C & F
[2006] FMCAfam 64
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & F | [2006] FMCAfam 64 |
| FAMILY LAW – Property settlement – only asset is whether invalidity pension is capable of being subject to a split-period of service of 30 years with post separation period of 12 years – how to determine a just and equitable order. |
| Family Law Act1975 Family Law Legislation Amendment (Superannuation) Act2001 Military Superannuation and Benefits Act1991 Superannuation Industry (Supervision) Act 1983 |
| C & C (2005) FLC 93-220 Gould (1996) FLC 93-023 PJM & STM (2005) FCA 1245 |
| Applicant: | C |
| Respondent: | F |
| File Number: | BRM10199 of 2004 |
| Judgment of: | Baumann FM |
| Hearing date: | By written submissions with the final submission filed 9 September 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 31 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blond |
| Solicitors for the Applicant: | Edwards Lawyers |
| Counsel for the Respondent: | Mr Erskine |
| Solicitors for the Respondent: | Stockley Furlong |
ORDERS
That the Husband shall within 7 days of this order take any and all such steps to make application to the Trustee of the Military Superannuation Benefits Scheme (“Trustee”) for immediate payment of the ‘lump sum’ portion of the Husband’s superannuation entitlement.
That the Husband shall, contemporaneous with the application referred to in Order 1 hereof, direct the Trustee to pay the ‘lump sum’ portion of his superannuation entitlement to his Solicitors Trust Account to be dealt with in accordance with these Orders.
Upon receipt of such funds the Husband by his Solicitors shall forthwith give notice in writing to the Wife’s Solicitors of receipt of the ‘lump sum’ portion of the Husband’s superannuation entitlement.
The Husband be restrained from dealing with the ‘lump sum’ portion of his superannuation entitlement other than in accordance with these Orders.
The Husband shall within 14 days of receipt of the ‘lump sum’ portion of his superannuation entitlement cause his Solicitors to:
(a)pay to the Wife out of the ‘lump sum’ portion of his superannuation entitlement an amount equivalent to Thirty-Five (35%) of the net proceeds (i.e. after any taxation liability); and
(b)pay to the Husband an amount equivalent to the remaining Sixty-Five (65%) of such net proceeds;
As to the ‘pension portion’ of the Husband’s superannuation entitlement, it is further Ordered that:
(a)In accordance with section 90MT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of F from his interest in the Military Superannuation and Benefits Scheme (the MSB) the Wife is entitled to be paid by the Trustee of the MSB 35% of the splittable payment and there shall be corresponding reduction in the amount F would be entitled to receive but for these Orders.
(b)The operative time for Order 1 is 4 business days after service of the final Orders on the Trustee.
Unless otherwise specified in this Order each party:
(a)is solely entitled to the exclusion of the other to all property (including choses in action) in the possession of that party as at the date of this Order;
(b)is solely to the credit of any monies in any bank accounts in his or her name;
(c)is to forego any claim he or she may have to any superannuation benefits belonging to or earned by the other;
(d)is to be solely liable for and to indemnify the other against any liabilities encumbering any item of property to which that party is entitled pursuant to this Order.
The parties sign all documents and do all things necessary to give effect to this Order and should either party refuse or neglect to sign any documents which may be required to give effect to this Order then a Registrar of the Federal Magistrates Court of Brisbane is authorised to sign all documents and do all things necessary to give effect to this Order.
The Wife’s application for spousal maintenance is dismissed.
No Order as to Costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM10199 of 2004
| C |
Applicant
And
| F |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant wife C and the respondent husband F married in December 1976. The relationship bore four children who are all now adults, L (28), A (26), S (24) and J (23).
For the entirety of the parties' relationship the husband was a member of the Australian Army - ultimately being medically discharged in December 2004 after almost 30 years of service. The parties have been separated for many years - the wife saying separation occurred in April 1995; the husband contends separation occurred earlier in January 1993 when he was transferred to Brisbane and the wife remained with the children in Albury. The wife and children did relocate to Brisbane in January 1995 which the husband characterises as an attempt at reconciliation - although this period of cohabitation lasted less than four months.
Both parties assert they suffer poor health. It is common ground that at this time the only assets available for distribution are entitlements which the husband is entitled to receive as a result of being a member under the Military Superannuation Benefits Scheme "(MSBS)".
The parties are unable to agree on the extent to which the husband's benefits are "splittable". This is one of the issues I am asked to decide. Furthermore, I am asked to determine what would be a just and equitable division of any such entitlements.
Preceding history
This matter has had a long history. In 1996 the wife commenced property proceedings in the Family Court of Australia and by consent the parties agreed to an order (made 5 November 1998) which adjourned those proceedings:
“To be relisted for determination by either party when the husband becomes eligible to access funds contained in the husband's Military Superannuation Benefits Scheme.”
It was agreed that the wife pay the husband's costs:
“Thrown away as a consequence of the adjournment including the costs of and incidental to the preparation for the hearing pursuant to the order of the Deputy Registrar dated 3 August 1998.”
I have no evidence of whether those costs have been agreed or taxed.
I have not read any documents filed in the Family Court of Australia before the wife's application filed on 12 August 2004 in which she sought a flagging order and a relisting of the earlier application.
On 20 August 2004 Jordan J ordered that a flag be placed on the husband's superannuation entitlement. The matter was transferred to this court after notice had been received by the wife (from the husband's solicitors) that the husband would be discharged from the army on invalidity grounds effective 1 December 2004.
Although the matter was listed for trial before me in February 2005, both Counsel urged that I determine the matter "on the papers". I made directions for the filing of written submissions which were filed well past the dates directed, the last submission being received on 9 September 2005.
It is trite to note that during the period of the adjournment since 1998 the law in respect to superannuation significantly altered as a result of the commencement on 28 December 2002 of the Family Law Legislation Amendment (Superannuation) Act2001 and the underlying regulations. Furthermore, with the benefit of an approval from the Attorney-General specific methods for valuation of the husband's superannuation interests had been determined and also effective 18 May 2004 the rules of MSBS were amended in accordance with other legislative changes at that time, to allow the creation of a new interest for a non-member spouse.
Principles
I am to decide this matter on the usual principles relating to property settlement which for the purposes of these reasons, delivered orally, I confirm to be essentially at least a four step process; the first step being the identification of assets and liabilities usually at the time of trial. Secondly to identify the relevant contributions of both a financial and non financial character during the course of the relationship. Thirdly, by reference to s.9(4)(e) to consider the relevant s.75(2) factors. Finally, to consider the effect of the order to ensure that it affords justice and equity to the parties. Also, of course, I do not ignore the relevance of the decision of C & C (2005) FLC 93-220 and other decisions relating to the other steps which must be undertaken where superannuation is an "asset" before the Court.
Separation
In circumstances where none of the evidence was tested by cross-examination it is difficult to determine the factual issue of when cohabitation occurred and when separation occurred. On balance I find cohabitation occurred from the date of marriage (December 1976), and separation occurred when the husband was posted to Brisbane in January 1993.
The wife remained in Albury with the children (then aged about 16, 14, 12 and 11), and although the husband continued to provide support to the family and visit with the children it seems clear from the wife's own evidence (most glaringly the alleged taunting and denigration and the use of a "knife") and that the marital relationship was effectively over. The attempted reconciliation for about three months in early 1995 does not persuade me that the relationship was maintained in the intervening period. I also note during this period that the husband was assessed to pay child support which I assume was made at the request of the wife seeking an assessment as a result of their separation.
It follows from these findings that the husband's superannuation and other work entitlements accrued as follows:
Total period of service - 30 years;
Period of pre cohabitation - approximately 2 years;
Period of cohabitation - approximately 16 years;
Period of post separation - approximately 12 years.
Assets other than superannuation
For reasons which are not necessary to explore in this decision, both the husband and wife were declared bankrupt a couple of years before separation. It follows that at separation they had very modest assets as a result. The husband asserts the parties owned two motor vehicles and some household furniture. In the absence of any probative corroboration, he submits the value of items at separation amount to $11,600. I believe this is exaggerated. For example, the Ford Laser motor vehicle he "valued" at $5000 was sold for only $1000.
The wife who had care of the four children retained their modest household belongings and furniture. I accept the husband's evidence that a range of debts (of a joint nature) were outstanding which he as the primary earner, met post separation. He says they amounted to $28,212. Again, no complete probative evidence was offered to support this assertion, however I am prepared to accept the husband's evidence in this regard.
The evidence accepted by both parties is that at the time of his discharge the husband received net benefits of $39,857.98 for accrued long service and recreational leave. The breakdown of this sum was as follows:
Recreational Leave (114 days)
$18,637.29
Long Service Leave
$37,419.34
Total
$56,056.63
Less Tax
$16,198.65
Total Net Benefit
$39,857.98
The wife submits this sum should be "added back". I am aware of the authority which makes it clear that whether such payments are treated as property or in some other (eg as a financial resource) depends on how the recipient made use of it (see Gould (1996) FLC 93-023). However, in this case where:
(a)I am satisfied the wife retained the majority of the available assets at separation;
(b)the husband did accept and discharge the joint liabilities at that time; and
(c)it is reasonable to infer that a significant proportion of the long service leave accrued post separation; and
(d)it is reasonable to infer that the majority of unused leave of 114 days (on a basis of 20 days accruing annually) arose after separation 12 years earlier;
I regard it as fair to both the parties to ignore for the purposes of establishing the asset pool - the assets at separation, the liabilities at separation, and the husband's paid long service leave and recreational leave.
Husband's superannuation entitlements
The evidence relating to the husband's superannuation entitlements comprised of affidavits from Mr Peter Skinner filed 3 February 2005 and 12 August 2005 and affidavits from Ms Taryn Donohue filed 17 March 2005 and 20 May 2005. Mr Skinner gave evidence of the value of the husband's interests. His qualifications to do so are not challenged. Ms Donohue is a Legislation and Family Law Officer of the legal services section of Comsuper.
The documents provided to the Court established that:
(a)The husband was medically discharged from the Army on 1 December 2004.
(b)A delegate of MSB Board of Trustees determined, pursuant to Rule 22 of the Military Superannuation and Benefits Act 1991, that the husband's incapacity in relation to civil employment is
30 per cent and that he was to be classified as class B with effect from 2 December 2004.
(c)The husband's invalidity benefits under MSBS are payable in two parts - the member benefit and the employer benefit. As the husband was over 55 years of age and has retired from the work place, he is entitled to take his total member benefit as a lump sum. As a member benefit is "unitized" the husband's member benefit (which was estimated at $141,532) has increased to $154,195) as at 9 March 2005. The husband intends to take the lump sum option. It seems to me that a percentage split of that member benefit is the preferred approach rather than setting a "base amount" because of the fluctuating values. It is common ground that this member benefit is splittable.
(d)The employer benefit which the husband is entitled to receive depends on his classification - which as class B, computes to an indexed pension at trial initially of $31,891 gross per annum or $1226.58 per fortnight. There is no lump sum component to the make up of the invalidity pension.
(e)The husband was entitled to a 3 per cent productivity payment which forms part of the employer benefit which, as earlier noted, is payable as a pension.
(f)Mr Skinner has determined, based on the annual pension payment of $31,891.12, that the gross value for the husband's invalidity benefit is $416,237.23. The issue of whether this component of the husband's superannuation is exempt from a splitting order is alive in these proceedings.
(g)Mr Skinner, post delivery of the decision in C & C (supra), was requested, (at my direction), to provide evidence of valuation of the husband's interests at separation. The only figure I have been provided with assumes separation was June 1995 and he opines that at that date, the total of the employer and member benefits was $195,001.
I do not have any evidence of the value of benefits at January 1993.
I propose to adopt the figures for June 1995. It seems reasonable from Mr Skinner's valuation to divide the sum of $195,001 into the following components.
Member Benefit
$67,658.00
Employer Benefit
$127,343.00
Total
$195,001.00
I have carefully considered the detailed written submissions of Counsel for the husband which in essence contends that the benefits payable to the husband in the form of his pension is not a splittable payment as defined by regulation 12 of the Family Law (Superannuation) Regulations 2001. He says, in his most recent submissions, that the pension payment comes within regulation 12(c) being a pension payment:
“That is made as a result of a member spouse's ill health.”
and because no payment has been made for a period of at least two years.
It is clear that payments would have been made to the husband shortly after his discharge but for the flagging order made by Jordan J. I do not consider that it was the intent of regulation 12(c) to extend to pension payments which were effectively (held in abeyance) pending determination of an interest. That is the effect of a flagging order - to give notice to the trustee that a payment, otherwise required to be paid under the rules of the applicable fund should not be paid to the member or the member's spouse until the flag is lifted by order of the Court.
I am satisfied that the Court can make an order in respect of the invalidity benefit which will be payable to the husband for the reasons advanced by the trustee in the letter attached to the affidavit of Ms Donohue filed 10 May 2005. The argument which I accept is succinctly set out as follows:-
“Military invalidity pensions payable under the Military Superannuation and Benefits Act 1991 (MSBS Act) do constitute “not splittable payments” for the purposes of Regulation 12 of the Family Law (Superannuation) Regulation 2001 (FL Regulations) as they are pension payments made because of ill health as opposed to payments made for permanent incapacity within the meaning of the Superannuation Industry (Supervision) Act 1983 (SIS Act). Under the MBSB Act a person does not have to be permanently incapacitated within the meaning of the SIS Act to become eligible to receive an invalidity benefit.
Therefore, to that extent Mr Skinner’s comments accord with our interpretation of the relevant legislation.
However, as previously discussed, the above restriction to the types of payments from a member’s benefit which may or may not be split by a Trustee under an order or agreement made pursuant to Part VIIIB of the Family Law Act 1975 (FLA) is not a relevant concept in relation to the MSBS.
The reasons is that whilst an invalidity pension payment is a “not splittable payment” for the first two years of receipt in accordance with the FL Regulations, an invalidity pension does not fall within the definition of an “unsplittable interest” for the purposes of section 90MD of the FLA and the FL Regulations.
Where an interest is not defined as an “unsplittable interest”, Division 2.2 of the FL Regulations allows the entitlement of the non-member spouse under a court order or agreement to be satisfied in one of the following ways (refer Regulation 14G):
1. Trustee creates a new interest for the non-member spouse in the superannuation plan; or
2. Trustee has transferred or rolled over to another superannuation fund the entitlement the benefit of the non-member spouse; or
3. Trustee has paid to the non-member spouse an amount equivalent to the entitlement (where non-member spouse has satisfied a condition of release under the SIS Act); or
4. Where the fund is a public section superannuation scheme, the governing rules of the scheme provide that a separate entitlement to benefits has arisen for the non-member spouse (in that original scheme or another public sector scheme) at or after the operative time in relation to the agreement or order.
The above options are not automatically available to a Trustee. The individual scheme’s governing rules must permit the relevant Trustee to take one or more of the above actions in relation to the non-member spouse’s entitlements before they are able to do so.
The SIS Act 1993 permits funds to amend their scheme rules to allow for the options provided in accordance with the requirements of the FL Regulations.
The MSBS Act and associated Rules and Trust Deed were amended with effect from 18 May 2004 to allow non-member spouse entitlements under court orders or agreements to be satisfied by way of option 4 outlined above.
That is, the MSBS scheme rules provide that a separate entitlement to a benefit arises for a non-member spouse at the operative time of the agreement or court order.
As such, it is no longer necessary for a splittable payment to become payable in respect of a member’s interest in the MSBS before the non-member spouse’s entitlement can be satisfied under the scheme rules. The entitlement is satisfied from the operative time by virtue of the scheme rules and Division 2.2 of the FL Regulations.
Therefore, the Trustee of the MSBS is able to split invalidity pension interest upon receipts of orders or agreements from the operative time of the court order or agreement. The Trustee does not need to wait for a “splittable payment to become payable” as it would only be necessary to do so where options 2 or 3 were being exercised to satisfy the non-member spouse entitlement.
Wherever a Trustee creates a new interest (under option 1) or a new interest arises by operation of the scheme rules (under option 4), no payment from the member’s interest is necessary to satisfy Division 2.2. Therefore, whether a particular from the member’s interest is “splittable” or “not splittable” is not a relevant consideration.
Contributions
Neither party had any significant assets at the time of marriage. The husband would have had a small accrued benefit under the Military Superannuation Scheme for the period of almost two years between the commencement of his service (18 February 1975) and his marriage in December 1976. I have no evidence of its value at the time of marriage.
Both parties maintained fairly traditional roles during the marriage. The husband was the primary income earner (including additional work which he gives details of in his affidavit) - although the wife did contribute income from part time employment from time to time whilst she was the primary home maker and parent to their four children.
I accept the husband by reason of his obligations to be on military exercises and the like would have been away from home more than a husband employed in, say, a nine to five job. This increases the wife's non financial contribution, but for the period of the relationship to separation it would be reasonable to regard all contributions as equal - allowing for the husband's initial contribution from his superannuation.
As superannuation is the only asset I would find that to separation, on a contribution based entitlement, the parties should be assessed as equal. Consistent with this analysis I would therefore assess an equality of contribution to the husband's superannuation, even though some of it accrued prior to the marriage.
The husband may say, of course, that in a direct financial sense he was the only one who made any contributions to his superannuation. This would diminish the non-financial contributions made by the wife and the reality that he was only able to continue his military career (having fathered four children) by the wife assuming the primary parental and housekeeping responsibilities. Post separation, however, I have formed the view that the husband's contributions to his super were more substantial than the wife's even allowing for the parenting responsibilities to the children.
In this regard I take into account the maintenance of child support payments as assessed against the husband. I also note that the children became adults during the post separation period, approximately two years later (L); four years later (A); six years later (S); and seven years later (J). The husband asserts that Andrea left home in early 1997 and that Jacob moved out in early 1998. The wife, of course, asserts that she has continuing responsibilities for the adult children at different levels.
The wife after moving to Queensland in 1995 commenced employment as a presser. This employment continued until early 2000 when the wife says she was:
“Forced to cease work due to stress.”
Her psychiatrist assisted her to gain a disability pension which she continues to receive. Although the wife seems on her history to be available to assist her adult children, it also appears obvious she was not a competent money manager - choosing to declare herself bankrupt for a second time in 1997 because of debts. I should mention that the wife in her affidavit gives a description of her children suffering a lot of injuries and illnesses during the course of the relationship. I suspect this lady has devoted herself to their care, perhaps at the cost of her own health and financial security. Notwithstanding her clearly difficult financial position and even though she had commenced proceedings in 1996 for property settlement, she never persisted with any claims for periodic spousal maintenance at that time or since.
The husband in this lengthy post separation period moved bases a couple of times. In 1996 he commenced a de facto relationship with Ms M. That relationship is still intact on the evidence before me.
I am required by authority to assess the contributions based entitlement to the husband's superannuation entitlements which represents the only "asset" left. In exercising this aspect of my discretion and analysis, I take into account the following matters:
(a)I would find the parties' contributions at separation (January 1993) as equal and that finding would also apply to the first 18 years of the superannuation accrual.
(b)For the remaining 12 years of the superannuation accrual I regard the husband's contributions as superior.
(c)The accrual of the "value" of the member component is an increase from $67,658 to $154,195. The evidence is insufficient to be able to apportion the increase between accruals on the funds invested at the time of separation (notionally $67,658) and the additional contributions made by the husband from his wages (and accruals in the forms of investment income on those post separation contributions).
(d)The assessment of and the reasons for the increase in the value of the employer benefit from $127,343 to $416,237.23 is even more confusing because the ultimate benefit is a by product of a number of factors including the husband's end salary; the pension payable; his level of classification etc. What is clear is the gross lump sum figure of $416,237, whilst I accept as correctly ascertained by Mr Skinner under the regulations means little. The husband will never be able to compute this pension entitlement to a lump sum. There are no other assets in this case against which the value, of superannuation may be weighed.
Coleman J in his recent decision of PJM & STM (2005) FCA 1245 – delivered 23 December 2005, was required to consider how to divide, as one of the assets in that case, the husband's superannuation and said:
“It is evident that of the 13 years during which the husband worked for Australia Post be cohabitated with the wife for approximately four years. Without suggesting any precise apportionment, in regard to the wife's entitlement in the superannuation fund as approximating one sixth and the husband as five sixths would tend to reflect, if only on a "time served" basis the years of Australia Post service prior to and subsequent to commencement of cohabitation. Recent decisions of the Full Court suggest such an approach to be less heretical than in earlier times.”
Although purely mathematically 4/13ths is closer to 1/3 than 1/6, it seems that his Honour (sitting as a Full Court) was giving guidance that (without adopting a West & Green type calculation) considering the apportionment of "time served" was at least a relevant consideration.
Again I am reluctant to adopt an overly mathematical approach, particular where (as earlier identified) the actual components of the valuation (particularly for the employer component) is more a product of the regulated formula than an assessment of contributions from different sources. However, as a guide I would assess the parties contributed equally to approximately 18/30ths of the benefit and that the parties contributed approximately 80/20 (in the husband's favour) to the remaining 12/30ths of the benefit.
Using the gross employer benefit of $154,195 as a figure this would compute as follows:
Husband
Wife
18/30ths of $154,195 equals $92,217
$46,258.50
$46,258.50
12/30ths of $154,195 equals $61,678
$49,342.40
$12,335.60
Sub Totals
$95,600.90
$58,594.10
or, in percentage terms of the gross sum of $154,195, the husband 62 per cent and wife 38 per cent.
Because I regard the husband's continued employment and consequent increased salary as an added contribution I will adjust these figures and adopt a contribution based entitlement in respect of superannuation of 65 per cent to the husband and 35 per cent to the wife.
Section 75(2) factors
On the evidence neither party is in good health. Although the husband says that the wife's health issues arise from events post separation, the unchallenged evidence of the wife's psychiatrist Dr Cursor is that the prognosis is "guarded" and further opines that:
“Her symptoms of anxiety, mood swings, low grade depression and post traumatic stress disorder are chronic and her personality disorder is a life long condition. She is unable to pursue employment currently due to chronic symptoms of anxiety and dysthymia. Social difficulties, low energy, poor concentration with dissociated episodes and repetitive self harm. These symptoms are unlikely to change substantially in the long term and it is my opinion that her prognosis for return to work is poor.”
The husband did not offer any independent medical evidence relying upon the acceptance by the delegate of his doctor's advice that he suffers:
“Complicated obesity; hyperlipidaemia, lumber back pain; benign prostatic hypertrophy; PTSD and knee pain.”
It can be seen on this evidence as I say that neither party enjoys good health.
The husband says he:
“Suffers from arthritis in both knees and has a long term lumber and back complaint.”
On the evidence, these parties are of similar ages and both are unlikely to return to gainful employment. The wife currently survives on a disability pension (paid by Centrelink) of $238 a week. The husband survives on the Veterans Affairs payment of at trial, according to his financial statement unchallenged, of $59 per week. The effect of the splitting order I propose to make would provide the husband with a larger lump sum and a greater share of the fortnightly paid pension. However, it would be in effect double dipping to adjust in the wife's favour. In my view, considering all the relevant s.75(2) factors I will not adjust the contribution based assessment any further.
Justice and equity
I regard it as just and equitable for the husband's superannuation benefit (both the member component and the employer component) to be split on the basis that the wife be entitled to a 35 per cent interest.
The effect of the change of rules will be that a separate interest for the wife in the fund would be created. Both the husband and wife will, upon discharge of the flagging order be able to access their share of the lump sum - with any taxation impost applied across that payment. The effect of the creation of a separate interest will be that the level of the husband's invalidity pension will be reduced. The evidence does not say to what degree, however, it logically would be by 35 per cent. Of course, as a continuing member of the fund such future pension payments will be annually indexed.
The wife's interest, however, may be capable of being rolled over into another fund of her own choice post splitting. I did not receive any specific submissions in this regard. In any event, the wife will get a fair share of a benefit which accumulated partly whilst she was in the marital relationship and which in my view is properly recognised. I do note that although the evidence of Taryn Donohue suggests by operation of rule 95 of the MSB rules an associate pension is created post splitting, this may enable the wife's benefit to also be received in a pension which might be a benefit to her.
I regard it as just and equitable, taking into consideration the contributions that the parties have made and particularly those made by the wife as homemaker and parent. Although she will not on any view be "well off" considering the dire financial circumstances she has been in for most of her life, it represents a significant improvement.
The husband gave 30 years service to the armed services. He is entitled to a greater share of his accumulated benefits than is the wife because of the long period post separation. Both these parties have little really to show for the toil of working hard and raising four children. They seem to have made some poor financial decisions in their life; suffered poor health and had children requiring a fair amount of care and attention. They probably had their share of "bad luck".
Subject to being satisfied that procedural fairness has been offered to the trustee in respect of an order which gives effect to these reasons, I propose to pronounce such an order which I believe achieves justice and equity.
Although a claim was made by the wife for a "lump sum spousal maintenance" the evidence does not support a finding and after receipt of her share of the splitting order, she will be:
“Able to adequately support herself.”
Her current expenses are estimated at $236.50 a week. Before a Court considers a lump sum maintenance claim it must be satisfied at least that the threshold test under s.72 of the Family Law Act has been satisfied. I am not so satisfied. I therefore propose to the extent that it was still alive yet not being the subject of any extensive submissions received by me, the wife's claim for maintenance will be dismissed.
I certify that the preceding fifty-one paragraphs (51) are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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