage was reduced, albeit that the wife would have spent the money herself on a car or otherwise.
I have carefully read each of wife's affidavits dealing with this issue and the various calculations that accompany the affidavit as to why there should be moneys, and interest thereon, repaid to the wife. I wholly reject that submission. Indeed the wife was aware of the counter‑argument because her affidavit was drafted on the basis of responding to the argument that clearly would have been foreshadowed, that the husband used the money to reduce a joint mortgage debt. I will not be making any adjustment in relation to this issue raised by the wife.
The other submission of the wife that is fully detailed and financially calculated in the sum of approximately $17,000 is a reimbursement to her for rental and expenses. The wife left the home, she says finally, in April 1999. As a result she had to provide a home for herself. That was at a cost to her, albeit that she now has a flat through the Ministry of Housing at a rental of approximately $100 a week. The wife's proposal is now to continue residing in that second‑storey flat, notwithstanding the stairs that she had to walk to and from her accommodation. There is clearly a financial benefit that the husband has had by occupying the home. He has not had to pay a mortgage nor rent. He has had to maintain the normal municipal rates and taxes and other domestic charges.
Over the period of seven years, I am sure that that has afforded the husband a better standard of accommodation, without the issues, the risks and the uncertainty that the wife took upon herself when she left the home. I make no comments on the separation issue. Having regard to the benefits that the husband had in remaining in the home and the cost to the wife otherwise, I will be making an adjustment, but not in the sum of $17,000, to reflect those issues. I regard that as an appropriate fact or circumstance which the justice of the case requires to be taken into account, and, in making an assessment of that section 75(2) factor, I will make a percentage adjustment.
Specifically considering the contribution made by each of the husband and the wife, pursuant to the requirements of section 79(4), it is clear that each of them in their own way have made a financial contribution to the acquisition, conservation and improvement of the property. Each of them have made a non‑financial contribution, but clearly the wife's contributions, in my assessment, outweigh those of the husband. The significant contribution that I have already dealt with related to the homemaker and parent contribution of the wife.
Otherwise, I have assessed each of the issues to be considered by the court pursuant to subparagraphs (a), (b),(c), (c) and (e) of section 79(4) of the Act. In my view, the contribution factors and issues must be assessed in the context of a very long marriage, when normally one would expect equality. In this case, as a second step in the procedure of determining a just and appropriate order, I propose to assess that there should be a financial benefit in favour of the wife, which I assess to be 5 per cent. I would assess the contribution issues therefore as to 55 per cent to the wife and 45 per cent to the husband.
Turning to the section 75(2) factors, I have concluded that a further financial adjustment is required to do justice and equity to the parties. Whilst each of the parties have a limited income and there is a very modest pool of assets, the circumstances of the husband residing in the home and his care of the home and the way in which it is now presented do primarily raise issues that, in my opinion, and in the interests and justice of the case, require a further adjustment, which I assess to be an additional 5 per cent in favour of the wife. In summary and fully having regard to the evidence in the case and the requirement of the Act in each of those two sections to which I have continuously referred, I conclude that a just and equitable order would see the home divided as to 60 per cent to the wife and 40 per cent to the husband.
I must adopt a fourth step, and that is that I must stand back and reflect upon my proposed adjustment and determine whether it is just and equitable. I well understand that the wife's financial calculations and approach would, on her material, justify to her a greater adjustment. I regard that as inappropriate in the context of such a long marriage and in their individual circumstances. Cases are always difficult where the pool of assets are modest; and what would support a couple cannot likewise support two individuals, there is simply not enough money to go around to ensure each of them will have their appropriate accommodation.
I repeat, and on the basis of the approach of each of the parties, I am having regard only to the matrimonial home and otherwise leaving, subject to the orders, the other very modest assets and furniture with each of the parties. I will endeavour to provide orders which give the husband a modest time to vacate the home. I propose to accept the wife's evidence that she has a borrowing capacity upon the title to the home. It does seem appropriate that the home needs to be sold and that the wife should have a transfer of title to her to facilitate borrowing and then the sale of the home.
It is difficult to fix a timetable, but these events must occur sooner rather than later. Accordingly, I will structure orders whereby the title to the home will be transferred to the wife. If the husband does not execute the transfer, as he said he will do, I will appoint the registrar of the court to sign that transfer document in the name of the husband. That is appropriate, as the orders of this court must be enforced and there must be no further time delay or cost to either party. I will provide to the husband a period of up until 1 February where he must sign the transfer. Thereafter I will provide instalments for the wife to borrow and to pay him moneys. All up, the figure that the husband will be paid will be $100,000.
So that the wife can achieve a renovation and sale of the home, I will provide the payments to be made in instalments as follows:
§ On 5 February 2007, $20,000
§ On 9 March 2007, $50,000
§ Upon settlement of the sale of the home or 4 September 2007, whichever event or date first occurs, the further sum of $30,000.
In reality what that means is that the wife will from her borrowings pay to the husband $70,000, so she will have money to renovate the home. The further payment will be made from the sale of the home or on 4 September 2007. I have endeavoured to structure the orders so that the husband will have $20,000 at the commencement of February 2007 to put a bond on some rental abode for himself and have a further sum of money on 9 March 2007 if he needs to refurnish or otherwise provide possessions or chattels, as he may so choose. Whatever happens, however, the husband must then vacate the home so that it can be renovated and sold.

If the wife is in default of payment, interest will be paid. Given her certainty of being able to borrow on title, that should not be a difficulty and I have endeavoured to draft orders in a commonsense way to facilitate that process.
The one matter that additionally did cause me some issue was whether there would be a real injustice if the wife renovated and then the home sold for an unexpectedly high price. The current valuation is $250,000. Clearly if the wife spends money on the home she is fully entitled to all of that money back herself. I propose to allow an additional financial benefit to the wife in terms of effort and time and energy in renovating the home by herself or with her friends. But there is a point at which if the home were to sell for greater than $300,000 then it would, in my opinion, be an injustice if the wife kept 100 per cent of the moneys over $300,000.
I have accordingly crafted the orders on the basis that whatever sum over $300,000 the house sells for the husband is to be entitled to receive 40% thereof. I want to make it perfectly clear that if the house sells in the expected range when $20,000 is spent upon it, that is anywhere between $250,000 or $300,000, then there is no additional moneys paid to the husband and those moneys are for all of the wife to cover what she spends and her time and effort in preparing the home for sale. It is only if there is some form of substantial increase in the value of the home that can be attributed to the ownership of the home and the land that the husband would additionally benefit.
Otherwise the orders will provide as I have indicated in relation to the chattels, the spouting and each party retaining their cars, the wife retaining her modest current superannuation benefits.
If the parties each stay in court for a few moments my court officer will bring the orders back. The wife will need the orders to go to a bank with and/or the title and I will just re‑engross them with that vacation date. Somewhere along the line I hope you each find time to talk to the other. It is a long marriage. I know the events - and I am not lecturing anyone. Do the best you can with what there is, because there is only limited money in this home. I am not here to lecture, but I am just saying you have got three children, for the sake of talking, it's time to start, and a changeover and a sale of the home is much easier done if you are talking.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:
Date: 19 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WINTER & WINTER

[2007] FamCA 218

5 January 2007

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