Aye & Aye

[2009] FamCA 312

FAMILY COURT OF AUSTRALIA

AYE & AYE [2009] FamCA 312

FAMILY LAW – CHILDREN – where previous orders were made about where children were to live – where son went to live with the father after those orders – parties to return to previous final orders

FAMILY LAW – PROPERTY SETTLEMENT – parties able to agree upon asset pool but for value of vehicle – value of vehicle agreed after expert evidence – where husband seeks employer contributions to superannuation post separation be excluded from the pool – appropriate approach is the global approach as separate assessment in relation to the husband’s superannuation would produce no different end result

Family Law Act 1975 (Cth)

Wilkinson & Wilkinson (2005) FLC 93-222

APPLICANT: Mr Aye

RESPONDENT: Ms Aye

FILE NUMBER: NCF 492 of 2006

DATE DELIVERED: 28 APRIL 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Newcastle and Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 20, 21 NOVEMBER 2008, 8 APRIL 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Applicant father in person

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR FOR THE RESPONDENT: Arnold Lawyers

Orders

1. That paragraph 5 of the Orders made on 21 November 2008 be and the same is hereby discharged.

2. That in full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of settlement of property:-

   (a)Subject to compliance by the mother with paragraph 2(b) of these Orders, within two [2] months of the date hereof the father do and he is hereby directed to transfer to the mother at the mother’s expense in all respects all that his right, title, estate and interest both at law and in equity in the property situated at S in the State of New South Wales (“the [S] property”) to the intent that the mother shall be entitled to be the sole registered proprietor thereof.

   (b)within two [2] months of the date hereof the mother do all acts and things so as to discharge the mortgage to the Greater Building Society registered on the S property.

   (c)in the event of the mother’s failure to comply with paragraph 2(b) of these Orders within a period of three [3] months from the date hereof, then the parties shall do all acts and things to cause the S property to be sold subject to and in accordance with the following:-

   (i)     unless otherwise agreed between the parties, the S property be placed on the market for sale by private treaty;

   (ii)    the S property be listed with a Real Estate Agent as agreed between the parties or in default of agreement, a Real Estate Agent appointed by the President of the Real Estate Institute of New South Wales or his nominee and at a selling price as agreed between the parties or in default of agreement, at a selling price nominated by the President of the Real Estate Institute of New South Wales or his nominee;

   (iii)   the parties do all acts and things and execute all documents so as to accept the reasonable advice of the Real Estate Agent with respect to the listing and marketing of the S property;

   (iv)   the solicitors for the mother have the conduct of the sale of the S property;

   (v)     in the event that the S property is not sold by private treaty within a period of six [6] months from the date of listing, the parties do all acts and things so as to cause the S property to be sold by auction;

   (vi)   the auctioneer be as agreed between the parties or in default of agreement, as appointed by the President of the Real Estate Institute of New South Wales or his nominee;

   (vii)  the reserve price be as agreed between the parties or in default of agreement, as determined by the auctioneer;

   (viii) in the event that the highest bid attracted for the S property is in excess of the reserve price, the parties do all acts and things so as to cause the S property to be sold to the highest bidder;

   (ix)   in the event that the S property is unsold at the first auction, then the parties do all acts and things so as to cause the S property to be re-auctioned until sold;

   (x)    the proceeds of sale of the S property be distributed as follows:-

   A.Firstly, in payment of all and any real estate agents and auctioneers fees and commissions and any other costs associated with the aforesaid sale;

   B.Secondly, to discharge the mortgage to the Greater Building Society registered on the title of the S property;

   C.Thirdly, in payment of any outstanding council rates, water rates and other statutory charges;

   D.Fourthly, in payment of the balance then remaining to the trust account of the mother’s solicitors for and on behalf of the mother.

   (xi)   the mother have the right to occupy the S property pending sale subject to the payment by her of all mortgage instalments required of her by the Greater Building Society, insurance, rates, taxes and other outgoings incurred in relation to the S property.

   (d)if either party shall refuse or neglect to execute any documents necessary to give effect to these Orders within [7] days after the same shall have been tendered to him / her by or on behalf of the other for that purpose then and in such case a Registrar upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.

   (e)the father’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the mother:-

   (i)     the mother’s personal effects, clothing and jewellery;

   (ii)    the mother’s furniture and effects currently in her possession;

   (iii)   the S property or the net proceeds of sale thereof;

   (iv)   the Toyota Camry motor vehicle;

   (v)     the mother’s savings and investments, including the Greater Building Society joint accounts nos. …3 and …4;

   (vi)   the garage sale proceeds;

   (vii)  the mother’s MTAA superannuation benefits;

   (viii) the Greater Building Society joint account in the sum of $865 and the Colonial First State Managed investment fund joint account in the sum of $2,441 to be retained by the mother in trust for the children pursuant to paragraph 3 of these Orders

   (f)the mother’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the father:-

   (i)     the father’s personal effects, clothing and jewellery;

   (ii)    the father’s furniture and effects currently in his possession;

   (iii)   the 1993 Ford Fairlane motor vehicle;

   (iv)   the proceeds of sale of the Holden Astra motor vehicle;

   (v)     the proceeds of sale of the Torana motor vehicle;

   (vi)   the father’s savings and investments;

   (vii)  the father’s ING and Australian Super superannuation benefits.

   (g)the mother do hereafter duly pay and discharge all mortgage instalments required of her by the Greater Building Society, rates and taxes and other outgoings in relation to the S property to the exoneration of the father and do indemnify the father against any liability for any such outgoings.

   (h)the father do hereafter duly pay and discharge the Commonwealth Bank mastercard liability to the exoneration of the mother and do indemnify the mother against any liability for any such outgoing.

3. That the mother do retain funds in the Greater Building Society joint account (in the sum of $865) and the Colonial First State Managed investment fund joint account (in the sum of $2,441) UPON TRUST for each of the children J born … December 1998 and G born … March 2002, such funds to be used at the mother’s discretion to meet costs and necessities associated with the care of the said children.

4. That henceforth each party shall discharge without calling upon the other to contribute thereto their debts and liabilities contracted for or by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.

5. That all applications be removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 492  of 2006

MR AYE

Applicant

And

MS AYE

Respondent

REASONS FOR JUDGMENT

The applications

1. This matter is listed before me for determination of the property settlement issues which the parties themselves have not been able to resolve.  However, very early in the trial of the proceedings it became apparent that there were still unresolved children’s issues as between the parties and that they needed to be determined as well in order that I might turn my mind to appropriate final orders by way of property settlement.  It was not possible for me to make any final determinations as to post separation contributions or Section 75(2) factors until those children’s issues had been resolved.

2. Thus the trial proceeded before me in two parts, the first on 20 and 21 November 2008 in Newcastle (“the first part of the trial proceedings”) and the second by video link between Newcastle and Adelaide on 8 April 2009 (“the second part of the trial proceedings”).

3. The parties have two children, a son J born in December 1998 and a daughter G born in March 2002.  Thus J is 10 years of age and G 7 years of age.  After contested trial proceedings in relation to the children, Mullane J made comprehensive final orders on 3 July 2008.  Pursuant to those orders (inter alia) both children were to live with the mother.

4. However, shortly thereafter, namely on 1 September 2008, J went to live with the father.  There was a dispute between the parties in the first part of the trial proceedings as to whether or not it was agreed that J returned to live with the father on a full time basis or whether it was to be for a short period in order to give the mother some respite from J’s difficult behaviours.  J suffers Attention Deficit Disorder (“ADD”) and Autism Spectrum Disorder (“ASD”).

5. At paragraph 13 of his affidavit filed 30 October 2008 the father says:-

   “ …I am currently seeking to change the orders to reflect the new arrangement.”

   Until the parties had agreed on final parenting arrangements for J, or until I had made that determination, it was not possible for me to conclude my findings on either contributions or Section 75(2) factors.

6. At the conclusion of the first part of the trial proceedings on 21 November 2008, after some intimations and suggestions made by me, the parties agreed upon a raft of interim orders in relation to J and they were as follows:-

   “5.The Orders made on 3 July 2008 be varied as follows:-

   (a)Paragraphs 2, 3, 3.1, 3.7 and 3.13 be suspended insofar as they relate to the child [J].

   (b)[J] shall live with the father other than as provided in these Orders.

   (c)During the carrying out of the [Y] programme commencing on 2 December 2008, [J] shall live with the mother in each week from after school on Tuesday until the commencement of school on Friday and in non-school time, from 4.00 pm on Tuesday until 9.00 am on Friday.

   (d)At the conclusion of the [Y] programme, [J] shall live with the mother in each period of twenty-eight [28] days as follows:-

   (i)In week 1, from after school on Monday until the commencement of school on Friday;

   (ii)In week 2, from after school on Tuesday until before school on Friday;

   (iii)In week 3, from after school on Friday until before school on the following Tuesday;

   (iv)In week 4, from after school on Friday until before school on the following Monday.

   (v)In the event that a day designated as a day for the commencement or conclusion of [J’s] time with the mother is a non-school day, then the time for commencement shall be 9.00 am and the time for completion shall be 9.00 am.

   UPON NOTING that for the purpose of defining week 1, such period shall be the week of the father’s work roster when he begins four [4] day shifts commencing at 6.30 am on the Monday.

   (e)The time [J] lives with the mother shall be implemented by the mother collecting [J] from the father or his nominee at McDonalds Family Restaurant at [G] at the commencement of the time and by the mother returning [J] to the father or his nominee at the same location in the event that [J] is unable to travel to the mother’s residence from school and/or return to school from the mother’s residence.”

Background

1. The father is almost 39 years of age having been born in May 1970.  The mother is almost 37 years of age.  Her birth date is in June 1972.

2. The parties commenced cohabitation in 1992 and were married in September 1997.  After a period of cohabitation of some 13 years, they separated in February 2005. 

3. At the commencement of cohabitation the parties owned modest assets.  The parties received an amount of $10,000 from the father’s parents which was utilised in the purchase of the former matrimonial home property at S in mid 1999.  They paid an amount of $164,500, borrowing the balance on mortgage.

4. One of the assets introduced into the relationship by the father was a Torana motor vehicle purchased by him in 1996.  The Torana loomed large in the proceedings before me.  It was the subject of significant dispute in terms of the amount of time the father spent working on it, the amount of money he spent on it and its value when he sold it after separation.

5. In 1998 the mother became pregnant with the parties’ first child and ceased employment in mid-1998 in anticipation of J’s birth.  J was born in December 1998.

6. The parties’ second child G was born in March 2002.

7. After the parties’ separation in February 2005, they were divorced in November 2006.

8. In late 2006 or early 2007 J was diagnosed with ADD and ASD, although he had demonstrated some developmental delays from about 2001.

9. Also in 2007 G was diagnosed with some eye problems and now wears prescription spectacles.

10. On 31 October 2007 the father allegedly sold the Torana motor vehicle to a Mr P for $22,500.  A single expert valuer, Mr R, was appointed and it was his evidence that as at the date of sale, the Torana had a value of $48,000.

11. On 3 July 2008, final orders on parenting issues were made by Mullane J after a contested hearing. However from 1 September 2008 J began living with the father.

The evidence

1. For the first part of the trial proceedings, each of the parties filed Rule 15 Affidavits of evidence in chief and Financial Statements and relied upon them.  Each also gave oral evidence. 

2. Apart from Mr R, who gave evidence in relation to his valuation of the Torana motor vehicle, evidence was also called by the mother from Ms B, a Social Worker with the Benevolent Society.  She was called in response to my intimation that it would not be possible for me to finally determine issues of property settlement until it was known what final arrangements had been made for J’s care and with whom he was to live and what time, if any, he was to spend with the other parent.

3. The purchaser of the Torana motor vehicle, Mr P, was not required by the mother for cross-examination.  The father filed an Affidavit of Mr P on 19 September 2008.

4. For the second part of the trial proceedings the father filed another Rule 15 Affidavit on 3 April 2009 and the mother an Affidavit by Ms N on 7 April 2009.

Children’s issues

1. Consequent in part upon the information contained in Ms N’s Affidavit of 7 April 2009, by the commencement of the second part of the trial proceedings, the parties had agreed on a final basis all issues impacting upon the care of their children.  They agreed that the final orders made by Mullane J on 3 July 2008 should be reinstated in full.  Thus they continue to operate with J returning to his mother’s principal care.  The father has calculated that the consequence is that J spends between 110 and 115 nights per annum with him.  The mother did not dispute that calculation.

Assets, financial resources and liabilities

1. By the commencement of the second part of the trial proceedings, the parties were able to agree upon the assets, financial resources and liabilities relevant to my determination and upon the value of them, as follows:-

   Assets

   a)Jointly owned property at 82 S   $315,000.00

   b)1997 Toyota Camry retained by the mother  $2,500.00

   c)Household items in the mother’s possession  $3,000.00

   d)Greater Building Society joint accounts no. …3  and …4                $113.00

   e)Greater Building Society account in father’s name only  NIL

   f)1993 Ford Fairlane in the father’s name only  NIL

   g)Holden Astra retained by father at separation and

   subsequently written off but for which a payment was

   received by the father of  $2,000.00

   h)Household items in the father’s possession  $500.00

   i)Garage sale proceeds retained by the mother  $10.00

   Sub-total  $323,123.00

   Financial resources

   j)MTAA superannuation in the mother’s

   name  $13,243.00

   k)ING superannuation in the father’s name          $15,123.00

   l)Australian Super superannuation in the

   father’s name  $61,458.00       $89,824.00

   Sub-total  $412,947.00

   Less liabilities

   m)Mortgage over S property  E$114,500.00

   n)Commonwealth Bank mastercard in

   father’s name   $4,000.00     $118,500.00

   Net sub-total  $294,447.00

2. The parties further agreed that there was a Greater Building Society joint account in the sum of $865 and a Colonial First State Managed investment fund joint account in the sum of $2,441.  However, the parties agreed that those moneys were to be retained by the mother for the benefit of the children.  They did not ask that I factor those amounts into the property settlement dispute between them.

3. The parties further agreed that as at the date of separation there was the Torana motor vehicle which had been introduced into the relationship by the father.  On 31 October 2007 the father purported to sell that vehicle to Mr P for $22,500.  In his affidavit filed on 19 September 2008, Mr P set out a number of reasons as to why it was that he was of the view that $22,500 was a fair and reasonable price paid by him for the Torana.

4. On 23 September 2008 a Mr R completed a valuation of the Torana.  That valuation is annexed to an affidavit of the father filed on 7 October 2008.  However, as a consequence of the matters raised by Mr P and by the father, Mr R undertook an updated valuation of the motor vehicle and on 13 November 2008 concluded a valuation expressing the opinion that as at the date of its sale in October 2007, the vehicle would have had a value of $48,000.  That valuation is annexed to Mr R’s affidavit filed on 17 November 2008.

5. Initially, the father disputed that valuation and asked that Mr R give evidence.  This he did by telephone link.

6. Under questioning from the father, who made reference to a number of other documents, including motor vehicle magazines and the comprehensive insurance invoice for the motor vehicle, Mr R would not be shaken in his opinion as to the Torana’s value at $48,000 as at October 2007.  In fact the father acknowledged that the comprehensive insurance value attached to the Torana motor vehicle had been increased by Mr P to $40,000 in December 2007, thereby effectively acknowledging that it was worth at least that much.

7. At the conclusion of the first part of the trial proceedings, I expressed the view that I was satisfied on the evidence of Mr R that the true and correct value of the Torana motor vehicle as at the date of its sale by the father to Mr P, was $48,000.  I indicated that I was further satisfied that it was appropriate to use that figure in calculating the asset pool for distribution between the parties.

1. By the commencement of the second part of the trial proceedings, the father indicated his agreement to the value of the Torana at the time of sale being fixed at $48,000.

Total net pool

1. Thus the total net assets and financial resources of the parties amount to a figure of $342,447.00.

Contributions

1. At the commencement of their cohabitation in early 1992, the assets of the parties were modest.  I am satisfied that the totality of the assets introduced by the mother was in the order of $7,000 and those by the father, including the Torana motor vehicle, in the order of approximately $11,000. Neither introduced any liabilities into the relationship.

2. In 1998 the father’s mother and step-father contributed an amount of $10,000 which was used towards the purchase of the former matrimonial home property.  In December 1999, the mother contributed an additional amount of $6,200 which she received by way of long service leave payment upon resignation from her employment.  I am satisfied too that the father contributed long service leave upon his retirement in 2004 from L Company.  However, he was unable to recall the amount.

3. The father worked diligently in paid employment throughout the parties’ cohabitation.  The mother worked in paid employment until just prior to J’s birth in December 1998.

4. I am satisfied that the mother made the greater contribution in the home maker and parent role.  Her contributions in that regard were made greater as a consequence of J’s disabilities which the mother first identified in terms of delayed language skills and a lack of social interaction in 2001.  I am satisfied though that the father did what he could from time to time to assist in the home maker and parenting roles but that it was necessarily more limited than the contribution made by the mother as a consequence of his full time employment.  I further note that his contribution as a parent was greater between September 2008 and April 2009 when J primarily lived with him.  The father also attended to the maintenance of the gardens and the outside of the property during cohabitation.

5. I am further satisfied that subsequent to the separation of the parties the mother paid a greater proportion of the mortgage payments on the former matrimonial home property than did the father.  She also contributed to the maintenance of the property.  The father acknowledged that the mother had paid some $28,000 in mortgage payments since separation, together with a further sum of $6,700 on maintenance and other costs.  I accept that the father paid an amount of some $8,500 in mortgage payments since separation.  I further accept that since early December 2008 the mother has halved the mortgage payments she was making.  Having left occupation of the former matrimonial home to the mother and the children on separation, the father had to pay rent on premises occupied by him.

6. Also demanding recognition are the contributions made to the father’s Australian Super superannuation fund by the father’s employer since separation, agreed by the parties as being in the order of $29,000.  (Annexure “E” to the father’s Affidavit of 3 April 2009).

7. The father urged me to deduct that amount from the total of the asset pool before undertaking any division, thereby effectively urging upon me a limited asset by asset approach rather than a global one.

8. However, in my view the global approach is the appropriate one here.  The asset pool is modest and a proper exercise of discretion is difficult when endeavouring to apply a somewhat strict mathematical approach to one discreet part of the pool but a general approach to the rest.  Also, neither party has sought a splitting order in relation to the superannuation resources but agreed to leave them for treatment within the general pool.

9. I make that determination mindful of the decision of the Full Court in Wilkinson & Wilkinson (2005) FLC 93-222 (Bryant CJ, Finn, Coleman, Warnick & O’Ryan JJ). In that matter the parties had been separated for some 6 years before the date of the hearing and post separation contributions to superannuation had been made by the husband which had increased the value of the superannuation by some 30%. The Full Court stated (at 79,674):-

   “25.  In our opinion, the increase in value of the husband’s superannuation between separation and trial and the reasons for that increase were important matters in the circumstances of this case where the assets are relatively few and the husband had continued his employment in the post separation period.  It could be assumed in the absence of any other evidence that the reason for the increase in the value of the husband’s superannuation was his continuing employment.  Her Honour’s failure to refer to these matters (other than in her findings concerning the pool of property) would support the conclusion that she failed to give these matters adequate, or indeed any, weight.  We consider that this was a significant error which requires our intervention.

   26.  It should be observed that this error illustrates that it may well be useful for an asset by asset approach to be employed in cases where the parties have significant superannuation interests, particularly where there has been a relatively long period of time between separation and trial, or in a case where a significant portion of a party’s superannuation interest or of other assets has been acquired prior to the parties’ cohabitation.  In such circumstances, the asset by asset approach is likely to facilitate the evaluation of the parties’ direct and indirect contributions to the acquisition, conservation and improvement of their assets (including their superannuation interests).”

   In any event, I am satisfied that adopting a separate assessment in relation to the husband’s superannuation would produce no different end result, as I explore later in my reasons.

Conclusion on contributions

1. I am satisfied that an appropriate recognition of the respective contributions of the parties would be reflected by a 52.5 / 47.5 division of the net pool in favour of the mother.

Section 75(2) factors

1. I now turn, as I am obliged to do by Section 79(4)(e), to the factors enumerated in Section 75(2).

(a)the age and state of health of each of the parties;

1. The father is some 39 years of age and the mother will shortly turn 37 years of age.  Both enjoy good health.

(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;

1. The father is engaged in full time employment.  The mother is not.  The father’s 2008 taxable income was over $87,000.  Thus his income is significantly greater than that of the mother and will continue to be the case into the foreseeable future.  The father has superannuation benefits and entitlements of some $15,000 with ING and another $61,500 with Australian Super, a total of $76,500.  By comparison the mother enjoys moderate superannuation benefits of some $13,000 with MTAA.  The mother presently earns a very modest income from her own exertion in the order of some $40 per week as a personal carer.  She has indicated that she will seek additional work to fit in with the children’s educational and other needs but I accept that her income will always be modest by comparison to the father’s.

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

1. The mother has had the full time care of G since separation.  J lived with his mother from separation in early 2005 until 1 September 2008.  He then lived for extended periods with his father for some 7 – 8 months before returning to his mother’s primary care.  The parties agree that the children spend some 110 – 115 nights per annum with the father.  The mother’s role as primary carer is made more difficult as a consequence of J’s disabilities.

(d)commitments of each of the parties that are necessary to enable the party to support:-

(i)himself or herself; or

(ii)a child or another person that the party has a duty to maintain;

and

(e)the responsibilities of either party to support any other person

1. Apart from their respective commitment towards their children, neither party is obligated or committed to provide support or assistance to any other person.

(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:-

(i)any law of the Commonwealth, of a State or Territory or of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia

and the rate of any such pension, allowance or benefit being paid to either party;

1. As indicated earlier, each of the parties enjoys an entitlement to superannuation benefits but not for many years yet as both are relatively young and it will be some time before they are in a position to secure their benefits.  The father’s superannuation entitlements are significantly greater than those of the mother and will become increasingly so over the balance of their respective working lives.

(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;

and

(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 by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

and

(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

and

(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

1. No matters of relevance emerge for my consideration pursuant to these sub-sections.

(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

1. The mother’s commitment to the children since just prior to J’s birth, has diminished her capacity to earn income.  The father will always enjoy a superior earning capacity to that of the mother.

(l)the need to protect a party who wishes to continue that party’s role as a parent;

and

(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;

and

(n)the terms of any order made or proposed to be made under section 79 in relation to:-

(i)the property of the parties; or

(ii)vested bankruptcy property in relation to a bankrupt party;

1. No additional matters of relevance emerge for my consideration pursuant to these sub-sections.

(na)any child support under the Child Support (Assessment) Act 1989 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;

1. The father now pays to the mother recently reassessed child support payments of $189 per week.  The father has asked that account be taken of an overpayment by him alleged to total $1,217.

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

and

(p)the terms of any financial agreement that is binding on the parties.

1. Neither of these sub-sections is relevant to my determination.

Conclusion

1. A further adjustment between the parties is required to take account of the aforementioned Section 75(2) factors.  That adjustment, I am satisfied, ought to be a further 12.5% in favour of the mother resulting in a 65 / 35 distribution in favour of the mother.  

2. That adjustment arises principally as a consequence of the significant differential in income and income earning capacity of the parties, the father’s greater superannuation benefits and the mother’s greater role and responsibility in caring for the children, one of whom (J) suffers ADD and ASD.

Just and equitable

1. It remains for me to consider whether or not the Orders I propose in relation to the property settlement issue between the parties are just and equitable (Section 79(2) of the Act).

2. As indicated in paragraph 31 hereof, the total net pool for distribution between the parties is represented by a figure of $342,447.00.  If the mother retained the net equity in the former matrimonial home property, the distribution of assets, financial resources and liabilities to her would be as follows:-

   (a)Former matrimonial home property at S   $315,000.00

   (b)Toyota Camry  $2,500.00

   (c)Household contents  $3,000.00

   (d)Greater Building Society joint accounts nos. …3 and …4               $113.00

   (e)Garage sale proceeds  $10.00

   (f)MTAA superannuation benefits  $13,243.00

   Gross total$333,866.00

   LESS

   (g)Mortgage liability on the former matrimonial home                 $114,500.00

   Net benefit to the mother  $219,366.00

3. That figure represents 64% of the total net asset and financial resources pool.

4. The father would retain:-

   (a)The Holden Astra proceeds  $2,000.00

   (b)Household contents  $500.00

   (c)ING superannuation benefits  $15,123.00

   (d)Australian Super superannuation benefits  $61,458.00

   (e)Torana value agreed at  $48,000.00

   Gross total$127,081.00

   LESS

   (f)Mastercard liability  $4,000.00

   Net benefit to the father  $123,081.00

5. That figure represents 36% of the total net asset and financial resources pool being retained by the father.

6. At the conclusion of my assessment of the respective contributions of the parties and the relevant Section 75(2) factors, I formed the view that a settlement of 65 / 35 in favour of the mother would be appropriate.  Given the above calculations as to the net outcomes to be achieved by the parties by a distribution of the assets, financial resources and liabilities as indicated, represents a 64 / 36 per cent settlement in favour of the mother, in my view it is appropriate to make a minor adjustment in favour of the father of 1%.  That has the effect too of essentially returning to the father his overpayment of child support of some $1,217.00.

7. Thus a final settlement of 64 / 36 in favour of the mother in my view represents a just and equitable outcome between the parties.  

8. As I indicated earlier, if I did as urged by the father and applied a separate treatment to the father’s superannuation benefits with Australian Super, the end result would be effectively the same.

9. Deducting the contributions made by the father’s employer since separation of $29,000, the net pool to which the global approach would be adopted would be represented by a figure of $313,447.  However, by removing from the assessment of the father’s contributions a figure as significant as $29,000, an appropriate reflection of the respective contributions would be achieved by reducing the percentage contribution made by the father by a figure of 5%.  That would produce a 57.5 / 42.5 distribution in favour of the mother and after factoring in the previously calculated adjustment necessary after consideration of Section 75(2) factors, the mother’s entitlement to the reduced pool of $313,447 would be to 70% and the father 30% which is represented respectively by figures of $219,413 and $94,034.

10. That amount to which the mother is thereby entitled is almost exactly the same as that calculated as being her entitlement in paragraph 57 above.

11. To the father’s figure of $94,034 would need be added the figure of $29,000 for the superannuation contributions made since separation, being a total of $123,034 which is essentially the figure to which I calculate he is entitled pursuant to the alternative approach and detailed in paragraph 59 above.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: