AYLING & JAGO
[2016] FCCA 3124
•19 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYLING & JAGO | [2016] FCCA 3124 |
| Catchwords: Legislation: |
| Stanford v Stanford (2012) 247 CLR 108 |
| Applicant: | MR AYLING |
| Respondent: | MS JAGO |
| File Number: | MLC 10015 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 2 November 2016 |
| Date of Last Submission: | 2 November 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 19 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr Radebe |
| Solicitors for the Respondent: | Radebe & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Lethlean |
| Solicitors for the Independent Children’s Lawyer: | Danielle Webb Lawyer |
ORDERS
That the net proceeds of the former matrimonial home held on trust by the mother’s solicitors be applied to pay:
(a)(omitted) Card, $12,000;
(b)(omitted) MasterCard, $20,000;
(c)(omitted) Visa, $15,000;
(d)(omitted) Bank, $19,114; and
(e)(omitted) Bank, $27,167
(f)Of the sums then remaining:
(i)75% to the mother; and
(ii)25% to the father.
The base amount of $35,391 is allocated, as required by s.90MT(1)(a) of the Family Law Act 1975, to the Respondent out of the interest held by the Applicant in the (omitted) Super.
Whenever the Trustee of the (omitted) Super makes a splittable payment to the Applicant, the Trustee shall pay the Respondent the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement the Applicant would have had but for these orders.
Order 2 and 3 has effect from the operative time.
The operative time being the fourth business day after the date of service of these Orders on the Trustee.
Orders 2 to 5 inclusive bind the Trustee of (omitted) Superannuation.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders, each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Ayling & Jago is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10015 of 2013
| MR AYLING |
Applicant
And
| MS JAGO |
Respondent
REASONS FOR JUDGMENT
Introductory
This is the property component in this dispute between the parties that remains now that parenting issues have been resolved with the help of a now discharged Independent Children’s Lawyer. Their child, X, was born on (omitted) 2004. The materials filed in relation to property issues are by no means complete and the Court will have to do the best it can with the limited materials available.
The applicant father (as it will be convenient to refer to him) seeks that all outstanding credit card debts (globally approximately $93,000) be paid out of the net proceeds of the sale of the former matrimonial home. He also seeks that there be an adjustment in his favour to reflect an alleged sale of the matrimonial home by the respondent mother at an undervalue, and that the ultimate net proceeds of the matrimonial home be divided 60 per cent in his favour to 40 per cent for the mother. The respondent mother seeks that only two credit cards ((omitted) and (omitted) MasterCard in total approximately $32,000) be paid out of the matrimonial home. She denies that there has been any sale at undervalue. She seeks that the result net proceeds be divided 80 per cent to 20 per cent in her favour and that there be a superannuation equalisation between the parties. The father had little, if anything, to say about this last application.
For the reasons that follow, I am going to order that all the credit card debts be paid out of the net proceeds of the matrimonial home and that the mother receive 75 per cent of the resultant net figure. I will also order superannuation equalisation between the parties. I find that there has not been a sale of the property at an undervalue.
The preliminary issue - Stanford v Stanford - Should there be a property adjustment?
As the High Court has made clear in the case of Stanford v Stanford [2012] HCA 52 (“Stanford”) the Court’s first task is to identify the legal and equitable interests of the parties and determine whether it is appropriate that there be an adjustment of property between them. In this case, as in so many (as foreshadowed in Stanford) the basis upon which the parties conducted their finances during their relationship has radically altered. Furthermore, the relationship was one of some length and both parties seek that there be an adjustment. It is plainly appropriate that there be one.
Before turning to the pool, it is appropriate to note that there are a considerable number of matters in this case that are not, in fact, the subject of dispute.
Agreed or uncontroversial matters
The father was born on (omitted) 1964 and the mother on (omitted) 1968. They met in 1997 and, according to the mother, commenced cohabitation at her then wholly unencumbered home in Property H in (omitted) 1998. The father owned a (omitted) vehicle motorcar and both had a number of chattels.
The parties lived predominantly at the Property H property until 2001 when it was sold. There is a dispute as to how much the net proceeds of sale were and as to exactly how they were applied.
X was born, as already indicated, on (omitted) 2004. He is on the autism spectrum. The mother took at least two years or thereabouts off work but has worked part-time most of the time thereafter. The father was employed for many years as a (occupation omitted) and this continued until 2010 when his employment ceased. There is a dispute as to whether he was made redundant or resigned, upon which very little now turns. He was paid some $18,000 at or about the time of the cessation of his employment. The father also received an inheritance from his father of some $18,000 relatively early, as I understand it, (the dates are by no means clear) in the relationship.
Following the sale of the Property H property, the parties bought the former matrimonial home in Property W. That property was retained until the mother sold it in October 2015 for $605,000.
Separation took place on 13 September 2013 when there was an incident, strongly disputed between the parties, involving on the mother’s case an allegation of family violence and a complete denial on the part of the father. Since then the father asserts (and he was not challenged in cross-examination) that he has paid approximately $30,000 towards the parties’ credit cards in total. The father also seeks that the mother pay rent in the sum of $1500 per month for the period from September 2013 until September 2015 during which time she occupied the matrimonial home to his exclusion.
The father has been in receipt of Centrelink benefits since separation and lives with his own mother at her home. He has not suggested that he pays rent or anything of the kind. He does not pay child support. He has not been able to obtain further employment although his capacity to do so is, to an extent, an issue.
The parties’ affidavit material
Given that the parties were not cross-examined in any kind of extensive way about property issues, it is appropriate to traverse the parties’ affidavits to the extent that they are not covered by the agreed matters just set out immediately above.
The affidavit of the father filed 6 December 2013
The father deposed as to the cohabitation at Property H between 1997 and 2000. He said he assisted with maintenance and improvement of the property during that time. He asserted that he concreted the whole driveway in front of the house, installed a gas hot water heater, had the carpets cleaned, paid the rates and the lawn mowing expenses as well as vacuuming and cleaning the house.
The father deposed to the mother’s work in child care and his work as a solicitor until 2010. He deposed to paying almost all of the expenses of the household until 2010. He asserted the parties lived well, using credit cards to pay for day-to-day shopping. He deposed that he paid the regular mortgage payments. He deposed that following his unemployment in 2010, the mother still put all the day-to-day purchases and credit expenses on his credit cards, thus escalating the said debts considerably.
The father deposed that his superannuation entitlements were about $104,000 but a part of this was earned during the seven years prior to the relationship. Given that the superannuation guarantee legislation came in in 1992, his memory has slightly exaggerated the length of time involved. The father deposed he had five credit cards with (omitted) MasterCard, (omitted) MasterCard, (omitted) Visa and (omitted) MasterCard. He deposed that these cards were used by both him and the mother during the relationship. He deposed that the combined debt on those cards was approximately $90,000 and sought that those debts incurred up to the date of separation be paid out of the proceeds of the matrimonial home. He also deposed to a loan from his mother but this matter was not taken further in the case itself. The father has and continues to pay for private health insurance for both the mother and X as well as himself.
The affidavit of the mother, filed 20 January 2014
The mother deposed that the Property H property was sold for $155,000 and $70,000 was used to purchase the former matrimonial home in Property W. The proceeds of sale were also used to buy a Holden (omitted) in the sum of $28,832. I should note that it is apparent from exhibit R2 that the assertion about the application of the net proceeds of the Property H property towards the purchase of the Holden (omitted) is undoubtedly correct.
The mother agreed that the proceeds of the sale of the Property H property were put in the father’s account to increase his credit rating and enable him to purchase the Property W property on behalf of the parties. The mother said that she only had access to two of the credit cards. She deposed that the escalation of credit card debt started in 2008, this being earlier than the father’s assertion. The mother put in issue the value of the matrimonial home, saying it required work to be worth as much, even, as $520,000. She agreed to the value of the then mortgage (something no longer relevant). The mother said that she should only be responsible for the debts of the (omitted) MasterCard and the (omitted) card as these were the only accounts to which she had access. She also deposed that the father’s heavy use of alcohol had inflated the credit card debts generally. She further agreed that her salary for the current year was likely to be between $25,000 and $30,000. She also referred to a loan from her sister Ms D in the sum of $9,300.
The mother’s affidavit filed 8 December 2014 and the father’s affidavit filed 28 July 2015
These affidavits were concerned with the sale of the property. That of the mother adds nothing material. The father’s affidavit deposed that he had been informed by the mother that she had sold the matrimonial home for $590,000. He deposed to obtaining a valuation from Mr P real estate agents which valued the property between $680,000 and $750,000. It should be noted that the report from (omitted) real estate, which is an annexure to the father’s affidavit, does indeed posit that sale, but notes:
In our opinion, provided there are no unusual features and the property is in a well maintained condition, the property should realise a range of $680,000 to $750,000 if offered the sale on reasonable terms and conditions.
The trial affidavit of the mother filed 16 May 2016
The mother deposed that she had sold the family home for $605,000, with settlement occurring on 9 October 2015. $28,899 was paid to the father’s former lawyers, Hicks Oakley Williams. $6000 (these figures are all rounded off) was paid to Ms D, relating to repairs and maintenance of the property in preparation for sale. The amount deposited in the trust account of Radebe & Associates on 30 April 2016 was $373,280. The mother is presently living in rental accommodation paying $350 per week, earning approximately $400 per fortnight. She reiterated that she sought a 75/25 split in her favour, giving credit in this balance for the $18,000 inheritance the father received and the $18,000 he received as a redundancy payment.
The trial affidavit of the father filed 24 August 2016
The father said that at the time the relationship started, he had savings, super and a (omitted) vehicle valued at $50,000. (Exhibit R1 shows that the vehicle was bought in 1994 for $30,000). The affidavit deposed that he obtained the home loan through the (omitted) at a discount because he was a (occupation omitted) and deposed to earning $80,000 gross per year. He multiplied this by the fifteen and a half years of the relationship to produce a contribution of the $1.24 million.
The father went on to deal with credit cards. Both he and the mother used the (omitted) and (omitted) MasterCard. He went on to depose that the (omitted) MasterCard, (omitted) Visa card and (omitted) Visa card were used, as it were, to further defray the previous two cards. He went on to depose that the following sums are still owing on the credit cards:
·(omitted), $12,000
·(omitted) MasterCard, $20,000
·(omitted) Visa, $15,000
·(omitted), $19,114
·(omitted), $27,167
This is in addition to the alleged $37,000 paid off “the (omitted) account” (the mortgage) in 2012 by the father’s mother.
The father went on to assert the sale of the matrimonial home for an undervalue and the demand for rent for $1500 per month, to which I have already referred. Finally, the affidavit deposed that, at 52 years of age, the father has been completely unable to obtain work and had applied for literally hundreds of jobs without success.
It should be further noted that the paternal grandmother, Ms E, filed an affidavit on 24 August 2016. Although this traverses the party’s financial circumstances at the commencement of the relationship and otherwise deals with parenting issues, there is no mention of any alleged loan or other advance to the parties.
The mother’s additional trial affidavit does not touch on the property issues.
It should be noted that I have passed, comprehensively, over the parties’ Financial Statements as they add nothing to the evidence in these circumstances.
The evidence given at Court
In his opening, the father, who was self-represented, confirmed that he wanted a 60/40 property split in his favour. He sought that the credit card debts be paid equally. He referred to his work as a (occupation omitted) and his salary of $80,000 a year. He said that he had substantial savings at the commencement of the relationship and had purchased the matrimonial home. He said he had paid the deposits and paid the mortgage.
The father under cross-examination
Most of the cross-examination was concerned with parenting issues. It is appropriate to record nonetheless that the father’s answers were frequently unresponsive, prevaricating and uncooperative. His description of the somewhat tortuous proceedings involving the Intervention Order taken against him by the mother, which proceeded to the County Court on appeal, was manifestly inadequate. He failed to mention that the matter was ultimately resolved by him entering into an undertaking, allegedly, as he put it, because he thought it was irrelevant.
The father was cross-examined as to whether he resigned or was made redundant. He undertook to produce documents that he said were in his possession from his employers that, as he put it, supported his resignation, rather than being made redundant. Notwithstanding being given overnight to do so, he did not produce these documents. If what he was asserting was correct, his employer, a (employer omitted) colluded with him to defraud the Tax Office by treating the resignation as a redundancy when it was not, in truth, such.
The father conceded that the mother owned her home unencumbered at the start of the relationship. He said he had paid the deposit on the matrimonial home with $18,000 of inheritance from his father. He also said he owned a $50,000 (omitted) vehicle and had furniture. He said he had about $10,000 in another account, having spent $18,000 towards the (omitted) vehicle (the evidence about this was none too clearly expressed, in any event). He still possesses the (omitted) vehicle. When it was put to him that the deposit for the matrimonial home in Property W came from the sale of the proceeds of the Property H property, the father said this was incorrect because he had paid it. He said his name was on the title as he arranged the mortgage. Although he denied that the moneys from the sale of Property H had been put into his account to improve his credit rating, it became quite clear that this was what actually happened. The father asserted that the mother had other debts to discharge. I would interpolate and say that given that the net proceeds of the Property H property were about $180,000, and even after the $28,000 is taken out for the Holden (omitted), the fact that only $70,000 was deposited into the matrimonial home suggests that the father’s recollection, in this regard, is correct. The father’s endeavours to cast doubt upon the accuracy of the documents that constitute exhibit R2, in particular those showing the Property H settlement being placed into his account, were, in my view, bordering on the preposterous.
The father confirmed that while he was earning $80,000 by the time his employment ceased in 2010, it was probably around about $46,000 at the beginning. He described himself as semi-retired and unemployed. He said it was difficult to get a job at his age, and he gets to spend a lot of time with X. He has been in receipt of Centrelink since 2013. He would love to work.
The father asserted that alcohol was mainly bought by the mother, and noted that some of the items in exhibit R4 (an (omitted) statement for 2002) could, in fact, be meals. He insisted on payment of rent for 2013 to 2015. He said that he had paid for everything. He then had to concede that the mother had paid half the mortgage throughout the relevant period, although he had paid the credit cards. She was paying $700 per month. He was not paying anything to the mortgage, but rather to the credit cards.
In re-examination (I have passed over counsel for the Independent Children’s Lawyer’s cross-examination as it is not relevant for these purposes), the father said he had applied for hundreds of jobs in many different occupations. He was retraining. It is worth nothing that he said he got along well with the mother. He said he was only telling the truth. Nonetheless, when pressed, he maintained that the mother had accessed the domestic violence regime through perjury. He did not seem to think that these allegations, adhered to even in the witness box, might upset the mother and impact upon the relationship between them.
The paternal grandmother, Ms E, was called, as I have noted, as a witness. She was not asked any questions in-chief about any loans to the parties. In cross-examination, she said in passing that parties had financial problems and she had lent them a fair amount of money, but did not otherwise expand upon the matter.
The evidence of the mother
The mother is employed as a (occupation omitted) and adopted her affidavits as true and correct.
The mother under cross-examination confirmed that she was employed, when the parties met, on a part-time basis. She denied that the father paid most of the bills and said costs were shared. He had given her the (omitted) card and the gold (omitted) card from (omitted) in 2002, and she had used them. She said these were paid from their wages. They were paid off every month initially. She said that after separation, she cut the cards up and sent them back. She conceded that the father bought a lounge suite at Property H, which the mother still possessed. She said that he had obtained another lounge suite. She otherwise denied the father’s assertion that he bought all the furniture. I would interpolate and say that this makes sense. The mother was living in her own unencumbered home at the time the parties met, and it stands to reason that she must have had her own chattels.
Both parties had cars when they met, but the mother’s was broken down. It was sold for $500. The (omitted) vehicle was worth $30,000. She denied that the father bought a television or hi-fi to the relationship, but said these were bought after they were sharing. She conceded that the father repaired the hot water system at Property H. She said the father had three individual cards she knew nothing of and that they were his responsibility. She had not found out about the (omitted) Visa card until June 2013.
The mother was cross-examined about the sale of the matrimonial home. She was aware of the prices in the area, and she asserted the price was reasonable for the area. She said the father’s valuation was kerbside valuation only. She did not have the funds to repair the property, and the valuer had not seen the rundown nature of it. It was rundown before separation. She had no idea of what the credit card debts were and denied overspending. She said none of her expenses were on alcohol and that she had not had a drink since she was 29 years old. She comprehensively denied drinking wine at all. Indeed, paragraph 16 of the father’s affidavit filed 18 November 2013 says “Ms Jago does not drink herself”. She said she was, however, the one doing the shopping. When it was put to her that the (omitted) and (omitted) cards were used to clear the (omitted) and (omitted) cards, the mother replied that this was not evident. She denied discussing it with the father. She said, when it was put to her, that the father told her to cut her expenses down because he was unemployed. She replied that they were supposed to be cutting down on spending. She referred to a lot of cash advances in the father’s accounts and said she did not know where they went. She did not recall the (omitted) card being blocked. These particular answers struck me as unconvincing.
The Credit of the Parties
I have already made some comments about the evidence of the two primary witnesses. As I have indicated the father, who struck me as a person somewhat lacking in insight, was by no means entirely satisfactory. Likewise, on occasion, the mother’s evidence also seemed unconvincing. What was really readily apparent were perhaps two things. First, the father’s insistence upon adjustments now for trivial pieces of work performed between 1997 and 2000, reflects an absorption with minutiae that I accept would characterise his thinking more generally. Second, these two parties are still vividly emotionally intertwined. The cross-examination of the mother by the father was at times problematic because of the ready capacity to bicker with one another became all too apparent. Both showed an easy facility with diminishing the contribution of the other and exaggerating their own.
The Pool
As things presently stand the pool is constituted by:
Assets
·The net proceeds of the sale of the matrimonial home.
Liabilities (rounded off)
·(omitted) card $12,000.
·$20,000 (omitted) MasterCard
·$15,000 (omitted) Visa.
·$19,100 (omitted) Bank
·$7,150 (omitted) Bank
Superannuation (as per Financial Statement filed 20 January 2014)
·$104,000 for the father
·$33,218 for the mother
I have not included any values for the parties’ cars. Whatever the (omitted) vehicle was worth when it was bought in 1994, it is now 22 years old. The Holden (omitted) cost $28,000 new in 2002 and is now 14 years old. Any vehicle the mother possesses additional to these vehicles is a post-separation purchase. These vehicles realistically will have minimal if any value and they are not the subject of expert evidence in any event.
Likewise I am not prepared to include the alleged loan of $37,000 to the paternal grandmother (the affidavit material earlier described this as $27,000 in any event) (see affidavit filed 6 December 2013 at paragraph 7). While it is clear that the paternal grandmother advanced funds from time to time, there is no loan documentation. There has never been any suggestion in terms as to what the loan actually involved in terms of payment or interest. There is simply no evidence to suggest that there is any kind of enforceable liability upon the parties to the father’s mother.
I have decided to include all the credit card debts. As I find, the father’s account of these matters was truthful. I heard him give this evidence and I accept it. It should be noted that he has been unemployed since 2010. While the parties may have been living to an extent beyond their means as the mother suggests from 2008 onwards, it is more probable than otherwise that the vast bulk of the credit card debt accrued thereafter and prior to separation.
The mother has not used the credit card since separation and the father has been making repayments in respect of them. There is no direct evidence, and certainly none in documentary form, to establish what the credit card debts were at separation. Doing the best I can, it seems more probable to me than otherwise that the father has been just about able to keep the credit card debts where they were and I will treat all the credit card debt as arising pre-separation.
Furthermore, I accept that the credit card debts were spent entirely to the benefit of the family. What the father was really doing of course was to rob Peter to pay Paul to meet expenses that could not be met once his income ceased. Nonetheless, it was all money expended to benefit the family as a whole until separation. Furthermore, to the extent that the mother’s case suggests that the father should take the greater part of the credit card debt because of his excessive expenditure on alcohol, even if this was so (and I would say that this is more likely than otherwise the case) this was part of the warp and woof of the relationship. Although the evidence is scarcely compelling, I note that the mother herself conceded that they were supposed to be cutting down their expenditure but did not do so. To the extent that the credit card debt is as it is, it is the responsibility of both the parties.
Contribution Issues
The parties were together from 1997 until 2013. It was a relationship in excess of 15 years. At the start the mother had an unencumbered house. Whether the father paid the deposit on the former matrimonial home as he asserts or not is not in my view ultimately of great moment. As I find, the $18,000 he inherited was part of the purchase price of the (omitted) vehicle. His answers about this were at times contradictory and his denial that that is what he spent the money on was unconvincing. Furthermore, whatever savings he may have had, the vast bulk of the purchase price of the matrimonial home came from the mother. This was a significant initial contribution. It is not necessary to rehearse the well established authorities dealing with initial contributions and the effect that time may have upon them. On the particular facts of this case it is a factor to be weighted in the mother’s favour.
The father’s insistence upon the work that he says he did at the Property H home already mentioned stands to his favour in a more general way, but there is no reason to suppose that the parties did not both do their best to maintain and improve that property. Indeed it is quite apparent that the parties have both generally done their best throughout the relationship.
The mother has worked most of the time albeit on a part-time basis. This is in nowise surprising considering that she is the primary carer for X. I know the father says he has been the primary carer, but he was in full-time employment until 2010 so this simply cannot have been the case at least until then. The parties then cohabited for about three years before separation, but in three years since the mother once again has plainly been the primary carer.
The father’s insistence that his salary be applied on the basis of an offset claim for the entirety of the period he worked at $80,000 per annum, when in fact he started on a salary of about $46,000, is illustrative of the extent to which he has tended to exaggerate his case. In all the circumstances, and laying perhaps particular emphasis upon the mother’s far greater initial contribution and her primary care of the disabled child, I would assess the contributions of the parties to the pool as being 57 per cent to the mother and 43 per cent to the father.
The Future Needs Issues
It needs to be borne in mind that the property pool is a small one. Once the credit card debt is paid out there will not be much to distribute. The father lives at home with his mother. He has not given evidence as to his family’s circumstances but according to what he told family consultant, Ms J, he has one sibling, a younger sister who lives in (country omitted) with her family. He is clearly strongly supported by his mother. Whether this will translate into becoming ultimately the sole possessor of his mother’s home is wholly unknown, but from what his mother had to say during her brief time in the witness box it would seem far more probable than otherwise that the father will be a beneficiary of her estate to some extent. For the moment, and far more pertinently however, he lives with her presumably rent free, (his only Financial Statement, filed 6 December 2015, says “Nil” rent).
The mother is living in rented accommodation and is in receipt of very modest amounts of income. She has no prospects of receiving child support from the father at any time in the future.
The impression I got from the evidence as a whole is that the father quite enjoys his current circumstances. According to what he told Mr W, psychiatrist, he has a number of enjoyable activities. He lives with his mother with whom as I say he clearly has a close relationship. He will never in my opinion obtain further work. This is partly because as he says his age makes this more difficult and he has tried for a long time to obtain employment. While I accept that that is the case and that he may well have applied for very many jobs, I also got the impression that he is none too dismayed by his lack of success. It seems improbable that he will work in the foreseeable future. The father’s and mother’s health are not matters that appear to impact in any significant way upon their likely futures at this stage.
What we do know however is that the mother will be the primary carer of X. This will not cease when he turns 18. It seems far more probable than otherwise (there is a dearth of really compelling evidence) that he will continue to live with and require the care of his mother for the foreseeable future. This is obviously important as it will continue to impact upon her capacity to earn. Further and in any event, her experience in early childhood education and the like is not in truth a field in which enormously remunerative employment is likely.
Given that I have determined that the credit card debts should be paid out of the net proceeds of the matrimonial home, and given that this is the one chance the mother will have to re-establish herself, the future needs issues are ones to which I give considerable weight. In my opinion there should be an adjustment of a further 18 per cent in the mother’s favour in this regard.
The claim for a superannuation equalisation was pressed by the mother and not the subject of cross-examination. Although the father has maintained that some of his superannuation pre-dated the relationship, it is far more probable than otherwise given that his earnings were relatively modest at the time the relationship commenced ($46,000 in 1997) that the vast bulk of what is there now was earned during the relationship. In these circumstances and given the parties’ respective ages and likely future needs, it is in my view entirely appropriate that there be a superannuation equalising order. Indeed as I have said, I do not recall the father actively opposing such an order. If I am wrong as to that it makes no matter. There is nothing he could have said in these circumstances that would have persuaded me otherwise.
Just and Equitable
The net result of these proceedings will be to clear substantial debts on the part of the parties and leave them with the chattels that they possess together with very modest superannuation between them. The father will have the ongoing support of his mother, who despite her age (not revealed directly) struck me as being in vigorous good health. The mother will have the care of the child X predominately. In all the circumstances I think that a division of the parties’ net property pool of some 75 per cent 25 per cent is indeed just and equitable.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 19 December 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Jurisdiction
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Statutory Construction
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