Mallett v Mallett

[2009] FamCA 385

FAMILY LAW - PROPERTY SETTLEMENT - Pool of Assets - Contributions - Adjustments - Just and equitable

Family Law Act 1975 (Cth) ss 75, 79

In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355

In the Marriage of Omacini [2005] FamCA 195; (2005) 33 Fam LR 134

DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97

Mallett v Mallett [1984] HCA 21; (1984) 9 Fam LR 449

In the Marriage of Ferraro [1992] FamCA 64; (1992) 16 Fam LR 1

In the Marriage of Lenehan [1987] FamCA 8; (1987) 11 Fam LR 615

In the Marriage of Norbis [1986] HCA 17; (1986) 10 Fam LR 819; FLC 91-712

In the Marriage of Zyk (1995) 19 Fam LR 797

1. The husband shall pay to the wife the sum of $590,000 within 21 days.
2. Forthwith upon that payment, the wife do all 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 rights, title and interest in the real property situated at and known as B in the State of New South Wales being the whole of the land and more particularly described in Certificate of Title, Folio Identifier ....
3. As and from the date of the said Transfer in compliance with Order 2 hereof the husband indemnify the wife against all payments and liabilities pursuant to all mortgages registered against the title of the said property and further the husband indemnify the wife against all rates, taxes and outgoings of or with respect to the said property of whatsoever kind.
4. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or under any other Order in these proceedings, each party be entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders and for these purposes the furniture and furnishings in the said home are considered to be in the possession of the husband, including money in bank accounts, superannuation or other employment entitlements, insurance policies, motor vehicles, shares, jewellery and personal effects.
5. Each party shall be solely reliable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
6. In the event that either party refuses or neglects to execute any Deed or instrument an officer of the Court be appointed pursuant to Section 106A, to execute such Deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of the Deed or instrument and the legal costs incurred in obtaining compliance with the orders will be borne by the defaulting party on an indemnity basis.

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

1. The parties married 43 years ago and last lived under one roof in March 2008. They cannot agree on a settlement of their property.

1. The wife seeks orders in terms of her Application for Final Orders filed 2 May 2008 save that she seeks that the quantum of the payment referred to in paragraphs 1 and 5 should be such as to represent an equal division of property. In the application she seeks:
   1. That the husband shall pay to the wife the sum of $800,000 within 21 days.
   2. That the wife do all 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 rights, title and interest in the real property situated at and known as [B] in the State of New South Wales being the whole of the land and more particularly described in Certificate of Title, Folio Identifier [...].
   3. That as and from the date of the said Transfer in compliance with Order 2 hereof the husband indemnify the wife against all payments and liabilities pursuant to all mortgages registered against the title of the said property and further the husband indemnify the wife against all rates, taxes and outgoings of or with respect to the said property of whatsoever kind.
   4. In the event that the husband fails to pay the wife the amount in Order 1 hereof by the due date then both parties forthwith thereafter do all acts and things and execute all documents and writings necessary to sell by public auction the property at [B], in the State of New South Wales, being the whole of the property contained in [...] be sold on the following terms and conditions and in accordance with Order 4 hereof:

a. The parties shall nominate a local Real Estate Agent who shall be appointed for the purposes of offering the property for sale by way of public auction.

b. In the event that the parties cannot agree on the nomination of an Agent, an order that the husband and the wife write to the President for the time being, of the Real Estate Institute of New South Wales requesting the said President to nominate an Agent for the purposes of conducting the sale of the business premises.

c. The said property is to be listed for sale at a reserve price to be agreed to by the parties or failing agreement the reserve price to be nominated by the nominated Real Estate Agent.

d. The parties shall give instructions as necessary to Caroline Chung of Milne Berry Berger & Freedman, Solicitors, [of] Sydney in the State of New South Wales for the preparation of a Contract for Sale.

e. The parties shall execute the Contract for Sale.

f. In the event that the business premises are not sold following the auction referred to in Order 4(a) "a" hereof then the property shall within one (1) calendar month be re-listed for sale by private treaty with agreement by the parties on a sale price and if no agreement then taking the advice of the agent as to a sale price.

g. The parties shall cooperate in every reasonable way with the agent in relation to the auction of the business premises, including making keys available, allowing inspection of the premises at all times requested by the Agent and ensuring that the premises are in a neat and clean condition at the time of inspection by prospective purchasers.

h. The parties shall execute all other documents necessary to complete the sale of the property including any discharge of mortgage if any.

1. Upon the sale of the business premises the proceeds of sale should be paid in the following manner:

a. Payment of all monies necessary to discharge any registered mortgage over the property.

b. Payment of Agent's commission and auction expenses (if any) due on the sale of the business.

c. Payment of all legal costs in relation to the sale of the business.

d. Payment of all water rates, council rates, land tax and other applicable conveyancing adjustments.

e. Nett balance of proceeds of sale be divided as to $800,000 to the wife.

f. The balance of the nett proceeds of sale to be given to the husband.

1. That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or under any other Order in these proceedings, each party be entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders and for these purposes the furniture and furnishings in the said home are considered to be in the possession of the husband, including money in bank accounts, superannuation or other employment entitlements, insurance policies, motor vehicles, shares, jewellery and personal effects.
2. That each party be solely reliable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
3. In the event that either party refuses or neglects to execute any Deed or instrument an officer of the Court be appointed pursuant to Section 106A, to execute such Deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of the Deed or instrument and the legal costs incurred in obtaining compliance with the orders will be borne by the defaulting party on an indemnity basis.
4. That the husband pay the wife's costs of and incidental to these proceedings.

1. The wife reserves the right to amend the orders sought upon the husband providing full disclosure of his financial situation pursuant to Rule 13.04
2. The husband seeks orders in accordance with his Response filed 9 July 2008 save that he does not press paragraph 3. Thus the husband seeks:
   1. That within 42 days from the date of these Orders each party shall do all acts and things and sign all necessary documents in order to cause the following to occur simultaneously.

(a) the transfer of the Applicant wife's interest in the property known as and situate at [B] (the [B] property) to the Respondent husband at the Respondent husband's sole cost.

(b) That a declaration be made that the property known and situate at [P] (the [P] property) presently in the Respondent Husband's name will remain in the Respondent husband's name and shall not be affected by the Applicant wife's claim.

(c) That the discharge of any mortgage over the two (2) properties presently registered shall be at the cost of the Respondent husband.

1. That upon compliance by the parties with Order 1 above, the Respondent husband shall indemnify the Applicant wife and keep the Applicant wife indemnified in respect of all liabilities in relation to the [P] and [B] properties whenever and however arising.
2. That simultaneously with order 1 above, the Respondent husband shall pay to the Applicant wife, or as she may direct, the sum of $250,000. (withdrawn)
3. That, as between the Respondent husband and the Applicant wife and subject to the above Orders, the Respondent husband and Applicant wife are declared to be solely entitled to:

(a) All personal property now in his/her respective possession or control.

(b) Any shares, debentures, units in unit trusts, bank, building society or credit accounts standing in his/her name respectively.

(c) Any interest in any life insurance policy or superannuation funding standing his his/her sole name respectively.

1. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, then the Registrar of the Court shall be appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
2. It is declared pursuant to Section 81 of the Family Law Act, 1975 (Cth) that the parties intend these Orders to finally determine all financial relations between them.

Financial Statement of the wife filed 8 April 2009.

Financial Statement of the husband sworn/filed 19 February 2009.

1. As at the date of the hearing the wife was 69 years of age and the husband was 78. They met in 1965 and were married and commenced cohabitation in March 1966. The parties last lived under one roof in March 2008.

1. The two children of the marriage are over 18 years of age.

1. In 1960 the husband purchased M property. The purchase price was approximately £1,100.
2. In 1962 the husband purchased L property for the sum of approximately £4,500.
3. The parties met in 1965 and in March 1966 they were married and commenced living together. Immediately prior to the wedding the husband had been residing with one of his sisters and the L property was rented out.
4. The wife worked as a Machinist prior to marriage but did not have paid employment thereafter. Following the wedding the parties first resided together at the L property.
5. R Daria was born in April 1967.
6. In September 1968 the husband purchased D property for approximately $9,000. The husband took out a mortgage in the sum of $8,100 and the deposit and the balance were paid from savings. The property was in a state of disrepair.
7. In 1970 the husband planned and contracted for extensive renovations to the D property in order to rent it out. The rent was banked by the wife.
8. On the termination of a lease in relation to part of the D property in 1972, the husband ran a shop from those premises for about 12 months.
9. In 1972 the property at M was sold for approximately $12,850. The proceeds of sale were applied to the purchase of P property.
10. O Daria was born in April 1972.
11. On 21 December 1972 the husband purchased P property (the former matrimonial home) for approximately $19,000. The difference between the purchase cost and the sale proceeds of the M property was made up by the husband's savings from his employment.
12. From 1973 the husband ran a business manufacturing and selling car accessories. That business continued to trade until 2004/2005.
13. In 1973 the husband became seriously ill with anaemia. He collapsed a number of times and was hospitalised.
14. On 2 July 1973 the husband transferred the property at D to the wife. The Memorandum of Transfer put the consideration at $28,500. It is not suggested that the wife paid the husband that or any amount for the transfer. The husband contends that he transferred the property to the wife because he thought he was dying. The wife contends that he was motivated by taxation advantages in relation to the rental income from that property. For the purposes of it does not matter why he transferred the property to the wife.

1. The only witnesses called for cross-examination were the parties and their son, O.
2. The wife gave her evidence through an interpreter. As with the husband, English is not her first language. Unfortunately she swore her affidavits without the assistance of an interpreter. Key examples of problems with the wife's written evidence are:
   • In cross-examination she could not confirm her evidence about contributing $27,000 to the purchase of D property. She could not recall where that figure came from and did not say that she contributed that particular sum. The best she could say was that she did put some money in. She is sure of that because she says the husband would not have put the property in joint names otherwise.
   • Similarly, despite giving the evidence in her affidavit, during cross-examination she had no independent recollection of having £10,000 in savings at the commencement of the marriage.
   • The wife deposes to an event that occurred when the children were 5 and 7 respectively. They were born in 1967 and 1972 and therefore at no time were they 7 and 5 together.
3. Many of the relevant events were 40 years ago and there can be no criticism of the wife not having a clear recollection of those matters. The problem is that her affidavits are drawn in unequivocal terms. The wife concedes to having a poor memory and agreed with the proposition that it might have deteriorated in the last year or so. I did not detect any intention in her to mislead the Court.
4. The husband also gave his evidence through an interpreter. He says that he has reasonable facility in English but needs to have some words explained to him. Two questions into his cross-examination he had repudiated two statements made in his affidavit. He was asked about that and said that he did not have the affidavit translated to him at the time he executed it. A few minutes later he said that he did have the affidavit translated to him, by O. By agreement of both counsel, his cross-examination was then interrupted while the interpreter read over the entire text of his affidavit to the husband. At the conclusion of that exercise the husband said that the affidavit is correct. That made no sense as the husband had already given evidence that contradicted parts of his affidavit. He proceeded in the course of his resumed cross-examination to contradict more of his affidavit.

1. It is submitted on behalf of the wife there should be an equal division of property because this was a long marriage, that contributions were equal and there is no basis for any adjustment under section 75(2).
2. The submission is that the facts and concessions made by the husband and on his behalf reveal a marriage persisting for the best part of 40 years. The husband was the breadwinner. The wife was the main parent and homemaker and helped out in the businesses. In some instances the wife was prevented from contributing. She was asked not to continue to attend at the hospital because he was upset. She says there was violent conduct that caused her to leave the home. It is argued that despite refusing to lend money to the husband, she contributed to the S property because of the mortgage repayments at 27% interest per annum made from family income.
3. It is submitted for the husband that although it spanned a long period, this was not a long marriage and that the parties should retain what they have because the husband made the greater contribution (60:40). It is argued that because of his health there should be a further 12% adjustment to him.
4. The contribution argument relies on either:
   • an asset by asset approach, which gives the wife no credit in relation to the properties the husband owned at marriage or the S property; or
   • credit for the impact of the two properties the husband brought into the marriage and the S property being the husband's sole contribution.
5. It is submitted that the wife did not apply her income from renting the D property or her inheritance, to the marriage. The fact that the wife refused to contribute to the purchase or renovation of the S property precludes her from benefiting from the increase in value of that property. It is submitted that those arguments get the husband to 60%. As to section 75(2) matters the submission is that the husband has special needs because of his age and health and therefore is in a much worse position than the wife.

The approach in proceedings under section 79

1. The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [1]
2. There is no mention of steps in section 79 but it is convenient to approach the exercise of discretion in a structured way. The Full Court has supported such an approach.

The property of the parties at the date of the hearing**

1. The Court is required to make a finding as to the property of the parties. That involves identifying assets, liabilities and financial resources and their values.
2. There are circumstances whereby assets are included in the list for division although they no longer exist. The same logic would apply to the exclusion from the relevant list of liabilities, debts that do exist at the date of the hearing. In the Marriage of Omacini [2005] FamCA 195; (2005) 33 Fam LR 134 the Full Court noted:

[30] To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:

(a) Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:

[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.

(b) Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend [1994] FamCA 144; (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:

In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.

(c) In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:

As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or

(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.

1. The parties have agreed on the main entries of a balance sheet. As to the disputed issues:

1. The competing balance sheets set out on behalf of each of the parties, figures for household contents. Unfortunately the parties make assertions about what each other has and there is no valuation evidence. In those circumstances I will omit household contents from the list of assets. It may be that the husband has more of the parties' household possessions than the wife simply because it was the wife who moved out, but I cannot make that or any other useful finding.

1. The husband puts the value at $15,000. The wife puts it at $18,700. There is no valuation evidence. I will include the car at $15,000 on the basis of the husband's admission against interest.

1. The husband spent about $100,000 over the last year. The submission on behalf of the wife is that it is unexplained and should be read back to the list of assets. The husband was cross-examined on this issue and said he didn't know what he spent but he had expenses to do with houses, cars and medical expenses. There is no evidence that the husband retains funds apart from those he discloses. I am to make findings about the assets and their value at the date of trial. If the wife wants something else then the onus is on her. She has not discharged that onus.

1. The wife asserts that there should be a figure included in the list of assets for the stock of the car accessory business, at a figure of $50,000. The husband says that the stock and machinery is worth nothing. The business ceased trading in 2004/2005. I have some doubts about the value the wife attributes to the stock in those circumstances. I asked if the husband would let the wife have the stock and he agreed. I was told through her counsel that she does not want it. I gather that in the wife's mind, the stock has a value of $50,000 if the husband retains it but no value if it was to pass to her. On that basis I find that the stock has no value.

1. The balance sheet proposed on behalf of the wife includes the figures resulting from her contracting to purchase another property. She declares an equity of $61,000 in her T property and shows liabilities including the balance of the purchase price and purchase costs. The husband's balance sheet includes just the assets resulting from that transaction. I prefer the approach proposed on behalf of the husband. This is a very recent purchase. There is no reason why there should be an impact on the husband of the costs incurred by the wife in purchasing her new property.

1. In accordance with the approach referred to in In the Marriage of DJM & JLM above, I will read back in the legal costs already paid by the parties. Both parties have savings and therefore I can be confident that the pool would be greater but for the payment of costs. The wife has paid $22,840.45. The husband has paid $8,539.06.
2. I find that the assets are:

1. The obligations placed on the Court by s 79 call for an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets[2]. There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of parties[3].
2. As to whether the Court should apply the considerations in section 79(4) to the assets globally or asset by asset, the authorities have it the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan [1987] FamCA 8; (1987) 11 Fam LR 615; In the Marriage of Norbis [1986] HCA 17; (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.
3. In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court allowed that superannuation may be included in the list of property drawn up as "the first step" in the determination of proceedings under , whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:

"... approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach."

1. The wife's case is argued on a global basis. The husband's case is argued, in the alternative, on an asset by asset and on a global basis. I will adopt a global approach. This was a relationship spanning over 40 years. The common ground facts support a finding of contributions along, what might be described as traditional lines, extending over much of that period. The timing and import of contributions can be addressed within the global framework.

Section 79(4)(a) Contributions

1. Financial contributions, both direct and indirect were made by each of the parties.
2. The husband came into the relationship with his interest in:

1. The wife had some savings. In their affidavits, the wife said she had £10,000, the husband says it was $5,000. When asked about this in cross-examination the wife could not support her own evidence. Therefore she does not press the figure contained in her affidavit. She has no independent recollection of the amount of her savings. The wife says she worked 5 years as a Machinist prior to marriage. It is highly unlikely that a young woman working as a Machinist in the 1960's could save an average of £2,000 a year for five years.
2. It is an agreed fact that she had savings. On the basis of the husband's concession, I find that the wife had at least $5,000 in savings.
3. In 1990 the wife received $32,823 inheritance from her mother's estate. The husband would have it that the wife applied her inheritance and the rental from the D property to her private purposes. The wife says that she may have retained $2,000 for her own purposes. In any event wife's current savings are brought to account in the pool of assets. The unchallenged evidence of the wife is that her mother gave her money at various times. For example she says her mother gave her $3,000 when the children were young which she contributed towards the construction of a laundry at P property.
4. There is no suggestion of hidden assets. I am satisfied that the parties generally applied their income and assets to the purposes of the marriage. That includes the rental and inheritance received by the wife.
5. In relation to the period of the parties' relationship, the husband sets out his work history as follows:

Ran car accessory business and manufactured other products

1. Save that since 1973 the parties kept aspects of their finances separate, the income received by the husband from those businesses was applied to family purposes.
2. The husband conceded in cross-examination that he did not want the wife to have paid employment. I do not think that the parties' expectations in that regard are relevant. The fact is that the wife had no work as a paid employee during the marriage or since separation.
3. The wife says that she assisted with the family enterprises. The husband says she did not. The husband deposed ".... nor did she make any direct contributions to the running of any of my businesses."
4. The wife deposes to attending at and looking after the fruit shop after she dropped the children at school. She minded the store on days when the husband attended the fruit and vegetable market, while the husband changed all of the vegetables and fruit around and stacked the shelves. The husband says that the only time the wife attended at the fruit shop was when he wanted money.
5. The wife says that in respect of the car accessory business she handled all of the bookwork and all of the entries and the banking etc. She says that as a result of those activities she took over the payment of all of the outgoings for the home and the business.
6. The husband deposes to being "... responsible for all of the bookwork and banking such as drawing cheques to pay suppliers and /bills and write and calculate all of the invoices." However in cross-examination he said words to the effect that his written English is poor. He was shown two deposit books from his car accessory business from the 1990's and a cheque book. He does not assert that most or any significant number of the entries were completed by him. The deposit book for the period end March 1990 to April 1991 is largely composed of entries signed by the wife. A few are signed by the husband. Whatever else she did, the wife is likely to have written out receipts, invoices, cheques and deposit slips for the various businesses. O too undertook some of that work. The wife says that O did that after he finished high school but that she retained overall responsibility to bank the moneys received. O was 6 years of age when the husband opened the fruit market and 9 when the car accessory business commenced. I doubt that he undertook the day to day management of the business finances at those ages.

Section 79(4)(b) contributions

1. This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
2. The husband organised renovations to the P property. He also undertook shovelling dirt, mixing cement, carried heavy timber and other heavy labouring for the tradesmen for the extension in the early 1980's.
3. The husband commissioned extensive renovations to D property.
4. The husband employed builders to renovate and improve B property.
5. The husband employed an architect to redesign and build extensions to S property in 1991. In 1995 he employed an architect to draw plans for dual occupancy in anticipation of the parties' daughter R and her husband moving in. I am not sure that the dual occupancy renovations were ever undertaken.
6. The husband says he was responsible for the renovations to D property made in the mid 1990's. The wife says it was her. The evidence suggests that they were both involved. On the basis of the documents bundled in Exhibit 6, the painting contractor and carpet and vinyl contractors provided services to the wife; the kitchen company gave a quote to "Mr & Mrs [Daria]" and the council dealt with the wife's building application but through her agent "[Mr Daria]".

Section 79(4)(c) contributions

1. This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
2. Taken together, the effect of the written and oral evidence is that the wife made the main parenting and homemaker contribution. That concession comes rather grudgingly from the husband's case. For example, in relation to the children, it is conceded in the husband's case that the wife generally looked after the children until they respectively reached 15 years of age. The fact is the husband worked very hard in various forms of paid employment. He had two jobs at times and worked long hours. There were 4.00 am starts for the purposes of the fruit shop. The husband was simply not available to undertake a significant parenting and homemaker role. O says that after his sister and he reached 15 years of age, when his father was at work, he ate takeaway or made his own meals.
3. The husband says that the wife undertook the majority of the homemaker jobs until the children were about 15 years of age. O was 15 years of age in 1987. He says that the wife provided little by way of homemaker services to him from around 1974 and that the parties were separated under one roof from 1979. O recalls that his mother ceased cooking meals for the husband when he (O) was about 7 years of age (about 1979). The wife contends that she provided homemaker contributions throughout the marriage save for a time after the husband's illness when he refused her cooking. It is an agreed fact that the wife was out of the home from late 2004 to April 2005. She resumed doing the cooking thereafter. She says she continued to do all the housework and other work around the home until she departed from the home in 2008.
4. Despite giving the wife very little credit for any parenting or homemaker contribution after the children turned 15 - the husband made a general concession in relation to that role for a far longer period.
5. He was asked to the effect:

"Would you agree it is the usual thing in an Italian family for the wife to care for home and children and the husband to go out to work?

1. Through the interpreter, the husband responded:

"I put it to you that was exactly what happened in your family until the year 2007.

1. Through the interpreter, the husband responded:

1. The parties' son, O readily made concessions despite thereby contradicting the thrust of his own affidavit. It was put to O:

"Your father's evidence is that he was working very hard when you were young, all his life?

"Your mother says she was responsible for all the housework and the cooking and all the childcare responsibilities. That's true isn't it?"

1. The agreed facts have the wife undertaking the main parenting and homemaker role. The scope of that role changed over the years as the children grew up. O joined the workforce in his late teens.
2. There was no exploration of the issue during the trial but the concept of a parent ceasing to provide parenting services to her children as they respectively reach a certain age, is an odd one. That would have the wife ceasing to provide meals for R in April 1982 while continuing to provide meals for O until April 1987. Such an arrangement is unlikely. Likely or not, it is no where suggested that the husband took up that work. There is no evidence that he cooked for the wife and children at any time. He and O say that for some periods he cooked for himself.
3. When he was in hospital, the wife says that she attended twice a week to bring the husband clean clothing. That stopped for a period when the hospital staff asked her not to attend. The wife says that when the husband was released from hospital in 2004 she prepared the food for him and O. The husband was released from hospital twice in 2004. The wife's evidence, confirmed by O in cross-examination is that she remained in the former matrimonial home throughout the period of the husband's hospitalisation and for a period after his second discharge in October 2004. On reflection O thought the second discharge might have been early November. He was able to place the event because he had bought a trail bike by that time.

1. This was a long marriage involving very considerable contributions. There are significant gaps in the parties' narratives with the events of some decades of the relationship left with barely a mention. The inference is that arrangements continued as they had been, during those periods.
2. The husband's initial contribution was greater than that of the wife. The parties divided the matrimonial tasks along traditional lines although the wife also assisted in the husband's businesses. The husband worked hard in earning an income and for periods had more than one jobs. He had periods when he could not work through serious illness but that does not detract from what was a wonderful financial contribution. The husband's case is argued on the basis that he earned income and renovated several properties. The financial contribution to the renovations came from the husband's income. I am aware of the need to avoid double counting those contributions. He can have credit for the income or paying for the renovations but not both.
3. It cannot be said that wife made no contribution to the S property. The wife made indirect contributions to the extent that the husband's income was applied to service the borrowings.
4. Learned counsel for the husband makes a valid point in regard to the approach to contributions. The properties the husband owned before marriage were an important foundation for the parties' wealth today. Funds from the sale of those properties can be traced through to the current pool of assets. It is not permissible to simply find that as this marriage persisted over 4 decades, the contributions were equal. On the other hand the wife too made an initial contribution and she received moneys from her mother and from her mother's estate. Over the 40 years, valuable contributions were made by both parties. Findings are not possible about all of the detail of those contributions because there are no records, the parties do not agree and their recollection is unreliable.
5. I find that the various contributions of the parties would properly be acknowledged by a finding that they were made in equal proportions.

The other matters in Section 79

1. Once contributions have been assessed, the other factors in section 79(4) need to be considered. They are:

Section 79(4) (d)

1. Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. Here the orders made will have a direct effect on the earning capacities of the parties. They each live on interest paid on their savings. An order requiring that the husband pay something to the wife will reduce his income. The wife's living arrangements are not well explained in her evidence but she has recently been accommodated without any significant cost and it would be understandable if that state of affairs could not continue indefinitely. She has just recently committed to purchase a T property. That will reduce her savings and therefore her income.
2. That is not the end of the enquiry. For example the husband appears to be foregoing income on the B property. That situation could be addressed by leasing or selling the property.

Section 79(4)(e) - Section 75(2) Factors

1. The relevant matters in Section 75(2) would seem to be paragraphs (a), b), (d), (f) and (o).

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

1. First, as to the age and state of health of each of the parties. The wife and husband are 69 and 78 years of age, respectively.
2. The husband was seriously ill and hospitalised in 1973 with anaemia. He was hospitalised in 1986 with a mini-stroke and in 2004, first with stomach cancer and later due to his behaviour following a car accident. In August 2004 husband's gall bladder and much of his stomach were removed and his stomach was replaced with a pouch constructed from his small intestine. There has been no recurrence of the cancer and as at March 2009 his surgeon considers the cure rate for the husband to be 85%. The husband has an enlarged prostate and elevated PSA levels but these are under review by his doctors. The husband suffers a bladder obstruction and as at September 2008 he had elected to manage that without surgery. He has mild cataracts.
3. The wife has been treated for various conditions over the years. As at November 2008 her General Practitioner said that the conditions that have the most impact on her ability to work and function are:
   • Osteoarthritis affecting her spine, hips and right knee and osteoporosis which has lead to a compression fracture in her upper spine;
   • Anxiety and depression affecting decision making and causing her disquiet. She has not complied with prescriptions for antidepressants for fear of possible side effects.
4. It is odd that the wife's doctor was asked to give an opinion about the wife's capacity to work. There is no suggestion in her case that she intended to return to the paid workforce after leaving it more than 40 years ago. The wife had an appointment with a specialist on 27 April 2009 in relation to a knee reconstruction but there is no evidence of the outcome of that consultation.

(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;

1. The wife's income is $663 per week from interest on her savings.
2. The wife lives in E. Her latest Financial Statement implies that she lives alone, pays no rent and receives no benefit from the expenditure of anyone else. That seems unlikely but there it is. There is reference elsewhere to the wife having a brother who lives in E. She will soon move to a property she has contracted to purchase, being a property at T. She has paid a $61,000 deposit and owes $549,000 plus an estimated $25,944 in stamp duty and purchase costs.
3. The wife's expenses are as follows:

1. It is not apparent which property the rates and strata levy apply to.
2. At the moment the wife has a weekly surplus of income over outgoings but for reasons that are not explained she has no significant accommodation costs.
3. Evidence about the wife's assets and liabilities is set out earlier in these reasons.
4. It is not suggested that the wife will return to paid employment.
5. The husband earns $1,154 per week in the form of bank interest. He lives in the former matrimonial home at P with O. O has no income.
6. The husband puts his expenditure as follows:

1. The husband sets out the detail of additional expenditure later in his Financial Statement. I am not sure why those expenses add up to $612 and not $767. In any event, of his expenses, $300 per week is applied towards petrol, living expenses and bills for O. It is not suggested that the husband will return to paid employment.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

1. The parties' children are over 18 years of age.

(d) commitments of each of the parties that are necessary to enable the party to support:

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

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

1. I have set out the evidence in relation to the parties' expenses.
2. Neither party has the responsibility of supporting another person although the husband currently provides financial support to O.

(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;

1. Neither of the parties receives a Centrelink benefit.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

1. There is little evidence in relation to the standard of living of the parties during the marriage. It is alleged in the husband's case, through O's testimony, that at unspecified times, the wife shopped, attended a beauty parlour and watched day time television. Happily, nothing was sought to be made of those revelations in the course of final submissions.

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant;

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

1. The parties' arrangement had the wife taking the main parenting role and leaving the husband to pursue full-time employment. His job/s were demanding and time consuming. It is not argued that either party has an earning capacity from paid employment.

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

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

(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

(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; and

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

1. The D property has in the past produced rental income. It is possible that it could do so again.

(p) the terms of any financial agreement that is binding on the parties.

1. There was no binding agreement made between the parties.

Section 79(4)(f)

1. There are no other relevant orders made under the Family Law Act 1975.

Section 79(4)(g)

1. The husband seeks a 12% adjustment under section 75(2). The wife argues for no adjustment. The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
   • ➢ Given their respective ages one might anticipate the wife having a need for accommodation and support for a longer period than the husband. That fact would seem to support a small adjustment to the wife;
   • ➢ The parties do not enjoy unqualified good health. The husband has had extensive abdominal surgery but his cancer has not returned. There is no evidence about the financial consequences of their conditions save that the husband relies on O who has given up paid employment to assist him. That fact would seem to support a small adjustment to the husband;
   • ➢ The husband has the use of an asset, in the form of the D property, that has in the past, produced income. The fact that the husband has not needed to maximise his income suggests he is in comfortable circumstances.
2. The 12% adjustment sought on behalf of the husband seems to be a figure calculated to support the orders he seeks rather than an adjustment calculated by reference to a combination of elements from section 79(4)(d) to (g). Minds might differ about things such as the impact of the difference in the parties' ages. The fact is that the parties' future needs cannot be precisely calculated. Whether any adjustment is warranted or not, I am confident that a 12% adjustment is outside the reasonable range of discretion.
3. In my view these matters might call for small adjustments but taken together, they warrant no adjustment from the distribution based on contributions alone.

1. The net assets have a value of $2,740,549.51. An equal division would leave each of the parties with assets worth about $1,370,274.75
2. The parties both seek that the husband retain the former matrimonial home and the B and D properties.
3. The wife has or has had the benefit of :

1. In order to bring her to 50% the husband should pay her $590,109.30. I will round that figure down to $590,000. The effect of that payment will be that, after the T property settlement, the wife's savings will be reduced to $711,381. The wife will also owe any current personal debts, including the balance of her legal fees. She has a weekly surplus now from the interest on a slightly larger capital sum. In the future she will have additional costs in the form of the running costs of her T property. There will be rates, strata levies and utilities.
2. Such a payment would leave the husband with the following assets:

1. He will owe legal fees to previous and current solicitors and any personal debts he has. He will retain the former matrimonial home and the D property but his savings will be reduced to below $400,000. If the husband neither sells nor rents out the D property and continues to provide financial support to O, then it may not be possible for him to live on his capital without reducing the principal sum over time. Given his age, that fact alone does not mean the result of the orders is not just and equitable.
2. In my view those orders represent a just and equitable settlement of the parties' property.

Conclusion under Section 79

1. This was a long marriage involving very significant contributions by each of the parties. They acquired assets and provided a secure home for their children. In the course of over 40 years of living under one roof, the parties shared the work of the family in different ways but overall the contributions were equal. No further adjustment is required by reference to the non-contribution aspects of Section 79(4).

I certify that the preceding one husband and fifty six (156) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

[1] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355 at 370

[2] Mallett v Mallett [1984] HCA 21; (1984) 9 Fam LR 449; In the Marriage of Ferraro [1992] FamCA 64; (1992) 16 Fam LR 1

[3] In the Marriage of Shewring (1987) l2 Fam LR 139