ATF & LSF
[2006] FMCAfam 141
•31 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ATF & LSF | [2006] FMCAfam 141 |
| FAMILY LAW – Property – post separation contributions – where parties’ 11 year old daughter resides with husband – wife works part time while husband in full time employment – wife pays little child support however because of a mental illness her financial future is less secure than the husband’s – no s.75(2) adjustment made. |
| Family Law Act 1975, ss.75, 79 Family Law Legislation Amendment (Superannuation) Act 2001, ss.4, 90 |
| Coghlan (2005) FLC 93-220 DGM & JLM (1998) FLC 92-816 Townsend & Townsend (1995) FLC 92-569 Kowaliw & Kowaliw (1981) FLC 91-092 In the Marriage of Lee Steere (1985) FLC 91-626 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Clauson (1995) FLC 92-593 Biltoftv Biltoft (1995) FLC 92-614 Russell v Russell (1999) FLC 92-877 |
| Applicant: | ATF |
| Respondent: | LSF |
| File Number: | PAM3922 of 2005 |
| Judgment of: | Ryan FM |
| Hearing date: | 24 March 2006 |
| Date of Last Submission: | 24 March 2006 |
| Delivered at: | Parramatta |
| Delivered on: | 31 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Givney |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Mr G. Thisleton |
| Solicitors for the Respondent: | Doherty Partners |
ORDERS
Within eight (8) weeks of the date of these orders the husband pays to the wife the sum of two hundred and thirty three thousand four hundred and thirty eight dollars ($233,438).
Simultaneously upon compliance by the husband with Order (1) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in “the property” situated at Sadlier in the state of New South Wales.
Simultaneously upon compliance by the husband with Order (1) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the property situate at Goa.
In the event the husband fails to comply with Order (1) the parties do all such acts and execute all such documents as may be required to effect a sale of the property situated at Sadlier in the State of New South Wales to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale proceeds of the sale are applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates outstanding in respect of the property.
(b)Fifty percent to the wife, and
(c)Balance then remaining to the husband from which he will immediately pay the wife $33,438.
In the event that the property has not been sold by or before a date three (3) months from the date Order (4) becomes operative then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the property upon the following terms:
(a)The auctioneer shall be a real estate agent;
(b)The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer.
(c)That auction will take place within three (3) months of this order becoming operative.
(d)The sale proceeds shall be distributed as ordered above.
Each party has the right to bid at the auction.
Simultaneously upon compliance with Order (1) the wife shall transfer to the husband her right, title and interest in all Telstra shares registered in her name.
The husband shall deliver or make available to the wife (as she directs) those items of personalty identified in exhibit A which the husband (by affixing a tick to exhibit A) indicated during the hearing the wife should receive.
All exhibits tendered in these proceedings shall be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Parramatta |
PAM3922 of 2005
| ATF |
Applicant
And
| LSF |
Respondent
REASONS FOR JUDGMENT
These are proceedings for the adjustment of property pursuant to s.79 of the Family Law Act 1975.
The applications
ATF (“the husband”) started the proceedings when he filed an application for final orders on 17 August 2005. In his application the husband seeks eight weeks to pay the wife 30 thirty per cent of the equity in the matrimonial home at Sadlier. The matrimonial home is the parties’ main asset. During closing submissions, the husband’s counsel submitted the husband should receive 62.5 per cent of the net assets.
LSF (“the wife”) relied on her amended response filed on 9 March 2006. The wife agrees that the husband should have an opportunity to purchase her interest in the parties’ assets and that he should retain the former matrimonial home, shares and savings. The wife claims her contributions slightly exceed the husbands and says the range of adjustment pursuant to s.75(2) is 7.5% in her favour.
The hearing
The applicant husband relied upon the following evidence:
·His affidavit sworn 8 March 2006 and his oral testimony.
·His financial statement sworn 8 March 2006.
The respondent wife relied upon the following evidence:
·Her affidavit sworn 9 March 2006 and her oral testimony.
·Her financial statement sworn 9 March 2006.
·Affidavit of Dr G filed 20 March 2006. Dr G was not cross-examined and I accept his evidence.
The husband tendered documents which became exhibits.
The issues
The principal issues raised in these proceedings are:
·Whether $51,197 or a lesser sum ($28,000) should be notionally added into the asset pool and treated as the husband’s asset?
·The wife’s post separation contributions.
·What adjustment, if any, should be made pursuant to s.75(2)?
Short history
The husband was born in India in 1960 and is 45 years old.
The wife was born in India in 1969 and is 36 years old.
In September 1987 the husband migrated to Australia.
In January 1989 the parties married in India.
In July 1989 the wife migrated to Australia.
The parties’ only child, Ruby (not her real name) CLF was born in January 1995.
On 25 September 2004 the parties separated. Although separated they continued to reside in the former matrimonial home.
On 12 August 2005 the wife moved out of the former matrimonial home, where the husband and Ruby remain living.
On 4 November 2005 the parties agreed that Ruby will live with the husband and the wife has regular contact.
Important events
During opening addresses both counsel agreed that in the event the court notionally added into the asset pool $28,000 rather than $51,197 (as the wife alleges should occur) then the wife’s contributions are 52.5 per cent compared to the husband’s 47.75 per cent. However, in the event the court notionally added back the larger amount, the husband submits the court will find that the parties’ contributions are equal. Thus, factual disputes concerning dowries, jewellery, and other contribution issues do not require adjudication. However, in order to evaluation post-separation contributions and determine what adjustment, if any, is warranted pursuant to s.75(2) it is necessary to consider some key elements of the marriage prior to separation.
When the parties commenced cohabitation, the husband worked on a full time basis as a drilling operator. Since then he has basically maintained full time employment, with gaps of no more than three to eight weeks between positions. For the last four years the husband has worked with State Transit as a bus driver. His employment is secure.
Upon the wife’s arrival in Australia she studied office training at TAFE for twelve months. In 1990 she started full time work as an office assistant with Westpac Bank. The wife maintained this position until she was approximately eight months pregnant. After Ruby was born, the wife stayed at home caring for Ruby for about one and a half to two years.
In 1991 the wife suffered what she believed was a nervous breakdown and was hospitalised for one month. Thereafter, between 1991 and 1995 she was hospitalised for various periods from between one and two weeks annually. The wife has subsequently been diagnosed as suffering schizoaffective disorder.
At some stage during 1991 the wife worked full time as a clerk in the Department of Corrective Services. In 1993 the wife obtained employment as a review officer at the Veterans Review Board. During the early 1990’s she also had other short term positions.
In 1994 the parties purchased vacant land at Sadlier for $75,000. The parties borrowed $83,600 from St George Bank which they contributed towards their home’s construction costs. In addition to the borrowed funds and savings, in February 1994 the wife’s parents gave them $14,549.69 towards the home.
The wife worked at the Veterans Review Board until 6 January 1995. It appears the wife was unable to work from 6 January 1995 until she ended her employment with the Veterans Review Board in late 1996.
In November 1997 the wife obtained employment with the Department of Fair Trading where she worked full time until 2002. In 2002, because she was not coping with full time work, the wife commenced working three days a week. The wife has not returned to full time employment and has no plans to do so.
On 28 June 2000 the parties purchased land in Hoxton Park for $152,000. The property was fully funded by a mortgage from the St George Bank. In total, the parties borrowed $172,000, covering the purchase price and other costs associated with the property. The Hoxton Park property was sold in June 2001 for $165,000. After selling costs, stamp duty and the like, the parties did not profit from the Hoxton Park transaction.
In about September 2002 the parties extended and improved the former matrimonial home. The extensions, which cost about $55,000, were funded from joint savings.
During 2002 the mortgage on the former matrimonial home was discharged. The title deeds are in the husband’s possession.
During the course of the marriage the parties purchased 400 Telstra shares and when the NRMA de-mutualised the husband was allocated 264 IAG shares.
At separation in September 2004 the parties had $14,847 in a joint Encompass Credit Union account and the husband had $16,747 in his St George savings account.
After separation, the husband transferred funds from the parties’ joint account in a series of transactions into his account. By 19 July 2005 the husband’s savings (including the funds held at separation) amounted to $51,186.91. Between separation under the one roof and the hearing, of the available funds, the husband is unable to account for $2,847. It is agreed that these funds were spent on reasonable day to day living expenses and the wife makes no claim for this amount to be notionally added back in.
Since January 2006 the wife has paid $65.90 per month child support.
Presently the wife is on sick leave because of her inability to cope with the strain of these proceedings. The wife’s employer has sent her for medical examinations and she is concerned that she will lose her position if she takes extended leave.
Relevant law
The approach to the determination of an application under s.79 is well established by authority: See In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-593. The process involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Biltoft and Biltoft (1995) FLC 92-614. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate any relevant s.75(2) factors; any other order made under the Act affecting a party or child; and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or might be liable to provide in the future for a child to the marriage.
In determining what order should be made under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so: s.79(2). It is the justice and equity of the actual orders that the court must consider: Russell v Russell (1999) FLC 92-877.
On 7 June 2005 the Full Court delivered judgment in Coghlan (2005) FLC 93-220. In this judgment the Full Court discusses the relevant provisions of Part VIIB including the manner in which a court should formulate the asset pool. Specifically, whether the court should effectively adopt a two pools approach, one for s.4(1) property and a separate pool for superannuation. Concerning the different approaches, the majority held:
“Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.
The parties’ contributions to all items on that list (including the superannuation interest) would then be assessed on either a global or an asset by asset basis. It might then be necessary in the s 75(2) context to have regard to the parties’ future superannuation entitlements (having regard of course to any division proposed on the basis of their contributions), with consideration then being given to the overall justice and equity of any proposed award or order (including any proposed splitting order). Indeed, this is the approach which the Full Court has used on its re-exercise of the trial Judge’s discretion in Ilett and Ilett (which will be delivered contemporaneously with the decision in this case).
However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.
Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. Specifically in the context of s 79(4)(e), that is the s 75(2) factors, any division of the property (as defined in s 4(1)) and any “division” of any superannuation interest (in the sense of an allocation of the base amount) based respectively on the assessments of the parties’ contributions to the property and to any superannuation interest, would then be considered. Similarly, the parties’ future superannuation prospects (be they in capital or income form) would also need to be considered. The overall justice and equity of the ultimate award (including any proposed splitting order or the need for such an order) would then be considered.”
Assets, liabilities and financial resources as at the date of hearing
The parties agree on the value of most of their assets and liabilities.
Neither party seeks a superannuation splitting or flagging order.
I find the assets, liabilities, and financial resources as at the date of hearing are as set out in the table below.
| Assets | $ |
| Sadlier property (J) (Agreed) | 400,000.00 |
| Toyota Camry (H) (Agreed) | 1,500.00 |
| 460 Telstra shares[1] (H) (Agreed) | 1,669.80 |
| 264 IAG shares[2] (H) (Agreed) | 1,433.52 |
| Jewellery (H) (Agreed) | 500.00 |
| Land in Goa (H) (Agreed) | 2,000.00 |
| Notional add-back (H) | 51,197.00 |
| TOTAL ASSETS | 458,300.32 |
| Liabilities | |
| NIL | |
| NETT ASSETS | 458,300.32[3] |
| Superannuation assets | |
| Superannuation (H) (Agreed) | 36,494.00 |
| Superannuation (W) (Agreed) | 26,918.00 |
| TOTAL SUPERANNUATION | 63,412.00 |
| TOTAL ASSETS | 521,712.32 |
[1] Calculated at $3.63 per share as at 30 March 2006
[2] Calculated at $5.43 per share as at 30 March 2006
[3] Rounded out
There are a number of findings which require explanation. Since separation the wife has saved $5,100 (presently held in her St George Bank account) and the husband has saved $6,113 (presently held in his St George Freedom account). Each of the parties concedes that neither contributed towards these funds. At the parties’ behest and by agreement, these savings are excluded from the asset pool. Nonetheless, the savings are relevant s.75(2) factors.
The wife’s counsel submitted the court would exclude each party’s superannuation entitlement, treating superannuation as a financial resource. With respect to the submission such as approach is plainly wrong. By s.90 NC of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth), “A superannuation interest is to be treated as property for the purpose of paragraph (CA) of the definition of matrimonial causes in section 4”. It seems to me, the court has no choice other than to treat superannuation as property, albeit according to the majority in Coghlan property in a special category.
As I have already mentioned, one of the key issues concerns whether the court should notionally add back $28,000 or $51,197 as assets retained by the husband. The husband agrees that $28,000, representing savings after the parties separated under the one roof, which he retained, should notionally be added into the asset pool. He disputes the wife’s contention that the larger amount, held in his bank account as at 7 July 2005 should be added back. Basically this is because he claims he alone contributed to the increase in savings. With respect this submission is inconsistent with Farmer and Bramley (2000) FLC 93-060. In Farmer and Bramley Justice Finn stated at 87,948 “57. Secondly, if it was to be determined that a majority of the community considered that one spouse should, as a general rule, have no entitlement to share in property either by good fortune or good management acquired after separation by the other spouse, then the Act would need to be amended to make this clear. As the Act currently stands, the jurisdiction conferred by s 79(1) to alter the interests of spouses in property extends without limitation to all the property which either spouse is entitled “whether in possession or reversion” (s 4).” The effect of this is that although the dichotomy of pre or post separation asset and income acquisition may be relevant during the second or third stage of the preferred approach, the question of the source of funds should not be confused with a court’s obligation to identify the asset pool at step one. In my view these principles apply to this case. Even if I was satisfied the husband alone contributed to these post separation savings, the entire amount is still matrimonial property. This being the case there is no proper basis for excluding any part of the larger amount from the asset pool.
Evaluation of the contributions and other factors
Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial. For the welfare of the family as well as to the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
The only contribution issue is the effect of my decision to include the full amount of the contentious $51,197 in the asset pool. From separation until the wife left the home she banked her salary into the parties’ joint St George account. Examining the statement one sees deposits from her employer totalling $4,368. The last payment made from the wife’s wages into this account was deposited on 20 April 2005. Of the $4,368 the wife withdrew $3,000 as a lump sum which she used to establish herself after she left the home. The husband deposited his wages into a separate account, transferring money into the joint St George account when needed. Until the wife left the home, the parties’ day-to-day expenses came out of their joint account. As far as financial contributions to the growth in savings post separation I am satisfied the husband made a much greater contribution that the wife.
I also accept both parties continued to make non financial contributions post separation and that the wife contributed to the welfare of the family as outlined in paragraphs 16, 17 and 20 in her affidavit. As the husband’s homemaker and parent contributions escalated after the wife left the home, I am satisfied their non financial post separation contributions are equal.
For these reasons I am satisfied the parties’ overall contributions are equal.
The orders I propose will not affect the earning capacity of either party.
I have already made findings of the payment of child support.
I find therefore that the parties’ total contributions and other factors should be assessed as being equal.
Section 75(2)
Subsection (a). The husband is 45 years of age and the wife is 36 years of age. The husband enjoys good health and the wife is in good physical health. Because her income and earning capacity are intrinsically linked to her mental health issues I address issues concerning her mental health in the following paragraph. I make no adjustment pursuant to the subsection.
Subsection (b). I have already made findings about the parties’ assets, financial resources and liabilities. The husband has been employed as a bus driver for the State Transit Authority for approximately four and a half years, from which he earns approximately $1,076 per week. Most of this is made up of his $57,000 per year income. It also includes $65.90 child support monthly from the wife, and weekly family tax benefits of $54. By way of property, the husband has his share of the former matrimonial home, where he and Ruby currently reside, and in relation to which he is currently meeting all costs. Of course when the husbands pays the wife her property entitlement he will use his savings and reduce his overall net worth by about the amount he will borrow to pay her. Upon coming to Australia in 1987, the husband was able to find employment in his trade as a turner. Although he has had a number of different jobs, he has not been without work for more than a few weeks at any one time. Certainly his present employment is both full time and secure, and there is nothing to suggest that the husband will not continue to work in the future. With his higher salary and secure work future the husband has a greater capacity to increase the value of his superannuation fund than the wife will be able to.
The wife is currently employed as a clerk with the Office of Fair Trading, where she works three days per week, and earns $466 per week. This is her only source of income. The wife will receive a cash adjustment which will supplement her modest savings. In 1991 the wife had a nervous breakdown which resulted in her being hospitalised for a month. Between 1991 and 1995 she spent a number of weeks each year in hospital. Initially she had been diagnosed as having brief reactive psychosis, but was subsequently diagnosed with schizoaffective disorder. She is currently taking a variety of medications in order to manage her condition. Although the wife is currently employed, and working three days a week, she is prone to becoming unwell when she is under pressure. Although she would prefer to work five days per week, her condition means she is unable to do so. It follows from Dr G’s evidence that, if the wife’s mental health deteriorates, as is possible, long before retirement age she may not be able to continue working at all. I am satisfied that, even if the wife’s health remains stable, she will continue to earn an income which is considerably less than the husband. Should her health reach the point that she unable to continue working at all, there is a real risk she will become dependant on social security payments.
The husband argued that the wife’s parents, who are recently arrived from India, comprise a financial resource. It is a condition of the wife’s parents’ migration that for at least the next seven, possibly ten years, they are ineligible for Centrelink payments or Medicare. They have satisfied the Department of Immigration and Multicultural Affairs they possess sufficient assets and income to live without government support. Thus, it is submitted, they are able to support the wife. I do not agree this evidence entitles me to draw such an inference. I make an adjustment in the wife’s favour pursuant to the subsection. This is a factor which carries significant weight.
Subsection (c). Ruby is only 11 years of age, and as such, has still quite a number of years for which she will remain dependant upon her parents. As she resides primarily with the husband, it is to him that responsibility for her day to day care will mostly fall. In Clauson the Full Court of the Family Court said, “In addition it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment opportunity and the restriction upon an independent lifestyle which the obligation to care for children usually entails”. Whilst the husband’s primary responsibility for Ruby’s care must be properly recognised, now that Ruby is at school, the impact of her care is not as limiting upon the husband and his employment as it is in cases involving younger children. Nonetheless he will need to make care arrangements if she is unwell, during school holidays and work around school or out of school hours care hours. For the reasons outlined in Clauson, I make an adjustment in the husband’s favour. This is a factor which carries significant weight.
Subsection (d). This focuses on the parties’ financial needs, including their financial commitment supporting any children. The financial commitments on both parties are identified in their respective financial statements. Although the husband’s financial statement indicates his approximate weekly expenditure exceeds his income by $120, the husband appears able to meet his weekly obligations. The husband’s commitment also includes a significant portion for Ruby, and also any expenses in relation to the former matrimonial home. If the husband’s expenditure was to continue to exceed his income as he indicates, especially as Ruby enters her teenage years, he may struggle to meet his commitments as and when they are due. However the point that cannot be missed is that since separation the husband has managed to increase his savings, a sign that his claimed expenses are exaggerated. Simply put, if the husband’s expenses exceeded his income he would not have been able to continue saving. I am satisfied the husband’s expenses are less than his income and until he refinances the home to pay the wife this is likely to continue to be the case. Upon paying the wife his expenses are likely to consume virtually all of his available income. The wife’s financial statement indicates expenditure of $530 per week, the majority of which goes towards her rent, and other day to day living expenses. The wife is barely meeting her expenses at the moment, however she also has been able to save, and a fact which suggests she is able to live within her means. Comparatively the husband must spend more meeting his and Ruby’s reasonable and basic living expenses. I make an adjustment in the husband’s favour pursuant to the subsection.
Subsection (e). Other than Ruby, neither party has any responsibility to support any other person. I make no adjustment pursuant to the subsection.
Subsection (f). The husband receives a small family tax benefit for Ruby, which by virtue of s.75(3) must be disregarded. The wife is not in receipt of social security benefits of any kind. I make no adjustment pursuant to the subsection.
Subsection (g). During their marriage these parties worked as hard as they could to save money and improve their standard of living. So intent were they on acquiring assets they self imposed a modest, at times parlous life style. Since separation the wife’s standard of living has fallen somewhat, but in the circumstances this is not unreasonable. As to the future, the parties will each maintain modest standards of living. I make no adjustment pursuant to the subsection.
Subsections (h) – (m). The subsections do not arise in relation to this matter.
Subsection (n). Section 75(2)(n) achieves a cross-referencing between s 75(2) and s.79(4). The outcome of the assessment of contributions and other factors has resulted in the parties’ entitlement to 50% of the nett assets. Neither party seeks a split of superannuation. Of the available assets, the husband will receive $36,494 worth of superannuation compared to the wife’s $26,918. Because he takes a greater share of the assets in superannuation the husband says this warrants an adjustment in his favour. This submission ignores that the wife is younger than he is and she may need to wait longer to access her superannuation. In my view these two factors counter balance each other and no adjustment because of superannuation is warranted. There are no other factors arising under the subsection which warrant adjustment.
Subsection (na). As previously mentioned, since January 2006 the wife pays about $15 per week child support. It is his evidence that the wife has applied for a review downwards of the administrative assessment. Having regards to my earlier findings concerning the parties’ incomes it seems likely the wife will never be required to pay sizeable child support. I make no adjustment pursuant to the subsection.
Subsections (o) – (p). These issues do not arise.
Having regard to all of the s.75(2) factors I find that it is appropriate that there should be no adjustment. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomasetti (2000) FLC 93-023. Any lesser adjustment, given the size of the asset pool would be notional.
Section 79(2) is this outcome just and equitable?
Because the court must consider the actual orders not just the percentage distribution under s.79(2), justice and equity in cases like this requires the court stands back and looks carefully at the outcome of the s.79(4) and s.75(2) process. It is at this stage the court considers the actual structure of the orders.
I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction that an equal distribution of the assets is just and equitable. The husband has a well established career which produces him a good income. It is unlikely the wife will ever earn a comparable income. Her financial future is far more circumspect than the husbands and her capacity to maintain employment even three days per week until she reaches retirement age is questionable. In the years that lie ahead, the husband’s financial security, because of his greater income and earning capacity is more assured than the wife’s. Although Ruby resides with the husband and for the next seven years the wife will pay child support, the amount of child support will be modest and does not compensate the husband for the financial impact of Ruby’s care. However while these years will be financially draining, the husband will still have years ahead when he can earn a good income without needing to support Ruby.
Structure of the orders
The nett assets to be distributed are $521,712 including superannuation. Although I am not asked to split the superannuation interests it is apparent that that I should make adjustments from other property in relation to it. The parties’ total superannuation assets are $63,412 of which the husband’s is worth $36,494 and the wife’s $26,918. Fifty percent of the parties’ total superannuation is $31,706, therefore from the husband’s property there must be an adjustment in the wife’s favour of $4,788.
The husband will have the home, savings, shares and other assets he solely owns. By reference to my earlier findings this means he will retain assets worth $457,800. At 50 % of the non superannuation assets the husband is entitled to $229,150. This means that of these assets he must pay the wife $228,650. Including the $4,788 this means the husband will pay the wife $233,438. I agree eight weeks strikes the correct balance between the time the husband needs to give refinance and the wife receiving her entitlement. Given her difficult financial situation any longer would be unjust. Upon payment the wife shall simultaneously transfer to the husband her interest in the former matrimonial home and Telstra shares.
In the event the husband fails to pay the wife, the former matrimonial home will be sold. Although it has an agreed value the net sale proceeds cannot be known. Excluding the home and superannuation the parties’ nett assets are worth $58,300. Fifty percent of this amount is $29,150. Of this smaller pool the husband has assets worth $57,800. Therefore from the sale proceeds the husband must pay the wife an adjusting amount of $28,650 plus $4,788. Pending payment to the wife or settlement of the sale the husband must maintain (by reference to its present condition) and insure the property and pay rates and taxes as and when they fall due. In effect this is the price of his occupation. If there are outstanding rates and insurances these must be paid out of his share of the sale proceeds.
There are minor outstanding issues concerning personalty which were resolved during the hearing and are reflected in these orders.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 31 March 2006
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