Cales & Miranda
[2022] FedCFamC1F 24
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cales & Miranda [2022] FedCFamC1F 24
File number(s): SYC 8016 of 2019 Judgment of: SCHONELL J Date of judgment: 28 January 2022 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Where the issue was division of the parties’ net assets – Where the father sought 25% of the assets – Where the mother submitted that the father should receive 7.5% – Consideration of the parties’ overall contributions and whether an adjustment should be made under s 90SM – Found just and equitable division of net assets to be 15% to the father and 85% to the mother, with father to make an adjusting payment. Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM Cases cited: Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143; [2003] FamCA 395
Stanford v Stanford (2012) 247 CLR 108; [2021] HCA 52
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 24-25 January 2022 Place: Sydney Counsel for the Applicant: Mr Kissick Solicitor for the Applicant: MacDonald Law Counsel for the Respondent: Mr Lethbridge SC Solicitor for the Respondent: Doolan Wagner Family Lawyers ORDERS
SYC 8016 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CALES
Applicant
AND: MS MIRANDA
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.Within thirty (30) days of the date of these Orders, the Respondent Mother (“the mother”) do all acts and things and sign all necessary documents to cause the property situated at and known W Street, Suburb P, in the state of New South Wales, being the whole of the property contained in Folio Identifier … (“the Suburb P property”), to be placed on the market for sale, with the manner of sale to be determined by the mother, acting on the advice of the selling agent chosen by her, in accordance with the following terms:
(a)within thirty (30) days of the date of these Orders, the mother will nominate a selling agent and will notify the Applicant Father (“the father”) of same.
(b)with respect to selling price:
(i)the Suburb P Property be listed for sale with a listing price as recommended by the selling agent but not less than $2,500,000;
(ii)upon an offer being received that is at least 95% of the listing price, the mother shall execute the contract of sale and all other documents as is necessary to complete the sale of the property, including all transfer documentation; and
(iii)in the event that the Suburb P Property dos not sell within 3 months of the date of listing, the mother will do all such things and sign all such documents as is necessary for the Suburb P Property to be sold via auction, with:
A.the Auctioneer to be as agreed and failing agreement, the listing agent will nominate the Auctioneer; and
B.the reserve price to be as agreed or failing agreement as directed by the Auctioneer
2.Upon completion of the sale of the Suburb P property, the parties shall do all acts and things necessary to cause the proceeds of sale to be distributed in the following manner and priority:
(a)in payment of any outstanding advertising expenses, Real Estate Agent’s fees and commissions and other expenses associated with the sale of the Suburb P Property;
(b)in payment of any outstanding legal cost and disbursements of the sale, for any agreed reasonable remediation costs, for example yard clearing, property maintenance, including styling being works undertaken on the property to prepare the property for sale;
(c)in payment of any maintenance and renovation costs relating to works undertaken on the property to prepare the property for sale, as agreed between the parties in writing;
(d)in payment of the then remaining balance in the following manner and priority
(i)in payment of the amount of 15% of the remaining balance to the father, less $103,317, by payment to the “MacDonald Law (Qld) Pty Ltd Law Practice Trust Account”;
(ii)in payment of the amount then due to AA Company (formerly known as AA Finance) with respect to litigation funding advanced to the mother and secured pursuant to that company’s mortgage over the Suburb P property;
(iii)pursuant to the authority granted by the mother to them, payment to Doolan Wagner Family Lawyers of the amount due to them for all fees, charges and disbursements, including Counsel’s fees; and
(iv)in payment of the balance to the mother.
3.The parties forthwith do all acts and things and sign all necessary documents so as to close the joint BB Bank account (account number: …64) and pay any balance therein to the mother.
4.Except as otherwise provided for herein, the mother shall retain, to the exclusion of the father:
(a)all furniture, jewellery and other chattels currently in her possession, custody or control;
(b)any funds standing to her credit in any Bank, Credit Union or Building Society account;
(c)any shares in any public or private company;
(d)any superannuation fund in which she has an entitlement; and
(e)all and any leave or long service, or any other employment benefits or entitlements.
5.Except as otherwise provided herein, the father shall retain, to the exclusion of the mother:
(a)all furniture, jewellery and other chattels currently in his possession, custody or control;
(b)all motor vehicles registered in his name;
(c)any funds standing to his credit in any Bank, Credit Union or Building Society account;
(d)his interest in any businesses;
(e)any shares in any public or private company;
(f)any superannuation fund in which he has an entitlement; and
(g)all and any leave or long service, or any other employment benefits or entitlements.
6.By virtue of these Orders, the mother authorises the listing agent and conveyancer to keep the father informed of the progress of sale at all times and provide the father with all information, including the provision of any documents or information that would otherwise be available to him if he was a registered proprietor of the property, at the same time as such documents are provided to the mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cales & Miranda has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
The hearing in this matter commenced initially with the parties in dispute about the parenting arrangements for their two children as well as what should be the financial adjustment of their property. The parties to their credit were able to resolve the parenting proceedings and consent orders were ultimately made that provided for the parties to have equal shared parental responsibility of their two children X born in 2013 and Y born in 2016 and orders that over a graduated period of time resulting in an equal care arrangement.
The parties were unfortunately not able to reach agreement about what the appropriate division of their assets should be and that matter proceeded to a final hearing. The parties were well represented and their respective counsel and senior counsel conducted the proceedings professionally, efficiently and courteously. With the assistance of counsel, the parties were able to reach an agreement about the pool of assets and there was some short cross-examination.
SHORT BACKGROUND
The parties initially met in 2008 and by late 2012 commenced a relationship. They commenced cohabitation in or about July 2013 and separated in November 2019. The period of cohabitation was over six years in duration.
There are two children of the parties’ relationship, being X aged 8 and Y aged 5.
The Respondent Mother (“the mother”) was involved in an accident in 2008 and sustained significant injuries. Those injuries have left the mother with permanent physical impairment and she will require ongoing surgical interventions. The mother ultimately received a personal injuries payment in excess of $1.5 million in 2014, which was approximately six months after the party’s commenced cohabitation. The proceeds were applied in acquisition of a property at Suburb P.
The Suburb P property was the home occupied by the parties during the period of cohabitation and but for a short period post-separation, was exclusively occupied thereafter by the mother and the children when they were in her care.
Following separation, orders were made in March 2020 for the children to live with their mother eight nights per fortnight and six nights per fortnight with the Applicant Father (“the father”). Such an arrangement continued until November 2020, when the mother became significantly unwell suffering a medical episode.
The father assumed care of the children and pursuant to orders initially made in March 2021 and subsequently in July 2021, the children spent increasing periods of time with the mother. Both children, by the time of the hearing, were spending four nights a fortnight with their mother.
DOCUMENTS RELIED UPON AND POSITION OF EACH PARTY
The father relied upon an affidavit filed 10 January 2022, an affidavit of Mr N filed 10 January 2022, an affidavit of Ms DD filed 10 January 2022 and a Financial Statement filed 11 January 2022. Ms DD and Mr N were not required for cross-examination.
The mother relied upon her affidavit filed 10 January 2022 and her Financial Statement filed 10 January 2022.
The Court was assisted by the parties reducing significantly the volume of material relied upon, given the settlement of the parenting proceedings. Exhibits “2” and “3” in the proceedings, identified the various paragraphs relied upon by each of the parties in circumstances where the parenting case had resolved.
The parties agreed that the Suburb P property was to be sold.
The parties agreed about a form of Order, which was Exhibit “9” in the proceedings. It represented an agreed position, subject only to the adjusting percentage that was required to be made from the proceeds of sale of the Suburb P property.
Upon engaging with each of the counsel, the Court indicated that it proposed to adopt a process, where the proceeds of sale of the Suburb P property would be divided between the parties in a certain percentage and the other assets would be divided in the same percentage. If there were to be an adjustment from one party to the other, that would be adjusted from that party’s share of the proceeds of sale of the Suburb P property. No objection to adopting such a course was raised by either counsel and it is the approach that the Court intends to adopt.
The overall position of the father was that there should be a division of the parties’ assets as to 25% in his favour. His learned counsel submitted that this represented the assessment of contribution with no adjusting assessment under s 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”).
Senior counsel for the mother submitted that the overall contribution assessment in favour of the father should be 7.5% and similarly there should be no adjustment under s 90SF(3).
For the reasons set out below, I am of the view assessing the evidence overall and taking into account the parties’ respective contributions and the matters under s 90SF(3) that an appropriate division of the parties’ net assets as to 15% to the father and 85% to the mother represents a just and equitable outcome.
I accordingly will make orders that the father is to receive 15 % of the proceeds of sale of the Suburb P property, but from his share there will be an adjusting reduction to account for the other assets held by him. My reasons for reaching that conclusion are set out below.
APPROACH TO PROPERTY PROCEEDINGS
The approach to be adopted in a financial adjustment case under s 90SM is to follow the well-recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143). Following such an approach, the court identifies and values the assets and liabilities at the date of hearing for the purposes of division. Secondly, the court assesses the contributions of the parties within the meaning of s 90SM(4) of the Act and determines a contribution based entitlement. Thirdly, the court identifies the relevant matters under s 90SF(3) and determines such adjustment as is necessary to the contribution based entitlement. Finally, the court considers the effect of the findings and determines whether or not the order as proposed is in all the circumstances just and equitable.
It was not in dispute that there was required to be adjusted between them the assets of the parties. The parties are no longer living together and there is no longer the common use of their property. The assumptions and undertakings that governed the use of their property ended with separation. It is just and equitable that an order be made adjusting the property interests of the parties (see Stanford v Stanford (2012) 247 CLR 108). Each party proposed that there should be an adjustment. The parties were in issue as to what that adjustment should be.
POOL OF PROPERTY
The parties agreed as to what constituted the pool of assets and I record below the parties’ agreement.
ASSETS Ownership Description Mr Cales' value Ms Miranda's value REAL PROPERTY 1 W W Street, Suburb P NSW $2,500,000 $E2,500,000 SOLE TRADER: GG COMPANY Bank Accounts 2 H (Business) NAB Business Everyday Account #...16 $274 $E274 3 H (Business) ANZ Business Advantage Account #...16 $5,163 $E5,163 4 H
(Business)NAB Business Everyday Account #...66 $931 $E931 Other 5 H
(Business)Tools and equipment $nil $nil
Motor Vehicles 6 H (Business) Motor Vehicle 1 $6,000 $E6,000
7 H (Business) Motor Vehicle 2 $84,000 $E84,000 Liabilities 8 H (Business) ANZ Business Black Credit Card #...62 -$49 -$49 9 H (Business) NAB Premium Credit Card #...27 -$405 -$405 Net Value of GG Company $95,914 $E95,914 SOLE TRADER: HH COMPANY ABN … Liabilities 10 W
(Business)ATO Debt (HECS, Medicare Levy, Income Tax) FY21 $15,187 $15,187.00 11 W
(Business)ATO Debt (HECS, Medicare Levy, Income Tax) FY22 $23,279 $23,279.44 Net Value of HH Company -$38,466 -$38,466.00 BANK ACCOUNTS 12 J BB Bank Everyday Account #...64 Nil Nil 13 W & X NAB Smart Reward Saver Account #...62 $14 $14 14 W NAB Classic Account #...72 Nil Nil 15 W BB Bank Account #...25 $54,573 $E54,573 16 H NAB iSaver Account #...39 $11,000 $E11,000 17 H JJ Bank Saver Account $5 $5 18 H NAB Classic Account #...14 $51 $E51 19 X KK Bank Children's Saving Account #...75 NIL NIL 20 X KK Bank Kids Bonus Saver Account #...83 NIL NIL 21 Y NAB Smart Reward Saver Account #...47 NIL NIL 22 Y KK Bank Kids Bonus Saver Account #...85 NIL NIL 23 Y KK Bank Children's Saving Account #...77 NIL NIL 24 W BB Bank Account #...10 $122 $122 25 W BB Bank Account #...46 $45 $E45 OTHER ASSETS 26 H Boat $500 $E500 27 H Motor Vehicle 3 $6,000 $E6,000 28 H Box Trailer $500 $E500 29 W Motor Vehicle 4 $7,000 $7,000 30 W Funds held in Doolan Wagner Family Lawyers Trust Account $5,949 $5,949 31 H Funds held in MacDonald Law (Qld) Pty Ltd Law Practice Trust Account $556 $556 Total $2,643,763 $2,643,763
SUPERANNUATION Member Name of Fund Type of Interest Mr Cales’ value Ms Miranda's value 40 H Super Fund 1 $15,727 $15,727 41 W Super Fund 2 $20,083 $20,083 Total $35,810 $35,810
FINANCIAL RESOURCES Ownership Description Mr Cales' value Ms Miranda's value Total $ 0 $ 0
TOTAL ASSETS (including Superannuation) $2,679,573 $2,679,573
The parties were in agreement that in the determination of the asset pool for division between them, that each of the respective liabilities of the parties should be ignored, but nevertheless taken into account under s 90SF(3). The parties have the following liabilities for which they will each be responsible for moving forward.
LIABILITIES Ownership Description Mr Cales' value Ms Miranda's value 33 H Personal loan: Mr C Cales & Ms Cales (Mother and Father) $267,175
$267,175 34 W Legal fees and disbursements owed to DWFL (up to 18 Jan 2022) $183,987 $183,987 35 W Counsel Fees owing (not including preparation and appearance at final hearing) $E10,000 $E10,000 36 W Centrelink Debt (Family Tax Benefit overpayment) $3,562 $E3,526 37 W AA Company (AA Finance Loan) $E309,987 $E309,987 38 H ATO Debt $34,478 $34,478 39 H Legal fees owing (including counsel fees) E$85,249 $85,249 Total $898,438 $898,438
I propose to come back to the issue of these liabilities in assessing what adjustment should be made under s 90SF(3).
ASSESSMENT OF CONTRIBUTION
Whilst the parties had significantly narrowed the volume of material relied upon because of the resolution of their parenting proceedings, there were still large sections of the affidavits that the parties sought that the Court read. Much of the evidence in the affidavits was of limited assistance and much of it amounted to criticisms of the other party’s behaviour or conduct, which was irrelevant. Its irrelevancy was highlighted by the absence of cross examination on the assertions, or any submission by each of the parties’ counsel as to its relevance.
I have, however, read all of the evidence relied upon in the proceedings, but do not propose to repeat it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]:
… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
The assessment in a property case calls for the exercise of a discretion and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all of the contributions of the parties as the Full Court in Dickons & Dickons (2012) 50 Fam LR 244 at [24]-[26] makes plain:
[24]… the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
[25] Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 ; 65 ALR 12 at 18 ; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
[26]The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
Guided by such Full Court determination, I propose to assess the parties’ contributions.
As stated earlier, the parties commenced cohabitation in or about July 2013. At the commencement of cohabitation, the mother owned a motor vehicle valued at approximately $3,500, cash savings of approximately $20,000, superannuation of $4,118 and a HECS debt of approximately $10,000.
There was no value attributed to the assets of the father at the commencement of cohabitation and he acknowledged that he had a credit card debt of approximately $30,000. It would appear from the evidence, that that debt remained in existence as at the date of separation.
The mother’s initial contributions were greater than the father’s.
The parties lived in rental accommodation until acquisition of the home at Suburb P. Each contributed to the cost of renting those premises.
There was an issue between the parties about the extent of financial contribution that each made to the living expenses of the parties during the course of cohabitation. In the final analysis, it remained a dispute, which is unable and also unnecessary to resolve. It was not submitted by the father’s counsel that the mother’s income was not contributed to the family. In relation to the father’s income, other than in one respect, it was not submitted that he did not contribute his income to the benefit of the family.
The exception was in relation to a property at Suburb CC, which he rented and then sublet. In his affidavit, he contended that he did not tell the mother about rental of the property as it was “a safety plan for myself and the children only done out of a fear and necessity to have a backup plan” (at paragraph 285). The reasons why he rented this property are irrelevant for the purposes of my determination. Senior counsel for the mother agreed with the proposition that there was no evidence that the father did not otherwise contribute all of his income to the benefit of the parties and the relationship, other than in respect of what might have been the shortfall over and above the amount received by him from the tenants. The father agreed that he informed the single expert in the parenting proceedings that it cost him somewhere between $0 and $150 a week to maintain this property.
Whilst senior counsel for the mother sought to contend that this represented a loss of funds to the relationship by the maintenance of this “secret” property, senior counsel for the mother agreed during submissions that there was no precision about the period of time for which the property might have been losing up to $150 per week and as a consequence any such loss was not quantified. For instance, it may have only been for a few weeks that the loss was $150. The Court was simply provided with no precise evidence at all.
I am simply unable to determine how much was not contributed to the benefit of the family.
In the 2014 year, the mother earned $36,972 and in the 2015 year she earned $6,294. She otherwise was not employed, other than doing some babysitting. There was no evidence of her income in any later years. The father earnt about $26,000 in the 2014 year, $26,269 in the 2015 year, just under $25,000 in the 2016 year, about $52,000 in the 2017 year, $59,526 in the 2018 year and $82,000 in the 2019 year.
I accept, nevertheless, consistent with the evidence overall, that the father made the greater contribution by way of income.
The parties were also at issue as to the respective roles that each of the parties undertook during the course of the relationship, in respect of the homemaker and parenting contributions. The mother, in her cross-examination, was at times somewhat reluctant to concede the assistance provided by the father as a homemaker and parent. However, she did concede that the undertaking of many tasks were shared including laundry duties, getting up to the children at night, the preparation of the children’s breakfast and the taking of the children to school and pre-school.
As referred to earlier, the mother was involved in an accident in 2008, which left her with significant ongoing impairment. The mother in her affidavit, identifies the following at paragraphs 17-18:
17.To this day I remain physically unsteady on my feet and physically a little slower than what I once was.
18.My experience has been that I have limited range of motion in many activities for example I am unable to stand, walk or sit for extended periods, that is in excess of 20 minutes to 30 minutes without feeling pain. My strength is impacted because I cannot carry or hold the same load that I used to be able to hold prior to my accident. I suffer muscle wastage of my right leg and compartment syndrome of my right arm for example, during cold weather I have limited function in my right arm.
I accept the mother and the father’s evidence that the mother’s injuries left her with significant physical impairment and otherwise impacted on the mother’s health. I accept that the mother was the children’s primary carer, but also accept the father’s evidence that the father played a significant and substantial role in relation to the care of the children and in relation to homemaking activities, when he was not otherwise engaged at work.
As stated earlier, the mother received in 2014 in excess of $1.5 million as a settlement of her personal injury claim. The proceeds (with the exception of about $10,000) were applied to the acquisition of the Suburb P property, which the parties lived in during the course of the relationship. It is a significant contribution made by the mother.
The father sought to assert that he made some contribution to the mother’s personal injury award drawing reference to what was contained in Exhibit “7”, being that a component of the mother’s personal injury award, calculated to be $45,696, was for “past gratuitous care”. The relevant paragraph in the award referable to this amount is stated by the claims assessor Mr FF as follows:
64.It is my finding that a reasonable allowance for past care should be at the rate of eight hours per week over and above the periods when commercial care was provided to the Claimant by the Insurer. It is during these times when commercial care was provided that the Claimant had her highest needs and it would not be unreasonable to expect that Mr Cales or Ms EE or Ms D provided these services.
What is apparent from that paragraph, is that it was not just the father who provided the past gratuitous care. In those circumstances, therefore, whilst it is apparent that he provided some care, I am not able with any precision to determine how much of the allowance for past gratuitous care is referable to that provided by the father. It is in the context of the overall personal injury settlement a very, very small contribution. I take it into account in the final assessment as part of the contributions by the father, but also acknowledge the significant contribution by the mother of the damages claim representing the purchase price of the home occupied by the parties at Suburb P.
The purchase of the Suburb P property provided the parties with a home in which they could live in during the course of their relationship and relieved from them the obligation to pay rent.
The parties separated in or about November 2019, when the mother left the home with the children. The mother returned with the children to the home in December 2019, and the children initially spent day-time only care with the father. Following a hearing on 31 March 2020, orders were made providing that the children live with the mother eight nights a fortnight and the father six night a fortnight.
Such regime of time continued until 14 November 2020, when the mother was admitted into hospital suffering a medical episode. The children, thereafter, came into the father’s care. The mother made some criticism of the father’s unwillingness to permit the children to spend much time with the mother between her admission into hospital and March 2021, when orders were made by Altobelli J. Thereafter, the mother spent some limited time with the children until further orders were made by Altobelli J in July 2021, which provided for the mother to spend increasing periods of time with the children.
Thus, post-separation, while both parties were engaged in the children’s care, who the primary carer of the children was changed. Post-separation, they effectively shared the care of the children until November 2020, when the mother suffered an acute medical episode. The consequence of that was that the children came into the care of the father and he assumed a more significant role in relation to their care, effectively providing almost all of their care until approximately July 2021, when the mother started spending unsupervised time with the children.
Doing the best I can and assessing the parties’ contributions in a holistic way during cohabitation and subsequently, I am of the view that an assessment at 25% fails to properly have regard to the significance of the contribution of the mother’s personal injury award. However, an assessment at 7.5% fails to properly recognise the father’s contributions by way of homemaker and parent, both during the relationship and subsequently. In my view, a proper assessment of the father’s contributions leads overall to a conclusion of 15%.
Section 90SF(3) of the Act provides:
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i)a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
In relation to the matters under s 90SF(3), both counsel submitted that there should be no adjustment under s 90SF(3).
Notwithstanding their submissions, the relevant matters under s 90SF(3) seem to me to include the disparity as to income available to each of the parties. In that respect, I note from the father’s Financial Statement that he would appear to have a gross weekly income of $1,584 from his business as a tradesperson, whilst the mother has a gross weekly income of $1,164 as an allied health worker. The father clearly earns more than the mother.
Otherwise, I note that the mother has ongoing physical problems arising from her injuries in the motor vehicle accident that occurred in 2008. In that respect, I note her evidence at paragraph 222 to the effect:
I continue to have some physical health disabilities. My movement is limited, accordingly, employment opportunities available to me are limited. I also need to engage in ongoing physiotherapy and continue to attend upon my treating practitioners to manage my health which I anticipate being a life-long exercise
and at paragraph 226 the mother’s unchallenged evidence is:
I will continue to require ongoing medical care to treat my injuries arising from the 2008 accident. The doctors have informed me that I will require multiple operations and these will include the removal of the titanium rod replacing my femur. I will also require more than one knee replacement.
It is clear, therefore, that the mother will have ongoing health management issues, which may limit her employment opportunities.
I also note the disparity as a consequence of the contribution-based findings and take into account that each of the parties will have ongoing liabilities that they have to meet. In that respect, there is a difference in the respective liabilities of the parties. The father’s liabilities total approximately $387,000 and the mother’s total approximately $507,000. The mother has significantly greater debt than the father. Whilst much of the debt relates to legal fees, it is undoubtedly the case, that the mother’s significant debt to AA Company will be discharged upon sale of the Suburb P property. The father, however, seems to have at least the benefit of some support from his family, and the evidence would seem to suggest that the father will have to repay the debt but on more favourable terms over time.
Whilst an imbalance of contribution in favour of the mother might call for an adjustment under s 90SF(3) in favour of the father, taking into account the mother’s significant physical health difficulties and their future management as well as the difference in the quantum of the respective liabilities of the parties, I find that no adjustment under s 90SF(3) is warranted.
Accordingly, the parties’ assets as identified in paragraph 19 of these reasons, will be divided in the proportions as to 85% to the mother and 15% to the father.
To give effect to this, the father will receive 15% of the sale proceeds of the Suburb P property, after allowing for the costs of sale.
The remaining property of the parties totals $179,573, 15% of that amount is $26,936. The father has property in his name valued at $130,253. This is more than 15%. There will correspondingly need to be adjusted from the father’s share of the proceeds of sale $103,317.
I am satisfied that these findings and the adjusting orders represent a just and equitable division of the parties’ interests in property.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 28 January 2022
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