BIDWELL & BIDWELL

[2014] FamCA 71

FAMILY COURT OF AUSTRALIA

BIDWELL & BIDWELL [2014] FamCA 71

FAMILY LAW – PROPERTY – Application by husband for adjustment of property – Greater initial contribution by wife – Where parties made equal contributions during relationship – Where wife received inheritance from her grandmother – Necessary to determine nature and value of this property – Where wife had foregone income produced by this property – Whether this income should be taken into account – Where wife’s main asset was real property held in her name – Where husband’s main asset was superannuation – Unequal earning capacity between parties – Small adjustment in favour of wife

FAMILY LAW – PROPERTY – Financial Agreements – Where parties executed document before marriage purporting to be a binding financial agreement – Where document executed in 2001 – Whether this document had legal effect – Where document did not comply with s 90B(1)(b) – Document not a Binding Financial Agreement

Family Law Act 1975 (Cth)

Calverley v Green (1984) 155 CLR 242
Damberg v Damberg & Ors [2001] NSWCA 87
Dundas & Blake [2013] FamCAFC 133
Markoska & Markoska [2011] FamCA 572

APPLICANT: Mr Bidwell

RESPONDENT: Ms Bidwell

FILE NUMBER: SYC 2140 of 2012

DATE DELIVERED: 17 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 10, 11, 12 and 13 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boyle

SOLICITOR FOR THE APPLICANT: MCW Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Willis & Bowring Solicitors

Orders

BINDING FINANCIAL AGREEMENT

1.Declaration that the agreement entered into between the parties on 16 June 2001 is not a Binding Financial Agreement for the purpose of s90B of the Family Law Act 1975 (Cth).

IT IS ORDERED

PROPERTY SETTLEMENT

1.That the husband and the wife do all acts and things required to effect the payment to the husband of the proceeds of sale of 25 R Street, Suburb I.

2.That within three months of the date of these orders, the wife pay to the husband the sum of $46,504.

3.That in the event that the wife does not pay the sum referred to in Order 2 by the due date, then the wife shall do all acts and things required to sell the property at 21 R Street, Suburb I and to pay to the husband, from the proceeds of the sale, the sum of $46,504 together with interest at the rate prescribed by the Family Law Rules 2004 (Cth) from the due date until the date of payment.

4.That other than as provided in these orders, each party shall be solely entitled to any property in his or her possession at the date of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bidwell & Bidwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2140 of 2012

Mr Bidwell

Applicant

And

Ms Bidwell

Respondent

REASONS FOR JUDGMENT

1. Before the Court are competing applications for adjustment of property interests arising from the marriage between Mr Bidwell (“the husband”) and Ms Bidwell (“the wife”). The parties commenced co-habitation in June 2000 and married in 2001. There are two children of the marriage, A born in January 2005 and now aged 9 years and M born in March 2010 and now aged 3 years.

2. When the matter was heard, parenting was also in dispute. Judgment in relation to parenting has been handed down separately.

3. The parties finally separated on 22 October 2011 when the wife and the children left the home and moved to nearby rented accommodation.

background

1. Much of the relevant history is not controversial.

2. When the parties commenced to live together, the husband was a driver. He owned a car, personal effects and savings of $10,000. He had an interest in a superannuation fund.

3. The wife owned a house at 21 R Street, Suburb I (“21 R Street”) with a value of $380,000 and subject to a mortgage of $76,000. She was in employment. She had an interest in superannuation, unspecified. She had savings of $40,000. She was also a beneficiary of the estate of her late grandmother who died in 1997. There is a dispute about the nature and extent of the wife’s interest in the estate. On the face of the will, the wife inherited one half share in the property at Q Street, Suburb S (“Q Street”) together with cash and a remainder interest in certain shares and debentures.

4. The parties initially lived in 21 R Street. The mortgage was paid off.

5. On 16 June 2001 the parties each signed a document entitled, on the cover sheet only, “Pre-Nuptial Binding Financial Agreement”. The document was prepared without the assistance of lawyers. The effect and significance of the document is a matter in issue in the proceedings.

6. In 2002 the wife’s mother purchased a property at BB Street, Suburb G (“Suburb G property”) which was registered jointly in her name and that of the wife. The wife’s mother says she provided the whole of the purchase price. In August 2008, the wife transferred her interest in the Suburb G property to her mother. The nature and value of the wife’s interest in the Suburb G property was an issue in the proceedings until submissions when the husband conceded that the wife had no interest in that property.

7. In about 2004 the parties purchased a property on the Central Coast (“Central Coast property”) for either $145,000 according to the wife or $170,000, according to the husband most of which was borrowed and secured against both the Central Coast property and 21 R Street. The wife paid the deposit, the fees and costs totalling $24,453.

8. A was born in January 2005.

9. In 2007 the husband and wife purchased another property at Town K (“Town K property”) for either $110,000 according to the wife or $145,000 according to the husband, all of which was borrowed. They borrowed further money to renovate the Town K property.

10. In 2008 the husband and wife sold both the Central Coast property and the Town K property and applied the net proceeds of sale to the purchase of a unit at Y Street, Suburb I (“Y Street”) the balance being borrowed.

11. The parties separated for a short time in 2008.

12. In 2009 the husband and wife sold Y Street and applied the net proceeds of the sale, together with borrowed funds, to the purchase of a property at 25 R Street, Suburb I (“25 R Street”) for $480,000. They borrowed to finance renovations. Borrowings were secured against both 25 R Street and 21 R Street. Once the renovations were completed, they moved into 25 R Street.

13. M was born in 2010.

14. On 22 October 2011 the wife left 25 R Street taking the children. The husband remained in the home.

15. In January 2012 the parties sold 25 R Street, the husband moved to rented premises and the balance of the proceeds of sale, agreed to be $25,255, was held, by agreement, in a controlled money account awaiting the outcome of these proceedings.

16. In April 2012 the wife and the children moved back to 21 R Street where they still live.

17. In February 2013 the wife purported to transfer her interest in Q Street to her mother. The nature and value of the wife’s interest in Q Street is an issue in the proceedings.

18. The parties have been in dispute about appropriate arrangements for the children since they separated.

19. A attends X School, a private Christian school. Both children were enrolled at X School when they were very young. M is due to start school in 2014.

the proceedings

1. The proceedings were commenced in the Federal Magistrates’ Court (as it then was) on 16 April 2012. On 2 September 2013, on the first day of the hearing in that court, the proceedings were transferred to the Family Court of Australia. The hearing commenced before me on 10 September 2013.

2. At the conclusion of the hearing the parties agreed that judgment should be reserved and that the parties should make written submissions in relation to the law affecting Binding Financial Agreements, once judgment had been handed down by the Full Court in the pending appeal of Wallace & Stelzer and Anor [2013] FamCAFC 199.

3. Because the parenting proceedings involved questions of Christmas time for the parents and the children, it was agreed that the reasons for judgment in the parenting proceedings should be handed down separately and those reasons were handed down and orders made.

the property settlement proceedings

1. At the commencement of submissions, Counsel for the parties were invited to identify the issues for determination. In the property settlement proceedings, the issues were identified to be:

   A.The nature and value of the wife’s inheritance from her grandmother.

   B.The effect of the document executed by the parties on 16 June 2001.

   C.The interest of the Wife in the Suburb G property (in submissions it was conceded by Counsel for the husband that the wife had no interest in that property and therefore that issue did not need to be determined).

The wife’s inheritance

1. The wife’s grandmother’s will was executed on 1 March 1992. She died in August 1997 and probate of the will was granted in December 1997.

2. According to the terms of the will (as amended by a later codicil) the wife was joint executor of the estate with her mother. The will provided that the wife’s mother receive a lump sum and a life estate in “the remainder of my shares and debentures”. The wife and her brother received the real estate and the rest and residue of the estate, which included the remainder interest in the shares and debentures.

3. The Inventory of Property submitted for probate, signed by the wife and her mother on 9 December 1997, showed that the wife received the following:

   Half interest in Q Street -

   estimated value $167,000  $83,500

   Half interest in various bank accounts totalling

   $176,059$88,029

   In addition she was entitled to half of the residuary estate in the shares and debentures which were estimated to be $45,925. The annexure note to the inventory was witnessed by a solicitor and I infer that the application for probate of the will would have been prepared and lodged by a solicitor, Ms Eikens.

4. The wife in her affidavit sworn 21 August 2013 deposes:

   158. …I understood I was an executor of her estate with my mother and also a residuary beneficiary. My grandmother owned a property at [Q Street, Suburb S] (“the [Suburb S] property”). I understood that after her death my mother was entitled to receive the income derived from the [Suburb S] property until her death. Until that occurs, I understood the [Suburb S] property was to remain registered in my mother and my name as executors of my late grandmother’s Will….

5. The wife’s mother, in an affidavit sworn 19 August 2013 deposes:

   5.      …I do not recall reading the Will and I do not recall the Solicitor informing me of the contents of the Will. I assumed that the Will was in the same terms as my conversations with my mother in or about 1990, that I was entitled to the income from [Q Street, Suburb S] during my lifetime, with the property reverting to my children, [Ms Bidwell] and [Mr C] [the wife and her brother] on my death….

6. The will was made in 1993, some three years after the alleged conversation.

7. She also deposes:

   5.        …The property was registered in the names of [Ms Bidwell] [the wife] and I as executors of the estate and I believe remains so registered and would remain so until my death.

8. It was apparent from the evidence of the wife’s mother that no steps have been taken to wind up the estate and transfer the Q Street property to the beneficiaries.

9. Whatever may be the assumptions and beliefs of the wife and her mother, the wife was legally entitled to one half share of the Q Street property by virtue of her grandmother’s will.

10. There is no evidence about the disposition of the cash from the estate and I cannot say whether the wife received the amounts which were due to her.

11. On 27 February 2013, the wife, her mother and her brother executed a deed which is set out in full below:

    ........... THIS DEED OF FAMILY ARRANGEMENT made the 27th day of February 2013.

    ........... BETWEEN [MS C] of … [E Street, Suburb G] in the said State of New South Wales (“the Daughter”)

    ........... AND [MS BIDWELL]. of [21 R Street, Suburb I], in the said State (“the Grandaughter”)

    ........... AND [MR C] of … [F Street, Suburb H] in the said State (“the Grandson”)

    ........... WHEREAS [MS J], deceased, in the said State (“the Testator”) made her last Will and Testament on the 1^st day of March, 1992, we know as a fact that she wanted her investment property of [Q Street, Suburb S] be willed to the granddaughter and the grandson after the demise of the daughter.

    ........... The daughter having received the income for the remainder of her life, to pay all expenses that could incur during that time.

    ........... NOW THIS DEED WITNESSES by way of family arrangement and for the considerations recited:

    ........... All parties to this deed shall execute all documents and do all acts necessary for giving effect to this deed.

    ........... A party to this deed includes that party’s successors and assigns.

    ........... IN WITNESS WHEREOF the parties hereto have set their hands and seals on the day and year first hereinbefore written.

12. The deed has no operative clauses and could have no effect on the legal ownership of Q Street which remains the property of the wife as to one half share.

13. If I am in error as to the effect of the deed, the transfer of the wife’s interest in Q Street to her mother, for no consideration, does not attract the presumption of advancement and a resulting trust would arise on the transfer in favour of the wife, so as to vest the beneficial ownership of the share of the property in the wife.

14. For the purpose of the proceedings, one half of the value of Q Street will be included in the Balance Sheet as property of the wife.

15. The wife was also entitled to half of the rent for the Q Street property. For the whole of the parties’ cohabitation, until the present time, the wife allowed her mother to receive the rent which is currently $350 per week. The wife is legally entitled to half of that amount. She is entitled to forego the rent and to make it available to her mother but, as against the husband, that is income to which she is entitled and it should be taken into account in comparing their respective financial positions. 

The purported Binding Financial Agreement

1. The document (“the agreement”), which on its cover sheet is entitled “Pre-Nuptial Binding Financial Agreement” was prepared by a solicitor, Ms Eikens. She would appear to be the same solicitor who acted on the estate of the wife’s grandmother.

2. In 2001, as now, s 90B of the Family Law Act 1975 (Cth) (“the Act”) governed the creation of a Binding Financial Agreement before marriage in the following terms:

FAMILY LAW ACT 1975 - SECT 90B

Financial agreements before marriage

(1) If:

(a) people who are contemplating entering into a marriage with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and

(aa) at the time of the making of the agreement, the people are not the spouse parties to any other binding agreement (whether made under this section or section 90C or 90D) with respect to any of those matters; and

(b) the agreement is expressed to be made under this section;

the agreement is a financial agreement. The people may make the financial agreement with one or more other people.

1. Section 90B, then and now, requires (as set out in s 90B(1)(b)) that “the agreement is expressed to be made under this section”. This document contains no such provision.

2. It will readily be seen from the provisions of s (1)(b) that the requirement that the agreement is expressed to be made under that subsection is mandatory. In the absence of an express provision in the document in accordance with s (1)(b), the agreement is not a “financial agreement”

3. If the agreement is not a “financial agreement” for the purpose of the Act, then it cannot be a Binding Financial Agreement.

4. The amendments which were made to the Act in 2009, deal with failure on the part of parties to a financial agreement to comply with the provisions of s 90G. The amendments have no application to s90B.

5. The terms of the agreement can be summarised:

   1......... The wife owns her house at 21 R Street, valued at $380,000 subject to a mortgage of $76,000. She will meet all the outgoings in relation to that property and bear the cost of any improvements and the husband would make no claim against that property or any property bought using the proceeds of sale of that property as a “replacement”.

   2......... The wife owns a one third share in a property at O Street, Suburb P (“O Street”). The husband will make no claim against “this property or any proceeds from the sale of this property”.

   3......... The wife expects to be a beneficiary of the estate of her mother. The husband “will never make any claim against (the wife’s) possible inheritance”.

   4......... The husband’s major asset is his superannuation entitlement. The wife “will never make any claim against (the husband’s) superannuation.”

   5......... The agreement is expressed to become effective upon the parties’ marriage.

6. The agreement is silent as to the property inherited by the wife from her grandmother in 1997. In that respect there is a material non-disclosure on the part of the wife. Before me there was no evidence as to the sale of O Street or the disposition of the proceeds which I assume were retained by the wife.

The Joint Balance Sheet

1. At the commencement of the hearing the parties tendered a Joint Balance Sheet which set out their various assertions and is reproduced below:

ASSETS
Ownership		Description				Wife/de facto partner’s value	Husband/de facto partner’s value
1	Joint	Proceeds from the sale of [25 R Street, Suburb I]				25,255	25,255
2	Wife	Share in [Q Street, Suburb S]				Nil	182,500
3	Wife	[21 R Street, Suburb S]				600,000	600,000
4	Husband	CBA …218				NK	77
5	Husband	CBA (held on trust for [M])				NK	232
6	Husband	CBA (held on trust for [A])				NK	200
7	Wife	CBA Various (held in trust for [A])				148	NK
8	Wife	CBA Various (held in trust for [M])				510	NK
9	Wife	CBA Various				2,308	NK
10	Wife	CBA …015 (In trust for [Ms T])				239	NK
11	Husband	Business known as "Business U” stock and cash				10,000	1,000
12	Wife	Business known as "Business V"				0	Minimal
13	Wife	Business known as "Business AB"				0	Minimal
14	Wife	Nissan motor vehicle				2,900	4,000
15	Husband	Holden motor vehicle				29,000	20,000
16	Wife	Comminsure Life Insurance Policy				0	NK
17	Wife	Cemetery and Crematorium Trust				4,000	21,400
18	Wife	Household contents				4,000	10,000
19	Husband	Household contents				4,000	2,000
20	Joint	Cash in safe				Not disclosed	NK
Total		$682,360	$868,972

ADDBACKS
Ownership		Description				Wife/de facto partner’s value	Husband/de facto partner’s value
21	Wife	Suburb G Property				0	197,500
22	Husband	Shares sold by the Husband				8,000
Total		$8,000	$197,500

LIABILITIES
Ownership		Description				Wife/de facto partner’s value	Husband/de facto partner’s value
23	Husband	Lease to Maxxia for Holden motor vehicle				NK	26,000
24	Wife	CBA Mastercard				500	NK
25	Wife	Mortgage to CBA secured over 21 R Street, Suburb I				98,000	NK
26 W	Wife	Capital Gains Tax on 21 R Street, Suburb I				TBA	NK
Total		$98,500	$26,000

SUPERANNUATION
Member		Name of Fund			Type of Interest		Wife/de facto partner’s value	Husband/de facto partner’s value
27	Husband	BC Super Fund			Defined Benefit		230,358	230,358
28	Wife	CD Super Fund			Accumulation		25,711	25,711
29	Wife	DE Super Fund			Accumulation		32,106	32,106
30	Wife	EF Super Fund			Accumulation		Nil	435
31	Wife	FG Super Fund			Accumulation		3,208	3,208
Total		$291,383	$291,383

1. The disputes in relation to the Joint Balance Sheet will be dealt with using the numbering in the document.

Item 2 -wife’s interest in Q Street, Suburb S

For the reasons I have already expressed, this item will be included in the Joint Balance Sheet at the figure which is agreed.

Items 4-10 – various bank accounts

Neither party was challenged on his or her evidence and the balances will be included as each contends.

Item 11-19 – various chattels

There was no evidence before me as to the value of any of these items and, with the exception of the husband’s vehicle, I accept the value asserted by the owner as an admission against interest. In relation to the husband’s vehicle, there being no evidence of the current liability, I propose to remove both the asset and the liability from the Joint Balance Sheet.

Item 20 – cash in safe

There was no evidence in relation to this assertion.

Item 21 – wife’s interest in Suburb G

This assertion was withdrawn and the item will be removed from the Joint Balance Sheet.

Item 22 – shares sold by the husband

I do not propose to deal with the issue of whether or not it is appropriate to add back this, or any amount, as is asserted but to deal with this aspect of the matter in the context of section 75(2).

Item 23 – lease on husband’s car

For the reasons explained above, this item will be removed.

Item 24 – wife’s Mastercard

There is no evidence that the liability relates to pre-separation expenses and I do not propose to include it.

Item 26 – capital gains tax on 21 R Street

There is no evidence about when this property was acquired. It was the wife’s and then the parties’ residence until about 2010 when they moved into 25 R Street. Since April 2012 it has been the wife’s residence with the children. It is her evidence that she wishes to continue to live there. In the event that the property is sold, then any liability could only relate to the period from the date they moved into 25 R Street until the wife returned to live there. However, I am satisfied that the order which I will make will not cause the wife to sell the property and I do not propose to take the prospective liability into account.

1. I therefore find the assets and liabilities of the parties to be:

Asset					Value
Joint	Proceeds from the sale of 25 R Street, Suburb I					25,255
Wife	Share in Q Street, Suburb S					182,500
Wife	21 R Street, Suburb I					600,000
Husband	CBA …218					77
Husband	CBA (held on trust for M)					232
Husband	CBA (held on trust for A)					200
Wife	CBA Various (held in trust for A)					148
Wife	CBA Various (held in trust for M)					510
Wife	CBA Various					2,308
Wife	CBA …015 (In trust for Ms T)					239
Husband	Business known as "Business U” stock and cash					1,000
Wife	Nissan motor vehicle					2,900
Wife	Cemetery and Crematorium Trust					4,000
Wife	Household contents					4,000
Husband	Household contents					2,000
$825,369

Liability
Wife	Mortgage to CBA secured over 21 R Street, Suburb I					98,000
$98,000

Superannuation
Husband	BC Super Fund				Defined Benefit			230,358
Wife	CD Super Fund				Accumulation			25,711
Wife	DE Super Fund				Accumulation			32,106
Wife	EF Super Fund				Accumulation			Nil
Wife	FG Super Fund				Accumulation			3,208
$291,383

1. Thus, the parties have net property of $727,369 and combined superannuation entitlements of $291,383, a total of $1,018,752.

Section 79(2)

1. Having regard to the fact that the parties have separated and are no longer able to jointly use the assets they have accumulated, it is appropriate that their assets be distributed between them. The husband’s financial contributions during the parties’ cohabitation require recognition in circumstances where the main asset of the marriage is the property in the sole name of the wife.

The competing applications

1. The wife’s primary application is for a declaration that the agreement dated 16 June 2001 is a Binding Financial Agreement so as to oust the jurisdiction of the Court to make orders by way of property settlement which are inconsistent with the terms of the agreement. She seeks an order that the husband be entitled to the proceeds of sale of 25 R Street, agreed to be $25,255 and that he retain his superannuation.

2. For the reasons that I have already given, I have concluded that the agreement is not binding on the parties and that it should not be enforced.

3. The wife’s alternate position, in the event that the agreement is not enforced as a Binding Financial Agreement, is that the husband should retain the proceeds of sale of 25 R Street of $25,255, she should retain all of the property in her possession and she should, in addition, have a splitting order for half of his superannuation entitlements.

4. The husband seeks orders that he would retain the proceeds of 25 R Street and that he receive a further payment of $200,000 from the wife and otherwise retain his superannuation entitlements.

Initial contributions

1. The husband at the commencement of cohabitation was employed as a driver and had accumulated superannuation entitlements in a defined benefit fund with “BC Super Fund”. There is no evidence of his entitlement at the commencement of cohabitation. He had commenced employment with Business GH after leaving school in March 1987 and has been continuously employed. He owned a vehicle and some personal effects and had savings of $10,000.

2. The wife at the commencement of cohabitation owned the property at 21 R Street which, according to the document they both signed, had a value of approximately $380,000 and a mortgage then outstanding of $76,000. The property was furnished.

3. The wife owned a one third share of O Street. There is no evidence of the value of that property or of what the wife did with it. It was not among her assets at trial. Given that the terms of the agreement contemplated that the wife would be solely entitled to the proceeds of sale of O Street it must have been contemplated by the wife that she would receive money from the sale. I infer that O Street had a net value to the wife. There is no evidence of that value.

4. The wife owned one half share of the unit at Q Street although there is no evidence of the value of that interest at the commencement of cohabitation.

5. It was her unchallenged evidence that she had savings of $40,000 and superannuation interests which are unquantified.

6. The wife’s initial contributions were significantly greater than those of the husband. She brought into the marriage the property at 21 R Street which was agreed to have equity of approximately $300,000. Her contribution of the equity of $300,000 in 21 R Street; the unknown value of one half share of the Q Street unit and $40,000 in savings has to be considered against the husband’s 13 years of contribution to his superannuation interest and savings of $10,000.

7. Whatever may have been the ultimate value of O Street, she has retained those funds. Counsel for the wife, in written submissions said:

   4.2. The wife will retain the proceeds of sale of the property known as and situate at [O Street, Suburb P].

8. The Balance Sheet for which Counsel for the wife contends in submissions does not contain any reference to the proceeds of O Street and the affidavit of the wife is silent as to the amount and whereabouts of the funds.

Contributions during cohabitation

1. The parties began to live together in 2000 and separated in 2011. They lived in the house at 21 R Street until about 2010 when they moved into 25 R Street which they had bought and renovated. They were able to use 21 R Street as security for borrowings for the purchase of investment properties and for the purchase of 25 R Street.

2. The mortgage over 21 R Street was paid off during the relationship. After the sale of 25 R Street, the title of 21 R Street was unencumbered.

3. Both parties worked, except for the time the wife cared for the children after they were born.

4. Both parties had casual employment as well as their regular jobs. The husband and the wife together sold goods at community gatherings and the wife undertook clerical jobs and domestic work.

5. The wife received a small lump sum after retrenchment in 2007 or 2008 but there is no evidence of the amount. Since the retrenchment occurred some seven or eight years after the commencement of cohabitation, I will consider that payment to be an incident of her employment after cohabitation and give it no further weight.

6. The wife chose to direct the rent from the Q Street unit to her mother. She did so without the husband’s knowledge. That she was able to do so must have been due to the husband’s income. The rent from Q Street was not a contribution by the wife.

7. Insofar as the parties bought and sold and renovated properties during their relationship, they did so together as part of their joint enterprise to build the wealth of their family.

8. Both worked on the renovations of their various properties.

9. The husband worked longer hours than the wife and earned more income. She undertook more of the home making and parenting than did he. The wife in cross-examination largely resiled from her assertion that the husband provided no help at all with either parenting or home making.

10. The wife gave evidence that it was she who paid all of the outgoings for her property at 21 R Street. The husband agreed that the wife paid the mortgage payments until the mortgage was discharged. The wife conceded, as the husband asserted, that she was able to pay the other outgoings because he gave her the money to make the payments. Whether the wife paid the mortgage payments from her wages or from the husband’s wages or some combination is irrelevant. The funds, which were used to make the payments and to pay all of the parties’ expenses, were the joint income of the parties.

11. There is no evidence to suggest other than the whole of the income of both of the parties was devoted to their joint family enterprise.

12. During their relationship, these parties each contributed their income and their efforts to their family and the accumulation of their property. I find that their contributions during their relationship were equal.

Contributions after separation

1. For a short period after separation the children did not spend overnight time with the husband. After he had suitable accommodation for them, they commenced to stay with him for one night each fortnight. That the time was never extended was solely due to the wife’s refusal to allow any extension. However, the fact is that, until the hearing, she has borne the major burden of the care of the children.

2. The husband has paid child support as assessed.

3. Since April 2012 the wife has lived in 21 R Street. She pays a mortgage payment of $175 per week. She has borrowed against the property to the extent of $98,000 of which $43,000 has been used to pay her legal fees.

4. The husband has paid rent since the sale of 25 R Street in January 2012. His rent is currently $420 per week.

Contribution adjustment

1. The wife has made the greater contribution to the non-superannuation pool. The husband has made the greater contribution to the superannuation pool but it is not possible on the evidence to quantify the disparity.

2. Overall, the husband should be entitled to 35 per cent of the assets on a contribution assessment.

Section 75(2) adjustment

1. The husband’s earning capacity exceeds that of the wife at the present time and, although she will have a greater capacity to earn income when the children are older, she is unlikely to earn an income comparable to that of the husband.

2. The wife is entitled to the rent from Q Street.

3. The wife has had the benefit of the proceeds of O Street which she has not disclosed in the proceedings. It cannot be assumed that those funds were used for family purposes.

4. The husband has accumulated leave and long service leave which is not available to the wife.

5. Because of the husband’s greater income, he has a greater capacity to contribute to and accumulate superannuation. However, he will retain his superannuation entitlement as part of property to which he is entitled and that fund will not be available to him for many years. He is presently 42 years of age.

6. Both parties will have responsibility to provide housing for their children and the husband will continue to pay child support as assessed, commensurate with his income.

7. The husband sold shares after cohabitation and did not account for the proceeds of approximately $8,000 to the wife. He spent that money on “expenses”. The wife borrowed $98,000 against 21 R Street. She spent that money. There was no challenge to the reasonableness of that expenditure but it is noted that $43,000 was used to pay legal fees.

8. The whole amount of $98,000 has been allowed as a joint liability and thus the husband is effectively paying a proportion of her legal fees.

9. The husband’s superannuation makes up the majority of the funds he will receive by way of property settlement and he will not have access to those funds for many years.

10. Taking all of those matters into account, I consider that there should be a small adjustment in favour of the wife of five per cent.

CONCLUSION

1. The husband will receive 30 per cent of the combined pool, an amount of $305,626. He has assets to the value of $3,509 in his possession. He will retain his superannuation entitlements of $230,358 and the proceeds of sale of 25 R Street of $25,255 and the wife will pay him a further $46,504.

I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 February 2014.

Associate: 

Date:  17 February 2014