Barnes and Barnes
[2009] FMCAfam 550
•5 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARNES & BARNES | [2009] FMCAfam 550 |
| FAMILY LAW – Property – date to be used to value wife’s superannuation interests – assessment of contributions – post separation contributions – assessment of contributions to superannuation – s.75(2) factors – parties’ children aged 10, 8 and 3 live predominantly with mother – relevance of child support considerations – just and equitable. |
| Family Law Act 1975, ss.75(2); 79 |
| Lee Steere v Lee Steere (1998) FLC 91-626 Ferraro v Ferraro (1993) FLC 92-355 Clauson v Clauson (1995) FLC 92-595 Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 Biltoft & Biltoft (1995) FLC 92-614 C & C (2005) FLC 93-220 Russell v Russell (1999) FamCA 187 Waters & Jurek (1995) FLC 92-635 D & D [2003] FamCA 473 Pierce & Pierce (1999) FLC 92-844 Collins & Collins (1990) FLC 92-149 |
| Applicant: | MR BARNES |
| Respondent: | MS BARNES |
| File Number: | ADC2448 of 2008 |
| Judgment of: | Brown FM |
| Hearing dates: | 17 February & 1 April 2009 |
| Date of Last Submission: | 1 April 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 5 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Whittle |
| Solicitors for the Applicant: | Helen Campbell & Associates |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Andrew Rogers Lawyers |
ORDERS
In full and final settlement of all claims for matrimonial property:
Within thirty (30) days of the date of these orders the wife pay to the husband the sum of $62,000.00.
Contemporaneously with the payment referred to in order 1 hereof the husband do all acts necessary and sign all documents at this sole expense required to remove the caveat lodged over the property known as and situate at Property R in the State of South Australia and being the whole of the land known as and described in Certificate of Title Book Volume [omitted] (herein referred to as the former matrimonial home).
The wife is hereby declared to be the beneficial owner of the former matrimonial home and the husband is hereby declared to have no estate or interest either at law or in equity in the property.
It is a condition of order 3 hereof that the wife pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from her occupation of the former matrimonial home and keep the husband indemnified against all such liabilities.
The husband is hereby declared to be the beneficial owner of the property located at Property E and being the whole of the land known as Certificate of Title Book Volume [omitted] and the wife is hereby declared to have no estate or interest either at law or in equity in the property.
It is a condition of order 5 hereof that the husband pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from his occupation of the Property E property and keep the wife indemnified against all such liabilities.
The wife shall retain all assets and resources which she now has whatsoever and howsoever acquired (including prospective property), and the husband shall not have a claim against the wife with respect to property obtained by the wife including but without limiting the effect hereof the wife shall retain for her sole use and benefit absolutely:
(a)the wife’s savings;
(b)the wife’s prospective entitlements arising out of her employment, including but not limited to her prospective superannuation entitlements;
(c)any life insurance or life assurance entitlements in the wife’s sole name;
(d)the furniture, furnishings and other articles of domestic use or ornament now in her possession, power or control;
(e)the motor vehicle/s now in her possession;
(f)her personal effects not otherwise specified.
The husband shall retain all assets and resources which he now has whatsoever and howsoever acquired (including prospective property), and the wife shall not have a claim against the husband with respect to property obtained by the husband including but without limiting the effect hereof the husband shall retain for his sole use and benefit absolutely:
(a)the husband’s savings;
(b)the husband’s prospective entitlements arising out of his employment including but not limited to his prospective superannuation entitlement (subject to the splitting order set out in these orders);
(c)any life insurance or life assurance entitlements in the husband’s sole name;
(d)furniture, furnishings and other articles of domestic use and ornament now in his possession, power or control;
(e)the husband’s motor vehicle/s now in his possession;
(f)the husband’s personal effects not otherwise specified herein.
The wife shall keep the husband indemnified in relation to all actions, claims, proceedings and demands and howsoever arising in relation to any debts and liabilities incurred in her sole name.
The husband shall keep the wife indemnified in relation to all actions, claims, proceedings and demands and howsoever arising in relation to any debts and liabilities incurred in his sole name.
The husband do all such things and sign all such documents necessary to transfer the Australian Scholarships Group policy (for the children [X] and [Y]) into the wife’s sole name.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Barnes & Barnes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC2448 of 2008
| MR BARNES |
Applicant
And
| MS BARNES |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties in this case are Mr Barnes “the husband” and Ms Barnes “the wife”. The proceedings relate to the division of property between the parties, following the end of the marriage between them.
The parties began to live together in 1997. Their first child, [X] was born [in] 1998. They are the parents of two other children – [Y], who was born [in] 2001 and [Z] born [in] 2006.
The relationship between the parties was not always stable. They separated on several occasions, although they disagree now on the length and reasons for those various separations and what precisely happened during them.
It is however clear that, during the course of their marriage, they each purchased separate pieces of real estate, which were registered in their sole names and which remain so registered.
In the husband’s case, he purchased Property E in August of 1998 for the sum of $34,000.00. In the wife’s case, she purchased Property R for the sum of $85,000.00 in mid 1999. Issues now arise as to each of the parties’ financial contributions to these properties, in the context of their various separations.
In May of 2004, the parties purchased a third property at Property S for around $300,000.00. In large part, the purchase price was obtained by mortgage advances secured against both the Property E and Property R properties.
The parties married [in] 2002. From time to time they lived together, with the children, at Property R. They both were employed during their marriage – [occupations omitted].
Disputes arise between the parties regarding their various financial contributions during this period. The wife asserts that she concentrated on her career and was determined to get ahead financially for the benefit of her family. The husband concedes that he earned less, particularly in the latter stages of the marriage but asserts he always did the best he could to support the family financially.
Other disputes arise regarding the parties respective non-financial and parenting contributions. The wife’s position is that these responsibilities devolved generally onto her and she discharged them capably, whilst the husband was more lackadaisical in respect of his parenting responsibilities and was generally more self-absorbed, particularly during periods of separation.
On the other hand, it is the husband’s position that the parties’ various non-financial and parenting contributions should be regarded as essentially equal. He disputes that he was absent from the relationship and marriage for as long as the wife now asserts. It is his case that he has always been extensively involved in the parenting of [X], [Y] and [Z].
It is the wife’s case that, during a period of separation, in July of 2004, the Property S property was transferred into her sole name. During this period, she says she financed renovations to the property and increased its value.
The husband is at a loss to understand how and the basis on which the Property S property was transferred to the wife. At any rate, it is common ground that the parties were living together at Property S in 2005. In 2006, the husband borrowed a further sum of $61,000.00, secured against the Property E property, to reduce the Property S mortgage.
The parties’ marriage fell into difficulties in the middle of 2007. The wife asserts that the parties were in effect living separately under the one roof. There is no dispute that they finally separated in October of 2007, when the husband vacated the Property S property.
It is the wife’s case that she could not afford to meet the mortgage payments on the Property S property, particularly as the husband was not providing her with any financial assistance for [X], [Y] and [Z], who have remained living with her in the period since separation and to date.
As a result, she was compelled to sell the Property S property. She says the sale occurred with the husband’s informed acquiescence. The husband does not agree. At any event, regardless of this dispute, it is agreed that after payment of all necessary expenses, the proceeds of Property S amounted to $228,000.00, which the wife has retained.
The wife has used this sum largely to reduce the mortgage repayments on the Property R property by the utilisation of an offset mortgage account. She and the children have returned to live in the Property R property. Ms Barnes regards it as her home and is anxious to retain it.
The circumstances of the parties’ final separation were difficult. The wife felt compelled to obtain a domestic violence order against the husband. It is her case the husband has been essentially disinterested in the children since separation. As such, she asserts that all financial responsibility for the children has devolved onto her shoulders, including the payment of their private school fees and their membership in a scholarship fund.
The husband does not dispute that he was emotionally shaken by the end of the parties’ marriage. It is his case that he was on the verge of a nervous breakdown because of it. As a result, he elected to travel to Townsville. He did not see the children from June 2008 until his fairly recent return to Adelaide.
The husband also concedes that he has not paid any child support to the wife, although he has had some casual employment in Townsville in the period since June 2008. His most recent tax return refund, of around $900.00, has been diverted to reduce his arrears of child support.
In addition, the Child Support Agency has served a notice on his solicitor indicating that she is restrained from distributing a sum of around $2,000.00 to the husband from the proceeds of any settlement to which the husband will be entitled, when these proceedings are finalised. This being the sum attributable to the husband’s current arrears of child support.
The wife’s position is that the husband has shown himself to be an irresponsible parent, so far as the payment of child support is concerned and is likely to remain so. As such, it is her case that she will have to provide all of the financial support required for the children for the foreseeable future.
The husband concedes that he has recently been remiss, so far as the providing of financial support for [X], [Y] and [Z] has been concerned. However, he contends that he is now getting his life in order and has recently obtained employment for himself in Adelaide. As a result, he will shortly be able to play a more significant role in the children’s lives both as a parent and financial provider.
The wife has been a member of the public sector superannuation scheme since October 2002. This is when she began to work at [C]. Since this time, her salary has steadily increased, whereas the husband’s income has fluctuated, whilst trending downwards.
There are many benefits arising from being a member of a superannuation fund, which is partially funded by Government. As a result of these various factors, the wife’s superannuation entitlements are now worth considerably more than those of the husband.
Disputes now arise as to the how the parties’ superannuation entitlements are to be treated, particularly the relevant date at which the wife’s entitlements are to be valued. This may result in a split having to be made, in the husband’s favour, from the wife’s superannuation. Given the overall circumstances of this case, the wife raises considerable issues as to the overall fairness and equity of such an outcome.
In 2004, the husband’s father died. As a result, the husband inherited a property in Property N in Victoria. This property is subject to a life interest in favour of the late Mr Barnes’ partner, Ms J. The property is currently worth $210,000.00.
The husband’s position is that it is uncertain when the life interest will end and, in any event, when it does, he intends to sell the property and divide the proceeds between him and his three other siblings, whom he asserts have a moral entitlement to a share of the property.
In all these circumstances, he contends that the Property N property should not be subject to the court’s deliberations. The wife contends that the court should have regard to the husband’s interest in the property, at the very least as a financial resource likely to be available to him at some stage in the future.
Accordingly, the parties differ as to the size of the pool of the property available to be divided between them and most fundamentally as to how their various contributions to the acquisition and preservation of that property pool are to be assessed. In addition, they are significantly at odds as to the factors likely to shape their respective financial futures and as to the implications of those factors for the outcome of this case.
It is the wife’s position that the pool of matrimonial assets, when calculated, should be divided in her favour in the proportion 75/25 percent. This would enable her to retain the Property R property and her superannuation entitlements, which she believes would be a fair outcome and would enable her and the children to have a modicum of financial security in future.
On the other hand, it is the husband’s position that the parties’ matrimonial assets should be divided in proportion 62.5/37.5 percent in the wife’s favour. It would also be his position that the court should make orders which would result in an equalisation of the parties’ superannuation entitlements.
These proceedings are designed to resolve these various disputes between the parties and, as far as possible, finalise their financial relationship with one another.
The applicable legal principles
The process to be followed, for the division of the parties’ property, is well established by law.[1] The relevant legal principles are primarily contained in Section 79 and 75(2) of the Family Law Act 1975. I am required to follow a number of steps.
[1] See Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-355; Clauson v Clauson (1995) FLC 92-595; Hickey &Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143;
Firstly, I must ascertain what are the parties’ assets and liabilities as at the date of trial.[2] There are few, if any, significant disputes between the parties regarding the items to be included in this pool and the current value of those items.
[2] See Biltoft & Biltoft (1995) FLC 92-614
The major area of controversy between the parties concerns the value of the wife’s superannuation entitlements in the Public Sector Superannuation Scheme, particularly the date at which the fund should be valued for the purpose of these proceedings, given the nature of the superannuation scheme in question.
The wife’s superannuation entitlements are held in a defined benefits scheme, which means that her entitlements do not depend solely on the extent of the actual financial contributions made into the scheme. Rather, her entitlements will also increase depending on other factors, most notably her completed years of service.
Mr C, an actuary, has calculated the value of the wife’s entitlements, pursuant to the applicable legislative formula, at both 30 June 2007 and 30 June 2008.
In June of 2007, the wife’s superannuation was worth $73,065.08. In June of 2008, it was $85,208.53. The wife contends that the earlier figure should be used, given the date of the parties’ separation. The husband contends that the latter date should be used, particularly given that more contemporary values are being utilised for his superannuation entitlements.
The only other issue, which arises between the parties at the first stage, is how the husband’s interest in the Property N property is to be treated. The husband contends that it should be regarded as a financial resource, which is not strictly included in the parties’ pool of assets.
The wife’s preference would be for the property to be directly included in the pool but she acknowledges that, given the uncertainty about when the husband’s contingent interest will crystallise, such an approach may be potentially unfair to the husband. As such, she concedes that the court may elect to treat the interest as a financial resource.
Secondly, I must ascertain the contributions which each party has made towards those assets. Contributions fall into two broad categories. The first kind is contributions to the property; financial contributions and non-financial contributions, made directly or indirectly by or on behalf of the parties to a marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section “The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of homemaker or parent.”[3]
[3] See Family Law Act Section 79(4)(c)
It is clear from the authorities that this second kind of contributions must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
The second step creates a significant level of controversy, between the parties, in the following areas:
·The wife contends that she has provided a significantly greater component of the parenting required for [X], [Y] and [Z], both before and after separation. A fact established by the frequency and length of the parties’ various separations during their marriage.
·The husband asserts that the wife has exaggerated the length of these separations, in part to disguise her own illegal conduct in claiming government benefits to which she was not entitled.
·The husband’s case is that during the parties’ relationship and subsequent marriage, he contributed significantly to the welfare and parenting of the three children concerned.
·The wife’s case is that not only did she undertake more of the parenting of the children, she also undertook the vast majority of the necessary household tasks.
·The wife also contends that a rigorous scrutiny of the parties’ respective level of remuneration, particularly from 1999 onwards, indicates her direct financial contributions have also been much greater than those of the husband’s.
·The husband concedes that in the more recent years of the parties’ marriage, the wife has earned more than him. However, it is his case that the picture was different in the early years of the parties’ relationship.
·As a result, the husband argues that he has always pulled his weight financially and done the best he could to support the family in monetary terms.
·In her case, the wife places particular emphasis in the period post-separation, a period of around eighteen months.
·It is the wife’s case that she has supported the three children concerned alone, whilst the husband has been content to pursue his own interests interstate, without making any financial provision for the children.
·The husband concedes that he has not played any significant role in the children’s lives since separation. However, in the overall context of this case, he asserts that the wife places too much emphasis on this factor and has attempted to exclude him from the children’s lives to satisfy her own emotional needs.
Pursuant to section 90MC of the Family Law Act 1975, superannuation interests are to be treated as property. Specifically, pursuant to section 90MS of the Act, superannuation interests may attract the operation of section 79 of the Act.
Necessarily, such an exercise requires the valuation of the superannuation interest in question. However, by its nature, superannuation is a different “species of asset” to other more easily disposed of assets, such as real and personal property, which are often described as being “conventional assets”.
Superannuation is a species of asset that is not immediately realisable by its beneficial owner. Its translation into an accessible monetary form depends upon the occurrence of some future contingency, most usually permanent retirement from the workforce. In addition, it is most usually the direct corollary of personal endeavour through employment.
For this reason, it has been held to be appropriate for superannuation assets to be placed in a separate pool of property to other items of property and the parties’ respective contributions towards their acquisition and preservation to be assessed separately. In addition, different considerations of justice and equity may apply to the division of superannuation interests because of the special nature of that property.[4]
[4] See C & C (2005) FLC 93-220 at 79,646
In the context of the disparity in the value of the parties’ respective superannuation entitlements, controversy also arises between them regarding the assessment of their overall contributions to this superannuation.
·The wife’s position is that her direct contribution towards the accumulation of her PSS Superannuation, in the overall circumstances of this case, must be regarded as overwhelming.
·She points to the fact that both parties were in the paid workforce and she through her application and prudence adopted a course which ensured she secured a greater measure of retirement security for herself.
·In these circumstances, she argues that she should not be penalised because the husband did not adopt a similar course of application and prudence.
·The husband’s position is that the parties’ contributions to their superannuation on the one hand and their more conventional assets on the other hand should not be discriminated between.
·Essentially, it is the husband’s case that it is an arbitrary matter of chance that the wife has been able to become a member of a better superannuation scheme than him and his overall contributions must be assessed in this context.
At the end of the second stage, it is the wife’s position that the court should assess the parties’ various contributions towards the accumulation and preservation of their entire pool of assets, including superannuation, as overwhelmingly favouring her. On this basis, she would contend that the court should assess the parties’ various contributions as being 62.5/38.5 percent in her favour.
The husband concedes that any assessment of the parties’ relevant contributions favours the wife because of the period post-separation. During the parties’ relationship and subsequent marriage, the husband would assess the parties’ various contributions as being close to even. However, by virtue of what has occurred since, he proposes that the parties total assets should be divided 52.5/47.5 percent in the wife’s favour.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in Section 75(2) of the Family Law Act 1975. Pursuant to Section 75(2)(o) the court is entitled to take into account “Any facts or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.”
In the main, section 75(2) deals with the prospective needs of the parties. This area to, occasions controversy between the parties in the following areas:
·The wife’s position is that financial responsibility for providing for [X], [Y] and [Z] will continue to devolve, almost exclusively, onto her shoulders.
·It is her case that she is committed to the children continuing to receive a privately funded education.
·Accordingly, it is her case that she will be left with a high level of financial responsibility, until at least 2024, when [Z] will be eighteen years of age.
·It is her case that the husband will either manage his affairs to avoid his child support obligations or will remain a low income earner. Either way, she will have to support the children financially and is committed to doing so to a high degree.
·The husband’s position is that his recent child support history is an aberration and the application of the applicable child support formula to his income will ensure that he contributes equitably to the children’s financial support in future.
·The wife also points to the fact that the husband will receive a considerable injection of capital, when Ms J dies.
·The husband argues that Ms J is in her sixties and enjoys good health. As such, his expectancy in the Property N property is likely to be many years off and, as such, it should not be allowed to skew the court’s considerations at this stage to any marked degree, particularly as he intends to share it with his siblings.
At the end of the third stage, it is the wife’s position that she should be entitled to a further 12.5 percent contribution in her favour, which would result in an overall division of the parties’ property 75/25 percent in her favour.
The husband concedes that some allowance should be made in the wife’s favour because of issues to do with the financial support of the children. At most, he contends that this allowance should be ten percent.
Accordingly, at the end of the third stage, it is the husband’s position that the parties’ pool of assets should be divided 62.5/37.5 percent in the wife’s favour.
Finally, in determining what order the court should make under section 79, the court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.[5]
[5] See Russell v Russell (1999) FamCA 187
The “overriding requirement” of section 79 is that considerations of justice and equity should inform each step of the process. The exercise I must undertake is not a “process of social engineering”[6] or of equalisation of assets or financial resources.
[6] See Waters & Jurek (1995) FLC 92-635
At the outset, I am at pains to point out to the parties that the task I must undertake is not a simple accounting or arithmetical task. In the jargon of the times, I cannot “crunch the numbers” to come up with a division of their property, which is not open to challenge or incapable of different interpretation.
Marriage is by and large a joint enterprise. How much buffer spouses must give one another, when financial set backs occur, must depend on the degree of consultation and acquiescence in their relationship.[7]
[7] See D & D [2003] FamCA 473 at paragraph 49
Documents relied upon
The husband commenced these proceedings on 20 June 2008. He relies on the following documents:
i)Two affidavits of himself filed on 20 June 2008 and 20 January 2009 respectively;
ii)A statement of his financial circumstances filed on 20 January 2009.
The wife responded to the husband’s application on 4 September 2008. She relies on the following documents:
i)Two affidavits of herself filed on 4 September 2008 and 5 February 2009 respectively;
ii)A statement of her financial circumstances filed on 5 February 2009.
The parties themselves were the only witnesses who gave evidence in these proceedings. The various documents outlined above and the oral evidence of the parties together with a number of other documents which were tendered form the evidence on which this case is to be determined.
In these reasons for judgment, findings of fact are made on the balance of probabilities, following my observations of each of the parties’ concerned. In what follows, statements of fact constitute findings of fact.
The evidence
The wife seemed to me to be an honest and credible witness. She also appeared to be a hardworking person, who is keen to advance herself and her family financially. Certainly, she is dedicated to ensuring the children are financially secure and able to pursue all reasonable educational opportunities likely to be available to them.
The husband struck me as still somewhat bitter at the circumstances surrounding the parties’ separation, particularly the fact that the children are currently estranged from him. He accuses the wife of being dishonest in her past application for various government benefits to which he alleges she was not entitled because the parties remained living together.
I find it difficult, if not impossible, to resolve this issue definitively in the context of these proceedings, particularly given that the husband is likely to have a jaundiced view about the wife and her past conduct. In these circumstances, it seems to me unlikely that he would have an objective view about the matters concerned. Certainly, I think his evidence needs to be treated with some caution, particularly given my view about the wife’s overall credibility.
The impression I have is that the relationship between the parties was very often an unstable one and, as such, was marked by frequent periods of protracted unhappiness, which led to trial separations which were in turn punctuated by brief attempts at reconciliation. All through these various periods, the parties remained linked together because of their common parentage of their children.
In all these circumstances, their volatile relationship did not always provide easy points of demarcation, which indicated that they were definitively separated or definitively living together. In addition, at this juncture, it is very difficult for them each to recount accurately what was the precise position regarding their living arrangements.
The husband presented himself as a person who is not preoccupied with financial matters and the pursuit of financial security. I think he described himself as a person “who worked to live, rather than lived to work”.
For her part, the wife is somewhat critical that, from time to time, the husband put a higher value on socialising than on family or financial matters. For his part, the husband seems to be critical of the wife whom he thought placed too much emphasis on these matters.
In cross examination, the husband conceded that he left money matters to the wife during the parties' relationship. In addition, whilst not prepared to concede that his financial affairs were “chaotic”, the husband did acknowledge that they were “not up to scratch”.
Overall, I think both parties have followed the natural human tendency, in adversarial proceedings such as these, to maximise their own respective contributions and minimise those of the other. Notwithstanding these concerns, I consider that both parties are likely to be basically honest witnesses.
However, on balance, I consider that the wife is likely to be a more reliable historian of the parties’ financial affairs because she was more concerned about them. In addition, for reasons which will follow, it seems to me to be more likely than not that she has been the more proactive parent and home maker.
a) Chronology
The husband was born [in] 1969. The wife was born [in] 1971. The husband grew up in Geelong. The wife in Canberra. Both parties came to Adelaide as young adults.
The parties met at [omitted], where both were employed. The husband was a [occupation omitted], the wife a [occupation omitted]. They started to live together in 1997, when they shared a flat at [P].
At this time each had a motor vehicle and other assets of modest value. The wife asserts that it was she who had the greater level of asset backing but, in my view, this cannot be regarded as important now.
At this early stage, the parties began to pool their savings, at the wife’s instigation. She opened a bank account, in her name, for this purpose. This confirms my impression that she has always concerned herself more with financial matters than the husband and has been proactive in saving.
The wife’s position is the relationship between the parties was not a stable one and they separated in 1998 dividing their savings equally between them.[8] Later that year, the wife discovered she was pregnant with [X]. In these circumstances, the parties continued to live in the [P] flat.
[8] See Exhibit 7, which indicates a withdrawal of $3,000.00 from the wife’s account at the Westpac Bank, Modbury
The wife continued to work until around three months prior to [X]’s birth in 1998. She returned to work, when [X] was aged around four months of age.
The wife claimed some government benefits before and after [X]’s birth. It is the husband’s position that the parties continued their relationship during this period. It is in this context that the purchase of the properties at Property E and Property R must be examined.
The husband purchased property at Property E in late 1998 for the sum of $34,000.00. The husband applied for a first home owner’s grant, which exempted him from the payment of stamp duty. The property is now valued at $155,000.00. It is registered in the husband’s sole name and always has been.
The wife’s evidence is that the husband was not supporting her financially at the time of the property’s purchase. Rather, they continued to live together at the [P] flat because she had nowhere else to go. It is her evidence, which I accept, that her mother came to Adelaide to assist her with caring for [X] both before and after his birth.
The wife purchased the property at Property R, in June of 1999, for $85,000.00. I accept that the husband accompanied her to inspect it and a number of other properties prior to her committing to the Property R property. However, I do not think that this, of itself, indicates that the parties had resumed their relationship together or that the purchase was intended to be a joint one.
I think it more likely that the parties’ relationship with one another was in a state of flux, with both keeping their options open. For this reason each elected to keep their respective property purchase in his or her own name.
Like the husband, the wife successfully applied for the first home owner’s grant. By the time of the purchase of the Property R property, she had saved around $10,000.00. The rest of the purchase price was borrowed from the Westpac Bank. It is my finding that the wife is capable of considerable fiscal discipline, when she wants to save for something.
Accordingly, I accept the wife’s evidence that she made a considerable initial contribution towards the purchase of the Property R property, which is currently valued at $260,000.00.
Initially, the husband rented out the Property E property to his mother. The wife was ambivalent at his suggestion that he move with her and [X] to Property R. In any event, I accept that the parties reconciled in July of 1999.
It also seems to be the case that the parties separated, for around about three months, in the latter part of 1999. On balance, it seems more likely than not that the husband moved in with his mother at the Property E property from time to time.
[Y] was born [in] 2001. In February of 2002, the parties married. On their certificate of marriage, both give Property R, as their address.
The husband continued to work at [omitted] throughout this period. The wife complains that he did not always work as many shifts as were potentially available to him. With [X]’s birth she found it increasingly difficult to work at [omitted], given the requirement to work late shifts. She left the [omitted]’s employ in 2000.
Accordingly, although the relationship between them was not always stable, the parties lived together for the majority of 2000, 2001 and 2002. They agree they separated again in April of 2003.
The wife’s position is that the husband was not reliable, so far as money matters were concerned. In response to this, she returned to work when [Y] was six months old. In October of 2002 she started work at [C], in whose employment she has remained ever since.
I accept that the wife places significant store on financial security for herself and her family. For this reason, employment in the Commonwealth Public Service appealed to her. I also accept her evidence that she believed her permanent employment was necessary for the children to be properly provided for. Money issues were a constant source of friction between the parties.
The wife, in spite of the interruption occasioned by [Z]’s birth, has steadily improved her rate of remuneration from [C]. The husband has been in employment but it has been essentially casual and unskilled. He has worked as [occupations omitted].
The parties’ respective income tax documents indicate that they each received the following incomes, in the period of their relationship and subsequent marriage.
Date
Husband
Wife
30 June 1998
$33,416.00
Not available
30 June 1999
$28,717.00
$17,191.00
30 June 2000
$30,123.00
$24,607.00
30 June 2001
$32,516.00
$11,347.00
30 June 2002
$31,992.00
$16,093.00
30 June 2003
$30,215.00
$30,130.00
30 June 2004
$18,530.00
$39,181.00
30 June 2005
$8,682.00
$45,064.00
30 June 2006
$18,797.00
$45,629.00
30 June 2007
$29,949.00
$48,616.00
30 June 2008
$26,222.00
$49,537.00[9]
[9] See exhibit 8
The parties were separated between April of 2003 and March of 2004. The husband moved into a caravan at [suburb omitted]. The parties disagree as to how long they were separated. The husband’s view is that it could not have been very much longer than six months. The wife believes it was closer to a year.
I think that the wife is likely to be the more reliable historian in this regard. I also accept her evidence that [X] and [Y] lived predominantly with her, during the period in question, and Mr Barnes provided her with little child support for them. Given the parties’ respective levels of remuneration, it would appear to be an inescapable conclusion that this was a heavy burden for the wife.
The parties reconciled in the early part of 2004, when the husband returned to live in the Property R property. Accordingly, their relationship cannot be described as being a stable one. Rather, it had been marked by lengthy periods of separation and disputes about money in particular.
The parties purchased the property at Property S very shortly after they had reconciled. The purchase price of the property was $305,000.00, all of which sum was borrowed, with the borrowing secured against the wife’s interest in the Property R property and the husband’s interest in the Property E property. It would appear logical to assume that the mortgagee concerned would not have advanced the sum required to purchase the Property S property without security from both parties.
It is the wife’s position that she set about renovating the Property S property, including painting it internally; erecting a pergola; and landscaping the front and back gardens. I accept that she did these renovations at her own expense, which increased the value of the property in question.
It is the wife’s case that the relationship between the parties remained a difficult one and she was concerned that the husband was not contributing to the mortgage payments required to maintain Property S. It is also her case that the parties separated once again in July of 2004.
It is against this background that the transfer of the Property S property from the parties’ joint names to the wife’s name alone must be examined. It is the wife’s case that she was concerned that the husband was not paying his way, so far as the various loans were concerned, and as a consequence she approached him to transfer the property to her, a request to which he acceded.
The husband’s position is that he has no recollection of any discussion along these grounds and he professes to be puzzled as to how the property was transferred to the wife’s sole name, which enabled her to subsequently sell the property in November of 2007.
I do not think there is anything untoward in respect of the transaction in question. On balance, it seems to me to be likely that the wife was the financially proactive spouse, in respect of Property S and she made more of the initial financial contributions towards its acquisition, particularly prior to July of 2005.
The parties again reconciled towards the middle of 2005. Their third child [Z] was born [in] 2006. The wife took paid maternity leave for a period of six months after [Z]’s birth.
It is the wife’s position that, after [Z]’s birth, she bore more and more responsibility for the financial support of the parties’ young family. Given the parties’ respective level of incomes, during this period, this seems to me to be an irrefutable proposition.
It is also the wife’s case that she provided more of the care needed by the children and did most of the necessary household tasks. Certainly, during the parties’ frequent separations, it seems difficult to reach any other conclusion that she was the parent who tended to [X], [Y] and [Z].
It is a common phenomenon, in acrimonious proceedings such as these, for the parties concerned to have radically different views as to how parental responsibility and home making duties were divided between them.
The husband does not accept that the wife discharged all these responsibilities. However, he concedes that she did seventy percent of the necessary household tasks, including cooking, cleaning and washing. In terms of the division of parenting responsibilities, he would put it at 60/40 percent in the wife’s favour.
To my mind these are significant concessions. Necessarily the husband accepts that the wife provided more of the family responsibilities required, as well as being part of the paid workforce for much of the parties' relationship. In all the circumstances of this case, although
Mr Barnes is to be congratulated for his concessions, I think it likely that he has still over estimated his level of contribution in these areas.
The wife also acknowledges that the husband did “help out” with the children. It is her case that during the school term, she would make the children’s lunches and get their clothes ready for school, prior to leaving for work.
She acknowledges that the husband took the children to school. However, it is her case that she collected them after school and made the family’s evening meal. It is also her case that her mother provided a significant level of assistance in caring for [Z], whilst he was young.
It is the wife’s case that the relationship between the parties fell into difficulties, once again, in April of 2007. It is her case that the parties were effectively living separated, under the one roof, from this period onwards. There is no doubt that the parties finally separated in October of 2007, when the husband left the former matrimonial home.
The husband rented out the Property E property, during the marriage, to various members of his family. As earlier indicated, he also returned to live in the property from time to time. The rental received in respect of the property was applied to the mortgage on the property. At some time in 2006, the mortgage was extended by the sum of $61,000.00. This sum was paid into the mortgage on the Property S property to reduce the level of indebtedness in respect of it.
b) The events after separation
The circumstances surrounding the parties’ separation were traumatic for each of them. The wife asserts that she was compelled to obtain a domestic violence order against the husband because of his bad behaviour. The husband asserts the order was unnecessary and tactically motivated, on the wife’s part.
Given this difficult situation, it is the husband’s position that the wife made it as difficult as possible for him to see the children. In June of 2008, the husband moved to Townsville to live. It is his case that he needed space to recuperate emotionally.
The wife sees this move as a selfish gesture on the husband’s part and was critical that he was able to find employment for himself at the [workplace omitted] in Townsville, which funded a comfortable lifestyle, but was unwilling to make provision of any child support to her for the parties’ three children.
The husband is also critical of the wife for selling the Property S property, without prior reference to him. The property was sold in November of 2007 for the sum of $395,000.00. After payment of necessary expenses, the net proceeds were $387,773.72. From this sum, about $156,000.00 was utilised to discharge the mortgage on the Property S property.
The parties agree that the net proceeds of sale of the Property S property are $228,000.00, which the wife has retained in her control. She has placed the sum in a term deposit, which was tied to the mortgage on the Property R property, reducing interest payments on its mortgage, which currently stands at $186,000.00.
The mortgage on the husband’s property at Property E has not been reduced. The husband has rented this property more recently to his brother, who ensures that the property is properly maintained.
The husband concedes that he has paid little, if any, child support since the parties separated. Accordingly, it is undoubtedly the case that the wife has been the financial provider for [X], [Y] and [Z] for a period of time approaching two years. This has included paying [X] and [Y]’s school fees, which amount to around $2,000.00 per annum.
The wife also contributes to a scholarship fund established with the Australian Scholarships Group. The parties agree that the contents of this fund are held by them on trust for their three children. At the present time the fund holds around $22,000.00.
Given that she has been making the sole contributions towards the fund, it is the wife’s position that the fund should be transferred into her name, so that she can continue to be its trustee and administer it. The husband does not agree.
The hearing of this case commenced on 17 February 2009. Unfortunately, it could not be finished on the day which was originally allocated for it and it was adjourned to 1 April for completion.
The husband travelled to Adelaide for the hearing. After 17 February 2009, he has obtained employment as a [omitted] in the Adelaide area. He is employed as a sub-contractor to a larger operator. Mr Barnes had similar employment during the parties’ marriage.
The husband estimates he will be paid $1,500.00 gross per fortnight. From this sum, he will have to pay his own expenses, particularly petrol. He has purchased a motor vehicle for the sum of $10,000.00, so that he can pursue this employment.
The wife is somewhat sceptical that this employment will last. She is also fearful that the nature of the husband’s employment will allow him to manipulate his level of remuneration and expenses, so that his child support income is kept artificially low.
From the date of separation, Mr Barnes was assessed to pay child support on an income of $18,797.00, which was his 2005/2006 taxable income. This resulted in an assessment of child support of less than $100.00 per month initially. More recently, Mr Barnes has been assessed to pay the sum of $344.00 per month.
As at 13 February 2009, Mr Barnes was $3,835.34 in arrears of his child support liability. As previously indicated, an amount of $900.00 has been redirected to the Child Support Agency from Mr Barnes’ tax refund and his solicitor has been directed to forward a further $2,000.00 to the Agency from any settlement moneys arising from these proceedings.
Mr Barnes is currently seeing the children once per week. He is hoping that he will be able to spend more periods of time with the children in future. On this basis, it is the husband’s position that he intends to remain living in the Adelaide area for the foreseeable future. As such, it is his case that he is committed to providing ongoing financial support to the three children concerned. The wife is not so sanguine.
c) The Property N property
The husband’s father died in 2004. His major asset was his former home at Property N, which he shared with his de‑facto partner, Ms J.
Pursuant to the relevant will, Ms J has a life interest in the Property N property. She continues to occupy the property and pay all outgoings in respect of it. She is currently aged in her sixties and enjoys good health.
The husband is the residuary beneficiary of his late father’s estate. Accordingly, his interest in the Property N property will crystallise with Ms J’s death. Given her age and health, the husband believes that this eventuality is likely to be many years off.
The property is currently valued at $210,000.00. As matters currently stand, the husband receives no direct financial benefit from it. The husband’s parents separated when Mr Barnes was a child. He lived with his father for a time. The husband has two brothers who are older than he is. His mother is also alive.
It is the husband’s position that his two brothers and mother have a moral interest in the Property N property. On this basis, when his interest in the property crystallises, he intends to sell the property and divide the proceeds of sale equally with his mother and brothers.
At this juncture, it is difficult to assess whether the husband will give effect to his intention, given that the life interest concerned is not likely to be extinguished for some time. As a result, I intend to treat the husband’s interest in the property as a future financial resource.
Step One – the pool of assets
To their great credit, the parties have been able to agree on the value of the vast majority of the items which make up the pool of assets available to be divided between them. As earlier indicated, the major area of contention concerns the value to be attributed to the wife’s superannuation.
I propose to utilise the most contemporary valuation for the superannuation. It seems artificial in the extreme to select current values for the majority of the parties’ assets but use a historical value for the superannuation. Controversy regarding the parties’ respective contributions to this fund, particularly in the period after their separation, can be dealt with at the second stage of the court’s process.
For that reason, it is appropriate that the parties various entitlements to superannuation should be placed in a separate pool to their other assets in accordance with the principles laid down by the Full Court in C & C.[10]
[10] C & C (2005) FLC 93-220
Accordingly, I find the property and financial assets available to be divided between the parties to be as follows:
Property (non-superannuation assets)
$
Property R
260,000.00
Wife’s furniture
2,690.00
Wife’s Kia motor vehicle
4,500.00
Proceeds of sale of Property S
228,000.00
Property E
155,000.00
Husband’s Nissan motor vehicle
2,000.00
Total
652,190.00
Liabilities
Mortgage on Property R property
180,000.00
Mortgage on Property E property
112,000.00
Wife’s visa card debt
4,900.00
Total liabilities
296,900.00
Net non-superannuation assets
355,290.00
Superannuation
$
PSS Superannuation (wife)
85,208.00
Host Plus (husband)
34,904.00
REST (husband)
4,199.00
Total superannuation
124,311.00
Financial resources
$
Property N (husband)
210,000.00
Step Two – assessment of contributions
I now turn to the second of the steps in the exercise laid out under section 79, namely an assessment of the parties’ respective contributions within the context of section 79(4)(a)-(c).
Section 79(4) requires the court to look at the entirety of the contributions made by the parties, both financial and non-financial, to 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 task required of me, pursuant to section 79(4) of the Family Law Act thus is to weigh and assess the disparate contributions of the parties to arrive at an outcome, which is both appropriate and just and equitable in all the circumstances.[11] Contributions, which are different in quality and nature, must be compared. The exercise is not purely an arithmetical or accounting one.
[11] See Pierce & Pierce (1999) FLC 92-844
The relationship between the parties was one of ten years in duration but was marked by several periods of separation. Their first child [X] was born at an early stage in the relationship, closely followed by [Y]. [Z] was born more recently.
I have found that the wife has provided more of the parenting of the parties’ three children during their relationship. At times she has done this with little financial support from the husband. I have no doubt that she is a dedicated and competent parent. These are factors which greatly favour her, at this second stage.
The husband concedes that the wife also undertook more of the household tasks required. I believe he is likely to have over stated his contributions in this area. Accordingly, it is my finding that the wife has been the dominant partner in terms of non-financial contributions and parenting during the parties’ marriage.
In addition, it is also the case that she has provided more direct financial contributions, particularly since 2004. I accept her evidence that she has been more committed to providing financial security for herself and the three children concerned than has the husband. Again, this is a factor which militates strongly in favour of the wife.
In addition, there can be no doubt that the husband has provided little, if any, financial support for [X], [Y] and [Z] since the parties’ separation in October of 2007. The wife has had to maintain the children during this period. It cannot have been an easy task, particularly as she has had to maintain full-time employment.
Since she joined the Commonwealth Public Service, the wife has steadily improved her financial situation. She is a frugal and prudent person. I also find her to be a dedicated parent, who has had to struggle to balance the responsibilities of home and employment, very often with little assistance from the husband.
Accordingly, it is my view that an overall assessment of the parties various contributions towards the acquisition of their non-superannuation assets favours the wife. I would assess the parties’ various contributions as favouring her in the proportions 60/40 percent.
Pursuant to section 90MC of the Family Law Act, superannuation interests are to be treated as property. As such, they attracts the provisions of section 79 of the Act. However, superannuation has been held to be “another species of asset” and as such, depending on the circumstances of the case concerned, it may be necessary to assess the parties’ various contributions towards its accumulation in a different way to that which is taken in respect of more conventional assets.[12]
[12] see C & C (supra) at 89,646
The parties’ total superannuation currently stands at a valuation of $124,311.00. Of this sum, the wife has contributed just over 68%. The wife’s greater acquisition of superannuation is a reflection of her higher income, since she joined the public service and the benefits which follow from permanent employment in the public sector.
The husband has significantly less superannuation because, although she has been in the paid workforce for many years, he has been casually employed in a variety of modestly paid positions. As such, his employment has not been as amendable to the growing of superannuation resources as has the wife’s employment since October of 2002.
The wife chose to work for [C] in part as a reflection of her desire for financial security. The value of her entitlements will increase as her years of service in the public service accrue. The rationale of the scheme would appear to encourage continuity in employment by members of the Commonwealth Public Service.
The husband does not seem to be as strongly motivated by considerations of financial security. Certainly, he appears to have been unwilling to modify his employment preferences, during the latter years of the parties’ marriage. It has been the wife who has been the financial engine for the family, which has been reflected in her current level of superannuation.
The wife’s superannuation has increased from $73,065.08 to $85,208.00, an increase of around fifteen percent, which occurred predominantly in the period after the parties’ separated. This increase represents 9.76% of the parties’ total superannuation now.
In all these circumstances, I have come to the conclusion that it would be just and equitable to regard the parties’ various contributions towards the acquisition and preservation of their superannuation to be reflected in how that superannuation is currently held.
Step Three – the prospective needs of the parties – section 75(2)
The parties are of similar age, the husband is thirty-nine and the wife is thirty-seven. Both enjoy good health. As such, both have many years of productive life before them [section 75(2)(a)].
Neither the husband nor the wife enjoy any specific qualifications, which will assist them in gaining employment in the future. Both have been casual and unskilled employees in the past. The wife’s level of remuneration has improved since she joined the public service.
On the other hand, the husband’s employment situation has deteriorated recently. I am satisfied that this has been a matter of choice on his part. All in all, I consider that the parties have similar attributes to enable them to obtain paid employment in future. Neither is likely to be anything other than a modest income earner [section 75(2)].
The husband is currently ill prepared for permanent retirement from the paid workforce. However, given his age, such retirement is likely to be many years away. As such, he has time to make provision for his retirement.
In addition, the husband has the future financial resource of his remainder interest in the Property N property. When this interest will crystallise is uncertain but it is likely to be before the husband must consider retirement from the paid workforce.
Accordingly, as matters currently stand at the end of the second stage, there is a marked discrepancy in the parties’ preparedness for retirement, a disparity which is likely to become more rather than less pronounced as time unfolds.
This disparity is as a result of the respective employment decisions made by each of the parties, which in turn is a reflection of their different personalities and priorities. However, the existence of the husband’s interest in the Property N property is likely to significantly reduce the impact of this disparity.
The most significant factor, in this case, at this stage, is that the wife has responsibility for the care and control of the parties’ three children, who are aged ten, eight and three years respectively [section 75(2)(c)].
The wife has shown herself to be the type of parent who wishes her children to have every educational opportunity reasonably available to her pocket.
As such, the children are likely to be a significant drain on her financial circumstances for many years to come. [X] and [Y] are approaching the years, which are most likely to be the most expensive, so far as their financial support is concerned.
Soon [X] and [Y] will be going to high school. They will be playing sports and being engaged in other hobbies and activities. The costs of their education and clothing are likely to be significant. [Z]’s years of high expenditure lie in the future.
At present, I accept that the wife is exclusively bearing the cost relating to the children’s financial support. This includes the provision of the children’s school fees and the supply of their day to day needs. It is a heavy burden and likely to remain so.
In my view, the wife is likely to be the parent who will be mainly responsible for providing care for the parties’ children. She will bear the burden of delivering and collecting them to and from school; making arrangements for their care before and after school; and tending to them in the event that any of them are ill. These responsibilities, relating to a child’s health, education, socialisation and general wellbeing have been described as “myriad”.[13]
[13] See Collins & Collins (1990) FLC 92-149 at 78,043
Inevitably, these responsibilities will impact on the hours of paid work the wife can take on and so on her prospects of promotion. I appreciate that, in this day and age, these difficulties confront many working parents and, to a large extent, the wife’s employment is likely to be accommodating of her responsibilities for [X], [Y] and [Z].
However, the fact remains that Ms Barnes will carry out more of the parenting responsibilities for the children and this inevitably must have an impact on her financial “bottom line”. It will not be so easy for her to seek promotion or to undertake additional duties. It will be difficult for her to find time to study to obtain qualifications to assist in her career advancement.
After the parties separated, the husband travelled to North Queensland. I accept that he had reasons for wishing to leave Adelaide. However, the wife does not have that degree of latitude. She was, is and is likely to remain the children’s primary source of financial support. The husband has demonstrated that he is not always reliable in this regard.
As a matter of law, particularly the operation of the child support scheme, the wife does not have sole responsibility for providing financial support for the three children concerned. The husband has been assessed to pay child support for [X], [Y] and [Z].
However, in the period since the parties separated, his response to his financial obligations towards these children has been poor. In part, this has been a reflection of his current level of antipathy towards
Ms Barnes. I am concerned that this state of mind is likely to persist, particularly whilst Mr Barnes has little direct interaction with the children.
As a PAYG tax payer, there it little controversy about Ms Barnes’ level of income. This is not the case so far as Mr Barnes is concerned. He is currently working as a subcontracting driver. As such, he is likely to have some latitude in calculating his net income, after the various deductions relating to his courier enterprise have been calculated.
In all these circumstances, I am concerned that the wife will continue to receive modest amounts of child support from the husband. It may be difficult for the Child Support Agency to make an accurate assessment of the husband’s income. In addition, in the past, the husband has displayed willingness to retire from the paid workforce.
In Clauson & Clauson[14] the Full Court said as follows:
“The weight to be attached to a child support assessment will vary with the circumstances of each case, including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future.”
[14] Clauson & Clauson (1995) FLC92-595 at 81,911
The payment of child support does not fully compensate a parent for loss of career possibilities and financial advancement, which are often the lot of a parent who has principle responsibility for the day to day care of the child. In this case, Ms Barnes is working full-time and must continue to do so to ensure that the children’s financial necessities are supplied.
Since separation, she has received little child support from Mr Barnes and his level of child support has been calculated by reference to a low wage. It is difficult to see that this circumstance will change in the foreseeable future. The three children concerned are entering their most expensive years of care. These are considerations again which strongly favour the wife [section 75(2)(na)].
After considering the various section 75(2), the most serious consideration is the wife’s responsibility to provide the vast majority of the children’s day to day care, which will inevitably constitute a significant financial burden for her, for at least the next twelve to fourteen years.
She is unlikely to be assisted by any significant amounts of child support from Mr Barnes. Otherwise, both parties have an ability to earn an income and both have many years of productive life before them.
In balancing the various section 75(2) factors, I have come to the conclusion that there should be a further distribution of the parties’ non-superannuation assets of ten percent in the wife’s favour, at the end of the third stage.
Given the present disparity in superannuation assets, a disparity which is likely to become more pronounced in future, I have come to the conclusion that there should be no allowance, in the wife’s favour, in respect of the parties’ superannuation assets. In reaching this conclusion, I bear in mind that the husband has a significant future financial resource available to him.
Section 79(2) – is this a just and equitable outcome?
The final step in determining property matters is to stand back and consider whether the proposed result is just and equitable. It is all very well to talk in percentage terms, so far as orders are concerned, but what matters to the parties is what the orders mean to them in dollars and cents and what affect they have on their long term plans and aspirations.
Seventy percent of the parties’ net non-superannuation assets is represented by the sum of $248,703.00 and thirty percent by the sum of $106,587.00.
The wife will retain her net interest in the Property R property ($80,000.00); and her motor vehicle and furniture ($7,190.00). She will also retain responsibility for the Westpac Visa debt ($4,900.00). This means she has net property in her possession to the value of $82,290.00.
The husband will retain his net interest in the Property E property ($43,000.00); and his motor vehicle ($2,000.00); leaving him with property worth $45,000.00.
Accordingly, to achieve a 70/30 percent division of non-superannuation assets, the wife will have to receive the sum of $166,413.00 and the husband $61,587.00 from the proceeds of sale of the Property S property.
This outcome will leave the wife with a modest mortgage on the Property R property, which she regards as her and the children’s long term home. This will provide her with a significant measure of financial security.
The husband will be less financially secure. However, he will have a significant interest in the Property E property and will have the ability to reduce the mortgage markedly if he should so wish. Regrettably, neither party will have any great financial buffer to protect them from the ordinary exigencies of independent living.
The wife will have significantly more superannuation than the husband. However, he has the expectation of his interest in the Property N property to compensate him in this regard. Most importantly, the wife has the significant financial responsibility of providing for [X], [Y] and [Z], which responsibility is likely to be open‑ended.
In all these circumstances, I am satisfied that the outcome which I propose is a just and equitable one. It is also appropriate that the parties’ interests in the Australian Scholarships Group vest in the wife’s sole name.
I will round up the sum to be paid to the husband to the sum of $62,000.00. I will also order that the husband do all things necessary to remove the caveat on the Property R property and make orders, in the nature of declarations that each party retain the property, both real and personal, currently in their respective control.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 5 June 2009
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