Benford and Benford
[2012] FMCAfam 8
•24 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BENFORD & BENFORD | [2012] FMCAfam 8 |
| FAMILY LAW – Property – disputed valuation of dogs – evaluation of contributions – sub-section 75(2) factors – just and equitable. |
| California Penal Code, s.491 Family Law Act 1975 (Cth), ss.75, 79, 90MC and 90MT |
| Bigelow & Reuter [2006] FamCA 1455 Clauson (1995) FLC 92-595 C v C (2005) FLC 93-220 Commonwealth v. Milledge (1953) 90 CLR 157 Ferraro (1993) FLC 92-335 Hickey (2003) FLC 93-143 Lee Steere (1985) FLC 91-626 Lenehan and Lenehan (1987) FLC 91-814 Mallet v Mallet (1984) FLC 91-507 OSF and OJK (2004) FLC 93-191 Parshen & Parshen (1996) FLC 92-720 Rolfe and Rolfe (1979) FLC 90-62 Russell v Russell (1999) FLC 92-877 Smith and Smith (1991) FLC 92-261 |
| Applicant: | MR BENFORD |
| Respondent: | MS BENFORD |
| File Number: | LNC 592 of 2009 |
| Judgment of: | Roberts FM |
| Hearing dates: | 19, 20 and 21 July 2011 |
| Date of Last Submission: | 21 July 2011 |
| Delivered at: | Launceston |
| Delivered on: | 24 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P McVeity |
| Solicitors for the Applicant: | Grant Tucker |
| Counsel for the Respondent: | Mr D Lewis with Ms A Brunacci |
| Solicitors for the Respondent: | Rae & Partners, Lawyers |
ORDERS
That within 30 days MR BENFORD (“the husband”) must transfer to MS BENFORD (“the wife”) all his right title and interest in the property situate and known as Property S in Tasmania and more particularly described in Certificate of Title Volume [omitted] (“the former matrimonial home”).
That contemporaneously with the transfer of the former matrimonial home referred to in Order No. 1 hereof the wife must pay to the husband the sum of one hundred and thirty one thousand dollars ($131,000).
That the wife is solely responsible for the payment of any liabilities and outgoings in relation to the former matrimonial home and she is to indemnify the husband in relation to any such liabilities and outgoings.
That the husband retain all of the following free from any further claim by the wife:
(a)any funds in any account in his name or control;
(b)a Holden Premier motor vehicle Registration Number [omitted];
(c)furniture and domestic chattels formerly used by the parties jointly but now in his possession or control; and
(d)any interest that he may have in any superannuation fund.
That the wife retain all of the following free from any further claim by the husband:
(a)any funds in any account in her name or control;
(b)a Toyota Landcruiser motor vehicle Registered Number [omitted];
(c)furniture and domestic chattels formerly used by the parties jointly but now in her possession or control;
(d)any dogs or other animals currently in her possession and control;
(e)dog trailers Registered Numbers [omitted];
(f)all [business omitted] equipment; and
(g)any interest that she may have in any superannuation fund.
That each of the parties is to do all such things and complete all transfer documentation that may be reasonably required to give effect to Orders No. 4 and 5 hereof.
That each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders and be solely liable for and indemnify the other against any debt or liability incurred in that party’s sole name.
That all extant applications other than any applications for costs are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Benford & Benford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 592 of 2009
| MR BENFORD |
Applicant
And
| MS BENFORD |
Respondent
REASONS FOR JUDGMENT
Section 491 of the California Penal Code provides that dogs “are personal property, and their value is to be ascertained in the same manner as the value of other property”. While that legislation clearly has no direct application in this matter, I mention that section simply as a reminder that in law dogs are generally considered to be “property”. Thus, when considering matters under Parts VIII and VIIIAB of the Family Law Act 1975 (“the Act”), normal property valuation principles should also be applied to dogs.
The parties in this matter were unable to agree upon the value that I should ascribe to a number of dogs and, at times, their dispute about the value of those dogs appeared to acquire an importance greater than the other issues that I have to decide. However, I will comment further about the value of their dogs below.
Applications
The applicant is MR BENFORD (“the husband”) and the respondent is MS BENFORD (“the wife”).
When he filed his Initiating Application in September 2009 the husband was seeking orders that:
·the wife transfer her interest to him in the property at Property S in Tasmania (“the former matrimonial home”) and certain chattels;
·he transfer his interest in certain chattels and the dogs to the wife; and
·he pay to the wife the sum of $228,350.
He was not seeking any orders in relation to the parties’ superannuation interests. However, a case outline filed on his behalf in August 2010 indicated that he was then seeking an order that “there be a superannuation split of equality between the parties”.
In her Response filed in November 2009, the wife simply sought an adjustment of “the assets and financial resources of the parties” on the basis of 75% to her and 25% to the husband.
However, the parties’ positions had changed by the end of the hearing, as articulated by their counsel in closing submissions. By that time, the husband was seeking orders:
(a)that he retain the former matrimonial home;
(b)that he pay the wife $174,500 (in round figures);
(c)that the dogs be divided between them by the parties each choosing one, and then continuing to choose one each on an alternating basis until the supply of dogs has been exhausted; and
(d)that there be a superannuation splitting order that would equalise a parties’ superannuation interests.
As an alternative, if the Court considered that the wife should retain the former matrimonial home, the husband proposed that she should pay him $305,500 (in round figures).
The sums referred to in paragraphs 7(b) and 8 above were based upon a division of 60% of the net value of the property to him and 40% to the wife (excluding superannuation entitlements).
The wife’s proposal at the end of the hearing was that she should retain the former matrimonial home and all chattels in her possession (including the dogs) and pay the husband a figure not specified with any precision that would result in her receiving 70% and the husband 30% of the net value of the parties’ property and superannuation interests. However, her “financial resource” in the form of an interest in her late mother’s estate worth $236,722 (“the wife’s inheritance”) was not to be included in that 70/30 division.
It appeared to me that the husband did not consider that the wife’s inheritance should be included in the calculations referred to in paragraphs 7(b) and 8 above, other than as a financial resource for the purposes of section 75(2) of the Act.
Brief background
Where I refer to any fact in these Reasons, it should be regarded as a finding of fact unless a contrary intention is clear from the context.
The husband is aged 57 years and the wife is aged 50 years. They started living together in late 1984 and they married in June 1985. The parties separated in April 2009, so their relationship lasted more than 24 years, and throughout that time, they lived in the former matrimonial home.
They have two children aged 19 and 12 years.[1] Both children continue to reside with the wife in the former matrimonial home and the wife is in receipt of a carer’s pension entitlements from Centrelink in relation to both children.[2]
[1] I will refer to them as “the adult child” and “the younger child”.
[2] I will refer to this more below.
During the marriage the parties were both involved in breeding pedigree dogs and showing them. However, it appears to be common ground that the wife was more involved than the husband.
For a time the wife conducted a [omitted] business in order to earn some income. I shall refer to this further below.
In the early stages of these proceedings both parties were seeking orders in relation to the children. However, that part of the proceedings was finalised on 18 February 2011 by consent orders which provided for the younger child to live with the wife and spend such time with the husband “as agreed between the parties”. No orders were made in relation to the adult child, because he had already attained the age of 18 years.
At the time of the hearing neither child was spending any time with the husband.
Relevant law
Section 79 of the Act sets out the matters that the court must take into account when considering what orders should be made for the alteration of the property interests of parties. They include:
a)the financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b)the contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
c)the effect of any proposed order upon the earning capacity of either party; and
d)the matters referred to in sub-section 75(2) as far as they are relevant.
The general approach to the determination of a property settlement application has been well established by authority.[3] It is essentially a multi-step process. The first step is to identify and ascertain the values of the property, liabilities and financial resources of the parties (generally at the time of the hearing). The second step is to evaluate the contributions made by the parties as defined in sub-section 79(4) of the Act and the third step is to consider those matters contained in sub-section 75(2) that are relevant.
[3] See Lee Steere (1985) FLC 91-626; Ferraro (1993) FLC 92-335; Clauson (1995) FLC 92-595, Hickey (2003) FLC 93-143 and C v C (2005) FLC 93-220
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so.[4] It is the justice and equity of the actual orders that the court must consider and this has sometimes been referred to as “the fourth step”.[5] In Russell v Russell, the Full court said:
Furthermore, it must be remembered in this regard that under s79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets. Indeed we take the opportunity to emphasise that in what his Honour has termed ''the fourth stage'', that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered. [6]
[4] See Sub-section 79(2)
[5] See Hickey (2003) FLC 93-143 and Russell v Russell (1999) FLC 92-877
[6] (1999) FLC 92-877 at page 86,439
However, I agree with Federal Magistrate Walters that “the testing of any proposed orders by reference to section 79(2) is not a fourth substantive step (properly so called) in the property settlement exercise, and there is no fourth step in that sense.”[7]
[7] OSF and OJK (2004) FLC 93-191 at paragraph 16
In the same decision (OSF and OJK) he went on to say:
The problem with considering the application of section 79(2) as a stand alone requirement or consideration is that it is impossible to determine what factors may direct the court in its consideration of what may or may not be a just and equitable result in proceedings. Nygh J, in early cases, referred to concepts such as “palm tree justice” or “a soup kitchen approach” in relation to subjects such as these. It is impossible to look at the question of whether an order or a result is “just and equitable” without measuring or assessing that consideration by some yardstick. The approach set out in section 79 requires that the court use the considerations in section 79(4) as the yardstick, and not other (wholly undisclosed) considerations.[8]
[8] Paragraph 18
Since the end of 2002 courts have been required to treat any superannuation interest as “property” for the purposes of property settlements between parties to a marriage and in appropriate cases courts may “split” superannuation interests. [9]
[9] See sections 90MC and 90MT of the Act
The asset pool
I am pleased to say that by the end of the hearing, the parties’ counsel were able to provide me with a list of assets and liabilities with agreed values for everything, apart from the disputed value of the dogs.
The agreed non-superannuation assets are as follows:
Husband’s bank accounts $10,674 Husband’s chattels $460 Former matrimonial home $480,000 Wife’s bank accounts $400 Wife’s motor vehicle $30,600 Wife’s chattels (excluding the dogs) $27,875 Total $550,009
The parties agree that the liabilities, for which the wife is solely liable, total $13,395.
The parties agreed superannuation entitlements are:
Husband’s [A] Super $152,372 Wife’s [A] Super $4,830 Total $157,202
The parties also agree that the wife has a financial resource of $236,722 available to her from her late mother’s estate.
The parties appear to agree that the husband is entitled to 8.66 weeks long service leave, but I do not consider that to be either property or a financial resource that I should take into account. Although the husband conceded that he could cash in his long service leave if he wanted to, and that he had in fact cashed some in 18 years previously, he also said that he had taken some as leave 8 or 9 years previously. Because I have no evidence that the husband intends to cash in his long service leave entitlement, I am of the view that I should simply treat it as an entitlement to be paid while on leave at some stage in the future. Clearly, if he elects to take his entitlement as leave rather than cash, it will not add anything to the property pool.
As stated above, the parties are in dispute over the value of a number of dogs in the wife’s possession. As I understand matters, the dogs to which I need to attribute value are nine [breed omitted – [A]].[10] Although there is also a [breed omitted - [B]] and a [breed omitted – [C]], I accept the following:
a)The wife’s evidence is that the [B] belongs to the parties’ adult child.[11] In any event, even if that is not the case, I received absolutely no guidance on how to value a [B] and I therefore also conclude that the [B] has no market value; and
b)The [C] was “inherited” by the wife when her mother died and the husband makes no claim on that dog.
[10] See Annexures “J” and “K” to the wife’s trial affidavit filed 18 May 2011. It also appears from the wife’s evidence that there were fourteen [A]s at separation, but five have since died.
[11] In this regard, the husband did not appear to dispute what the wife said in paragraph 64 of her trial affidavit.
The husband says the [A] are worth $20,000, whereas the wife says they are worth $3,000. I am not entitled to simply average their opinions and say that they are worth $11,500. It is my responsibility to determine the issue on the whole of the material before me.[12] Unfortunately, I do not have any expert opinions to assist me. However, I accept that both parties made efforts to have the dogs independently valued, but both were unsuccessful.
[12] See Lenehan and Lenehan (1987) FLC 91-814, in which Commonwealth v. Milledge (1953) 90 CLR 157 at p. 160 was applied.
In his affidavit filed 3 August 2010 the husband had said:
…I have no idea where she is currently showing dogs and her level of activity in that area. However, at separation there were 13 [A] dogs …… at the house. Those dogs are fairly expensive in the sense that we paid $20,000.00 for two of them approximately 4-5 years ago.
However, when cross-examined about that, he clearly conceded that two dogs had not cost $20,000, but rather they had cost $7,000 or $8,000 each. He also conceded that:
·[A]s have a relatively short life expectancy of approximately eight years;
·breeding [A]s is very expensive; and
·when they were together, he and the wife had sometimes given away the older [A]s, but at other times they had had required a small contribution of approximately $100 for “a bit of peace of mind” that “if (potential owners) were prepared to pay for it, they were prepared to look after it.”[13]
[13] Transcript: 20 July 2011 at page 31
The husband admitted during his cross-examination that some of the [A]s could be too old for breeding or showing purposes. When it was put to him that he did not know the current state of the dogs, he said:
No, I don't know their condition at the moment, no. I’m not privy to that information.[14]
[14] Transcript: 20 July 2011 at page 29
The wife’s evidence is that her last [A] puppy sales were in August 2007 (i.e. more that 2 years before separation). She received $1,500 each for four puppies. However, I accept her evidence that any income derived occasionally from the sale of puppies is more than offset by the expenses associated with whelping, and of keeping and maintaining the dogs generally.[15]
[15] See paragraphs 56 and 58 of the wife’s trial affidavit.
I also note that none of the [A]s in the wife’s possession are puppies, and I believe that I can take judicial notice of the fact that most dogs are purchased when they are puppies (whatever the variety).
“Fair market value” is usually defined as the highest price attainable in an open and unrestricted market between informed and prudent parties acting at arm’s length and under no compulsion to buy or sell. Unfortunately, I have been given no real evidence of what these particular nine [A]s would bring in such conditions. However, if I was to apply a sale price conceded by the husband at $100 each for “a bit of peace of mind” that “if (potential owners) were prepared to pay for it, they were prepared to look after it”, as set out in paragraph 34 above, that would make the total value of the [A]s only $900.
I note, however, that the wife says they are worth $3,000, which is an admission against her interests. Consequently, I will adopt $3,000 as the value of the dogs in question and that amount will be added to the asset pool when I calculate the parties’ entitlements.
Contributions
It is clear that at the start of their relationship and in its early stages, the husband made greater direct financial contributions than the wife. Although both parties were working, the husband had already purchased the former matrimonial home.
The husband had purchased the former matrimonial home before the parties met for approximately $65,000. In order to facilitate that purchase, he paid a deposit of approximately $35,000 from his accumulated savings and borrowed the required balance by way of a mortgage loan.
In 1988 in the husband’s mother died and he subsequently received an inheritance. The funds that he received enabled the parties to pay off the mortgage loan, purchase a Commodore SS motor vehicle and build a substantial shed at the former matrimonial home. The parties dispute exactly how much that substantial shed cost, but it is my view that not very much turns upon that.
The husband has worked for the same employer for more than 40 years. The wife worked as a [omitted] for the first seven years of marriage, but gave up her employment in 1992 in anticipation of the birth of the parties’ first child. Thereafter she was the principal homemaker and child-carer, and the husband was the principal breadwinner.
It is clear that the contributions “made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent”[16] should not merely be recognised in a token manner, but rather, they should be recognised in a substantial way.[17]
[16] Section 79(4)(c)
[17] See Rolfe and Rolfe (1979) FLC 90-62 and Mallet v Mallet (1984) FLC 91-507
As mentioned above, the wife conducted a [omitted] business for a time in order to earn some income. It appears from the evidence given in cross-examination by the wife that she would generally “earn” between $5,000 and $8,000 per annum from that enterprise. I find from the evidence given by the wife that those were gross receipts rather than an annual income. However, she was able to attain gross receipts between $18,000 and $20,000 in one year shortly prior to the parties’ separation, because she temporarily took over the business of another person while that person was sick.
I am satisfied that both parties contributed whatever they earned to the benefit of the family unit. In this regard, I note that their Honours Ellis, Finn and Purdy JJ said the following in Parshen & Parshen:
In our view, in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s79 that moneys howsoever received by a party during the course of the parties’ cohabitation, are used by that party for the benefit of the family unit. Such moneys, in those circumstances, thus constitute a financial contribution by the party who received the moneys. [18]
[18] (1996) FLC 92-720 at page 83,665
Certainly, the husband earned a greater income than the wife, but that was offset by her greater contributions as a homemaker and parent.
As so often happens in cases like this, much of the parties’ evidence related to the minutiae of the non-financial contributions that each of them made in relation to the improvement and general maintenance of their home. In view of what I say in the next two paragraphs, I do not really see a need to refer to any of that evidence.
In Bigelow & Reuter Kay J (sitting as the Full Court of the Family Court of Australia) said of a wife’s contributions:
What was the relevant finding is that the wife, whatever she was doing in the course of the relationship, was not able to earn money at the same rate that the husband was able to earn, but there is nothing to indicate that she was not pulling her weight in terms of effort and endeavour.[19]
[19] [2006] FamCA 1455 at paragraph 25
There is no evidence in this matter that the parties were not “pulling their weight in terms of effort and endeavour”, and I conclude that, apart from the husband’s greater direct financial contributions at the start of the relationship, their contributions during the relationship were otherwise equal.
However, it is clear that the wife has made greater contributions to the welfare of the family since the parties separated. In this regard, she has had the sole care of the children and, from what can be seen from my consideration of the sub-section 75(2) factors below, that has been a more onerous task than the norm. As a result, I conclude that the wife’s post-separation contributions as a homemaker and parent equal the husband’s greater direct financial contributions at the start of the relationship.
Consequently, I conclude that the parties contributions overall have been equal. However, I exclude the wife’s inheritance from that because:
·the husband can claim no contribution to that financial resource inherited by the wife post-separation;
·the wife’s mother made her relatively complex Will after the husband and the wife separated.
I propose to give weight to the wife’s inheritance in my consideration of the sub-section 75(2) factors, as was suggested by the husband’s counsel in his submissions.
Had this matter been determined on the basis of contributions alone, I would have divided the net property pool (inclusive of superannuation) equally between the parties. However, I must also consider the sub-section 75(2) factors.
The sub-section 75(2) factors
The husband is aged 57 years and the wife is aged 50 years.
The husband is employed full-time and earned $87,000 in the financial year ended 30 June 2010. He has been employed by the same employer for over 40 years, so it is safe to assume that he is well regarded by that employer and that his employment is relatively secure.
The wife is in receipt of:
·Centrelink benefits as carer for both the parties’ children;
·child support for the younger child; and
·her earnings from [business omitted].
However, what she earns from [business omitted] is rather limited. She maintains records to advise Centrelink of her earnings.[20] My calculations from those records reveal that she earned $3,047 in a period of approximately 20 months. That equates to approximately $1,800 per annum. In this regard, I accept what the wife said in her trial affidavit:
[20] See Annexure ”M” to the wife’s trial affidavit.
67. I continue to perform [omitted] services on a much reduced level, and need to wear a mask and gloves when I perform these services. I do not advertise, but have a few loyal customers. I do this because I enjoy it and to earn a little additional money. As I am in receipt of a Centrelink pension I need to declare all income earned to Centrelink. This is done over the phone and an electronic receipt number is issued. I keep a record of all income earned in this way with the receipt numbers issued by Centrelink.
68. The level of income earned in this capacity is not sufficient to affect my pension.
The adult child was diagnosed some years ago as suffering from Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder. He has also been diagnosed as “meeting of the diagnostic criteria for a global learning disability, with evidence of significant cognitive impairment”.[21] Although he is now an adult, the evidence before me is that Centrelink accepts that he is cared for by the mother. Further, on the second day of the hearing, the husband conceded through his counsel that the adult child lives with the wife at the former matrimonial home.[22]
[21] Husband’s response to Notice to Admit Facts
[22] Just before 11.30 a.m. on 20 July 2011
However, I do have evidence that the adult child was successful on his second attempt at obtaining a truck licence. It is therefore safe to assume that his need for the mother’s care is likely to be only temporary.
The younger child also has behavioural and learning difficulties, probably associated with his well below average range of intellectual functioning.[23] At the time of the hearing, the wife was collecting him from school at the start of each lunch break and returning him to school at the end of the break in order to reduce inappropriate behaviour displayed by the younger child at the school. In addition, the younger child’s doctor has certified to Centrelink that he suffers from “severe steroid dependent asthma”, but the husband concedes only that he suffers from mild asthma.[24]
[23] Full Scale IQ = 78 - see the Psychological Report at Annexure “F” to the wife’s trial affidavit.
[24] Husband’s response to Notice to Admit Facts
It is clear from the above that the husband is likely to maintain an income level that will be significantly greater than that of the wife for some time to come. Further, it is unlikely that the wife will receive much (if any) support from the husband in the onerous task of caring for the parties’ children. That applies especially to the younger child who is only 12 years old.
While the wife will have her inheritance worth nearly $237,000 to help her, that is likely to be relatively short term because it is a capital sum that will be depleted over time.
When I weigh up the sub-section 75(2) factors, I find that there should be an adjustment in favour of the wife. That adjustment should be 10% of the net value of the non-superannuation assets, whereas there should be equality between them in relation to superannuation.
Who should have the dogs?
The wife wishes to retain all the dogs and the husband’s latest position is that that the dogs should be divided between them by them each choosing one, and then continuing to choose one each on an alternating basis until the supply of dogs has been exhausted.
When the husband was asked about that, he said:
Yes, well, we can’t come to an agreement on the valuation, so my counsel and I decided – or I decided – that the only real way out of it, if we can’t come up with the costs, is to divide them.[25]
[25] Transcript: 20 July 2011 at page 27
His reference to “my counsel and I decided” and his quick correction of that, when seen in the context of his earlier statements that the wife could keep the dogs,[26] clearly suggests to me that his latest position is not one that he adheres to very strongly.
[26] For example, see paragraph 25 of his affidavit filed 3 August 2010.
I could order that the dogs be sold, in accordance with the reasoning in Smith and Smith (1991) FLC 92-261 – a decision to which I was referred by the husband’s counsel. However, based upon what I said at paragraph 38 above, that may only realise $900 or less, so I consider that it is preferable for the wife to retain them at her estimate of their value, being $3,000.
Who should retain the former matrimonial home?
Both parties wish to retain the former matrimonial home and both claim an emotional attachment to it. That is hardly surprising when one considers that it was their home for more than two decades.
However, I am of the view that the wife should retain the former matrimonial home. That is because it is likely that she will continue to be responsible for the welfare of the younger child with almost no assistance from the husband (other than compulsory Child Support payments) and it is the only home that the younger child has ever known.
Should there be a split of superannuation?
Counsel for the husband submitted that I should “take a two-pool approach” in relation to the non-superannuation assets and the superannuation assets.[27] Such an approach fits with the reasoning of the majority in C v C,[28] and I am of the view that it is appropriate to attribute to the wife an entitlement overall that is 50% of the value of the superannuation assets and 60% of the non-superannuation assets. However, that does not mean that there must be a superannuation splitting order of 50% (or at all), especially if it means that it will deprive the wife of the opportunity to retain the former matrimonial home.
[27] Transcript: 21 July 2011 at page 25
[28] (2005) FLC 93-220
In relation to that, I note that in August 2010 the husband appeared to be in favour of a superannuation splitting order if it could reduce the amount of money that he would need to raise in order to retain the former matrimonial home, but he was not seeking such a splitting order if the former matrimonial home was to be retained by the wife. He said:
In respect to superannuation entitlements, if the Court makes an Order enabling me to keep (the former matrimonial home), then I would be content for there to be a superannuation split of equality between (the wife) and I. That is, we have the same amount of superannuation. However, if the former matrimonial home is retained by (the wife), then I would keep my supernational (sic) entitlements and that could be covered by other adjustments of property in the sense of what (the wife) has to pay me to purchase my interest in the property.[29]
[29] Paragraph 26 of his affidavit filed 3 August 2010
It seems to me that by that statement the husband concedes that there should be no superannuation splitting order if the wife is to retain the former matrimonial home. I agree with that.
I should also point out that while one of the policy reasons behind the superannuation splitting law was to provide equity in relation to separated parties’ future retirement security, the simple reality is that the total value of these parties’ superannuation ($152,702) is just not sufficient to provide any long term security in retirement for either of them.
Conclusions
The total value of the parties’ superannuation is $157,202. The total gross value of the other assets (including dogs) is $553,009 and the total liabilities are $13,395, making the net value of the non-superannuation assets $539,614.
If the wife is to retain the equivalent of 50% of the total value of the superannuation (i.e. $78,601) and 60% of the total net value of the non-superannuation assets (i.e. $323,768), that makes her total entitlement $402,369.
The net value of the assets to be retained by the wife is as follows:
Former matrimonial home $480,000 Bank accounts $400 Motor vehicle $30,600 Chattels (including the dogs) $30,875 Wifes Superannuation $4,830 Sub-total $546,705 Less liabilities $13,395 Total $533,310
That is $130,941 in excess of her total entitlement referred to in paragraph 76 above, so she should pay the husband a sum approximate to that. In the circumstances, it is appropriate to round that up to $131,000 and the orders that I make will provide for that.
Given that the wife has her entitlement under her late mother’s will, she should have no difficulty raising $131,000, so I will require her to pay that sum to the husband within 30 days in return for a transfer to her of his interest in former matrimonial.
Justice and equity
Set out at the start of these Reasons are the orders that I will make to provide for what is set out above. Irrespective of whether or not sub-section 79(2) of the Act provides a “fourth step”, I am satisfied that the orders are just and equitable for the purposes of that sub-section.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Roberts FM
Date: 24 January 2012
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