Agresti & Agresti

[2021] FCCA 972

FEDERAL CIRCUIT COURT OF AUSTRALIA

Agresti & Agresti [2021] FCCA 972

File number(s):

DGC 2190 of 2020

Judgment of:

JUDGE BURCHARDT

Date of judgment:

12 May 2021

Catchwords:

FAMILY LAW – Property dispute following 13 year relationship – husband seeing no property adjustment and wife seeking equal division with both parties to retain their superannuation – husband’s financial contributions markedly greater than those of the wife – contributions assessed 55/45 in husband’s favour –  husband 61 and wife 46 – wife’s earnings greater than husbands – 10% future needs adjustment in favour of husband – husband in possession of 62-63%of the parties’ property – just and equitable in circumstances parties retain their superannuation – the further property adjustment not just and equitable.

Legislation:

Family Law Act1975 (Cth) ss 79

Cases cited:

Chang & Su (2002) FLC 93-117

Jones & Dunkel [1959] 1010 CLR 298

Stanford & Stanford (2012) 247 CLR 108

Number of paragraphs:

75

Date of hearing:

16 April 2021

Place:

Dandenong

Counsel for the First Applicant:

Mr Potter

Solicitor for the First Applicant:

Ruffin Lawyers

Counsel for the First Respondent:

Ms Swan

Solicitor for the First Respondent:

Anchorage Legal

ORDERS

DGC 2190 of 2020

BETWEEN:

MS AGRESTI

Applicant

AND:

MR AGRESTI

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	12 MAY 2021

THE COURT ORDERS THAT:

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

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

(b)Insurance policies remain the sole property of the owner/beneficiary named therein.

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

(d)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

2.All extant applications be otherwise dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE BURCHARDT

INTRODUCTORY

1. This is a property dispute arising out of a 13 year relationship which was interrupted for one year. The applicant wife seeks an equal division of the parties’ property and the respondent husband seeks that there be no adjustment pursuant to section 79 of the Family Law Act1975 (Cth) at all.

2. It is immediately apparent that the parties are some distance apart.  This is an unusual case, turning on a very discrete set of circumstances.  For the reasons that follow, I think that the just and equitable outcome of this dispute is that each party retain, in effect, what they presently have.  That is not because it is appropriate as a matter of general principle that there not be a property adjustment between them.  Rather, it is because what the parties presently hold accords with what would be a just and equitable outcome, were the Court’s standard methodology to be applied.

   AGREED OR UNCONTROVERSIAL MATTERS

3. The wife was born in 1974 and the husband was born in 1960.  They commenced cohabitation in 2004 and married in 2006.  They were separated briefly (and, on one view, only to an extent) between June 2012 until February 2013 and final separation took place on 3 January 2018.  I note that the husband’s position is that separation took place in a meaningful sense in 2011 but this assertion has really not been pressed.

4. The parties divorced on 25 July 2020 (it is, however, convenient still to refer to them in this judgment as husband and wife). 

5. The husband owned a property at B Street, Town C at the commencement of the relationship.  It is said to have had a value of approximately $93,000 at that time and there was a mortgage of some $78,000 owing on it, which went up by 2005 to $117,000.

6. The wife was involved in parenting litigation with her former partner, the father of her two children, at the time the relationship started.  The two children, Mr D, born in 1992, and, Mr E, born in 1997, were living with their father in Town F.  Following protracted litigation which continued until 2006 Mr E was returned to the mother and lived with the parties until 2011.

7. It is the husband’s case that he assisted the wife in these legal disputes to the tune of $40,000, but the wife says that he did not make any such contribution at all. 

8. At the start of the relationship the husband was in employment, earning approximately $80,000 per annum which continued until he was made redundant in 2015 and received a redundancy payment of about $30,000 which appears to have been applied to the general benefit of the family.

9. The wife was not employed at the commencement of the relationship but started work relatively soon thereafter on a part time and then a full time basis.  She remains employed as a professional, earning a base salary of $58,107 a year, together with fringe benefits of $21,999 per year.  The husband who, following his retrenchment in 2015 obtained work as a labourer in 2017 which lasted till late 2018, is in receipt of statutory benefits. 

10. The husband has withdrawn on several occasions from his superannuation.  A withdrawal of some $80,000 in the 2016-2017 year appears to have inter alia discharged the entirety of the then extant mortgage over B Street, Town C in the sum of $64,300. 

11. In December 2012 the wife says she bought a unit at G Street, Town C, for $234,000 with a mortgage of $210,600.  With ancillary costs like stamp duty and other expenditures, the sum would have been greater than $240,000.  The wife says she was able to do this with her savings but it is the husband’s position that he also contributed and that the savings, to the extent that they were in the wife’s name alone, arose from the common weal of the marriage.  The mortgage on the G Street, Town C property is presently $87,771, but was $127,148 at separation.

    THE PARTIES’ AFFIDAVITS

12. Much of what the parties have said in their affidavit material is described in the agreed matters above.  In her first affidavit filed 2 July 2020 the wife deposed that the husband had been secretive about money during the relationship and that there was no intermingling of funds.  She deposed that following separation in 2012, when she first rented and then in December bought G Street, Town C, in February 2013 her parents moved to B Street, Town C for a few months where they joined Mr E, who had already moved there.  The property was then, after a few months, rented to tenants, who paid the mortgage.

13. The wife also deposed that the husband had used his own home for Airbnb and derived significant income from that. The wife also deposed that the husband had extracted $24,000 from the Westpac account at separation.

14. In his first affidavit the husband deposed to his good health (and that of the wife).  He deposed to Mr E coming to live with the parties in 2006 and to Mr E becoming unwell in 2011.  As earlier indicated, the husband advanced the proposition, not really pressed in the final case, that there was no full-time relationship after 2011.  The husband deposed to the other son, Mr D, moving in with the parties in 2015 at B Street, Town C with his girlfriend and children.  He went on to depose to a former partner (one subsequent to the wife) having lent him $9,200 for legal expenses in 2019 and his daughter having lent him $15,000 for the same cause in 2018.  He had deposed that he had repaid his former partner.  He went on to depose that the wife was living with a new partner and renting G Street, Town C.  He deposed that his superannuation was now reduced to $116,968.

15. The mother’s second affidavit traversed the receipt of proceeds from her former marriage of $37,797 on 5 December 2006, which were paid into the husband’s bank account.  She traversed the withdrawal of the husband’s $80,000 of superannuation and the discharge of the mortgage to which I have already referred.  She repeated that the husband had withdrawn $24,035 just before separation.  She also deposed that the husband had withdrawn $27,000 further dollars in superannuation on 7 November 2018.  She conceded that she has a boyfriend but says that she does not live with him or comingle her finances with him. 

16. The husband’s second affidavit filed 26 March 2021 deposed to not having repaid his daughter the $15,000 advanced for legals.  He deposed that the $24,000 that the wife complained he withdrew at separation had been applied to purchase a motor vehicle for the wife.

    THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT

17. What follows is taken from my notes.

    Wife

18. Counsel elected not to make an opening and called his client who adopted her affidavits and financial statement as relevantly true and correct.

19. Under cross-examination, the wife confirms that she works for Employer H on a full-time basis at the Employer J.  Her income is about $80,000 per annum plus superannuation.  She is 46 years old and intends to work after the age of 60.  She lives with her son Mr E, who does not pay rent.  She was cross-examined about what her address was and explained that she had forgotten to change her address.  She uses K Street, Town L as her mail address. She admits having a boyfriend called Mr M.  Electoral Commission records and extracts from a Westpac Rocket account were tendered as exhibit R1 and R2 respectively.

20. I should interpolate, however, and say that the wife’s evidence about where she was living was clearly truthful and I accept it.

21. The wife said she first met her boyfriend in 2018 and they entered into a relationship in 2018.  He lives in N Street, Town L.  He is a manager of a business, but she is not aware of his income.  She spends about two nights a week at K Street, Town L.  She has been on one holiday with him to Queensland.

22. The wife was cross-examined about her assertion as to the husband’s receipts from Airbnb.  She had seen his property on Airbnb but was not saying that it was regular income.  She agreed that the husband did not make significant income as a labourer.  He had not, however, sought spousal maintenance.  She confirmed that there is one hospital only in Town C.  There is a home care facility in Town O and another at Town P, 30 minutes away.  She asserted that the husband was deliberately not seeking work.  She lived with the husband in 2004, having first met him online in 2002 when she was living in New South Wales. 

23. At the start of the relationship she had her car.  She moved into his house at B Street, Town C.  She agreed the mortgage at the time was $76,000.  She agreed it went up to $117,000 in 2005.  She was studying at the start.  Her first part time paid work was in 2004.  She was separated from her first husband and Mr Agrestri (the husband) had supported her at the end.  She agreed that she got $37,797 in 2006 which was the settlement of $40,000 less fees.  She was on Legal Aid.

24. So far as the proceedings in Victoria were concerned, she had not been on Legal Aid but none of the fees have been paid by the husband.  Mr D was twelve and Mr E was seven when cohabitation started and they were initially in Town F.  They flew down once and she paid.  Otherwise she would travel to Town Q which she paid for herself.  She agreed that Mr E lived with her and the husband from 2006 to 2012 and said that both of them contributed.  She saved child support paid by the father of the children. 

25. The G Street, Town C unit was bought in 2012.  They separated in June 2012 and she got a rental.  Mr E had mental health issues.  Then she bought the unit for $234,000.  There was a shortfall of about $30,000 and stamp duty and legal expenses were included in that figure.  Mr E lived in G Street, Town C from 2013 to 2018 and was attending school.  She paid the mortgage.  Mr E moved to Queensland but came back in 2019.  He does not pay rent as he is on an apprenticeship wage.  The wife’s parents paid the rent while they were there and her other son was there too.  She does not know if the husband has siphoned funds away and does not know if he lives an expensive lifestyle. 

26. The wife was cross-examined about the husband’s withdrawals of superannuation.  She said this has not been expended on a renovation or on the extension.  There was a new kitchen in 2006 and a patio.  She accepted cladding had been added in 2009.  She said she did not know if the husband had spent $10,000 on this.

27. It is fair to characterise the wife’s evidence on this score as essentially involving dark hints or assumptions as to financial impropriety on the husband’s part.

28. The wife was cross-examined about the $24,035 in the husband’s Westpac account just before separation.  She was unable to say if this was the residue of the husband’s superannuation.  She took the family car.  She did not know if the husband had spent $11,000 on the car.  It was put to her that the $3,000 a month that she was asserting the husband had expended was not excessive and she agreed.  She was cross‑examined about paragraph 38 of her trial affidavit in which she deposed to reductions in the mortgage on G Street, Town C.  She said she had had reduced income since separation.  She said she has an offset account.  She cannot predict the future. 

29. Her Motor Vehicle 2 cost $33,000.  Her previous car was unsafe.  She drives this car all the time and she does not have a Motor Vehicle 3.  She seeks a fifty-fifty division.  She has not paid any of her legal fees yet.  She agreed that the husband transferred $63,000 from his superannuation to discharge the B Street, Town C mortgage in 2016.  When challenged that she had no significant assets at the commencement of the relationship she said she had $40,000 in superannuation.

30. In re-examination counsel tendered a bundle of bills showing the wife living at G Street, Town C and tendered orders made by Judge Phipps in 2006 and 2007 showing that Mr E came into her care in 2006.

    The Evidence of Mr E

31. Mr E was called and adopted his affidavit as true and correct, although it should be noted that I had ruled substantial parts of it as inadmissible.

32. Under cross-examination he said he had never paid rent as such but had paid board of $100 per week.  He had paid this since December 2019.  He had met Mr R but he is not always home and the mother is not always home.  Mr R does not stay at the unit.

    The Opening and Evidence of the Husband

33. Counsel was content to rely upon the case outline filed.

34. The husband was called and adopted his trial affidavit and financial statement as true and correct.

35. Under cross-examination the husband was challenged about his assertion in his first affidavit that the mortgage was largely paid off at the commencement of the relationship, and conceded that it was about $76,000 outstanding at that time.  He said the wife got $37,000 from her previous relationship but her car was old.  It was put that the husband had been unemployed in 2018 and drew money to repay the mortgage.  He said he lost employment in 2015 but paid the mortgage in 2016 from superannuation.

36. He was cross-examined about the $9,200 lent to him by a former partner.  He said he had repaid this from the residue of his superannuation.  There was $24,000 in the bank at separation.  He had spent $11,000 on the car and the balance had come to him. 

37. The husband denied that the wife’s legal costs had been paid by Legal Aid.  He said when Ms Agresti (the wife) moved out to K Street, Town L they were back and forth.  The relationship continued in a fashion to 2018.  He said there had been no problems between him and the wife but, rather, problems with Mr E.  He said they agreed to buy the G Street, Town C unit.  They were together in a relationship of some kind.  It was no use paying rent.  That was dead money. 

38. He had worked as a labourer from 2016 to 2018.  He had recently done some work in summer 2021 for cash, earning about $2,000 over six weeks.  He has not been employed by his daughter and son-in-law at all.  He helps with their children.  He has given some help to his son‑in‑law but has not been paid.  He and his daughter are very close.  She helps him on an ongoing basis, up until COVID and the introduction of JobKeeper.

39. He was cross-examined about payments to Ms S on 17 December 2018.  This was an Airbnb payment of $180.  The husband said this might have been one night’s accommodation.  He agreed that the wife had paid the G Street, Town C mortgage since separation and accepted that it had reduced by about $40,000.

40. It was put that he had sold the wife’s car for $4,000 but he thought this was $3,000.  He said he had withdrawn superannuation for living expenses.  The rough estimate of his legal fees was about $20,000. 

41. He was cross-examined about a withdrawal from Westpac account ...03 on 14 January 2019 of $27,000.  He agreed and said he thought this was from superannuation. 

42. He was cross-examined about a withdrawal of $9,200 in cash at Location T on 15 November 2019.  He said he had spent $3,500 on ducted heating and further amounts on fencing.  He had no invoices to substantiate these amounts.  He was cross-examined about $900 withdrawn at Town C and $3,700 withdrawn from Suburb U.  He said these might be for bills.  He was not sure what a $4,000 withdrawal on 10 December 2019 at Suburb V was about.  When asked about $2,439 withdrawn at Suburb W on 20 December 2019 the husband said he has had ongoing bills but could not say what this was for.  He was unable to explain a withdrawal of $9,600 on 10 July 2020.  He said he had used money because he had to.

43. There is about $10,805 in his bank account at the moment but he still needs to pay his solicitor.  He has two other accounts which have only small amounts. 

44. The husband has said he had applied for numerous jobs in Town O, Town L and on the island.  Employment might be possible but would be limited because the company will not re-employ him. 

45. The wife received only small payments of child support throughout the relationship.  Initially she had paid child support.  He attended court with her.  The father had the other child living with him so child support payments to the wife were always very small.  Counsel traversed the pool.  He agreed that the wife’s car had zero value and that his car was worth $6000.  When asked about re-partnering the husband said with conviction that he has no intention of doing so (although I accept this answer, he perhaps gives insufficient weight to ordinary human experience).

46. In re-examination the husband was asked what bills he had paid.  He had said he had repaid Ms X (his former partner) $9,200.  Ducted heating was $3,000 and fencing was $1,800.  He had also, if I understood the matter correctly, had a hot water system either repaired or installed.  He had paid his legals through superannuation.  He has been on Centrelink for two years and it is difficult to survive.

    Final Submissions by Counsel for the Husband

47. Counsel referred to the pool in the case outline.  It was a 14 year relationship and the respondent’s contributions were greater.  He owned B Street, Town C at the start and that is now worth $450,000.  The wife arrived with no significant assets.  She was supported in litigation against her ex-husband.  The wife says Legal Aid paid but the husband said he paid.  The wife got $37,000 in settlement and paid this into the husband’s account.  Nonetheless, the husband had made significant contributions in respect of Mr E between 2006 and 2012.

1. The husband is 15 years older and had superannuation at the start.  He used this to discharge the mortgage.  He had been made redundant in a 20 year job and received a payment of about $30,000 which was contributed to joint expenses.  G Street, Town C was bought.  There was a query as to whether the parties were, indeed, separated at the time.  Counsel submitted it must have been joint savings.  There had been rent free accommodation for Mr E, the grandparents and the other son.

2. The husband was retrenched in 2015.  He was a part-time labourer till 2018 and then retrenched again.  He is seeking work and there may be possible carer’s work.  The wife is only 46 and the husband is 61.  The husband’s work is likely to be part time shift and low paid.  He has only $90,000 in superannuation.  The orders sought by the wife as to a 50 per cent adjustment, possibly not including superannuation, will reduce the husband to poverty.  He will have to sell the house and has no borrowing capacity.  He has not squirreled money away.  No orders should be made.

3. He has withdrawn superannuation for living expenses.  He has 62.9 per cent of the non-superannuation assets, which is a justifiable outcome by virtue of contributions and future needs.

   Final Submissions by Counsel for the Wife

4. Counsel submitted that a property adjustment was necessary.  There was small equity only in B Street, Town C at the start of the relationship.  The wife’s matrimonial settlement was applied to common use.  She put about $40,000 in after separation towards the mortgage (on G Street, Town C).  The husband has been living rent free since separation and he will work.  He is training for employment.  The wife has a regular income but it is not that great.  The husband is getting some cash payments. 

5. The husband’s evidence about his superannuation and what he did with it was vague.  He said he had received 15,000 from his daughter and possibly $20,000 more was still owed in legals.  He had repaid $9,200 to his partner.  It was submitted the Court should draw a Jones & Dunkel [1959] 1010 CLR 298 inference as a result of the non-production of superannuation documentation. Counsel submitted there was a lack of proper disclosure and referred to Chang & Su (2002) FLC 93-117 accordingly. It was inappropriate to adjust superannuation as a result of the non‑disclosure.

6. Counsel submitted that the contributions were equal and that the contributions made by the husband in respect of Mr E were very limited.  The pool was about $750,000 and the husband has sixty three and a half per cent of it.  This should be adjusted to produce a fifty‑fifty outcome.  The wife’s post separation contributions equal the husband’s future needs.  Selling the property was irrelevant.  There should not be a superannuation split.  The husband has expended significant sums since separation and there was no evidence of such matters as repairs and the like.  These were matters of recent invention. 

7. There was no evidence the wife was in a relationship.  She spent two nights a week with her partner but he never stays at her home.  There are no comingled finances.  This was a 14 year relationship and there should be an equal division of the parties’ properties, but no equalisation of superannuation.

   STANFORD & STANFORD (2012) 247 CLR 108 (“STANFORD & STANFORD”)

8. The Court’s first task, of course, pursuant to the High Court’s decision in Stanford & Stanford is to ascertain the legal and equitable interests of the parties and determine whether a property adjustment is appropriate.  Ordinarily, this is a relatively straightforward and almost formulaic position because both parties seek an adjustment.  In this case, however, it stands at the forefront of the parties’ differences of opinion.  I will, therefore, commence my endeavouring to ascertain the legal and equitable interests of the parties.

   THE POOL

9. In this circumstance, the parties’ legal and equitable interests are really not the subject of very significant dispute.  The pool consists of: 

   (a)B Street, Town C, valued $450,000;

   (b)G Street, Town C, valued $360,000. 

10. The liabilities are the mortgage on G Street, Town C, $87,771. 

11. The parties’ superannuation is wife $143,212 and husband $91,579.

12. I have not included the values of the parties’ cars.  The fact is that that of the wife is fully encumbered by a loan, to all effects and purposes.  Both that car and that of the husband are, in any event, the only means of locomotion.  If sold they would simply have to buy another.  It is unrealistic to include them as a serious monetary asset in the pool.

13. Likewise, I have not included the proceeds of the Motor Vehicle 1 sold by the wife for $1,500.  The amount involved is trivial and it took place quite some time ago and has doubtless been applied perfectly properly to living expenses.  Similarly, the parties’ present bank funds, bearing in mind that separation is well over three years ago, cannot seriously be said to own anything to the relationship.

14. One area that has caused me more difficulty is the $24,000 drawn down by the husband at separation.  I accept his evidence that this was, in some part, applied to the purchase of the Motor Vehicle 1 for the wife, and although his evidence appeared at times to suggest he might have spent $11,000 for a vehicle which rather clouded the matter, in the end I am satisfied that that was, in fact, attributed to the new car that he bought for himself.  Even if I am wrong as to these assumptions, the $24,000 has plainly gone on living expenses, which the wife herself conceded in evidence were not excessive.  It would be wholly artificial to add any of this back, even were I not otherwise satisfied it has been expended on motor vehicles.

    Contribution

15. The husband owned the B Street, Town C property at the time of the commencement of the relationship.  The equity in it was probably somewhere in the $40,000 mark, bearing in mind that he had owned it for three or so years before the relationship started and house prices have been on the move.  To equate that, however, in an equal way with the wife’s superannuation, which was also about $40,000 at the time is, in my view, to miss the point.  This is all the more the case given that the wife is seeking that there not be a superannuation split.

16. It is common cause that the husband was in comparatively well paid employment through till 2015 and the wife, as it seems clear, did not contribute as much in terms of finance.  The husband did provide some measure of benefit to the wife in as much as her children were permitted to live in B Street, Town C from time to time.  In the case of Mr E the period involved was relatively substantial.  While Mr D and his spouse appear to have paid $200 a week towards common expenses, this would have done no more than barely cover those expenses and they were given, in effect, rent free accommodation.  However, this was not for a protracted period of time and should not be taken to distort matters greatly.

17. The husband contributed his redundancy payment to the general common weal of the family.  He also paid out the mortgage with his superannuation.  I accept that his other superannuation withdrawals were to meet the exigencies of his circumstances.  I accept that he repaid his former partner $9,200 in respect of legal expenses.  I do not accept that he will be required to repay his daughter $15,000.  His evidence is that he and his daughter are extremely close, the loans appear to have been extant for some years, and there is no loan agreement.  He may repay it should he choose to do so, but he will not be required to do so.

18. I mention these matters, which perhaps might have been more appropriately included in the section about the pool, to give some emphasis to the unfortunate degree of expenditure in which the parties have engaged in respect of these legal proceedings.  As I observed during the currency of the hearing, in all probability they may have spent more than they are, in fact, disputing.

19. The wife would have it that the deposit and ancillary costs associated with the purchase of G Street, Town C, which amounted to about $40,000, were wholly provided by her.  She says this came in the form of child support and savings on her part.  I do not accept that evidence.  First of all, it leaves aside the fact that were this to be the case, it could only have been saved because she was otherwise living at the expense of the husband in B Street, Town C.  More to the point, throughout most of the period she says she saved those moneys, her other son Mr D was with his father and payments of child support would, and I accept the husband’s submission, have been minimal. 

20. Although it is completely impossible to disaggregate who put in exactly how much, the deposit and ancillary costs for G Street, Town C must, at least to an extent, have come from the husband, one way or the other.  The husband’s evidence was that there was no point paying rent as it was dead money and it seems clear to me that he had an active involvement in the purchase of G Street, Town C.

21. It should be noted that there is no starting point of a presumption of equal contribution.  The Court is required to assess the totality of the parties’ contributions to the financial outcome that presently obtains.  In my view, an appropriate assessment of the parties’ position would be 55 per cent to the husband and 45 per cent to the wife.  It should be noted that I do not accept the submission that the husband should be penalised, as it were, for having had rent free accommodation since separation.  The only reason that it is rent free is because he has spent $63,000 of his superannuation on it.

    Future Needs

22. The husband is 61 and although he is endeavouring to retrain and obtain further employment, his earnings will always be likely to be low.  I accept his evidence as to the difficulties he will face in trying to obtain employment in Town C, which appears to be a major provider in this field.  His future earning capacity is, necessarily, going to be somewhat limited. 

23. The wife, however, is in good full-time employment and, being 15 years younger than the husband, has far longer in which to save, and to amass further superannuation.  I note that she has managed to reduce her mortgage very substantially in quite a short period of time.  This is to her credit, but suggests that her financial circumstances are radically better than those of the husband in any event, even as things presently stand.

24. Both parties are in unexceptional health.  The fact that the wife has a son living with her does not suggest, having seen Mr E’s evidence, that he is a continuing financial burden.  I should make it clear that I accept that the wife is not, at this point, in a relationship in any meaningful sense, at least in financial terms.  She has been in this dating relationship for some time and she and her partner do not comingle their finances.

25. Taking all these matters together, it is clear that there should be at least a 10 per cent adjustment in favour of the husband.

26. This is buttressed by the fact that I have no doubt that the husband assisted the wife in her legal proceedings, at least to some extent.  I do not accept that it was as much as $40,000 but his evidence about this matter was given with conviction and I accept it.  I also accept, of course, that the wife contributed her matrimonial settlement of $37,800 to the general wellbeing of the family.

    Just and Equitable

27. It is the husband’s case that there ought not be any adjustment to the parties’ property holdings.  The wife seeks a fifty-fifty division of the non-superannuation assets and that she retain her superannuation.  The husband accepts that there should not be an adjustment of superannuation.  In the circumstances where the husband has spent some $100,000 of his superannuation, notwithstanding that the parties must have both garnered much of their superannuation during the relationship, I think that the outcome contended for by both parties in respect of superannuation is just and equitable.  The wife will have somewhat more but the husband will have the continuing benefit of those funds he applied to pay out his mortgage which, if added, might produce a relatively similar figure for both parties.

28. So far as non-superannuation matters are concerned, I have already found that the contribution issues and future needs issues when taken together would produce an outcome of 65 per cent to the husband and 35 per cent to the wife.  In these circumstances, in my view, as I indicated at the commencement of this judgment, I do not think it is just and equitable that there be any further adjustment to the parties’ non‑superannuation holdings.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated:       12 May 2021