Cabbell and Cabbell (No.2)
[2008] FMCAfam 1225
•12 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CABBELL & CABBELL (No.2) | [2008] FMCAfam 1225 |
FAMILY LAW – Property – matter re-opened – parties permitted to file submissions in relation to anticipated variation in the pool of assets.
| Cabbell (2008) FMCAfam 1103 |
| Applicant: | MS CABBELL |
| Respondent: | MR CABBELL |
| File number: | BRC 4985 of 2007 |
| Judgment of: | Baumann FM |
| Hearing date: | 31 October 2008 |
| Date of last submission: | 31 October 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 12 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kirk |
| Solicitors for the Applicant: | Berck & Associates |
| Counsel for the Respondent: | Mr North |
| Solicitors for the Respondent: | Habermann & Associates |
ORDERS
ORDERS Within 30 days of the date of this Order the Husband will do all such acts and things as may be necessary to secure the consent (“the consent to transfer”) of the shareholder of [W] Pty Ltd (“[W]”) as trustee for the [M] Family Trust (“M”) to transfer to the Wife all its right, title and interest in the following property:
(i)The former matrimonial home at Property W, Queensland and described as [omitted] and being the whole of the land in Title Reference [1];
(ii)Property T, Queensland and described as [omitted] and being the whole of the land in Title Reference [5] together with the contents.
Within 28 days of receipt of the transfer which may be submitted at any time after the time period prescribed in Order 1, the Husband, shall cause [W] to execute a transfer in registrable form to the Wife of all the right, title and interest of [W] in all the land described in Order 1. The Husband shall execute the transfer as director within 3 days of receipt of same and shall use his best reasonable endeavours to have same executed by the second director within 28 days of receipt. If the second director is unable (due to absence from Australia or otherwise) to execute the said transfer within 28 days, then the Husband shall advise the Wife who shall then have liberty to apply to the Court for an order directing a Registrar to sign under Order 17.
In exchange for the executed transfers referred to in Order 2, the Wife shall provide to the Husband a withdrawal in registrable form of the caveat over each piece of land referred to in Order 1, and, in addition thereto the following property:
(i)Property P, Queensland and described [omitted] and being the whole of land in Title Reference [0];
(ii)Property S, Queensland and described [omitted] and being the whole of the land in Title Reference [6];
(iii)Unit 2, Property Y, New South Wales and described in Certificate of Title Register as [omitted] (the Wife shall also provide a registrable transfer of this property to the Husband);
(iv)Unit 3 Property Y, New South Wales and described in Certificate of Title Register as [omitted];
(v)Unit 4, Property Y, New South Wales and described in Certificate of Title Register as [omitted].
In giving effect to Orders 1, 2 and 3, the party receiving the benefit of an Order shall be responsible, at his or her own cost as the case may be, of promptly submitting the relevant transfer or withdrawal of caveat to the other party for execution.
Contemporaneously with the exchanges of transfers and withdrawals referred to in Orders 1, 2 and 3, the Wife shall notify the Trustee of Australian Super, member number [omitted], of the making of these Orders and shall thereafter promptly do all such acts and things and execute such documents as may be required by the Trustee to lift Order 6 of the Orders made on 12th June 2007 pursuant to section 90MU of the Family Law Act 1975.
Except as otherwise provided in these Orders, the Wife shall be, and is hereby declared to be the sole legal and beneficial owner to the exclusion of the Husband of all real and personal property in her ownership and possession or under her control as at the date of the making of these Orders, including, but not limited to:
(iii)Her QSuper defined benefit account, client number [omitted];
(iv)Her QSuper accumulation account, client number [omitted];
(v)Her Unisuper account, member number [omitted];
(vi)Jewellery;
(vii)Suncorp margin loan in her name, client reference number [omitted], and subject to the margin loan;
(viii)Furniture in the former matrimonial home at Property W, Queensland, except where specified in this Order as being the property of the Husband.
The Husband shall within 30 days from the date hereof cause [W] Pty Ltd to place on the market for sale at market value after taking advice from a real estate agent carrying on business in the area of the land, Unit 3 and Unit 4 Property Y, New South Wales by private treaty and one half of the full net proceeds of such sale after allowing for reasonable agents fees, advertising and any capital gains and other taxes and outgoings, tax and other reasonable costs and expenses of and incidental to effecting a sale shall be paid to the Wife and the other half of the full net proceeds paid to the Husband. The Husband undertakes to keep the Wife and/or her lawyers informed as to all such steps taken to sell the said units and the progress of same. The Wife undertakes to join in and do all things reasonable, necessary and incidental to effect a sale of the real property referred to in this Order 7, and all reasonable costs fees outgoings and charges necessary and incidental to effecting a sale and maintenance of the properties referred to in this Order 7 not reasonably capable of being deducted from the net proceeds of the sale of each of the properties shall be met within
30 days of incurrence of same by each of them the Husband and Wife equally as from the date of this Order the Husband shall cause the Wife to be notified of any expenditure greater than $500 likely or necessary before the liability is incurred. As from the date of this Order the net income from the units referred to in this Order 7 after allowing for all reasonable outgoings and without limiting the generality of the foregoing including al the upkeep maintenance repair costs and charges levied on the units including those of a prospective nature adjusted as from the date of this Order shall be shared equally by [W] Pty Ltd and the Wife.
That contemporaneous with the wife’s compliance with the provisions of paragraph 3 hereof, the husband shall transfer to the wife the following specified shares that are held his Suncorp Share Portfolio, client reference number [omitted] so as to provide the wife with one half of the value of his Suncorp share portfolio net of any margin loan as at close of business on 23 October 2008:
(a)926 AGL Energy Ltd shares: security code [omitted];
(b)691 AMP shares: security code [omitted];
(c)1,249 ANZ shares: security code [omitted];
(d)161 APA Group shares: security code [omitted];
(e)403 Babcock & Brown Infrastructure Group shares; security code [omitted];
(f)358 Babcock & Brown Power shares: security code [omitted];
(g)139 Babcock & Brown Wind Partners GRP: security code [omitted];
(h)2,839 Bendigo and Adelaide Bank Ltd shares: security code [omitted];
(i)856 BBI EPS Ltd shares: security code [omitted];
(j)1,785 BHP Biliton shares: security code [omitted];
(k)357 Bluescope Steel Ltd shares: security code [omitted];
(l)794 Commonwealth Bank of Australia shares: security code [omitted];
(m)5,009 Clough Ltd shares: security code [omitted];
(n)12,183 CSR Ltd shares: security code [omitted];
(o)3,542 David Jones Ltd shares: security code [omitted];
(p)11,156 Futurus Corporation Ltd shares: security code [omitted];
(q)139 Henderson Group Plc shares: security code [omitted];
(r)12,833 Over Fifty Group Ltd shares: security code [omitted];
(s)921 St George Bank Ltd shares: security code [omitted];
(t)939 Sims Group Ltd: security code [omitted];
(u)3,570 Santos Ltd shares: security code [omitted];
(v)67 Santos Ltd – Non Cum Conv (FUELS): security [omitted];
(w)2,721 Suncorp Metway Ltd: security code [omitted];
(x)1,964 Tabcorp Holdings Ltd shares: security code [omitted];
(y)4,552 Telstra Corporation Ltd: security code [omitted];
(z)2,008 West Australian Newspapers Holdings: security code [omitted];
(aa)602 Wesfarmers Ltd: security code [omitted];
(bb)781 Woolworths Ltd shares: security code [omitted].
That contemporaneous with the wife’s compliance with the provisions of paragraph 3 hereof, the husband shall provide to the wife the Capital Gains Tax Register for all of the shares held by him in the Suncorp Share Portfolio client reference number [omitted].
The husband indemnify and keep the wife indemnified with respect to any liability including taxation liabilities and loan accounts arising out of her involvement in the [M] Family Trust, [P] Trust and [T] Trust.
The husband shall not, without first obtaining the written consent of the wife, cause the distribution to the wife of any income earned by the [M] Family Trust (or any other trust in which she may be a beneficiary).
The husband shall not, without first obtaining the written consent of the wife, include the wife as a beneficiary of any further Trust or Trusts he may settle or cause to be settled in the future.
That except as otherwise provided for in the Orders made, the husband be and is hereby declared to be sole legal and beneficial owner, to the exclusion of the wife, of all real and personal property in his ownership and possession or under his control as at the date of the making of these Orders, including, but not limited to:
(a)Property P;
(b)Saab Motor Vehicle.
(c)Suncorp Metway Limited Cash Management Account No. [6];
(d)Suncorp Account [1].
(e)Suncorp Account [4].
(f)The balance of the shares in his Share Portfolio with client reference number [omitted], subject to the Suncorp margin loan, after the transfers of shares to the wife are completed as provided for in Order 8 of these Orders.
(g)His home contents.
(h)200 Caltex shares.
(i)Australian Super member [omitted].
(j)His tax refund.
[W] Pty Ltd atf [M] Family Trust
Save as otherwise provided herein, the husband retain his interest in the assets of the company and/or trust, and the wife relinquish any claim thereto, with such interests including, but not limited to:
(a)Unit 4, Property Y
(b)Unit 3, Property Y
(c)Property S
(d)Suncorp-Metway Limited, A/C No[7]
(e)Cash Management Account No. [8]
(f)Wesfarmers Shares
(g)2800 TLS Shares
(h)Lexus IS 250
(i)Other Fixed Assets of [W] Pty Ltd as identified in the valuation report of Pitcher Partners, dated 4 December 2007
That the Husband shall pay to the Wife the sum of $76,187.00 within three business days of the date of this Order.
That except as expressly provided for in these Orders, each party shall be solely liable for, and indemnifies the other party against, any liability incurred in their respective names, and, in particular, any liability encumbering any item of property to which the party is entitled pursuant to these Orders.
That, pursuant to section 106A of the Family Law Act 1975, should either party refuse or neglect to do all such acts or things as may be necessary to give effect to these Orders within the time provided, a Registrar of the Federal Magistrates Court shall be appointed in the name of the party in default to do all such acts or things and to sign all such documents as may be necessary to give effect to these Orders, and the party in default shall pay, on a solicitor and own client basis, the costs of the other party incurred in remedying the default and enforcing or putting into effect these Orders.
That except as is otherwise provided for in the Orders, both the husband and the wife shall each relinquish any claim, one against the other, to any interest in any other property not otherwise herein specifically referred to, including, but not limited to, superannuation, motor vehicles, bank or building society accounts, jewellery, furniture, appliances, debtors, choses in action and any other property, whether realty or personalty, wheresoever situated and/or of whatsoever kind presently in the possession, control of or registered in the name of the other party.
That pursuant to section 90 MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable in respect of the Husband’s interest in the Australian Superannuation (member number [omitted]) (“the Husband’s superannuation fund”), then the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount, calculated at 44.83% thereof and there be a corresponding reduction in the entitlement that the husband would have had in his superannuation fund but for this Order.
That this Order have effect from the operative time and the operative time is four (4) business days after the date of service of the Orders upon the Trustee of the husband’s superannuation fund.
Upon being served with these Orders, and having been accorded procedural fairness in relation to the making of Order 19 above, the trustee of the husband’s superannuation fund is bound by the terms of this order.
That the Trustee of the Husband’s superannuation fund shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in his fund.
That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Wife shall do all such acts and things as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the Husband’s interest in his superannuation fund to a fund of the Wife’s choosing, in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
Until the splittable payment is split in favour of the Wife, the Husband be and is restrained from requesting the Trustee, in accordance with reg.7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994, to rollover or transfer the transferable benefits to another superannuation fund.
IT IS NOTED that publication of this judgment under the pseudonym Cabbell & Cabbell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
BRC 4985 of 2007
| MS CABBELL |
Applicant
And
| MR CABBELL |
Respondent
REASONS FOR JUDGMENT
Introduction
On 8 October 2008 I published reasons for my decision in a property dispute between the parties in this matter (Cabbell (2008) FMCAfam 1103). At paragraph 13(a) of my reasons I identified the volatility of the share market and in the absence of a re-opening, indicated I was obliged to deal with agreed values of assets at the date of hearing some months earlier.
On 20 October I allowed a limited re-opening, which was not opposed by either party, which required the parties to seek to reach agreement as “to the parties’ share portfolios, superannuation entitlements, margin loans and other cash resources as at close of business on Thursday 23 October 2008”. I did not seek a valuation of real property interests.
A further direction allowed the parties to file further submissions arising from the anticipated variation in the pool of assets – all permitted to enhance the Court’s ability to ultimately make an Order that was just and equitable. Both parties have provided written submissions which I have considered.
Pool
As a result of the exchange of information, the pool was agreed save for one issue. In the earlier pool found by the court (see paragraph 28), it was agreed a tax refund of $18,144 due to the husband ought be included. My recollection of the evidence was that the refund had not been received, but was anticipated. Substantial bank account balances were included.
As can be seen below, significant adjustments to the “sub-pool” of Equities and Cash and the husband’s superannuation interests have occurred since the trial resulting in a reduction in the pool of over
$1 million. The husband says that the tax refund of $18,144 should not be included “as the monies have been received…into the husband’s Suncorp Metway cash management account.” The wife opposes the deletion of this item, however I am prepared to accept that the adjustment to the Suncorp Metway cash management account includes receipt of the tax refund. Accordingly, I find the pool now to be $8,511,559 as follows:
| Description | Owner | Value |
| Real Estate | ||
| Property P | Husband | $500,000 |
| Property W | [W] | $1,100,000 |
| Property T | [W] | $290,000 |
| Property S | [W] | $300,000 |
| Unit 2, Property Y | Wife | $500,000 |
| Unit 3, Property Y | [W] | $365,000 |
| Unit 4, Property Y | [W] | $390,000 |
| Other fixed assets | [W] | $11,443 |
Total: | $3,456,443 | |
Equities and Cash | ||
Westfarmers & Telstra Shares | Husband | $12,852 |
Suncorp Cash Management | Husband | $180,225 |
Share portfolio (less margin loan) | Wife | $14,963 |
Share portfolio (less margin loan) | Husband | $835,923 |
200 Caltex Shares | Husband | $2760 |
Suncorp Account [6] | Husband | $23,373 |
Suncorp Account [1] | Husband/ [W] | $8,366 |
Joint Suncorp Account | Husband | $2.522 |
Teachers Credit Union Account | Wife | $1,643 |
Total: | $1,082,627 | |
Furniture, jewellery, motor vehicle | ||
Lexus | Husband | $44,000 |
Saab | Husband | $800 |
Furniture | Wife | $30,570 |
| Husband | $12,295 | |
Jewellery | Wife | $9,120 |
| Husband | $35 | |
Total: | $96,820 | |
Superannuation Interests | ||
Australian Super | Husband | $3,512,364 |
Q Super (Accumulation) | Wife | $127,198 |
Q Super (Defined Benefits) | Wife | $234,981 |
Unisuper | Wife | $1,116 |
Total: | $3,875,659 | |
Summary | ||
Real estate | $3,456,443 | |
Equities and Cash | $1,082,627 | |
| Furniture, jewellery and motor vehicles | $96,820 | |
Superannuation interests | $3,875,650 | |
Total: | $8,511,549 |
The husband, in his submissions, seeks to challenge many of the findings the Court made as to contributions and the like. The husband, although an experienced solicitor, was not represented for these submissions. I do not make comment of any of those contentions of the husband. In my view, it would be wrong to do so – they are matters properly reserved for the Appeal Court. I am, however, in considering within the context of the significantly altered pool, the Order which does justice and equity, prepared to consider the submissions provided in respect of the “mix of assets”.
That issue, and a proposed methodology, is found at paragraphs 63 to 78 of my Reasons. In summary, the parties now say:
Wife
a)That there should be no interference with proposed Orders for distribution of real property interests.
b)The wife should retain the items/interests identified at paragraph 68(a) which now have a value of $1,519,589.
c)The husband should retain the items/interests identified at paragraph 68(b) which now have a value of $2,220,108.
d)As earlier noted, the wife says there should be no variation to the distribution of real estate interests.
e)As the husband “has had to use a large proportion of his cash reserves to pay off the margin loan and to address the volatility in the value of his significant share portfolios” the court should “order an in species transfer to the wife of shares” from the husband’s share portfolio.
f)A table of shares with values at 23 October 2008 was included in the wife’s submissions (Appendix 2). The wife contends to “compensate the husband for the margin loan, it is recommended that a proportionate share of the stocks be retained by the husband to offset the margin loan.” In this respect, it was agreed that the nett share portfolios of the parties are calculated as follows:
| Wife | Gross Shares less margin loan | $108,720 $93,757 |
| Nett | $14,963 | |
| Husband | Gross Shares less margin loan | $936,680 $100,757 |
| Nett | $835,923 |
g)In order to compensate the husband for the margin loan, the husband should retain shares to the value of $100,757 and the balance of shares ($835,923) should be distributed in specie equally. The wife in Annexure 2 to her submissions identified the shares to be divided and the manner of division according to the wife.
h)On this approach, the wife contends each party will suffer the same effect of “future movements in the market”. Also, the wife has not had, unlike the husband, the cash resources available to meet margin calls, which has required her to sell shares at “very low values”. The wife says the potential capital gains tax liabilities will be the same then for both parties.
i)The wife seeks the same “proportion” of total cash now of $216,129 as the proportion of previously available cash at the time of hearing of hearing of $846,959 (see paragraph 70) – thereby distributing cash as to $127,591 (wife) and $88,538 (husband). These estimates are slightly different than those set out in the wife’s submissions because of the reduction in the pool through the reduction for the tax refund. The wife says the payment to the wife from the [W] account can be made without income tax implications.
j)The wife seeks a superannuation split “to make up the different in her overall 50% entitlement of the nett assets”.
Husband
a)The husband claims that he, rather than the wife, should receive the “bulk of any split in superannuation.”
b)Equity and justice can only be achieved by the sale of all such real property not agreed to be taken in specie.
c)“Bluntly put a dollar ($) in relate estate value as valued before trial is worth substantially less now and there is not parity between a $ in real estate as valued at trial and a $ in money in specie at the time of making any order.” Accordingly, the real estate should be divided equally and by failing to have all real estate “re-valued”, the husband taking a more than 50% share of real estate on values accepted at trial, works an injustice upon him.
d)The proposed adjustment of real estate creates “a differential” of 19.30%. The husband proposes, in effect, that he does not wish to retain, now, Units 3 and 4 Property Y owned for some time by [W].
e)The husband contends that as he is unable (for 3 years) to make a further superannuation contribution. Unlike the wife, he is restricted from taking advantage of the “tax friendly environment” that superannuation offers. The husband does not seek to remove funds from this environment. The husband wishes to preserve as much as he can by way of his superannuation assets.
Analysis
The Court reiterates that it does not regard it as proper to respond in these Reasons, to the multitude of criticisms or observations made by the husband in his submission. Those matters may well need to be considered by a higher Court.
The mix of assets that achieves justice and equity is a difficult and vexed question., which must be determined in the exercise of judicial discretion, on the particular facts of each case.
I have considered the submissions summarised above and make the following further findings:
a)The Court shall order the sale of Units 3 and 4 Property Y, rather than order that the husband retain them as part of his share of the real estate component of the pool. I do not see any particular disadvantage to the wife in so doing, in that:
(i) Neither party apparently seeks to retain those Units;
(ii)By selling and distributing the nett proceeds equally the parties shall share in any reduction/increase in value equitably;
(iii)Any nett income from those Units shall be, from the date of this Order, shared equally between the parties. To do otherwise would be do allow the husband, who controls [W], to benefit from the time it takes to perfect sales of the two units.
(iv)The parties will each suffer any of the consequences that flow from a delay in the sale of the said Units.
(b)The submissions made for a division of equities in the manner proposed by the submissions for the wife attract my support. It uses the same ideology which is contended for by the husband in respect of real estate – namely, that treating classes of assets as having the same $ value advances equity between the parties. It could be said that the share market is even more volatile than the real estate market. The husband says that the volatility in the market creates a variation in the value of the equities (and his equity linked superannuation) on a daily basis with some significant variation.
(c)The proposals by the wife are based on values at 23 October 2008. There needs to be a date on which these adjustments are made. In a pool of this size, the husband’s nett equities totalling $866,498 represents approximately 10% of the total pool. I do not regard the likely variations between the date of the Order and date of transfer of the shares to the wife will create a significant injustice to either party. Furthermore, whilst I accept the shares required to “cover” the husband’s margin loan at 23 October 2008 of $100,757 have been identified by the wife in Annexure 2 (and the husband might well disagree with the proportions selected), it is not possible to integrate the husband’ s investment strategy in the Order. He has retained sufficient funds in cash to have discharged the total margin loan if he had desired to do so. I have contemplated requiring him to do so; or to sell all shares and just divide the nett proceeds equally. I have decided not to do so.
(d)I see no reason, other than relative simplicity, why losses on shares should be crystalised now. That can be an available choice of the shareholder, once the distribution of shares has been effected.
(e)I propose to use the available cash, rather than to apportion differently as earlier proposed, adjusting for slight differential entitlements to real estate, furniture, jewellery and motor vehicles and the smaller shareholdings. This will require the husband to pay to the wife $76,187 calculated as follows:
| Wife | Bank Account Wife’s shares (nett) Contents and Jewellery Additional real estate | $1,643 $14,963 $39,690 $78,557 |
| $134,853 | ||
| PLUS payment by husband | $76,187 | |
| $211,040 | ||
| Husband | Bank Accounts Contents, jewellery and motor vehicles WestFarmers and Telstra Shares Caltex Shares | $214,486 $57,130 $12,852 $2,760 |
| $287,228 | ||
| LESS payment to wife | $76,187 | |
| $211,041 |
(f)That ultimately leaves the superannuation interests. The husband, on the evidence, did contribute $1,000,000 into superannuation in recent years. It was his deliberate investment strategy. The effect of so doing, obviously, was to reduce available cash by $1,000,000. The husband contends that his ability to access his superannuation (tax free) is not significantly different to the wife’s ability to do so (although not in a lump sum) from age 55 through a transition to retirement pension.
(g)The husband also says that his Australian Superannuation interest (which represents now 90% of the combined superannuation interests) fluctuates significantly with market variations. Setting a fixed base amount for the wife could, he says, create an unfair division if the Australian Superannuation interest decreases in value. I agree that is a risk, slightly obviated by making an Order for the superannuation base amount as a percentage split. To assess that percentage split, it is reasonable to adopt the values accepted as at 23 October 2008, as follows
Total Superannuation
$3,875,659
Wife’s half share
$1,937,829
LESS wife’s superannuation
$363,295
Balance as a base amount
$1,574,534
This base sum represents 44.83% of the husband’s Australian Superannuation interest. As I am not satisfied the parties have given notice to the Trustee of the Fund as required by law, I am not able to pronounce on an Order at this time.
Summary
Based on the matters dealt with above, the Order I will make will provide, once procedural fairness is demonstrated to the Australian Super Fund Trustee, a distribution of the pool of $8,511,549 equally – or $4,255,774 each – as follows:
Wife
| Property W | $1,100,000 |
| Property T | $290,000 |
| Half share of “notional” proceeds of sale of Units 3 and 4 Property Y | $377,500 |
| Bank Account | $1,643 |
| Contents and jewellery | $39,690 |
| Share portfolio (less margin loan) | $14,963 |
| Cash payment by husband | $76,187 |
| Shares (as per annexure 2) to be transferred to wife | $417,962 |
| Wife’s current superannuation | $363,295 |
| Superannuation split | $1,574,534 |
| NETT TOTAL | $4,255,774 |
Husband
| Property P | $500,000 |
| Property S | $300,000 |
| Unit 2 Property Y | $500,000 |
| Other fixed assets | $11,443 |
| Half share of “notional” proceeds of sale of Units 3 and 4 Property Y | $377,500 |
| Bank accounts | $214,486 |
| Contents, vehicles, jewellery | $57,130 |
| Westfarmer, Telstra, Caltex Shares | $15,612 |
| Shares (as per Annexure 2) – excluding shares to cover margin loan | $417,962 |
| Balance of Australian Super | $1,937,830 |
| $4,331,963 | |
| LESS payment to wife | $76,187 |
| NETT TOTAL | $4,255,776 |
I intend to make the Order for Child Support Departure as set out in my earlier Reasons.
I have considered the draft Orders each contended for in the submissions. Now that I have decided the appropriate mix and division, a combination of parts of each Order (although different drafting styles are obvious) is appropriate, in particular (before the splitting Order) paragraphs:
a)1, 2, 3, 4, 5, 6, 8, 11, 12 and 13 of the husband’s proposed Orders commencing in his submissions at page 21.
(b)5, 6, 8, 9, 10, 11, 12 and 13 of the wife’s proposed Orders commencing on page 1 of the Annexure to the said submissions.
(c)The husband shall pay the wife the sum of $76,187.
(d)A splitting Order in favour of the wife with a base sum calculated at 44.83% of the husband’s Australian Superannuation at the operative date – which will be four business days after service of the Orders upon the Trustee.
(e)Such other consequential Orders arising from these Reasons.
I direct the solicitors for the wife to prepare such an Order, and in respect of the proposed splitting Order, to give effect to procedural fairness, to send the same forthwith to the Trustee.
In circumstances where the superannuation interests represent such a significant aspect of the pool, I would not be able to make any Order until I am satisfied an Order providing for the split in these Reasons has been produced to the Trustee and either the statutory period of
28 days has expired or the Trustee’s acknowledgement is available.
To allow that process to be undertaken, I will adjourn the matter to 10.30a.m. on Wednesday 26 November 2008 for pronouncement of the Order. If the parties, despite my directions and findings, cannot agree on the form of Order, I will also deal with that on 26 November 2008. Such an approach does not prevent the Trustee obtaining Notice of the proposed splitting Order without the other Orders.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Baumann FM.
Associate: Skye Owen
Date: 12 November 2008
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