Contributions during a marriage

Contributions during a marriage

Pascoe & Pascoe [2016] FCCA 1401 (16 June 2016)

For full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/1401.html

Contributions

65. I do not propose to analyse in minute detail the parties’ individual contributions from employment or as homemakers and parents because it is not difficult to conclude that those respective contributions should be given equal weight. Certainly, the husband earned more than the wife when they lived in New South Wales but the mother was a full-time parent and giving (employment omitted). It is clear that the contributions “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”^[39] should not merely be recognised in a token manner but rather they should be recognised in a substantial way.^[40] That was reinforced in Ferraro, ^[41] when the Full Court said:
    <li “=””>

    The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.^[42]

66. Similarly, in Bigelow & Reuter, ^[43] Kay J (sitting as the Full Court of the Family Court of Australia) said:
    <li “=””>

    What was the relevant finding is that the wife, whatever she was doing in the course of the relationship, was not able to earn money at the same rate that the husband was able to earn, but there is nothing to indicate that she was not pulling her weight in terms of effort and endeavour.

67. Having said that, there are two areas in which the wife’s greater contributions are very significant.
68. Firstly, the wife contributed $100,000 from her MAIB payment towards the purchase of the Property E property and as stated above, that resulted from a motor vehicle accident that she suffered prior to the parties’ marriage and cohabitation. Clearly, the husband cannot claim any contribution towards that $100,000. Further, that was the only contribution made by the parties towards the purchase of the Property E property other than funds provided by the mortgagee.
69. I note that in Pierce v Pierce the Full Court of the family Court of Australia said:^[44]
    <li “=””>

    In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home …

70. In this matter, the wife’s contribution towards the Property E property enabled them to make a reasonable profit when that property was sold and in turn those funds enabled them to invest in the (country omitted) property. Clearly, wife’s contribution of $100,000 from her MAIB payment was the “springboard” that enabled them to invest their life savings in the (country omitted) property.
71. The other significant contribution on the part of the wife is that she has been almost entirely responsible for the financial support of the children since she left (country omitted) approximately 4 years ago. In that regard, it was clear from the evidence that the husband paid the wife no maintenance at all between her departure from (country omitted) in June 2012 and September 2014. This exchange took place during his cross-examination in relation to that issue:
    <li “=””>

    So you didn’t provide financial support for your children between June 2012 until September 2014, when they were living back here in Australia, because of something you considered to be unfair of what had occurred back in (country omitted)?I felt that Ms Pascoe had excess money.^[45]

72. The husband conceded earlier in his cross-examination that he had the financial capacity to pay more than $250 a month for his children but he was “waiting for things to be put in place to work out what is the appropriate amount”.^[46]
73. I note that $250 per month amounts to less than $20 per week per child and for more than two years the husband was contributing nothing towards the financial costs of the children.
74. Based upon what I have set out above, I would have little hesitation in concluding that on the basis of contributions alone the wife should receive 70% of the non-superannuation asset pool. However, these matters are not decided on contributions alone (and, of course, there are complications in relation to the non-superannuation asset pool which I will refer to in greater detail below).

Subsection 75(2) factors

75. The husband is aged 41 years and the wife is 43 years old.
76. The husband is employed in (country omitted) and his Financial Statement reveals that, inclusive of a “gratuity” in lieu of superannuation and a living allowance, he receives his income of approximately $2,127 per week (depending on the exchange rate from US dollars). That is tax-free in his hands because his employer pays his (country omitted) tax.
77. The wife is employed as a (occupation omitted) and she receives a gross income of $1,907 per week. Her financial statement reveals that she pays tax at the rate of the $780 per week (which I assume includes some repayment of her HECS debt).
78. The husband is currently paying $250 per month ($57.70 per week) by way of maintenance for the children.
79. Neither party has a duty to support any other person other than the children.
80. Clearly, the subsection 75(2) factors would normally result in a further adjustment in favour of the wife.

Conclusions about property adjustment

81. Taking into account what I have set out above in relation to contributions and the subsection 75(2) factors, I would normally consider it appropriate to make orders that would provide for the wife to receive 75% of the value of the asset pool. Consequently, when I take into account the values of the wife’s furniture, car and HECS debt, I would have considered it appropriate to require her to receive property or cash worth an additional $345,000. However, that would have been in circumstances where those assets were in Australia and readily available for division. Clearly, that is not the case in this matter and I do not have jurisdiction in relation to funds that the husband has in (country omitted). Consequently, I must make orders that will enable the wife to receive the maximum value available notwithstanding that I consider such to be an inadequate settlement.
82. In those circumstances, I am of the opinion that the following should occur:
    1. That the husband should pay to the wife the sum of $20,000 within 60 days;
    2. That there be a splitting order in relation to the husband’s superannuation to provide a split of 100% of its value in favour of the wife;
    100. That the timeshare accommodation in (country omitted) be sold and the wife should receive 100% of the net proceeds
83. In relation to the payment of $20,000 to the wife within 60 days, I note that the husband indicated that he would have no difficulty raising that sum when it was discussed in relation to the payment of a surety.^[47] It is therefore appropriate that he pay such a sum to her within a reasonable period of time.