Astley and Astley
[2015] FCCA 3554
•17 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASTLEY & ASTLEY | [2015] FCCA 3554 |
| Catchwords: FAMILY LAW – Property proceedings. |
| Legislation: Family Law Act1975 ss.75, 79 |
| Cases cited: Omacini & Omacini (2005) FLC 93-218 Kowaliw (1981) FLC 91-092 Bevan & Bevan (2013) FLC 93-545 Bevan & Bevan [2013] FamCAFC 116 Vass & Vass [2015] FamCAFC 51 Stanford & Stanford (2012) 293 ALR 1970 Hickey & Hickey (2003) FLC 93-143 Russell & Russell (1999) FamCA 1875, (1999) FLC 92-877 McLusky & McLusky [2014] FamCA 93 Todd & Todd [2014] FamCA 101 Adamson & Adamson (2014) FCCA 73 Whinton & Whinton and Ors (2014) FamCA 102 |
| Applicant: | MR ASTLEY |
| Respondent: | MS ASTLEY |
| File Number: | NCC 755 of 2011 |
| Judgment of: | Judge Myers |
| Hearing dates: | 11 February 2014, 24 September 2014, 25 September 2014, 26 September 2014 & 13 February 2015 |
| Date of Last Submission: | 12 May 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 17 November 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Cunningham & Adam |
| Solicitors for the Respondent: | Rowlandson & Co Solicitors |
THE COURT ORDERS THAT:
All previous orders of the court in respect of property be discharged.
Within 42 days the wife do all acts and things and sign all documents necessary to transfer to the husband her right title and interest in the property situated at and known as Property R.
Simultaneous with the transfer of the wife’s interest in the Property R property to the husband the husband pay to the wife the sum of $195,333.00 and do all acts and things and sign all documents necessary to refinance the loan with (omitted) secured by way of first registered mortgage over the said Property R property so as to remove the wife as borrower or guarantor in respect of the said loan.
The wife do all acts and things and sign all documents necessary so as to resign as appointor or beneficiary of either of the Astley Family Trust or Astley Family Trust No. 2 including resigning as director of corporate entity that is trustee of the said trusts.
Within 14 days the husband cause to be delivered to the wife the (omitted) Camper Trailer and Catamaran as she directs and transfer to the wife all of the husbands interest in the Toyota Land Cruiser Motor Vehicle registration number (omitted).
A base amount of $61,196.00 is allocated as required by s.90MT(4) of the Family Law Act 1975 to the respondent out of the applicant’s interest in the (omitted) Super Fund, Member No. (omitted) (“the Fund”).
6.1Orders 6 to 9 of these orders are binding on the trustee of the Fund;
6.2In accordance with paragraph 90MT(1)(A) Family Law Act 1975:
6.2.1The respondent is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
6.2.2The applicant’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the applicant’s interest in the Fund is correspondingly reduced.
The trustee of the Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
7.1Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement for the respondent created by Order 6 of these orders; and
7.2Pay the entitlement whenever the trustee makes a splittable payment out of the applicant’s interest in the Fund.
These orders have effect from the operative time and the operative time is four (4) business days after service of these orders on the trustee.
After service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 the respondent do all such things and sign all such documents as may be necessary including but not limited to exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the applicant’s interest in the Fund to a fund of the respondent’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
Otherwise as provided for in these orders each party be declared to be the sole beneficial owner of all monies in bank accounts, motor vehicles, shares in public or private companies, chattels, superannuation insurance policies, furniture and furnishings and the like that stand in that parties name or that are in that parties possession as at the date of these orders.
Pursuant to section 106A of the Family Law Act 1975 should either party neglect or refuse to sign any deed, document, instrument or real property transfer necessary to give effect to these orders within seven (7) days of a written request to do so a registrar of the Federal Circuit Court of Australia, Newcastle Registry is appointed to execute such deed, document, instrument or real property transfer.
IT IS NOTED that publication of this judgment under the pseudonym Astley & Astley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 755 of 2011
| MR ASTLEY |
Applicant
And
| MS ASTLEY |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is a final property decision in respect of proceedings between the applicant husband, Mr Astley, and the respondent wife, Ms Astley. The applicant husband sought orders on a final basis in accordance with the minutes of order that were attached to his outline of case document that, in essence, provide:
a)the husband retain the property at Property R;
b)the wife transfer her interest in the Property R property to the husband;
c)the husband refinance the Property R loan so as to remove the wife as borrower or guarantor in respect of the mortgage over the Property R property with (omitted);
d)the husband pay to the wife $150,000.00 upon her transfer to the husband of her interest in the said Property R property;
e)the husband, in effect, pay to the wife by way of superannuation splitting order the sum of $24,000.00 from his superannuation interest in (omitted) Super Fund ;
f)that the husband transfer to the wife his interest in the Toyota Land Cruiser motor vehicle, registration number (omitted), otherwise each party retain any other property held in their respective names;
g)that the court make an order pursuant to section 106A of the Family Law Act empowering a registrar to execute deeds or documents necessary to give effect to the orders.
The wife sought final orders that are contained within her outline of case document that, in essence, provide:
a)the wife retain her interest in Property R;
b)the husband transfer his interest in the Property R property to the wife;
c)the wife refinance the Property R loan so as to remove the husband as borrower or guarantor in respect of the mortgage over the Property R loan with (omitted);
d)the husband transfer to the wife his interest in the Toyota Land Cruiser, registration number (omitted), and his interests in the catamaran;
e)the husband, in effect, pay to the wife by way of superannuation splitting order the sum of $47,000.00 from his interest in the (omitted) Super Fund;
f)otherwise each party retain any other property held in their respective names;
g)that the court make an order pursuant to section 106A of the Family Law Act 1975 empowering a registrar to execute deeds or documents necessary to give effect to the orders;
h)the wife sought an order pursuant to section 116 of the Child Support Assessment Act but did not press at the hearing that the court deal with the application on a final basis, or at all.
The husband relied upon the following documents that the court has read and considered, namely;
(a) an amended initiating application, filed 20 December 2013;
(b) the husband’s affidavit, sworn 19 December 2013, filed 20 December 2013;
(c) the husband’s financial statement, sworn 19 December 2013, filed 20 December 2013;
(d) the husband’s outline of case document and written submissions, filed 26 September 2015, and submissions in reply, filed 12 May 2015.
The wife relied upon the following documents that the court has read and considered, namely;
(a) a further amended response, filed 3 February 2014;
(b) an affidavit of the wife, filed 6 January 2014 and 22 September 2014 and 11 February 2015;
(c) a financial statement of the wife, filed 5 September 2011, 30 December 2013 and 31 July 2014;
(d) an outline of case document and written submissions of the wife, filed 17 April 2015.
The court notes the affidavit of Mr D, sworn 25 August 2014, in respect of the Property R property. The parties agree that said property is worth $385,000.00 for the purposes of the proceedings. The court has read and considered the documents tendered during the proceedings, forming exhibits A through to U. The court has heard and considered the evidence of the parties given during cross-examination.
By way of background, the wife was born on (omitted) 1970 and the husband was born on (omitted) 1971. The parties are some six months apart in age, with the wife being 45 years of age and the husband 44 years of age. In about late 1992 the parties commenced cohabitation and married on (omitted) 1993. At the commencement of the relationship neither party had significant assets and the court finds the parties’ initial contributions were equal. At the commencement, the husband was employed with (employer omitted) and the wife employed with (employer omitted) as an (occupation omitted).
In late 1993 the parties purchased a home in Property G for the sum of $119,000.00, borrowing funds from the (omitted) Bank. The wife obtained employment with (employer omitted) in 1995 and commenced a (studies omitted) at (omitted) University in 1996. On 8 June 1997 the parties’ son Z, now aged 18 years, was born.
The parties sold the property at Property G in 1997 for $134,000.00 and in 1998 purchased land at Property B, constructing a home upon the land at a cost of some $330,000-odd, borrowing monies from (omitted) Bank. In 1999 the parties sold the Property B property for $345,000.00 and thereafter purchased land at Property J for $145,000.00. The parties subsequently built a home on the land and thereafter moved into the property.
In 2000 the wife completed her (studies omitted) degree with (omitted) University and thereafter obtained full time employment in (employer omitted). At about that time the husband was promoted within (employer omitted) and was then employed at (omitted).
On (omitted) 2003, the parties’ twin children, X and Y, now aged 13 years were born. In the same month the parties and their three children moved into the newly constructed home at Property J. In either 2003 or 2007 the parties purchased vacant land in Property Q free of encumbrance. In 2006 the husband entered employment as a (occupation omitted) leaving his employment with (employer omitted).
In October 2006, the parties jointly purchased as an investment property a home at Property R that happened to be a home next door to where the husband’s parents reside. The home was purchased for $465,000.00 with the funds borrowed from (omitted) Bank. The property was thereafter tenanted.
The parties are in disagreement as to the date at which separation occurred. The wife contends separation occurred in late December 2010, while the husband contends separation occurred in mid-2011. Nothing for the purposes of determining these proceedings turns on whether separation occurred in late 2010 or early 2011. The court finds separation occurred somewhere between late December 2010 and mid-February 2011.
As at the date of separation, both parties earned an income of approximately $85,000.00 to $95,000.00. In March 2011 the wife moved out of the property at Property J, firstly moving in to live with a friend, Ms J, at (omitted) and ultimately moving the children into rented accommodation at (omitted).
Up to the time of separation it is uncontroversial for the court to accept that the parties’ contributions were equal. The wife contends that following separation her contributions exceeded that of the husband. In about 8 March 2011 the husband withdrew the sum of $8,865.00, paying such sum off his credit card. The wife, some two days later, contacted (omitted) Bank placing, in effect, a bar on the parties’ drawing down on the line of credit. The wife contends that this sum should be treated as notional property and added back to the balance sheet, with such monies having been received as property in the hands of the husband in what is termed in cases such as Omacini & Omacini (2005) FLC 93-218 and Kowaliw (1981) FLC-19-092 as add backs.
Having considered the evidence with respect to the husband and his expenditure on credit cards, the court does not find that the sum of $8,865.00 ought to be treated as an add back. On the topic of add backs, the court notes the submissions made on behalf of the husband in reply to the effect that decisions of the Full Court in Bevan & Bevan (2013) FLC 93-545 stands for the proposition that it is no longer appropriate to, in effect, find add backs when determining property proceedings.
In this regard, the court draws attention of the decision to the Full Court of the Family Court, comprising Strickland, Murphy and Tree JJ in the case of Vass & Vass [2015] FamCAFC 51 that sets out at paragraph 138:
There is no actual error committed per se in adjusting the parties’ actual property interest by calculations involving notional add backs into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision in Bevan & Bevan (2013) FLC 93-545or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to notional property, as have been referred to in decisions of this court at first instance, may need to be reconsidered.
Vass & Vass stands for the proposition that add backs are back. On the top of add backs, the wife contends that the further sum of $4,326.00, being moneys received from the rent at Property R, ought to be added back in circumstances where such sums collected by the husband were not paid towards the liability over the property to (omitted) Bank.
The counsel for the wife submitted that the husband sought an add back as against the wife in the sum of $11,000.00 being moneys that ought to have been contributed towards the mortgage by the wife. Curiously counsel for the husband, in submissions in reply, rejected such a suggestion and instead suggested that the sum of $11,000.00 ought to otherwise have been contributed towards the mortgage was a financial resource and detracts from the post-separation contributions the wife made.
In July 2011 the property at Property Q was sold for the sum of $120,000.00. The net proceeds, after the payment of agent’s commission and expenses, were applied to reduce the parties’ overall borrowings. The wife contends that between March 2011 and December 2011 for some nine months the husband contributed no moneys towards the repayments of the loan over Property J, despite having exclusive occupancy of the property. Further submission made for the wife suggest that between March 2011 and March 2012 the husband contributed no moneys towards the outgoings on the property, and instead utilised funds from the parties’ line of credit facility to pay for such things as rates, insurances and utilities, such as electricity and water.
In March 2012 the home at Property J was sold. The whole of the proceeds after agent’s costs and expenses on the sale, were used to further reduce the parties’ liability with (omitted) Bank down to a little over $110,000.00 as it stood at the date of the hearing. The said sum stands secured over the parties’ last remaining item of real property, being Property R.
On 5 April 2012 final parenting orders were made by consent that provided that Z was to spend time as agreed between the parties with the father, and the twins Y and X were to live with the mother and spend time with the father. What was apparent during the course of the hearing is that the children spending time with the father in accordance with the orders is best described as problematic.
Following the sale of Property J, the husband moved in to live with his parents. In June 2013 the wife moved to rental accommodation at (omitted). The contentious matter in the proceedings was that related to the husband’s significant reduction in income. Having regards to exhibit E in the proceedings, being a financial report for the publicly listed company, (omitted), it would appear the husband’s income in the financial year 2012/2013 was some $96,000.00.
The husband asked the court to accept that his income has been reduced, as a result of what the court might term a downturn in the economic circumstances of the company, to the sum of $46,000.00. Considerable cross-examination on this topic was undertaken in a precise manner by counsel for the wife. It became apparent that no other employee at the husband’s place of employment suffered the economic misfortune of the husband. For instance, the husband’s sister took a reduction of $3,000.00 whereas the husband’s reduction was some $46,000.00. The reduction in moneys received by the husband were not, in the view of the court, adequately explained.
On a similar topic, cross-examination of the husband on the topic of the Holden Colorado motor vehicle driven by the husband allows the court to find that the husband, in effect, has available to him a vehicle and that the vehicle is what might be termed as fully maintained with payments for such things as petrol and other expenses of the vehicle being borne largely in part by (employer omitted).
The effect of the evidence about the husband’s income and vehicle leaves the court in a position where it cannot and does not accept the figure provided by the husband as to the income he receives as set out in his financial statement. What must be noted is that the husband’s reduced income has had an impact upon the husband’s child support assessment liability.
Disappointingly, it became apparent during the course of the hearing the husband has had a child support arrears liability at one stage in the sum of $4,000.00. Significant criticism was levelled against the husband during the course of cross-examination and in submissions made by counsel for the wife in respect of the husband’s complete failure to disclose his transfer of shares and resignation as director of the entity known as (employer omitted).
On 11 February 2014, a time at when the husband was in court, the husband allowed the court to make orders, in effect, to value the husband’s shareholding in (employer omitted) in circumstances where the husband had divested himself of his interests in the company. To be clear, the court was not on notice that the husband had divested himself of his interest in the said company at the time the court made orders on 11 February 2014.
At page 10 of the husband’s submissions by his counsel a suggestion is made that the court make an order that the wife, in effect, pay half of the costs of the valuation fee paid by the husband for the valuation of (employer omitted). While the court had ordered that the parties be equally liable for the costs of the valuation, pursuant to order 6 made on 11 February 2014, the court discharges such order and will not adjust the sum paid by the husband for the valuation where, on the face of the evidence before the court, the court was misled, not by the husband’s counsel but by the husband, in effect, omitting to instruct his counsel as to the actual circumstances in respect of the husband’s shareholding.
Counsel for the wife made significant submissions in respect of the expenditure of money by the wife on legal fees from monies the wife inherited post separation. Counsel for the husband, in the view of the court, sensibly submitted that while there was what the court might term insufficient disclosure on the topic, monies expended from the inheritance, and the inheritance itself, should be dealt with as a financial resource as opposed to being accounted for in the asset pool as what might be regarded as add backs.
Sadly, the wife’s health took what might be described as a turn for the worse when the wife was diagnosed with breast cancer in December 2014. Counsel for the wife submitted that, the recent nature of the diagnosis as compared to the date of the hearing was such that it was not possible to obtain expert evidence as to what such diagnosis might have on such things as the wife’s future health.
These are proceedings governed by section 79 and generally Part VIII of the Family Law Act. In the case of Stanford & Stanford (2012) 293 ALR 1970, the High Court, at paragraph 78 to 79, considered the manner in which the Court should approach the determination of property proceedings and held that:
It is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The Court has historically determined property proceedings in accordance with the well-established principles set out in Hickey & Hickey (2003) FLC 93-143, embarking on what might be described as a four-step process. The first step requires the Court to identify and value the assets, liabilities and financial resources of parties at the time of the hearing. The second step requires the Court to consider the parties’ contributions and to consider any adjustment that should be made between the parties.
The third step requires the Court to consider the actual circumstances of the parties and make adjustment for those circumstances, considering a variety of factors set out at section 75(2) of the Family Law Act 1975. Lastly, the fourth step requires the Court to satisfy itself that the actual effect of the orders are just and equitable. It is the justice and equity of the actual orders the Court must consider. In this regard, see the case of Russell & Russell [1999] FamCA 1875, also (1999) FLC 92-877.
In the Full Court of the Family Court decision in Bevan & Bevan [2013] FamCAFC 116, the Full Court considered the decision in Stanford and the implications of that decision when looking at the four-step approach taken by the Court. Bryant CJ and Thackray J held at paragraph 59:
Prior to Stanford, property applications were commonly dealt with by reference to what the trial judge called a four-step process. This process was described 31 and 32 of his Honour’s reasons. The jurisprudential basis for this process was well established. There, see the line of cases cited in Hickey & Hickey (2003) FLC 93-143 at paragraph 39.
The four stage – or step – process involves identification and valuation of the property of the parties; identification and evaluation of the contributions to the property, including property no longer owned by the parties; identification and assessment of the various matters in section 79(4)(d) to (g) including, to the extent they are relevant, the matters in section 75(2); consider the matters of justice and equity.
Although the four-step process has been regularly applied, the Full Court has stressed it is no more than a means to an end, since the statutory obligation is to alter existing interests only if it is just and equitable to do so. Thus, in Norman (2013) FamCAFC 116, the Full Court of the Federal Court, comprising Finn, May and Murphy JJ said:
It is the mandatory legislative imperative to reach a conclusion that it is just and equitable that drives the ultimate result. For all its usefulness and merit as a disciplined approach or a structured process of reasoning, per Fogarty, Lindenmayer, McCall J in the case of N & N, unreported, 2010 June 1992, the three-step or four-step approach merely illuminates the path to the ultimate result.
To like effect, in discussing the four-step approach in our joint judgment in Martin & Martin, we said, with original emphasis added:
That approach is not legislatively mandated, and the Full Court in Hickey said it is simply the preferred approach. This is because it will be sufficient, in most cases, to have regard to the overall justice and equity of the orders after determining the asset pool, consideration of contributions and assessment of the relevant section 75(2) factors.
But in our view, there is no requirement that the justice and equity of the order, as prescribed by 79(2), must only be considered as the fourth and last stage. In our view, the requirement to make an order that is just and equitable permeates the entire decision-making process, and it is not impermissible to consider it at an earlier point if the particular case requires it. We consider this to be such a case.
In McLusky & McLusky [2014] FamCA 93, Forrest J stated:
Furthermore, neither party submitted that the Court’s determination of appropriate orders dividing the property of the parties or either of them in a manner that the Court considers just and equitable should not be undertaken pursuant to the four-step process that has been authoritatively accepted as the general appropriate method for doing so. The continued use of the approach to illuminate the path to determining the just and equitable orders to be made does not, in my view, offend any of the reasoning in Stanford. I consider that the Full Court accepted as much in Bevan & Bevan. I intend to follow that four-step approach.
In Todd & Todd [2014] FamCA 101, Berman J stated:
The adoption of the above four-step approach is not intended to presuppose a positive answer to the question posed by section 79(2); nor does it suggest that it is an approach appropriate in all proceedings. Rather, and provided that the fundamental position outlined by the High Court in Stanford are not obscured, such approach is intended to and does no more than provide a principled, disciplined and structured means by which all the matters arising for consideration pursuant to section 79 can be conveniently and properly identified and assessed.
Further, and while not said critically nor in a manner which seeks to cavil with the decisions in this appeal, no other approach to determination emerges readily from either Stanford nor the decision in this appeal. It is respectfully submitted that provided that the fundamental positions articulated in Stanford are not obscured, and whilst not universally so as has always been recognised, the approach set out above continues to provide a proper, transparent, certain and structured approach to the presentation and determination of applications pursuant to section 79.
In Adamson & Adamson [2014] FCCA 73, at paragraph 152, Judge Altobelli of the Federal Circuit Court of Australia adopted the four-step approach, commenting:
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court decision in Stanford & Stanford, which provided guidance on how section 79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FamCA 395, but only on the basis that it is a shorthand distillation of the words of section 79, as opposed to being a statutory edict.
What is clear from the case law is that the four-step approach, while not legislatively mandated, continues to be adopted by the Courts when determining an application made pursuant to section 79 of the Family Law Act for adjustment of property interests, in that it is a means by which the Court is able to illuminate a pathway towards a result that is just and equitable. The four-step approach is well-established in authority: In the marriage ofLee Steere (1985) FLC 91-626, In the marriage of Ferraro (1993) FLC 92-335, In the marriage ofClauson (1995) FLC 92-595 and Hickey & Hickey (2003) FLC 93-143.
In Whinton & Whinton and Ors [2014] FamCA 102, Johnston J stated:
In our view, it will be less likely that the separate issue arising under section 79(2) and 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it is just and equitable to make an order.
The question in this matter is should an order be made? This is a case where the assets of the parties are not divided equally between them. The Court takes the view that in this case, the Court ought to make an initial finding as to whether it is just and equitable to make an order. Accordingly, when identifying, according to ordinary common law and principles of equity, the existing legal and equitable interest of the parties in the property, the Court finds that the contributions the parties made are not necessarily reflected in the way in which the parties hold their assets.
In this case, the husband holds assets of substantially greater value than those held in the name of the wife, and it is therefore the view of the Court that it is just and equitable to make a property settlement order adjusting the parties’ property interests in the proceedings.
The Court must consider the property of the parties. During the hearing, the Court will sometimes utilise the evidence of experts – such as that of a valuer – agreement between the parties or the making of findings upon the evidence presented to identify the value of property, liabilities and financial resources.
The Court is not persuaded to add back to the pool moneys collected by the husband as rent; nor is the Court prepared to add back monies withdrawn by the husband paid into his credit card where the Court finds that debts accumulated on the husband’s credit card had been expended properly during the course of the parties’ relationship. Problematic in the proceedings are the husband’s shareholding in (employer omitted).
The husband asserts that such shareholding has a nil value, while the wife suggests that this shareholding is worth some $12,500.00. Exhibit E in the proceedings suggests that the shareholding has a value of 0.05 cents per share for the financial year 2013/2014. The Court finds that the value of the shareholding is, based upon exhibit E and the argument of counsel for the respondent, worth some $12,500.00.
Noted in the balance sheet provided in submissions for the counsel of the husband is listed as the Astley Family Trust and the Astley Family Trust Number 2. There was insufficient evidence available to the Court to make any findings as to the value of such entities. The Court finds the following assets and liabilities of the parties:
Property:
a)Property R, held in joint names, $385,000.00.
b)Husband's (omitted) bank account ending (omitted), $2521.00.
c)Husband's (omitted) bank account number ending (omitted), $6079.00.
d)Husband’s shareholding in (employer omitted), 250,000 shares at .05 cents per share, $12,500.00.
e)Husband’s (omitted) Mazda Tribute, $5,000.00.
f)Joint Astley Family Trust, nil.
g)Husband Astley Family Trust Number 2, nil.
h)Husband’s (omitted) Toyota LandCruiser, $6,000.00.
i)Joint (omitted) camper trailer, $6,000.00.
j)Joint (omitted) camper trailer, $3,500.00.
k)Joint catamaran, $1,000.00.
l)Husband’s household contents, $10,000.00.
m)Wife's (omitted) bank account ending number (omitted), $5,500.00.
n)Wife’s (omitted) Subaru motor vehicle, $39,000.00.
o)Wife’s household contents, $5,000.00.
Total property $483,100.00.
Liabilities:
p)Loan to (omitted) Bank secured over Property R property, joint, $110,000.00.
q)Wife's (omitted) Credit Union credit card, $5,000.00.
r)Wife’s (omitted) salary lease secured over Subaru motor vehicle, $39,000.00.
Total liabilities: $154,000.00.
Superannuation:
s)Husband's (omitted) Superannuation accumulation interest, $159,391.00.
t)Wife's (omitted) Superannuation accumulation interest, $106,000.00.
Total superannuation: $265,391.00.
The Court considers section 79(4) in the proceedings, that provides:
In considering what order, if any, should be made under this section in property settlement proceedings, the Court shall take into account:
(a) the financial contributions made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of the last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them.
The Court finds that the initial financial contributions made by the parties at the commencement of and during the course of the relationship were equal. The Court finds that the wife’s post-separation contributions were greater than those of the husband, having regards to those matters set out in this decision, in particular relating to payments to and withdrawals from the mortgage by the husband and wife respectively.
The Court must consider section 79(4)(b), that provides:
The contributions – other than a financial contribution – made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the party to marriage or either of them, or otherwise in relation to any of the last-mentioned property, whether or not the last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them.
The Court finds that the parties’ contributions other than financial contributions were equal pursuant to section 79(4)(b).
The Court must consider section 79(4)(c), that provides that the Court must consider 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.
The court finds that the contributions made by the wife to the welfare of the family constituted by the parties to the marriage and any of the children of the marriage, including contributions made by her in the capacity as homemaker or parent were greater than those of the husband, noting the primary care provided by the wife to the children following separation.
The court finds an adjustment of the contributions in favour of the wife as to 53 per cent and 47 per cent to the husband.
The court considers section 79(4)(d):
The effect of any proposed order upon the earning capacity of either party to the marriage.
The court finds the orders for the property as proposed by either party would not, in the view of the court, have any effect upon the earning capacity of either party. The court considers those matters set out in section 75(2) so as far as they are relevant.
The matters to be taken into account at section 75(2) are:
(a) the age and state of health of the parties.
The parties are within six months of age of one another, the husband enjoys superior health to that of the wife, noting the wife’s breast cancer diagnosis.
(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.
The court considers the parties’ income and makes no adjustment, despite the disparity in income disclosed by the husband in the proceedings. The court considers the parties’ financial resource in the form of the husband’s maintained motor vehicle and wife’s inheritance. The court considers, in the absence of expert evidence, as to the wife’s diagnosis and her prognosis affecting her capacity for gainful employment as being equal.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years.
The court finds that, despite what might be an undesirable position for the husband with respect to the relationship he has with the children, the court finds that the wife has the superior care and control of the twins who have not yet attained the age of 18 years.
The court must consider:
(d) the commitments of each of the parties that are necessary to enable the party to support himself or herself, the child of another person that a party has a duty to maintain.
The court has considered the commitments of the parties to support themselves and the children, as disclosed in the parties’ expenses set out in their financial statements. The court must consider:
(e) the responsibilities of the parties to support any other person.
Neither party has a responsibility in these proceedings to support another person.
The court must consider subparagraph (f):
Subject to subparagraph (3) the eligibility of either party for a pension or allowance or benefit under a law of the Commonwealth, or a State or Territory of another country, or any superannuation, fund or scheme, whether the fund or scheme was established or operates within or outside of Australia, and the rate of any such pension, allowance or benefit paid to either party.
The court finds that, based upon the evidence of the parties, neither party is eligible to receive a pension, allowance or benefit.
The court must consider subparagraph (g):
Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable.
Based on the parties’ evidence, the court finds the settlement as proposed by either party will afford both parties a standard of living that, in all the circumstances, is reasonable. The court must consider subparagraph (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 to enable that party to undertake a course of education or training to establish himself or herself in a business or otherwise to obtain an adequate income.
The court finds that consideration found in section 75(2) subparagraph (h) is not applicable in these proceedings.
The court must consider subparagraph (ha):
The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt insofar as that effect is relevant.
The court finds that that consideration is not relevant in these proceedings: The court must consider section 75(2(j) being:
the extent to which each party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the parties.
Again, the court finds that such consideration is not applicable in these proceedings: The court must consider section 75(2)(k) being:
the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
The court finds that the duration of the marriage has not affected the earning capacity of either party. The court must consider section 75(2) subparagraph (l):
The need to protect a party who wishes to continue that party’s role as a parent..
The court considers that the wife desires to continue her role as a parent. The court must consider section 75(2)(m) being:
if either party is cohabiting with another person, the financial circumstances relating to that cohabitation.
The court finds that neither party is cohabiting with another person. The court must consider section 75(2)(n):
The terms of any order made or proposed to be made under section 79 in relation to the property of the parties, to the vested bankruptcy property in relation to a bankrupt party; and (naa) the terms of any order or declaration made or proposed to be made under Part VIIIAB in relation to a party to the marriage, the person who is a party to the de facto relationship with a party to the marriage, or the property of a person covered by subparagraph (i) and the person covered by subparagraph (ii), or either of them, or vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii).
The court has considered section 75(2)(n) with respect to the orders the court proposes to make in these proceedings. The court must consider section 75(2)(na):
Any child support under the Child Support (Assessment) Act 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.
The court has considered the history of the husband’s arrears of child support and the child support the husband is liable to pay by virtue of his limited declared income. The court considers section 75(2)(o):
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
The court considers it is the desire of both parties to retain the Property R home. The home is located next door to the husband’s parents. The husband desires to reside in the home. The wife desires to keep the home for the purposes of renting it out as an investment property as opposed to residing within it. The wife conceded during cross-examination that the home would be uncomfortable to reside in with the children, and gave evidence that she is intimidated by the husband and his family. Based upon the above and having heard the parties’ evidence as to their desire to retain the home, the court finds that it is just that the husband retain the interest in the home.
The court considers sub paragraph 75(2)(p):
The terms of any financial agreement that is binding on the parties to the marriage.
There is no financial agreement pursuant to section 75(2)(q). The court considers the terms of any Part VIIIAB financial agreement binding on the parties to the marriage. There is no such agreement.
The court finds an adjustment pursuant to section 75(2) as to 60 per cent to the wife and 40 per cent to the husband.
The court considers section 79(4)(f):
Any other order made under this Act affecting a party to the marriage or a child of the marriage.
The court has considered section79(4)(g):
Any child support under the Child Support (Assessment) Act 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.
The court has considered the child support provided by the husband to the wife.
The court has considered section 79(2) and does not propose to make any further adjustment between the parties on the basis that it is just and equitable to do so. The court finds that it is just and equitable to make a property settlement adjustment between the parties as to 63 per cent to the wife and 37 per cent to the husband.
The court makes final orders having considered sections 79(2), 79(4) and 75(2) of the Family Law Act 1975, having considered the evidence of the parties, having read and considered the documents filed on behalf of the parties, having considered the documents tendered during the proceedings, having heard and considered the parties’ evidence given during cross-examination, having considered the submissions made by counsel for the applicant and the respondents.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 20 January 2016
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