Agresta and Agresta
[2019] FCCA 301
•11 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGRESTA & AGRESTA | [2019] FCCA 301 |
| Catchwords: FAMILY LAW – Application for property adjustment orders – assessment of contributions – orders made. |
| Legislation: Family Law Act 1975, ss.75(2), 79 |
| Cases cited: Lotta & Lotta [2017] FamCA 50 |
| Applicant: | MR AGRESTA |
| Respondent: | MS AGRESTA |
| File Number: | PAC 6051 of 2015 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 19, 20 December 2018 |
| Date of Last Submission: | 20 December 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 11 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Solicitors for the Applicant: | Reimer Winter Williamson The Lawyers |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Bell Lawyers |
ORDERS
Within two (2) months of the date of these orders, the wife shall pay the husband the sum of $372,991.
That simultaneous with the payment referred to in Order (1) above, the husband and wife sign all documents and do all things necessary to transfer to the wife the whole of the husband's right title and interest in the property known as Property A being the whole of the land contained in folio identifier … in Deposited Plan … (“the Property A property”) and that the wife subsequently indemnify the husband in relation to all and any outgoings in relation to the Property A property including but not limited to mortgage payments and land and water rates.
That the husband be solely entitled to:
(a)The balance remaining of any proceeds of sale of the property situated at and known as Property B, NSW;
(b)His bank savings;
(c)The Motor Vehicle 1 and Motor Vehicle 2 motor vehicles;
(d)His household contents;
(e)Hearing aid.
That the wife be solely entitled to and retain:
(a)Her Motor Vehicle 3;
(b)Her household contents;
(c)Her superannuation entitlement;
(d)Her credit card debt.
That in the event of default by the wife in making payment to the husband in accordance with Order (1) above then the following shall apply:
(a)The Property A property shall be listed for sale by private treaty with an Agent agreed between the parties and, in default of agreement, the parties shall jointly appoint the President for the time being of the Real Estate Institute of NSW to nominate an Agent to list and market the property for sale and each party shall contribute one half of any costs of the Real Estate Institute of NSW in making the appointment of the Agent under this clause.
(b)The listing price shall be agreed between the parties, and failing agreement, the parties shall jointly instruct the Australian Institute of Property Valuers (NSW Chapter) to appoint a land valuer for the purpose of determining the listing price of the property and each party shall pay one half of any cost of the Australian Institute of Property Valuers (NSW Chapter) in the nomination of a Valuer and each party shall thereafter pay one half of the Valuer’s fees associated with the valuation; and
(c)The Solicitor or Conveyancer nominated to act on the sale of the property shall be agreed within 7 days and, failing agreement, the President for the time being of the New South Wales Law Society shall appoint a Solicitor or Conveyancer to conduct the sale of the property and each party shall pay one half of the New South Wales Law Society fees associated with appointment of a Solicitor or Conveyancer.
(d)If the property does not sell by private treaty within 3 months of its first listing, then the listing price shall be reduced by 5% during each subsequent period of 3 months that the property remains on the market.
(e)If a purchaser makes an offer on the property which is more than 90% of the listing price, the parties may agree to accept such offer, but in the event of a dispute between the parties, then the Valuer appointed under Order 5(b) shall determine the appropriate sale price for the property.
(f)Upon completion of the sale, the nett proceeds shall be applied in the following order and priority:
(i)In payment of any Agents commission or other selling costs associated with the sale;
(ii)In payment of rates and utilities outstanding at the time of sale;
(iii)Payment of the wife’s credit card debt of $3,000;
(iv)In payment of the balance then remaining to the parties as follows:
a) To the wife, a sum representing 50% of the said balance, plus a cash payment of $50,509,
b) To the husband, the balance remaining.
That as between the husband and wife, and subject to the above Orders, the husband and wife shall each respectively retain all interest in and entitlement to any item of personalty in such party’s possession or control.
That in the event that either party refuses or neglects to comply with any part of this Order in relation to the execution of any deed, instrument or document the Court appoints and authorises the Senior Registrar of the Family Court of Australia, Parramatta Registry, and/or any Registrar or Deputy Registrar thereof to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints that Registrar or Deputy Registrar to do all acts and things necessary to give validity and operation to the deed, instrument or document.
Liberty to the parties to apply to the Court on seven days’ notice in relation to the implementation of the above Orders.
IT IS NOTED that publication of this judgment under the pseudonym Agresta & Agresta is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6051 of 2015
| MR AGRESTA |
Applicant
And
| MS AGRESTA |
Respondent
REASONS FOR JUDGMENT
Introduction
This was the final hearing of property proceedings between Mr Agresta (“the husband”) and Ms Agresta (“the wife”).
The parties’ proposals
The husband’s proposed Orders were set out in his Proposed Minute of Order emailed to the Court by his Counsel on 21 December 018.
The wife’s proposed Orders were set out in her case outline document referring to the hearing on “19 & 20 December 2018”; this document was emailed to the Court by the wife’s counsel on 19 December 2018.
Material relied upon
The husband relied on the following documents:
a)Case outline filed 2 March 2018, and supplementary submissions document;
b)Amended Initiating Application filed 14 February 2018;
c)Affidavit of Mr Agresta filed 14 February 2018;
d)Financial Statement of Mr Agresta filed 5 December 2018.
The wife relied on the following documents:
a)Case outline of the wife referring to the hearing on 19 and 20 December 2018 (referred to above), supplementary case outline, and a one page balance sheet with associated submissions (coloured yellow).
b)Affidavit of Ms Agresta filed 21 February 2018.
c)Financial Statement of Ms Agresta filed 21 February 2018.
The following exhibits were tendered:
a)Draft 1 Balance Sheet (Exhibit A);
b)Applicant Husband’s Notice of Assessment for the year ending 30 June 2017 and for the year ending 30 June 2018 (Exhibit B);
c)Bundle of Documents – Applicant Husband’s Bank Account Records for the period 3 December 2016 to 4 December 2018 (Exhibit C);
d)Bundle of Documents – Records of Applicant Husband’s Personal Expenditure (Exhibit D);
e)Letter from Employer to Applicant Husband dated 6 March 2018 (Exhibit E);
f)Applicant Husband’s Tax Return dated 30 June 2010 (Exhibit F);
g)Applicant Husband’s Tax Return dated 30 June 2011 (Exhibit G);
h)Applicant Husband’s Tax Return dated 30 June 2012 (Exhibit H);
i)Applicant Husband’s Tax Return dated 30 June 2013 (Exhibit I);
j)Letter from Applicant Husband’s former solicitors Hutchison Lawyers dated 8 April 2016 (Exhibit J);
k)Joint Balance Sheet (Exhibit K);
Evidence
The husband was born on … 1963 and is currently aged 55 years.
The wife was born on … 1968 and she is currently aged 50 years.
The parties married in 1989 in Country C. They came back to Australia in about late 1989.
In about 1982 the husband purchased a block of land at Property B. He paid about $29,000 plus stamp duty. He obtained a personal loan from a bank. In about 1986 he borrowed further monies of about $45,000, and together with a gift from his parents of about $15,000 he built a three-bedroom home on the land. He used this property as an investment property. Shortly after the parties came back to Australia they moved into this property to live.
During the course of the relationship the husband worked in various employments, including tradesman work.
Three children were born of the relationship: Mr X born … 1993, Mr Y born on … 1997 and Mr Z born … 1999. The wife was the primary carer of these children. The wife also, in about 2005, began working in paid employment as a labourer on a part-time basis. She paid her wages into a bank account controlled by the husband and from which the parties’ living expenses, including mortgage loan repayments, were made.
In about 1995 the parties purchased a property at Property A. They borrowed money from the National Australia Bank (“NAB”) in order to purchase the land and demolish and rebuild a home on this property. The Property B property was used as security for the loan. This property at Property A was then rented until the parties moved into this property in about 2005. Thereafter the Property B property was rented out.
The husband had a myocardial infarct in about January 2014 and was hospitalised for a few days. Stenting was carried out. He was unable to work for a few months.
The parties separated in about June 2015. The wife continued to live in the property at Property A with the parties’ children (though in the first quarter of 2017 one of the parties’ sons lived with the husband). The husband obtained rental accommodation.
Between about June 2015 and October 2016, the mortgages on the properties were not paid.
The husband had a hernia operation in March 2017. He was unable to work for about two months thereafter.
The husband commenced work on a part-time basis as a tradesman in about mid-2017, earning about $250 per week.
In about late October 2016 the Property B property was sold for $600,000. From the proceeds of sale the mortgage loans on both the Property B property and the property at Property A were paid off. Thereafter the net proceeds of sale were about $235,702.
In relation to the above sum of $235,702, the husband has drawn on this amount to pay legal fees, capital gains tax relating to the sale of the Property B property, rental monies including rental bond, furniture for the rental property, child support and living expenses.
Exhibit D is a bundle of documents relating to certain of the husband’s personal expenditure for living expenses between 5 December 2016 and 4 December 2018, with the total being $64,077. In cross examination, the husband conceded that in relation to this figure the sum of $18,600 (dentist, 21 November 2018) should be deducted as it was not spent; a further sum of $4,140 (dentist, 9 April 2018) should be deducted at as it was not spent; and a hearing aid asserted expense, 19 November 2018, $5,495 was not spent. The adjusted total is about $35,842.
The husband asserted in oral evidence that he spent roughly $75,000 per year from the net proceeds of sale of the Property B property to keep himself.
The husband’s 2017 taxable income was about $65,000. However, this figure, as conceded by the wife, included a capital gain from the sale of the Property B property.
The husband’s 2018 taxable income was $13,002.
The husband’s 2010, 2011, 2012, 2013 income tax returns were the subject of cross examination of the husband. It was suggested to the husband, inter alia, that he had failed to declare the full extent of his income and that the family could not have lived on the taxable incomes found in his income tax returns.
The Court accepts the husband’s evidence that he did not fail to declare his income as set out in these income tax returns.
Inter alia, in relation to the above finding that the husband did not fail to declare his income, the Court takes into account the fact that no allegation was made in the wife’s Affidavit that the husband had historically failed to declare the full extent of his income; the relative antiquity of the husband’s income tax returns for the period 2010 to 2013 inclusive and the confrontation of the husband for the first time of alleged income tax fraud during cross examination; the fact that many of the above income tax returns refer to net rental losses relating to the Property B property; and the fact that many of the above income tax returns refer to the husband’s gross business income as a tradesman and extensive unparticularised associated business expenses. Following cross examination of the husband it was not known whether or not the family may have indirectly benefited from the claiming of such expenses, such as telephone expenses. Further, the husband impressed the Court, when giving his oral evidence, as an honest witness.
The Court does not accept the wife’s contention that in the event that the Court finds that the husband’s declarations of income in his income tax returns were correct, it follows that the wife’s contributions through her parenting and employments assume greater significance. The Court finds that both parties, during the course of their relationship, worked hard and to the best of their ability, and both contributed the results of their work efforts to the benefit of the family.
In any event, even if the Court is incorrect as to the above finding that the husband did not fail to declare his income, the Court finds that the husband, throughout the parties’ relationship, applied his earnings to the benefit of the family.
The Court accepts the husband’s oral evidence in relation to his work as a tradesman, including his oral evidence relating to periods when he experienced downturns in this work.
The husband now works part-time as a tradesman and receives about $260 per week (after payment of expenses relating to his employment).
The husband has had a girlfriend since separation. He first met her when she was an employee at his work. The Court does not accept that the husband was in a relationship with this girlfriend prior to the separation, nor that he now lives with her.
The wife continues to work part-time as a labourer. She also works casually in a business. She earns about $306 per week before tax in relation to her labouring work, and also earns about $200 per week for Employer work, which she receives in cash. She continues to live in the property at Property A with the two youngest adult children.
The wife gave oral evidence that presently she cannot obtain a loan to buy out the husband’s interest in a home at Property A.
Legal principles
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.
Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
Balance sheet
The parties competing contentions relating to the balance sheet is set out below:
OWNER-SHIP ITEM VALUE Wife’s value Husband’s value Assets Husband Proceeds of sale of Property B held in controlled monies account $39,506.00 $39,506.00 Joint Property A (as per Joint Expert Report dated 7.3.18) $850,000.00 $850,000.00 Husband Savings – NAB … $25,246.00 Husband Savings – ANZ … $50.00 Husband Motor Vehicle 1 (unregistered) $6,000.00 Husband Contents $2,500.00 $5,000.00 Husband Motor Vehicle 2 $1,500.00 Husband Business – Mr Agresta Sole Trader $0.00 Husband Hearing Aid $5,490.00 Wife Savings – CBA … $0.00 Wife Motor Vehicle 3 $1,000.00 Wife Contents $3,000.00 Total $936,792.00 Addbacks Husband Legal Fees paid by husband from proceeds of sale – Property B Property $48,267.00 $48,267.00 Husband Expenditure by husband in total from proceeds of sale – Property B Property $102,773.00 NIL Total $151,040.00 $48,267.00 Liabilities Wife Credit Card $3,000.00 NIL Total $3,000.00 NIL Superannuation Wife Super $26,041.00 $26,000.00 Total $26,041.00 $26,000.00
Husband’s contents, savings and hearing aid:
$5,000, $50 and $5,490 respectively will remain in the balance sheet as admissions against interest by the husband.
Expenditure by husband in total from proceeds of sale of Property B property:
This item will be considered below under section 75(2) of the Act.
Wife’s $3,000 credit card debt:
This debt shall remain in the balance sheet; the husband conceded in cross examination that this debt existed at separation date.
Wife’s superannuation:
$26,041 shall remain in interest as an admission against interest by the wife.
Accordingly, the final balance sheet shall be as follows:
OWNER-SHIP ITEM VALUE Assets Husband Proceeds of sale of Property B held in controlled monies account $39,506.00
Joint Property A (as per Joint Expert Report dated 7.3.18) $850,000.00
Husband Savings – NAB … $25,246.00 Husband Savings – ANZ … $50.00 Husband Motor Vehicle 1 (unregistered) $6,000.00 Husband Contents $5,000.00 Husband Motor Vehicle 2 $1,500.00 Husband Business – Mr Agresta Sole Trader $0.00 Husband Hearing Aid $5,490.00 Wife Savings – CBA … $0.00 Wife Motor Vehicle 3 $1,000.00 Wife Contents $3,000.00 Total $936,792.00 Addbacks Husband Legal Fees paid by husband from proceeds of sale – Property B $48,267.00 Husband Expenditure by husband in total from proceeds of sale – Property B Property NIL Total $48,267.00 Liabilities Wife Credit Card $3,000.00 Total $3,000.00 Superannuation Wife Super $26,041.00 Total $26,041.00
From the above final balance sheet, it can be seen that the parties’ net non-superannuation assets are $982,059, and the wife’s superannuation entitlement is $26,041, being a total asset pool of $1,008,100.
Section 79 (2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of the property (see the final balance sheet referring to the various assets), and the fact that the continuance of the current legal ownership of the property would not afford them justice and equity. The parties join in seeking Orders for property adjustment.
Contributions
At the outset the Court observes that the parties’ relationship spanned the period from about 1989 to mid-2015, a period of some 26 years.
The Court takes into account the husband’s initial contribution, at the commencement of the parties’ relationship, of the Property B property. However, the Court observes that there is no significant evidence as to the value of this property at this time, nor the extent of the mortgage loan (the husband having purchased the land in about 1982 for $29,000 and then, in about 1986, having borrowed $45,000 from the bank to assist in the building of a home on the land). The Court further observes that the husband had paid off the bank loan for the land to which this property related by the commencement of the relationship. The parties lived in this property for a significant period. Inter alia, this property was used as security for the loan to purchase the property at Property A. When the Property B property was sold in 2016, the mortgage loans on the two properties were paid off. There were net proceeds of about $235,702 following the sale of the Property B property. Following the husband’s expenditure from these net proceeds, there only remains about $39,506 in a controlled monies account, together with part of the husband’s savings of $25,246 in his NAB bank account, and his household contents (furniture) of about $5,000, and these matters are taken into account.
The Court takes into account the wife’s indirect financial contributions towards the repayment of the mortgage loans on the properties through the contribution of her employment income to the family’s finances from 2005.
The Court takes into account the husband’s financial contributions towards repayment of the mortgage loans on the properties through his various work activities throughout the relationship.
The Court takes into account the wife’s significant contribution as home maker and parent throughout the parties’ relationship and post separation (noting that the youngest child was almost aged sixteen years at separation and continues to live with the wife).
Although the wife lived in the property at Property A post separation, she could not afford to make any contribution towards the mortgage loans. The Court observes that the youngest child (aged almost sixteen at separation date) and two adult children were also living in that home with her, and that the husband’s payment of child support was at times irregular. The Court recognises in this context that the husband was required to obtain and pay rental accommodation post separation.
The wife’s superannuation entitlement is $26,041. She commenced work in about 2005. The Court infers that she probably received compulsory superannuation contributions from her employer, the wife having worked in labouring employment initially and then an Employer thereafter as a labourer. There is no evidence quantifying her accumulation of superannuation post superannuation. It would appear that when the wife worked from 5 am to 8 am during the working week, as a labourer, the husband was at home with the children; in that sense, at least, the husband probably indirectly contributed to the wife’s accumulation of superannuation.
The husband contended that the Court’s contribution assessment at trial date should result in a 60% finding in favour of the husband. The wife contended that the Court’s contribution assessment at trial date should be assessed as equal between the parties.
Take into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to both non-superannuation and superannuation assets as at trial date as approximately equal.
Section 75 (2) of the Act
The husband is aged 55 years and the wife 50 years.
The wife’s health is satisfactory. She asserted that she has a neck problem; however, she adduced no medical evidence in relation to that assertion. The husband asserted various ailments, referring to his medical history; however, he adduced no persuasive medical evidence relating to suggested work incapacity. The parties both continue to work: the husband is a part-time tradesman and the wife is a part-time labourer. The Court finds that their earning capacities are comparable.
Whilst the parties’ adult children are living with the wife, there is no persuasive evidence indicating any adjustment in favour of the wife.
As to item 14 in the balance sheet, the husband’s expenditure in total from proceeds of sale of the Property B property, the wife contends that the sum of $102,773 should be adjusted in her favour. The husband, for his part, contends that there should be no such adjustment as his expenditure from the net proceeds of sale of the Property B property (apart from payment of legal fees of $48,267) should be treated as necessary and reasonable expenditure for his living expenses. In this context, both parties refer to the decision in Omacini (2005) FLC 93 – 218.
The Court, in this context, accepts the husband’s contention and finds that his expenditure from the net proceeds of sale of the Property B property (apart from payment of legal fees of $48,267) should be treated as necessary and reasonable expenditure for his living expenses, including payment of capital gains tax on the sale of the Property B property.
On the evidence before the Court, the Court finds on the balance of probabilities that the husband could not have afforded to pay both rent (for his accommodation post separation), living expenses (including furniture), and capital gains tax payable on the sale of the Property B property, without resorting to the net proceeds of sale of the Property B property.The Court finds that the husband spent from such net proceeds of sale necessary and reasonable expenditure on his living expenses including capital gains tax (sale of the Property B property), rent and furniture.
In making the above findings in relation to the husband’s necessary and reasonable expenditure, the Court takes into account, inter alia:
a)The husband’s net available income by reference to his 2017 (noting the concession by the wife that the husband’s taxable income rose in the 2017 taxation year by reason of the capital gain experienced through the sale of the Property B property) and 2018 income tax material (see Exhibit B in relation to both the 2017 and 2018 taxation years), including his supportive oral evidence that he was earning about $250 per week;
b)Again the Court accepts the husband’s oral evidence relating to his work, including his experience of downturns in such work;
c)The inability of the husband (and the wife) to meet mortgage repayments between about June to 2015 and October 2016;
d)The Court accepts the extent of the husband’s necessary and reasonable personal expenditure as set out in Exhibit D (subject to the husband’s concessions in relation to non-payment of certain amounts for dentistry work and hearing aid expenses ($28,235 in total) whilst further finding that, on the balance of probabilities, it is likely that the husband spent greater amounts on his necessary and reasonable living expenses than is set out in Exhibit D (for example, it is likely that the husband spent more monies on groceries than as set out in Exhibit D; for example, see in Exhibit D, during the month of February 2017, only $25 is referred to for groceries), and further, Exhibit D does not refer to the husband’s payment of rent.
The wife receives an income supplement about $80 per week from the federal government. She has modest superannuation of $26,041. She will be unable to access such superannuation for some time. There is no call for an adjustment under section 75(2) by reason of the wife’s superannuation entitlement and no party contended otherwise.
Take into account the above matters, there should no adjustment under section 75(2) of the Act.
Justice and equity
Pursuant to the Court’s contribution assessment, the husband should be left with assets representing, in value, 50% of the net non-superannuation assets and superannuation assets, $504,050 (50% of $1,008,100) less the add back for his paid legal fees of $48,267, leaving him $455,783.
Should the wife retain:
·The Property A property, $850,000,
·Her car $1,000,
·Her contents $3,000,
·Her superannuation $26,041,
·Her credit card debt $3,000,
totalling net $877,041, with the husband retaining:
·Controlled monies account, $39,506
·His bank savings, $25,296,
·The cars, $7,500,
·Hearing aid, $5,490,
·Contents, $5,000,
totalling $82,792,
then the wife will be required to make a cash payment to the husband of $372,991. She should have two months to make this payment, otherwise the Property A property should be sold.
In the event that the property is sold, then the net proceeds of sale of the property, after payment of the credit card debt ($3,000), shall be divided between the parties as to 50% to the wife, together with a cash payment of $50,509 (see the paragraph immediately below), with the balance remaining to the husband.
The Court now summarises its calculations relating to the above sum of $50,509. Assuming that the parties shall each retain the assets presently in their respective names, with the husband additionally retaining the $39,506 in the controlled monies account, then the husband should pay the wife additionally a cash sum of $50,509. In relation to the assets in the final balance sheet, apart from the real estate property, including the add back of $48,267 and wife’s superannuation of $26,041 (assets totalling $161,100), the husband should at the outset receive 50% of $161,100, being $80,550, less $48,267 already received by way of legal fees (the addback), leaving $32,283. Because he already holds $82,792 (including the controlled monies account of $39,506), he should pay the wife $50,509. Such latter payment to the wife would result in her holding $80,550 ($30,041 in assets already held, plus the $50,509, representing 50% of $161,100 ($80,550).
The wife, if she can retain the property, will be able to live in the house with the adult children debt free. If not, she can utilise the cash she receives pursuant to the Court’s Orders to obtain suitable housing accommodation, whether real estate or rental. Similarly, the husband can utilise the cash he receives pursuant to the Court’s Orders to obtain suitable housing accommodation.
The Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 11 February 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Costs
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Jurisdiction
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Procedural Fairness
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