Beckwell and Valcourt

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKWELL & VALCOURT

[2020] FCCA 2665

Catchwords:
FAMILY LAW – Property – Final hearing – contributions.

Legislation:

Family Law Act 1975 (Cth), ss.79 (2), 79(4) (a) - (c), 79(4) (d) – (g), 75(2)

Applicant:

MR BECKWELL

Respondent:

MS VALCOURT

File Number:

ROC 488 of 2019

Judgment of:

Judge Demack

Hearing date:

20 July 2020

Date of Last Submission:

20 July 2020

Delivered at:

Rockhampton

Delivered on:

31 July 2020

Orders Pronounced:

18 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr Kissick

Solicitors for the Applicant:	Madden Solicitors
Counsel for the Respondent:	Mr Van Der Weegen
Solicitors for the Respondent:	Freedom Law

ORDERS

That both the Husband and Wife take all steps to have the property situated at B Street, Suburb C (subsequently referred to as the “B Street, Suburb C Property”) put into a condition to be sold and all costs to be borne equally.
That within 30 days of the Order, the Husband and Wife sign an authority to sell the B Street, Suburb C Property with two Real Estate Agencies, with one (1) been nominated by the Husband and one (1) by the Wife:
(a)The listing price to be set by the wife;
(b)All advertising fees to be borne equally;
(c)No reasonable offer to be refused and if parties cannot agree then the wife has the final decision as to the sale price; and
(d)The net proceeds after settlement of the B Street, Suburb C Property to be paid to the wife.
That should the B Street, Suburb C Property not sell within 60 days of been listed for sale, then either party with four (4) days written notice to the other, require the property to be auctioned.
That should the Husband and Wife not be able to agree on an auctioneer, then the wife will have the final decision:
(a)The parties to bear equally the cost of the auction and all fees incurred in advertising the property for auction;
(b)That the wife to set the reserve price, but such reserve price cannot be less than the moneys owning under the mortgage held by the ANZ bank; and
(c)The net proceeds from the sale to be paid to the wife.
That until the B Street, Suburb C Property is sold the Husband and Wife are to contribute equally to the payment of the mortgage, rates insurances and any other cost incurred in relation to the said property.
That the husband relinquishes all right, title or claim on any asset on the possession of the Wife as at the date of this Order to include (but not limited to) the following:
(a)Any Real Estate in her name only.
(b)All motor vehicles in her possession.
(c)All bank accounts in the name of the wife; and
(d)All superannuation entitlement held by the wife.
That the wife will indemnify and keep the Husband indemnified in relation to any debts she has (and her HECS debt) as at the date of this Order.
That the Wife relinquishes all right, title or claim on any asset on the possession of the Husband as at the date of this Order to include (but not limited to) the following:
(a)Any Real Estate that the Husband as an interest in at the date of this Order.
(b)Bank account in his name only.
(c)Motor vehicles in his possession.
(d)Caravan in the husband’s possession; and
(e)Superannuation entitlement (other than what is provided for in subsequent clauses).
That the Husband will indemnify and keep the Wife indemnified in relation to any debts he has (and any debt in the Country D) as at the date of this Order.
That in accordance with Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of Mr Beckwell the E Super Fund Member Number: ... and Account Number: ...09, Ms Valcourt will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $45,000.00, and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
That these Orders bind the Trustee of the E Super Fund and these Orders take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee.
That each party will sign all documents that are necessary to give effect to these orders, within 10 days of being requested to do so.
That should a party refuse to or fails to sign a document necessary to give effect to these orders than the Registrar of the Court can sign such document upon receipt of an Affidavit by the parties’ Solicitor setting out the information to establish that a necessary document had not been signed.
That all outstanding Applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ROCKHAMPTON

ROC 488 of 2019

MR BECKWELL

Applicant

And

MS VALCOURT

Respondent

REASONS FOR JUDGMENT

This is an application for final property adjustment orders for parties who were married.
These proceedings are determined, pursuant to section 79 of the Family Law Act. Section 79(2) requires that an order only be made if it is just and equitable to make an order. As the parties to this proceeding have separated on a final basis and as they both ask the court for a property adjustment order, I am prima facie satisfied that it is just and equitable to make an order adjusting their property.
The steps I am required to undertake to resolve such applications are to firstly identify and value the assets and liabilities of the parties, secondly, to assess the contributions of the parties, pursuant to section 79(4)(a))(a) through to (c), and then to consider the matters set out in section 79(4)(d) through to (g), which include the matters in section 75(2) so far as they are relevant and to determine whether any adjustments should be made as a result to the contribution based entitlements, and I am to make such an order as I consider appropriate.
Both parties were legally represented at trial. The respondent wife was represented, pursuant to the cross-examination scheme through Legal Aid Queensland funding.
The husband seeks final orders in terms of those set out in his case outline document. Doing the best I can on the maths that I have devised, it looks to me as though his final outcome would provide something in the order of 60 per cent of the pool to the wife and 40 per cent of the pool to himself, and Counsel for the husband says that the husband’s proposal, as specified, not the percentage adjustment, but the specific division is generous to the wife and is the maximum it should be.
The wife, through her Counsel in final submissions, said that the adjustment to the wife should be something in the order of 65 per cent to her overall. Again, doing the best I can on the maths that I have got, it looks to me as though the specifics of what she seeks in her orders sought in her case outline she is seeking there something in the order of a little over 70 per cent of the pool, but final submissions were 65 per cent of the pool.
The parties rely upon the material that they read in open court. The witnesses in the trial were the husband and wife themselves.
Some background facts. The husband was born in 1960. He is now 60 years of age. The wife was born in 1965. She is now 55 years of age. They commenced their relationship in 2008 when she was 43 and he was 48. She had a child to an earlier relationship, Ms F, who was born in 2002. Ms F lived with her. The parties married in 2009. They separated on a final basis in February 2018. Their relationship then was a 10 year relationship with a marriage of eight and a half years or a little bit less than. During the relationship they fostered a child who had disabilities, a child, X, who is now 13. She is not currently in the wife’s care, although the wife continues to see that X be returned to her care.
The primary issues in dispute between the parties include some variance in what they say the pool should be, and the evidence about the pool that I would be able to use to make findings is not particularly helpful. The other difference is with respect to the property adjustment proportion that should be made. The wife says that her initial contributions, which included having available the sale proceeds of a house that she had owned of $185,000, should be taken to be a significant contribution by her at the commencement of this medium length marriage, and that that can be traced through to where the parties currently are in their non-superannuant assets and that she should receive an adjustment in her favour because of that.
The husband denies that the adjustment should be as high as what the wife seems to be asserting, and the parties then also disagree as to what their respective future needs might be, both of them have issues with respect to their health, so those are the main issues in contention before me.
I will turn, firstly, to the matter of the pool. The sources of information, apart from any oral evidence for the pool, are from the applicant husband’s case outline filed 17 July 2020 and from the wife’s affidavit filed 22 June 2020, and for her in particular it is paragraph 85.
The parties currently have a house at B Street, Suburb C, a suburb in City G, which is valued at $310,000. That value is the subject of agreement. It has a mortgage over it of $230,069. The equity in the property, then, is something just under $80,000, something like $79,931.
The parties include in their pool a unit on the Region H which was purchased by the wife post-separation. The value of that is agreed to be $187,000. There is no mortgage on that property.
The husband has an interest in a property in the Country D with his new partner. He partnered with Ms J who is aged 41. She is a Country D woman. She lives in the Country D. They have been in a relationship at least since early this year and there is a contract to purchase land where a residence will ultimately be built. The parties ascribe a value, well, the husband does and the wife has no other source of knowledge of $100,000 on that property, but it has a mortgage over it of $91,719. I say a mortgage. It is being purchased in a particular manner and I do not know that a mortgage is the proper expression, but it seems to only have something in the order of $8281 worth of equity in that.
The husband also has a Country D bank account with $4187 in it.
In terms of chattels, the wife has a Motor Vehicle 1 that she says is worth $9000 and which he says is worth $9500. There is no evidence as to what the vehicle might be worth.
The husband includes that there is a car, which he calls a Ms Valcourt car, for $9500, which doing the best I can on the evidence seems to be the same vehicle, so I struck that through in the husband’s document.
The husband has a Motor Vehicle 2 which the wife says is worth $6000 and which the husband says is worth $3500. The vehicle is apparently a 1999 model which, on my maths, would make it a 20 year old vehicle, so without any other evidence, $3500 probably sounds about right.
The husband includes a car which he calls Ms F car for $14,093.90, which the wife does not include in her list of assets. Ms F is the daughter of the wife who is now aged 18, having been born in 2002. And doing the best I can with understanding the evidence, that vehicle may have been purchased using moneys which had been effectively saved by the child support which was paid reliably by Ms F’s father during the entirety of the relationship, it would seem, but was never actually applied to Ms F’s support but was rather used as a savings or in trust for the child. The wife says that she owes Ms F $4000 for the purchase of her car, but there is no evidence of that.
There are then a couple of caravans. The husband lives in a caravan. The wife says that the husband has a K Caravan. On my reading of the material, I had ascribed the L Caravan to the husband and the K caravan to the wife, so I am really not very clear about that. In any event, the wife tells me through her material through the same affidavit that in February this year she sold a Motor Vehicle 3 and a caravan for a combined total of $75,500. That was the month after she purchased the unit on the Region H for $187,000 and she says Ms F loaned her the sum of $13,500 to assist with that purchase. Ms F is the 18 year old. Her access to $13,500 seems to me more probable than not to have come from this money which was the child support payments all those years which were not applied to Ms F’s actual support as a child. So the wife does not otherwise add into the pool as an addback the $75,500 that she had in February this year, noting that the trial happened in July 2020, so it seems to me having two caravans each in the order of 26,800 or 30,000 dollars is probably proper.
The husband says there is a trailer which is worth $3400. The wife does not speak to a trailer. I cannot in the material work out in any sensible way who actually has the trailer, but there seems to have been trailers purchased at least historically and there seems to have been, doing the best I can the note in the material that the wife might have a trailer, so I have put that on her side of the ledger. Again, this is just doing the best I can with the evidence which I have before me, because none of this was gone through with any particularity in the trial.
There is a shipping container which was sold by the wife for $3200 which the husband includes but which the wife does not, and it seems to me I also have this $75,000 that has not been added back into the pool either, so, at the very least, the $3200 should go in.
The husband says that he has bank accounts in Australia with $5606 in them, and it seems to me that is the best evidence that I have about the money in the husband’s bank accounts. I have already mentioned that he has money in a Country D bank account.
The wife includes in her list at page 14 of 15 of the affidavit that I have referred to, that she should be said to have household contents of $5000 and that the husband should be said to be having household contents of $20,000. The husband lives in a caravan on somebody else’s property. The notion that he has $20,000 worth of contents seems unlikely. The wife says that she has $5000 worth of contents. She lives in an actual property, even if it is modest. I do not intend to include either of their home personal chattels. There is no reason for me to have any sense that either of those values have any basis in reality.
The wife says that the husband has a trailer which is worth $3700. I have it ascribed to the wife. I do not really much mind who has the trailer, because, again, as I note, the wife has not accounted for moneys that she has had available to her since earlier this year, noting that her legal representation was provided by Legal Aid Queensland.
The wife has a HECS debt, which everyone acknowledges, of $4157.
The husband has a Mastercard debt of $1601.
There is superannuation. The wife has superannuation of $10,460. The husband has superannuation in two separate funds. They are both E Super Funds, but he has two different accounts. One is at $254,697 and the other is at $42,302. Those figures are updates from what is contained in his case outline or in the wife’s affidavit.
Doing the best I can, then, and using the husband’s outline of case document as the primary source, I have kept the property at B Street, Suburb C, the Region H unit and the Country D property at the amounts that are stated. I have formed the view that the Motor Vehicle 1 and the Ms Valcourt car are the same item, and I have crossed through one of those. I have said that the Motor Vehicle 2 is with the husband I have taken the value of $3500, noting it is a 1999 vehicle. I have included Ms F’s car in the pool. I have included the K caravan and the L caravan and for no reason in particular, I have ascribed the K to the wife and the L to the husband. I have said the trailer is with the wife. Maybe it is, maybe it is not. I have included the shipping container sold by the wife at $3200. I have included the husband’s Australian bank accounts at the figure he provides and the Country D bank account at the figure he provides.
The superannuation is for the wife, as she has stated. The superannuation for the husband are the higher amounts that I have just read into the record.
Those total assets, then, amount to $1,004,746.38.
The liabilities are, I have found, as set out in the husband’s case outline document, the mortgage for B Street, Suburb C at $230,069, the HECS debt for the wife of $4157, the debt in the Country D of $91,719, the husband’s Mastercard of $1601.11. The total liabilities, then, I have included at $327,546.11.
That makes a pool of $677,200.27.
Of that pool, $307,459 is superannuation. The balance is non-superannuant assets.
Within the pool, one other issue which was the subject of a little bit of evidence was whether the husband has a financial resource available to him arising from whatever his parents’ estate might be when they die. His parents are not dead and there is no basis for me to be including any financial resource arising from whatever their circumstance might be and however they choose to attend to their estate matters. His parents, as I would understand it, are in their 80s.
Turning, then, to the issue of contributions, the parties commenced their relationship in 2008 and married in 2009. At the commencement of their relationship, the wife had sold a piece of real property and from that sale had an amount of $180,000 or $185,000. Her affidavit gives two different figures. She says that she had a bank account of $22,420. She says she had a Motor Vehicle 4 that was worth, apparently, $10,000. She says she had household contents of about $20,000, she had superannuation of $415, a trailer worth $600 and an 81 per cent share of a caravan that she says is worth $4500, and a HECS debt of $3800.The le proceeds of that property at Town P in Victoria, therefore, was either about $180,000 or $185,000. The fact she gives two different figures in her affidavit material when she is wanting to say that she provided greater disclosure than the husband did, does not really give me much comfort. There is no reason for me to think that a Motor Vehicle 4 was worth $10,000 in 2008. Household contents, of course, is never worth what anybody has actually paid for it. There is no evidence that she had assets which, if sold, would make anything like $20,000. She had a motor vehicle and caravan and a trailer. None of those are worth much. I am satisfied, though, that she did have the net sale proceeds of the property at Town P in Victoria, and I will ascribe that at the value of $180,000.
The husband had some superannuation, but not much more. He had an interest in a piece of real property which, when it sold, did not make much, and it would seem that moneys from there were used for legal fees for his earlier property adjustment from an earlier partner. So he had superannuation and he had household contents which the wife says at that point in time should only be ascribed the value of $1000, which indicates the kind of made-up evidence I have before me that he had an interest in a caravan worth $1000, but she does ascribe that he had, in terms of superannuation, $64,000 in one super fund and $21,000 in another super fund, remembering, of course, at that time she was 43 and he was 48 and she had a six year old child to an earlier relationship.
During the relationship, the parties bought and sold caravans and trailers and have seemed to have purchased and then subsequently sold numerous versions of those items, along with numerous versions of motor vehicles.

They have also bought and sold real property. Doing the best I can, they purchased a property in 2010 somewhere in Western Australia, at Suburb O. The wife says at paragraph 25 of her affidavit that the purchase price was approximately $355,000. She says she estimates that they loaned approximately 90,000, I think she means borrowed $90,000 through Commonwealth Bank and the balance of the purchase price came, she says, from her savings. If they only borrowed $90,000 and the purchase price was $355,000 that means they applied about $265,000 to the purchase price. This is in 2010, less than a year after they had been married and when they had been together for two years. If she had $180,000 from the sale of her earlier property, the fact that there was $265,000 applied means that something in the order of $85,000 came from funds other than her earlier savings, so it is not simply the case that that was purchased with her savings only. There is certainly no reason for me to understand in her affidavit material that she had another $85,000 or $80,000 or anything of that kind of substance which was able to be applied, so it would seem to have come from financial contributions that had happened during the relationship. Anyway, that property was purchased.
In 2013 another property in Western Australia at Suburb N was purchased for, apparently, $395,000. After that was purchased, that property that I have just spoken about at Suburb O was sold and those funds were applied to the Suburb N mortgage. The wife’s material is silent as to when Suburb N was sold. The husband says that when Suburb N was sold a profit was made but he does not tell me at what level of profit was made, so it would seem that once we get to that point what we have got is money from the wife being applied to the purchased property at Suburb O but also moneys which have been saved by the parties during the relationship also being included in that purchase price. So about two-thirds of the moneys which were used for the purchase came from the wife and another third came, it would seem, from the husband and wife’s contributions. When that was sold you would see that that money then went into the Suburb N property and when Suburb N was sold there was a profit, but I do not know what level.
The thing that next happened in time, it would seem, is that they purchased an investment property in B Street, Suburb C in City G, which is the real property which exists till today. That was purchased in 2014. The purchase price was apparently $440,000. The wife says that the balance of their joint savings was used within that purchase price of $150,000, so $150,000 was applied to the purchase of B Street, Suburb C. That money was then, it would seem, following the trail, the money which had most likely come out of the Suburb N property sale.
The property at B Street, Suburb C has subsequently reduced in value, so it was purchased for $440,000 and the value which is being ascribed in the trial and at judgment is $310,000. It has lost $130,000 from what they purchased it to what it is worth now. The wife asserts in her affidavit that the husband has performed unapproved works that have provided no financial benefit to the property. She says he has devalued the property by doing that. Firstly, the sentence does not make a lot of sense that he has devalued the property by carrying out unapproved works that have provided no financial benefit to the property. There is no evidence that any works performed by the husband are the reason for the diminution in value. There is no evidence before me as to how the diminution in value came to pass. It is simply the parties’ joint reality that the property which they purchased for $440,000 only in 2014, halfway through their relationship, bearing in mind their marriage went for eight and a half years, so at the halfway mark they purchased a property which has now lost them $130,000.
Then the next piece of purchase of property, as I understand the chronology, is they purchased a property in Town M, Victoria, in July 2016 for $575,000. As I would understand that purchase, it was achieved by the husband’s father loaning them $82,000. That loan was subsequently repaid. And when Town M was sold in 2017 the parties received about $130,000 from the sale proceeds, apparently, although, as I would understand it, the property was sold for $580,000 and was purchased for $575,000, and so it only went up $5000 during the time that they owned it but they had managed to accrue $130,000 worth of equity in the property. In part, that comes from the $82,000 which had been loaned by the father of the husband, which they repaid, and then they managed to increase their equity through further payments, it would seem, in the order of about $48,000. So the husband’s father’s contribution there of the capacity to purchase that property and to allow them, then, the opportunity to purchase it, for them to be able to pay him back and pay on further moneys is an indirect financial contribution by the husband which needs to be acknowledged.
So as we look at the trail of the money used for the purchase of real property and, to be clear, the reason that I am troubling myself with this exercise, is because on behalf of the wife it is argued that her contribution at the initial stage of the cash injection of some $180,000 from the sale proceeds of her property in Town P in Victoria should be seen as the seeding capital for where the parties are now. It is clear that that is not actually the case. In the history of their buying and selling property they used the wife’s money and that got them to the point where they purchased B Street, Suburb C, and the B Street, Suburb C property has subsequently lost them $130,000.
And their $130,000 which they made from the sale of the property at Town M, in fact, comes from their being able to purchase that because of the assistance of the husband’s father and then them being able to make payments on the mortgage such that when that property was sold for only $5000 more than what it was purchased for within that short period, that money was then able to be put into savings. So the money, then, went into an investment account in December 2017 and the parties, of course, had then separated in February 2018.
After final separation the wife withdrew moneys which she then used to purchase the unit on the Region H for $187,000 but she withdrew something in the order of $200,000, but she said it was with the permission of the husband and the husband denies that. I do not need to make any findings about that, because the property exists.
The parties otherwise during the marriage, the husband worked. He is a tradesman. He has had a number of different employment options or employment situations over the years, and he appears to be a person who sometimes struggles at work with respect to his relationships with his co-workers and he seems to leave employment or be asked to leave employment, perhaps, from time to time. Certainly at the time that he did his financial statement in July last year he had only recently commenced employment somewhere, and as I understood the evidence at trial he was in between jobs. His Counsel used the expression that the husband was perhaps a bit prickly in his personality, but he seemed to be making money which was contributed to the parties’ household and there is no suggestion otherwise.
The wife was the primary caregiver to her child, Ms F, and she became the primary foster carer for X when X moved into their care. For X she received moneys from the government with respect to foster care placement fees, however they might be described. Plainly, the purpose of being paid to be a foster carer is to cover the costs of the foster child plus to provide some small level of remuneration for members of the community who are willing to take on that difficult and challenging task. The moneys which were provided to her for her foster care placement fees were applied to household expenses. X, as I have said, has a number of disabilities. She is non-verbal, she has autism and she has high needs, and it is clear from the wife’s material that someone of X’s behaviours are very difficult. The wife speaks about at one point in time X destroying the inside of a caravan that they had purchased and that she and X had been travelling in over to Western Australia.
During the marriage the wife was receiving child support payments for her daughter, Ms F, but those moneys, it would seem, were being saved in some form of bank account apparently under the auspices of being somehow in trust for Ms F, so notwithstanding the moneys being paid Ms F’s actual support was being taken care of by the husband and the wife.
During their relationship, it seems to me, setting aside for one moment the issue of the wife’s initial contribution of the cash injection of about $180,000 and putting aside the husband’s indirect financial contribution of his father loaning the money which they used to purchase the property at Town M in Victoria, putting those matters aside I am satisfied that other than that the parties’ contributions during this medium length marriage were ostensibly equal. They each contributed to the best of their capacity in the way in which they were doing through agreement or acquiescence as husband and wife.
They both had health difficulties which impacted upon them at times, and when I talk about section 75(2) factors those health difficulties will be spoken about a little bit more.
So aside from the two financial issues, I am satisfied that the parties’ contributions up until today’s date should be considered to be ostensibly equal. In terms of factoring in those other matters the wife did have $180,000 or thereabouts that she brought into the relationship in 2008, and the relationship ended 10 years later.
It is not the case that this is a mathematical exercise and it is not the case that you simply get to take out of the marriage the figure that you brought into the marriage. During the marriage the parties made decisions however they came to happen, but the decisions were put into effect with the purchases of real property, caravans, cars, trailers and the like. In terms of whether this $180,000 was seeding capital, it certainly was not capital which came out the other end unscathed, that moneys can be traced through to the purchase of B Street, Suburb C. B Street, Suburb C now has equity in the order of about $80,000, so $180,000 has been reduced.
The Town M property came into existence not as a result of that seeding capital but by a different means altogether, the parties’ capacity to borrow money from a bank and the parties’ capacity to borrow money from the husband’s father. That is an indirect financial contribution by him.
So those are both significant contributions, one by the wife with the money at the outset which has allowed B Street, Suburb C to be in the pool with about $80,000 worth of equity, and, of course, I say $80,000 worth of equity. The parties both agree that that property needs to be sold and so its equity will be determined by the open market.
The other moneys which were then able to be created into savings at close to final separation which the wife was then able to access and use to purchase her property unencumbered on the Region H, those moneys seemed to have come from the Town M property and that was a contribution by the husband by his father loaning them the money, and then the contributions together of being able to pay off the mortgage to the extent that they did. There is no evidence before me of any other cash injection by the parties from the wife’s, what we are calling seeding capital into the Town M property.
So it seems to me they both made contributions there. The wife’s was made 10 years from the end of the relationship. The husband’s was made halfway through the marriage. The wife’s is a larger amount and would therefore be worthy of some weighting in her favour. As I have said, this is not a mathematical exercise and I am doing the best I can with the evidence that I have, which in some ways is cursory and where I, of course, have done the best I can with finding what the pool actually is.
Turning to the parties’ future needs, the husband is now 60. He is transitioning to retirement with his superannuation. He has some capacity to work, although he is not somebody who is good at keeping jobs. He is a tradesman and a tradesman is, of course, a form of manual labour, and I would have every expectation that it is not something that he will be able to keep doing until he is 70.
The wife has health issues. She has been diagnosed with malignant melanomas and she needs to have regular skin checks, and she has had a back injury historically that she received compensation for in the mid-1990s. She is said to have anxiety, depression and a post-traumatic stress disorder which was apparently diagnosed in April 2020. I do not have any medical evidence about these matters, but they seem to be conceded. She says that she is in some need of dental work.
She has a qualifications that she has achieved. She has previously worked in a role as a public servant. She has made whatever the proper application is to try and have X returned to her care and if X does return to her care she will receive the moneys, about which I spoke earlier, for a foster care placement being financially supported by government.
The husband also has health issues. He has been diagnosed with anxiety, depression and post-traumatic stress disorder as well. He has had previous suicide attempts.
Both parties, therefore, have some barriers to be able to support themselves in anything other than a very modest way into the future.
Ms F, who is the child of the wife but not of the husband’s, is now 18, and so although she may have a moral obligation to support Ms F her legal duty has concluded. She says that Ms F needs to have some back surgery herself shortly and the wife would see herself as being Ms F’s support at that time.
The husband, because of his age, is able to use his superannuation as a transition to retirement, and so that is available to him. The wife is younger than the husband and so has a longer working life available to her, and she has the skills which she would be able to use, it seems to me, as well as the husband might be able to use his skills. He is older and works in a form of manual labour, and so his working life is shorter than hers.
The parties were in their relationship for 10 years and the wife was 43 when the relationship commenced. Her child was then a six year old.
In terms of whether this relationship has been the basis upon which the wife has earnt less money as a result of the arrangements in the relationship, it is a bit hard to tell. She came into the relationship with a six year old child and so her capacity with respect to working outside the home had limitations which are from an earlier relationship, not this relationship, and she managed to find a way of bringing money into the household by the fostering of X, so she was able to contribute financially during this relationship.
So looking at all of those factors, both of them have some difficulties with being able to support themselves into the future with anything other than in a modest way. The husband has re-partnered with somebody who lives in the Country D and he has got a plan for the building of a real property somewhere in a regional area of the Country D. That would seem to be potentially quite a modest property. The wife has rehoused herself in a modest property on the Region H. Apparently, there are some weekly fees attached to that property which she will need to continue to be responsible for but the property is otherwise unencumbered, so the wife has provided for herself by way of housing. Until the husband moves to the Country D, it would seem that at least at the present time his housing is a caravan on somebody else’s property.
The parties then, looking at what adjustments should be made between them, it is very difficult to actually put a percentage on this matter. I am satisfied the wife should receive more than the husband does from the pool, having brought in that larger sum at the beginning of this medium length marriage. I am satisfied that there should be a super split to the wife.
The wife has chosen to have her assets in the form of the unit that she lives in, having applied cash that the parties had to that purpose. There is no great pool of cash otherwise available to the parties. They have agreed that the B Street, Suburb C property should be sold. What the wife then seeks is that from the sale of the property at B Street, Suburb C that she receive every cent of $80,000, so her order 4 provides that:
The husband pay the wife the sum of $25,000 and should the proceeds of sale paid to the wife be less than $80,000, the husband will also pay to the wife the difference between that sum and $80,000 within 30 days.
So she seeks the sale proceeds of B Street, Suburb C and she seeks $25,000, but if B Street, Suburb C does not make as much as $80,000 she seeks up to $80,000 as well. There is no evidence before me that the husband has some capacity to pay her any cash above and beyond what the sale proceeds of B Street, Suburb C provides. I do not know where the wife thinks that money would come from, but it does not exist. If she wanted something else she could have asked for some piece of property to be transferred to her, but that is not what she has sought. She has sought actual cash and it does not exist. The wife also seeks a super split of $150,000 to her from the husband’s superannuation.
He seeks that he provide to her $45,000 by way of a super split, and he says that she should simply have the net sale proceeds after B Street, Suburb C has settled and that she should have that in its entirety.
On my maths on the pool that I have established for the wife to be paid $80,000 regardless of what B Street, Suburb C sells for plus $150,000 by way of super split, to my maths that came out to be about 71.5 per cent of the pool, and that’s a long way off the mark.
The husband’s proposal comes in at around 60 per cent of the pool to the wife, and doing the best I can and acknowledging that the husband says that that would be, in counsel’s submission, a generous offer, it seems to me that 60 per cent is about as much of the pool as I think should be adjusted to the wife.
That 60 per cent takes into account her contribution initially from the $180,000.
There really is no basis for much of an adjustment to either of them, the 75(2) factors, they are both worthy of an adjustment and her five per cent to her is equal to his five per cent to him, so that really does not get us to either of them being receiving something further or by way of 75(2) factors.
And so a differential between the two of them of 20 per cent if the husband is to receive 40 per cent of the pool and she receives 60 per cent of the pool, that differentiation of some 20 per cent of the pool to the wife more than speaks to the contribution that she made at the outset of this medium length relationship.
Turning to some other matters to do with the orders that should be made the husband says that the parties should use two real estate agents to market the property, one being nominated by the husband and one being nominated by the wife, but he says that the wife should get to set the listing price, that both of them should pay for advertising, that the wife gets to have the final decision as to the sale price and the net proceeds go to her. Now, that seems to me to be a way which provides the wife the opportunity to maximise what the net sale proceeds might be. They both say that it if is not sold within 60 days it should be listed for auction, so that seems agreed, so I will use orders 1, 2, 3, 4, 5 of the husband’s case outline with respect to the sale of the B Street, Suburb C property and the net sale proceeds going to the wife. Whatever that amount is, the wife will get. If it is something less than 80,000 and that means that the maths of what the percentage adjustment is have changed, I do not consider that to be fatal to my reasons or my orders.

She will get what she gets out of the sale of the B Street, Suburb C property. The husband will not have to top it up. They both will take, effectively, the fact of it receiving less if that is what comes to pass. There is no evidence that the husband has cash available to be paying her other moneys.
In terms of the superannuation split, I am satisfied that $45,000 which, on my maths, equates to an overall split of 60/40 to the wife, is an appropriate amount. I am reasonably confident, and I was told at trial, that procedural fairness has not been afforded to the E Super Fund trustee and that needs to be done.
Using, then, the husband’s case outline document, orders 6, 7, 8 and 9 provide for them each to otherwise keep what they have got and to indemnify the other. Those orders should be made. Orders 10 and 11 go to superannuation split. That order needs to be made once procedural fairness has been afforded to the superannuation trustee. Orders 12 and 13 are machinery orders with respect to the signing of documents and the registrar will be able to sign.
Turning to all of those things, then, I had earlier satisfied myself that it was just and equitable to adjust the parties’ property between the two of them because they have separated on a final basis and they both have support from a final property adjustment order.
I am satisfied that doing the best I can on the evidence that I have before me, that a split between the husband and the wife by way of property adjustment wherein the wife receives something very much in the order of 60 per cent of the pool and the husband receives something in the order of 40 per cent of the pool, is the best that I can do with the evidence that I have and it is an outcome which I am satisfied is just and equitable and appropriate in the circumstances of their case. For the wife to receive any more would be to be inequitable.
Because of the way the wife has arranged her own affairs post-separation with taking money out of the bank account and applying it to property for herself, she has effectively created a circumstance where her superannuation outcome is less and her non-superannuation outcome is more. She has chosen that path, it seems to me, for herself, and it is the reality of where the parties have brought themselves to. I do not consider it would be appropriate for her to not only have the unit that she has accommodated herself in on the Region H and for her to receive as much of the super as she sought, that outcome would not have been just and equitable.
So doing the best I can, I make orders as per those set out in the case outline by the applicant, orders 1 through to 13, because I do not yet have superannuation procedural fairness. It would be my intention to adjourn the matter for five or six weeks and for the orders to issue in their entirety upon superannuation procedural fairness being demonstrated to me. So I adjourn the matter to 8 September at 11.30. If the procedural fairness information comes through before then, I will make the final orders in chambers as I have now read into the record, but the orders will be as I have stated.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Demack

Associate:

Date: 23 September 2020

[2020] FCCA 2665

31 July 2020

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Injunction

Statutory Construction