Wyatt and Wyatt

[2016] FCCA 2004

FEDERAL CIRCUIT COURT OF AUSTRALIA

WYATT & WYATT [2016] FCCA 2004

Catchwords:
FAMILY LAW − Property − assessment of contributions and adjustments −  return of chattels.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79

Applicant: MS WYATT

Respondent: MR WYATT

File Number: DGC 780 of 2015

Judgment of: Judge Phipps

Hearing date: 22 July 2016

Date of Last Submission: 22 July 2016

Delivered at: Dandenong

Delivered on: 9 August 2016

REPRESENTATION

The Applicant:	Appearing on her own behalf
The Respondent:	Appearing on his own behalf

ORDERS

1. That within 60 days of the date of this order (“the date”) the husband pay the wife the amount of $80,884 (“the payment”).

2. That contemporaneously with the payment:

   (a)The wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right, title and interest in the real property situated at and known as Property R (“the property”);

   (b)The husband refinance the mortgage over the property so as to remove the wife from any liability under the mortgage.

3. That in the event that the whole of the payment has not been made by the date, the husband and wife sign all documents and do all things necessary to sell the property (“the sale”) and upon completion of the sale the proceeds of the sale be applied:

   (a)First, to pay all costs, commissions and expenses of the said transfer and sale;

   (b)Secondly, to discharge the mortgage and any other encumbrances affecting the real property;

   (c)Thirdly, so much of the payment then outstanding together with interest thereon at the rate of 7.75% per annum adjusted monthly from the date to the wife; and

   (d)Fourth, the balance to the husband.

4. That pending the payment or completion of the sale:

   (a)The husband have the sole right to occupy the property and during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates taxes and like apportionable outgoings of the property as they fall due;

   (b)The parties hold their respective interests in the property upon trust pursuant to these orders; and

   (c)Neither party encumber the property without the consent in writing of the other party.

5. The husband deliver to the wife a four poster bed, their son X’s (hobby omitted) and equipment, five picture plates if they can be found and two DVDs of plays if they can be found and for that purpose the wife nominate a date and time when she will attend to collect these items and the husband make the items available at that time.

6. That unless specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders;

   (a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses in action) owned by or in possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the husband);

   (b)Insurance policies remain the sole property of the owner or beneficiary named therein; and

   (c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders. 

IT IS NOTED that publication of this judgment under the pseudonym Wyatt & Wyatt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 780 of 2015

MS WYATT

Applicant

And

MR WYATT

Respondent

REASONS FOR JUDGMENT

Introduction

1. The husband and wife own a property at Property R. Apart from some household goods and personal possessions and the husband’s superannuation this is their only property.  Each party puts a value on the household goods but there is no professional valuation and from the parties’ circumstances it seems likely that they have little value.

2. The wife says the property division should be 70 per cent to her and 30 per cent to the husband.  The husband says it should be between 55 per cent to 60 per cent to the wife and 35 to 40 per cent to him.

3. The parties accept the valuation done by (omitted) Valuations.  The valuations are $240,000 post-renovation and $230,000 pre-renovation.  The husband remains living in the property and has carried out some renovations subsequent to the separation.  The mortgage is $108,000.

4. The wife was born on (omitted) 1960 and is aged 56.  The husband was born on (omitted) 1963 and is aged 53.  There are two children of the relationship X born (omitted) 1997 aged 19 and Y born (omitted) 1999 aged 16.  Both live with the wife and attend secondary school.  X is completing year 12.  The children spend no time with the husband.  The husband pays $48.50 a fortnight child support for Y.  Shortly prior to the hearing, the wife filed an amended application in which she sought adult child maintenance for X.  The husband had not had an opportunity to respond and that application is adjourned.  The wife says she seeks at least the same amount as the husband pays for Y.

5. The parties married on (omitted) 1997 after approximately one year of cohabitation.  They separated in November 2013.  The wife remained living in the former matrimonial home until 1 January 2014 when she left.  There were some breaks in the relationship from August 2013 to November 2013.

6. The wife has three sons from a previous marriage who, at the time of the marriage in (omitted) 1997, were aged 11, 13 and 14.  They lived with the husband and wife until the husband and wife moved to the property in Property R.  At that time they were aged 17, 18 and 19.

7. At the commencement of the relationship the wife owned a Ford Falcon station wagon which she estimates was valued at $9,000 and she had a credit card debt of $800.

8. In 2000 the parties purchased Property M for $138,000.  The wife’s parents contributed $50,000 as a gift and the parties obtained a mortgage of $90,000.  They used $40,000 towards the purchase of the home and $10,000 to buy furniture.  In 2002 they obtained a loan of $30,000 to renovate the property.  In 2003, they sold the property for $218,000 and purchased Property R for $158,000.  The Mortgage is now $108,000.

9. Following separation the husband remained in the property and the wife moved out with the two children.  The wife now lives in rented premises with her partner who is aged 56 and is a pensioner with an income of $325 a week.  The wife’s income is $494.50 week which is the Newstart allowance of $220, family tax benefit and rent assistance $250 and child support $24.50.

10. The wife’s rent is $200 a week.  She is a student.

11. From April 1997 until December 2005 the husband was employed as a (omitted) for (employer omitted) eventually earning, he says, between $80,000 and $85,000 per annum.  The wife says he was employed from 1998 to 2006 and earned $69,000 a year.  From late 2005 he was unemployed for about three months and then worked three months (occupation omitted) and then a further three months (occupation omitted).

12. At the end of 2006 he commenced working for (employer omitted) and worked for approximately 18 months as a (omitted) earning $650 per week.  He was unemployed for three months during 2008 and then worked as a (occupation omitted) for about nine months and then was unemployed for another three months.

13. From 2010 he worked for (employer omitted) for 2½ years earning $19 per hour.  From mid-2012 he worked for one year at (employer omitted) earning $17 per hour as a (omitted).

14. Following that he was unemployed for 12 months he said with a concentrated effort to try and spend more time with his wife and family to repair the marriage.  In April 2014 he commenced work as a (omitted) for (employer omitted) and remains employed earning $460 per week.  He has re-partnered and his partner’s income is $180 per week according to the husband’s financial statement of 1 June 2015.

15. The husband remains living in the former matrimonial home at Property R.  His financial statement says the mortgage payments are $130 per week.

16. The wife worked full time and part time for the (employer omitted) from 1995 to 2003.  She says her income was approximately $30,000 per year.  From 2006 to 2013 she was a home school teacher for the children.  Given the husband’s work history, the wife had the principal task of homemaker and caring for the children.

17. The parties attended a Conciliation Conference on 28 August 2015 and signed Heads of Agreement which provide for the husband to pay the wife $35,000 in 120 days and the wife to transfer her interest in the former matrimonial home.  It provided for $10,000 of the husband’s superannuation to be paid to the wife.

18. The application came before me for mention on 14 September 2015.  The wife appeared, the husband did not.  The wife was not prepared to have the Heads of Agreement as an order and the matter was fixed for final hearing.  A valuation of the property of $170,000 was used for the purposes of the conciliation conference.  In her affidavits, the wife said she was bullied into accepting that valuation.  The valuation was provided by the husband based on the Council rate valuation.  He disputes that the wife was bullied into accepting  it.  Whether or not she was, the application is now at final hearing and the agreed valuations are $230,000 unrenovated and $240,000 renovated.

19. The husband has carried out some renovations subsequent to separation and so claims that the unrenovated valuation should be used.  The application originally came before me for final hearing on 7 April 2016.  The parties had not obtained valuations and the issue about the difference in value between renovated and unrenovated was raised by the husband.

20. The steps in determining a property application under s.79 of the Family Law Act 1975 (Cth) are to determine the parties’ assets and liabilities, whether it is just and equitable to make an order, then determine the parties contributions and then whether any adjustments should be made for the matters set out in s.75(2).

21. The property is the matrimonial home in Property R and the husband’s superannuation.  The normal rule is that the valuation at the date of hearing should be used.  In this case, the wife has made no contributions post separation and I consider the proper approach is to use the valuation of $230,000, the unrenovated valuation.

22. The husband says he has superannuation of $18,724.60.  The wife alleges he has $80,000 but there is no evidence that this is the case.  She has had some access to legal advice and at the hearing on 7 April 2016 I told her there was a means by which she could obtain information about the husband’s superannuation from his superannuation fund.  In his financial statement the husband says that his superannuation is (omitted) $1,464 and (omitted) $16,900 in his affidavit of 27 April 2016 the husband says his superannuation is $18,724.60.  To that affidavit, he attaches documents which show the following each with April 2016 dates:

    (omitted) retirement savings account    $    1,512.83

    (omitted)   $    1,739.38

    (omitted)   $  15,472.39

23. The property is:

    Property R     $230,000

    Liabilities

    Mortgage of   $     108,000

    (omitted) council rates                 $    2,571.40

    Total liabilities   $110,171.40

    Net non-superannuation assets              $119,828.60

    Husband’s superannuation  $  18,724.60

    Total superannuation

    and non-superannuation   $138,553.20

24. The wife has a judgment debt with costs of $2,169.70.  The judgment creditor is Mr G.  The wife does not say what the judgment is for.  The court order was made on 18 December 2015 and so the best assessment I can make is that it is a post separation debt.

25. The next step is to determine whether it is just and equitable to make an order.  It is in this case.  The parties’ relationship has come to an end.  The basis on which they shared their finances is finished.  They both apply for an order.

26. The next step is to determine the parties’ contributions taking into account the matters in s.79(4). These are their financial and other than-financial contributions to the acquisition, conservation or improvement of the property and contributions to the welfare of the marriage and as homemaker and carer for the children.

27. The parties’ relationship was from about the end of 1996 to about the end of 2013, 17 years.  The small amount of assets the wife had at the commencement of the relationship is insignificant.

28. The wife worked and had an income of about $30,000 a year until 2003.  The husband had an income which was more than twice that until 2006 and then income at lower rates for varying amounts of time.  From 2003 the wife was the home school teacher of the children.  The three sons from the wife’s first marriage lived with the parties until 2003.  The evidence does not show to what extent the father of these children contributed to their upkeep.

29. The husband says that at the time of separation there were the following debts:

    a)(omitted) council rates $2,571.45, not yet paid;

    b)(omitted) School $1,000, paid by the husband subsequent to separation;

    c)(omitted) water $225.69 paid by the husband subsequent to separation; and

    d)Energy Australia $1,268.31 paid by the husband subsequent to separation.

30. The parties’ principle asset is the property at Property R.  They have this because of the $50,000 contribution made by the wife through the gift from her parents in 2000.  After this contribution was made there was nearly 13 years of cohabitation.  The husband has made a contribution post separation by paying debts which existed at the time of separation.  He has had the benefit of living in the former matrimonial home.  Since separation, the wife has had the whole responsibility of caring for the children and almost all of the financial responsibility.

31. Apart from the wife’s contribution of $50,000 in 2000 the parties’ contributions during cohabitation are equal.  The husband’s greater financial contribution is balanced by the wife’s contribution as homemaker and carer of the children.  The payment by the husband of debts which exist at the time of separation makes no difference to the balance of contributions.  The one factor which does make a difference is the wife’s contribution of $50,000 used for the purchase and furnishing of the first matrimonial home 13 years before the relationship came to an end.  This means an adjustment of 7½ per cent in the wife’s favour so that contributions are 57½ per cent by the wife and 42½ per cent by the husband. 

32. The next step is to determine any adjustment under s.75(2). The wife says she has health problems although there is no medical evidence. The husband does not allege any health problems. The wife is currently studying for a (course omitted) and so is dependent on social security payments. She does have an income earning potential.

33. The husband has a history of employment and currently has part-time employment. Both parties have income earning potential.  The husband has experience in various industries and the wife has not been in paid employment for a number of years and is studying. She has the potential to earn income but not as strong as the husbands.

34. The wife has the care of one child aged under 18 and receives a small amount of child support $48.95, a fortnight. She also has the care of the child who is over 18 who is still at school. She has made an application for adult child maintenance.  If that is successful, any amount will be similar at most to the child support.

35. I will treat the husband’s superannuation as a financial resource for the purposes of s.75(2) and not make a separate superannuation order. The husband is 53 and so it is some years before he can obtain access to his superannuation. The wife has not provided procedural fairness to the trustee of the one fund which could be the subject of a splitting order. She is self-represented and I doubt her ability to go through the necessary process. If there was a splitting order to divide the husband’s superannuation at most it would be equally between the parties. The wife has made no greater contribution to the husband’s superannuation than the husband and by the time the husband can access it s.75(2) considerations will be equal. Some of the husband’s superannuation probably accrued before cohabitation. A superannuation splitting order would give the wife a superannuation amount of no more than $9,000.

36. Taking into account all these matters including the small amount of the property pool, the proper adjustment is 10% in favour of the wife.  This makes the final adjustment 67½ per cent to the wife and 32½ per cent to the husband.

37. The husband wishes to keep the property.  He must refinance the mortgage and pay the wife the amount of $80,884.

38. I will make the amount payable in 90 days.  If the husband is unable to pay the amount the property must be sold and the amount of $80,884 plus interest paid to the wife.

39. At the hearing, the wife raised the issue of some chattels.  She listed a number of items.  The husband said he had disposed of some and other items no longer existed.  He agreed for the wife to take a four poster bed, the son’s (hobby omitted) equipment, five picture plates if they could be found and two DVDs of plays the children had performed in at school if they could be found.

40. Two items are disputed, a dining table and a print “(omitted)”.  Both the husband and wife want them.  The dining table is disassembled.  The husband says he has plans for it.  The wife says she has only a small table and wants the dining table.  The issue was raised by the wife only at the hearing.  I have no way of determining who should receive the two disputed items other than saying they should remain where they are.  They seem to be of little, if any, value.  I will make orders for the return of the agreed items.

41. I am satisfied that the result and the manner of implementing it is just and equitable.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 9 August 2016