Cardella & Cardella
[2024] FedCFamC2F 1427
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cardella & Cardella [2024] FedCFamC2F 1427
File number(s): DGC 2929 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 17 October 2024 Catchwords: FAMILY LAW – Property proceedings – long marriage – asset pool in dispute – litigation guardian – 11 years since separation – substantial post-separation contributions – section 75(2) factors – NDIS funding meeting needs – whether proposed division is just and equitable. Legislation: Evidence Act 1995 (Cth) ss 63, 140
Family Law Act 1975 (Cth) ss 75(2), 79(1), 79(4)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r. 8.15
Cases cited: Aleksovski & Aleksovski [1996] FamCA 111
Bevan & Bevan [2013] FamCAFC 11
Candle & Falkner [2021] FedCFamC1A 102
Clauson & Clauson (1995) FLC 92-595
Dickons & Dickons [2012] FamCAFC 154
Fontana & Fontana [2016] FamCAFC 11
Hayton & Bendle [2010] FamCA 592
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Lee Steere & Lee Steere [1985] FamCA 57
Mallet v Mallet (1984) 156 CLR 605
Omacini & Omacini [2005] FamCA 195
Stanford v Stanford [2012] HCA 52
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 81 Date of last submission/s: 4 September 2024 Date of hearing: 3 & 4 September 2024 Place: Dandenong via Microsoft Teams Counsel for the Applicant: Mr Hall Solicitor for the Applicant: Tyler Tipping and Woods Counsel for the Respondent: Mr Moisidis Solicitor for the Respondent: Collective Family Law Group ORDERS
DGC 2929 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CARDELLA
Applicant
AND: MR CARDELLA
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS ON A FINAL BASIS THAT:
1.Within seven (7) days from the date of these Orders, the Applicant wife and Respondent husband shall do all acts and sign all documents as are necessary to authorise Collective Family Law Group to disburse the net sale proceeds and balance deposit of the property situated at B Street, Suburb C, Queensland, held in their Trust Account as follows:
(a)$258,588.45 to the Applicant wife; and
(b)the remainder to the Respondent husband.
2.For the purposes of Order 1 above, the Principals of Collective Family Law Group shall be at liberty to rely upon a sealed copy of these Orders as sufficient authority from the Applicant wife and Respondent husband to disburse the funds held in their Trust Account.
3.Within thirty (30) days from the date of these Orders, the Applicant wife and Respondent husband shall do all acts and sign all documents as are necessary to transfer to the Applicant, at the Applicant wife’s expense, all of the Respondent husband’s right, title and interest in the property situated at D Street, Suburb E in Victoria, mortgage particularly described as Lot … on Plan of Subdivision ….
4.From the date of these Orders, the Applicant wife shall otherwise retain to the exclusion of the Respondent husband all right, title, and interest in:
(a)Motor Vehicle 1 registered in the Applicant wife’s sole name;
(b)Any funds standing in credit in bank accounts held in the Applicant wife's sole name;
(c)The Applicant wife’s superannuation entitlement; and
(d)The furniture, chattels and person effects in the possession and/or control of the Applicant wife.
5.From the date of these Orders, the Respondent husband shall otherwise retain to the exclusion of the Applicant wife all right, title and interest in:
(a)Any funds standing in credit in bank accounts held in the Respondent husband’s sole name; and
(b)The furniture, chattels and personal effects in the possession and/or control of the Respondent husband.
6.From the date of these Orders and unless otherwise specified in this Order, except for the purposes of enforcing payments of any money due under these or any subsequent Orders, each party is solely entitled to the exclusion of the other to all property, including choses in action in the possession of that party, as at the date of these Orders.
7.From the date of these Orders and unless otherwise referred to in these Orders, the Applicant wife is to retain all other liabilities in her sole name and indemnify the Respondent husband and keep the Respondent husband indemnified with respect to those liabilities.
8.From the date of these Orders and unless otherwise referred to in these Orders, the Respondent husband is to retain all other liabilities in his sole name and indemnify the Applicant wife and keep the Applicant wife indemnified with respect to those liabilities.
9.All extant applications be otherwise 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This is a property matter in which the parties were in a long marriage of some 29 years but had been separated for 11 years at the time of the hearing, although they never divorced.
The applicant wife (“the wife”) is seeking approximately 67 per cent of the pool in her favour on the basis of her substantial financial and non-financial contributions, due to the respondent husband (“the husband”) diminishing the asset pool and because she says she has greater future needs. The wife’s case is although the husband has significant health issues, these are being entirely met by the National Disability Insurance Scheme (“the NDIS”).
The husband’s case is that this was a long marriage and that factoring in the myriad of contributions over that time, that the court ought to find that the parties contributions were equal but that due to his health issues and there being no guarantee of ongoing NDIS support, he should receive an adjustment in his favour of 10 per cent.
The husband has been diagnosed with a medical condition and as a result in mid-2024 the NSW Trustee and Guardian (“the NSW Trustee”) were appointed by the NSW Civil and Administrative Tribunal to manage his financial affairs. On 27 June 2024, the court appointed the NSW Trustee to be the husband’s litigation guardian in this matter.
BRIEF BACKGROUND
The parties married in 1984.
The parties have two children, Mr F born in 1988, and Ms G born in 1991.
The parties separated in approximately 2013.
At the time of separation, the parties were living in a home they owned at B Street, Suburb C, Queensland (“the Queensland property”). The wife moved to another property owned by the parties at D Street, Suburb E, Victoria (“the Victorian property”), in which the adult children were living. The husband remained in the Queensland property. The parties came to an agreement that the husband would pay the mortgage and outgoings on the Queensland property and the wife would do the same for the Victorian property.
On 9 September 2022, the wife filed her application for property division in this court.
It is unclear why neither party sought to formally finalise their property before 2022 or to apply for a divorce.
DOCUMENTS RELIED UPON
The wife relied upon the following documents:
(a)her outline of case filed 29 August 2024;
(b)her amended application for final orders filed 30 August 2024;
(c)her trial affidavit filed 30 August 2024; and
(d)her financial statement filed 30 August 2024.
The husband relied upon the following documents:
(a)his outline of case filed 27 August 2024;
(b)his further amended response filed 20 August 2024;
(c)the affidavit of Ms H, the husband’s litigation guardian, filed 20 August 2024;
(d)his financial statement filed 20 August 2024;
(e)the affidavit of Ms H filed 24 June 2024; and
(f)the reports attached to the affidavit of Ms J, the husband’s solicitor, filed 24 June 2024.
In addition, the following exhibits were tendered in this matter:
(a)H1 – the report of the husband prepared by Dr K dated 24 April 2024;
(b)W1 – the husband’s NDIS plan for period early 2024 to early 2025; and
(c)W2 – the wife’s written closing submissions.
THE EVIDENCE
The final hearing of this matter was conducted over two days, being 3 and 4 September 2024. Although the matter was conducted over Microsoft Teams, and there was the occasional technical glitch, I am satisfied that this did not interfere with the fair conduct of the trial.
In terms of evidence, I have taken into account the contents of each of the affidavits filed by the parties. However, I have not had regard to the contents of any subpoenaed material, information provided by external agencies or documents in tender bundles, court books or otherwise emailed to the court, which were not separately tendered into evidence as exhibits. As the court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53]:
The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.
In determining these proceedings, I have had regard to all the evidence to the extent that it was relevant to each parties’ case, although it is not possible to include every aspect of the parties’ evidence in these reasons for judgment. However, if a particular fact or issue is not mentioned in these reasons, it does not mean that I have failed to consider it. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The wife gave evidence in this matter as well as Ms H, on behalf of the NSW trustee. Ms H prepared her affidavit and financial statement based on documentary evidence such as bank statements and the like but was otherwise unable to give direct evidence about what occurred during the relationship. Furthermore, counsel for the husband was of the view that he could not use an earlier affidavit filed by the husband as the basis for cross-examination because he could not get instructions confirming the contents were accurate. As such, the wife’s evidence about what occurred during the relationship was largely unchallenged.
Nonetheless, this does not mean that the court must accept the wife’s evidence unreservedly. The court may still reject such evidence if it is contradicted by documentary evidence, is inconsistent or otherwise inherently unreliable.
Counsel for the wife submitted that I ought to find that she gave her evidence in a straightforward and credible manner and that she was a witness of truth. However, my impression of the wife was that her evidence was coloured by the outcome she sought to achieve. For example, it came to light during her evidence that periods she referred to as separation during the relationship were merely periods of physical separation due to the husband’s work commitments. The wife also sought to minimise any contribution made by the husband during the 29 year relationship, both financially and with respect to the children.
In terms of Ms H, she was appointed as a litigation guardian in a professional capacity and gave her evidence in a straightforward fashion and to her credit, readily conceded the limits of her actual knowledge and the flaws that arose from attempting to reconstruct the asset pool from the material available.
THE LAW
What are the relevant legal principles when determining property division?
The relevant legal principles governing any application for property settlement are set out in Part VIII of the Family Law Act 1975 (Cth) (“the Act”). Section 79(1) of the Act authorises the court to make such orders between the parties as it considers appropriate. Section 79(2) of the Act makes it clear that the court cannot make an order for property settlement unless it is just and equitable to do so.
Earlier Full Court authorities have identified a four-step process that can assist the court in reaching a just and equitable decision: see Lee Steere & Lee Steere [1985] FamCA 57; Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395; and Omacini & Omacini [2005] FamCA 195 (“Omacini”).
The court must identify the parties’ legal and equitable interests in the assets arising from their relationship, together with their liabilities. The court should then assess each party’s contributions during the relationship in accordance with sections 79(4)(a), 79(4)(b) and 79(4)(c) of the Act.
The third step requires the court to consider the range of factors set out in sections 79(4)(d), 79(4)(e), 79(4)(f) and 79(4)(g) of the Act, including the future needs factors identified in section 75(2) of the Act. The court should also then consider its findings, and, if the court is satisfied that it is just and equitable to do so, make orders adjusting the parties’ property interests.
The Full Court in Bevan & Bevan [2013] FamCAFC 11, in the joint judgment of Brant CJ and Thackray J, reminded trial judges that the four-step process is not legislatively mandated, rather, it provides a structured process towards the ultimate requirement, which is to ensure that a property settlement order is only made when the court is satisfied that it is just and equitable to do so, and that the terms of the order itself are also just and equitable.
THE ASSET POOL
In the written submissions prepared on behalf of the wife, the wife asserted the current asset pool to be as follows:
The Queensland property- net sale proceeds $692,387.90 The Victorian property $440,000.00 Husband’s litigation loan repaid from FMH proceeds (admitted) $32,647.26 Wife’s vehicle (purchased in 2018) $7,000.00 Addbacks sought by the wife FMH arrears of rates discharged from sale proceeds $13,004.00 FMH remedial costs to make property saleable (discharged from sale of proceeds): Replacement of carpets $5,850.00 “Bond clean” $1,840.00 Exterior house wash $1,375.00 Total $1,194,104.16 Superannuation Husband’s superannuation entitlements Nil Wife’s superannuation entitlements $14,820.00 Wife’s pension Not valued
In oral submissions, counsel for the wife conceded the value of the wife’s pension as $177,000.
Counsel for the husband largely agreed with this asset pool save for the add backs and conceded that the wife’s vehicle ought to be removed, as it was purchased post-separation.
Add backs
The authorities have made it clear that addbacks of notional property should be the exception rather than the rule.
The Full Court in Candle &Falkner [2021] FedCFamC1A 102 at [52] and further at [54] – [55]:
The treatment of property already distributed and exhausted prior to trial, usually called “add backs”, has been the subject of many authorities in this Court. In Omacini & Omacini (2005) FLC 93-218 at [30] (“Omacini”), following Kowaliw & Kowaliw (1981) FLC 91-092 and Townsend & Townsend (1995) FLC 92-569 (“Townsend”), the Full Court held that add backs fall into “three clear categories”: where the parties have expended money on legal fees, where there has been a premature distribution of matrimonial assets, and “waste” or wanton, negligent, or reckless dissipation of assets. This latter category indicates that the nature of the expenditure of post-separation or premature distributions can be relevant to the exercise of discretion to add back.
…
With respect to the second category, in Trevi & Trevi (2018) FLC 93-858 at [28]–[30] the Full Court (Murphy J; Alstergren DCJ (as he then was) and Kent J agreeing) explained the decision in Omacini as follows:
28. However, the Full Court also made it clear that an add back does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
29. The fundamental precept that add backs are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of add back.
30. Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
(Footnotes omitted)
Murphy J continued at [47]:
The essence of a claim for add backs is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequent to the assessment of contributions, credited to the spending party as part of the value of their assessed entitlements. Doing so does not offend what was emphasised by the High Court [in Stanford]. Adding back does not seek to create property interests that do not exist. Rather, doing so emphasises that satisfying the respective requirements of ss 79(2) and (4) of the Act to do justice and equity can require an “accounting” or “balance sheet” exercise for the purposes of s 79(2) and (4), so as to include the value of the dissipated property or expended sums within the total value of the parties’ existing interests in property, and to credit the value of same against the assessed entitlement of the dissipating or spending party.
(Footnotes omitted)
The wife sought addbacks related to the sale of the Queensland property on the basis that the husband had been living there since separation and that it was his responsibility to maintain it in a reasonable condition. The wife argued that they had to replace the carpets, pointing to evidence of black stains on the carpet that could not be removed, as well as having to perform a substantial clean inside and out of the home to ready it for sale.
Nonetheless, there was no evidence as to the state of the property at separation and given it had been 11 years since, general wear and tear was to be expected. The wife also had the benefit of the house being sold with brand new carpets. I am not of the view that the cost of the carpets or a deep clean for the purpose of the sale falls into any of the categories identified in the aforementioned authorities.
However, the wife’s unchallenged evidence was that the parties agreed that the husband would pay the routine outgoings such as rates, and, given the husband had the benefit of living in the property for those years, this agreement was more than reasonable. Accordingly, I propose to add back the rates of the Queensland property to the asset pool.
As such I find the asset pool in this matter, for division between the parties to be as follows:
The Queensland property – net sale proceeds $692,387.90 The Victorian property $440,000.00 Addbacks Husband’s litigation loan repaid from the Queensland property proceeds $32,647.26 Queensland property rates $13,004.00 Total $1,178,039.16 Superannuation Husband’s superannuation entitlements Nil Wife’s superannuation entitlements $14,820.00 Wife’s pension $177,000.00 Total $1,369,859.16 IS IT JUST AND EQUITABLE AN ORDER BE MADE?
Having identified the parties’ assets and liabilities, and prior to making any order pursuant to section 79 of the Act, I must first be satisfied that it is just and equitable that any order be made pursuant to section 79(2) of the Act, as per the High Court decision of Stanford v Stanford [2012] HCA 52 (“Stanford”). There is no presumption that the parties’ entitlements in the existing asset pool should be altered, or that one party has the right to have the property of the parties divided between them. In these proceedings, although both of the parties urge the court that it is just and equitable that orders be made to alter their interests in their property, the existence of such an agreement is not sufficient, the court must still be satisfied that such orders are indeed just and equitable in all the circumstances of the case.
In Stanford, their Honours, in the joint judgment of French CJ, Hayne, Kiefel and Bell JJ, considered the expression “just and equitable” at [36] and noted that it:
… 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.
Furthermore, the court must not conflate the determination pursuant to section 79(2) of the Act with its determination pursuant to section 79(4) of the Act.
In regard to section 79(2) both parties agree that it would be just and equitable to make an order for property division. In circumstances where their finances are intermingled, they have property in joint names, and they both argue they have made financial and nonfinancial contributions to the joint property; I find that it is just and equitable to make an order for property division. As to what order is just and equitable, this will ultimately be determined after the considerations in section 79(4) of the Act.
SECTION 79(4) FACTORS
Section 79(4) of the Act states as follows:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last - mentioned property, whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last - mentioned property, whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)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; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
(Emphasis added)
In determining what orders are to be made pursuant to section 79 of the Act, and as set out in Aleksovski & Aleksovski [1996] FamCA 111 (“Aleksovski”) at [50], I must:
…weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.
Pursuant to the High Court case of Mallet v Mallet (1984) 156 CLR 605, there is no presumption of equality of division of property, not even in a long relationship, and in each case the contributions of each party must be assessed on their own facts.
In Aleksovski at [90] his Honour Kay J said:
The Judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital… What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship.
Those observations were quoted with approval by the Full Court in Dickons & Dickons [2012] FamCAFC 154 (“Dickons”). In Dickons, at [21], their Honours, Bryant CJ, Faulks and Murphy JJ said that “…the requirements of the section are met by approaching the assessment of contributions holistically…” by analysing the contributions of all types, and by reference to the particular circumstances of that particular relationship.
The assessment of contributions does not require “over-zealous” attention to the ascertainment of contributions, and the process of the court as required by section 79 of the Act “…is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise” as set out in Dickons at [25].
CONTRIBUTIONS
Financial contributions to the property of the marriage (direct and indirect)
Neither of the parties had any assets of significance at the commencement of the relationship.
The wife’s case is that there were a number of periods when the husband was unemployed or was rendered unsuitable for his employment or “let go” from employment. However, she conceded under cross-examination that this was only for a few months at any given time. In addition, the evidence shows that he was employed by L Company between 1992 and 1999, by M Company between 1999 and 2000, by N Company between 2001 and 2003, by O Company between 2003 to 2009 and thereafter by P Company until 2013. It is evident from this that the husband was in fact employed for long stretches of time.
It is unclear on the wife’s evidence exactly what periods she was employed for. She says that she got a job as an educator after the birth of Mr F, although does not say whether it was full time or part time. She further says that in 1999, she was forced to find work which suggests she was not working in paid employment prior to that.
In terms of financial contributions to the property, it seems for the most part that during the relationship the husband made the direct financial contribution, and the wife made an indirect financial contribution through being the primary caregiver and homemaker which enabled the husband to go to work.
The wife also seeks to argue that the husband made a negative contribution to the pool by withdrawing $25,000 in 2010 and using same for his own benefit. She stresses that this is not denied by the husband. However, the difficulty with this is that there were likely to be a myriad of transactions during the relationship which arguably were for the benefit of one party alone and it would not be just in my view to isolate this one transaction in a 29 year relationship.
The wife also argues that she made a far superior financial contribution post-separation to the assets of the marriage. This included the following:
·paying off the entire mortgage of the Victorian property which was $480,000 at the time of separation;
·paying half of the mortgage on the Queensland property in which the husband resided from separation until 2018, by virtue of the fact that the husband used his superannuation to make the payments in that time from superannuation that would otherwise be in the pool;
·paying the entire mortgage repayments on behalf of the husband on the Queensland property from her own income between 2019 and 2021; and
·making contribution to her superannuation such that it increased by about $100,000.
Contributions to the welfare of the family
The wife’s evidence is that she was the primary caregiver and homemaker and that at various times the husband relocated for work, and she was left with the sole task of caring for the children. I accept this was a substantial contribution on her behalf.
Whilst the wife’s case is that the husband made little contribution to the welfare of the family, her evidence suggests that this was not always the case throughout the relationship. Indeed, she says that in or around mid-2000 she began having concerns about his “demeanour and attitude to the children,” which suggests that prior to that he had been more involved. She is also critical of him for missing important occasions for the children, such as graduations, but it is unclear to what extent this was due to the husband being required to travel for work. Whilst the wife now seeks to be critical of the husband, and he is not in a position to respond, the parties made a joint decision as a couple for the husband to take positions in various locations and the family received the financial benefit of that situation.
The wife’s evidence is that she supported the adult children when they moved to Victoria in 2010 and 2012 and that the husband did not contribute in any way. However, she provides no details of this support save to talk in generalities. For example, the wife says in 2010 that Mr F had surgery and that she was “his sole caregiver during his recovery” however, I do not know what care she provided or what care he required. So too, when the wife says that in 2012 Mr F was offered a place to study overseas for six months she remained “solely responsible for financially and emotionally supporting him on the trip,” it is hard to assess the weight of this contribution without further details.
Likewise, whilst I accept that the wife paid the mortgage on the Victorian property and thus put a roof over the adult children’s heads, it is not known what incomes they earned and what they were contributing or capable of contributing back to the household.
Analysis of contributions
Factoring in the myriad of contributions over the length of this relationship, I find the wife made the overwhelming contributions, both financially and non-financially, to the property of the parties and to the welfare of the children.
I assess the contribution of the wife would justify a 15 per cent adjustment of the pool in the wife’s favour.
I must now consider the parties’ future needs.
SECTION 75(2) FACTORS
Section 75(2) of the Act sets out the following factors to be taken into consideration when assessing their “future needs”:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subjection to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabitating with another person the financial circumstances relation to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Although I have considered each of those factors, I shall only make reference to those which have formed part of my decision in this matter.
Section 75(2)(a) – matters such as age and health
Both parties are 64 years of age.
The husband has significant health issues however there is no evidence as to his life expectancy and the authorities have warned against making any findings about life expectancy without clear expert evidence, see for example Fontana & Fontana [2016] FamCAFC 11.
Furthermore, whilst the husband has higher needs than the wife, they are currently being met by the NDIS. The difficulty however is that this is a scheme that requires the husband to re‑apply each year and being a government scheme there are no guarantees that it will continue to exist indefinitely.
Section 75(2)(b) – income earning capacity, financial resources etc
The wife currently works as an educator and earns about $93,600 per year.
The husband is living off government benefits.
However, I note the wife is nearing retirement age and wishes to retire in the next few years.
If the assets were treated as one pool and divided 65 percent in favour of the wife and 35 percent to the husband, the husband would receive $479,451 less the loan and rate addbacks of $45,651.26, being a payment of $433,799.Whilst the husband would not have any real property, the payment to him would likely support him in obtaining accommodation if his current placement arranged by NDIS were to cease.
Section 75(2)(d) and (e) – responsibilities to support others
There is no evidence that either party has a legal or moral duty to support others.
Whilst the wife continues to live with the adult children, there is no evidence they are unable to support themselves pursuant to cases such as Hayton & Bendle [2010] FamCA 592.
Section 75(2)(f) – pensions, allowances or benefits
The husband has now exhausted all of his superannuation and is reliant on NDIS and other government benefits.
The wife has some superannuation, but it is unlikely to be sufficient to support herself throughout her retirement and as such she too is likely to be reliant on government benefits.
ANALYSIS
Whilst the husband has higher needs, they are currently being met by NDIS. Whilst there are of course no guarantees this support will continue, if it were to cease the husband would have a substantial lump sum from which to fund other supported accommodation.
Based on the evidence before the court I find that a further adjustment is not warranted pursuant to section 75(2) of the Act.
DETERMINATION
On this assessment the asset pool would be divided 65 per cent in favour of the wife.
I find that given the parties ages and that they are either in retirement or nearing retirement, it is appropriate to treat the pool as one pool and to apply the same percentage across the board.
Based on the pool of $1,369,859.16, the wife would receive $890,408.45 by way of assets.
As the wife is to retain the following:
The Victorian property $440,000 Wife’s superannuation entitlements $14,820 Wife’s pension $177,000 Total $631,820
The wife should therefore receive from the proceeds of sale a payment of $258,588.45.
Is the proposed division just and equitable?
Pursuant to the authority of Clauson & Clauson (1995) FLC 92-595 the court must stand back and consider the division of the assets in real terms. In this case a 15 per cent adjustment results in a 30 per cent differential between the parties or in dollar terms $410,957.75.
Given the wife’s superior contributions I am satisfied that this is indeed a just and equitable division of the asset pool.
For all the aforementioned reasons I make the orders as set out at the commencement of this judgment herein.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins.
Associate:
Dated: 17 October 2024
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