Calovich & Calovich
[2021] FCCA 1235
•2 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Calovich & Calovich [2021] FCCA 1235
File number(s): SYC 6712 of 2018 Judgment of: JUDGE BECKHOUSE Date of judgment: 2 June 2021 Catchwords: FAMILY LAW – Property – alteration of property interests – long marriage - family loan – equitable interest – caveat –contributions – redundancy – total and permanent disability – motor vehicle accident payout - future needs Legislation: Family Law Act 1975 (Cth) ss 75, 75(2), 78, 79, 81, 90XT(1)(b), 106A
Real Property Act1900 (NSW) s 74F
Family Law (Superannuation) Regulations 2001
Cases cited: Aleksovski & Aleksovski [1996] FamCA 111
Falcken & Weule [2019] FamCAFC 140
G & G [1984] FamCA 60
Hickey v Hickey & Attorney-General of the Commonwealth [2003] FamCA
In the Marriage of Biltoft [1995] FamCA 45
In the Marriage of Petersens [1981] FamCA 50
Jabour and Jabour [2019] FamCAFC 78
Pierce & Pierce [1998] FamCA 74
Stanford v Stanford [2012] HCA 52Williams & Williams [2007] FamCA 313
Number of paragraphs: 136 Date of hearing: 3-4 May 2021 Place: Sydney Solicitor for the Applicant: Mr Reeve of Marsdens Law Group Solicitor for the Respondent: Vaughan Zarb & Co Counsel for the Respondent: Mr Dura ORDERS
SYC 6712 of 2018 BETWEEN: MR CALOVICH
Applicant
AND: MS CALOVICH
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
3 JUNE 2021
ON A FINAL BASIS THE COURT ORDERS THAT:
1.Within 120 days from the date of these Orders the Wife shall pay to the Husband, or as he may direct in writing, the sum of $273,638.76.
2.Simultaneously with the Wife’s compliance with the preceding Order, the Husband shall do all acts and things and sign all documents necessary to transfer all his right, title and interest in the former matrimonial home known as and situate at B Street, Suburb C being the whole of the land contained in folio identifier ... (“the B Street, Suburb C property”) to the Wife.
3.Should the Wife fail or refuse to comply with Order 1 above by the due date, then failing agreement, the parties shall join in the sale of the B Street, Suburb C property by listing it for sale with a real estate agent active in selling residential real estate in the Suburb D/Suburb E/Suburb F area for the best price reasonably attainable within 30 days of the Wife’s default.
4.Upon the sale of the B Street, Suburb C property, the parties shall provide all necessary instructions to cause the proceeds of sale be applied as follows:
(a)The payment of all selling costs associated with the sale of the B Street, Suburb C property;
(b)The payment of all legal costs associated with the sale of the B Street, Suburb C property;
(c)The payment to the Husband in the sum of $273,638.76 (plus interest at the rate prescribed by the Family Law Rules calculated from the due date for payment in accordance with Order 1 to the actual date of payment); and
(d)The balance then remaining to the Wife.
5.Except as otherwise provided for by these Orders, the Husband shall retain, to the exclusion of the Wife, the sole right, title and interest in the following property:
(a)All funds standing to his credit in any bank account;
(b)His motor vehicle;
(c)His personalty and household contents;
(d)His superannuation entitlements; and
(e)Any and all other items of personalty and property currently in his possession and/or to which he has an entitlement.
6.Except as otherwise provided for by these Orders, the Wife shall retain, to the exclusion of the Husband, the sole right, title and interest in the following property:
(a)All funds standing to her credit in any bank account;
(b)His motor vehicle;
(c)Her personalty and household contents; and
(d)Any and all other items of personalty and property currently in her possession and/or to which she has an entitlement.
7.Whenever a splittable payment becomes payable to Mr Calovich from his interest in the Super Fund U (Member Name: Mr Calovich, Member ID: ...) it is ordered that Ms Calovich is entitled to 50% of the said interest, being the specified percentage in accordance with section 90MT(1)(b) of the Family Law Act 1975, of the splittable payment and there is a corresponding reduction in the entitlement of Mr Calovich which he would otherwise have had but for these Orders.
8.The operative time for the purpose of these orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of the Fund Or the date of the valuation report of the member's interest in the Fund.
9.Having been accorded procedural fairness in relation to the marking of this Order, this Order binds the Trustee of the Fund.
10.The Trustee of the Fund, the husband and the wife, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 shall do all acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the in accordance with this Order.
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 under the pseudonym Calovich & Calovich is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These are property settlement proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between the Applicant Husband (‘the Husband’) Mr Calovich and the Respondent Wife (‘the Wife’) Ms Calovich arising from the breakdown of their marriage.
ISSUES IN DISPUTE
At the commencement of the hearing the issues in dispute were:-
(a)Whether the Wife’s father, Mr G, has an equitable interest or, that a loan exists between him and the parties with respect to the property at B Street, Suburb C (‘B Street, Suburb C’);
(b)If the Court determines that the Wife’s father does not have an interest in/or there is no loan owing by the parties to him, the assessment of the parties’ respective contributions in circumstances where it is agreed that the Wife owned the property at H Street, Suburb J (‘H Street, Suburb J’) prior to the marriage;
(c)Whether the loans advanced to the Husband by Mr K and Mr L should be included in the property pool;
(d)The weight to be attached to compensation funds received by the Wife;
(e)The weight to be attached to the total permanent disability payment received by the Wife;
(f)The contributions of each party;
(g)The future needs of each party; and
(h)The assessment of any s 75(2) adjustments
BACKGROUND
The Husband is Mr Calovich who was born in 1971 in the former Country M. His is currently aged 49.
The Wife is Ms Calovich who was born in 1974 in Australia. She is currently 47 years old.
The Wife’s father is Mr G who was born in 1948. He arrived in Australia in 1972 and worked until his retirement as a factory worker.
The Husband migrated to Australia in 1986.
The parties married in 1995 and separated in April 2017. A divorce order was granted on 4 July 2018.
There are two children of the marriage namely: Ms N born in 2003, aged 18 years, and X born in 2004, aged 16 years.
The Wife has re-partnered and married Mr O in 2020.
HISTORY OF PROCEEDINGS
These proceedings commenced on 22 October 2018 when the Applicant Husband filed an Initiating Application seeking orders for an adjustment of interests in property.
The Wife filed her Response to the Initiating Application, Affidavit and Financial Statement on 16 November 2018.
On 8 April 2021, the Husband filed an Amended Initiating Application.
On 17 August 2020 the parties were ordered to attend a Conciliation Conference and the matter was set down for a two (2) day final hearing on 3 and 4 May 2021.
RELEVANT FACTS
The parties met at a relatively young age.
In 1994 a property located at H Street, Suburb J in New South Wales was purchased in the Wife’s name with the use of $150,000 provided by her father, Mr G. The Wife also contributed approximately $20,000 to the acquisition costs.
Upon their marriage in 1995 the parties moved into the H Street, Suburb J property.
At the time of their marriage the Husband was employed as a factory worker at Employer P, and the Wife was employed as a customer service officer the Employer Q.
Improvements were made to H Street, Suburb J by the parties and family members.
Shortly after the birth of X, in 2005 the parties jointly purchased a property at B Street, Suburb C for $475,000. A loan for the full purchase price was secured against both B Street, Suburb C and H Street, Suburb J.
The parties moved into the B Street, Suburb C property in 2005 and the Husband’s brother rented the H Street, Suburb J property and paid rent to the parties.
In 2006 the Husband received a redundancy payout of $90,000, some of which was applied to reducing the mortgage over B Street, Suburb C. He was unemployed for a period of time.
In 2006 H Street, Suburb J was placed on the market for sale and settlement took place in 2006. The proceeds of sale were applied to reduce the loan secured by way of mortgage over B Street, Suburb C.
In 2006 a caveat was registered on the title of B Street, Suburb C (with the consent of the parties) by Mr G who claimed an equitable interest of 80% in B Street, Suburb C.
In 2011 the Wife was diagnosed with a medical condition. She elected to be treated privately by Dr R at a cost of $65,000 which was funded by Mr G. She was hospitalised for over one month. She never returned to her position of employment at the Employer Q.
In 2011 the Wife was involved in a motor vehicle accident. In 2015 she received a payment of $171,618.07 as settlement for the motor vehicle accident.
In 2012 the Wife was involved in another motor vehicle accident. In 2015 she received a payment of $28,607.40 in settlement of the motor vehicle accident.
In 2014 the Wife received a payout of $167,517.43 from her superannuation fund.
In April 2017 the parties separated and the Husband left the former matrimonial home in B Street, Suburb C.
In 2021 Ms N underwent elective knee surgery at a cost of $15,000, funded partly by her and by monies procured by the Husband.
On around 8 April 2021 Mr G was served with a notice of proposed lapsing of the caveat. [1] A title search conducted on 4 May 2021 indicates that the caveat has lapsed.[2]
[1] Exhibit 4.
[2] Exhibit 10.
EVIDENCE
The Husband was legally represented and relied upon the following material:
(a)Amended Initiating Application filed 8 April 2021
(b)Affidavit of Mr Calovich filed 8 April 2021
(c)Financial Statement filed 8 April 2021
The Wife was legally represented and relied upon the following material:
(a)Response to Initiating Application filed 16 November 2018
(b)Affidavit of Ms Calovich filed 21 April 2021
(c)Financial Statement filed 21 April 2021
(d)Affidavit of Mr G filed 21 April 2021
Counsel for the parties prepared lists of objections to the evidence filed. Some objections were resolved by consent. Those that were not, were argued and determined prior to the commencement of the hearing.
The following documents were relied upon by the parties, admitted into evidence and marked as exhibits:
(a)Exhibit 1 - Letter discussing personal loan issued by Bank S to Applicant Father on 19 February 2021;
(b)Exhibit 2 - Caveat signed in 2006 and Notice of Caveat of 2006;
(c)Exhibit 3 - Husband’s Initiating Application filed on 22 October 2018;
(d)Exhibit 4 - Letter addressed to Mr G dated 8 April 2021 and Lapsing Notice (Pages 119-120 of the Joint Tender Bundle);
(e)Exhibit 5 - Proof of Voluminous Documents prepared pursuant to s 50 of the Evidence Act ( Page 1 of the Joint Tender Bundle);
(f)Exhibit 6 - Letter from Employer Q Super to Respondent Wife dated 2 May 2015;
(g)Exhibit 7 - Financial Statement of Respondent Wife filed 16 November 2018;
(h)Exhibit 8 - Affidavit of Respondent Wife filed 16 November 2018;
(i)Exhibit 9 - Joint Balance Sheet;
(j)Exhibit 10 - Title Search dated 4 May 2021;
(k)Exhibit 11 - Letters addressed to the parties from their respective legal representatives estimating legal fees dated 3 May 2021;
(l)Exhibit 12 - Documents identified as 8 (pages 44-47), 9 (pages 48-51), and 10 (pages 52-56) in the Joint Tender Bundle Index (Tax Return Documents);
(m)Exhibit 13 - Letter from Mr T to Federal Circuit Court of Australia dated 4 March 2021 (Page 103 of the Joint Tender Bundle);
(n)Exhibit 14 - Correspondence (various dates in 1994) from the solicitor acting in the 1994 purchase of the H Street, Suburb J Property (Pages 105-108 of the Joint Tender Bundle);
(o)Exhibit 15 - Notice to Produce addressed to the Respondent Wife (Pages 121-122 of the Joint Tender Bundle);
(p)Exhibit 16 - Correspondence from Marsdens Law Group (Pages 123-127 Joint Tender Bundle); and
(q)Exhibit 17 - Letter from Super Fund U dated 19 October 2020 and Letter to Super Fund U from Marsdens Law Group dated 15 October 2020 (Page 193 of the Joint Tender Bundle).
The Husband and Wife were each called to give evidence and were cross-examined. I found that they gave evidence truthfully, although at times their evidence was self-serving. I generally found them both to be credible witnesses.
The Wife’s father, Mr G, gave evidence for the Wife and was cross-examined. He required an interpreter. He presented as a truthful and unsophisticated man. He had a very basic knowledge of legal concepts and processes.
PROPOSALS
The Husband’s Proposal
The Husband seeks orders for the sale of B Street, Suburb C with the proceeds being divided equally between the parties. He proposes a super splitting order that would see 50% of the value of his superannuation being allocated to the Wife.
The orders he seeks are set out in his Case Outline document as follows:
Orders Sought by the Husband
1.These Orders are made by way of alteration of property interests pursuant to section 79 of the Family Law Act 1975.
2.That the parties forthwith do all acts and things necessary including executing all documents necessary to cause the property situated at and known as B Street, Suburb C in the state of New South Wales (‘the former matrimonial home’) being the whole of the land contained in folio identifier ... to be sold at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
2.1 Payment of agent’s commission and advertising expenses and legal expenses of the sale.
2.2 Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.
2.3 The balance then remaining to be divided on an equal basis.
3.That:
3.1 in accordance with section 90XT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable to Mr Calovich from his interest in the Super Fund U (Member Name: Mr Calovich, Member ID: ...) , the Respondent Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using base amount equivalent to 50 per centum and there is a corresponding reduction in the entitlement Applicant Husband would have had but for these Orders.
3.2 having been accorded procedural fairness in relation to the making of these Orders, these Orders bind Super Fund U, the Trustee of the Super Fund U.
3.3 these operative time for these Orders is the date being 4 days after the date of service of a copy of the sealed Orders upon Super Fund U, the Trustee of Super Fund U.
4.That as between the Applicant and Respondent, and subject to the above Orders, the parties shall each respectively retain all interest in and entitlement to:
4.1 All personal property now in his/her respective possession or control.
4.2 All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
4.3 All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
5.That the Applicant shall be solely liable for all other debts standing in his sole name and shall indemnify the Respondent in respect of the same
6.That the Respondent shall be solely liable for all other debts standing in his sole name and shall indemnify the Applicant in respect of the same.
7.That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
8.Both the Husband and the Wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
9.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
The Wife’s Proposal
The Wife proposes that the Husband transfer his interest in the B Street, Suburb C property to her upon a payment of $80,000 being made to him. She does not propose a super splitting order. She seeks an order for costs.
The Wife’s proposal is contained in her Case Outline document and is headed ‘Orders Sought by the Wife’. The orders she seeks are as follows:
Orders Sought by the Wife
1.That within 60 days from the date of these Orders the Wife shall pay to the Husband, or as he may direct in writing, the sum of $80,000.
2.That simultaneously with the Wife’s compliance with the preceding Order, the Husband shall do all acts and things and sign all documents necessary to transfer all his right, title and interest in the former matrimonial home known as and situate at B Street, Suburb C (“the B Street, Suburb C property”) to the Wife.
3.That should the Wife fail or refuse to comply with Order 1 above by the due date, then the parties shall join in the sale of the B Street, Suburb C property by listing it for sale with a real estate agent active in selling residential real estate in the Suburb D/Suburb E/Suburb F area for the best price reasonably attainable within 30 days of the Wife’s default.
4.That upon the sale of the B Street, Suburb C property, the parties shall provide all necessary instructions to cause the proceeds of sale be applied as follows:
4.1 The payment of all selling costs associated with the sale of the B Street, Suburb C property;
4.2 The payment of all legal costs associated with the sale of the B Street, Suburb C property;
4.3 The payment to Mr G of a sum equivalent to 80% of the sale proceeds then remaining;
4.4 The payment to the Husband in the sum of $80,000.00 (plus interest at the rate prescribed by the Family Law Rules calculated from the due date for payment in accordance with Order 1 to the actual date of payment; and
4.5 The balance then remaining to the Wife.
5.That, except as otherwise provided for by these Orders, the Husband shall retain, to the exclusion of the Wife, the sole right, title and interest in the following property:
5.1 All funds standing to his credit in any bank account;
5.2 His motor vehicle;
5.3 His personalty and household contents;
5.4 His superannuation entitlements; and
5.5 Any and all other items of personalty and property currently in his possession and/or to which he has an entitlement.
6.That, except as otherwise provided for by these Orders, the Wife shall retain, to the exclusion of the Husband, the sole right, title and interest in the following property:
6.1 All funds standing to her credit in any bank account;
6.2 His motor vehicle;
6.3 Her personalty and household contents; and
6.4 Any and all other items of personalty and property currently in her possession and/or to which she has an entitlement.
7.That the Husband pay the Wife’s costs of, and incidental, to the proceedings.
THE LAW
In determining property matters consideration must be had to Part VIII of the Act and in particular ss 75, 78 and 79. The alteration of property interests between two parties to a marriage is governed primarily by s 79 of the Act.
The first question that must be asked as articulated by the High Court in Stanford v Stanford [2012] HCA 52 at [37] is whether “it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
In considering what orders are appropriate to be made I will follow the four step process in accordance with the Full Court decision of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) [2003] FamCA 395 at [39] which is summarised as follows:
(a)Identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
(b)Identify and assess the parties contributions pursuant to s 79;
(c)Identify and assess the parties ongoing needs taking into account the relevant factors relevant under ss 79 and 75(2); and
(d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
I must also consider s 81 of the Act which has the practical effect of requiring the Court to endeavour to make orders that finalise the financial relationship between the parties.
It is important to also note that I am not required to adopt a strictly mathematical approach in determining the alteration of property interests, as discussed by Nygh J in G & G [1984] FamCA 60.
DISCUSSION AND FINDINGS
Preliminary Issues
I find that this is a matter where it is just and equitable to determine a property division based on the following:-
(a)The parties have been separated since 2017.
(b)They were divorced in 2018.
(c)The Wife remarried in 2020 and resides in the former matrimonial home with the two children and her new Husband.
(d)There will no longer be any common property available for shared use by the parties.
(e)Both parties request property division.
This was a marriage of 22 years where contributions were made towards matrimonial property for a 27 year period. Given the length of the marriage and the few assets accumulated, the parties conceded that a global approach is an appropriate one to take.
ASSETS AND LIABILITIES
The parties submitted a Joint Balance Sheet and by the conclusion of the hearing the following assets and liabilities were identified and, unless stated, were the subject of agreement as to values:
Assets[3] Item Ownership Description Husband's Estimated Value ($) Wife's Estimated Value ($) 1 J B Street, Suburb C 1,000,000 1,000,000 2 W CBA Acct xx...68 - 3 W CBA Acct xx...72 430 430 4 W Motor Vehicle 1 16,000 16,000 5 W Household Contents 10,000 10,000 6 H CBA Acct xx...65 5,000 5,000 7 H Motor Vehicle 2 18,000 18,000 8 H Household Contents 4,000 4,000 9 H Furniture, furnishings and chattels 1,680 1,680 10 W ANZ Equity Manager Account #...41 164 164 Subtotal 1,055,274 1,055,274 Addbacks
Item
Ownership
Description
Husband's
Estimated Value ($)
Wife's Estimated Value ($)
Subtotal - - Superannuation Item
Ownership
Description
Husband's Estimated Value ($)
Wife's Estimated Value ($)
11 H Super Fund U 224,000 224,000 Subtotal 224,000 224,000 Liabilities Item
Ownership
Description
Husband's Estimated Value ($) Wife's Estimated Value ($)
12 J Liability to Mr G pursuant to Caveat 800,000 13 H Loan to Mr K 3,000 14 H Loan to Mr L 5,000 - 15 H Bank S Personal Loan 7,281 7,281 Subtotal 15,281 807,281 Net Assets Item
Description
Husband's Estimated Value ($)
Wife's Estimated Value ($)
Assets 1,055,274 1,055,274 Addbacks - - Superannuation 224,000 224,000 Subtotal (Assets, Addbacks & Superannuation) 1,279,274 1,279,274 Subtotal 1,279,274 1,279,274 Less liabilities 15,281 807,281 NET ASSETS 1,263,993 471,993 [3] In the table, ‘J’ refers to property registered in the names of both parties, ‘W’ refers to property registered in the Wife’s name or in her possession and ‘H’ refers to property registered in the Husband’s name or in his possession.
There are three items in the Joint Balance Sheet that are the subject of controversy and require determination;
(a)First, whether there is a loan outstanding to the Wife’s father, Mr G in the sum of $800,000. And if not, does Mr G have an equitable interest in B Street, Suburb C? [4]
(b)Second, should the loans advanced to the Husband by Mr K and Mr L be included in the property pool? [5]
[4] Exhibit 9, Item 12.
[5] Ibid, Items 13 & 14.
How should the Wife’s father’s contributions towards the matrimonial property be treated?
In the Joint Balance Sheet the Wife deposes a liability of $800,000 to her father.
The liability arises from the initial contribution of $150,000 made by him to the acquisition of H Street, Suburb J in 1994. This contribution is not disputed by the Husband.
The Wife claims that the $800,000 loan arises from the equitable interest that Mr G has in B Street, Suburb C, as evidenced by a caveat lodged on title.[6]
[6] Exhibit 2.
The uncontested evidence on this issue is as follows:
(b)Following their marriage in 1995 the parties moved into H Street, Suburb J, which at the time was registered in the sole name of the Wife. The Wife alleges H Street, Suburb J was worth $200,000 at that time but there is no evidence to support this contention.
(b)The Wife gave evidence that she considered her father the owner of H Street, Suburb J and she consulted with him on any matter concerning H Street, Suburb J. The Husband disputes this and says the parties treated it as their own property.
(b)The parties lived in and maintained the H Street, Suburb J property including paying for all expenses associated with it (rates, insurance and other outgoings). The parties are in dispute as to the extent of the Husband’s contributions to the improvements of H Street, Suburb J. Over the years Mr G provided labour, skills and sometimes funds for improvements towards the property, as did the Husband. Counsel for the Wife described it as ‘a family affair’.
(b)In 2005 the parties purchased B Street, Suburb C for $475,000. They borrowed $480,000 which was secured against both the B Street, Suburb C and H Street, Suburb J properties. They moved into the B Street, Suburb C property.
(b)The parties maintained the properties in H Street, Suburb J and B Street, Suburb C for a period of approximately 12 months. During this period the Husband received a redundancy payment of $90,000 and at least $70,000 was applied towards the mortgage. The Husband’s brother rented H Street, Suburb J for a period of around 10 months and the parties maintained both properties.
(b)In 2006 H Street, Suburb J was sold for $320,000. The balance of the proceeds of sale of H Street, Suburb J ($286,235.77) was applied to reduce the home loan for B Street, Suburb C.
(b)In 2006 the parties and the Wife’s father attended the offices of Mr T, solicitor. Mr T had acted for the parties on both the conveyances of H Street, Suburb J and B Street, Suburb C.
(b)During a consultation that lasted approximately 30 minutes, a caveat was prepared and the parties consented to it being registered on the title of B Street, Suburb C. Mr G claimed an equitable interest in B Street, Suburb C by virtue of the following matters recorded in the caveat:
the Caveator claims an interest of 80% of the land based on an equitable claim traceable to financial contributions made to the acquisition of the prior land (being H Street, Suburb J folio identifier ...) owned by the proprietor with the sale proceeds of those lands being used by the registered proprietor to acquire the subject land/reduce the mortgage debt thereon.[7]
(b)No interpreter was present during the meeting with Mr T. No letter of advice was sent to the parties or Mr G following that meeting. None of the parties received independent legal advice.
[7] Ibid.
The parties gave conflicting evidence on this issue of the caveat and it is important to explore the versions in order to determine whether any monies are owed to Mr G.
The Wife provided no explanation as to why a caveat was drawn in favour of her father. Her explanations as to how she arrived at the loan amount of $800,000 included:
(a)In her affidavit sworn 21 April 2021 she says Mr T calculated that the sale proceeds for H Street, Suburb J would equate to 80% of the equity in the B Street, Suburb C property.
(b)Under cross-examination she gave evidence that she believed that the proceeds of the sale of H Street, Suburb J ($320,000) represented 80% of the value of B Street, Suburb C (which was acquired for $475,000).
(c)The Wife’s solicitor wrote to the Husband on 12 March 2018 claiming a loan was owed to the Wife’s parents in the sum of $400,000.
(d)In her Financial Statement filed on 16 November 2018 the Wife deposed owing her father $395,000.[8] Under cross-examination she said it represented the ½ share of the loan and accepted that the full loan amount was $795,000.
[8] Exhibit 7.
(e)Under cross-examination she accepted that she had not disclosed the existence of the loan to Bank V or Centrelink. These was confusion on her part as to whether her father’s contribution was described as a gift[9]. The Wife gave the following evidence in cross-examination:
[9] Although the Wife at no time conceded that she considered it to be a gift.
Counsel:Is it your evidence that you do not believe that you told Centrelink that you owed money to your father?
Wife:As far as I recall, they asked what my husband’s income was, and I had to go on an assessment to get the disability pension. I don’t recall ever being asked who had an interest in the property or didn’t.
Counsel:When you purchased the B Street, Suburb C property you took this interest only loan over from Bank V?
…
I suggest to you that you did not tell Bank V that you owed you father money?
Wife: I don’t recall. I am not sure.
Counsel:And I am also going to suggest to you that you did not tell Bank V that your father was to own some 80% of the B Street, Suburb C property?
Wife:Um, I recall giving B Street, Suburb C a security but I can’t recall the whole thing of the H Street, Suburb J property. So no, I can’t comment on that.
Counsel:And I am going to suggest to you that you stayed entirely silent when you dealt with anything to do with your father?
Wife:You just said to me it was a gift so I didn’t think of, no.
Counsel:When you just said to me that it was a gift, did you say that because in your mind when you were dealing with the bank, because your dad had gifted you the money, they did not need to know about it?
Wife:No
Counsel: Why did you say you just say it was a gift?
Wife:You were confusing me because one minute you are talking like it is a gift and the next minute you are talking like it is another thing, and I got confused.
Mr G said he was invited by the parties to attend an appointment with Mr T on 6 November 2006 to discuss ‘how we could protect my interest and Ms Calovich’s interest in H Street, Suburb J’.[10] Mr G described Mr T as being the lawyer for the Husband and the Wife. While he used an interpreter during the court proceedings he conceded that no interpreter was available at the meeting with Mr T. He said he was aware that H Street, Suburb J had sold for $320,000 but he was unable to explain how the figure of 80% in the caveat was arrived at.
[10] Affidavit of Mr G filed 21 April 2021 at paragraph 26.
Mr G was cross-examined about how the caveat came about. It was put to him that it arose because there were problems in the relationship between his daughter and the Husband. The Husband gave the following evidence:
Counsel:Sir, what you are trying to protect here was a claim that you were worried might be made against the property by your son in law weren’t you?
Mr G: Yes.
Counsel:The way in which the protection was to operate in your mind was to reduce the interests of your daughter so that they could not be attacked by your son in law if they were to separate?
Mr G: Yes.
Counsel:It was exactly the situation she is in now that you were worried about then?
Mr G:Yes.
Counsel:When you look back at it, that is something that you and your daughter had discussed before you signed the caveat?
Mr G:No she only told me that she and Mr Calovich made the agreement and they wanted me to sign it.
I asked Mr G about the repayment of the monies to his daughter if I found them to be a loan. He said:
Her Honour: In the material filed by your daughter she says that she owes you some money. Do you know about that?
Mr G:No
Her Honour: So have you ever spoken to your daughter about her paying you money at the end of this court case?
Mr G:No
Her Honour: So if this Court makes a finding about you having a share of the property are you expecting that your share will stay with your daughter?
Mr G: I have to think about that.
Her Honour: Do you need some time to think about it?
Mr G: Yes
Her Honour: Can you tell me what you are thinking right now?
Mr G: At the moment that it is to remain as it is, 80%.
Her Honour: Yes, and if I found that instead of 80% that there was some money that your daughter might have to pay you. Say that if I decided that instead of your daughter keeping a share of the property, she would have to pay you some money, would you expect her to pay you that money? Or would you be happy for her to hold onto the money until you wanted the money paid to you?
Mr G:She can keep my percentage and hers as it was.
The Husband agrees that he consented to the caveat being lodged but says he did not understand ‘that it represented that Mr G owned 80% of the equity of the B Street, Suburb C property.’[11] This was tested under cross-examination where he gave evidence that he did not know the method by which Mr T had calculated the equitable interest asserted by Mr G. The following evidence was given by the Husband when cross-examined on the meeting with Mr T:
[11] Affidavit of Mr Calovich filed 8 April 2021 at paragraph 109.
Counsel:Do you remember anything about this meeting other than that you signed this document?
Husband:I don’t remember much but I remember meeting my ex-wife and her father at the office. We walk upstairs and yeah, and just they gave us some sort of paper to sign.
Counsel:And do you say Sir that the suggestion of a caveat had never been discussed with you either by Ms Calovich and or with Mr G before you meet with them there in 2006?
Husband:Yes
Counsel:So what was your understanding then Sir as to why it was you were meeting them at Mr T’s office?
Husband:Um, just to protect my father in law’s $150,000 that he gave to my um ex.
…
CounselWhen do you say it was sir that you first became aware or that you first realised that the caveat you signed was protecting Mr G’s 80% asserted interest in the property, as opposed to protecting $150,000?
Husband:I never knew that he was, that he was, um. How can I say that? Until we separated I never knew that he was claiming 80% of the property at B Street, Suburb C. I always thought that he was claiming $150,000.
On the basis of the evidence given, I find it likely that the Wife organised the meeting with Mr T following settlement of the sale of H Street, Suburb J for the purpose of ensuring a documentary trail of her father’s contribution to H Street, Suburb J going to the benefit of B Street, Suburb C. The meeting took place days after H Street, Suburb J had settled and the net proceeds of sale had been deposited to offset the parties’ home loan. It also arose at a time when there were matrimonial difficulties between the parties.
It would appear that from the date of lodgement of the caveat in 2006, until the Wife filed her Financial Statement 12 years later in November 2018, no further discussions about the ‘loan’ or caveat took place between the parties. Under cross examination the Wife and her father conceded that the loan had never been disclosed to financial institutions or government agencies in the course of conducting their other business.
Notwithstanding that the caveat was known to the parties and annexed to affidavit material from at least 2018, it was not until around 8 April 2021 that Mr G was served with a notice of the lapsing of the caveat. Twenty one days later the caveat lapsed. Mr G was invited to be joined in the proceedings by letter of 8 April 2021.[12]
[12] Exhibit 4.
Under cross examination Mr G recalled receiving this correspondence but he did not seem to understand the nature of it. His evidence was unclear when asked what it meant to be ‘joined’ or to ‘become a party’ to proceedings. He conceded that he expected these proceedings to bring an end to the matter, and that his daughter, who was represented, was essentially looking after his interests.
In determining whether a loan is genuine, the Court is required to take into account all of the circumstances of the matter and it may decline to do so where it finds, on balance, that the debt is:
(a)vague or uncertain or;
(b)unlikely to be enforced; or
(b)unreasonably incurred.[13]
[13] See In the Marriage of Petersens [1981] FamCA 50; In the Marriage of Biltoft [1995] FamCA 45
In the Marriage of Petersens [1981] FamCA 50 Nygh J found that a debt arising from money advanced by the father of the Husband was not a sham and ordered for it to be repaid. In doing so, the Court examined a range of sources documenting the existence of the debt, including minutes of a directors meeting, and a formally executed and registered mortgage.
It is difficult to find the existence of a loan for the following reasons:
(a)no lump sum of money was ever advanced to the parties by Mr G;
(b)there is no evidence that the Mr G took any steps to enter into a contractual relationship with the parties, nor enforce such a contract;
(c)there is no evidence that the Wife intended to create a legally binding agreement with her father;
(d)there was no loan agreement, nor any other documentation to reflect the intention of the parties;
(e)the evidence given by the parties, particularly the Wife, about the legal interest asserted by Mr G was conflicting, vague and uncertain;
(f)accepting the proposition that Mr G wanted the proceeds of sale of H Street, Suburb J to create an equitable interest in B Street, Suburb C, there is no explanation offered as to how the 80% was arrived at;
(g)there was a complete lack of clarity as to the amount actually contributed that would give rise to a loan, apart from the initial contribution of $150,000. How that leads to an obligation to repay $800,000 was simply unexplained.
In the alternative, I am asked by the Wife to accept that Mr G had an equitable interest in B Street, Suburb C in accordance with the caveat lodged against the title of the property.
It is clear that the parties agreed to lodge the caveat pursuant s 74F of the Real Property Act1900 (NSW). In lodging the caveat, Mr G was flagging a potential legal or equitable interest in B Street, Suburb C. The caveat itself did not create a legal interest.
I accept that the lapsing notice was served late in the litigation. However, there is no evidence that Mr G took any steps to assert his entitlement to a legal or equitable interest in B Street, Suburb C, apart from appearing as a witness in his daughter’s case. This is not levelled as criticism, but as a matter of fact. In any event, I have determined that the caveat does not give rise to such an interest in this case.
The evidence before the Court is that the Wife has a close and loving relationship with her family, and especially her parents who have consistently provided her with all forms of support throughout the marriage. I find that Mr G was never motivated by a desire to be repaid by his daughter. He had genuine concerns about the future of the marriage between the parties, and acted to protect the money that he advanced for the purchase of H Street, Suburb J.
I cannot find that the parties executed the caveat with the intention of creating a genuine legal relationship. I conclude that the caveat was entered into between the parties to acknowledge the financial contributions indirectly made by Mr G to B Street, Suburb C via the proceeds of sale of H Street, Suburb J.
Having considered the evidence in light of the relevant principles, and in particular the likelihood that the debt will not be enforced by Mr G, the Court does not accept the Wife’s submissions that Item 12 be included as liabilities for the purposes of the Joint Balance Sheet. That said, this evidence will be further considered in the assessment of the parties’ respective contributions.
Should the Applicant’s loans to Mr K and Mr L form part of the pool of assets?
Following the separation of the parties, the husband deposes that he borrowed the sum of $3,000 from his brother Mr K and the sum of $4,000 from his friend Mr L. He says the funds were used to assist him in rehousing himself.[14]
[14] Affidavit of Mr Calovich filed 8 April 2021, paragraphs 104 and 107.
In his Financial Statement he deposes owing $3,000 to his brother Mr K and $5,000 to his friend Mr L to fund his daughter Ms N’s knee surgery.
He provides no other evidence to support the advancement of these monies, the terms on which the money was advanced or how the funds were applied. For this reason they have not been included in the pool.
Conclusion’s on the Asset Pool
For the reasons above, I find that the asset pool available for distribution to the parties is made up of the following:-
Asset
Husband
Wife
TOTAL
B Street, Suburb C
-
$1,000,000
$1,000,000
CBA Account xx...72
-
$430
$430
Motor Vehicle 1
-
$16,000
$16,000
Household contents
$4,000
$10,000
$14,000
CBA account xx...65
$5,000
-
$5,000
Motor Vehicle 2
$18,000
-
$18,000
Furniture, Furnishing and Chattels
$1,680
-
$1,680
ANZ Equity Manager Account
-
$164
$164
Superannuation
$224,000
-
$224,000
TOTAL ASSETS
$252,680
$1,026,594
$1,279,274
Liabilities
-
-
-
Bank S loan
$7,281
-
$7,281
Net value matrimonial pool
$245,399
$1,026,594
$1,271,993
CONTRIBUTIONS
I accept that the Wife brought into the marriage the H Street, Suburb J property recently purchased for $150,000. I find that Mr G contributed $150,000 and the Wife contributed $20,000 towards its acquisition. I also accept that it was the intention of Mr G that the Wife be the primary beneficiary of his contribution.
There were no significant contributions made by the Husband at the commencement of the marriage.
At the time of the marriage the parties were both employed on a full-time basis. Their incomes were pooled and used to meet their day-to-day expenses and the outgoings arising from H Street, Suburb J.
Improvements were undertaken to H Street, Suburb J over a 10 year period. These works were undertaken as a combined effort or ‘family affair’ with assistance provided by the Wife’s father, the Husband and on occasions the Husband’s brother. Mr G contributed some small amounts of money towards these renovations (such as for the pergola), and other expenses (such as air conditioning and the construction of a ‘Queensland room’) were met by the parties.
When the parties purchased B Street, Suburb C further improvements were made with the combined efforts of the Husband and on occasions his brother and the Wife’s father.
I accept that Mr G also made contributions towards the B Street, Suburb C property including paying for the construction of a new fence and electric gate.
In around 2005 the Husband received a lump sum payout from the Employer P of $12,000 and later $7,000. The sum of $12,000 was applied towards the loan over B Street, Suburb C.
In 2006 the Husband received a voluntary redundancy in the sum of $90,000. Some of this money was used to acquire a car and fund the family holiday. The balance of at least $70,000 was deposited into the loan account encumbering the B Street, Suburb C property.
In 2011, the Wife underwent surgery. There is no dispute that Mr G funded the operation in the sum of $65,000, and that this essentially preserved the superannuation entitlements that the Husband had considered drawing on.
The Wife did not return to work after the operation and received a lump sum superannuation payout in 2014 which was deposited into the loan account encumbering the B Street, Suburb C property. The payout consisted of a Total and Permanent Disability (‘TPD’) insured component of $129,076 and a superannuation balance of $53,703. After-tax, the total payment received was payment $167, 517.43.
Following a motor vehicle accident in 2015 the Wife received a further payout in the sum of $171,618.07 and a few weeks later an additional payment of $28,607.40 (totalling $200,225.47). Of this amount the Wife says she purchased a motor vehicle, expended funds on the renovation of the kitchen and the laundry, went on an overseas holiday and used the balance for her day-to-day expenses.
The Wife worked on a full-time basis, with some breaks to have the children, until 2011. She has not worked since, and I accept that she has disabilities that inhibit her capacity for work. I accept that she was the primary caregiver and homemaker throughout the relationship and she remains the primary carer for Ms N (now aged 18) and X (now aged 16).
The Husband worked on a full-time basis through the marriage with some short periods of unemployment. He also worked over-time and a second job during the period between 2010 and 2014, although his income tax returns do not disclose a significant financial contribution arising from this work.
The Husband’s contributions to the homemaker and parenting duties is less certain. The Husband submits that when he was not working or away from the home he assisted in parenting the children, and with household chores and maintenance. This is disputed by the Wife who claims receiving much more support from her parents. During periods of the Wife’s incapacity, I have no doubt that the Husband’s contribution as homemaker and parent increased. He has also coached his daughter’s sports teams.
The Husband argues that an adjustment should be made for his post separation contributions. He met his child support obligations for the children until June 2020. He lists a range of other expenses he met for the children including purchasing a laptop for Ms N and contributing approximately $9,000 towards her knee operation. He argues that the Wife has had the benefit of occupancy of the home in B Street, Suburb C and during this period he has had to meet expenses associated with his relocation.
Conclusion on contributions
The Wife’s debt to her father is unenforceable. Therefore, the H Street, Suburb J property joined the asset pool unencumbered. This makes the Wife’s contributions significantly higher than they would have been if the debt had been enforceable.
Counsel for the Wife argued that such a large contribution cannot be ignored. He argues that I should place greater weight on it because of the way it ultimately contributed to the acquisition of B Street, Suburb C. That is, in assessing the Wife’s initial contribution, I should place greater emphasis on the value of the contribution at final hearing.
The Wife’s initial contribution should be considered in light of the case of Pierce & Pierce [1998] FamCA 74 at [28] (‘Pierce’) where the Full Court stated:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution…[15]
It is necessary to weigh and assess all of the contributions made by each of the parties and translate this into a percentage of the overall property of the parties. [16]
The parties occupied the H Street, Suburb J property for a period of 10 years. There were various improvements made to H Street, Suburb J over this period through the combined efforts of the family. To assess the Wife’s contribution as being the total sale proceeds of H Street, Suburb J, would not recognise the combined contributions made by the Husband and the Wife for over half of their marriage of 22 years.
It is likely and consistent with the evidence that Mr G’s contributions towards H Street, Suburb J post marriage were done to support the parties and the marriage.
Significant weight must be attributed to the contributions of the Wife that were brought into the marriage and were used in order to acquire, and improve B Street, Suburb C. The initial contribution of $150,000 is equivalent to 10% of the net value of the property pool ($1,263,993). B Street, Suburb C was purchased for $475,000. Therefore, the initial contribution represented at least 30% of the acquisition costs.
I must consider the fact that the Wife’s contribution of H Street, Suburb J was made 27 years ago, and its significance will have diminished over time. This is consistent with the Full Court’s approach to the treatment of initial contributions in Aleksovski & Aleksovski [1996] FamCA 111 at [49] where it was observed that:
[N]evertheless the passage of time is the element which reduces the significance of initial or early contributions. For this reason it is clear that the character and significance of the contribution changes as the period of cohabitation lengthens, with initial or early contributions gradually diminishing with the passage of time.
I am also required to take into account ‘the myriad of other contributions that each of the parties has made during the course of their relationship.’ [17] This was confirmed by the Full Court in Jabour and Jabour [2019] FamCAFC 78 at [55]:
…the weight to be attached to an initial contribution must be assessed against the rubric of all of the contributions, both financial and non-financial, made by the parties over the course of their relationship.
[17] Williams & Williams [2007] FamCA 313 at [26].
The Husband received some payouts totalling $109,000 including a redundancy payout. I find this arose from his paid employment during the marriage. Therefore the Wife indirectly contributed towards it.
I find that the Wife’s motor vehicle claim (totalling $200,225) was a contribution made on her behalf. However, little evidence was led about the accident and its impact on the Wife. I am not certain of any ongoing medical or other costs that she may have arising from the accident. Further, only a small portion of the funds were applied towards the matrimonial pool for improvements on B Street, Suburb C.
The lump sum superannuation payout received by the Wife of $167,517 was deposited directly into the mortgage account. It was made up of two components and subject to tax:
(a)TPD– $129,076
(b)Accrued superannuation - $53,703
Counsel for the Husband appropriately submitted that the Husband made an equal contribution to the accrued superannuation and I should only treat the TPD payout as a contribution by the Wife. [18] Counsel for the Husband was also critical that the Wife had failed to lead expert evidence regarding her ongoing incapacity and medical needs. The Wife deposed in her affidavit a range of disabilities and was cross-examined on them. I accept the Wife’s evidence that she has a range of disabilities which prevent her from working and ultimately led to the superannuation payout.
[18] Relying on Falcken & Weule [2019] FamCAFC 140.
The superannuation payment was not a windfall for the parties but received due to the life-threatening event suffered by the Wife and her resulting permanent disability. The Wife therefore made a sole contribution of at least $129,076.
Nothing in the post separation contributions warrants an adjustment in favour of either party.
Both parties worked hard over the last 27 years and have raised two daughters in difficult circumstances. I find that they have contributed the full extent of their capacity within the roles that they each have taken in the marriage. The only contributions that point away from a finding of the equality of contributions is the initial contribution made by the Wife to H Street, Suburb J, and later the monies received from the motor vehicle accident claim and the TPD component of her superannuation payout.
Having regard to the initial contribution by the Wife, the contribution of the parties since the marriage and taking into account the length of the marriage and the size of the matrimonial pool, the contributions of each party are properly reflected by making an adjustment of 63% in favour of the Wife and 37% in favour of the Husband.
FUTURE NEEDS FACTORS
The Husband is currently 49 years old and enjoys full-time employment as a supervisor in a factory, where he has worked for 12 years.
The Husband has a taxable income of approximately $77,000 per annum. He enjoys good health and it is reasonable to expect that he will continue to earn a similar amount, and accumulate superannuation for at least another 15 years.
The Wife is aged 47. The Wife has been unemployed since undergoing surgery for a medical condition in 2011.
She is in receipt of a disability pension and receives $350 per week from her allowance. I accept that she will never return to the workforce due to her disabilities which include:
(a)loss of hearing in the right ear;
(b)partial loss of sight; and
(c)a medical condition;
The Wife says she requires painkillers, has a dependency on anti-depressant medication and needs regular injections for muscle spasms to her face and neck.
The Wife recently re-married to Mr O who is 35 years old and employed as a tradesman, earning $950 per week. Mr O only recently arrived in Australia from Country W.
The two children of the relationship Ms N (now 18) and X (now 16) live with the Wife in B Street, Suburb C. The Wife has received no child support payments from the Husband since June 2020, when the Husband commenced making direct payments to the children. There is no evidence that the Wife receives any direct benefit from the payments the Husband makes to the children. The Wife will maintain X for another two years without any direct financial support from the Husband.
Since separation the Husband has lived modestly. He initially rented an apartment in Suburb Y and in the 2019 moved to his Aunt’s house. He does not pay rent but contributes towards some household expenses. The Husband hopes the property settlement will afford him the ability to obtain his own accommodation.
Conclusion on future needs
When the above matters are considered, the factors under s 75(2) of the Act warrant an adjustment being made in favour of the Wife on the following basis:
(a)She will continue to be X’s primary carer, without support, for another 2 years;
(b)She has significant disabilities, incurs medical expenses and will not work again;
(c)The Husband will continue to work towards re-establishing himself and has sufficient working years to accumulate more superannuation for his future security.
An allowance of 5% will be made considering those matters set out above as well as considering the Wife’s new marriage and that she has only a short period of time to support X.
This will provide the Wife with a division of 68% and the Husband with a division of 32% of the matrimonial asset pool.
Conclusions as to just and equitable
It is appropriate to step back and consider the proposed orders as a whole in the circumstances of the case. I am satisfied they are just and equitable.
I find that a division of 68% to the Wife and 32% to the Husband is a just and equitable division of the matrimonial property pool.
The Husband may argue that it is not. His case is that he would like to use the settlement to purchase a new home for himself.
I base my finding on the following:-
(a)The parties were in a long marriage of 22 years where each contributed to acquire and maintain their matrimonial assets.
(b)The Wife is unlikely to improve her financial position in any significant manner. This outcome may at least allow her to borrow modestly to pay out the Husband and remain in B Street, Suburb C.
(c)While the Husband hopes to purchase property, given housing prices, it is unlikely that any settlement will allow for this without a significant level of indebtedness.
COSTS
The Wife in her proposed orders was seeking costs.
There is insufficient information and evidence before the Court to determine any costs issue.
I therefore decline to make this Order.
CONCLUSION
This then leaves the following property pool of $1,271,993 for distribution in the proportion 68% to the Wife and 32% to the Husband.
Asset
Husband
Wife
TOTAL
B Street, Suburb C
-
$1,000,000
$1,000,000
CBA Account xx...72
-
$430
$430
Motor Vehicle 1
-
$16,000
$16,000
Household contents
$4,000
$10,000
$14,000
CBA account xx...65
$5,000
-
$5,000
Motor Vehicle 2
$18,000
-
$18,000
Furniture, Furnishing and Chattels
$1,680
-
$1,680
ANZ Equity Manager Account
-
$164
$164
Superannuation
$224,000
-
$224,000
TOTAL ASSETS
$252,680
$1,026,594
$1,279,274
Liabilities
-
-
-
Bank S loan
$7,281
-
$7,281
Net value matrimonial pool
$245,399
$1,026,594
$1,271,993
The Wife already has in her possession assets worth $1,026,594.
An adjustment in favour of the Husband requires the Husband to receive assets totalling $407,037.76. If he were to retain his superannuation interest and all other property currently in his possession and control as set out above, this would leave him requiring a cash payment of $161,638.76.
However, there was some discussion between the parties about the super splitting order sought by the Husband and the potential for the superannuation to be converted to cash if a split was made in the Wife’s favour. Counsel for the Wife indeed flagged that this might be a preferred position of the parties.
I propose to make a super splitting order to the effect that the Wife is allocated half of the Husband’s interest. This will mean that the Wife is required to pay the Husband the sum of $273,638.76. This will at least preserve some superannuation for the Husband’s future needs.
The Wife has the capacity to apply for her superannuation entitlements to be paid out to her in the same manner as she has done before. I will therefore make the super splitting order to take effect immediately but delay the payment to the Husband to afford the Wife this opportunity.
The Court states again that it is satisfied that the above outcome is just and equitable.
At the conclusion of the trial the parties asked for the opportunity to discuss the final orders in light of the potential for the superannuation to be converted to cash if a split was made in the Wife’s favour. They were given the opportunity to suggest (by consent) any changes to the orders I proposed to make to Annexure A.
This was done on the basis that any variations proposed to the draft orders did not depart from there being a distribution to the parties in the proportion 68% to the Wife and 32% to the Husband of the matrimonial pool as set out in paragraph 127.
Accordingly I make Orders.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 3 June 2021
ANNEXURE A
Orders:
11.That within 120 days from the date of these Orders the Wife shall pay to the Husband, or as he may direct in writing, the sum of $273,638.76.
12.That simultaneously with the Wife’s compliance with the preceding Order, the Husband shall do all acts and things and sign all documents necessary to transfer all his right, title and interest in the former matrimonial home known as and situate at B Street, Suburb C being the whole of the land contained in folio identifier ... (“the B Street, Suburb C property”) to the Wife.
13.That should the Wife fail or refuse to comply with Order 1 above by the due date, then failing agreement, the parties shall join in the sale of the B Street, Suburb C property by listing it for sale with a real estate agent active in selling residential real estate in the Suburb D/Suburb E/Suburb F area for the best price reasonably attainable within 30 days of the Wife’s default.
14.That upon the sale of the B Street, Suburb C property, the parties shall provide all necessary instructions to cause the proceeds of sale be applied as follows:
(a)The payment of all selling costs associated with the sale of the B Street, Suburb C property;
(b)The payment of all legal costs associated with the sale of the B Street, Suburb C property;
(c)The payment to the Husband in the sum of $273,638.76 (plus interest at the rate prescribed by the Family Law Rules calculated from the due date for payment in accordance with Order 1 to the actual date of payment); and
(d)The balance then remaining to the Wife.
15.That, except as otherwise provided for by these Orders, the Husband shall retain, to the exclusion of the Wife, the sole right, title and interest in the following property:
(a)All funds standing to his credit in any bank account;
(b)His motor vehicle;
(c)His personalty and household contents;
(d)His superannuation entitlements; and
(e)Any and all other items of personalty and property currently in his possession and/or to which he has an entitlement.
16.That, except as otherwise provided for by these Orders, the Wife shall retain, to the exclusion of the Husband, the sole right, title and interest in the following property:
(a)All funds standing to her credit in any bank account;
(b)His motor vehicle;
(c)Her personalty and household contents; and
(d)Any and all other items of personalty and property currently in her possession and/or to which she has an entitlement.
17.That whenever a splittable payment becomes payable to Mr Calovich from his interest in the Super Fund U (Member Name: Mr Calovich, Member ID: ...) it is ordered that Ms Calovich is entitled to 50% of the said interest, being the specified percentage in accordance with section 90MT(1)(b) of the Family Law Act 1975, of the splittable payment and there is a corresponding reduction in the entitlement of Mr Calovich which he would otherwise have had but for these Orders.
18.The operative time for the purpose of these Orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of the Fund Or the date of the valuation report of the member's interest in the Fund.
19.Having been accorded procedural fairness in relation to the marking of this Order, this Order binds the Trustee of the Fund.
20.The Trustee of the Fund, the husband and the wife, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 shall do all acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the in accordance with this Order.
0
5
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