Capri & Goldwell (No 2)
[2024] FedCFamC2F 318
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Capri & Goldwell (No 2) [2024] FedCFamC2F 318
File number: ADC 3883 of 2022 Judgment of: JUDGE BROWN Date of judgment: 28 March 2024 Catchwords: FAMILY LAW – PROPERTY – marriage of 13 years – marriage produced one child – modest asset pool – assessment of financial and non-financial contributions – significant contribution by the husband at the beginning of the marriage – husband has sole parental and financial responsibility of the child – modest superannuation – assessment of future needs – parties’ respective capacity to obtain employment – consideration of husband’s failure to honour order of payment of on-going spousal maintenance to wife – considerations of justice and equitable. Legislation: Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) Pts VIII, VIIIB, ss 75(2), 79, 90XC, 90XT
Cases cited: Capri & Goldwell [2022] FedCFamC2F 1363
Bevan & Bevan [2013] FamCAFC 116
Biltoft & Biltoft (1995) 19 Fam LR 82
C & C (2005) 33 Fam LR 414
Commonwealth v Milledge (1953) 90 CLR 157
Clauson & Clauson (1995) FLC 92-595
D & D [2003] FamCA 473
Ferguson & Ferguson (1978) FLC 90-500
Ferraro v Ferraro (1992) 16 Fam LR 1
Fox v Percy (2003) 214 CLR 118
Hickey & Hickey (2003) 30 Fam LR 355
Horrigan & Horrigan [2020] FamCAFC 25
Lee Steere & Lee Steere (1985) FLC 91-626
L & L [2003] FamCA 40
Magas & Magas (1980) FLC 90-885
Mallett & Mallett (1984) 156 CLR 605
Pierce & Pierce (1999) FLC 92-844
Q & Q [1999] FamCA 1314
Russell & Russell (1999) 25 Fam LR 629
Smith & Smith (1991) FLC 92-261
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Waters & Jurek (1995) 20 Fam LR 190
Watson & Ling [2013] FamCA 57
Division: Division 2 Family Law Number of paragraphs: 261 Date of hearing: 11, 12 & 13 December 2023 and 1 February 2024 Place: Adelaide Applicant: Appearing in person Counsel for the Respondent: Ms Jones and then Mr Richter Solicitor for the Respondent: Southern Coast Legal ORDERS
ADC 3883 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CAPRI
Applicant
AND: MS GOLDWELL
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
28 MARCH 2024
IN FULL AND FINAL SETTLEMENT OF ALL CLAIMS FOR SETTLEMENT OF MATRIMONIAL PROPERTY, THE COURT ORDERS THAT:
1.Within sixty (60) days of the date of this Order the applicant husband, Mr Capri (“the husband”) pay to the respondent wife, Ms Goldwell (“the wife”) the sum of ONE HUNDRED AND TWENTY-FIVE THOUSAND DOLLARS ($125,000.00).
2.In accordance with section 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of ONE HUNDRED AND FIFTEEN THOUSAND DOLLARS ($115,000.00) is allocated to the wife out of the husband’s interest in his Super Fund 1.
3.In accordance with section 90XT(1)(a) of the Act:
(a)The wife is entitled to be paid, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”); and
(b)The husband’s entitlement in the Super Fund 1 shall be correspondingly reduced.
4.The trustee of the Super Fund 1 (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Act and the Regulations, the entitlement awarded to the wife created by order (2); and
(b)Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the Super Fund 1;
5.Within fourteen (14) days of the date of these Orders, the husband shall serve a copy of these Orders upon the trustee.
6.This order shall have effect from the operative time and the operative time for order (2) is the fourth business day after service of a certified copy of these Orders on the trustee.
7.The husband shall pay any fees charged by the trustee of the fund in administering the payment split pursuant to these orders.
8.Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:
(a)Subject to the satisfaction of the payment stipulated in order (1) hereof the property known as and located at C Street, Suburb D in the state of South Australia;
(b)His motor vehicle;
(c)His superannuation entitlements standing in his own name (subject to the provisions of order (2) hereof;
(d)Any savings standing in his name; and
(e)His personal effects and furniture currently in his possession at the Suburb D property.
9.Including but without limiting the effect hereof, the wife shall retain for his sole use and benefit absolutely free from any further claim or demand of the husband:
(a)Her motor vehicle;
(b)Any savings standing in her name;
(c)Her superannuation entitlements standing in her own name; and
(d)Her personal effects and all furniture and household effects currently in her possession.
10.All extant applications are dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The parties to these proceedings are Mr Capri (“the husband”) and Ms Goldwell (“the wife”). They were married in 2008 and are the parents of one child, X born in 2008.
Mr Capri and Ms Goldwell lived with X, as a family, at a property owned by the husband at C Street, Suburb D,[1] for most of the years of their marriage. It is the only home X has ever known.
[1] Hereinafter referred to as “the former family home” or “the Suburb D property”.
Although the case and subsequent final hearing were largely focussed on resolving parenting issues in respect of X, these reasons for judgment are concerned exclusively on property matters.
The pool of property must be regarded as being modest in its extent, consisting of the Suburb D property and Mr Capri’s superannuation, which stood at an amount of $303,470.52 as at 30 June 2021.[2] Ms Goldwell initially disclosed superannuation of $25,000.00[3] but more recently has indicated that it is now $10,560.17.[4]
[2] See Annexure J of Mr Capri’s affidavit filed on 20 November 2023.
[3] See Ms Goldwell’s Statement of Financial Circumstances filed on 25 August 2022.
[4] See Annexure Ms G-9 of Ms Goldwell’s affidavit filed on 9 December 2023.
There is some controversy regarding the current value of the Suburb D property. Mr Capri has deposed that it is currently worth $580,000.00. It is not subject to any mortgage. Mr Capri purchased the property in 1996, with his first wife. It was then subject to a mortgage, which was discharged in 2013.
It is Mr Capri’s current position that the parties’ assets and financial resources should be divided 70/30% in his favour, but only after the value of the property, which he brought into the marriage is deducted from the pool.[5] He has calculated this sum to be at least $250,000.00.
[5] See Mr Capri's Amended Application filed on 30 November 2023.
Accordingly, in general terms, it would appear to be his case that the relevant pool of property pool should be regarded as being $330,000.00, of which 30% would be represented by a sum of approximately $100,000.00. In general terms he proposes that there be an equalisation of the parties’ superannuation. Necessarily, this would involve a split in the wife’s favour being made from his account. However, in this context he has deposed as follows:
I would agree to larger superannuation contribution to the financial settlement to reduce the loan amount required for financial settlement.[6]
[6] See Mr Capri’s affidavit of evidence filed 20 November 2023 at [45].
Although the wife is legally represented, it is not easy to discern the final property orders, which she seeks. In her trial affidavit of some sixty-seven paragraphs, only two are devoted to property issues. In this respect the salient paragraph reads as follows:
I propose the fair and equal division of the available property pool in consideration of our thirteen years relationship and respective financial and non-financial contributions to the marriage by myself and the applicant father.[7]
[7] See Ms Goldwell’s affidavit of evidence filed 9 December 2023 at [67].
However, it needs to be pointed out that annexed to her affidavit is a table of what she asserts are the parties’ current relevant assets in which she ascribes the value of the Suburb D home as being $640,000.00. This appears to be the Valuer-General’s valuation. She has not provided any formal evidence as to how she has reached this figure. She has also provided figures as to the balances of the parties’ respective superannuation holdings, when they began their marriage, in 2008.
Currently each party has an old model motor vehicle, neither of which has been formally valued and unspecified household effects, again which are unvalued. Any savings which they had prior to this case starting are long expended in the provision of legal fees relating to it.
Accordingly, in legal terms the case is likely to centre on the following issues:
·The weight to be given to the initial financial contributions made by Mr Capri, particularly in the form of the Suburb D property at the commencement of the parties’ marriage;
·What value should be ascribed to that property for the purposes of these proceedings, particularly is it fair that a formal process of valuation be engaged;
·How are the parties’ various but disparate contributions, made during their marriage of thirteen years, be assessed in percentage terms;
·What allowance should be made in respect of the parties’ respective and significant prospective needs;
·In this context, the salient factors would appear to be their respective ages – 62 and 58; capacity to earn an income; and responsibility to care for X;
·The overall justice and equity of the situation leading to the central practical issue in the case – what is a fair sum for the husband to pay the wife to resolve the property aspect of the proceedings and what should be its component of non-immediately realisable financial recourse in the form of superannuation split; and
·A potential corollary of the above exercise may be the necessity to realise the former family home – although neither party advocates such an outcome – if it proves impracticable for Mr Capri to raise the sum required to make the payment deemed to be Ms Goldwell’s just entitlements.
Financial necessity has compelled the husband to act on his own behalf, after his former solicitor, Mr M, withdrew from the case on 31 October 2023. Mr Capri has indicated that up to Mr M’s withdrawal, he had spent $33,146.00 in legal costs.
Mr Capri is an average wage earner. Ms Goldwell has not been in the formal workforce for over two decades. She currently receives social security. Each of the parties has a need for secure and stable accommodation and both have a strong emotional connection to the Suburb D property. Axiomatically, they cannot both live in it.
In addition, given X’s obvious emotional connection to the Suburb D property, it would be traumatic for him if the property had to be sold in order to distribute the capital which it represents, between the parties concerned.
Accordingly, this is to be characterised as a comparatively small property pool matter and, as with many such cases, the modest extent of the pool available, when compared to the current and prospective needs of each of the parties concerned, results in this being an extraordinarily difficult matter to determine.
Although the parties disagree about many things, one matter on which there is consensus between them is that the last few years have been emotionally traumatic for X and, as a result, everything possible should be done to ensure his ongoing psychological equilibrium. In this context, each party agrees that the sale of the home should be avoided, if at all possible.
For a variety of reasons, which I will expand upon as the reasons for judgment unfold, the case cannot be regarded as being in a high state of preparedness. However, given the small pool of property; the period of time the case has been on foot; and the obvious emotional toil it has taken on all concerned, including X; in my view, it is imperative that the case be brought to a close as soon as possible.
In this context, both parties agree that it would be contrary to X’s best interests for the Suburb D property to be sold to release the capital in it. In these circumstances, the main issue to be determined by the Court, is what amount of money should pass from the husband to the wife in settlement of the property aspect of these proceedings. Necessarily, Mr Capri will have to borrow his sum and how large the sum is will turn on any superannuation split made.
As indicated above, Mr Capri is aged in his early sixties; Ms Goldwell in her late fifties. Accordingly, each must consider how to make provision, for their respective retirements, which must in the scheme of things be considered to be reasonably imminent, and how, in Ms Goldwell’s case, she will provide for her accommodation, as she grows older.
In Mr Capri’s case, it is unpalatable to have to consider borrowing against the Suburb D property, given his age and capacity to remain in the workforce, possibly for the indefinite future, whilst servicing a possibly significant mortgage debt. However, at this juncture he has no other option given the much more unwelcomed prospect of having to sell the property.
In Ms Goldwell’s case, it seems highly probable that she is looking at having to spend her later years in rented or unstable accommodation and so leading a life of financial insecurity, dependent upon government benefits to survive. From each parties’ perspective, the financial future is bleak.
As a consequence of these factors, this is a desperately sad and confronting case, the resolution of which will leave neither party in a sound financial position or well-resourced for retirement. Axiomatically, the end of the parties’ marriage represents a financial and emotional disaster for each of them.
In these challenging circumstances, the imperative of the Court must remain on ensuring that the final outcome, on which it arrives, is a just and equitable one and in accordance with the principles contained in Part VIII of the Family Law Act 1975 (Cth).[8] This is not an easy task.
[8] Hereinafter referred to as “the Act”.
BACKGROUND
Mr Capri began these proceedings on 26 August 2022. His initial focus was in gaining orders, which he asserted would protect X’s physical and emotional safety. At the time, and throughout these bitterly contested proceedings, it has been his case that Ms Goldwell had subjected X to serious and protracted abuse, including physically assaulting and verbally abusing him. As a result of his (X’s) experience of his mother’s behaviour towards him, he (the husband) asserted that X currently did not wish to engage with his mother in any manner whatsoever.
On the other hand, it has been Ms Goldwell’s case that she was subject of coercive and controlling behaviour from the husband, which included him restricting her access to family finances. It has been her case consistently throughout the proceedings that one of the significant aspects of the control, which she asserts Mr Capri has exercised over her (and indeed X), has been his protracted campaign of alienating X from her. She asserts that she had been X’s primary provider of care throughout the majority of his life to date.
In the jargon of family lawyers, this was a parental alienation case. Indeed, throughout the case, including during the final hearing scheduled for three days in December of 2023, this was its main focus, with property issues taking a back seat.
I can understand why this would be so, given the moment of the parenting issues to both Mr Capri and Ms Goldwell. However, the social science evidence gathered by the Court, in the form of both a Child Impact Report and a more detailed Family Report, supplemented by an Addendum Report, commented on X’s lack of attachment to his mother associated with the child expressing feelings of not being safe in her care, whilst noting he had a strong affinity with his father.[9]
[9] See Family Report dated 15 November 2022 at [76].
In particular, in the first Family Report, Ms G reported the X said to her as follows:
When asked about his time spent living in his mother’s care, [X] stated, “Awful, to be honest, when alone. I’m not saying she’s totally at fault, but there would always be an argument, I hated it. Then Dad and Mum would argue, and I got sick of it’. He felt that his mother was more to blame for the arguments shared between mother and son, and that from his perspective “Mum always seemed to want to fight, I don’t know if it was entertaining for her”. He added that his parents were both responsible for the arguments between the parties, “but Dad never wanted it to happen. When it did, he would walk to the [back yard] for alone time then Mum would accuse him of being a coward saying he was ‘hiding in [the back yard]. Then she would pick on me”.
[X] recalled that the worst experience he had with his mother was when she bit him on the arm. He noted that he filed a Police report following that incident, but that there had also been other incidents of physical violence as well. When asked if he felt safe in his mother’s care, [X] stated that he felt “definitely not safe with Mum”.
…
When asked what he did want, [X] stated, “I want to live with Dad and unless it’s absolutely necessary I don’t want to see my mum”. Following on from this statement the Consultant asked if [X] could think of a scenario whereby it would be necessary to see his mother, however, he could not think of one. When asked if he would be willing to see her as part of the assessment process, he said no. When asked if there was anything his mother could do to help him be more open to reconnecting with her, [X] stated, “No because I know it would be fake”.
[X] explained that he felt “betrayed” by his mother. He stated, “To be honest, I feel the only time she’s been nice to me is when she’s wanted something from me... I thought back to my time with her and she’s never been (he paused then went on to say) she’s either out of contact on her computer in her room, or only nice to me when she wants me to do schoolwork, then other times she’s savage and mean”.
[X] was confident that if he ever changed his mind and did seek to reconnect with his mother, that his father would support him. He stated, “I think he (his father) just wants whatever is best for me, he goes by what I ask him to do”.[10]
[10] See Family Report dated 15 November 2022 at [61] – [62] and [64] – [66].
This was the context in which the Court began taking evidence from each of the parties late last year, which centred on issues relating to X’s relationship with each of them and the allegations of poor behaviour each had made against the other. It was alleged that the mother had assaulted him. In addition, Mr Capri made the extremely serious allegation that Ms Goldwell had attempted to poison him.
For her part, Ms Goldwell asserted that the existence of such an outlandish and uncorroborated allegation, into which X had apparently been enlisted, demonstrated the extraordinary lengths to which Mr Capri would go to alienate the child from her affections. In her evidence, she conceded that there had been conflict between her and X in the past but attributed it to the toxic nature of the parties’ relationship with one another and X’s reaction to it.
In an earlier interim decision, which I provided to the parties on 11 October 2022, I summarised the issues for the Court, at that stage, which remained in play at the date of final hearing, in the following terms:
I concede that it is possible that [X] is being manipulated adversely by his father or indeed is acting out his father’s previous coercive and controlling behaviour directed towards his mother. This is a risk which must be considered. However, in my view, a greater risk is that the child feels unheard and unsafe if directed to return into his mother’s care, regardless of whether such care is provided in the [Suburb D] home. The court must proceed with extreme caution given the labile dynamic of the family.[11]
[11] See Capri & Goldwell [2022] FedCFamC2F 1363 at [124].
Accordingly, at the time of the final hearing, the interim or provisional arrangements for X’s care were that he live with his father and spend time with his mother as she and X agreed from time to time. As a corollary of this order, it was further directed that Ms Goldwell vacate the Suburb D home and allow Mr Capri and X to live there. I appreciate how controversial this order was.
When the final hearing began in December 2023, it was a difficult and draining exercise for all concerned and the three days allocated for the hearing of the case proved to be inadequate, particularly given one day was taken up with unsuccessful negotiations directed towards resolving the matter. As a result, there was no time left for the taking of evidence from the Court appointed expert, whose opinions and recommendations were highly controversial but, for obvious reasons, if accepted, central to the outcome of the case.
In general terms, the Court expert, Ms G, recommended that X should continue to live with his father and not spend any defined time with his mother but rather consideration be given to X engaging in some form of therapy to assist him reconnect with his mother, if and when he and the therapist considered it was appropriate.
Obviously, one of the central issues in the parenting aspects of the case was X’s age. He was fifteen years of age at the time of hearing and accordingly his views had to be approached as a matter to be given significant weight in respect of the ultimate outcome of the case.
It being the father’s case that X’s views, as expressed to and interpreted by Ms G were valid. Whilst on the other hand, it being the mother’s case that they were corrupted by the father’s undue influence and as such, the only solution to safeguard X’s interests was to remove him from his care immediately and quarantine him from his father for a protracted period of time.
Necessarily, these were extraordinarily difficult and emotional laden issues, intensified by the fact that the parties themselves had, it would seem, been separated under the one roof of the Suburb D property for many years, prior to their final physical separation. It was clear that this state of affairs had been unsatisfactory for each of them for a long time as well as being emotionally untenable for X himself.
These tensions were necessarily exacerbated by Ms Goldwell’s compulsory eviction from the home, as a consequence of the orders which I made on 11 October 2022, which also coincided with the order of the relevant Family Report.
This was the context in which I anticipated the case would resume on 1 February 2024, with evidence to be taken from Ms G. The hearing was not required as perhaps against my expectations, the parenting aspects of the case were able to be resolved consensually.
The parties agreed that X should continue to live in the Suburb D property, with his father and spend no time with his mother unless he wishes to do so. The final consent orders envisage X and Ms Goldwell taking part in a specified form of reunification counselling, but only if X himself is agreeable to it.
When the final hearing began in December of 2023, Mr Capri appeared on his own behalf and had prepared his own trial documents. Ms Goldwell was represented by her solicitor Ms Jones, after I understand counsel retained for the trial had withdrawn shortly prior to the date scheduled for commencement.
Shortly prior to the date scheduled for the trial to begin, Ms Jones brought an application in the proceeding seeking the Court’s leave to be able to provide Ms G’s report and other material to Dr J, who is a clinical sociologist and academic with expertise in assisting children to adjust to situations in which the Court ordered a reversal in their care from a favour residential parent to one whom had been assessed as a functional parent whom the child concerned had unreasonably rejected.
Leave was given to allow the material to be released to Dr J and I anticipated that a shadow report would be prepared, and this would be the subject of cross-examination of Ms G, though whether an application would be made for Dr J himself to give evidence was unclear to me. It being Ms Goldwell’s case that she had been X’s previous primary carer, and it was unreasonable for X to have rejected her so emphatically.
Necessarily, this was the issue which received the most attention in the hearing of the case which took place over 12 and 13 December 2023. Given the resolution of the matter on 1 February 2024, it is not necessary for me to make any findings of fact about that evidence, which are likely to be painful to the parties concerned, given the subject matter of the controversies between them, other than that, in my view, the outcome agreed upon for X is the only realistic outcome in the case and the only one congruent with the service of his best interests.
I accept that his relationship with his mother is currently severed, and it would be both impractical and contrary to his best interests, particularly given his strong and unequivocal views, to compulsorily immerse him in his mother’s sole care. In my view, such an outcome would be disastrous for him.
I make these comments to indicate why Ms Goldwell’s prepared case had little focus on the property aspect of the case. When the case returned to Court on 1 February 2024, Ms Jones instructed Mr Richter of counsel to appear on Ms Goldwell’s behalf.
After the parenting aspect of the proceedings had been concluded with the consent order, Mr Richter made closing submissions on behalf of Ms Goldwell; whilst Mr Capri made his own submissions.
Mr Capri filed two self-drafted affidavits in anticipation of the final hearing – one directed towards parenting issues[12] and one directed towards property issues.[13] In the property affidavit, he deposed as to the value of the Suburb D property in the following terms:
The current market value of the [Suburb D] home is $580,000.00…based on [H Bank] valuation and two appraisals.[14]
[12] See affidavit of Mr Capri filed 14 November 2023.
[13] See affidavit of Mr Capri filed 20 November 2023.
[14] See affidavit of Mr Capri filed 20 November 2023 at [38].
In his oral evidence provided to the Court, Mr Capri indicated that he had obtained the valuation from the bank as a result of approaching a loans officer at H Bank in anticipation of applying for a mortgage loan. He also deposed that the relevant council on the rate notice valued the property at $580,000.00; whilst the Valuer General had ascribed a figure of $640,000.00 for the property.
It is also the effect of Mr Capri’s evidence that the property concerned is in a poor state of repair and although it is in a desirable suburb it is not likely to attract a premium place if placed on the market for sale. He stands by the valuation provided to him by the bank as being an appropriate one for the Court to utilise in these proceedings.
In this context, he submits that if Ms Goldwell or those advising her disagreed with this valuation, they have had more than ample time to obtain an alternative one and therefore it would be unfair to him to delay the proceedings any longer. As indicated above, Ms Goldwell asserts that the correct valuation is one of $640,000.00.
Mr Richter submitted that considerations of equity and fairness dictates that the Court direct that a suitably qualified expert value the property as at the present time. In this context, he is open to the Court making a determination of how the parties’ respective contributions and prospective needs are to be expressed in percentage terms and these utilised to provide a mechanism to calculating the sum of money to be paid by Mr Capri to Ms Goldwell.
It is also the effect of Ms Goldwell’s oral evidence that she has been living a precarious existence since the grant of the sole occupancy order in her favour, living with friends on an ad hoc basis. In these circumstances, Mr Richter characterised Ms Goldwell as belonging to one of the most financially disadvantaged categories of person in contemporary Australian society, namely a mature and separated woman, without reliable employment and/or qualifications, who was in effect, homeless.
In my view, it is impossible to quibble with such a characterisation of Ms Goldwell. In addition, I accept that it remains Ms Goldwell’s fervent desire to reconnect with X in due course and, from her perspective, if this is to occur, it will be necessary for her to have suitable accommodation for herself, which will provide a safe space in which she and he can spend time together.
In all these circumstances, it is the effect of Mr Richter’s submissions that the parties’ assets should be divided 60/40% in his client’s favour. Necessarily, Ms Goldwell’s preference is to receive cash as the greater proportion of such a settlement rather than a greater split of superannuation.
THE HISTORY OF THE PROCEEDINGS
In his initial application, Mr Capri sought an interim order that X live with him, at the Suburb D property and as an ancillary aspect of this order, Ms Goldwell be ordered to vacate the former family home. His application was silent in respect of substantive property issues.
Ms Goldwell responded to this application on 13 September 2022. She sought what is known as a recovery order in respect of X. In general terms, a recovery order directs police officers to, if necessary, forcibly remove a child from a person and deliver the relevant child to a nominated person. In this case removing X from his father’s care.
It is a significant order for the Court to make, given the trauma its facilitation may have on the child to which it is subject, particularly on one of comparatively advanced years, such as X. As an ancillary to this recovery order, the wife also sought that she be granted the sole occupancy of the Suburb D property.
Accordingly, in effect, each of the parties concerned sought the eviction of the other from their family home and that they should live there with X. As with the husband, Ms Goldwell’s response was silent in respect of issues to do with property.
There is no dispute between the parties that the date of their final physical separation was 21 December 2021. However, the evidence available incontrovertibly indicates that the parties had been living separately and apart, under the roof provided by the Suburb D property, for many years and on occasions, each had vacated the property, with X, to escape from what was asserted to be the other’s unacceptable behaviour.
It seems to me, to be beyond question that the reason the parties did not physically separate many years earlier was because they could not financially afford to do so as neither of them were able to provide another home for X. In addition, in any event, it seems to be the case that they were incapable of agreeing on any regime for his care, even if alternative accommodation had been available. In practical terms, the family was stuck and had been so for many years.
At some time in mid-2022, Ms Goldwell and X left the family home and sought accommodation in a domestic violence shelter. However, they were unable to remain there and returned to the Suburb D property after an altercation between X and his mother involving the production of a weapon by X towards her, because of a disagreement about X playing a video game late at night.
As a consequence, they returned to live in the Suburb D property, where Mr Capri had remained. The parties’ continued joint occupation of the property, albeit in circumstances in which they lived as separate lives as possible, was untenable. In these circumstances, Mr Capri and X left the property and stayed with friends on a temporary ad hoc basis.
It was the unsatisfactory nature of these arrangements, which was the catalyst for the parties’ commencing these proceedings. Necessarily, it required them to confront the fact that their on-going situation, both in terms of the care of X and their respective accommodation, could no longer be sustained.
From this brief history, it is apparent that care arrangements for X had been chaotic and difficult for a number of years, and it is common ground between the parties that his behaviour had become increasingly dysregulated and unpredictable, with each party blaming the other for this state of affairs.
Overlaying this increasingly volatile situation was an acute practical problem. Whilst in the latter stages of his primary education, X had been subject to serious bullying from another pupil, who apparently suffered from some form of special need. Both X’s parents considered that the school concerned did not put in place appropriate measures to respond to this serious situation and protect X.
In these circumstances, they jointly made the decision to home-school X. X continues to be home-schooled, up to this time, and has been for many years. Necessarily, given the increasingly unpredictable situation between his parents, the provision of tuition by them to X became increasingly problematic and, for obvious reasons, required stability of accommodation.
In these circumstances, from the date of the instigation of the proceedings, issues relating to X’s best interests and the occupation of the former family home, were inextricably intertwined with one another. This has remained the case throughout the proceedings to date and has increased the tensions and difficulties already inherent in the matter.
Given X’s age, at the time the case commenced and the likely centrality of his views in determining its ultimate outcome, at an early stage of the proceedings, it was ordered that X be represented independently of his parents in the case and a Child Impact Report be obtained from a Family Consultant.
The lawyer appointed for X was Mr Ian Charman, an experienced family lawyer. The Child Impact Report was prepared by Ms B, an experienced Family Consultant. Her report was released to the parties on or around 23 September 2022.
Ms B, after interviewing X, was of the view that he had aligned himself with his father, in response to what X himself perceived to be an intolerable state of conflict between his parents. As previously indicated, Ms G, in both of her more recent family reports, agreed with Ms B’s initial assessment.
In the interim judgment, I summarised what X reported to Ms B in the following terms:
To [Ms B], [X] described being scared of his mother, whom he described as acting like a wild animal. By way of explanation, he complained that his mother had bitten him and, as a consequence, he needed to be home with dad. In this context, he described the last eight weeks of living solely with his father as being calm and stress free.
Accordingly, so far as [X]’s wishes and views, as recorded by [Ms B] are concerned, it is to have nothing presently to do with his mother, whom he regards as being toxic. Significantly, [X] did indicate to [Ms B] that he still loves his mother.
However, so far as [X]’s present views are concerned, he is strongly desirous of returning to the [Suburb D] home, in which he is likely to feel safe, provided his mother is not there.[15]
[15] See Capri & Goldwell [2022] FedCFamC2F 1363 at [76] – [78].
This was the background to my first substantial involvement in the matter, which involved an interim determination of the sole occupancy issue and with whom of his parents X should live. I determined, for the extensive reasons provided, that X should live with his father, at the Suburb D property and, in order to give effect to this arrangement, Ms Goldwell should vacate it within 14 days and thereafter be restrained from approaching the property.
In addition, I further ordered that Mr Capri pay Ms Goldwell the sum of $3,000.00 in conjunction with the sole occupancy order and thereafter pay her the sum of $200.00 per week. The financial aspect of these orders underlined another significant difficulty in the case, namely neither of the parties concerned could be considered to be in a strong financial position. This was particularly the case so far as Ms Goldwell was concerned.
Following the interim hearing, it was directed that the Family Report be prepared, and the parties attend for some form of property mediation/conciliation, which proved to be unsuccessful. The case was then initially listed for final hearing in June of 2023. This hearing did not proceed.
Mr M who then represented Mr Capri was not ready to proceed as he had not been provided with the necessary funds to appear and was unable to file the required trial material as order by the Court. As such, Mr M agitated for the adjournment of the trial. Subsequently, Mr M withdrew.
In these circumstances, in response to the application for adjournment, Ms Jones applied for an updated Family Report to be prepared. The reason being that Ms Goldwell claimed the statements attributed to X, in the first Family Report compiled by Ms G could not be regarded as being reliable given they had been obtained by means of a telephone interview and in the absence of any observed interaction between mother and child. In such circumstances, she asserted that there must be a significant risk that X was being subject to his father’s emotional manipulation.
Accordingly, neither party was in a position to proceed, and, with a great deal of reluctance, I re-fixed the hearing for December and ordered an Addendum Report involving direct interviews and, if possible, an observed interaction between X and Ms Goldwell.[16]
[16] See Addendum Family Report dated 25 October 2023.
The Addendum Family Report was released to the parties on 25 October 2023. X was interviewed directly and maintained a consistent attitude towards his mother to that which he had displayed earlier. He declined to engage with his mother in any form of observed interaction. In all the circumstances, it was Ms G’s recommendation that the new information gained for the Addendum Family Report added further weight to her earlier recommendation.
Accordingly, I am concerned that the proceedings have already been significantly delayed and I am concerned at the prospect of them being further delayed as a consequence of the lack of evidence, in Ms Goldwell’s case, regarding property issues, particularly the value of the Suburb D property.
THE EVIDENCE
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[17] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[18]
[17] See Evidence Act1995 (Cth) s 140.
[18] See Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
In addition, I bear in mind section 140(2) of the Evidence Act 1995 (Cth), which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
The major difficulty in this case is that until recently the focus was on the parenting aspect of the case with property issues, particularly from Ms Goldwell’s perspective, taking a subsidiary role. In these circumstances, the only significant affidavit and documentary evidence regarding property matters has come from Mr Capri alone. He is clearly an intelligent person but is not legally qualified.
In these circumstances it seems to me that he has done his best to prepare all aspects of his case, including obtaining what he regards as proper evidence of the value of the Suburb D property. Although he has a greater level of financial backing than the wife, he cannot be regarded as being wealthy and has been compelled to do the best he can as an unrepresented litigant.
Ms Goldwell, who has been legally represented throughout the case, has hitherto not elected to challenge directly this valuation by providing her own formal evidence of the property’s valuation. Accordingly, her approach to the litigation has created what she now characterises as a lacuna in the evidence.
I found Mr Capri to be a candid and honest witness, who told the truth about the parties’ financial relationship with one another. As a result, I accept his evidence. In any event, there were few, if any, evidentiary controversies between the parties regarding financial issues. Ms Goldwell does not appear to challenge the main thrust of Mr Capri’s case that he brought the Suburb D property into the marriage and was the family’s sole breadwinner during it.
What controversies arise relate to the weight to be given to Ms Goldwell’s contributions as a homemaker and parent, during what was clearly a very troubled marriage over many years. In the context of these aspects of her evidence, I found her to be candid and honest. As indicated above, the chief focus in this case is what allowance is to be made for the parties’ prospective needs, given the modest asset pool and each of their undoubted and pressing financial needs.
It is in this context, that the major legal controversy arises. As his preferred outcome, Mr Richter seeks that a further piece of evidence be gathered – in the form of a further valuation of the Suburb D property – which could then be applied to any percentage division of property which the Court has subsequently determined.
The problem with this approach is that firstly, the evidence has closed and secondly, Mr Capri may not necessarily accept a subsequently obtained valuation given his assertion that he has already provided evidence of what he asserts the property is worth and Ms Goldwell, for whatever reason has not elected to do so.
In such circumstances, should the Court, in effect, hand its determination of the property issues in the case, by reference to a prospective and necessarily uncertain valuation, which has the potential to be controversial and, if the mechanism proposed by Mr Richter is accepted, will be beyond the supervision of the Court, in terms of its application, when a definite sum of money is allocated and possibly default orders made requiring the sale of the Suburb D property to satisfy such monetary orders. In theoretical terms, it seems to me that there is a very real risk that the actual implementation of the nuts and bolts of such a theoretical order, may be fundamentally unfair to one or other of the parties.
In my view, it would be contrary to the Court’s fundamental obligation to ensure that the outcome proposed is a just and equitable outcome if it acceded to such a course. Rather, the Court is obliged to consider what is the effect of its orders in operative terms. This obligation is all the more pressing in a small property pool case, where the allocation of every single dollar is significant to the parties concerned.
The alternative is to adjourn the case and direct the parties obtain a valuation prior to the Court’s determination, prior to the finalisation of the case. The chief deficit of such a course is that the proceedings, already significantly delayed will be further delayed, adding to the costs, certainly of Ms Goldwell but also to those incurred by the public in the administration of the Court. In addition, it will negate the prospect and expectation of the parties, particularly Mr Capri, that these reasons represent the final adjudication of the case.
THE PARTIES
Mr Capri was born in 1961. He is a professional. He has been employed for approximately seven years. Mr Capri estimates his annual salary to be around $110,000.00 gross per annum, or $81,560.00 net.[19]
[19] The gross figure is derived from his Financial Statement filed 21 October 2022 in which he provides a gross weekly salary of $2,115.39. The net figure is from paragraph 5 of his affidavit of 6 December 2023.
By training, Mr Capri is a professional who has relevant qualifications. However more recently, he has obtained further qualifications.
In his current position, Mr Capri is engaged as a professional. My impression is that his position and the skills related to it fall into something of a niche.
At the present time, he continues to engage in home-schooling X and as a consequence he frequently works from home, fitting in his employment commitments around his responsibilities for X. He deposed that he works three to four full days, which with the approval of his employer, he spreads over seven days. The implication of this evidence being that it would be extremely difficult for him to change his employer.
Ms Goldwell was born in 1965. She has formal qualifications as a professional obtained in New South Wales but has not utilised her qualifications for over 20 years and would have to re-qualify if she wished to work as a professional. She was not in any long-term paid employment, during the parties’ marriage, being engaged mainly in home duties and the home-schooling of X.
At the present time, she is in receipt of social security as her sole source of financial support. She is critical of Mr Capri in that he has made only 19 of the weekly payments of $200.00 ordered by the Court on 11 October 2022 and, as a consequence, she is owed approximately $8,000.00 by him. It is Mr Richter’s submission this is a factor which should be taken into account in respect of how the Court finalises the property aspects of the case.
It is Mr Capri’s case that he endeavoured to make the payments required until financial necessity dictated that they be ceased. In effect, he ran out of money. My impression from the evidence is that both before and after the parties separated, financial issues were a constant source of tension for them, and each has a mildly unorthodox view of paid employment.
Mr Capri candidly deposed that he didn’t like work regarding it as a treadmill. His view is he works to live rather than vice versa. It is his position that he offered to swap places with Ms Goldwell and be the stay at home parent, but she declined. It is the effect of his evidence that he provided the vast majority of the financial needs of the family as well as being involved with homemaking responsibilities.
It is my impression that neither of the parties were particularly focussed on wealth accumulation and financial status for its own sake and both are to be regarded as being somewhat unconventional in their approach to such matters. They live an alternative lifestyle. Mr Capri further deposes that Ms Goldwell, from time to time, proposed starting various small home-based business, which incurred expenses, which he met but ultimately the businesses concerned did not eventuate. The impression he attempted to create being that Ms Goldwell was somewhat ineffectual in matters of finance. For her part, Ms Goldwell asserts that she did not feel supported in these aspirations because the husband told her she would fail in them and have to come back cap in hand to him to be bailed out.
In response, Mr Capri asserts that she had untrammelled access to all bank accounts, which she utilised to create what he calls her private stash. He concedes that she did work, on a casual basis, being paid in cash between $150.00 to $300.00 for a weekend’s work. He asserts that she kept the money for her own purposes.
Ms Goldwell does not accept this. She deposes that she worked long hours on these weekends earning $20.00 per hour for up to six or seven years. She asserts that she used her wages to fund X’s home-schooling and on one occasion on a special holiday and one other to pay for air conditioning.
It is the effect of Ms Goldwell’s oral evidence to the Court that her contributions as a parent and homemaker in the many years during which X was home-schooled must be given significant weight.
Her evidence is that she was exemplary in this regard – organising his exemption from conventional education; providing the necessary evidence to the Education Department that he was progressing satisfactorily; and being instrumental in organising a home-schooling group for which she raised funds and organised extracurricular activities. It is her case that she created X’s lesson plans and organised activities for him.
In an earlier affidavit, Ms Goldwell asserted that she was subject to Mr Capri’s financial control because he set up what was entitled the business account, into which he would drip feed monies which she was directed to use to fund household expenses. Often the account was insufficient to meet these expenses, when she presented her debit card, leading her to feel humiliated and in thrall to Mr Capri, when her card was refused.
For his part, Mr Capri asserts that although credit cards were cancelled from time to time, he always made sure adequate funds were made available and he personally lived frugally. Ms Goldwell has asserted otherwise deposing her view that Mr Capri was at times addicted to online gaming. However, she has provided no concrete evidence of this, and it was not an issue pursued at trial.
In short, in their earlier affidavit material, each of the parties is highly critical of the other’s financial behaviour during their marriage, reflecting the evidentiary dichotomy arising between them in respect of the parenting issues pertaining to X. However, neither elected to examine these issues of financial impropriety, in any detail, at trial or provide any actual financial records.
In all the circumstances, I accept Mr Capri’s characterisation that during the parties’ marriage cash was always tight and issues to do with family budgeting were a constant source of friction between them. However, it would seem to be the case that bills were ultimately paid and the vast majority of monies, which came into the household, were used for joint family purposes. This is not a case, in my assessment, about monies being siphoned off for personal purposes.
In this particular matter, it seems to me to be the case that each of the parties has followed the natural inclination of persons engaged in unpleasant litigation to maximise their own particular contributions made during the marriage and minimise those of the other. In this context, I must not lose sight of the fact that the marriage between the parties was one of around 13 years in duration – a significant period when the mature span of human life is considered.
Clearly, for much of that time, what happened in the home was extraordinarily difficult. In these arduous circumstances, each of the parties made significant contributions and each soldiered unhappily on, being focussed on what seemed to be best for X. Financial circumstances made separation problematic and a plan for one of them to move into an outbuilding on the property also proved problematic.
The parties finally physically separated in late 2021 and accordingly it is Mr Capri’s position that he solely has been responsible for providing for the care of X, which he has done with no financial or other assistance from Ms Goldwell.
Prior to that time, whilst the parties were separated under the one roof, Ms Goldwell obtained a child support assessment for X, which required the husband to pay the wife child support. It is Mr Capri’s evidence that it took a few months for the Child Support Agency to rectify this situation and he has not sought reimbursement. It is his case that these are contributions which favour him in a general sense.
Neither party has provided any evidence regarding the current state of their respective health. Ms Goldwell indicated that, in the difficult circumstances following separation, she had undertaken personal counselling and had accessed a mental health care plan, but no other details were forthcoming.
Accordingly, I accept that in theoretical terms, at present, each party is able to undertake some form of paid employment. In Mr Capri’s case, there is no suggestion that his employer will suggest that he retire in the foreseeable future. Indeed, any such suggestion may well be illegal. I note, however, that it would most certainly be Mr Capri’s personal preference not to be working into his seventies.
The chief impediment, which Ms Goldwell faces in regard to returning to the workforce is her age and lack of recent employment experience other than at a small business. In my assessment, Ms Goldwell is an intelligent and articulate person. In this context, she provided anecdotal evidence of what she conceded were well developed organisational skills when she recounted how she had lobbied a business to fund an end of year even.
In answer to questions from me, she indicated she would like to get a job, on a freelance basis. Ms Goldwell indicated that she had made three formal applications for jobs, none of which has been successful. She conceded that she would have to get a job, given her current circumstances and was hopeful something will turn up.
She hopes it will be part-time in nature and provide her with around $600.00 net per week or around $50,000.00 gross per annum. In her expression, she would be able to top up social security with some form of part-time work, ideally community-based. This did not seem to me to be an unrealistic aim. One attribute the parties share is a penchant for living frugally and eschewing extravagance in life. However, having said this, both need a secure roof over their heads. It is a significant matter that Ms Goldwell has been couch surfing.
INITIAL CONTRIBUTIONS
This is the most significant evidentiary issue in the case and, as such, warrants its own heading. It is the most significant plank in Mr Capri’s case. There is no controversy that he and his first wife acquired the Suburb D property in 1996. It was subject to a mortgage. I have not been provided with evidence as to its purchase price or what was the amount borrowed.
In 1997, the relevant certificate of title indicates that Mr Capri became the sole proprietor that year, presumably on his divorce and the mortgage was re-financed. The parties met and lived in Country K for a period of time. During this period, one of Mr Capri’s adult children lived in the property rent free.
It is the effect of Mr Capri’s evidence, which is uncontradicted by Ms Goldwell, that the property was worth approximately $240,000.00, when he and Ms Goldwell began to live together, prior to their marriage.
He asserts that the mortgage at the time was around $50,000.00, leaving equity of around $180,000.00, which when the current extent of the property pool is considered, must be regarded as being worthy of some significant degree of emphasis in the Court’s deliberations.
In contrast, he points to the fact that Ms Goldwell had no assets of any significant value when the parties became involved with one another and had only a car, subject to finance, which debt he paid off in an amount of approximately $2,000.00. His further evidence is that his superannuation, at this stage, was around $90,000.00; whilst Ms Goldwell held superannuation against her name in an amount of $22,000.00.
As indicated above, it is now Ms Goldwell’s position that her superannuation is around half of this sum. She asserts that in 2008, Mr Capri’s superannuation stood at $77,282.69; whilst hers was $23,157.57. Nothing turns on these minor discrepancies.
In addition, Mr Capri has deposed that he had saving of around $132,000.00 at the commencement of the relationship. In this context, he has provided a statement from L Bank in early 2009, which shows a closing balance of $132,273.10.[20] The major component of this sum are two sums in amounts of $71,197.35 and $12,250.00 received from Mr Capri’s then employer, which he has characterised as being redundancy payments.
[20] See Annexure B of Mr Capri’s affidavit filed 20 November 2023.
These sums are obviously long gone and how they were utilised is not clear. However, what is apparent is that the mortgage on the Suburb D property was paid out in 2010 with a payment of $62,045.84 from Mr Capri’s account.[21]
[21] See Annexure F of Mr Capri’s affidavit filed 20 November 2023.
In my view, this must be regarded as a significant contribution as the parties were provided with secure accommodation, which was debt free, which by necessary implication enabled them to follow the somewhat unorthodox lifestyle of their mutual preference, untrammelled by mortgage debt.
As will be shown in greater detail in due course, it is not the case that the Court is required to quarantine the property each party had at the commencement of their relationship and then assess contributions and other claims for future needs against what was actually acquired during the relationship itself. This is because the task of dividing marital property, pursuant to the provisions of the Act, is not a matter of strict arithmetical accounting.
Rather, because it involves an assessment of contributions, which are not financial in nature, such as those made by a parent or homemaker in the context of a familial situation, a more holistic approach is required to ensure that ultimate outcome of the process is a just and equitable one. In this context, the Court is required to make an assessment of the use to which any initial financial contribution was put and its overall significance in terms of the welfare of the family concerned.
It is the import of Mr Capri’s case that his contributions in the form of the Suburb D property, which he was able to pay off in the early years of the parties’ marriage, were integral to the manner in which he and Ms Goldwell elected to lead their lives, with X, up until their separation and without it, their familial circumstances would have been very different indeed.
LEGAL PRINICIPLES APPLICABLE
Part VIII of the Family Law Act 1975 (Cth) deals with financial matters relating to parties who are or have been married to one another. In particular, section 79(1) authorises the Court to alter the property interests of the parties to a marriage. In addition, Part VIIIB of the Act provides specific provisions enabling the splitting of superannuation between spouses.
The process to be followed for the division of the parties’ property is well-established by law.[22] The relevant legal principles are primarily contained in sections 79 and 75(2) of the Act. I am required to follow a number of specific steps.
[22] See Ferraro v Ferraro (1992) 16 Fam LR 1; Clauson & Clauson (1995) FLC 92-595; Hickey & Hickey (2003) 30 Fam LR 355.
In the first step, I must ascertain what are the parties’ assets and liabilities available to be divided between them. The general rule is that those assets are to be determined as at the date of trial.[23]
[23] See Biltoft & Biltoft (1995) 19 Fam LR 82.
In the second step, I must ascertain the contributions, which each party has made towards the matrimonial pool of assets, as I find them following the first step. Contributions fall into two broad categories.
The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation, or improvement of any of the property.
The second kind is contributions to the welfare of the family in the words of the section:
The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.[24]
[24] See Family Law Act1975 (Cth) s 79(4)(c).
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
At this second stage, the task set for me requires the balance and comparison of a multiplicity of contributions, many of which are necessarily different in nature, within the framework of a marriage. Marriage is by and large a joint enterprise. How much buffer spouses must give one another, when financial setbacks occur, must depend on the degree of consultation between them and the level of acquiescence in their relationship.[25]
[25] See D & D [2003] FamCA 473 at [49].
Many contributions in a marriage, such as being a homemaker, do not result in the direct acquisition of assets. They are also difficult to value in absolute dollar terms. In contrast, the monies contributed by a wage earner are easier to quantify. However, these difficulties do not absolve the Court of its obligation to undertake the required assessment of contributions.
One of the essential tasks for the Court, arising under section 79(4) of the Act is to weigh and assess contributions, which are essentially different in nature and, as such, are not always amenable to ready comparison. In this context, I must be careful not to undervalue the homemaker role, which does not always provide a clear economic output, such as that generated by a wage earner.[26]
[26] See Ferraro & Ferraro (1992) 16 FamLR 1 at 38 and Mallett & Mallett (1984) 156 CLR 605.
The Court’s discretion is a wide one but must be exercised judicially. The task conferred is to weigh and assess contributions, which are necessarily disparate in nature. In summary, contributions, within the framework of a marriage, which are different in quality and nature must be compared, in order to achieve a just and equitable division of property. It has been referred to as a holistic exercise.[27] Certainly, it is not to be approached as a simple accounting or arithmetical exercise.
[27] See Watson & Ling [2013] FamCA 57 at [13] (Murphy J).
In the present matter, a number of controversies arise in respect of the contributions which each party made during the parties’ marriage. From the wife’s perspective, she argues that the Court must be careful not to underestimate what she would characterise as her significant contributions as a homemaker and parent, particularly in the context of her home-schooling X.
From the husband’s perspective, he argues that the Court needs to give significant weight to what he would characterise as his overwhelming financial contributions made during the marriage as a wage earner and financial provider, but particularly in the context of the property which he brought into the marriage in the form of the Suburb D property and his then superannuation balance.
In the past, it has been suggested that disparities in capital, at the outset of a marital or de facto relationship, become less significant as the duration of the relationship concerned increases. It was sometimes said that such contributions were liable to erode over time. The Full Court has not endorsed such a formulation.
In Pierce & Pierce,[28] the Full Court made reference to several of the relevant authorities. The Court said as follows:
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 the husband, regard must be had to the use made by the parties of that contribution.
[28] See Pierce & Pierce (1999) FLC 92-844 at page 85,881 (Ellis, Baker & O’Ryan JJ).
In Q & Q, the Full Court made reference to the above passage and stated:
…there is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with ‘a particular contribution’. It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome, which is both appropriate and just and equitable. In some cases particular contributions may be outweighed or equalled by other ones. In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.[29]
[29] See Q & Q [1999] FamCA 1314 at [39] (Kay & Burr JJ).
In the present matter, it is clearly the flavour of Mr Capri’s case that his financial contributions, at the commencement of the parties’ marriage, do indeed warrant such special recognition on the basis, that without them, the parties, for all intents and purposes would not have any assets to divide between them. In the circumstances of this case, in my view, this is a compelling submission.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Act. Pursuant to section 75(2)(o), the Court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.”
Again, as indicated at the outset of these reasons for judgment, this is also a stage of the process required in this case to affect a division of matrimonial property between Mr Capri and Ms Goldwell to which the Court must apply close attention, given the ages of the parties concerned and their respective capacities to derive income and provide secure accommodation for themselves.
Finally, in determining what order the Court should make under section 79, the Court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the Court must consider.[30]
[30] See Russell & Russell (1999) 25 Fam LR 629, 644 [80] (Ellis, Finn and Mushin JJ).
The overriding requirement of section 79 is that considerations of justice and equity should inform each step of the process. The exercise I must undertake is not a “process of social engineering”,[31] or of equalisation of assets or financial resources.
[31] See Waters & Jurek (1995) 20 Fam LR 190, 196 (Baker J).
It is clear that this orthodox stepped approach remains current, notwithstanding the High Court’s decision in Stanford v Stanford (“Stanford”).[32] In Stanford the High Court placed significant emphasis on section 79(2), which actively prevents the Court from making an order, in respect of property, unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words “shall not” in the relevant section.
[32] See Stanford v Stanford (2012) 247 CLR 108.
In Stanford, the High Court warned of the potential danger of a Court conflating its responsibilities arising under section 79(2) and 79(4). The Court’s fundamental responsibility is to make a just and equitable order. The High Court said as follows:
The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.[33]
[33] See Stanford v Stanford (2012) 247 CLR 108 at [36] (French CJ, Hayne, Kiefel and Bell JJ).
Accordingly, considerations of what is just and equitable flavour all applications pertaining to property settlement. What is fair is impossible to define with certitude and must depend on the prevailing circumstances. However, care must be taken to avoid conflating the stipulation contained in section 79(2) with the discretionary exercise contained in section 79(4).
In Bevan & Bevan (“Bevan”),[34] the Full Court summarised three fundamental propositions relating to the interaction between section 79(2) and section 79(4), which can be summarised as follows:
·Determination of what is just and equitable begins with an identification of existing property interests;
·The discretion provided by section 79 must not proceed on any assumption that any settlement of property should be different from those existing property interests, as determined by principles of common law and equity; and
·However, a determination that a person has an entitlement to a division of property by reference only to section 79(4) would be wrong as it would ignore the express statutory requirement of section 79(2) or conflate the two considerations.
[34] See Bevan & Bevan [2013] FamCAFC 116 at [73] (Bryant CJ, Finn and Thackray JJ).
As discussed by the Full Court in Bevan, whether it is just and equitable to make any particular property order is invariably inextricably interwoven with questions of contribution arising under section 79(4) and the parties’ financial and relationship history with one another.
Although the Court must be careful not to combine issues arising under section 79(2) with the exercise arising under section 79(4), it is artificial to divorce them from each other. Section 79(2) does not, however, I take it, represent a formal threshold to be crossed prior to the undertaking of the section 79(4) exercise.
As previously indicated, the challenge which this case throws up, arises because of the modest extent of the pool of property available for distribution, in the context of the undisputed fact that Mr Capri acquired the relevant major asset prior to the parties’ marriage and was the family’s major breadwinner during it.
In this case, neither party advocates the sale of the Suburb D property because of the emotional dislocation this will potentially cause X. It may also delay any possibility of there being any reconciliation between him and his mother. At the same time, she seeks a share of marital capital sufficient to allow her to provide a safe haven for herself and X.
In this context, the Court cannot disregard the prejudice which may be accorded to Ms Goldwell if her contributions are undervalued or her prospective needs discounted because of the hardship which may eventuate to Mr Capri if the order thought to be just, which is proposed to be made in her favour, is not made because it cannot be satisfied by any mechanism other than the sale of the Suburb D property. Essentially, her entitlements are discounted to avoid the sale.
In Horrigan & Horrigan[35] the Full Court indicated as follows:
It is well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment.
[35] See Horrigan & Horrigan [2020] FamCAFC 25 at [35].
In Lee Steere & Lee Steere,[36] the Full Court of the Family Court observed that any order which would deprive a party substantially of what he or she is entitled to by reason of contribution would not normally be considered just and equitable
[36] See Lee Steere & Lee Steere (1985) FLC 91-626 at 80,077.
Given the challenging circumstances arising in the current matter, it will be necessary for the Court to apply a holistic approach in its assessment of the parties’ very different contributions to arrive at a result which can be considered just and equitable. The major issue being considerations of the justice and equity of, on the one hand, any potential liberation and on the other hand, a quarantine of the capital represented by the Suburb D property.
The Court must remain focussed on its assessment of the respective contributions of the parties concerned. There being no principle that a spouse should receive a diminution of assets because of the desirability that such a liberation should be avoided. The first obligation of the Court being to assess entitlements on the basis of contribution.
In addition, the Court cannot ignore the inevitability that a disparity in the application of section 75(2) factors must also reduce the quantum of other contributions-based entitlements. The emphasis must always remain on doing proper justice to the competing claims of each of the parties concerned.
In Magas & Magas (“Magas”) Asche SJ said as follows:
If there is no other way to do that which is just and equitable then a sale must take place. It becomes an incident of the sad fact that, when two persons separate, property which might have given them together a reasonable competence will not be sufficient for each when divided. That is an inescapable situation and cannot be used as an argument to deprive one party of that to which he or she is otherwise properly entitled.[37]
[37] See Magas & Magas (1980) FLC 90-885 at 75,591.
Pursuant to section 90XC of the Act, superannuation interests are to be treated as property. As such, they attract the provisions of section 79(4) of the Act. In C & C (“C & C”),[38] the Full Court of the Family Court described superannuation as a different species of asset from other forms of property.
[38] See C & C (2005) 33 Fam LR 414 at 424 [40] (Bryant CJ, Finn and Coleman JJ).
This is because superannuation, particularly in its accumulation phase, cannot be easily translated into cash, unlike other more conventional assets, such as land and personal property, and so its value accurately determined by sale. Superannuation is a form of compulsory saving for retirement. As such, it must be preserved until its crystallisation on the occurrence of some specified event, usually permanent retirement from the workforce.
In C & C, the majority of the Full Court of the Family Court held as follows:
In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
a)value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
b)consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
c)consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
d)ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.
In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.[39]
[39] See C & C (2005) 33 Fam LR 414 at 429 [65]-[66].
In the present matter, given the respective ages of each of the parties, particularly Mr Capri, financial preparedness for retirement from the workforce is necessarily an important consideration. In these circumstances, the extent of any split to be made and how it interacts with any other distribution of property, together with the overall implications of both such interventions for the parties concerned, must be inherent in how the Court assesses the overall justice and equity of the outcome proposed.
Mr Capri has indicated a willingness to acquiesce in a greater split in Ms Goldwell’s favour from his superannuation if this ensures his retention of the Suburb D property. As I have previously observed, the present case throws up an extreme challenge as to how to equitably distribute superannuation and non-superannuation assets between separated spouses, who are likely to have distinct future needs and indeed preferences.[40]
[40] See L & L [2003] FamCA 40 (Moore J).
The Court, in property cases, is often confronted by the challenge represented by how to equitably distribute superannuation and non-superannuation assets between separated spouses, who may have disparate aspirations and future needs.
In cases such as L & L[41] consideration has been given to how the Court should determine the mix of assets and superannuation each party should receive and how assets should be allocated. Relevant factors warranting the Court’s consideration include the following:
·the purchase price of appropriate accommodation and re-housing costs for both parties;
·the need for a financial buffer for ordinary exigencies of independent living;
·the current level of the parties’ superannuation;
·their ability to borrow in future; and
·the earning capacity of the parties concerned.
DISCUSSION
[41] See L & L [2003] FamCA 40.
Step One – The pool of property
In my view, given the modest extent of the pool of property and superannuation available for distribution, it behoves the Court to focus on the reality of the parties’ financial circumstances and avoid the temptation to rely on rubbery estimates of value in respect of consumer items or personal estimations of the worth of such thing.
The parties’ respective financial statements were filed in late 2022. Mr Capri disclosed a 20-year-old Motor Vehicle 1. More recently, Ms Goldwell has indicated she has a Motor Vehicle 2, she values at $2,000.00. Mr Capri asserts he has household goods worth $10,000.00; Ms Goldwell $2,000.00.
In the greater scheme of things, these are not significant figures. Each, for obvious reasons, has a need of a car. It seems probable that Mr Capri has more of the furniture and so on and so forth, which the parties acquired during their marriage. As indicated earlier, it is my impression the parties lived frugally. These items should remain where they are and not be subject to any attempt at arithmetical allocation.
The parties also each have bank accounts. The sums involved are not significant and each lives very much from hand to mouth and must budget strictly. In practical terms, the only significant items to be approached in this case are the Suburb D property and superannuation.
I propose to adopt the valuation proposed by the husband for the property of $580,000.00. In my view this sum represents the best evidence available in respect of the issue. I accept that it is the value provided to Mr Capri as the basis of a prospective mortgage loan to be made to him. It was undertaken by a valuer selected by his preferred lender. It is consistent with the appraisal provided by real estate agents.
I accept that it is in Mr Capri’s interest to have as low a value as possible. However, the issue of the value of the property cannot be described as a new issue. Indeed, it must be regarded as fundamental to the outcome of the case. In these circumstances, it seems to me that Ms Goldwell has had more than ample time to obtain her own valuation. In these circumstances, I am concerned that at the prospect of the proceedings being further delayed possibly to no great advantage and all concerned being put to greater expense and X subjected to on-going uncertainty.
It is sometimes said that valuation is as much an art as it is a science. Obviously, the only infallible means of ascertaining the current market value of any property is to place it on the market and see what price it commands. If this occurs both parties concerned have a vested interest in ensuring the property is realised for the largest possible figure.
This was the approach approved by the Full Court in Smith & Smith,[42] where the Court said as follows:
…where the state of the evidence makes the process of valuation hazardous or uncertain, or where there are wide differences between legitimate valuations because of a volatile market or peculiarities relating to the specific property or otherwise, the ascertainment of value by judicial process may become too uncertain and the preferable course is to order the sale of the property so that its real value can be revealed by market forces.
[42] See Smith & Smith (1991) FLC 92-261 at 78,759.
In the present matter, I do not think the valuation provided by Mr Capri, given the context in which it was provided – namely that of a commercial lender considering a mortgage application – can be regarded as being obviously hazardous or uncertain in its characterisation. It is provided at arm’s length to Mr Capri by a person with expertise, who was engaged by an independent agency. It may possibly be regarded as conservative in nature but that does not render it obviously unreliable.
In these circumstances, I consider that I must adopt a commonsense approach to the issue of the value of the Suburb D property for the purpose of these proceedings. Clearly, it would be grossly unfair to direct the sale of the property just to ensure its value to the last dollar was known. Rather my responsibility is to fix a sum which I regard as satisfactory as representing the value of the property.[43]
[43] See Commonwealth v Milledge (1953) 90 CLR 157.
In all these circumstances, I find that property and financial resources available to be divided between the parties is as follows:
Asset Value C Street, Suburb D $580,000.00 Superannuation Husband’s Super Fund 1 $303,470.00 Wife’s Super Fund 1 $10,560.17 Total Superannuation $314,030.17 Combined Assets & Superannuation $894,030.17 Step Two – Assessment of contributions
The marriage between the parties was one in excess of thirteen years in duration and produced one child. As previously indicated, it must be regarded as a relationship of significant length, during which the parties and X largely occupied the Suburb D property which all regarded as their home. The end of the marriage was traumatic for all concerned.
During the marriage, it must be the case that each party made many significant contributions. These contributions are disparate in nature but must still be assessed and quantified through the lens of what is just and equitable.
X was the parties’ much-loved child and the focus of most of their efforts. Both Mr Capri and Ms Goldwell wanted the best for X and to ensure that he had as stable a childhood as possible, certainly in terms of having an assured place to live.
In this sense, Mr Capri’s contribution in bringing in the home, at the beginning of the marriage, and a short time into it, making it debt free, must be regarded as a very significant contribution indeed and, in my assessment, one requiring special consideration.
The provision of the home must be regarded as the most important contribution. It was a fundamental aspect of the family’s security, providing a roof over the head for not only the parties themselves, but also X. The evidence indicates that Mr Capri, as the family’s main financial provider, maintained the property by meeting all the necessary outgoings from his recurrent salary.
In dollar terms, the parties have not acquired assets of significant value during their marriage. The Suburb D property has increased in value due to market forces not for any reason directly attributable to the parties concerned.
I accept Mr Capri’s evidence that it is not in a perfect state of repair. As such, for most of the relationship, the parties are to be regarded as treading water, in a financial sense. This was their shared choice given neither seems to have been driven by the need for acquisition. In my view, this adds to the overall significance of the Suburb D property vis-à-vis the manner in which the parties approached their pared down approach to matters of finance.
X’s progress through school was not without incident. His parents made a joint decision to withdraw him from mainstream school and educate him at home. Necessarily, influencing this decision was the fact that the parties did have a secure home, which could be used for this purpose.
In his evidence, Mr Capri made no bones of the fact that he did not particularly relish paid employment and would have been content to remain in the home. However, this was not possible, as there had to be at least one source of income coming into the home to pay bills and put food on the table. As such, it fell to Mr Capri to fulfil this important role, which was integral to the security of the family.
In these circumstances, I accept that his financial contributions, during the marriage, as well as in the form of the assets which he brought in at its outset, must be given special recognition, at this stage of the Court’s deliberations. It would not be just and equitable if they are overlooked or discounted in some way, notwithstanding the other undoubted contributions attributable to Ms Goldwell.
X’s relationship with his mother is clearly fractured at the present time. I accept that it was not always so. Ms Goldwell was an active parent, both before and after X commenced to be home-schooled. I also accept that she maintained the household, tended to the garden and the pets and cooked meals.
In these circumstances, the Court must be careful not to undervalue the essential importance of Ms Goldwell’s various and multifaceted contributions. As previously indicated, this is not an easy task and one incapable of being reduced to a purely arithmetical exercise. In Ferraro & Ferraro, the Full Court of the Family Court noted as follows:
The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.[44]
[44] See Ferraro & Ferraro (1992) 16 Fam LR 1 at 38.
As previously mentioned, the relevant authorities eschew the use of arithmetic to assess contributions. However, unpalatable as it may be, it is unavoidable that the Court must come down to percentages in order to discharge its functions. Prior to that stage, the Court must attempt to make its assessment of contributions in a holistic fashion, which avoids the pitfall of under-valuing the non-financial contributions of homemaker and parent.
In coming to such percentages, I bear in mind what was said by the Full Court in D and D[45] as follows:
The task of the court in proceedings under s 79 is not akin to an accounting exercise. The task is to examine the facts of each case carefully to decide what is appropriate and just and equitable in the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions. By and large, marriage is a joint venture where parties can expect to buffer each other from the winds of misfortune that blow during the course of their relationship. The degree of the buffer may depend on how much individual sailing they do without consultation or indeed contrary to the wishes of the other. But there can be no certain answer to how much that should be when applying s.79 principles.
[45] See D & D [2003] FamCA 473 at [49].
Although as I have already observed, the marriage between the parties was deeply unsatisfactory and unhappy, from each of their perspectives, in its latter years, it seems apparent that they stayed living together at the Suburb D property for X’s sake. As such, there was some level of acquiescence between them that each would continue to function as they had hitherto agreed to do so throughout their marriage. In this sense, their marriage, until the period 2020 to 2021, remained a joint venture.
In all these circumstances, whilst particularly bearing in mind the significance of Mr Capri’s initial contributions, which warrant a significant weighting in his favour, whilst wishing to avoid disregarding Ms Goldwell’s contributions, which centred on parenting and homemaking activities, I would assess the parties’ respective contributions as favouring Mr Capri in the proportions 80/20% in regards to the non-superannuation assets – essentially the Suburb D property, which Mr Capri brought in essentially debt free and which provided the family its firm basis during the marriage. Necessarily, without the contribution of the home, the financial trajectory of the parties’ marriage would have taken a very different course. It must be accorded a significant level of weight.
In reaching this conclusion I have also had regard to the fact that since the Court granted Mr Capri sole occupancy of the Suburb D property, he has been solely responsible for parenting X and providing for his financial support.
However, I also note that it has been far from easy for Ms Goldwell to survive financially, particularly after the spousal maintenance payment to which she was entitled from Mr Capri dried up. As previously noted, to a large degree, the parties’ capital situation did not advance greatly during their thirteen-year marriage.
Mr Capri’s superannuation has more than trebled, since the parties married, as a consequence of his regular contributions to his fund by his employer. However, in practical terms, it seems improbable that the sum in question will be sufficient to provide him with an entirely self-funded retirement.
As with the non-superannuation assets, there was a marked disparity in the parties’ level of superannuation when they commenced their relationship. True it is that Ms Goldwell’s discharge of parenting duties assisted Mr Capri to be able to accrue superannuation during the thirteen-year relationship.
As is the case with Mr Capri, if and when he retires from the paid workforce, he will be compelled to seek an aged pension. Once retired from the workforce, his superannuation will crystalise and he will have a choice to either use it to fund a recurrent payment to supplement his pension or take it as a lump sum to pay down debt, most probably any mortgage which he still has at the time.
At the present time, Mr Capri is far more prepared for retirement from the workforce. If the parties had remained married, Mr Capri’s superannuation would have been applied to their joint financial support in retirement. These factors warrant a split being made in Ms Goldwell’s favour, from Mr Capri’s superannuation, to augment her modest holding.
At the end of the second phase of the process, I would assess the parties’ various contributions to superannuation to be 70/30% in the husband’s favour, again largely because of the value brought in by Mr Capri at the commencement of the relationship.
Step Three – The prospective needs of the parties
I am now required to consider the various matters set out in section 75(2), and in particular to consider whether any further adjustment should be made in favour of either party. The section 75(2) factors are mainly, but not only, prospective in nature.
Mr Capri will be 63 years of age this year. As such he has a minimum of a further four and a half years in the workforce, until he is eligible for the aged pension. However, he appears to be resigned to the fact that he will most likely be working into his seventies through financial necessity and as a consequence of these proceedings.
Fortunately, he appears to be in good health and has a long relationship with an understanding employer, who is open to him tailoring his work commitments to his idiosyncratic circumstances. Mr Capri is able to work from home and compress his employment obligations into three days rather than a conventional working week.
Although, Mr Capri would prefer not to be in full time work, his present position seems to suit him well enough and is a good fit for his skills. In this he is fortunate. His position provides him with some degree of autonomy and does not appear to impinge too much on his responsibilities to parent and educate X.
More significantly, it provides him with a secure and guaranteed source of income. It has been said by the Full Court that the most valuable asset a party can take out of a marriage is a substantial, reliable income-earning capacity.[46]
[46] See Clauson & Clauson (1995) FLC 92-595 at 81,911.
In this context, the Court is required to make some sort of assessment of the parties’ respective capacity to engage in appropriate gainful employment. In my assessment, this act of prognostication, which the Act requires, is somewhat difficult in the present case, particularly so far as Ms Goldwell is concerned.
In my assessment, Mr Capri has such an asset. Barring any unexpected health or employment crisis occurring in his life, although it might not be his first preference, it seems to me to be more likely than not that Mr Capri has at least another eight years of employment before him, which he can utilise to pay down any mortgage loan which may be advanced to him.
Ms Goldwell will be 59 years of age this year. During the parties’ marriage, she was not engaged in any long-term or formal employment, certainly not any employment to which the provisions of the superannuation guarantee applied. As such, as a consequence of the decision, which I find to be a mutual one (although Mr Capri has asserted it was begrudgingly so from his perspective), Ms Goldwell has negligible superannuation.
In terms of what is a just and equitable outcome in the case the Court must have regard to the financial implications of the parties’ respective superannuation holdings and what are the likely ramifications of any splitting of these holdings in the context of preparedness for retirement.
From the wife’s perspective, the financial consequences for her of divorce, in common with many women of her age, who left the workforce, in their most productive years, to parent children, are particularly dire. At best, she has a decade in which to accumulate superannuation.
Her ability to do so depends on her capacity to obtain employment. Her most significant impediment in this regard is an almost total lack of contemporary work experience, certainly in an office or administrative area, over the last twenty years or so. Although she presents as an intelligent person, it would be naïve to consider, even in a time of close to full employment, that she faces anything other than a daunting challenge in obtaining a satisfactory job for herself.
On the positive side, she seems to enjoy relatively good health and is to be regarded as an intelligent person, with some academic skills, given she obtained qualifications as a professional in her earlier years. As such, she does have some prospect of getting work and is likely to be able to sell herself if some attractive employment opportunity presents itself to her. In this context, Ms Goldwell concedes that she will have to get a job for herself. Such an insight into necessity is likely to be her greatest motivation but I concede this is an easy assessment to make from a distance.
The marriage between the parties was one of thirteen years in duration, which coincided with the parties raising X. Although, it is the effect of Mr Capri’s evidence that he would have been content to withdraw from the paid workforce and parent X, the fact remains that he did not do so and, when X was an infant, a large proportion of the parenting obligations devolved onto Ms Goldwell.
In this regard, I accept that her assumption of these obligations coincided with the degradation of her employment skills and a concurrent diminution in her income earning capacity [see section 75(2)(k)]. In my view, this is a criterion which favours the wife. In contrast, Mr Capri has been able to maintain employment with his idiosyncratic vocational skills.
X will be sixteen this year. His ambition, at this stage, is to join the public service. Accordingly, it may be the case that he will no longer be financially dependent on his parents in the not-too-distant future [section 75(2)(c)]. Until then, it seems that Mr Capri will be bearing the vast majority of the burden of providing financial support for X.
In this context, whether there will be a child support assessment for X and what its terms will be depends on whether Ms Goldwell obtains employment and what is the level of remuneration. These are all factors currently unknown.
The Court is required to consider the implications of any assessment of child support. In my view [section 75(2)(na)], in the present case, this is an extremely opaque matter at the present time. The weight to be attached to a child support assessment will vary in the circumstances of each particular case concerned.
The Court is directed to look at the amount of the assessment, the financial circumstances of each of the parties, the needs of the child concerned and whether child support is likely to be paid regularly and at an adequate rate in future. It must also not be forgotten that the payment of child support in no way compensates the main care providing parent for the loss of career opportunity and the inevitable restrictions on working hours and job choices, which the care of children, particularly young ones, usually entails.[47]
[47] See Clauson & Clauson (1995) FLC 92-595 at 81,911.
In the current matter, I have regard to X’s age and the fact that it is more probable than not that Mr Capri will have to shoulder responsibility for his financial support over at least the next two and a half years. However, fortunately, his idiosyncratic work arrangements enable him to remain in the workforce. It is also probable that any child support assessed to be paid by Ms Goldwell will be modest.
The Court is directed to consider a reasonable standard of living, for each of the parties concerned [section 75(2)(g)]. This criterion recognises one of the financial realities of separation. More often than not, separation inaugurates a drop in living standards for each of the parties concerned.
Certainly, that is the case in the present matter. The parties’ separation has been a financial disaster for each of them. As Asche SJ recognised in Magas, two households cannot live as economically efficiently as one. This is obviously the case in terms of accommodation, which must be duplicated.
In terms of equity, this is the most significant issue. A need for shelter is one of the most basic of human requirements. In my view, one of the significant aspects of the case is what flowed from the earlier interim hearing, which for reasons centred on X’s best interests, resulted in Ms Goldwell being evicted from her home of many years, with challenging prospects of securing other long-term accommodation. This is a factor which favours her.
At the same time, continued occupation of the Suburb D home is essential to the economic well-being of Mr Capri but also the emotional stability of X. To Ms Goldwell’s credit, in these circumstances, she does not agitate for the sale of the property.
Given the provenance of the property, I would have grave concerns regarding the justice and equity of the property having to be sold to release the capital contained in it. However, at the same time, as the authorities recognise, if the only means by which a spouse will be able to receive their proper entitlements is through sale, the Court should direct such a course.
The two most important criteria arising in this case are the respective ages of the parties and as previously stated their respective capacity to obtain employment [section 75(2)(a) &(b)]. These are matters to which attention has already been given. In my view, in a context closely related to these considerations, the Court is directed to have regard to each parties’ eligibility to a pension or superannuation benefit [section 75(2)(f)].
As previously indicated – I fear at some tedious length – the parties are each at the stage of life when prudence dictates that they should begin to consider preparedness for retirement. However, at sixty-two years of age, this is a more pressing consideration for Mr Capri than Ms Goldwell. Given the current amount of superannuation, it seems more likely than not that each will be reliant on an aged pension, eligibility for which currently begins at 67 years of age in Australia.
In these circumstances, for obvious reasons, the prospect for Mr Capri of taking on a significant level of mortgage debt, which he may potentially have to service on a limited government benefit is a factor which fills him with disquiet. I can understand why this would be so.
Superannuation is a form of compulsory saving, the release of which is dependent on the satisfaction of one of a number of specified events – most commonly reaching preservation age or permanent retirement from the workforce. On crystallisation, the person entitled to superannuation may elect to use it to discharge debt or invest it to provide an income stream to augment a government pension. Ownership of a family home is not currently subject to inclusion in the means test for a pension.
At present Mr Capri anticipates working into his seventies. In such circumstances, it seems to me that he requires sufficient superannuation to be able to make the best advantage of the savings which it represents, when it ultimately crystallises – either to pay out any mortgage which he has or utilise it to provide him with some form of income stream.
As a consequence of the Court’s deliberations under step 2, Ms Goldwell will receive a reasonable sum referrable to the value of the Suburb D property. How she chooses to utilise that sum is a matter for her. It may be sufficient to enable her to purchase a modest home, subject to mortgage, the grant of which and the service thereof, will be dependent upon her obtaining secure employment, which cannot be assured at the present juncture.
Alternatively, it will provide her with a nest egg to provide against the exigencies of life and to fund a security deposit and rental advances in respect of a rented accommodation for herself. I appreciate that being a renter as one grows older is not likely to be as financially secure as at least having a modest foothold on the property ladder.
In these circumstances, it seems to me that the Court needs to give some consideration to how Ms Goldwell is to be placed in as a broadly similar position to Mr Capri to consider options when her superannuation crystallises. However, I also acknowledge that there is, regrettably, simply not enough superannuation to go around at present.
In this context, by dint of her age alone, Ms Goldwell has potentially more years in the workforce than Mr Capri and so more years to grow her superannuation. Though whether she elects to utilise them in this way or, more patently, is able to do so, is currently unclear to me.
As such, in order to satisfy considerations of justice and equity, it seems to me necessary that each of the parties have a sufficient amount of superannuation, as the circumstances currently dictate, to be able to approach the financial challenges represented by retirement with the maximum level of flexibility possible.
Section 75(2)(o) authorises the Court to consider any other fact or circumstance which in its opinion the justice of the case requires to be taken into account. In Ferguson & Ferguson[48] the Full Court of the Family Court held that the provision was to be read ejusdem generis, with the other matters listed in section 75(2), which enabled the Court to bring into account conduct which has an economic significance in the parties’ dealing with each other or the property in dispute.
[48] See Ferguson & Ferguson (1978) FLC 90-500 at 77,607.
In this context, I can take into account the failure of Mr Capri to honour the order that he pay on-going spousal maintenance to Ms Goldwell to assist her with her accommodation expenses. As previously indicated, the shortfall is approximately $8,000.00. I accept that at the time it was a significant sum to each of the parties. I propose to take it into account, in a general sense what should be the extent of any percentage adjustment in respect of the cumulative effect of the various factors arising under section 75(2), which I have thus far identified.
At the end of the third stage, I propose to allow a further 2% allowance in respect of the non-superannuation asset and a 10% allowance in respect of superannuation in favour of Ms Goldwell as a consequence of my overall assessment of section 75(2) factors.
CONCLUSIONS REGARDINING PROPERTY – JUSTICE AND EQUITY
In practical terms, the most significant aspect of this case is the modest pool of assets and superannuation in comparison to the significant current and future financial needs of the parties themselves. As such, it is, in my view, a fiendishly difficult case, which can only provide unpalatable outcomes for those involved in it.
Stepping back and viewing all the evidence, I am satisfied that it would be unfair to Mr Capri, if the Court did not give sufficient recognition to the fact that, at the outset of the parties’ marriage, he owned a home and had accrued superannuation; whilst Ms Goldwell had no equivalent level of financial backing.
However, it would be fundamentally unfair to Ms Goldwell if the Court did not recognise her contributions as a parent and homemaker and the consequences for her, in a financial sense, of leaving the paid workforce for the extended period of thirteen years, which leave her with few skills and at a disadvantage in returning to employment. In contrast Mr Capri does have a job and employment security.
In Steinbrenner & Steinbrenner,[49] Coleman J observed as follows:
Given the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.[50]
[49] See Steinbrenner & Steinbrenner [2008] FamCAFC 193.
[50] See Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] (Coleman J).
I am currently at the point in the judgment at which the Court must make the metaphorical leap from words to figures or from abstractions to what is concrete. After all, it is all well and good to talk in percentages, so far as orders and outcomes are concerned, but what matters to the parties is what the orders mean to them in dollars and cents and what effect they have on their long-term plans and aspirations.
This leap from abstraction to the concrete must be undertaken in terms of what is just and equitable to each of the parties concerned. 22% of the Suburb D property is represented by the sum of $127,600.00 and 78% by the sum of $452,400.00.
40% of the parties’ total superannuation is represented by the sum of $125,612.07 and 60% by the sum of $188,418.10. After subtracting the superannuation standing in the wife’s name, this would require a split of $115,051.90. I will round this down to $115,000.00 and make a split in this amount from Mr Capri’s superannuation pursuant to the provisions of section 90XT of the Act.
In what is a difficult set of circumstances, I propose that Mr Capri provide the sum of $125,000.00 in settlement of the wife’s claim for the settlement of matrimonial property within 60 days of the date of these orders. I anticipate that Mr Capri will be able to raise this sum by mortgage secured against the home.
If it is assumed that such a loan attracts 7% interest, the monthly repayments of interest will be around $730.00, which is likely to be far less than residential rental payments. Given Mr Capri’s salary, it seems to me such a rate of payment will be within his means. In addition, in theoretical terms, if he leaves the workforce at 67 years of age, he will have the option of being able to pay out the mortgage with superannuation.
As such, in my view, such an outcome leaves him with the security of a home, which he and X can occupy for the foreseeable future. More significantly, he has the more significant security of a job. Although, his financial future is not rosy, it is, in my view, viable.
At present, Ms Goldwell does not have a job. The outcome proposed gives her cash of $125,000.00, which she can allocate to obtaining some form of accommodation for herself. Certainly, it will give her a security deposit and an extended period of rent in advance, until she has re-established herself, which I hope she is able to do.
I concede, given her age, it cannot be guaranteed that such a sum will be sufficient to enable her to secure mortgage finance, after payment of a housing deposit. Certainly not until she has established a secure employment record, which at this juncture cannot be regarded as being assured.
It also, in my view, leaves her with a significant level of superannuation, which she can accumulate until it crystallises, either with her attaining 65 years of age or retiring permanently from the workforce. As she herself indicated, in order to gain some modicum of financial security, it is necessary that she obtain some form of employment for herself.
At the end of these reasons for judgment, it is apparent to me that there can be no perfect outcome in this case, given the parties straitened circumstances. However, after what I hope is careful consideration, I have come to the conclusion that the outcome I propose represents a just and equitable one.
I have endeavoured to consider the various criteria specified in L & L (supra) in balancing the allocation of superannuation and non-superannuation between the parties, in order to achieve an overall just and equitable outcome. In this context, I am acutely aware that percentages alone are not the determinative factor alone.
Necessarily it must be the quantum of the sums such percentages create. Stepping back and looking at the concrete figures which my deliberations have reached, I am satisfied that I have reached an appropriate level of balance.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and sixty-one (261) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 28 March 2024
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