Blanchand and Blanchand
[2008] FamCA 867
•21 October 2008
FAMILY COURT OF AUSTRALIA
| BLANCHAND & BLANCHAND | [2008] FamCA 867 |
| FAMILY LAW – PROPERTY SETTLEMENT – assessment of contributions and relevant s.75(2) matters – just and equitable orders – superannuation splitting orders |
| Family Law Act 1975 (Cht) ss75(2), 79(2) |
| Browne v Green (1999) FLC 92-873 Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143 Elsey v Elsey (1997) FLC 92-72 Waters and Jurek (1995) FLC 92-635 |
| APPLICANT: | Ms Blanchand |
| RESPONDENT: | Mr Blanchand |
| FILE NUMBER: | SYF | 3639 | of | 2005 |
| DATE DELIVERED: | 21 October 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Hon. Justice Rose |
| HEARING DATES: | 3-5 September 2007 |
| Written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | J Millar |
| SOLICITOR FOR THE APPLICANT: | Barkus Edwards Doolan |
| COUNSEL FOR THE RESPONDENT: | G Page SC |
| SOLICITOR FOR THE RESPONDENT: | Gayle Meredith & Associates |
Orders
Property
That on or before 5.00pm 18 November 2008 the husband sign all documents and do all things necessary to transfer to the wife the whole of his right title and interest in the property situate at and known as P in the State of New South Wales (“the former matrimonial home”) subject to the existing mortgage to the Commonwealth Bank of Australia.
That the husband pay to the wife the sum of $176,944.00 on or before 5.00pm 30 January 2009.
That pending compliance with Order 2 the husband pay all mortgage instalments, council and water rates, fire and household insurance premiums in relation to the former matrimonial home promptly when they fall due.
That upon the husband complying with Order 2 the wife shall be solely responsible for promptly paying mortgage instalments, council and water rates, fire and household insurance premiums and all other outgoings in respect of the former matrimonial home and the wife shall indemnify the husband in relation to any claims or demands which may be made upon him for payment of all or any of such liabilities and expenses.
That subject to the Orders made this day declare that each of the parties is the sole beneficial owner of all items of personalty in his or her possession power or control and to the extent that it may be necessary to do so, each of them shall forthwith do all things necessary to transfer to the other the interest that may be held by a party contrary to this declaration.
Superannuation splitting payment
That in accordance with s.90MT(4) of the Family Law Act the base amount of $312,168.00 is allocated from the husband’s superannuation benefits to the wife out of the husband’s interest in the Mercer Super Trust number 51216 (“the fund”) as at the date of these Orders.
That in accordance with s.90MT(1)(a) of the Family Law Act whenever a splittable payment becomes payable in respect of the interest of the husband in the fund the wife is entitled to be paid the amount (if any) calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount as at the operative time and there shall be a corresponding reduction in the entitlement of the husband towards the splittable payment which would have been made but for these Orders.
That pursuant to Order 7 the operative time is the fourth business day after the day on which a sealed copy of the Orders made this day are served on the trustee of the fund (“the trustee”).
That the trustee for the fund and the husband in accordance with the obligations set out under the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act 1993 and the Superannuation Industry (Supervision) Regulations 1994 shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the wife in accordance with these Orders.
That having been accorded procedural fairness Orders 6 to 9 herein binds the trustee to observe the requirements of the Family Law Act and the Family Law (Superannuation) Regulations 2001.
Spousal maintenance and child support assessment departure proceedings
That the applications of the wife be listed for mention and directions on a date and time to be fixed.
Miscellaneous
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Blanchand & Blanchand is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF3639 Of 2005
| MS BLANCHAND |
Applicant
And
| MR BLANCHAND |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings orders are sought by the wife for parenting, property settlement, spousal maintenance and child support departure pursuant to her Amended Application filed 9 March 2007.
The parenting proceedings between the parties were resolved by agreement and parenting orders were made by consent on 4 September 2007 (“the parenting orders”).
In substance, the parenting orders provided for the wife to have the primary care of the two children of the marriage and for them to spend periods of time with the husband during school term. In addition, the parties were to ensure that the two children spent half the school holiday periods with each of the parties. Other special occasions were also the subject of the parenting orders.
Consequently, the proceedings which remained for determination are those in which orders are sought by way of property settlement, spousal maintenance and child support departure. I very much regret the delay in delivery of this judgment. It was brought about by my mistaken belief that the proceedings had settled. In fact only the parenting proceedings were settled by the parties.
The orders sought by the wife are set out in Exhibits 4 and 12.
The orders sought by the husband are set out in Exhibit 3.
The parties cohabited for a period of about 15 years which commenced in March 1990 and continued until they separated under the same roof on 26 April 2005.
The husband ceased to reside with the wife in the former matrimonial home on 21 November 2005 and the parties have lived in separate residences since that time.
The parties married on 8 June 1991 and the marriage was subsequently dissolved by decree absolute on 3 June 2006.
The wife is 46 years of age and employed part-time in health services.
The husband is 47 years of age and employed as a general manager.
The two children of the marriage are twins N and J, 15 years of age having been born in September 1993.
Historical background
The following are further brief relevant historical matters.
In October 1990 the husband purchased property in C in the State of South Australia (“the C property”).
In the middle on 1993 the C property was sold.
In July 1993 the parties jointly purchased the property at H in the State of Queensland (“the H property”).
The H property was sold in August1996.
In February 1997 the parties jointly purchased the property at P in the State of New South Wales (“the former matrimonial home”).
On 23 August 2005 interim parenting orders were made by consent which provided for shared parenting arrangements between the parties and that the party having the care of the two children would have the exclusive use of the former matrimonial home with the two children to the exclusion of the other party.
On 12 October 2005 further interim parenting orders were made by way of variation of the last-mentioned orders.
On 2 November 2005 further interim parenting orders were made by consent providing for the two children to live with each party on a week about basis.
Dr M, psychiatrist was appointed the single expert for the purpose of providing a report in relation to the wishes of the two children.
Property settlement proceedings
In accordance with the standard practice and procedure, I will determine these proceedings prior to the determination of the proceedings for spousal maintenance and child support departure. Indeed, counsel structured their submissions accordingly.
Relevant legal principles pursuant to the Family Law Act (“the Act”)
It is now well established that generally speaking the approach to be taken to determination of property settlement proceedings concluding with an order that is “just and equitable” represents four steps.
The first of which is that the Court should determine the property and financial resources of the parties at the date of the hearing.
Secondly, determine the nature and extent of the respective contributions made by each of the parties whether financial or non-financial, including contribution to the welfare of family in the role of homemaker and parent.
Thirdly, determine and assess the relevant matters pursuant to s.75(2).
Fourthly, consideration of orders, if any that should be made that are just and equitable.[1]
[1] Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143
I will now proceed to make findings in relation to the property of the parties, their respective financial and non-financial contributions and relevant matters (if any) pursuant to s.75(2) of the Act.
Property of the parties
The schedule of the parties’ assets liabilities and superannuation was tendered by consent and became Exhibit 2.
The disputed numbered items of assets and liabilities will be the subject of my subsequent findings. Exhibit 2 is reproduced as follows:
| “Assets | Husband’s Primary Position ($) | Husband’s Alternate Position with Concessions ($) | Wife ($) | |
| 1. | [P property] (a) | 1,050,000 | 1,050,000 | 1,050,000 |
| 2. | Husband’s contents (a) (b) | - | - | - |
| 3. | Wife’s contents (a) (b) | - | - | - |
| 4. | Husband’s CBA streamline account number […] as at 26/08/07 (a) | - | 680 | (q) 193,445 |
| 5. | (i) Husband’s CBA cash investment account […98] as at 14/08/07 | 347 | 347 | (q) 377,252 |
| (ii) Husband’s CBA cash investment account […15] as at 19/08/07: - proportion which does not include options received after separation | 409,922 | 409,922 | 537,510 | |
| - proportion including options received after separation | - | 127,588 | ||
| 6. | Add back asserted by wife | Nil | Nil | 235,539 |
| 7. | Husband’s Saab (a) | 18,900 | 18,900 | 18,900 |
| 8. | Husband’s Porsche | 113,350 | 113,350 | (c) |
| 9. | Husband’s death insurance policy | 0 | 0 | 0 |
| 10. | Wife’s CBA Cash Investment account […] | 20,727 | 20,727 | (d) |
| 11. | Wife’s proceeds AMP policy […] held in AMP Advantage account (a) | 9,416 | 9,416 | 9,416 |
| 12. | Wife’s 287 AMP shares (a) | 2,985 | 2,985 | 2,985 |
| 13. | Wife’s 1998 Volvo S40T4 (a) | 8,250 | 8,250 | 8,250 |
| 14. | Wife’s jewellery (a) | 1,719 | 1,719 | 1,719 |
| 15. | Joint UK NatWest account (a) | 420 | 420 | 420 |
| 16. | Interim payment to husband pursuant to Orders | (e) - | 20,000 | 20,000 |
| 17. | Interim payment to wife pursuant to Orders | (f) - | 25,000 | 25,000 |
| 18. | Husband’s piano | (g) - | 5,000 | 5,000 |
| 19. | Husband’s paid legal costs | (h) | 154,690 | 154,690 |
| 20. | Wife’s paid legal costs | 88,506 | 90,506 | |
| 21. | Husband’s unvested options received prior to separation after tax | (i) - | 37,123 | 37,123 |
| 22. | Husband’s unvested options received after separation after tax | (j) - | Not included or 18,483 | 18,483 |
| 23. | Husband’s 1,168,038 Frequent Flyer points and wife’s 30,000 Frequent Flyer points | (k) - | - | |
| 24. | Husband’s 55% interest in property at [K] | 1,045,000 | 1,045,000 | (r) |
| Total Assets | $2,681,036 | $3,157,426 | $2,786,238 | |
| Liabilities | ||||
| 25. | CBA mortgage over [P] property | 357,612 | 357,612 | 357,612 |
| 26. | Husband’s share of CBA mortgage over [K] property | 594,369 | 594,369 | (r) |
| 27. | Husband’s debt to [Y Blanchand] | 80,000 | 80,000 | (r) |
| 28. | CGT on sale of [B Company] shares and Brambles shares during year end 30 June 2007 | 411,501 | 411,501 | 411,501 |
| 29. | Tax on interest accrued on CBA accounts in Item 5: | |||
| (a) for year end 30/06/07 | 13,722 | 13,722 | 13,659 | |
| (b) as at trial | 3,735 | 3,735 | ||
| 30. | Lease payout on Porsche | 162,882 | 162,882 | (c) |
| 31. | Wife’s debt to her parents | (m) | (m) | 83,856 |
| Total liabilities | $1,623,821 | $1,624,091 | $886,628 | |
| Net assets | $1,057,215 | $1,533,335 | $1,919,610 | |
| Superannuation | ||||
| 32. | Husband’s Mercer Super Trust ([B Company]) | (n) 364,767 | (o) 468,535 | 470,523 |
| 33. | Husband’s MLC Super | (n) 98,728 | (n) 181,362 | 179,880 |
| 34. | Wife’s Super SA […16] | (p) 1,938 | 2,509 | 2,509 |
| 35. | Wife’s Super SA […31] | (p) 9,637 | 13,045 | 13,045 |
| 36. | Wife’s Q Super | (p) 470 | 616 | 616 |
| 37. | Wife’s MLC Super | (p) 5,768 | 6,983 | 6,983 |
| 38. | Wife’s First State Super | Nil | 2,407 | 2,407 |
| Total superannuation | $481,308 | $675,457 | $675,962 | |
| Notes to the Schedule | ||||
| (a) | Agreed. | |||
| (b) | The husband and the wife agree to retain the contents they each possess and to exclude their value from the asset pool. | |||
| (c) | The wife agrees the Porsche is valued at $113,350 but contends it and the lease payout which relates to it should be excluded. | |||
| (d) | The wife contends this should be excluded as it represents the balance of the interim property payment in Item 17 that she received. | |||
| (e) | The husband says this was spent on relocation costs and should not be included. | |||
| (f) | The husband says this should not be included because the part that remains is in Item 10 and the wife’s new piano is in Item 3. | |||
| (g) | The husband says this is in the same category as Item 2 and should not be included. | |||
| (h) | The husband says he paid his legal expenses from income received after separation (including partly from his redundancy) and thus they should not be included. | |||
| (i) | The husband says this is a financial resource and should be excluded. He proposes if they vest and are executed, each of the husband and the wife receive 50%. Wife says the value of $37,123 is based on a 50% probability of the options vesting but it should be based on 100% probability of shares vesting. | |||
| (j) | The husband says these were received after separation in the course of his employment and should not be included but rather be considered his financial resource. If this is not accepted, nevertheless he says they should be excluded from the balance sheet and if they vest and are exercised the husband says each of the husband and the wife should receive 50%. | |||
| (k) | The husband says these should be excluded. | |||
| (l) | The husband says this is income and should be excluded. | |||
| (m) | The husband does not accept this is a loan and that monies received by the wife by her parents were gifted to her. | |||
| (n) | The husband says the value of all the superannuation interests of the husband and the wife should be the value at separation. Financial statements prepared by the husband listed superannuation balances at 30 June 2005, not separation. As per 30 June 2005 statements, [B Company] Super balance was $364,767 and Brambles Super balance $98,728. | |||
| (o) | The husband’s alternate position is that the increase in value of his MLC Super (formerly Brambles) which occurred because of the contributions made to his MLC Super (Brambles) since separation should be excluded as should the increase in the value of the wife’s First State Super since separation. | |||
| (p) | The husband says the value of all superannuation interests of the husband and the wife should be the value at separation. Financial statements prepared by the wife listed superannuation balances at 30 June 2004, not separation. As per 30 June 2004 statements, SA Super […16] balance was $1,782, SA Super […31] balance was $8,716, Q Super balance was $421, MLC Super balance was $5,431. | |||
| (q) | Notional addback of funds in account as at date of first trial unaccounted for by husband. | |||
| (r) | Property and related liabilities should be excluded if Items 4 and 5(i) are included at the wife’s figures.” | |||
Disputed items in exhibit 2
Assets
Items 4 and 5(i)
The wife contends that the amounts of $193,445.00 and $377,252.00 be added back to the amount outstanding to the credit of the identified bank accounts respectively. The husband contends that those notional add-back amounts be rejected and that the correct balances for the purpose of calculation of the parties’ net property are $680.00 and $347.00 respectively.
It is convenient to deal with Items 4 and 5 in Exhibit 2 at the same time as they have common features in the evidence and submissions.
The effect of the husband’s affidavit and oral evidence is that there have been deposits and withdrawals including deposits by way of income to his CBA streamline account as well as movement between accounts which include, but are not limited to, the accounts in Items 4 and 5(i).
During the course of his oral evidence whilst under cross-examination the husband reiterated on a number of occasions that there had been movements between various bank accounts including deposits to his home mortgage account which in turn had a redraw facility. In addition, his evidence was that he had utilised the balances from time to time in the subject bank accounts and in particular his streamline account for the purpose of deposits to his home mortgage account, redraws on that account, living expenses including private health insurance and school fees. Exhibits 6, 10 and 11 are relevant to sources of funds for the purpose of making bank deposits as well as expenditure. Funds were also expended on account of legal costs. To that extent the Exhibits are not inconsistent with the husband’s evidence.
It is important to refer to note (9) to Exhibit 2 which is in the following terms reflecting the case for wife:
“(9) notional addback of funds in account as at date of first trial unaccounted by the husband.”
Whilst an accounting is contended by the wife to be one which has been incomplete so far as the evidence of the husband is concerned, it is not submitted that the husband should have provided an audit. Consequently, the level at which I must be satisfied on the balance of probabilities that an accounting has been provided is not at that higher auditing standard. In my view, it is not realistic to expect on a reasonable basis that the husband, during the course of cross-examination, should be able to account in every significant aspect for the flow of funds between the bank accounts and mortgage account to which he referred, with the implicit requirement that he be able to provide in effect an oral audit of expenditure with the appropriate linkage to deposits and withdrawals to and from each of the relevant bank accounts. In fact that was done to a limited extent as demonstrated by Exhibit 11.
Having regard to the amounts involved in the ultimate contentions in submissions on behalf of the wife, namely $193,445.00 and $377,252.00 respectively, it is salutary to note that on the evidence before me, a request for particulars/or the putting of specific questions in accordance with the Rules was not made on behalf of the wife as an interlocutory step in the course of preparation of the case. Nor was expert evidence adduced from an investigative accountant who might have investigated and reported on the matters to which I have referred. Such evidence is frequently adduced in property settlement proceedings when an issue has arisen in relation to the receipt, accumulation and use of considerable amounts of money such as those that fall for consideration under Items 4 and 5(i) of Exhibit 2. In referring to the absence of those methods of investigation and evidence, I am not being critical of the wife’s legal representatives as they may have been inhibited from taking those steps due to an absence of instructions. I am only concerned with the objective aspects that fall for consideration in relation to these matters.
I accept the evidence of the husband and the submissions made on his behalf. I found the husband to be a truthful witness. The husband was bona fide and doing his best to explain the use of the relevant bank accounts, the sources of deposits and the purposes for which withdrawals or movements of funds took place. In that regard, I also accept the husband’s evidence that expenditure by him of funds at his disposal in one or both of the subject bank accounts was reasonable in all the circumstances having regard to the nature and level of his liabilities and other expenditure which he met.
So far as the husband’s Porsche motor vehicle lease payments were concerned, I also accept his evidence that he acquired that vehicle at a time when his previous employment and remuneration package was such that it seemed appropriate to do so and that his subsequent situation had so developed that he was, as it were, locked into the lease payments. The husband had a liability in that regard which would not be matched by the funds that could be realised upon the sale of the vehicle against a background of no longer being employed by the previous employer.
So far as the purchase of K property was concerned, the husband’s interest in it and his corresponding bank mortgage liability are brought to account in Exhibit 2. It follows that I am not persuaded that the husband has engaged in reckless financial conduct as described in Browne v Green[2].
[2] Browne v Green (1999) FLC 92-873 at 86,360 - 86,361
Accordingly the balances that will be shown in Items 4 and 5(i) of Exhibit 2 are $680.00 and $347.00 respectively.
Item 5(ii)
It is clear from the written submissions on behalf of the parties that whatever may have been the issue in relation to this item, it no longer required resolution for the purpose of whether the amount of $537,510.00 should be included as an asset of the husband for the purpose of determination of the net property of the parties.
Rather, the issue is the finding of fact so far as contributions are concerned in relation to this asset and the weight of which should be attributed to such contributions. Those are matters which fall for consideration subsequently in this judgment.
Accordingly, the amount which will be shown as the husband’s asset referred to in Item 5(ii) is $537,510.00.
Item 6 - wife asserts add-back of $235,629.00
It is accepted in the written submissions that the correct amount is as above, as opposed to the amount of $235,539.00 shown in Exhibit 2.
I do not accept the submissions made on behalf of the wife. I am not persuaded that there should be an add-back of $235,629.00 as contended for the following reasons.
The factual issues raised in relation to this matter are founded in part on the same matters raised in respect of Items 4 and 5(i) of Exhibit 2, the subject of my earlier review of the evidence, acceptance of the credibility of the husband, findings of fact and the reasons given by me in relation to those two disputed items. I rely on all of those matters as part of the process of reasoning which has led to my conclusion in relation to Item 6.
In addition, I accept the written submissions made on behalf of the husband in respect of topics which were not referred to by me in relation to Items 4 and 5 (i). In particular, those submissions are in relation to the topics of rent paid on the K property; review of exhibits; reimbursement of work expenses and the reference to rent in relation to the P property.
Consequently, there will not be an add-back of the amount or any portion thereof as contended by the wife.
Husband’s Porsche - $113,350.00
It is contended, on behalf of the wife, that the husband’s leasehold interest in this vehicle, together with the corresponding liability, be excluded as it represents “waste” given the diminution of the value as against the current liability. In addition, it is submitted that as the wife did not have an opportunity to participate in the decision making which led to the lease of this vehicle, it is unjust for her to potentially meet the indirect cost of the liability.
It is well established that the property of the parties should be determined at the date of the trial, subject to certain exceptions which are inapplicable in these proceedings. There was no contrary written submission made.
Part of the husband’s property is represented by his leasehold interest in the vehicle. With the benefit of hindsight, it was inappropriate for him to have leased this vehicle. However, such hindsight arises in circumstances where the husband was made redundant in the employment in which he was engaged in at the time that the lease interest was acquired. As a consequence, whilst I accept the submission that it was financially attractive to him to have utilised his optional salary sacrifice of $29,000.00 as is set forth in the written submissions made on his behalf, unfortunately his then employment ceased. There has been a consequential reduction in the subsequent remuneration package that the husband was able to achieve in later employment.
I accept the submission made on behalf of the husband that it was not reasonably foreseeable that the husband’s employment would subsequently cease. Indeed there is no evidence let alone a submission to the contrary.
Given that the parties had separated by the time that the lease of this vehicle was acquired and they were conducting their lives separate from each other so far as it was possible to do so without any ongoing consultation except when necessary in relation to parenting matters, there is an air of artificiality to the submission made on behalf of the wife that the husband, inferentially, should have consulted with and requested the wife to join in a decision with him for the acquisition of the lease of the vehicle. Consequently I do not accept that submission.
It follows that I will include the value of the vehicle and its corresponding liability in the calculation of the net property of the parties.
Item 10 - wife’s CBA cash investment account - $20,727.00
It is submitted on behalf of the wife that the interim property settlement payments made to each of the parties should be included in the calculation of the net property of the parties at full value. The relevant amounts are the balance, $20,000.00 paid to the husband (after $5,000 spent for a piano) and $25,000.00 to the wife as reflected in Items 16 and 17 of Exhibit 2.
The written submissions made on behalf of the husband do not dispute that interim property settlement payments were made to each of the parties and that such payments were in the amounts to which I have referred. Rather, it is contended that were such amounts to be included as submitted on behalf of the wife, it would be necessary to examine the use of those funds and that the exercise would be “grossly inappropriate”. I will take the approach as submitted on behalf of the wife.
It is a common feature of property settlement proceedings that interim property payments are notionally added back precisely because they do represent “interim” payments. From time to time the amounts may be excluded given the evidence of the manner in which they were utilised. It is not submitted that there is evidence that demonstrates that the payments made to each of the parties should be treated in such a way that the amounts are excluded. No submission was made on behalf of the husband as to why it would be “grossly inappropriate” to include the amounts.
Given that the full amounts paid to each of the parties are reflected in Items 16 and 17 of Exhibit 2, I accept the submission that the amount in Item 10 be excluded as not to do so would amount to double accounting.
Consequently, no amount will be shown for Item 10.
Items 16 and 17 - interim payments to husband and wife - $20,000.00 and $25,000.00 respectively
For the reasons given in relation to Item 10 in Exhibit 2, I will include these amounts as submitted by the wife.
Item 19 - husband’s paid legal costs - $154,690.00
Notwithstanding footnote (h) to Exhibit 2 it is clear from the written submissions on behalf of the husband that inclusion of this amount as a notional asset of the husband is no longer an issue.
Accordingly, the husband’s paid legal costs will be included in the calculation of the parties’ net property.
Item 20 - wife’s paid legal costs - $90,506.00
This notional asset will also be included for the same reason.
Items 21 and 22 - husband’s unvested options
The written submissions on behalf of the parties confirm that there is no issue in relation to each of these options.
Accordingly, the relevant amounts of $37,123.00 and $18,483.00 respectively will be included in the calculation of the net property of the parties.
Item 23 - the parties’ frequent flyer points
During the course of the hearing it was agreed that as a result of documents produced on subpoena by Qantas each of the parties’ frequent flyer points are not transferable to the other.
In addition, there is no evidence of value of the frequent flyer points. Consequently, this item will be excluded. No written submission to the contrary was made.
Item 24 – husband’s 55% interest in the K property
Part of the husband’s property is his legal title as to a 55% interest in the K property.
I accept the submission that, notwithstanding the sources of funds which the husband relied upon for the purpose of acquisition of that interest, the fact remains that his interest in the legal estate in the K property should be included as part of his assets. All property of the parties must be taken into account for the purposes of the necessary findings of the property of the parties, contributions, s.75(2)(b) and the consideration of orders that are just and equitable. The assessment of contributions to property on a global basis or asset by asset approach is of course a different matter.
I would add that I did not accept the submissions made on behalf of the wife in relation to Items 4 and 5(i) of Exhibit 2.
Consequently, this particular asset of the husband will be included in the calculation of the net property of the parties.
Item 18 - husband’s piano - $5,000.00
There is no issue that the piano was acquired by the husband for $5,000.00 utilising funds received by him by way of interim property settlement whereby each of the parties received $25,000.00.
After payment for the piano the balance of the husband’s interim property settlement amount was $20,000.00. That amount is reflected in Item 16 in Exhibit 2. The full amount namely $25,000.00 paid to the wife is reflected in Item 17.
I will bring the full amount paid to each of the parties by way of interim property settlement into account for the reasons previously given.
Consequently, I accept the submissions made on behalf of the wife with the result that this item will be included in the net property of the parties.
Items 26 and 27 – husband’s indebtedness
It is submitted on behalf of the wife that these items should be excluded in the event that the submissions made by counsel result in Items 4 and 5(i) of Exhibit 2 being included in the calculation of the net property of the parties.
As is apparent, I have not accepted the submissions on behalf of the wife in relation to Items 4 and 5(i). Consequently, it follows that I accept the submissions on behalf of the husband that Items 26 and 27 will be included.
Item 29 – husband’s tax liability on interest accrued on bank accounts
The evidence in relation to the tax liabilities in question is set out in the husband’s Financial Statement sworn and filed on 27 August 2007.
In the absence of contrary evidence I accept that the husband has the liabilities of $13,722.00 for the year ending 30 June 2007 and $3,735.00 as at the trial.
The submissions on behalf the wife contain a concession in relation to the amount of $13,659.00. In relation to the balance, it is contended on behalf of the wife that as the husband has had “the benefit of substantial income since 30 June 2007” and the wife has had no involvement in the disposition of that income, nor was she aware of the manner in which it has been applied by the husband, nor that she received any benefit from the income, it should follow that the relevant amount should be excluded from the calculation of the net property of the parties.
I do not accept the submissions made on behalf of the wife. The submissions which are summarised in the last paragraph could equally be made in relation to the amount of the tax indebtedness which is conceded for the year ended 30 June 2007. It appears to me that there is no logic in conceding the appropriateness of the tax indebtedness for one period but not for the other without reasons being given that distinguish one period from the other. In any event there certainly has been indirect benefit to the wife, so far as the interest on bank funds is concerned, given that it boosted the available funds at the disposal of the husband used in a global sense towards meeting liabilities which included mortgage instalments. Meeting such liabilities had impact upon the property of the parties that fall for consideration in these proceedings.
Consequently, I will include the husband’s tax liabilities of $13,722.00 and $3,735.00 respectively in the calculation of the net property of the parties.
Item 30 – lease payout on husband’s Porsche
For the reasons that I have previously given in relation to including the leasehold interest in the Porsche as part of the property of the husband (Item 8), I will include the liability relevant to that interest at $162,882.00.
Item 31 - wife’s debt to her parents - $83,856.00
It is clear from the written submissions on behalf of the husband that this amount is no longer an issue so far as its inclusion in the listed liabilities for the purpose of calculation of the net property of the parties.
Accordingly, the wife’s indebtedness of $83,856.00 will be so included.
Revised property of the parties
I find that the following is the net property of the parties having regarding to the findings that I have made in relation to disputed items of assets and liabilities in Exhibit 2:
| Assets | ||
| 1. | P property | 1,050,000 |
| 2. | Husband’s contents | - |
| 3. | Wife’s contents | - |
| 4. | Husband’s CBA streamline account as at 26/08/07 | 680 |
| 5. | (i) Husband’s CBA cash investment account …98 as at 14/08/07 | 347 |
| (ii) Husband’s CBA cash investment account …15 as at 19/08/07: - proportion which does not include options received after separation | 409,922 | |
| - proportion including options received after separation | 127,588 | |
| 6. | Add back asserted by wife | Nil |
| 7. | Husband’s Saab | 18,900 |
| 8. | Husband’s Porsche | 113,350 |
| 9. | Husband’s death insurance policy | 0 |
| 10. | Wife’s CBA Cash Investment account | 20,727 |
| 11. | Wife’s proceeds AMP policy held in AMP Advantage account | 9,416 |
| 12. | Wife’s 287 AMP shares | 2,985 |
| 13. | Wife’s 1998 Volvo S40T4 | 8,250 |
| 14. | Wife’s jewellery | 1,719 |
| 15. | Joint UK NatWest account | 420 |
| 16. | Interim payment to husband pursuant to Orders | 20,000 |
| 17. | Interim payment to wife pursuant to Orders | 25,000 |
| 18. | Husband’s piano | 5,000 |
| 19. | Husband’s paid legal costs | 154,690 |
| 20. | Wife’s paid legal costs | 90,506 |
| 21. | Husband’s unvested options received prior to separation after tax | 37,123 |
| 22. | Husband’s unvested options received after separation after tax | 18,483 |
| 23. | Husband’s 1,168,038 Frequent Flyer points and wife’s 30,000 Frequent Flyer points | - |
| 24. | Husband’s 55% interest in property at K | 1,045,000 |
| Total Assets | $3,160,106 | |
| Liabilities | ||
| 25. | CBA mortgage over P property | 357,612 |
| 26. | Husband’s share of CBA mortgage over K property | 594,369 |
| 27. | Husband’s debt to Y Blanchand | 80,000 |
| 28. | CGT on sale of [B Company] shares and Brambles shares during year end 30 June 2007 | 411,501 |
| 29. | Tax on interest accrued on CBA accounts in Item 5: | |
| (a) for year end 30/06/07 | 13,722 | |
| (b) as at trial | 3,735 | |
| 30. | Lease payout on Porsche | 162,882 |
| 31. | Wife’s debt to her parents | 83,856 |
| Total liabilities | 1,707,677 | |
| Net assets | 1,452,429 | |
| Superannuation | ||
| Husband’s Mercer Super Trust ([B Company]) | 468,535 | |
| Husband’s MLC Super | 181,362 | |
| Wife’s Super SA …16 | 2,509 | |
| Wife’s Super SA …31 | 13,045 | |
| Wife’s Q Super | 616 | |
| Wife’s MLC Super | 6,983 | |
| Wife’s First State Super | 2,407 | |
| Total superannuation | 675,457 | |
Contributions of the parties
I make the following findings in relation to the financial and non-financial contributions of each the parties including the contribution to the welfare of the family in the role of homemaker and parent.
The wife
There is no challenge to the wife’s affidavit evidence that her initial financial contributions included:
(a)A Ford Escort motor vehicle. It was written off in a car accident in May 1990, which is about two months after the parties’ commenced cohabitation. The insurance indemnity payout to the wife was $3,800.00. I will attribute that amount as the value of that motor vehicle.
(b)Contents of the premises rented by the wife. There is no evidence of value.
(c)Superannuation entitlements which the wife states had a nominal value.
(d)Savings of about $3,000.00
(e)An AMP endowment policy. There is no evidence of the value of that policy at the commencement of cohabitation.
During the period of cohabitation the wife earned income in her employment on a full-time basis in health services until shortly prior to the birth of the two children.
Subsequent to the births of the two children the wife has had periods of part-time employment in health services including also carrying out of assessments for another health scientist.
It is implicit from the wife’s evidence that the income earned by her in her positions of employment had been applied towards general living expenses whether for herself or for the family. There is no evidence to the contrary.
The wife also made direct and indirect financial contributions in relation to the purchase and sale of real estate of which the husband, initially, was the sole registered proprietor and subsequently in the jointly purchased real estate including the former matrimonial home.
The wife provided support for the husband and participated with him moving interstate and to the United Kingdom to enable him to take advantage of further career opportunities at times at the expense of her own career. The wife also supported the husband during the period of his post graduate studies.
The wife made a contribution to the welfare of the family in the role of homemaker and parent by carrying out most of the domestic work and attending to the care and upbringing of the two children. That contribution by the wife was often an extended one having regard to the long hours of work engaged in by the husband and well as his frequent periods of absence from the homes of the parties whilst he was travelling for work related purposes.
The wife continued her contributions to her superannuation entitlements, wholly if not in part, as a result of the compulsory contribution arising out of her employment.
Subsequent to the separation of the parties the wife has continued with her contribution to the welfare of the family in the role of homemaker and parent by the continued care and upbringing of the two children as well as the performance of domestic work.
The husband
The husband’s initial financial contributions were as follows:
(a)The husband was the sole registered proprietor of the C property purchased at the end of 1990 for $140,000.00. He funded the purchase price by a bank loan of $126,487.00 and the balance and no doubt associated costs from his savings of $25,267.00. The purchase by the husband of the C property was subsequent to the commencement of cohabitation between the parties which took place in March 1990. The husband’s first Affidavit sworn and filed 24 August 2006 sets out the property that he claimed he had at the commencement of the marriage rather than the commencement of cohabitation.
(b)The husband had superannuation entitlements with the CIG Superfund. There is no evidence of precisely the amount of such entitlements at the commencement of cohabitation. However the relevant superannuation fund benefit statement reveals that his bonus withdrawal benefit as at 30 June 1991 was $45,065.96[3]. That was about 15 months after cohabitation between the parties commenced.
(c)B Company pay-as-you-earn share options tranche. There is no evidence of the value of those options. The husband subsequently exercised the options and sold the shares in March 1996 for $14,375.17.
(d)An interest in Friends Provident 10 year insurance bonds. There is no evidence of the value of those bonds at the commencement of cohabitation. The husband’s interest in those bonds was realised in November 1996 for the sum of $5,519.00.
(e)An interest in Colonial 10 year insurance bonds. There is no evidence of the value of that interest at the commencement of cohabitation. The husband’s interest was realised in August 1996 when he received the sum of $5,500.00.
(f)Furniture and personal effects.
(g)Savings in an unspecified amount.
[3] Affidavit sworn 24 August 2006 Annexure “E”
The husband made direct and indirect financial contributions during the period of cohabitation between the parties.
The husband caused the sale of the C property and joined in with the wife in the subsequent purchase and sale of the H Property, as well as the purchase of the former matrimonial home.
The husband was employed in responsible managerial positions both in Australia and in the United Kingdom throughout the period of cohabitation subject to relatively short periods when he was unemployed during the course of which he applied for and negotiated subsequent employment. I find that the husband applied the income that he earned towards meeting the liabilities of the parties and their living expenses.
The husband also acquired and sold options and bonds in various companies and institutions, the proceeds of which were utilised by him towards the acquisition of real estate and generally to provide a financial benefit for the parties.
The husband continued his contributions to his superannuation entitlements. As is apparent from the value of those entitlements they increased substantially. I accept the submission that was, at least in part, due to negotiation of the change of his employment both prior and subsequent to the separation of the parties.
The husband also made a contribution to the welfare of the family in the role of homemaker and parent. He carried out domestic work principally represented by house maintenance repairs and gardening, subject to the constraints of the long hours of his employment as well as the travel associated with it. He made a contribution to the welfare of the family in the role of homemaker and parent by being engaged in assisting, caring or supporting the two children in their various sport and other activities as well as their general care. He joined in with the wife in enabling them to have benefit of paid domestic assistance.
Subsequent to the separation of the parties, the husband continued to make a financial contribution represented by the application of his income from his employment to meeting liabilities and the payment of child support.
The husband also acquired a 55% in the K property. In addition, the husband has continued to provide care of the children and support in their various sport and other activities.
Assessment of the contributions of the parties
It is conceded in the written submissions on behalf of the parties that the contributions that each of them made during the period from marriage to separation should be assessed as being equal. My own independent review of the evidence and my findings have led me to the same conclusion. Each of the parties fully applied themselves in their respective shares for the benefit of the two children and themselves.
It was submitted on behalf of the husband that his contributions during the period of cohabitation prior to marriage and subsequent to separation of the parties should be assessed higher than the contributions made by the wife.
The period of cohabitation prior to marriage was approximately 15 months. I accept that the husband had developed superannuation entitlements during that period. However there is an absence of evidence of the value of those entitlements either at the commencement of cohabitation or at marriage. I have accepted that his withdrawal benefit at 30 June 1991 was $45,065.96. I do infer that a substantial proportion of that amount could be attributed to the date of marriage which occurred three months earlier. However, given the period of cohabitation of some 15 years, the substantial variety of contributions made by each of parties during the period of cohabitation and the raising of two children, I have concluded that the weight that should be attributed to those superannuation entitlements diminishes to the point where the husband’s contributions will not be assessed at a higher level than that of the wife.
In relation to the contributions that the husband made to his superannuation entitlements and overall remuneration package subsequent to the separation of the parties which clearly involved substantial amounts, I have concluded that that represented the product of the many years of development of his career and employment experience gained during the course of cohabitation especially subsequent to the marriage of the parties. The contributions that the husband made in that regard reflected that the indirect contributions by the wife in terms of her support for him, the changes to places of cohabitation to enable the family to be maintained as a unit whilst the husband pursued his employment opportunities and the substantial contribution that the wife made in the role of homemaker and parent.
It is clear that the wife was the primary contributor in the role of homemaker and parent supplemented by her financial contributions arising out of her employment. The husband for his part, made the primary financial contributions supplemented by his contribution in the role of homemaker and parent.
It is for those reasons that I will maintain the assessment of the contributions of the parties as equal, taking into account all the contributions made by them both prior to marriage and subsequent to separation.
Relevant section 75(2) matters
I make the following findings in relation to relevant matters pursuant to the provisions of s.75(2).
The wife and husband are 46 and 47 years of age respectively. They in good health.
The wife’s income as reflected in her Financial Statement filed 1 March 2007 amounted to $650.00 per week gross from her salary together with $30 per week for interest. In addition, the wife received child support. That gross salary was a little in excess of her PAYG payment summaries being Exhibit 5 which totalled $26,597.00 per annum gross or $511.00 per week. I accept the totality of that evidence and find that based on Exhibit 5 her gross income for the year ended 30 June 2007 was $26,597.00.
The wife has the property and financial resources described in paragraph 88 hereof.
The wife has the capacity to earn income in her current occupation as a part-time health worker. The wife is qualified and has had substantial experience in that occupation. The wife has been employed on a part-time basis of two days per week since separation. I accept her evidence that she has been employed on a part-time basis due to the combination of the availability of work and her desire to be home when the two children arrived home from school. Her evidence also was that there is difficulty in obtaining employment in her field on a full-time basis as there are not “many positions available”. There was an absence of evidence of there being reasonable opportunities for the wife to be engaged on a full-time basis in her specialty, let alone the range of income that may be earned by her in such employment.
The wife and the two children have continued to reside in the former matrimonial home subsequent to separation. Substantial outgoings in relation to the former matrimonial home including mortgage instalments have been met by the husband. He has committed funds to the joint purchase with his partner of the K property in which they reside.
Consequently, I accept the wife’s evidence and find that the wife exercises her capacity to earn income on a part-time basis as a health worker and that there are difficulties in obtaining full-time employment in that occupation in Sydney, implicitly within a reasonable radius of where the wife and two children live. That finding is against a background where the wife clearly has the potential to earn income on a full-time basis, provided that there is reasonable opportunity to do so from a practical viewpoint. There is an absence of evidence of full-time employment positions in the wife’s field or the range of income that may be so earned.
I find that the husband has the income described by him in his Financial Statement filed 27 August 2007. That income comprises his salary of $3,784.00 per week gross and car allowance of $479.00 per week totalling $4,263.00 per week gross.
I find that the husband has the property and financial resources set forth in paragraph 88 hereof together with the indirect benefits of his partner’s financial circumstances represented by her income of approximately $160,000.00 per annum including car allowance in her occupation of operations director and rental income of $350.00 per week gross. In addition, she has a leased car and options in her employer company of unstated value and superannuation entitlements with an estimate value of $100,000.00 and her 45% interest in the K property.
The husband has the capacity to earn income in his employment described in his financial statement as general manager at a senior level. He has had substantial experience in corporate management both in Australia and in the United Kingdom.
Each of the parties has the care of the two children, the primary care of whom rests with the wife pursuant to the parenting orders made by consent on 4 September 2007.
Each of the parties has commitments for his or her own support in accordance with their respective financial statements as well as the support of the two children.
The husband is cohabiting with his partner Ms F. They reside in the K property of which they are the registered proprietors. They hold their interests as tenants in common as to 55% in favour of the husband and the remaining 45% in favour of the husband’s partner. The mortgage repayments that are required in relation to the K property are made in accordance with their agreement, namely that the husband pays 60% and his partner the remaining 40%. They share living expenses.
The husband has been assessed for payment of child support which is estimated at $290.00 per week.
The issue of “waste” was raised by counsel for the wife. In that regard it was submitted on behalf of the wife that the husband had been, in effect, reckless or irresponsible in the use of incoming funds at his disposal as demonstrated by the leasing of the Porsche motor vehicle, the financial commitments that that required and the level his expenditure on wine and cigarettes. I do not accept those submissions. I have previously made findings in relation to the circumstances surrounding the leasing of the Porsche motor vehicle, the husband’s financial circumstances at that time and subsequently. Having regard to the remuneration package that the husband has been able to enjoy, I am not persuaded that his lifestyle expenditure in relation to wine and cigarettes amounts to “waste”.
Assessment of relevant section 75(2) matters
I have determined that there will be an adjustment of the wife’s contribution based entitlements by a further 15% having regarding to my findings in respect of relevant matters that arise pursuant to the provisions of s.75(2). My reasons are as follows.
It is clear that the husband’s income and his capacity to earn income are far superior to that of the wife, having to regard to my findings in that respect.
In addition, the husband has the indirect benefit of the financial resource represented by his partner’s financial circumstances. That includes his partner’s 45% interest in the title to the K property, the purchase of which and the subsequent use of it as a residence were unlikely to have occurred without her joining in the purchase of it and sharing outgoings including mortgage instalments. In addition I take into account that the husband’s partner has a significant income from her employment and there is no suggestion in the evidence that she is in other than secure in that employment. The husband’s partner’s financial position overall is sound.
The wife’s financial circumstances are not bolstered by additional financial resources.
Further, the wife has the primary care and upbringing of the two children currently 15 years of age. They will need to be accommodated and supported by her accordingly. That is not to deprecate the ongoing commitment that the husband has to the two children in terms of his ongoing support and need to accommodate them during the periods that they spend with him in accordance with the parenting orders or as otherwise agreed between the parties.
Conclusion
I have considered and concluded that orders for property settlement excluding superannuation splitting orders to which I will subsequently refer, which reflect the division of the net property of the parties in the proportions of 65% in favour of the wife and 35% in favour of the husband are just and equitable in accordance with s.79(2). Those percentages reflect my assessment of the parties’ contributions and the adjustment in favour of the wife having regard to my findings in respect of relevant matters pursuant to the provisions of s.75(2). My reasons are as follows.
In considering whether a division of net property excluding superannuation entitlements in the proportions to which I have referred I have taken into account the guidance provided by the Full Court in Waters and Jurek.[4] In that case Fogarty J held that in the exercise of the discretionary power to make orders for property settlement that are “just and equitable” a “very wide discretion” is provided. For that purpose the court’s responsibility is to give consideration to the proposition that an order “recognises, as far as possible, the fact that the order is made on an arbitrarily determined day, that is to have a prospective effect on the parties’ lives”[5].
[4] Waters and Jurek (1995) FLC 92-635
[5] ibid pp82,376–82,378
In view of the submissions made on behalf of the husband that his contributions in particular post separation are to be given weight to a higher degree that implicitly would apply in relation to his financial contributions made prior to separation, it is apposite to refer to the dicta in the judgment Fogarty, J in Waters and Jurek in which it was stated:
“Post separation, the party who had assumed the less financially rewarded responsibilities of the marriage is at an immediate disadvantage. Yet that party cannot often simply turn to more financially rewarding activities. Often, opportunities to do so are no longer open, or, if they are, time is required before they can be accessed and acted upon.
When the marriage ends, especially where that marriage has been a long, one cannot separate the parties as individual from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed. In some cases, an adjustment is called for because it would be unjust for the roles and activities of a party which were recognised until separation, and which largely determined or influenced the personal development of that party and the arrangement between the parties, to suddenly to count for little, while those of the other party, which were of equal significance during the marriage to now have a far greater financial impact outside the home – in circumstances where it was the joint decision of the parties that that be the way in which they conduct their affairs, and where that decision was made in the expectation of the relationship continuing.
An order under s.79 would be unjust and inequitable in its operation if it failed to address the manner in which the value of the parties roles, adopted in the course of, and for the purposes of, the marriage, can be altered by the fact of separation. Those roles can be instantaneously converted in liabilities. Equality of the parties’ positions is terminated.”[6]
[6] ibid pp82,379
The guidelines contained in the judgment of Fogarty J, to which I have referred are applied by me in these proceedings for the purpose of making orders that are just and equitable. Each of the parties made significant contributions in their respective spheres for the benefit of themselves and their children. The primary contribution made by the wife in the role and homemaker and parent to the detriment of her career which had the flow-on effect of enabling the husband to develop his career both in Australia and the United Kingdom. The impact financially upon her as well as the husband must be considered in a realistic sense in relation to both the present and the future so far as it is possible to do so. It is a simple matter to state that the wife should now return to full-time employment in her occupation when the practical difficulties are that time may be required to fulfil that possibility. That issue is difficult if not impossible to assess when, as in this case, there is an absence of evidence of the realistic employment opportunities that exist and the range of income that may be earned.
I have also followed the guidance of the Full Court in considering the practical implications of the division of the parties’ net property, excluding superannuation entitlements, in the proportions to which I have referred.[7]
[7] Elsey v Elsey (1997) FLC 92-727 at 83,799
Accordingly, I have, set out below the position of the parties upon such a proportional division of their net property. That division will enable the wife to have the opportunity to retain the former matrimonial home subject to the mortgage as well as the other items of property which are listed. The husband for his part will be left in a position of retaining his interest in the K property and also to be in a position where he can realise or reorganise his assets in a way which enables him to pay the lump sum to which I have referred:
Wife to retain and receive:
Assets P property 1,050,000 Contents - CBA Cash Investment account 20,727 Proceeds AMP policy held in AMP Advantage account 9,416 287 AMP shares 2,985 1998 Volvo S40T4 8,250 Jewellery 1,719 Interim payment 25,000 Paid legal costs 90,000 Total Assets 1,208,603 Plus lump sum to be paid by the husband 176,944 Liabilities CBA mortgage over P property 357,612 Debt to parents 83,856 Total liabilities 441,468 Net property $944,079 Husband to retain:
Assets Contents - CBA streamline account as at 26/08/07 680 (i) CBA cash investment as at 14/08/07 347 (ii) CBA cash investment account as at 19/08/07:
- proportion which does not include options received after separation
409,922 - proportion including options received after separation 127,588 Saab 18,900 Husband’s Porsche 113,350 Death insurance policy - Joint UK NatWest account 420 Interim payment to husband pursuant to Orders 20,000 Piano 5,000 Paid legal costs 154,690 Unvested options received prior to separation after tax 37,123 Unvested options received after separation after tax 18,483 55% interest in property at K 1,045,000 Total Assets 1,951,503 Liabilities Shared CBA mortgage over K property 594,369 Debt to Y Blanchand 80,000 CGT on sale of B Company shares and Brambles shares during year end 30 June 2007 411,501 Tax on interest accrued on CBA accounts in Item 5: (a) for year end 30/06/07 13,722 (b) as at trial 3,735 Lease payout on Porsche 162,882 Plus lump sum payable to wife 176,944 Total liabilities 1,443,153 Net property $508,350
I will provide time for the husband to reorganise his financial position so as to make the lump sum payment of $176,944.00 dollars to the wife. Given the notorious difficulties of accessing financial institutions if necessary in the latter half of December and the first half of January, and also having regard to the current volatile economic climate of which I can take judicial notice especially having regard to statements made in recent times by the Government, I will provide for the relevant period to extend to the end of January 2009. In the meantime the husband will be bound to continue to meet the outgoings in respect of the former matrimonial home which he has met to date. An appropriate order will be made.
Subject to payment of any outstanding legal costs, the wife will be in a position to apply the lump sum to which I have referred in partial discharge of the mortgage over the former matrimonial home. I will make an order that the husband transfer to the wife his interest in the former matrimonial home subject to the mortgage with appropriate indemnities.
Each of the parties seeks superannuation splitting orders. I will make orders in favour of the wife in relations to the husband’s superannuation fund entitlements reflecting the same proportions that I have made the subject of the other property settlement orders. I have assessed the parties’ contributions to their respective superannuation entitlements as being equal. The wife’s income and capacity to earn income as well as the comparatively small level of her superannuation entitlements compared to the husband and her unlikely improvement in her capacity to engender significantly greater superannuation entitlements than have occurred in the past have lead me to consider that the appropriate order also reflect 65% in favour of the wife and 35% in favour of the husband. However I do not wish consider it just that there be a further adjustment in favour of the wife having regard to the unknown circumstances of their future financial position over many years that will develop at the major proportion of present property which will pass to the wife pursuant to property settlement orders.
My calculations for the purpose of the base amount are as follows:
· Total superannuation entitlements $675,457.00
(from Exhibit 2)
· 50% $337,728.00
· Less wife’s superannuation $25,560.00
· Balance $312,168.00
Spousal maintenance
The wife has sought an order of her maintenance.
Whilst it is of course desirable to determine all applications without the need for parties to be obliged to participate in subsequent court events, I do not consider that it is proper to do so in relation to this application.
The evidence in relation to the financial circumstances of the parties is somewhat aged. Whilst that is obviously the case also in relation to property settlement the potential ongoing commitment for payment of maintenance that this application necessarily involves raises a different consideration. Neither party sought to reopen his or her case in relation to this matter or indeed any aspect of the other proceedings before me.
One possibility is that the wife may prefer not to pursue her application having regard to the property settlement orders and superannuation splitting orders that I will make. Should that not be the case, then I will ensure that directions are made to enable hearing time to be provided to determine this application as soon as possible this year.
Child support assessment departure application
This application was made by the wife. I have determined to adjourn this matter in circumstances which also apply in relation to the wife’s application for maintenance as well as the following additional matters.
Since the conclusion of the evidence, no doubt at least one further child support assessment has been made. I do not know the terms of that assessment. The evidence in that regard was not sought to be adduced. I am also unaware of the school fees that are likely to be incurred at the private school attended by the children at least for next year if not for the remaining years of their secondary education.
In those circumstances it would be artificial; and not proper to determine this application without the further evidence to which I have referred.
I will also list these proceedings for mention and directions before me so that if necessary the proceedings can be determined this year.
I certify that the preceding One hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of the Hon. Justice Rose
Associate:
Date: 21 October 2008
Key Legal Topics
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Family Law
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Property Law
Legal Concepts
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Procedural Fairness
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