BULOW & BULOW
[2017] FCCA 2657
•22 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BULOW & BULOW | [2017] FCCA 2657 |
| Catchwords: FAMILY LAW – Property – parties married 19 years – initial contributions – superannuation – splitting order – costs on interim applications – respondent unsuccessful in opposing sale of former matrimonial home – respondent unsuccessful in opposing partial property settlement – orders for discovery. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 75(2), 79(2), 79(4)(a)-(g), 117(1), (2) & (2A) Federal Circuit Court Rules 2001 (Cth), Schedule 1 |
| Cases cited: Hickey & Hickey (2003) FLC 93-143 Petruski & Balewa [2013] FamCAFC 15 |
| Applicant: | MS BULOW |
| Respondent: | MR BULOW |
| File Number: | ADC 1674 of 2014 |
| Judgment of: | Judge Heffernan |
| Hearing dates: | 23 & 24 November 2016 |
| Date of Last Submission: | 24 November 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 22 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Kari |
| Solicitors for the Applicant: | Johnston Withers |
| The Respondent: | In person |
UPON NOTING that the amount to be disbursed to the husband pursuant to paragraph 1(a)(i) of these orders has been adjusted to reflect the quantum of costs awarded to the wife
ORDERS
There be a 60:40 division of the non-superannuation assets of the parties in favour of the wife with the following orders to give effect to the same:
(a)Within 7 days of the making of these orders, the parties shall do all such acts and things to facilitate the balance of the proceeds from the sale of the property at B Street, Suburb C presently held in the Bank SA Account BSB: …92, Account Number …40 (controlled by Ms D, conveyancer) being disbursed as follows:
(i)The sum of $87,332.80 to the husband; and
(ii)The balance then remaining to the Johnston Withers Solicitors Trust Account for and on behalf of the wife.
(b)The wife retain (and wherever necessary the husband shall do all such acts and things to transfer to the wife at her cost in all things):
(i)The Motor Vehicle 1 in the possession of the wife and registered in the joint names of the parties;
(ii)The Motor Vehicle 2 in the possession of the wife;
(iii)The furniture and effects in her possession;
(iv)Her property situated at E Street, Suburb F, in the State of South Australia, purchased with the monies received by her by way of partial property settlement orders made 23 December 2015;
(v)Those funds released to the wife pursuant to the partial property settlement orders made 23 December 2016 and 17 November 2016;
(vi)All savings and other investments in the wife’s sole name and/or in her possession or control);
(vii)The wife’s superannuation entitlements; and
(viii)Any other property (real or personal) in the wife’s sole name, possession or control.
(c)The husband retain (and wherever necessary the wife shall do all such acts and things to transfer to the husband at his cost in all things):
(i)The 200 G Shares presently in the joint names of the parties;
(ii)The furniture and effects in his possession;
(iii)Those funds released to the husband pursuant to the partial property settlement orders made 23 December 2015;
(iv)All savings and other investments in the husband’s sole name and/or in his possession or control;
(v)The balance of the husband’s superannuation entitlements, subject to the superannuation splitting orders specified herein; and
(vi)Any other property (real or personal) in the husband’s sole name, possession or control.
Paragraph 2 (inclusive) of this order is binding on the Trustee of H Super Fund (‘the Fund’):
(a)In accordance with section 90MT(4) of the Family Law Act 1975 (‘the Act’) the base amount of $173,154 is to be allocated to the applicant of the interest of the respondent in the Fund (Member No: …44);
(b)Pursuant to section 90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the respondent’s interest in the Fund, the applicant shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (‘the Regulations’) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the spittable payment would have been made but for this order;
(c)Paragraph 2(a) has effect from the operative time.
(d)The operative time for the purpose of paragraph 2(a) of this order is four (4) business days after the date of service of this sealed order upon the Trustee of the Fund;
(e)The applicant’s solicitors serve a copy of the sealed orders upon the Trustee of the H Super Fund within 7 days of receipt of the sealed copy of the orders;
As and from the making of these orders:
(a)The parties shall each pay and fully and forever indemnify the other with respect to their separate debts;
(b)The parties each pay their own costs of and incidental to these proceedings SAVE AND EXCEPT the costs of any transfer necessary to give effect to these orders as otherwise provided for herein;
(c)The parties are each restrained by injunction from pledging the credit of the other;
(d)The parties shall each do all such acts and things and sign all such documents as may be necessary to give effect to these orders;
(e)If either the husband or the wife shall refuse or neglect to execute any document necessary to give effect to the terms of these orders within seven (7) days after the same shall have been tendered to them for that purpose, then and in such case a Registrar or Deputy Registrar of this Honourable Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party, (together with making any necessary amendments and/or undertaking any such other acts and signing such other documents as may be required to give effect to these orders) AND the party in default shall pay the other party’s costs arising from such default on an indemnity basis.
Liberty is granted to either party to apply for any consequential orders.
IT IS NOTED that publication of this judgment under the pseudonym Bulow & Bulow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1674 of 2014
| MS BULOW |
Applicant
And
| MR BULOW |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application by the applicant, Ms Bulow, for final orders altering the property interests of the parties. The respondent, Mr Bulow, also seeks final orders altering the property interests of the parties. In addition to the property orders sought by the applicant, she seeks an order for costs against the respondent with respect to three contested interim applications during the course of these proceedings. The applicant’s costs were reserved to the trial on each of those applications. The respondent opposes the application for costs and says that his conduct with respect to opposing the applications to which I have referred was not unreasonable or of such a nature as to enliven the discretion to award costs in s.117(2) of the Family Law Act 1975 (Cth) (‘the Act’).
With respect to the substantive application, the applicant seeks orders that there be a 60:40 division of the non-superannuation assets of the parties in her favour. She also seeks an order that there be a splitting of the superannuation entitlements of the respondent in order to effect an equalisation of the parties’ superannuation entitlements.
Conversely, the respondent seeks final orders that there be a 60:40 division of the non-superannuation assets in his favour. He opposes an order that there be a splitting order in relation to his superannuation entitlements. In the submission of the respondent, the Court should take a three pool approach, namely the non-superannuation pool, a superannuation pool, and a post-separation superannuation pool of “independently administrated and developed assets with no contribution from the other party”. On the respondent’s case, that third pool should not be the subject of any orders. It represents the additional superannuation he has built up since separation. The respondent was self-represented at trial. At times his submissions with respect to the approach to be taken to superannuation were not entirely clear. Suffice to say, he opposes any order that would result in an equalisation of the superannuation entitlements of the parties based on his current level of superannuation. The parties agree that it is appropriate that there be orders altering the property interests between them. As will be apparent from these reasons, I am satisfied that in all the circumstances it is just and equitable to make orders altering the property interests of the parties to the marriage.[1]
[1] Section 79(2) Family Law Act.
Background
The respondent husband was born in Country H and at the time of trial was 54 years of age. The applicant wife was born in Australia and at the time of trial was 51 years of age. Prior to the marriage, the applicant obtained a Health Care Degree at J University. The respondent obtained Engineering qualifications in Country H. He migrated to Australia in 1991 and the parties married in 1993. At the time of the marriage the wife was employed as a health care worker at the Employer K. The husband was not employed at that time. The parties had four children, the first a daughter Ms L, was born in 1994. The second child, Mr M, was born in 1995. Ms N was born in 1997 and followed by the youngest child, Ms O, born in 1998.
At the time of marriage, the applicant owned a property at P Street, Suburb Q, and she says that she had about $40,000 equity in that property. She also owned a Motor Vehicle 3 and owned the furnishings inside the house. Her superannuation entitlements at that time were just under $11,000. The husband owned a Motor Vehicle 4 at the time of marriage.
In 1994, the husband started working at Employer R. The applicant wife received a separation package in 1995 in the amount of $26,896. She says that $17,000 from that package was applied to the mortgage on the P Street, Suburb Q home. On her account, $9,642 was deposited into a joint savings account used by the parties and applied towards home improvements, household expenses, and the university fees of the husband. In 1995, the applicant says that she transferred $8,000 in two transactions from the joint savings account to apply to the husband’s university fees.
The respondent was naturalised as an Australian citizen in 1995. He started working for the Australian Government at about that time.
The P Street, Suburb Q home was sold in 1996 for $124,250, with net proceeds of approximately $61,000, which the wife says were deposited into two term deposits and a savings account. The parties lived with the applicant’s parents for about 6 months pending the purchase of a new home.
In 1996, the parties purchased a property at B Street, Suburb C, for $126,500. This became what is now the former matrimonial home. This purchase was financed by the proceeds from the sale of the P Street, Suburb Q home and a loan obtained through the Westpac Bank in the amount of $80,000.
The respondent husband completed his studies at the S University in 1997 obtaining an Engineering Degree.
Significant renovations and extension works were performed on the B Street, Suburb C property. The extent to which the respondent contributed to the building works, and thereby saved the parties’ costs is a matter of dispute between them. Those building works took place between 2002 and 2004.
Another matter of dispute between the parties is the husband’s interest in a parcel of land in Country H, which on the wife’s case, he inherited on the death of his father. The respondent does not dispute the existence of this property but insists that he has a legal interest in the property only and has forgone any entitlement to a share in that property and that he will not ever realise a financial interest in it. I will not deal with this aspect of the evidence at this stage, but I note that a valuation obtained by the applicant suggests that the property was valued at about $19,000 Australian dollars in 2015.
The applicant wife obtained further qualifications by way of a Masters Degree from the S University in 2008. The respondent also undertook further studies and completed a Masters in Engineering in about 2009.
In 2011, the respondent says that his father’s estate was finalised. The applicant says that the husband appointed his sister to administer the property.
There is no dispute that separation occurred on 20 November 2012. The applicant vacated the former matrimonial home and the children, Ms N, who was at that time 15, and Ms O, moved with her into rental accommodation. The eldest children remained living in the former matrimonial home with the respondent.
In early 2013, the respondent began to make child support payments with respect to the children, Ms N and Ms O.
The parties were divorced in October 2014.
The husband resided in the former matrimonial home until 13 February 2015. During that period of time, he made regular mortgage payments. The respondent made no mortgage payments between February 2015 and July 2015 when the house was sold. The former matrimonial home was sold as a result of an order of this Court made on 26 March 2015.
On 23 December 2015, an order was made by this Court by way of partial property settlement that each party receive $80,000 from the proceeds of the sale of the former matrimonial home.
The children, Ms N and Ms O, both moved to Sydney in January 2016. In April of that year the applicant applied the proceeds of her partial property settlement towards the purchase of a property at E Street, Suburb F. The purchase price for that property was $510,000 and the applicant had a mortgage to the Westpac Bank in the amount of $468,000.
On 6 September 2016 and 16 November 2016 orders were made by this Court on the application of the wife with respect to discovery/disclosure.
The law
In this matter, I have taken the approach identified in Hickey & Hickey (2003) FLC 93-143 and accordingly, there are four interrelated steps that I am required to take in determining the appropriate orders for the division of the matrimonial assets. The first is to identify and value the property, liabilities and the financial resources of the parties as at the trial date. The second step requires me to identify and assess the contributions made by the parties pursuant to s.79(4)(a), (b) and (c) of the Family Law Act and then make an assessment of the entitlement of the parties based on their contribution and expressed in terms of a percentage of the net value for the property. Thirdly, I must identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g), as well as those matters referred to s.75(2) of the Act so far as they are relevant and consider whether any adjustments should be made to the contribution based entitlement of the parties. Finally I must stand back and consider the implications of the findings and the determination I have made and satisfy myself as to the orders being just and equitable in all of the circumstances of this case.
The asset pool
The identified assets are as follows:
| JOINT | HUSBAND | WIFE | STATUS |
| ASSETS | |||
| Balance of proceeds from sale of B Street, Suburb C | $268,138 | Agreed | |
| Partial Property Settlement Order 23/12/2015 | $80,000 | $80,000 | Agreed |
| Partial Property Settlement Order 17/11/2016 | $16,000 | Agreed | |
| ¼ share in Country H property | $4,794 | Disputed | |
| 200 G Shares at 2/11/2016 | $989 | Agreed | |
| Motor Vehicle 1 | $400 | Agreed | |
| Motor Vehicle 2 | $5,000 | Agreed | |
| Piano | $10,000 | Disputed | |
| TOTAL ($465,321) | $269,127 | $84,794 | $111,400 |
The husband contends, and the wife disputes, that the Piano, retained by the wife, should be included in the asset pool. At the outset of the trial, the husband disputed the value asserted by the wife for the Motor Vehicle 1 and the Motor Vehicle 2. He conceded during cross-examination the values of vehicles as asserted by the wife.
As I have already noted, the husband disputes that his share in the Country H property should be included in the assets pool.
Both parties have accumulated superannuation entitlements.
On the case for the applicant wife, the superannuation figures are as follows:
| JOINT | HUSBAND | WIFE | STATUS |
| SUPERANNUATION | |||
| K Fund at 31/10/2016 | $237,272 | ||
| P Fund at 31/10/2016 | $52,433 | ||
| H Fund at 11/11/2016 valued by Mr E | $636,013 | ||
| TOTAL ($925,718) | $636,013 | $289,705 |
On the case for the respondent husband, the figures are as follows:
| JOINT | HUSBAND | WIFE | STATUS |
| SUPERANNUATION | |||
| K Fund at 28/4/2016 | $221,243 | ||
| P Fund at 20/11/2015 | $51,703 | ||
| H Fund at 20/11/2015 valued by Mr E | $512,209 | ||
| TOTAL ($785,155) | $512,209 | $272,946 |
At the commencement of the trial, the husband indicated that he did not wish to cross-examine the superannuation expert, Mr E. His dispute is not with Mr E’s valuation, but rather, the husband submits that his post-separation contributions to superannuation should be excluded from the assets pool.
With respect to the dispute on the assets pool and superannuation, the parties made competing submissions as follows. As to the piano, it was the evidence of the wife that she retained this as part of the division of the furniture and contents of the former matrimonial home at the time of separation. She took the piano and the husband retained a table that had been purchased approximately 10 years prior to separation for an amount somewhere between $10,000 - $12,000. The applicant says these were the only items of furniture of significant value. On her account, the value of the piano is unlikely to be in the vicinity of $10,000 because it is a second hand item and she notes that the husband has not put on any expert evidence of its current value. The husband disputes that there was an agreement to divide the furniture and contents as stated by the wife and says that she simply took most of the contents for herself. He acknowledged that the value of $10,000 he assigned to the piano was essentially a matter of him giving it a notional value and that it was not a matter on which there was any expert evidence. Annexed to the applicant’s trial affidavit is a detailed list of the division of furniture and effects at the time of separation. That list is not signed by the parties, but the applicant says that it accurately reflects the pragmatic decision made by the parties at that time. I accept the evidence of the wife that she retained the piano at the time of separation and the husband retained a table as part of that informal division of property. The furniture and contents of the former matrimonial home have otherwise not been asserted by the parties as part of the assets pool. On the basis of the above finding, I exclude the piano from the assets pool.
The husband’s evidence as to the Country H property, is that whilst his name is on the title and he has a legal interest in it, he does not regard it as his own asset and that it in effect belongs to his sisters. He will never realise any interest in that property. He does not dispute the valuation of the property obtained by the wife. On the wife’s evidence, the husband inherited his share of that property on the passing of his father in about 2003. It should, she submits, for that reason be included in the assets pool on the basis of the respondent having a quarter share in the value of that property. It is difficult to know what to make of the evidence with respect to this property. On balance, I accept the evidence of the husband that whilst his name is on the title, his sisters also have a legal interest in the property and that he will not be able to, and does not intend, to realise a financial interest in the property. There is no evidence from his sisters as to their intentions with respect to the property. The relatively small value of the respondent’s share in this property suggests to me that it is at least plausible that he will not seek to realise his interest in it. For that reason, I exclude it from the pool of assets.
The orders made for the sale of the property included that it be professionally cleaned at the joint expense of the parties. The applicant says that the respondent refused to contribute towards the cost and that as a result she incurred an expense of $1,000.
While the children have now all reached adulthood, the applicant continues to contribute $275 towards the expenses of the daughter, Ms N, for rent and general living expenses in Sydney. Both the children, Mr M and Ms N, have telephone plans in the applicant’s name. She estimates that since separation she has paid telephone expenses for all four children in the amount of about $33.75 per week.
On the applicant’s case, the respondent had reduced his liability for making child support payments by making voluntary contributions towards his superannuation entitlements and leasing two motor vehicles as part of his salary package. By way of illustration, the applicant’s trial affidavit asserts that in March 2013, the respondent had an income for child support assessment purposes of $120,915, whereas her income was $107,502. Because of measures taken by the respondent to reduce his level of income, at the end of October 2015, his income was assessed as being $99,005. As far as the applicant is aware, the respondent has since separation remained employed in the same position. This was not disputed by the respondent.
The trial affidavit of the applicant includes a detailed schedule of child support assessments made since separation. It also includes a table of the log for minimum payments between February 2013 and October 2015 and a further table as to the actual payments she says the respondent has made. I will not set those tables out here. On her case, between 26 February 2013 and 28 October 2015, the respondent had paid $3,985.76 less than the required minimum payments during that time. The applicant says that since separation she has met the vast majority of the extra-curricular and co-curricular and health expenses of the children. This is, she says, in addition to contributing to their living expenses and paying health insurance for them from the date of separation. In total, minus health insurance, to the date of swearing her trial affidavit of April 2016, her evidence is that she has paid $66,986.24 towards the expenses for all four children, excluding health insurance but including some amounts expended for the children after they have attained the age of 18 years. During the corresponding period, she asserts that the respondent has made only one payment of $491 towards the children’s needs and this related to dental expenses.
Superannuation
I am satisfied that it is appropriate to deal with this matter using a two pool approach, namely considering non-superannuation assets and superannuation separately.
The respondent’s submission with respect to superannuation is as follows.
In his affidavit of 20 November 2016, the respondent states that he is “opposed to a split order of the superannuation interests”.[2] He states that he seeks “an equal division” of the financial value of the superannuation pool as at the date of separation. He proposes “any financial compensation of the difference to be drawn from the value of the other financial assets in the pool.”[3]
[2] Affidavit of Respondent, dated 20 November 2016, at [25].
[3] Ibid.
In his summary of argument, he asserts that he accumulated over half of his superannuation since separation, as opposed to the wife, the majority of whose entitlements were accumulated during the marriage. He submits that his higher superannuation accumulation was as a result of contributing 25% of his after tax salary into superannuation. He submits that he has limited time in which to further accumulate superannuation.
The submission of the applicant wife is as follows.
It is submitted by the applicant that an equalisation of superannuation entitlements is just and equitable because the respondent’s entitlements were accrued during the course of the marriage and those of the wife substantially during the course of the marriage.
The report of Mr E states that the respondent’s interest in the H Super Fund was valued as at 11 November 2016. As I have noted, the husband chose not to cross-examine Mr E. The interest was valued by Mr E as being $636,013.00.[4]
[4] Trial Affidavit of Applicant, dated 15 November 2016, Annexure ‘43”.
I am satisfied that it is appropriate in the circumstances to include the value of the respondent’s post-separation contribution as to superannuation in the assets pool. I accept the submission that the wife’s actions amount to a contribution towards the husband’s ability to accumulate superannuation both during the marriage and post-separation.
Accordingly, the assets pool is as follows:
| JOINT | HUSBAND | WIFE | STATUS | |
| ASSETS | ||||
| Balance of proceeds from sale of B Street, Suburb C | $268,138 | |||
| Partial Property Settlement Order 23/12/2015 | $80,000 | $80,000 | ||
| Partial Property Settlement Order 17/11/2016 | $16,000 | |||
| 200 G Shares at 2/11/2016 | $989 | |||
| Motor Vehicle 1 | $400 | |||
| Motor Vehicle 2 | $5,000 | |||
| TOTAL ($450,527) | $269,127 | $80,000 | $101,400 | |
| SUPERANNUATION | ||||
| K Fund Superannuation at 31/10/2016 | $237,272 | |||
| P Fund Superannuation at 31/10/2016 | $52,433 | |||
| H Fund at 11/11/2016 valued by Mr E | $636,013 | |||
| TOTAL ($925,718) | $636,013 | $289,705 | ||
| TOTAL ASSETS | $1,376,245 | |||
| LIABILITIES | |
| WIFE | |
| Mortgage | $468,000 |
| Credit Card (Westpac) | $3,765 |
| Credit Card (Mastercard) | $7,364 |
| SUBTOTAL | $479,129.00 |
| HUSBAND | |
| Total liabilities (not identified with any specificity) SUBTOTAL | $78,744.00 |
| TOTAL LIABILITIES | $557,873 |
| TOTAL | $818,372 |
Contributions – Sections 79(4)(a), (b) & (c)
The parties’ cohabitated for approximately 19 years. Cohabitation commencing on the date of their marriage.
Applicant’s evidence
On the applicant’s evidence, she made significantly greater contributions than the respondent at the start of the relationship. She owned a house at P Street, Suburb Q, which she estimates was worth $120,000 at the time of marriage, a Motor Vehicle 3 which was unencumbered, the household furniture and contents of the P Street, Suburb Q property, and had accrued $10,738 in superannuation entitlements. The mortgage on the P Street, Suburb Q property at the time of the marriage was $79,009.
The applicant denies that the respondent made improvements to the P Street, Suburb Q property which increased its value by $20,000. At the time she moved into the property, the paths, driveways and veranda had been completed. She provided photographic evidence of this. She acknowledges the respondent constructed a small pergola and did some paving underneath it with material purchased by her when he was unemployed.
She says that when she accepted a targeted separation package in February 1995 in the amount of $26,896 she used the sum of $17,000 to reduce the mortgage on the P Street, Suburb Q property to approximately $59,451. As a result, the mortgage repayments on the property were significantly reduced. This was shortly before the birth of their child Mr M, and at a time when the respondent was unemployed. Annexed to her trial affidavit is a copy of the Westpac Banking Corporation Statement of Account for the house loan which shows that $17,000 was deposited into that account on 6 February 1995 reducing the mortgage as the wife asserts. I accept that the applicant applied her separation package to the mortgage. I accept that the $9,642 remaining from the separation package was deposited into a joint savings account and applied to home improvements, household expenses, and the university fees of the husband. The home improvements included ducted air conditioning. Annexed to the applicant’s affidavit of November 2016 were bank statements showing the transfer of $5,000 from the separation package monies into a cheque account on 20 March 1995, she says to pay for the respondent’s university fees and the installation of the air conditioning. Also annexed to that affidavit is a bank statement from the cheque account that she says shows $3,000 from the separation package monies used to pay further university fees for the respondent, together with a copy of a letter from the S University enclosing a receipt.
On the wife’s case, the P Street, Suburb Q property was sold in 1996 for the amount of $124,250. The mortgage at that time was approximately $58,567 and accordingly the net proceeds from the sale were $62,530. A copy of the settlement statement for the sale of the property was annexed to her trial affidavit and I accept her evidence in this regard.
On the wife’s case, she made a greater contribution throughout the marriage as a homemaker and parent. She say she was the primary carer for the children. She says that she was responsible almost exclusively for household chores and shopping, and that she managed the finances and bills. With respect to the children, on her evidence she was exclusively responsible for transporting them to childcare, scheduling and attending medical appointments, making all arrangements for school and attending relevant interviews, and arranging and transporting them to extra-curricular activities. On her evidence, the husband was responsible for outdoor garden maintenance and from 2010 until separation, did most of the cooking and grocery shopping. She says that the husband collected the children from childcare and school two nights a week from 1999 to 2004, and was responsible for their care during the evenings. He also contributed to transporting the children to school between 2004 and 2008. The parties engaged the services of a domestic cleaner for 6 hours per fortnight between 2008 and 2011. They also had the assistance of the applicant’s mother caring for the child, Ms O, one morning a week between 2001 and 2002.
The applicant says that she did not inherit or receive any windfalls during the marriage. Her understanding is that in 2003, the respondent received an inheritance from his father of some land in the village of Town U in in Country H. As I have excluded that from the assets pool, I need not mention it further.
On the wife’s evidence, the respondent had the use of funds from the sale of a Motor Vehicle 5. He purchased that vehicle in approximately June 2011 at the completion of a lease, for approximately $15,000. The applicant says that this purchase was funded through Westpac Home Loan Account No. …79. He subsequently sold that vehicle but did not use the sale proceeds to discharge the loan. Accordingly that loan was discharged from the proceeds of the sale of the former matrimonial home. Whilst the applicant asserts that the respondent kept the proceeds of the sale of the vehicle, she does not know what was done with those monies. At the time of separation, on 20 November 2012, the applicant moved out of the former matrimonial home with the two youngest children who were still at school. She moved into a rental property. She says that the respondent commenced child support payments in approximately April 2013. His obligation to do so ceased in 2016, when the youngest child turned 18 years of age.
The respondent had the benefit of living at the former matrimonial home between November 2012 and July 2015. The applicant acknowledges that between November 2012 and 13 February 2015 he made repayments in the amount of $69,200 towards the three home loans relating to that property. He also paid for the utilities during that period in the amount of $12,450. On the applicant’s account, the respondent ceased making mortgage repayments between 13 February 2015 and June 2015 when the property was sold. The applicant points to this as being a period of time in which the respondent essentially resided at the former matrimonial home rent free for that period. Her estimate is that the property could have been rented for about $700 per week for 138 weeks, which amounts to $96,000, or about $26,000 more than the mortgage repayments made by the respondent during that period. There is no expert evidence as to rentals for accommodation of a similar kind in the area at that time, or of the uptake on rentals. However, it is clear that the respondent had the benefit of not having to pay for rental accommodation and I have taken that into consideration. No issue as to arrears arises because it is agreed that mortgage repayments were in advance of the repayment schedule as at the date of separation.
The applicant says that notwithstanding the considerable payments made by the respondent towards the mortgages, he nonetheless received a benefit between the date of separation and the date of sale because his repayments to the mortgage did not exceed the amount of rent that could have been earnt on that property during the relevant 138 week period.
The applicant says that the expenses she incurred in relocating from the former matrimonial home to rental accommodation amounted to $42,052.85.
On the wife’s evidence, the respondent had only one asset of any significance at the time of the marriage which was a Motor Vehicle 4. She is not aware of him having any liabilities at that time.
As I have already noted, the wife’s evidence is that the husband was unemployed at the date of marriage, having only arrived in Australia in approximately 1991.
The wife says that the former matrimonial home was purchased using the proceeds from the sale of her P Street, Suburb Q property with the balance financed by a loan from Westpac in the amount of $80,000. Annexed to her trial affidavit is a copy of the relevant First Option Home Loan Statement to this effect. In the hiatus between selling the P Street, Suburb Q property and moving into the former matrimonial home, the parties had the benefit of residing with her parents for a period of about 6 months during which time they lived rent free but shared living expenses with her parents.
It is apparent from the trial affidavits of the applicant wife that she was assiduous in keeping records relating to financial matters throughout the course of the marriage. Her trial affidavit dated 19 April 2016 includes a table that succinctly sets out her evidence as to the employment history and direct financial contributions made by the parties during the marriage. It is convenient to include that table in these reasons.
| Year | Wife’s income | Husband’s income | Wife’s employment | Husband’s employment | Comments |
| 1994 | $38,162 | $0 | Employer K, Permanent Fulltime | Employer R, casual (commenced 1994) | Ms L born 1994 |
| 1995 | $13,306 | $23,981 | TSP from Employer K in 1995 | Commenced 1995 with public service permanent fulltime | Mr M born 1995 |
| 1996 | $4,079 | $30,379 | Employer V, health care worker | Public service | |
| 1997 | $6,665 | $56,163 | Employer V, health care worker | Public service | Ms N born 1997 |
| 1998 | $0 | $6,442 | Home Duties | Public service | Ms O born 1998 |
| 1999 | $1,947 | $59,794 | Employer V, health care worker | Public service | |
| 2000 | $6,605 | $60,566 | Employer W, health care worker | Public service | |
| 2001 | $17,874 | $64,601 | Employer W, health care worker | Public service | |
| 2002 | $33,463 | $65,812 | Employer V, health care worker | Public service | Ms O started school in Term 4 |
| 2003 | $37,705 | $69,643 | Employer V, Part time, health care worker | Public service | |
| 2004 | $49,595 | $73,474 | Employer K, health care worker | Public service | Wife returned to work full time in 2004 |
| 2005 | $60,347 | $77,305 | Employer K, health care worker | Public service | |
| 2006 | $79,790 | $81,136 | Employer K, health care worker | Public service | |
| 2007 | $80,426 | $89,315 | Employer K, health care worker | Public service | |
| 2008 | $80,792 | $96,130 | Employer K, health care worker | Public service | |
| 2009 | $92,103 | $102,464 | Employer K, health care worker | Public service | |
| 2010 | $96,653 | $110,771 | Employer K, health care worker | Public service | |
| 2011 | $99,639 | $110,564 | Employer K, health care worker | Public service | |
| 2012 | $107,502 | $117,604 | Employer K, health care worker | Public service |
As can be seen from the above table, the applicant’s direct financial contributions reduced with the arrival of the children and began to significantly increase with her return to work full time in early 2004. On the applicant’s case, the total amount of income earned by her between 1994 and 2012 was $906,653. The amount earned by the respondent during the same period is $1,296,144. A consideration of these figures cannot be permitted to reduce the assessment of contributions to a mathematical formula, but it is one matter to which I have regard.
The respondent elected not to cross-examine the applicant wife on her trial affidavit. This was a considered decision and he acknowledged at the time that he accepted that there were differences in their respective positions.
The respondent’s evidence
The respondent agrees that at the time of marriage, his only substantial asset was his Motor Vehicle 4 which he values at about $2,000. In addition however, he said that his personal effects would have also been worth about $2,000. He agrees that he did not bring any liabilities to the relationship.
The husband disputes that the wife had approximately $10,000 in superannuation at the time of marriage and said that she did not enter the K Fund until 1999, or the P Fund until 1995.
He disputes that the P Street, Suburb Q house was worth about $120,000 at the time of the marriage because he said that it needed further work and he asserts that there was in effect no equity at all in that property because of a depressed market in 1993. He asserts that the house was worth no more than the amount of the mortgage that existed at that time. He did not put on any expert evidence as to the state of the housing market in 1993 or 1994. He did not direct me to or produce any bank statements that supported that proposition. He estimates that he performed home improvements worth approximately $20,000 to the property in the two and half years that he lived there prior to sale. The respondent did not produce any expert evidence as to the value of the work he claims to have performed or whether that work did have the effect of increasing the value of the home and his estimate appears to be simply a figure he has settled upon in his own mind.
On the husband’s case, the wife should not be given any credit for the $17,000 from her super fund because whilst he does not dispute that it was applied to the mortgage, that money was obtained during the course of the marriage and the decision to accept the package was a “joint family planning decision”.[5] That may be so, but it was by virtue of the wife’s employment over a period of time mostly prior to the marriage that she came to be in a position to accept a super fund in the amount she did. Further, the husband asserts that the wife should not get credit for the contribution made by the P Street, Suburb Q property toward the purchase of the former matrimonial home in B Street, Suburb C. The point that he makes is that the asset was no longer hers once they became married, and that it should then be regarded as an asset of the family. By his account, the proceeds from the sale of the P Street, Suburb Q property were a, “component of the family financial transactions during marriage”, and that it was his income that effected a reduction of the mortgage over that property and which contributed significantly to the equity the parties had in it at the time of sale. That submission has to be viewed in light of the wife’s evidence, not disputed by the husband, as to his income in 1995 and 1996. Whilst greater than that of the wife, it was not particularly substantial. With respect to the improvements that he made to the property prior to sale, he says that he performed landscaping, paving, built a pergola and a veranda and installed air-conditioning and gas heating. I note that on the wife’s case, she says, and I accept, that the air-conditioning was installed with some of the monies from her super fund and disputes the extent of the work the husband claims to have done.
[5] Affidavit of Respondent, filed 17 May 2016, at [14].
The respondent denies that he was unemployed in 1995, insisting that he started work during 1994 with Employer R. He points out that on the wife’s own calculation as to their respective earnings, he was the main income earner during the marriage. His only period of unemployment was in the first six months of marriage, but he says that in any event he did casual work for cash that brought about $5,000 into the home.
Since 1995, the respondent has worked full time with the Australian Government obtaining “significant salary increases” through promotions. He says that he made a significant contribution to the value of the former matrimonial home prior to the family moving in. He says that he took annual leave on full pay and carried out extensive work to renovate the property to a suitable living standard.[6] He estimates that this created a saving to the family of $35,000.
[6] Affidavit of Respondent, filed 17 May 2016, at [20].
In addition, the respondent asserts that savings from his wages in the amount of about $30,000 were also applied to the deposit for the purchase of the former matrimonial home. Between 1996 and 1997, he claims to have performed further renovation works to the former matrimonial home. It was his contribution by way of his significant income that caused the mortgage to be reduced from $80,000 to $45,000 by 2001.[7] This in turn enabled the family to take out a further loan for $150,000 to build extensions to the property. Those extensions, he says, were built by him during five months of paid long service leave and the result was that the value of the house increased from $126,500 in 1997 to approximately $600,000. He says his contribution meant that the family got a $350,000 extension for under $150,000 and that, effectively, his labour has resulted in an increase to the families equity in the order of $200,000. There is no doubt that the extension work undertaken on the property was substantial.
[7] Ibid at [23].
The applicant disputes the respondent’s evidence as to the extent of his input to the renovations. On her account the net sale proceeds from the P Street, Suburb Q property were $61,651. She says that they were applied in the following manner:
a)$37,000 was deposited into a term deposit, Account No. …14. Her affidavit of 15 November 2016 annexes a copy of the relevant bank statement;
b)$10,000 was deposited into a term deposit, Account No. …06. The relevant statement is annexed to the affidavit I have just referred to; and
c)The balance of $15,500 was deposited into Account No. …90 and she has annexed a copy of the relevant bank statement to her affidavit.
Of the $15,500, the applicant says that $6,500 was used towards the purchase of the B Street, Suburb C property and $9,000 was used towards improvement of the bathroom and floors before they moved in. She has annexed a copy of the relevant bank statements to her affidavit of November 2016.
The applicant takes issue with the respondent’s claim that he contributed a sum of $30,000 from his savings towards the purchase of the former matrimonial home. The property was purchased for $131,577. She claims the amount was paid in the following manner:
a)$6,500 from Account No. …90;
b)$10,086 from term deposit Account No. …06. Annexure 29 is a copy of the relevant maturity statement for that account;
c)$34,991 was used from term deposit Account No. …14. A copy of the maturity statement for that account is annexed to the applicant’s affidavit as Annexure 30; and
d)$80,000 was obtained from loan Account No. …18, and a copy of the relevant bank statement is annexed as Annexure 31 to the applicant’s November 2016 affidavit.
On the wife’s account, the mortgage on the property increased from $80,000 in 1997 to $285,266 at settlement in 2015.
With respect to the renovations that were conducted on the former matrimonial home, the applicant says that these were all completed by registered builders and trades people and that this was a condition required by the Council building inspector. She says that they had initially set a $100,000 budget and secured a loan to fund the project. The costs of the renovation were more than anticipated and they were required to increase the mortgage by $205,266 by the time of completion. She says that both she and the respondent contributed significantly to the project and that her contribution was in managing the finances, paper work, quotes, bills, interior design and scheduling. The increase in the value of the house was from $126,500 in 1997 to $740,000 in 2015 when it was sold. On her account, the increase of value in the property was mainly due to the work completed by paid trades people and general house appreciation. By the time of sale in 2015, the applicant says that the parties had invested a total of $378,500 into the former matrimonial home and achieved less than a 100% increase in contrast to median property prices in the area which achieved a 300% increase during the same period of time.
The respondent also included in his trial affidavit a table of the respective income earned by the parties during the marriage. His table is largely a replication of the figures provided by the applicant except that he claims to have earned approximately $5,000 cash in 1994. It also states that from 2003 until 2012, his contribution should reflect that his income was reduced because of car leases he obtained by way of salary sacrifice. The value of those leases was as follows:
Year
Husband Income
+ Car Lease
Total Income
2003
$69,643
+$12,500 car 1 lease
$82,143
2004
$73,474
+$12,500 car 1 lease
$85,974
2005
$77,305
+$12,500 car 1 lease
$89,805
2006
$81,136
+$12,500 car 1 lease
$93,636
2007
$89,315
+$13,750 car 2 lease
$103,065
2008
$96,130
+$14,700 car 2 lease
$110,830
2009
$102,467
+$14,700 car 2 lease
$117,167
2010
$110,771
+$14,700 car 2 lease
$125,471
2011
$110,564
+$12,250 car 3 lease
$122,814
2012
$117,604
+$9,700 car 3 lease
$127,304
Findings with respect to contributions
These findings are in addition to any matters on which I have earlier made findings during the course of traversing the evidence.
I am satisfied that the applicant made a greater financial contribution at the outset of the relationship by virtue of her higher income at the date of marriage and the equity that she had in the P Street, Suburb Q property. I accept the evidence of the applicant as to her purchase of the land on which the P Street, Suburb Q property was constructed and her evidence as to financial matters associated with the construction of that home.[8] Whilst there is no expert valuation of that property as at the date of marriage, I accept as reasonable, the wife’s estimation that it was worth in the vicinity of $120,000. I accept her evidence that the mortgage over that property was approximately $79,000 at the date of marriage. I accept that on those figures, she brought equity of up to approximately $40,000 to the relationship. I accept that she had superannuation at about the time of marriage of several thousand dollars and that her State Superannuation Benefit Scheme account changed to a K Fund Scheme in August 1999.[9] In addition, I accept that the proceeds of the applicant’s Targeted Voluntarily Separation Package (‘TVSP’) were applied to the mortgage of the P Street, Suburb Q Property ($17,000) and that the balance of the TVSP ($9,632) was placed into a joint savings account and applied towards the benefit of the parties, including air-conditioning, general home improvements and household expenses. I accept the applicant’s evidence in relation to the monies applied from the proceeds of her super fund towards the respondent’s university fees.[10] I also accept that the Studybank Scheme covered the applicant from 1996 onwards but not for fees incurred by the respondent in 1995.[11] I reject the submission of the respondent that the $26,896 paid to the applicant by way of her TVSP should not be counted as a contribution made by her. As I have noted, it was by virtue of the wife’s employment that she came to be in a position to accept the package. It was no doubt a joint decision by the parties that she should accept the package, but it was dint of the wife’s labour that the opportunity arose.
[8] Trial Affidavit of Applicant, dated 15 November 2016, at [64].
[9] Trial Affidavit of Applicant, dated 15 November 2016, Annexure “-12”.
[10] Ibid, at [65].
[11] Ibid, Annexure “-36”.
I accept that the respondent did make some contribution towards the upkeep and maintenance of the P Street, Suburb Q house whilst the parties lived there. I reject, and there is no evidence beyond the assertion of the respondent, that this work could reasonably be valued at $20,000. The respondent did not cross-examine the applicant and so did not challenge her evidence that the most substantial contribution he made to that property was the construction of a small pergola. It is difficult in the circumstances to assign a monetary value to the respondent’s contribution to that property. Allowing for the fact that he did perform maintenance and construct a pergola, it is appropriate to assign a notional figure to his contribution of $5,000.
The respondent produced no detailed or supporting evidence with respect to his assertion that it was his income in 1995 and 1996 that reduced the mortgage on the property. He had minimal income during those years. I reject his evidence in that regard. I accept that the true position was as deposed to by the wife.[12] In any event, at the time of the purchase of the former matrimonial home at B Street, Suburb C in 1996, the applicant had made a significantly greater contribution towards the purchase price than the husband. It was the applicant’s initial contribution in terms of the P Street, Suburb Q property that provided the foundation for the parties being able to purchase the former matrimonial home at B Street, Suburb C.
[12] Ibid, at [70].
I turn to the contributions made by the parties after the purchase of the former matrimonial home. I accept that the respondent made a significant contribution to preparing the former matrimonial home for the family before they moved in. It is difficult to assign a monetary value to that work in the absence of detailed evidence as to the work done and the savings created for the family. Beyond his estimation, there appears to be no particular basis on which to confidently assign a value of $35,000 to that. I reject his evidence that savings from his wages in the amount of $30,000 were applied to the deposit on the former matrimonial home. I accept the evidence of the applicant wife as to the source of the funds used to purchase the former matrimonial home. It was purchased using the proceeds of the sale from the P Street, Suburb Q property and a bank loan in the amount of $80,000.
With respect to the substantial additions and renovations undertaken to the former matrimonial home, I accept that the respondent husband took long service leave and that he made a contribution to the value of the property by managing the project. I accept the evidence of the wife that the building and renovation works were carried out in the main by qualified tradespeople. I also accept that the applicant made a significant contribution to this process and that she also performed work towards the project of the type she has described. In spite of the assertions of the respondent as to the value of his contribution to the overall value of the former matrimonial home, it is not possible on the evidence to identify with any precision what that was. He made a significant contribution to the project. It must also be borne in mind that at least in part, the ultimate value of the former matrimonial home at the time of sale must to a significant extent have been affected by an appreciation in the value of residential properties between 1997-2015.
I turn to the contribution made by each of the parties towards the welfare of the family, including any contributions made in the capacity of homemaker and parent. I take into account the relative amounts of income earned by the parties during the period of the marriage. It is clear that the earnings of the respondent husband were significantly greater than those of the applicant during the relevant period of time. Nonetheless, the applicant did make a substantial contribution by virtue of her earnings. Similarly, the respondent’s higher earnings, particularly when the children were young, enabled him to accrue a much larger amount in superannuation. I also take into account that during the period of the marriage, the respondent had the benefit of undertaking further tertiary studies that led to his improving his qualifications.
With respect to the evidence of the wife that the husband had the benefit of the proceeds of sale of the Motor Vehicle 5, I accept her evidence. I accept the respondent leased the vehicle in 2007 and that in 2011 he persuaded the wife to take out a loan in joint names for $20,000 to finance the purchase of it at the end of the lease. It is a reasonable inference that the husband sold the Motor Vehicle 5 at the time of leasing the Motor Vehicle 6 shortly thereafter. I accept there was $15,000 owing on the Motor Vehicle 5 when it was disposed of and that the loan for that vehicle was only discharged on the sale of the former matrimonial home. Whatever the sale proceeds for the Motor Vehicle 5, they have not been accounted for and there is no evidence that the wife received any of the proceeds.
Both parties contributed towards homemaking and parenting duties. I accept that the applicant was the primary carer for the children during the course of the marriage. I accept her description of the respective homemaking roles and duties performed by the parties during the marriage. The respondent was certainly an active parent and engaged with the homemaking role in a significant way. I am of the view that the applicant has demonstrated that she made a greater contribution towards homemaking and parenting over the relevant period.
As to post separation contributions towards the children’s expenses, the respondent states that he met the majority of expenses for all four children. He points out that he paid $41,702 in child support with respect to Ms N and Ms O and says that this should be directly deducted from the $66,986.24 deposed to by the applicant.
It is not disputed that the respondent remained living in the former matrimonial home at B Street, Suburb C from the date of separation on 22 November 2012 until 17 July 2015. He made mortgage repayments in the total amount of $69,200 from separation until 13 February 2015. During the same period, he paid utilities for the property in the total amount of $12,450. From that point until the property was sold in June 2015, he effectively lived rent free. The applicant’s assertion, that had the respondent vacated the former matrimonial home at the time of separation, it could have been rented for an amount of $700 per week for 138 weeks in the total amount of $96,000 is speculation. No doubt it would have been possible for the property to be rented for a significant amount had the respondent vacated, but without proper evidence as to the state of the rental market in B Street, Suburb C over the relevant period, including matters such as occupancy rates and average rentals for comparable properties, I am unable to make a finding that the potential amount of rental earned would have been as asserted by the applicant. I find however, that even given the amounts he paid towards repayment of the mortgage, the respondent has received a saving on rent that he would otherwise have had to pay in the event that he had vacated the former matrimonial home. The respondent did not dispute that since vacating the former matrimonial home, the applicant incurred costs of $42,052.85 associated with relocation.
I am satisfied, as the applicant asserts, that when the respondent finally provided copies of some of his payslips, in partial satisfaction of an order made by me on 28 September 2016, he redacted information from parts of these documents. I am satisfied that the respondent’s failure to provide proper disclosure has prevented the applicant from being able to objectively assess for herself the respondent’s income and earning capacity at the time of the trial. The Court has also been left to piece together the most likely total amount of earnings before salary sacrificing. I accept the matters deposed to by the applicant at paragraphs 35-46 of her trial affidavit dated 15 November 2016. I am satisfied that if the respondent received the pay increase for Executive Level in 2013, and if there were not subsequent increases for his level of employment, and if he received no promotions, the total salary for which he would be eligible would be $133,905.00.
I remind myself of the observations of the Full Court in Petruski & Balewa[13]:
“The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship …”
[13] [2013] FamCAFC 15.
I am not to conduct a minute or scientific analysis when considering the assessment of contributions made by the parties. Taking the holistic approach, I have considered the evidence of initial contributions and both direct and indirect financial contributions during the course of the marriage and post-separation. I am satisfied that the relative contributions should be assessed on the basis of the applicant having contributed 60% and the respondent 40% to the net value of the assets.
I am satisfied that it is appropriate to order that there be an equalisation of the parties’ superannuation. I accept the evidence of the wife that at the commencement of the relationship, she had already accumulated a significant amount by way of superannuation. The husband had no superannuation accumulated at the time of cohabitation. However, the vast majority of superannuation entitlements of both of them were accumulated during the course of the marriage. There is not a significant disparity in age between the parties. Both have a significant number of years in the work force potentially ahead of them and it would be many years until either of them will be able to access their entitlements. In part, the level of entitlements accumulated by the husband are as a result of his ability to work full time at a time when the wife was primarily involved in caring for the children and otherwise engaged in home making.
Section 79(4)(d), (f) & (g)
I am satisfied that the orders proposed respectively by each of the parties will not affect the earning capacity of either of them. There is no other order under the Family Law Act presently affecting either party to the marriage, or a child of the marriage. I take into account the husband has paid child support with respect to the two younger children between April 2013 and March 2016 in the amount of $41,702.00.
Financial resources and needs – s.75(2)
The applicant was born in 1965 and is 52 years of age. At the date of swearing her trial affidavit, she had not re-partnered since separation. She is employed as a health care worker, earning $2,597 per week. She regards herself as being in average health and has not identified any particular ailment or disability that might prevent her from working in the future.
The respondent was born in 1962 and is 55 years of age. At the date of swearing his trial affidavit, he had not re-partnered. The applicant asserts that the respondent is in good health and the respondent has not himself identified any health issues which might prevent him from pursuing his present career. He is employed as a Manager. His trial affidavit on 17 May 2016 asserts that he earned $1,931 gross per week. Attached to that affidavit as Exhibit -19 is a PAYG Payment Summary for the year ending 30 June 2015 which indicated that his gross salary was $100,399. That does not appear to take into account any salary sacrificing that he is making. His updated trial affidavit indicates that in the financial year ending 30 June 2012, his income was $117,604 plus $9,700 applied towards a car lease. On the whole, I was not satisfied that the respondent disclosed all relevant material in his possession or control as to his income and level of earnings.[14] I note that I have already made a finding as to the likely minimum total salary for which the husband is eligible.
[14] Section 75(2)(o).
Neither party has the care of a child who is under the age of 18 years.
Both parties appear to be in stable employment and have a significant capacity to earn an income in the foreseeable future.
Whilst the two youngest children, Ms N and Ms O, are both over the age of 18 years and have moved to Sydney the applicant continues to provide financial support to both of them. At the time of trial, the weekly amount paid by the wife to Ms N was $275.00. As at the time of swearing her trial affidavit, the applicant also paid for mobile phone plans for all four children.
The applicant applied the proceeds of the partial property settlement in this matter towards the purchase of a property at E Street, Suburb F and at the time of trial had a mortgage in the amount of $468,000. Her fortnightly mortgage repayments are $1,100.
The respondent does not appear to have purchased a property since the former matrimonial home was sold. He will need to provide for his accommodation in the future, either by way of rental payments or by purchasing a property.
I take into account that both parties are entitled to a standard of living which is reasonable in all of the circumstances, although on the submissions made by the parties, this consideration was not stressed. It is nonetheless relevant.
Neither party seeks an order for maintenance.
I take into account the respective ages of the parties and am of the view that this is not a significant issue in the sense that there is only a three year gap in their ages.
In all of the circumstances, I am satisfied that it is not necessary or appropriate to make an adjustment with respect to the contribution based entitlement of the parties.
Justice and equity
Pursuant to the findings I have made in these reasons, I am satisfied that it is just and equitable to order that there be a division of the non-superannuation assets in favour of the wife on a 60:40 basis.
I am further satisfied that it is just and equitable to order an equalisation of superannuation entitlements on the basis of the combined superannuation pool including the husband’s post-separation contributions.
The total non-superannuation assets pool is $450,527. A 60:40 division in favour of the wife would see her receive an amount of $270,316.20 and the husband $180,210.80. Taking into account the amounts awarded to both parties by way of partial property settlements (for the wife $80,000 and $16,000, and for the husband $80,000), the adjusted figures on a division of property are for the wife $174,316.20 and for the husband $100,210.80.
The total superannuation pool is $925,718. An equalisation of superannuation would see them both with an amount of $462,859.00 in superannuation.
To summarise, based on the above figures and taking amounts already paid by way of partial property settlement into account, the orders I propose to make will see the wife with assets and superannuation of a combined value of $733,175.20, and liabilities of $479,129. It will see the husband with assets and superannuation of a combined value of $643,069.80 with liabilities of $78,744.00.
For practical purposes, taking into account the wife retaining the Motor Vehicle 1 and the Motor Vehicle 2, the above calculations would see her receive a lump sum of $168,916.20. Taking into account that the husband retains the G Shares valued at $989.00, the above calculations would see him receive a lump sum of $99,221.80. However, as will be seen later in these reasons, I have made an award of costs against the respondent husband. Allowing for the payment of costs from the respondent to the applicant, the applicant will receive a lump sum of $87,332.80. The lump sum payable to the wife increases in a corresponding amount and she will receive a lump sum of $180,805.20.
Applicant’s application for costs orders
In the absence of an agreement as to the sale of the former matrimonial home, it was necessary for the Court to hear argument as to the method and terms of the proposed sale. Judge Mead ordered that each party file affidavits dealing with their proposals for the method of sale.
The husband set out his proposal under cover of an affidavit. He proposed that there be only two open inspections prior to the auction of the house and that it should be auctioned without a reserve price being set. The wife’s affidavit proposed that a reserve should be set in accordance with a single expert valuation. She annexed to an affidavit a copy of an advice from an agent as to the preferable method for sale and the terms which should be offered at auction. The matter proceeded to argument on 26 March 2015 and her Honour ruled in favour of the proposal put forward by the wife. The proposals of the wife as to the method of sale were clearly more reasonable, in accordance with expert advice and inherently more likely to maximise the sale price of the house.
The wife seeks an order for costs in relation to that application pursuant to Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) as follows:
Item 3(a) - Interim or Summary Hearing $1,801
Item 13 – Daily Hearing Fee – Short Mention $1,081
Item 12 – Advocacy Loading $540.50
TOTAL $3,422.50
The respondent also opposed the making of an order for an interim property settlement. Pursuant to an Application in a Case filed by the wife, she sought that the amount of $80,000 be paid to her from the proceeds of the sale of the former matrimonial home. That matter had been the subject of correspondence between the parties and the husband was opposed to such an order. He opposed the orders sought by the wife in a Response which was filed to the Application in a Case. The matter proceeded to argument and the respondent was entirely unsuccessful in his application to oppose the order. Her Honour Judge Mead made an order for partial property settlement in favour of each of the parties in the amount of $80,000. Costs were reserved.
The applicant seeks an order for costs for that application in identical terms to the costs sought in the relation to the argument with respect to the terms and conditions for the sale of the house.
On 20 July 2016, the applicant filed an Application in a Case seeking orders for discovery against the respondent. The documents sought related to the present state of his finances and in particular sought documents relating to his income and bank accounts. Once again, the applicant asserted that she had attempted to resolve this issue by way of correspondence but that she received no proper response from the respondent. The respondent filed a Response to the Application in a Case opposing the orders sought. On 6 September 2016, orders were made by the Court that each party provide discovery on oath. The applicant asserts that both parties complied with that order but that nonetheless a further application was required before me on 28 September 2016 because of the inadequacy of the discovery made by the husband. On that day, I made further orders requiring the husband to make proper disclosure of documents as basic as Income Tax Returns and pay slips and I reserved the costs of the applicant. A thorough chronology of the attempts made by the applicant to pursue disclosure from the respondent is contained in her affidavit of 15 November 2016.[15] I am satisfied that the husband has not made full disclosure in this matter and that such disclosure as he did make was tardy and ultimately as a result of the orders made.
[15] Affidavit of Applicant, dated 15 November 2016, at [3]-[33].
With respect to the disclosure arguments, the applicant claims costs pursuant to Schedule 1 of the Rules as follows:
Item 3(a) – Interim or Summary Hearing $1,801.00
Item 13 – Daily Hearing Fee – attendance 6/9/2016 $1,081.00
Item 12 – Advocacy Loading – attendance 6/9/2016 $540.50
Item 13 – Daily Hearing Fee – attendance 28/9/2016 $1,081.00
Item 12 – Advocacy Loading – attendance 28/9/2016 $540.50
TOTAL $5,044.00
The total costs claimed by the applicant with respect to the above arguments is $11,889.
As a general rule, parties to proceedings under the Family Law Act must bear their own costs.[16] However, if the Court is of the opinion that there are circumstances justifying it doing so, it may, subject to subsection (2A) make such order as to costs as it considers just. Section 117(2A) relevantly requires the Court to have regard to the financial circumstances of each of the parties and the conduct of the parties to the proceedings including the approach they have taken to discovery and whether the proceedings were necessitated by a party to the proceedings to comply with the previous orders of the Court. Finally the Court must take into account whether a party to proceedings has been wholly unsuccessful in the proceedings. The term proceedings includes an incidental proceeding in the course of or in connection with the overall proceedings.[17] I have considered the application for costs having regard to the matters identified in s.117(2A). I am satisfied that the opposition of the respondent to the perfectly orthodox approach proposed by the wife for the sale of the former matrimonial home was unreasonable and caused her to incur unnecessary costs. I am satisfied that the respondent unreasonably opposed the orders sought by the wife for partial property settlement and caused her to incur unnecessary costs. I am satisfied that the approach of the husband to disclosure and discovery was little short of obstructive. It caused the wife to incur unnecessary costs. He was wholly unsuccessful in his opposition to each of those applications.
[16] Section 117(1) of the Act.
[17] Section 4 of the Act.
I am satisfied that the circumstances justify making an order for costs in relation to the above applications. I consider it just to make orders for costs in the amounts sought by the applicant and accordingly I award the applicant costs in the total amount of $11,889.
It is appropriate to make an adjustment to the amount payable to the husband to reflect a deduction for the total of the costs order. As I have already noted, my orders reflect such a deduction from the amount payable to the respondent and a corresponding increase in the amount payable to the wife.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding one hundred and nineteen paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 22 November 2017
CORRECTIONS
Cover sheet and orders: Page 1 – ‘Hearing date:’ changed from ‘23 November 2016’ to ’23 & 24 November 2016’.
Cover sheet and orders: Page 1 – ‘Delivered on:’ changed from ‘21 November 2017’ to ‘22 November 2017’.
Reasons for Judgment: Page 43 – ‘Date:’ changed from ‘21 November 2017’ to ‘22 November 2017’.
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