CLANCY & SAWYER
[2014] FCCA 179
•12 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLANCY & SAWYER | [2014] FCCA 179 |
| Catchwords: FAMILY LAW – Property proceedings – relationship and marriage of ten years in duration – relationship produced two children – applicant wife has two children from earlier relationship who formed part of relevant family – parties separated for approximately four years – pool of property potentially available to be distributed extremely modest – assessment of contributions – treatment of add backs – considerations of justice and equity – where section 75(2) factors overwhelmingly favour one party and the asset pool is small considerations of justice and equity dictate no order altering property orders should be made. |
| Legislation: Family Law Act 1975, ss.75(2); 79(1); 79(2); 79(4) |
| Sawyer & Sawyer [2010] FMCAfam 329 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 Bevan & Bevan [2013] FamCAFC 116 Stanford v Stanford [2012] HCA 52 Watson & Ling [2013] FamCA 57 Mallet v Mallet (1984) 156 CLR 605 Ferguson & Ferguson (1978) FLC 90-500 Waters & Jurek (1995) FLC 92-635 Robb & Robb (1995) FLC 92-555 Clauson & Clauson (1995) FLC 92-595 |
| Applicant: | MS CLANCY |
| Respondent: | MR SAWYER |
| File Number: | ADC 427 of 2010 |
| Judgment of: | Judge Brown |
| Hearing date: | 31 January 2014 |
| Date of Last Submission: | 31 January 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 12 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | In Person |
ORDERS
All applications in respect of property matters are dismissed.
The order for costs made in the husband’s favour on 30 July 2013 be discharged.
Each party retain all items of property, including superannuation standing in their respective names, free of any claim from the other.
IT IS NOTED that publication of this judgment under the pseudonym Clancy & Sawyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 427 of 2010
| MS CLANCY |
Applicant
And
| MR SAWYER |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to property proceedings, following protracted and bitterly contested parenting proceedings, which then in turn led to contravention proceedings and then further interim applications.
The parenting proceedings have now resolved, after three family reports; the appointment of an independent children’s lawyer; numerous interim hearings; and a five day trial.
The parties, particularly the husband, remain emotionally and financially exhausted, at the end of this process, which has consumed four years and many thousands of dollars.
The applicant, in the property proceedings, is Ms Clancy “the wife”. The respondent, in the case is Mr Sawyer “the husband”.
The parties lived together for about ten years. They have now been separated for around four years. It is only fairly recently that issues relating to property settlement have been raised. Due to the rigour and expense of the earlier children’s proceedings, neither party can now afford legal representation.
It is common ground between the parties that any pool of assets available to be divided between them is modest, consisting of the remaining equity in their former family home, at [T], and the husband’s superannuation.
However, at present both Mr Sawyer and Ms Clancy find themselves in straitened financial circumstances. Accordingly, the outcome of the case has great significance for each of them.
The earlier parenting case touched upon four children. They are [W] born [in] 1996; [X] born [in] 2000; [Y] born [in] 2002; and [Z] born [in] 2005.
[W] is recently an adult. Her father is Mr M. Mr M has never taken part in any proceedings between the parties, although he did in an earlier case involving the wife, which has created financial implications in the current case. [W] is currently living with the wife.
[X]’s father is Mr R. Mr R and Ms Clancy lived together briefly, prior to [X]’s birth. When [X] was a baby, Ms Clancy began to live with Mr Sawyer. All concerned agree that the husband has been [X]’s father, for all practical purposes, throughout her childhood.
Mr R took part in the earlier parenting proceedings. He had become estranged from [X] and wished to re-connect with her. Mr R has a poor view of the wife, whom he regards as dishonest and manipulative.
He supported Mr Sawyer during the earlier proceedings. At one stage, [X] had a negative view of her mother and chose to live with Mr Sawyer. However, at present, she is living with Ms Clancy.
The parties are the parents of [Y] and [Z]. Following judgment in the final hearing, which was delivered on 10 August 2011, it was ordered that [X], [Y] and [Z] were to live with the husband and spend regular periods of time with the wife.[1]
[1] See Sawyer & Sawyer [2011] FMCAfam 780
These orders broke down in early 2012, with the husband commencing recovery proceedings and the wife alleging Mr Sawyer had contravened the earlier orders.
Ultimately, the wife withdrew the contravention proceedings, after an extensive amount of evidence had been canvassed. The husband sought costs, which were granted in the sum of $7,888.00. The costs have never been paid.
In the midst of the second round of proceedings, regarding care arrangements for [X], [Y] and [Z], the wife commenced these property proceedings, on 22 February 2012. The necessary supporting affidavit material was filed two months later in mid-April.
The children’s proceedings centred on allegations of neglect and abuse and controversies surrounding what were the actual views of the children, regarding their living arrangements. These proceedings brought relations between the parties, already abysmal, to new lows.
At this stage, it was Ms Clancy’s position that the former family home, located at Property T, [T], should be sold and she should receive sixty per cent of the net proceeds and all other assets. Mr Sawyer has lived in the property since the parties’ separated and regards it as his home. It has also been the children’s family home, particularly [Y] and [Z], for many years.
Mr Sawyer responded to this application on 22 May 2012. It is his position that the parties matrimonial estate should be divided 85/15 per cent in his favour. The parties were not able to resolve the property issues, between them, at a court ordered conciliation conference held on 16 July 2012. As a consequence, the matter has proceeded to a final hearing.
In 2013, with the assistance of the independent children’s lawyer, the parties agreed to return to the court orders of August 2011, in respect of arrangements for the children, other than that [X] was to spend time with her mother, subject to her wishes.
Since that time, it is common ground between the parties that [X] has reappraised her view of her mother and elected to live with her. However, the formal order has not been changed. [X] is now fourteen and is self-willed. It is implicit in both parties recent conduct that, in these circumstances, they can see no useful purpose in there being any formal orders in respect of [X].
So far as [Y] and [Z] are concerned, they continue to live with the husband and spend alternate weekends and one half of each school holiday with the wife. It is my impression that there is now an uneasy cease fire between the parties, so far as arrangements for [Y] and [Z]’s care are concerned.
The parties met in October of 2000. The husband moved in with the wife, [W] and [X] in November of 2000. At the time, Ms Clancy was living in rented accommodation in [omitted].
She had some part-time work as a [omitted], but was also receiving social security, as a consequence of her responsibility to care for [W], then aged around four and [X] aged ten months.
Mr Sawyer is a [omitted] by occupation. He completed his apprenticeship in Adelaide but at the time he met Ms Clancy had recently returned from working in Queensland. At the time, he had modest savings and owned a motor vehicle. Ms Clancy owned the contents of her home and a motor vehicle.
Accordingly, the parties began their relationship in a similar financial position. Neither of them brought assets in of a significant value. They married [in] 2003. They are not, as yet, divorced.
The parties finally separated in the period 2009/2010, when the wife and the four children concerned went to live in the [B] area. It was Mr Sawyer’s understanding was that Ms Clancy was intending to return to [T], after a holiday in [B]. However, Ms Clancy wished to remain in New South Wales.
This led to Mr Sawyer commencing proceedings in the court, which led to an interim hearing centred on issues to do with relocation pending a more exhaustive inquiry into the best interests of the children. Ultimately, Ms Clancy was directed to return the children to [T].[2] Accordingly, the parties have been in litigation, with one another, in one form or another, since 8 February 2010. Mr R later entered the proceedings and was a party at the final hearing.
[2] See Sawyer & Sawyer [2010] FMCAfam 329
During the parties' marriage, it is agreed between them, that they divided their family responsibilities along conventional lines. The husband was the family’s main financial provider, while the wife was engaged in home duties, with some part-time work, from time to time.
During the majority of the marriage, Mr Sawyer was employed as a [omitted]. He worked for this company for seven years. He is a self-described family man, who does not like being away from home overnight or for long periods. Whilst with [company omitted], he was a local [omitted] in the Adelaide area, who occasionally [omitted].
Mr Sawyer acknowledges that he is not the best businessman in the world. When he met the wife, he was an undischarged bankrupt, as a consequence of a failed venture into a [omitted]. As a local [omitted], his wage was modest.
With four children under ten at home and only one regular wage, it was often a financial struggle for the parties to survive. In addition, the parties found it difficult to find appropriate accommodation to rent for their family.
It is Mr Sawyer’s evidence, which I accept, that a family of six, with a number of pets, was not an attractive prospect for potential landlords. At one time, the family found itself living in a tent in the backyard of the wife’s mother’s home (hereinafter referred to as Mrs C).
Mrs C gave evidence in the 2011 proceedings, on the husband’s behalf. She supported his application for the children to live predominantly with the husband. She was also sympathetic to Mr R. For readily understandable reasons, this exacerbated the ill will between her and her daughter. Mrs C remains currently estranged from Ms Clancy. Mrs C did not give evidence in the property proceedings.
However, it is common ground between the parties, that Mrs C advanced the sum of between $7,000.00 and $10,000.00 to them, in mid-2006, to enable the purchase of the former family home. Mrs C secured the sum by extending the mortgage on her home. She did so because she was concerned about the parlous accommodation situation surrounding her grandchildren.
From the wife’s perspective, this central contribution, which enabled the purchase of the [T] property in the first place, is attributable solely to her. In any event, it is her case that Mrs C would like to be re-paid at some stage in the future. Mr Sawyer believes that Mrs C wished to benefit the family as a whole, including him and the children, by her gesture of generosity.
There is a lack of clarity about what was the exact amount advanced by Mrs C. The parties agree that the arrangement in question was not formalised by the production of any document. Mr Sawyer certainly seems to believe that he has a moral obligation to repay the sum, if he is ever able to do so.
In the absence of evidence from Mrs C, it is impossible to ascertain what her attitude toward the money is and, in particular, whether she has any expectation that she will ever be repaid or regarded the sum advanced as being, in actuality, a gift.
The tenor of Mr Sawyer’s evidence is that he regards Ms Clancy as a dishonest and manipulative person. Certainly, given the palpable level of dislike emanating from Ms Clancy for her mother, evinced during the earlier proceedings and my own assessment of the mother, I believe the chances of Ms Clancy voluntarily repaying any sum of money whatsoever, to her mother, are extremely remote.
The parties themselves were not able to provide any finance to purchase the Property T, [T] property themselves, as they had no savings whatsoever. By necessary implication, they were also viewed as being a poor credit risk by conventional lenders, as a consequence of Mr Sawyer’s earlier bankruptcy and their lack of asset backing.
The [T] property was purchased for $157,000.00, using the advance from Mrs C as a deposit. As Mr Sawyer was a low income earner, he was able to obtain finance from HomeStart. The property was registered in Mr Sawyer’s name alone. This was advantageous so far as the calculation as the relevant mortgage repayments were concerned.
These repayments have ranged between $250.00 and $270.00 per week. Ms Clancy has made no direct financial contribution, towards the mortgage, since the parties separated. Since her return to Adelaide, in early 2010, the wife has lived in rented accommodation, in the northern suburbs of Adelaide.
The parties have not obtained a recent formal valuation of the property but agree that it is worth around $210,000.00 at present. The most recent statement, from HomeStart, indicates a mortgage debt of $146,442.31, as at 5 January 2014. The loan statement indicates that around about ten dishonour fees have been incurred since October 2012. These relate to late payments or failed repayments. It is easy to deduce that they indicate financial strain, in Mr Sawyer’s household.
Prior to and during the parties marriage, Ms Clancy did not accumulate superannuation, as she was mainly engaged in home duties and when she did work, she was paid cash in hand. Recently (June 2012) she has commenced employment as a [omitted], which has enabled her to accumulate an extremely modest amount of superannuation.
Prior to separation, Mr Sawyer had accumulated superannuation in two separate funds – [S] Super and [C]. As at 24 October 2012, he held $10,116.05 in [S] Super and $11,704.61 in the [C] fund.
It is Mr Sawyer’s evidence, which I accept, that he has accessed the [S] Super under hardship provisions. In July of 2013, a fire broke out in the kitchen of the [T] home. The source of the fire was [Z]’s remote controlled car, which was being charged on the table, whilst the family was out.
The fire took hold on a rubber table cover and did considerable damage to the kitchen and other parts of the house. Mr Sawyer believed that he had insurance cover but this proved not to be the case. Accordingly, in order to make the home habitable, he sought the release of his superannuation, on hardship grounds.
After payment of relevant fees, a sum of around $7,300.00 was released. The actual cost of the repairs was $10,787.00. Mr Sawyer borrowed the difference from his parents, who have also lent him significant sums of money to finance the earlier proceedings between him and Ms Clancy.
During the course of the hearing, I asked Mr Sawyer what he believed was the extent of his legal fees. Unbidden, Mr S, the husband’s father, told me, from the body of the court, that the amount was $113,000.00. Mr S gave evidence in the earlier proceedings. To say there is considerable bitterness between the senior members of the Sawyer family and Ms Clancy would be a gross understatement.
Mr S is a self-employed [omitted]. His wife is retired. They are comfortably off, but cannot be described as being wealthy. Accordingly, the financial burden of these proceedings has been heavy indeed. They have also had a significant psychological cost for Mr Sawyer.
It is Mr Sawyer’s evidence that he has suffered depression and anxiety, since the early part of 2010, which coincides with the commencement of these proceedings. He ceased his employment with [omitted] in July of 2010 and was placed on Centrelink payments. It is only recently, in December 2013, that he has obtained employment as a [omitted], at [T]. At present his position is casual and the work seasonal.
The extent of any equity in the [T] property, for the purposes of these proceedings, is complicated by a further factor. On 24 January 2007, the Legal Services Commission of South Australia registered a charge, on the relevant title, to secure the repayment of legal costs advanced by the Commission in the sum of $15,001.60.
These fees were incurred in proceedings between Ms Clancy and
Mr M, which were concerned with arrangements for [W]’s care. In 2005 or thereabout, Mr Sawyer and Ms Clancy investigated the possibility of moving to [B], where Ms Clancy grew up and has family.
Mr M objected to [W] leaving the Adelaide metropolitan area and sought to restrain the move. He initiated proceedings to this end. Ultimately the proceedings were compromised on the basis that [W] would continue to live in Adelaide with her mother. Ms Clancy was granted legal aid for the proceedings
The relevant statement, of what the Legal Services Commission expended on the case, is addressed to the wife. At first blush, it would appear to be she alone, who formally incurred the fees in question. However, both Ms Clancy and Mr Sawyer have signed the consent to the statutory charge. No doubt, this was necessary as
Mr Sawyer was the sole registered proprietor of the property in question.
The monies are to be repaid if the property is sold; transferred to a new owner; the property is re-financed; or the registered proprietor dies. No formal representations have been made to the Director of the Legal Services Commission regarding the possible withdrawal of the charge, given the parties’ very different circumstances now and the hardship it may cause to Mr Sawyer, if he ever wishes to sell the property or re-finance.
In any event, from the husband’s perspective, the charge in favour of the Legal Services Commission arises from a debt incurred by
Ms Clancy and she should be liable for it in the current proceedings. From the wife’s perspective, as she and Mr Sawyer wished to move to [B], as a family, in 2005, the debt should be regarded as a joint matrimonial one.
Mr Sawyer, a somewhat laconic man by disposition, acknowledged, in his evidence, that there was “some talk” of the parties moving to [B]. However, in his initiating affidavit, Mr Sawyer deposes as follows:
“The wife initiated proceedings regarding her daughter [W] against her father for child molesting which was proved to be false and thrown out of court due to the mother coaching her daughter.” [3]
[3] See Husband’s affidavit filed 16 May 2012 at paragraph 28
In her originating affidavit, Ms Clancy contends that Mr Sawyer has retained most of the parties’ furniture and effects at separation, leaving her with “minimal furniture and clothing”. [4] Mr Sawyer refutes this suggestion. In any event, the parties did not choose to concentrate on this aspect of the case, in the trial before me, and there is no formal evidence of the value of any relevant items of property.
[4] See Wife’s affidavit filed 17 April 2012 at paragraph 14
In her most recent affidavit, Ms Clancy expressed a desire to have a freezer located in the shed at the [T] property and to access the shed to obtain personal items relating to [W] and [X]. Mr Sawyer says Ms Clancy is welcome to it, but believes it is defective. Following the hearing, arrangements were made, formalised by order, for [W] to attend at the shed to collect her possessions, at her expense.
Accordingly the equity in the [T] property, depending on how the charge in favour of the Legal Services Commission and any monies owing to Mrs C are approached, is somewhere between $38,000.00 and $40,000.00. The superannuation is less than $12,000.00. The potential asset pool is thus around $50,000.00.
However, I am concerned that this calculation may be optimistic. In the absence of a formal valuation of the property, I am troubled by the value ascribed to it by the parties, notwithstanding their agreement about it. Mr Sawyer’s evidence was that the repairs done after the fire were the bare minimum he could afford. The impression I have is that the home is not currently in a good state of repair.
However, the property is Mr Sawyer, [Y] and [Z]’s home and has been for many years. They have pets, including a pig and sheep, on the property, which is in a semi-rural area. It would be very difficult for Mr Sawyer to move. If the property was to be sold, there would be selling costs associated with the sale, which would further diminish the uncertain level of equity in it.
In addition, at present, it is difficult to see how Mr Sawyer could easily borrow any additional funds to be secured against the property. He has been unemployed for a significant number of recent years. His current employment is both casual and seasonal and modestly paid. He has a history of bankruptcy. He is significantly in debt to his parents.
Although Mr Sawyer does not put it formally in this way, it appears to be his case that it would be fundamentally unjust and unfair to him, if Ms Clancy was able to either compel the sale of the [T] property or was adjudged entitled to receive any payment of cash from him.
In addition, Mr Sawyer asserts that, on separation, Ms Clancy left him with responsibility to pay all of the parties’ jointly incurred marital debts, which amount to a sum in excess of $11,000.00. More particularly, he asserts that she, in effect, benefitted from a premature distribution of marital assets in her favour, as a result of her deceptive and dishonest conduct, in two regards.
Firstly, she withdrew the sum of $3,500.00 from his bank account, which she accessed, without his authorisation, through the internet. Secondly, he asserts that she made a false insurance claim in respect of a motor vehicle, enabling her to keep the proceeds of the claim. He also asserts that she retained two other motor vehicles, on separation, which she has retained.
It is Mr Sawyer’s position, if these additional amounts are taken into account, Ms Clancy has already received an adequate distribution of property in her favour and therefore her claim should be dismissed.
These proceedings are intended to resolve the various disputes between the parties and, as far as possible, finalise their financial relationship with one another, so that each may move on with the remainder of their lives.
The Legal Principles Applicable
Part VIII of the Family Law Act 1975 is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of the Act.
Pursuant to section 79(1) the court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in section 4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to section 79(2) the court is actively prevented from making such an order 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 prohibitory words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a court is to make an order altering marital property interests. It provides seven matters [in paragraphs (a) – (g)] to be considered, as relevant.
Paragraphs (a); (b); and (c); categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the court to take into effect of any order upon the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the court to consider a list of matters contained in section 75(2), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and level of needs.
Finally, Paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until recently, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled, as it required the application of a preferred approach. This approach entailed a four step process, described by the Full Court as follows:
·identification and valuation of the property of the parties;
·identification and evaluation of contributions to the property (including property no longer owned by the parties) – the contribution phase – section 79(4) (a) to (c);
·identification and assessment of the various matters in section 79(4)(d) to (g) including to the extent they are relevant, the matters in section 75(2) – the prospective needs phase;
·considerations of justice and equity.[5]
[5] See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39] and Bevan & Bevan [2013] FamCAFC 116 at [60]
The general applicability of this four step process has been recast, to some extent, in the light of what has been said recently by the High Court in the matter of Stanford v Stanford. [6] In the case, the majority stated that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
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.” [7]
[6] Stanford v Stanford [2012] HCA 52
[7] Ibid at [35] – [36]
In Stanton the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of section 79(2), regarding the ultimate justice and equity of making orders altering proprietorial interests, will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. The majority said as follows:
“In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of the choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4).” [8]
[8] Ibid at [42]
In Bevan & Bevan,[9] a case determined in the aftermath of Stanton, the majority of the Full Court (Bryant CJ and Thackeray J) noted that the last paragraph quoted above was likely to encapsulate the vast majority of cases coming before courts such as this one, namely that the circumstances of the parties concerned, following the end of the marriage between them, made it readily apparent that it was just and equitable to make a property order and therefore it would be open to the court concerned to adopt the multi-stepped process endorsed by cases such as Hickey.
[9] Bevan & Bevan [2013] FamCAFC 116 at [65] and [71]
In Bevan the Full Court further said as follows:
“Although the High Court did not disapprove the four step process, we accept it did not approve it either... However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.
…
Stanford will also serve as a reminder that the four step process ‘merely illuminates the path to the ultimate result’.”
From this, I take it, the four step process remains a valid approach in the vast majority of cases, provided care is taken not to overlook the requirement that all orders altering property interests in proceedings arising under the Act be justice and equitable, which to use the eloquent phraseology of the High Court is a concept which knows no metes and bounds or in other words is a concept impossible to pin down definitively.
Although I appreciate that Mr Sawyer does not put it in these explicit terms, in the light of sections 79(1) & (2), the fundamental question, for the court, in this particular case, is whether is it is appropriate and just and equitable to make any order altering his existing proprietary interests in superannuation holdings and the [T] property, given the overall circumstances of this case.
In Stanford the High Court propounded three fundamental propositions, adhering to the application of section 79, which I will summarise as follows:
·Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify:
“according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
·Secondly, although the power to make a property order is broad. The power is not to be exercised according to an “unguided judicial discretion”. As such,
“whether it is just and equitable to make the order is not to be answered by assuming that the parties’ rights to all interests in marital property are or should be different from those that then exist.”
·Thirdly, whether the making of a property settlement order is just and equitable does not turn on the assumption that one or other of the parties to the marriage has the right to any interest according to a consideration of the matters (including financial and other considerations) arising under section 79(4). Rather the justice and equitable consideration under section 79(2) must also be considered. For:
“To conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in section 79(4), without a separate consideration of section 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.”
In Bevan the majority of the Full Court considered it impossible to provide an exhaustive definition of circumstances, where it would be just and equitable to make an order altering the property interests of the parties concerned. However, it was also pointed out by the Full Court that it would potentially erroneous for a trial court to ignore the matters raised in section 79(4) in coming to such a decision.
The majority of the Full Court rejected any notion that the determination of whether it was just and equitable to make a property order was to be considered a threshold issue. It said as follows:
“First…the initial enquiry is to determine the existing legal and equitable interests of the parties. Secondly, although section s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such an order must be just and equitable.
…
It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the Act links them.”[10]
[10] Ibid at [86] – [87]
Accordingly, 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 represent a threshold to be crossed prior to the undertaking of the section 79(4) exercise.
Rather, the overall task is a holistic one,[11] to be informed by the idiosyncratic circumstances of each case concerned. However, in most cases, it will be readily apparent that it is just and equitable to make an order altering the property interests of the parties concerned because of their circumstances or the manner in which each has presented their case and the orders sought. But it will not always be so.
[11] See Watson & Ling [2013] FamCA 57 at [13] per Murphy J
I appreciate, of course, that Mr Sawyer is not legally qualified and has only a rudimentary understanding of section 79. However the practical thrust of his submissions, in the case, is that it is not appropriate for any order to be made in this case, other than perhaps, by virtue of a necessary implication, that each party retain the property currently in his or her control.
Ms Clancy is not legally represented and, again, it is unrealistic to expect her to have any sophisticated appreciation of the legal niceties arising in the case. The application of which, to some extent, must be regarded as fatuous, given the extent of the asset pool.
However the necessary implication of her position is that the court, after considering her various contributions, under the criteria provided by section 79(4), will consider it appropriate to alter Mr Sawyer’s existing proprietorial interests in either his superannuation or the [T] property.
The Full Court considered this dilemma, at least peripherally, in Bevan. It made reference to the seminal High Court decision of Mallett v Mallett [12] and particularly the comment of Gibbs CJ that section79 conferred on a court “a very wide discretion to make such order as it thinks fit when it is satisfied that it is just and equitable that an order should be made …”
[12] Mallet v Mallet (1984) 156 CLR 605
Accordingly, as was the evident in Stanton, in some cases the circumstances prevailing may render it inequitable to make an order altering the proprietary interests of the spouses concerned, notwithstanding issues of contributions or other matters arising under section 79(4).
In Bevan the plurality of the Full Court said as follows:
“This understanding of the role of s 79(2) resonates with authority developed in the early years of operation of the Act. Thus, in Rogers & Rogers the Full Court cited with approval this view expressed by Strauss J in Ferguson & Ferguson.
It seems to me, that the main purpose of sec. 79(2) is to ensure that the Court will not alter the property rights of the parties, unless it is satisfied that cogent considerations of justice require it to do so, and that if the Court decides that it is requisite to make any order under the section, the Court must be satisfied that the alterations so ordered, will go no further than the justice of the matter demands.
Notwithstanding this clear exposition of the law, again approved in Beneke and Beneke (supra), perusal of the law reports reveals that it has only rarely been argued that a court is precluded by considerations of justice from exercising the discretion conferred by s 79(1). It appears to have been routinely assumed by litigants, certainly in more recent times, that justice requires the court to assess their claims by reference to s 79(4), even if one contends that the outcome of that assessment will be an order leaving existing property interests intact.” (References and citations omitted)
In this case, I propose to make some assessment of the parties’ various contributions arising under section 79(4). But it may ultimately prove to be the case that, due to the smallness of the asset pool and other cogent factors arising, that it is neither equitable nor fair to make any orders altering Mr Sawyer’s existing property interests in either the [T] property or his modest superannuation.
Contributions arising pursuant to section 79(4)(a)(b) & (c) (the so-called second step) can be broadly categorised under two headings. 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, including any contribution made in the capacity of home maker or parent.”[13]
[13] See Family Law Act 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.
Section 79(4)(e) mandates the court to have reference to the matters listed in section 75(2) of the Family Law Act 1975. In the main the factors there listed deal with each of the parties’ prospective needs (the so-called third step).
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”.
In Ferguson & Ferguson[14] the Full Court of the Family Court said that section 75(2)(o) was to be read ejusdem generis with the other matters listed in the 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.”
[14] Ferguson & Ferguson (1978) FLC 90-500 at 77,607
As appears clear from the re-stated principles appearing in Stanton, the “overriding requirement” of section 79 is that considerations of justice and equity should inform the process envisaged therein. The exercise I must undertake is not a “process of social engineering”[15] or of equalisation of assets or financial resources.
[15] See Waters & Jurek (1995) FLC 92-635
Accordingly, Ms Clancy is not entitled to some portion of Mr Sawyer’s superannuation or other property merely because the parties were married for a portion of the time during which Mr Sawyer acquired it. The discretion the court has pursuant to section 79 is a very wide one.
The Evidence
In these reasons for judgement findings of fact are made on the balance of probabilities following my observation of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
The parties were the only witnesses who gave evidence in the proceedings. In general, there were few factual issues in dispute between them. This is perhaps understandable, when the modest extent of the property pool is considered.
What disputes there were centred on the nature of the grant of legal aid to Ms Clancy, in respect of the proceedings involving Mr M; the insurance claim made in respect of the Land Rover Discovery motor vehicle; and the parties’ liability in respect of items being purchased from Radio Rentals.
However, neither party was a particularly adept historian in respect of their financial affairs. In Mr Sawyer’s case, he finds it difficult to follow these issues and, in the past, he left financial matters to the wife.
In addition, Mr Sawyer was not uncomfortable in the court environment. He is a person of few words. I found him to be completely honest and frank in his evidence. He seemed to me to be a decent man.
Ms Clancy is a more assertive and canny person. In my assessment, she is capable of behaving in an unprincipled way, when it suits her, particularly to advance her financial interests. On occasions, it was my perception that her history failed, when it suited her.
As a consequence of these matters, where there is a factual dispute between the parties, it is my finding that Mr Sawyer’s account of matters is more likely to be the reliable one.
a)Background
Ms Clancy was born [in] 1976. She is in good health currently. As previously indicated, she is currently employed as a [omitted]. It is a permanent part-time position, involving working split shifts from 6.00 am to 9.30 am and 7.30 pm to 11.30 pm.
She is paid $19.61 per hour for morning shifts and $23.00 per hour for evening shifts. She receives an allowance of $25.00 per shift, if she is the supervisor. For the year ending 30 June 2013, she earned a taxable income of $24,000.00.
Ms Clancy previous employment experience is in [omitted]. At one stage, she began her own [omitted] business, but this was not viable in the long term. She has no qualifications to fall back on and is likely to remain a low income earner for the rest of her working life. In these circumstances, I accept it will be very difficult for her to enter the property market.
Ms Clancy receives the Family Tax Benefit for [X]. I was not advised whether Mr R pays child support for her. He did in the past.
Ms Clancy’s most significant recurrent expense is her rent of $280.00 per week. She rents on the private market. I accept Ms Clancy’s evidence that she has no savings. I also accept that she has an old car worth a few hundred dollars.
Ms Clancy re-partnered last year. Her current partner is a [omitted]. He has three children aged 3, 4 and 5, who have joined Ms Clancy and [X] living in Ms Clancy’s home. I accept that Ms Clancy struggles to makes ends meet financially.
Mr Sawyer was born [in] 1975. He earns $21.00 per hour working at [omitted]. At present, it is the height of the [omitted] and he is working 50 hours per week. Whether this will continue, after the [omitted] is uncertain. However, Mr Sawyer deposes that his employer is pleased with his work and has indicated an intention to keep him on, if at all possible.
This is a very positive development for Mr Sawyer, who has been out of the workforce for a significant period of time previously. Apart from issues relating to depression, for which Mr Sawyer continues to take prescribed medication, he is in good health. However, I have not been provided with any formal medical evidence in this regard.
Mr Sawyer said he was starting to taper down his medication.
Prior to 2010, Mr Sawyer had a good work record. He was with [company omitted] for seven years, during which time he obtained the top level of [omitted]. He can [omitted]. However, his preference is not to [omitted] interstate.
As previously indicated, Mr Sawyer is a qualified [omitted]. He did his apprenticeship between 1992 and 1996. He started contributing to his superannuation in this period, but any amount of contributions made must have been modest. Mr Sawyer does not want to return to [omitted] work because of the long hours, which do not sit well with his parenting responsibilities for [Y] and [Z].
I assess Mr Sawyer’s level of overall employability to be superior to that of Ms Clancy, but only marginally so. Like her, he is likely to remain a low income earner for the foreseeable future. In this context, it is extremely advantageous to him that he has a foot in the door of the property market. Although I also accept his footing there is somewhat uncertain.
b) Contributions during the marriage
The parties’ respective contributions, during the period of their marriage and their cohabitation beforehand, must be regarded as being essentially equal. The father was the family’s main breadwinner and the wife was a stay at home parent, who tended to the needs of four young children.
Ms Clancy concedes that Mr Sawyer worked hard during the marriage. Mr Sawyer accepts that Ms Clancy attended to household duties appropriately.
This is not a case where there was any inequality in asset backing at the commencement of the parties’ relationship. The husband had some accumulated savings from the time he had worked in North Queensland; the wife had the contents of her home. Each had a motor vehicle.
For reasons already set out above, Mrs C’s generous assistance to the parties was a game changer, for them, in terms of their on-going economic and residential security. Although they themselves had no accumulated savings, they went from a precarious accommodation situation into their own home, which especially suited the needs of their large family.
In my assessment, it is simplistic to attribute this as a contribution emanating from the wife just because she is Mrs C’s daughter. It seems more likely that the monies were advanced to benefit the family as a whole. I also accept that both historically and now Mr Sawyer has a good relationship with Mrs C, which the wife has not always shared.
Mrs C is not a wealthy person. As such, a sum of between $7,000.00 and $10,000.00 represents a significant sum of money for her. Although, the sum cannot be regarded as a formal loan, I accept that Mrs C anticipated that she would be repaid at some stage and this was also the understanding of the parties.
As matters currently stand, the prospects of Mrs C being repaid appear remote. In my assessment, the husband is more likely to do the honourable thing than the wife, who remains bitterly disposed towards her mother, not least because of her involvement in the earlier parenting proceedings.
For these reasons, important though the payment was, I do not think it attached more to one party than the other, as a contribution per se. In addition, if it is anybody’s debt, it is Mr Sawyer’s, as he is only one of the parties who is likely to make any effort to repay it.
c) The legal fees incurred in respect of Mr M
In my assessment, Ms Clancy is likely to have been the more assertive personality during the parties’ marriage and as such decided on major issues of expenditure. In addition, although Mr Sawyer was and is close to [X], he is not her father.
In addition, I find that Mr Sawyer’s evidence regarding the nature of the court proceedings with Mr M is likely to be more reliable than that of Ms Clancy. As such I doubt that the case in question was simply one focussed on issues to do with the parties wishing to move to [B] as a family. This may have been one aspect of the case, given that
Ms Clancy comes from [B], but I do not accept it was only focus of the case.
For these reasons, I find that Ms Clancy was the guiding genius behind the litigation with Mr M and decided what happened in it. It also seems likely that Mr Sawyer was not a formal party to the proceedings.
However, Mr Sawyer was and is the sole owner of the parties’ major asset – the former family home – in which Ms Clancy, by dint of her indirect contributions, had a significant equitable interest. In this context, the Legal Services Commission required security before advancing funds for legal aid to Ms Clancy. At the time, Mr Sawyer was prepared to support his wife and so provided the necessary security.
In these circumstances, in my view, the debt is to be regards as one incurred primarily incurred by Ms Clancy’s, for what she thought would benefit her at the time. Again, like the debt to Mrs C, any prospect of the wife settling this debt is extremely remote.
The only way the debt is likely to be repaid is if Mr Sawyer sell the property at some stage in the future; it is liquidated, as a consequence of an order arising out of these proceedings; or a representation is made to the Director of the Legal Services Commission about the parties’ significant change of circumstances since the charge was incurred.
I strongly urged the parties to make contact with the Commission about the charge and what has happened in their respective lives since the charge was granted. It may be the position that the Commission will reconsider the equity of retaining the charge, once these proceedings have been resolved.
Mr Sawyer is strongly opposed to the [T] property being sold, as it would mean that he, [Y] and [Z] (and their menagerie of animals) would be forced into the uncertainty of the private rental market. If his application is successful, it must mean that, nominally at least, he will be left with the debt relating to the wife’s legal costs.
d) Conduct at separation
Prior to the parties’ separation, in late 2009, they owned four motor vehicles: a 1992 model Ford Maverick; a 1995 model Land Rover Discovery; a 1995 model VS Commodore utility; and a 1980 model WB Holden utility.
The wife left for [B], with the children, in late 2009. The husband’s understanding was that she and the children would be returning to [T] at the start of the 2010 school year. Mr Sawyer visited the family, in [B], during the school holiday. In these circumstances, the wife’s decision to leave the marriage and remain in [B] came as a complete shock to him.
The Land Rover was subject to finance. During the later period of 2009, Ms Clancy reported the vehicle as stolen and made a claim on the insurance. The sum of $3,222.28 was deposited into the wife’s bank account in October of 2009 to settle the claim, at least in part.[16] I accept Mr Sawyer’s evidence that he received no direct benefit from this sum.
[16] See Exhibit B
It is Mr Sawyer’s view that the vehicle was not in fact stolen, but had been taken to the home of Ms Clancy’s brother and concealed there. Certainly, after police had investigated the matter, including exonerating Mr Sawyer of any criminality, Ms Clancy was charged with some species of deception. Mr Sawyer believes the charge was proven; Ms Clancy asserts that the police ultimately withdrew the charge because of a lack of evidence.
In any event, Ms Clancy received the value of the motor vehicle and Mr Sawyer was left with the debt in respect of it. I accept that he borrowed the sum of approximately $3,000.00 from his father to pay out the loan. This debt remains outstanding.
Ms Clancy took the Ford Maverick with her to [B]. Mr Sawyer regards this as having been the parties’ family car. Ms Clancy retained this vehicle, which Mr Sawyer believes was worth around $4,000.00. He asserts that Ms Clancy sold the vehicle for less than this sum in [omitted]. He also asserts that she sold the VS Commodore to her brother.
Accordingly, it is Mr Sawyer’s case, which I accept, that Ms Clancy retained three of the parties’ four motor vehicles, leaving him with the liability in respect of one of them. It is further his case that these circumstances compelled him to sell the WB Holden to cover debt. The sum recouped was $3,500.00, which went to repay his credit card, extended by the wife in circumstances set out hereunder. He borrowed a further $500.00 from his father to buy a cheap car for himself.
In the earlier proceedings, Mr Sawyer asserted that Ms Clancy had wasted joint marital funds through her use of poker machines. He did not reiterate this complaint explicitly in the current round of proceedings.
However, he did assert that Ms Clancy had mishandled the parties’ finances during the last year of their marriage. In particular, he asserted that she had failed to make payment in respect of the parties’ recurrent expenses. The most significant of these was the parties’ joint liability to Radio Rentals, in respect of the deferred payment of household goods.
It is Mr Sawyer’s evidence, which I accept, that he borrowed a sum of around $11,000.00 from his father to pay out Radio Rentals. In addition, he borrowed other monies, from Mr Sawyer, to satisfy the council and water rates, due on the [T] property, as well as a number of outstanding mortgage payments. The amount in question was around $2,000.00. All in all, it is the effect of Mr Sawyer’s evidence that
Ms Clancy left in him in the lurch financially, when she moved to [B].
Mr Sawyer had an ANZ credit card, which prior to separation was used for joint purposes. Ms Clancy acknowledges that she accessed this card, via the internet, and derived a cash advance of $3,500.00. It was in order to reimburse this sum that Mr Sawyer sold his motor vehicle.
Ms Clancy agrees that she withdrew the sum in question and acknowledges that Mr Sawyer was not consulted about it. She rationalises this conduct on the basis that Mr Sawyer’s actions had compelled her to return to Adelaide, from [B], and she needed to buy stuff for her new accommodation.
It is in this context that Mr Sawyer asserts that he became depressed. He was unprepared emotionally for the parties’ separation and devastated by the financial maelstrom which followed it. It is also this sequence of events, which primarily leads me to the conclusion that
Ms Clancy is capable of behaving in an unprincipled fashion, particular in order to achieve financial advantage for herself.
e) Contributions following separation
The husband has paid all necessary mortgage payments due on the [T] property. Given his financial circumstances, this has been very difficult for him from time to time, as the number of dishonour fees indicates.
In addition, since the judgement handed down in the children’s proceedings (10 August 2011), Mr Sawyer has been primarily responsible for parenting [Y] and [Z], as well as [X] for significant periods of time.
Ms Clancy did not accept this judgement. I can understand why this was so, given the controversy of the case surrounding the children and the vehemence with which the proceedings were conducted, from both parties’ perspective.
In part, this led her to commence the contravention proceedings, which she ultimately withdrew at a late stage. Mr Sawyer was awarded costs as a consequence of this withdrawal. Given Ms Clancy’s current financial circumstances, it seems unlikely that this order will ever be satisfied.
As previously indicated, Mr Sawyer has expended a sum in excess of $100,000.00 in legal fees, which he has borrowed from his parents. The prospects of Mr and Mrs Sawyer ever being repaid are negligible. From his and their perspective, the financial implications of the case have been ruinous. However their stance in the case was vindicated by the orders made by the court.
Ms Clancy was legally aid for much of the earlier proceedings. However she expended around $15,000.00 in pursuing the discontinued contravention proceedings. On any view, her exposure to legal fees has been much less than that of Mr Sawyer.
In my view, an assessment of the parties’ contributions post separation, in both a financial and parenting context, favours Mr Sawyer to a significant degree.
Assessment of section 75(2) factors
The parties both face an uncertain financial future, given their limited wages and lack of qualifications. Both are likely to struggle to put away sufficient funds to provide for security in retirement. In these circumstances, I accept that both Mr Sawyer and Ms Clancy are likely to live hand to mouth for the foreseeable future.
However, notwithstanding this finding, it is my view that the section 75(2) factors favour Mr Sawyer to a marked degree, particularly as a consequence of the provisions of section 75(2)(o), which authorises the court 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”.
In my view, there are several matters, which considerations of justice and equity dictate should be taken into account in this case, given its idiosyncratic features, particularly the very modest asset pool. In my view, in all the circumstances of the case, it would represent a significant injustice to Mr Sawyer, if he was compelled to sell the [T] property, to satisfy any payment to be made to Ms Clancy.
In addition, I am satisfied that, in the period immediately following separation, Ms Clancy unilaterally engineered a situation whereby she was able to receive a premature distribution of funds, in her favour, in the form of the three motor vehicles concerned and the cash advance from Mr Sawyer’s credit card, which must be regarded as significant, given the current extent of the parties’ assets.
In Watson & Ling Murphy J said as follows:
“Where the Court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have be significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.” [17]
[17] Watson & Ling [2013] FamCA 57 at [33]
I am satisfied that, but for Ms Clancy’s conduct, the parties’ pool of assets was likely to have been greater. It is thus appropriate, in my view, that the court recognises the unfairness of Ms Clancy’s behaviour, in the period following separation, in any orders made, particularly given the smallness of the asset pool and the draconian consequences for Mr Sawyer and the children of the [T] property being sold. It being patently the case that Mr Sawyer has no capacity to borrow any additional funds, secured against the property concerned.
In addition, in my view, there is another significant factor which favours Mr Sawyer to a marked degree, which arises for consideration under the rubric provided by section 75(2)(o). It concerns the care and financial support he has provided to both [W] and [X] over many years.
Neither [W] nor [X] are to be regarded as children of the marriage between the parties. In strictly legal terms, Mr Sawyer had no obligation to support [W] or [X]. This duty resided with Mr M and Mr R respectively.
Pursuant to s.75(2)(o) of the Act, the court is entitled to take into account the existence or otherwise of a party’s legal obligation to support another person, but this must be done within a framework of “ordinary notions of justice and equity”.[18]
[18] Robb & Robb (1995) FLC 92-555 at 81,547
In the circumstances of this case, in my view, the financial support, which Mr Sawyer has provided to both [W] and [X], over many years, is a factor which is greatly in his favour and is one which must be accounted for on ordinary grounds of equity and fairness.
There is another significant section 75(2) factor which also greatly favours Mr Sawyer. He will continue to be responsible for the on-going care of [Y] and [Z] and it is probable that he will receive limited financial assistance from Ms Clancy in this regard [see section 75(2) (c) & (na)].
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 children concerned and whether child support is likely to be paid regularly and at an adequate rate in future.[19]
[19] See Clauson & Clauson (1995) FLC 92-595 at 81,911
In this case, I am satisfied that Ms Clancy is likely to be poorly motivated to pay child support to Mr Sawyer. Due to his haemophilia, [Z] is likely to incur additional medical and other expenses, which Mr Sawyer will have to bear.
In addition, his responsibilities to parent the two children, who are both still at school, are likely to impinge upon his income earning potential to some degree. I accept however that his parents provide a great deal of assistance to him, in regards to the provision of after school care.
It is my view that a proper consideration of the section 75(2) factors favours the husband to a marked degree. Given the smallness of the asset pool, it is simplistic to speak in percentage terms. What matters to the parties, is what any order means in dollar terms and, in Mr Sawyer’s case whether he can retain the [T] property, where he has lived for many years.
If Mr Sawyer retains the property, subject to the mortgage in favour of HomeStart; the charge in favour of the Legal Services Commission; and the contingent debt to Mrs C; he will have equity in it to a value of approximately $40,000.00. On the basis of contributions, Ms Clancy would be entitled to $20,000.00 at best.
If the section 75(2) factors are nominally said to favour Mr Sawyer by a further 30%, which in my view is the bottom to medium of the range, rather than its height, it would mean the Mr Sawyer would have to pay Ms Clancy the sum of $8,000.00.
Mr Sawyer would struggle to find even this modest sum. He would likely to have to borrow it from his parents. In my view they have provided sufficient financial support as a consequence of this case. In any event, Ms Clancy has a liability to Mr Sawyer in respect of the outstanding costs order in a similar amount, which can be said off against this assessment. In these circumstances, I will discharge the costs order, which is unlikely to be ever satisfied.
There are some cases, where the overall justice and equity of the situation dictates that one party should retain all assets as a consequence of the section 79 exercise. This is one such case. It would create unwarranted hardship to both Mr Sawyer and the children currently in his care if the court was to make any other order.
Due to the crisis created by the fire at the [T] property, the amount of superannuation Mr Sawyer has currently accumulated for his retirement is minimal. Given its quantum, I can see no utility in making any splitting order in favour of Ms Clancy.
I appreciate that Ms Clancy too faces an uncertain financial future and any sum of capital, no matter how modest, is likely to be significant to her. However, at the end of the parties’ long struggle with one another, the husband has been left in a far more financially deleterious position than has the wife.
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 one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 12 February 2014
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