Biggs and Lang
[2018] FamCA 909
•9 November 2018
FAMILY COURT OF AUSTRALIA
| BIGGS & LANG | [2018] FamCA 909 |
| FAMILY LAW – PROPERTY – De facto property adjustment – Where appropriate to make property orders – Where short relationship – Where wife has the primary care of the children – Where children have ongoing health problems limiting wife’s capacity to work – Where no child support paid by the husband for over four years – Where wife solely responsible for the children’s living expenses – Where wife and children living are in rented accommodation – Where husband living in matrimonial home – Where wife at cohabitation came into relationship with significant savings – Where overall contributions favour the wife. |
| Family Law Act 1975 (Cth) ss 75, 79, 90SF, 90SM |
| Bevan & Bevan [2014] FamCAFC 19 Chapman & Chapman [2014] FamCAFC 91 Dickons & Dickons [2012] FamCAFC 154 Pandelis & Pandelis [2018] FamCAFC 66 Russell & Russell (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Mr Biggs |
| RESPONDENT: | Ms Lang |
| FILE NUMBER: | PAC | 6031 | of | 2015 |
| DATE DELIVERED: | 9 November 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 October 2018 |
REPRESENTATION
| APPLICANT – SELF-REPRESENTED LITIGANT: | Mr Biggs |
| SOLICITOR FOR THE RESPONDENT: | Ms Watson of Watson Law Pty Ltd |
Orders
That within three months from the date of these orders the wife pay to the husband the sum of $37,146.25.
In consideration of and concurrently with the payment to him, the husband do all things necessary to transfer to the wife his interest in the property at B Street, C Town, NSW being the land comprised in Folio ….
That concurrently with the transfer of the property at C Town to her, the wife discharge or, otherwise, refinance the mortgages secured thereon into her own name.
That pending transfer to the wife, the husband shall pay as they fall due and payable council rates, water rates and property outgoings and maintain mortgage payments such that the total balance outstanding does not exceed the sum of $229,330.00 and indemnify the wife from any amount owing in excess of that sum provided always that the wife shall be entitled to deduct from the sum payable to the husband any mortgage sum in excess of $229,300.00 and any arrears of rates and utilities as at the date of settlement of the transfer to the wife.
That upon payment to him as provided, the husband shall forthwith vacate the said property and ensure that it is in good order and condition so as to permit the wife and children to reside therein.
In default of the wife complying with order (1) above and within five months from this date, the husband shall pay to the wife or as she, otherwise, may direct the sum of $333,523.00 and upon payment of such sum the husband be declared solely entitled to the property at B Street, C Town NSW being the land comprised in Folio ID ...
In default of the husband paying to the wife the sum of $333,523.00 as provided, then the wife is hereby appointed trustee for sale of the property B Street, C Town NSW being the land comprised in Folio … at the best price reasonably obtainable and for this purpose the said property shall vest in the wife as trustee and upon sale of the said property the net proceeds of sale shall be apportioned after selling costs, legal fees on sale and discharge of mortgages so as to effect an overall property division as to 75 per cent to the wife and 25 per cent to the husband by reference to the asset pool set out at [57] of these reasons for judgment.
That in default of the husband paying to the wife the sum of $333,523.00 as provided by the due date, he shall on the day following the due date vacate and remain away from the said property and on vacating leave the property in good order and condition and from such date the wife shall have sole use and occupation of the said property pending sale by her as Trustee for Sale.
Liberty to apply as to implementation or enforcement of these orders.
That, otherwise, all applications relating to property be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Biggs & Lang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 6031 of 2015
| Mr Biggs |
Applicant
And
| Ms Lang |
Respondent
REASONS FOR JUDGMENT
The matter for determination is the issue of property settlement as between the applicant de facto husband and the respondent de facto wife.
Proceedings relating to parenting were commenced by the husband in December 2015 by way of an Initiating Application. In response to that application the wife filed a Response in February 2016 also seeking orders as to property adjustment. The husband joined issue with the wife on the question of property settlement by reason of orders sought by him in his Reply filed in September 2016.
Parenting issues relating to the two children of the parties’ relationship remain undetermined although the only substantive issue for determination in that context is the question of the children’s time with the father. There is no issue that the children now aged 10 and eight will continue to reside primarily with the wife.
The parties were in agreement that the question of property settlement could be determined independently of the parenting issues.
Context
At trial the husband relied upon his trial affidavit as to property settlement filed 21 June 2018. During the course of the trial the father was required to complete and file an updating financial statement that was marked into evidence as Exhibit “D”.
The wife relied upon her trial affidavit filed 16 March 2000 and the affidavit of her mother, Ms D Lang filed 5 October 2018. The mother filed an updating financial statement on 26 September 2018.
At trial the husband sought orders as to property adjustment that, in summary, provided:
a)that the husband pay to the wife within 12 weeks the sum of $83,500.00 and that in consideration of that payment the wife do all necessary things to transfer to the husband her interest in the former matrimonial home at C Town, New South Wales;
b)that concurrently with the transfer to him the husband refinance the mortgage debts secured over the said property into his name and indemnify the wife from any liability in relation to other debts and liabilities standing in the husband’s name;
c)enforcement orders in the event of non-compliance with a) above.
In her Case Outline (Exh “A”) the wife at trial sought orders that, in summary, provided:
a)that the wife within 42 days pay to the husband the sum of $50,000.00 and in consideration of that payment the husband do all things necessary to transfer the former matrimonial home to the wife;
b)that concurrently with the transfer, the wife refinance the mortgage debt secured over the home in to her name;
c)that pending transfer to the wife the husband continue to make mortgage payments as they fall due and payable and be restrained from making any redraws as against the mortgage facility;
d)that upon the payment as provided for the husband provide vacant possession of the matrimonial home;
e)enforcement orders in the event of non-compliance with a) above;
f)that there be a splitting order in relation to the husband’s entitlement in the K Superannuation Fund as to 70 per cent of the husband’s entitlement to the wife.
Background
At trial the wife was aged 52 and the husband aged nearly 52.
The parties commenced cohabitation in a de facto relationship in December 2007 at about the time that the parties purchased the present matrimonial home at B Street, C Town.
The parties separated on a final basis in March 2014. Subsequent to separation the wife and the children lived in the maternal grandparents’ home.
There are two children of the parties’ relationship at trial aged 10 and eight. Those children remain in the primary care of the mother with the father having daytime contact only. Both children have ongoing health difficulties with the younger child having been diagnosed within the autism spectrum. The husband has provided no monies to the wife by way of child support since separation. He has, however, supplied the children with some electronic equipment and mobile phones. The wife has been solely responsible, otherwise, for all of the children’s living expenses including private health cover.
At the commencement of cohabitation the wife had the following assets and liabilities:
a)real estate property at E Town New South Wales purchased for the sum of $120,000.00 prior to cohabitation and subject to a mortgage encumbrance of $98,000.00;
b)Motor vehicle 1 estimated to be worth $5,000.00;
c)minimal superannuation, she having commenced accruing superannuation in 2007;
d)savings which the wife asserts was about $100,000.00. The wife transferred $50,000.00 of these funds from her account to that of the husband on 6 November 2007 (Exh “N”);
e)furniture and personal effects;
f)a horse and horse float.
At the commencement of cohabitation the husband had the following assets and liabilities:
a)interest in F Pty Ltd that owned a Motor vehicle 2. The value of his interest is not known;
b)some savings of about $13,000.00 (Exh “N”);
c)accruing superannuation of about $17,000.00, he having commenced employment in about 2004;
d)furniture and personal effects.
The wife’s parents gifted to the parties in 2008 by way of an engagement gift the sum of $50,000.00. This is to be regarded as a contribution on behalf the wife.
The matrimonial home at C Town was purchased in December 2007. Notwithstanding that the wife made a significant financial contribution to the purchase, the property was purchased in the name of the husband in order that the parties might be eligible for the First Home Buyers Grant.
The property was purchased for $321,500.00. The parties contributed from their savings, the first home buyers grant was received and the parties obtained two mortgages for the balance of purchase monies in the sum of about $291,600.00 (Exh “P”). The deposit for the purchase money was drawn from the husband’s account on 19 November 2007 with the balance of purchase money of about $2,400.00 drawn from his account on 18 December 2007 (Exh “N” and Exh “O”). The husband represented to the incoming mortgagee G Bank that he had savings at that time of about $63,000.00. In reality they were funds of the wife of $50,000.00 and his funds of $13,000.00 combined.
Further funds of $30,000.00 from her savings were later in three payments contributed by the wife from her savings to the parties’ mortgage offset account (Exh “R”, “S” and “T”) and later a further $25,000.00 to the purchase of a motor vehicle for family use. The $25,000.00 was deposited to the husband’s G Bank Account by her on 29 February 2008 (Exh “Q”).
The wife’s E Town property continued to be retained as an investment property with rental income being applied to its mortgage payments and outgoings. The husband paid some outgoings and expenses in relation to the property that were not covered by the rental income.
The husband remained in employment until May 2013. He was earning about $70,000.00 per year at the commencement of cohabitation. He worked shift work at times commencing early in the morning or finishing later into the evening. He also undertook some secondary employment. The husband has been engaged in various business enterprises either in his own name or in the name of a company H Pty Ltd.
The husband at trial was self-employed as a contractor and driver. He was in receipt of income protection insurance payments as a result of a skiing accident in January 2017. In the period from March 2017 to August 2018 he received insurance payments totalling about $139,000.00, at a rate of about $1,600.00 per week. He supplements this by working as a driver on a regular basis.
The husband is, otherwise, qualified to undertake technical work. In the financial year ended June 2016 his income from trading as “J Pty Ltd” totalled $154,000.00. His subsequent income for the year ended June 2017 and thereafter is simply not known.
Evidence as to the reality of his income only arose as a consequence of his cross-examination.
The husband has failed during the course of these financial proceedings to make proper disclosure and/or discovery that would permit any finding as to his present financial circumstances. His evidence during the course of the trial was vague, non-responsive and demonstrated a cavalier disregard as to his legal obligations in relation to filing tax returns both for himself and for his corporate entity and his obligation to be full and frank with the Court. The evidence was that he had failed to file tax returns for a considerable period of years dating back to well before when he ceased salaried employment.
During the parties’ cohabitation the wife worked as a health professional. Her income from that work was at best modest after the birth of the first child. Subsequent to separation she has received Centrelink benefits of about $700.00 per week.
Save for the wife’s significant initial contributions and her modest income, the husband was the primary income-earner during the marriage.
The wife was the primary homemaker and caregiver for the parties’ children with the husband assisting in this regard subject to his employment obligations.
During the period of the parties’ relationship they received monies by way of a gift from the wife’s parents of $10,000.00 each Christmas.
Subsequent to separation in September 2015 the wife sold her investment property at E Town with the net proceeds of sale being $34,710.00. Those proceeds remain retained by her in her bank account.
The wife’s present circumstances
The wife is 52 years of age. She suffers from a condition that requires ongoing medication.
At present she is significantly reliant upon Centrelink benefits for the support of herself and the children and, otherwise, earns a modest income from remedial massage.
She is the primary carer of the two children of the relationship that impinges upon her ability to work in any meaningful capacity.
She pays rent to her parents of $250.00 per week.
The wife receives no ongoing financial support from the husband to assist with her care of the children.
The husband’s circumstances
The husband is nearly 52 years of age. He asserts that he has some health issues although he does not contend that those issues impact upon his ability for employment, in particular, as a driver.
He continues to occupy the matrimonial home to the exclusion of the wife and children. He has continued to make mortgage payments in relation to the mortgages secured over the property.
His income circumstances are somewhat uncertain and information only became known to the Court as a consequence of him completing an updated financial statement during the trial and his oral evidence in cross examination.
De facto Property Adjustment
The parties agree that they lived in a de facto relationship to which the Act applies.
Part VIIIAB of the Act provides for alteration of property interests between parties formerly in a de facto relationship.
The legislative process and course of consideration is similar to that under Part VIII of the Act in respect of married persons.
Section 90SM of the Act defines the Court’s powers in determining applications for property settlement between de facto couples. Sub-section 90SM(3) of the Act provides that:
(3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 90SM(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
a)The financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
g)any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SF(3) of the Act sets out the relevant further considerations which are as follows:
a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain; and
e)the responsibilities of either party to support any other person; and
f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
i)any law of the Commonwealth, of a State or Territory or of another country; or
ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
g)a standard of living that in all the circumstances is reasonable; and
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
l)the need to protect a party who wishes to continue that party’s role as a parent; and
m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
n)the terms of any order made or proposed to be made under s 90SM in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party; and
o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
i)a party to the subject de facto relationship (in relation to another de facto relationship); or
ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
i)a party to the subject de facto relationship; or
ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
q)any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
t)the terms of any financial agreement that is binding on a party to the subject de facto relationship
The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203. The approach is similar in de facto matters.
The process ordinarily involves a staged process.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 90SM(4).
The Court needs to determine that it would be unjust or unfair to leave property rights intact.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjusting orders but are unable to agree as to same. Here both parties seek different orders as to the division of their property and it is conceded by both parties that it is appropriate for the Court to make orders altering their present property interests. It is thus appropriate to do so.
If it is appropriate to make orders adjusting property the Court then considers the contributions made by the parties as defined in s 90SM(4).
The Court must then consider s 90SF(3).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 90SM(3) of the Act.
The asset pool
At trial the parties agreed on the asset pool for the purposes of division. Otherwise, they choose to ignore some funds at bank and liabilities that were unrelated to the cohabitation and accrued thereafter.
The pool as agreed is as follows:
Assets
Husband Property at C Town $ 600,000.00
Husband Motor vehicle 2 $ 500.00
Husband Trailer $ 200.00
Wife Motor vehicle 3 $ 2,000.00
Wife Sale proceeds E Town $ 34,000.00
$ 636,700.00
Liabilities
Husband Mortgage C Town $ 204,890.00
Husband Mortgage C Town $ 24,440.00
$ 229,330.00
Net Total: $ 407,370.00
Superannuation
Wife K Super $ 17,468.00
Husband K Super $ 91,151.00
$ 108,619.00
Thus overall the pool of assets has a value of $515,989.00.
Contributions: s 90SM(4)
This provision is in like terms to s 79 of the Act.
In Dickons & Dickons [2012] FamCAFC 154 the Full Court said at [24] and following:
There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
In Pandelis & Pandelis [2018] FamCAFC 66 the Full Court reiterated:
24.We think it important to record that in Zyk and Zyk [1995] FamCA 135; (1995) FLC 92-644, the Full Court said it is somewhat artificial to purport to assign a percentage to a particular category of contributions....
The wife at cohabitation came in with more significant savings than the husband. She had a modest investment property that over the years accrued little in terms of capital appreciation. He had greater accumulated superannuation having been with his employer for some years before cohabitation.
During the relationship the parties mostly adopted a classic division of responsibilities: the husband as primary income earner and the wife as primary homemaker and caregiver for the children. Otherwise, the parties derived a benefit from the $50,000.00 provided by the maternal family as a gift and other funds provided on an annual basis. Post separation the wife realised the net value of her investment property on sale.
At separation in this relationship of just over six years contributions must thus favour the wife.
After separation the wife has had, mostly without contribution particularly child support from the husband, the primary care and obligation to support the two children of the marriage. They both have health difficulties that impinge of the wife’s ability to earn. The husband has remained in the home since separation for over four years to the exclusion of the wife and children.
The asset pool is limited with the matrimonial home having only modest equity and a disparity in contributions is significant in terms of the available property pool.
Overall, it is appropriate that contributions as discussed above to trial be determined as 60 per cent to the wife and 40 per cent to the husband. This creates a disparity of just over about $100,000.00 between the parties.
Section 90SF(3)
This provision is in like terms to s 75(2) of the Act.
In the context of what orders are to be made the Court is required to consider the matters set out in s 90SF(3) in so far as they are relevant.
Both parties are of a similar age and capable of employment. Both are in fair health.
The husband, on his evidence, will receive insurance payments until January 2019 then return to work as a technician and remain working as a driver. His earnings from this for the six months to May 2017 were about $27,000.00. His capacity to earn is far superior to that of the wife.
The income property and financial resources are referred to above.
The wife has the ongoing care of the two children of the relationship. The children have ongoing health issues that require the wife to be available to them. The youngest child is within the autism spectrum and exhibits challenging behaviours. She requires a stable environment with the mother that offers predictability. The older child also has recently been diagnosed within the autism spectrum. She exhibits deficits in social emotional capacity, non-verbal communicative behaviours and developing, maintaining and understanding relationships. She demonstrates restrictive repetitive patterns of behaviour, interests and activities. The children will present ongoing difficulties for the wife.
Both parties have modest accumulated superannuation. The husband has the prospect of enhancing his superannuation through further work or employment into the future. The wife’s opportunity to do so will be limited.
The parties lived a modest lifestyle during cohabitation and lived in modest cottage accommodation. The wife seeks to return to the home with the children.
The parties’ relationship was only just over six years. The impact on her earning capacity now with the children in her primary care is significant. The husband, otherwise, is free to pursue his work as a technician and driver. It is trite to say that one of the most valuable things a man can take out of a relationship is his earning capacity intact.
Neither party is cohabiting with another person.
The husband has not paid child support either voluntarily or by reason of an assessment for the children in the mother’s care for more than four years. It is problematic whether he will into the future. The wife has many years of child care ahead of her.
The contribution based assessment as to property division will see the wife with a significant percentage of the asset pool. Yet the needs and subjective considerations above require a further adjustment to those contribution based entitlements.
Overall, a consideration of the relevant s 90SF(3) factors leads to the conclusion that a further adjustment in favour of the wife of 15 per cent is called for.
Just and equitable
Overall, the wife is entitled to 75 per cent of the asset pool. She seeks to return the children to their home currently occupied by the husband. The parties were in agreement that she be given the chance to do so. Orders will be made accordingly.
The asset pool is overall $515,989.00. The husband’s entitlement to 25 per cent thereof is in the sum of $128,997.25. He has in his present entitlement his car, trailer and superannuation totalling $91,851.00. The wife will need to pay him an adjustive payment of $37,146.25 so as to retain the home.
Upon payment of that sum the husband will be required to transfer the property at C Town to the wife who will be required to discharge or refinance the mortgages into her name.
Pending payment to him the husband shall be required to maintain mortgage balances at no more than they are at trial and pay all outgoings and insurances.
It is considered that such orders in the circumstances of this matter will be made accordingly with the husband being given the opportunity to retain the property if the wife elects not to do so.
Such proposed orders are just and equitable in the overall circumstances of this matter and will be made accordingly.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 9 November 2018.
Associate:
Date: 9 November 2018
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Injunction
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Costs
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