CLINTON & YANCHEP
[2019] FCCA 265
•12 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLINTON & YANCHEP | [2019] FCCA 265 |
| Catchwords: FAMILY LAW – Property – 11 year marriage – husband in receipt of TPD payment – assessment of contributions – adjustment of parties’ interests – justice and equity. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79 |
| Cases cited: Bevan & Bevan [2014] FamCAFC 19 DJM & JLM (1998) FLC 92-816 Irving & Parkes [2015] FCCA 3049 |
| Applicant: | MS CLINTON |
| Respondent: | MR YANCHEP |
| File Number: | PAC 4674 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 5 – 6 March 2018 |
| Date of Last Submission: | 16 April 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 12 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Shaw |
| Solicitors for the Applicant: | John A Chapman Solicitor |
| Counsel for the Respondent: | Mr Wong |
| Solicitors for the Respondent: | Lamrocks Solicitors |
ORDERS
Pursuant to section 79 of the Family Law Act1975, the Applicant is to pay to the Respondent the amount of $59,275 within 28 days.
The Applicant is declared the sole legal and beneficial owner, as against the Respondent, of the property known as and situated at Property A in the State of New South Wales.
The Respondent is declared the sole legal and beneficial owner, as against the Applicant, of the property known as and situated at Property B in the State of New South Wales.
The Applicant is declared the sole legal and beneficial owner, as against the Respondent, of:
(a)Any motor vehicle in her possession;
(b)All items of furniture and contents in her possession;
(c)All savings or monies in her possession, custody or control;
(d)Her contributions and accumulated entitlements with respect to or arising from her membership of any superannuation fund;
(e)Her employment related entitlements including but not limited to annual leave, sick leave and long service; and
(f)All liabilities in her name in respect of which she shall indemnify and keep indemnified the Respondent.
The Respondent is declared the sole legal and beneficial owner, as against the Applicant, of:
(a)Any motor vehicle in his possession;
(b)All items of furniture and contents in his possession;
(c)All savings or monies in his possession, custody or control;
(d)All monies received by him in respect of any workplace injury;
(e)His contributions and accumulated entitlements with respect to or arising from his membership of any superannuation fund;
(f)His employment related entitlements including but not limited to annual leave, sick leave and long service; and
(g)All liabilities in his name in respect of which he shall indemnify and keep indemnified the Applicant.
In the event that either party fails to execute any deed or instrument necessary to give effect to these Orders within seven days of being requested to do so, a Registrar of the Parramatta Registry shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and do all acts and things as may be necessary to give validity to the operation of the deed or instrument.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Clinton & Yanchep is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4674 of 2016
| MS CLINTON |
Applicant
And
| MR YANCHEP |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for property adjustment orders pursuant to s.79 of the Family Law Act 1975.
The parties were married for approximately 11 years, but had lived together for a little over two years before their marriage. They have two children together, and the parenting arrangements for those children are the subject of Court Orders made by consent on 12 February 2018. Their children are presently nine and seven years old.
Both the husband and the wife are relatively young being in their early to mid-40’s. They are hard-working and decent people. Unfortunately, they have not been able to agree on how their property interests are to be adjusted following the breakdown of their relationship. This is unfortunate because it is mostly a disagreement about the application of legal (albeit discretionary) principles to their circumstances.
The Relevant Legal Principles
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act1975 (Cth) was set out by the High Court in Stanford v Stanford,[1]where their Honours stated:
[1] [2012] HCA 52; (2012) 247 CLR 108
[37] … first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… the question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
…
[40]… whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[41] Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act…
[42] 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 a 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…
Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[2], Chapman & Chapman[3] and Scott & Danton[4].
[2] [2014] FamCAFC 19
[3] [2014] FamCAFC 91
[4] [2014] FamCAFC 203
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the joint use of property by the parties. It is so in these proceedings.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[5]
[5] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120
The just and equitable requirement is “one permeating the entire process”[6].
Findings of Fact
[6] Bevan supra at [86]
The wife
The wife was born on … 1977. She is presently 41 years old.
The wife commenced working for the Employer in about … 2001. The wife’s salary as a professional was lower than that of the husband when the two were both working full-time.
From early 2001 to … 2009, the wife worked full-time for the Employer.
The parties’ first child [X], was born on … 2009. Between … 2009 and … 2010, the wife was on paid maternity leave.
In or around 2010 the wife was diagnosed with agoraphobia.
After her return to work, the wife worked reduced hours until … 2011. The wife resigned from her employment with the Employer in … 2011.
The parties’ second child, [Y] was born on … 2012.
Between 2010 and 2016 the wife was enrolled in and ultimately completed a Course. She undertook the degree on a part-time basis. She was not in paid employment for the duration of the time she studied and it was the husband who provided the sole financial support for the family during this period.
In or … 2016, the wife commenced working as a professional.
The wife lives in the former matrimonial home with her new partner. The new partner earns an income of approximately $670 per week and shares in the cost of general living expenses in the wife’s household.
The wife has the care of the parties’ children pursuant to orders made by consent in February 2018 for four nights each week and half the school holidays. The wife works as a professional, albeit only six shifts per fortnight. Her evidence is that it is not feasible to work more due to her child rearing obligations. It is her intention to return to her studies and perhaps complete a Masters so that she can start working in employment.
The husband
The husband was born on … 1974. At present he is 44 years old.
The husband completed a Course after high school. At age 23, in about … 1997, the husband commenced employment with the Employer, where he remained until … 2016. He was ultimately discharged from the Employer on medical grounds.
The husband qualified as a professional in 2004.
During his period of employment with the Employer, the husband at times worked on a less than full-time basis. Such periods of reduced hours were the result of the husband’s ill-health and inability to work a full-time load as required by his employer. The husband worked reduced hours from about early 2008 to 2011, a period of approximately three years. However, he did not sit idly by, but rather commenced and ultimately completed a Degree.
The husband’s job was by all accounts a difficult and gruelling job. He sustained severe and significant workplace psychological injuries as a result of his employment with the Employer.
Between February 2016 and December 2016 the husband was on extended leave, taken as sick leave, annual leave and long service leave.
The husband made a claim with WorkCover in March 2016, which was declined by the Employer and its insurers. Thereafter, the husband took the matter to the Workers Compensation Commission which ultimately resulted in the employer accepting liability in late April 2017. The husband commenced receiving workers’ compensation benefits and cover for medical treatment in July 2017. At the date of hearing, he remained in receipt of weekly benefits.
In or about 2003[7], the husband was diagnosed with a debilitating and rare blood disease (“PNH”),[8] which caused him significant pain and incapacity. In 2007 the husband was hospitalised three times due to this condition. The longest period of hospitalisation was 11 days. While he was in hospital, the wife spent time with him, helped him as needed and was solely responsible for the running of the house. In 2008 the husband had a medical procedure in hospital where he was again supported by the wife. In mid-2009, the husband commenced on a new medication which drastically improved his health. The initial treatment included weekly blood transfusions for a month, before continuing on a fortnightly treatment regime.
[7] Dr C refers to this diagnosis as occurring in 2006
[8] Paroxysmal Nocturnal Haemoglobinuria
In 2006, the husband started abusing morphine which was prescribed to treat the pain associated with PNH. Although he initially was able to abstain from use of opiates after being prescribed the medication for PNH as well as drug and alcohol intervention, he again started abusing morphine to deal with his continual exposure to frequent traumatic incidents as a result of his employment. He became dependent on morphine and his illicit behaviour was discovered by a fellow employee. Ultimately in 2016, he was diagnosed with Substance Use Disorder secondary to Post Traumatic Stress Disorder and Severe Depression. The husband’s evidence is that he has been drug free since February 2016. The husband also has a history of alcohol abuse again related to his chronic Post Traumatic Stress Disorder.
Relatively early in his life, when he was about 23 years old the husband commenced building his share portfolio. He purchased $2000[9] worth of Shares 1 in the Initial Public Offer and $5000 in Shares 2. He then made additional investments whenever he had the funds to do so. In 2000, the husband obtained a margin loan to leverage his investments and grow his share portfolio. The husband built up a substantial share portfolio over a period of approximately 20 years.
[9] With moneys received from an inheritance
In or about 2003, the husband purchased a property at Property B, being one of the two properties available to the parties at the date of final hearing. The purchase price was $256,000 and the husband, through careful financial management, assistance from his parents and use of an inheritance, paid the deposit for the purchase. The balance of the purchase price was funded by way of a mortgage. The Court accepts that the husband was very frugal. Except for a brief period of about six months at the commencement of the parties’ relationship, after the parties moved out of the Property B Property[10], the property was tenanted and the rent was used towards payment of the mortgage and outgoings on the property.
[10] During the relationship
In … 2005, the husband’s brother passed away. Subsequently and over the course of the next three years, the husband, as a beneficiary under his brother’s various policies, received approximately $390,000 from the estate as well as a motor vehicle which was subsequently sold for $37,000. The use to which these moneys have been put is set out later in these Reasons.
The husband lives in rental accommodation. He has the care of the parties’ children pursuant to orders made by consent in February 2018 for three nights each week and half the school holidays. He is unemployed.
Dr C, a consultant psychiatrist, opines that:
[the husband is]… currently unfit to carry out any form of remunerative employment. He is however fit to be involved in a return to work programme and possible voluntary employment… [He] is permanently incapacitated to return to work as a professional or in any other related occupation involving exposure to … [He] could perform voluntary work or undertake studies for some 20 to 25 hours per week.
In cross-examination Dr C indicated that in his opinion, the husband was totally unfit for any kind of remunerative employment for at least two years[11] but he did not think that this would be permanent. His evidence is that “hopefully” the husband will be able to return to work. Dr C was of the opinion that ‘relapse’ was a strong possibility and that any conflict could cause the husband’s symptoms to return.
[11] Although in an earlier answer he gave the period of five years as to how long the husband might be disabled from any remunerative employment
The husband is presently enrolled in a degree of studies. He commenced his studies in or around early 2017 and is in the very early stages of the degree.
The relationship
The parties met through their common employer in or about … 2001, but did not commence their relationship until a few years later. It was in … 2004, that the parties commenced their relationship.
In … 2006, the parties purchased, in the wife’s name, a property at Property A (“Property A Property”) for $320,000. The husband paid the deposit. The wife asserts that she paid just over $20,000 towards the mortgage in January 2007, although it is not clear where those funds came from. In cross-examination the wife said that “it came from our money as a family” and further conceded that the husband’s parents provided to the parties $15,000 at or around that time.
The parties commenced living together in late 2006/early 2007 in the husband’s property at Property B. The husband paid the mortgage. The wife contributed some income towards the cost of groceries while the parties lived here.
Between … 2006 and … 2007, the parties together renovated the Property A property. The cost of the renovations was approximately $30,000 and the source of the funds for the renovations was by and large the husband’s share of his late brother’s estate.[12] Both the husband and the wife worked on the renovations.
[12] The wife conceded in cross-examination that she did not dispute the work and how it was funded
In … 2007, the parties moved into the Property A Property, where they remained until separation. After the parties’ separation, the wife has remained in occupation of that property.
During the course of the parties’ relationship[13], the husband paid about $210,000 into the Property A mortgage.[14] These were moneys he inherited from his late brother. The wife made financial contributions towards the mortgage during the period of the parties’ relationship, particularly in the period … 2007 until … 2009, and then reduced payments between … 2009 and … 2011. The husband made all mortgage repayments while the wife was not in paid employment and studying, being a period of some 5 years.
[13] More particularly between 2007 and 2013
[14] The husband is able to point to $210,000 coming out of his account which he asserts was paid into the Property A mortgage.
The parties bought and sold a few motor vehicles during the relationship. The moneys for some of the purchases came from the Property A mortgage, which in turn came mostly from the husband’s inheritance. At final hearing the parties each had an unencumbered motor vehicle.
The parties separated in January 2016, and the husband moved out of the former matrimonial home.
At the conclusion of the parties’ relationship, the mortgage over the Property A property stood at $120,306. At the date of final hearing, the mortgage had increased to $210,018. The wife was entirely responsible for the increase in mortgage post separation, and apart from some answers given in cross-examination, her evidence fails to explain adequately where and how such moneys were spent.
Welfare of the Family
The parties are at odds with respect to what each of them asserts were their contributions to the welfare of the family.
The wife asserts as follows:
I have been the primary carer since our children were born. Given the length of Mr Yanchep’s shifts (12 hours at minimum, with overtime incurred at the end of most shifts), I would be solely responsible for the entire day for the children for most of the time… Mr Yanchep was responsible for the children only when I was attending university classes and he was available, i.e. he was on a day off from work and not needing to sleep…[15]
[15] Wife’s trial affidavit at [33]-[34]
Given that the husband worked reduced hours from early 2008 to August 2011, the wife’s assertion as to her being “solely responsible for the entire day for the children for most of the time” as she says “given the length” of the husband’s work shifts[16] simply does not stand up to scrutiny. It is an example of the wife over-exaggerating in her evidence.
[16] As asserted by the wife to be 12 hours at a minimum with overtime incurred at the end of most shifts
Furthermore, since the parties’ separation the children have had the benefit of significant care by each of their parents. Given that the parents separated in January 2016, it is simply not the case that the wife is and remains the children’s primary carer.
While the Court understands that Affidavits are at times drafted with inadequate care with generalities and wide assertions included as if they were fact, without objection to such evidence, the evidence remains before the Court and must be given due consideration. It is not the Court’s role to go painstakingly through every single assertion made by a witness in his or her evidence and assess it for truthfulness or otherwise. Likewise, the Court is not required to mention every fact or allegation made in proceedings.[17] However, a witness’s assertions which do not stand up to scrutiny may affect the overall credit of that witness.
[17] Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 259 per Kirby P and 270 per Mahoney JA; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]
Where the two are in conflict, the Court accepts the evidence of the husband over that of the wife, given the wife’s over- exaggeration and generalisation of assertions.
As such, the Court finds that the husband was an involved parent, that he attended to the children’s needs when he was not working and that he took on the responsibility for the children while the wife was attending to her studies. Likewise, the Court finds that the wife was an involved parent, that she attended to the children’s needs when she was not working and not studying.
Furthermore, the Court finds that the parties were supportive of each other and each other’s needs, that they helped each other deal with their health problems as supportive partners do. There was nothing “special” in the wife’s contributions in assisting the husband whilst he was in hospital for various limited periods during the parties’ relationship. It was all part and parcel of this particular relationship. Whilst the husband might have been more tired than he otherwise would have been due to his illness, he continued to work and provide for the family. In one sense, it could have been argued that his contributions were more onerous because of his health. The wife was devoted to her family and supported the husband and her children as best as she could.
In respect of the husband’s addiction(s), the evidence of the wife does not support her assertion that such matters made her contributions more onerous. She did not point to any particular evidence which proved, on the balance of probabilities that the husband’s addiction(s) derogated from his financial, non-financial and homemaking contributions.
The parties’ contributions to the welfare of the family are assessed as equal.
The Pool
The parties’ jointly submit to the Court that the husband’s TPD payout should be treated as a financial resource by the Court, and not counted on the balance sheet. It is a position which is consistent with the authorities.[18]
[18] The TPD payment is compensation for future economic loss. It was received after separation. See for example: Irving & Parkes[2015] FCCA 3049
As recently pointed out by Judge Altobelli:
[118] A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. This disposed of property may still be significant, however. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it. It would seem that notionally adding back such property may still be appropriate in some cases. In Vass & Vass [2015] FamCAFC 51, the Full Court said at [138]:
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan [2013] FamCAFC 116 ; (2013) FLC 93-545 — or, more particularly, the decision of the High Court in Stanford & Stanford [2012] HCA 52 ; (2012) 247 CLR 108 — is authority for any necessary contrary solution.
So too the problem arises in the circumstances of this case. The husband, by virtue of complying with his obligations for full and frank disclosure, has told the Court that he has spent just under $40,000 in legal fees. The wife on the other hand, has dissipated over $90,000 from the mortgage account. In cross-examination she said it has all gone on legal fees. Both sums will be notionally added back into the pool for the purposes of adjusting the property interests of the parties. While there are a number of other ways the Court might deal with such spending, there is long standing established authority that legal fees ought to be notionally added back.[19] It would not be just and equitable in the present circumstances to do anything but hold the wife accountable for such spending, particularly in circumstances where the husband has openly told the Court of his legal costs paid to date of hearing.
[19] DJM & JLM (1998) FLC 92-816
At the time of final hearing, the property pool consisted of the following assets:
Item
Owner
Value
Property B
Husband
$500,000
Property A
Wife
$680,000
Proceeds of Share Portfolio
Husband
$354,447[20]
Motor Vehicle
Husband
$12,000
Motor Vehicle
Wife
$10,000
Mountain bike
Husband
$1,500
Race bike
Husband
$700
Children’s bank account
Husband
$3,000
Various bank accounts
Wife
$4,037[21]
Jewellery
Wife
$4,000
Household contents
Joint
$10,000
TOTAL:
$1,579,684
[20] With the addback
[21] The wife was not cross examined about these bank accounts
Superannuation:
Fund
Owner
Value
Super Fund
Husband
$181,221
Super Fund
Wife
$136,409
TOTAL:
$317,630
At the time of final hearing, the property pool consisted of the following liabilities:
Liability
Owner
Amount
Mortgage Property B
Husband
$152,697
Mortgage Property A
Wife
$120,306[22]
Credit card
Husband
$2,820
Credit card
Wife
$626
HELP Loan
Wife
$18,294
HELP Loan
Husband
$11,100
CGT on Share Portfolio
Husband
Amount not known
TOTAL LIABILITIES
$305,843
[22] With the addback
Therefore, the total net pool at the time of hearing is assessed at $1,501,759.
Assessment of Contributions and s75(2) Factors
The Court finds that the parties, over the course of their relationship, made disparate but substantial contributions, each in their own way. The parties’ differing contributions were not only financial but also non-financial, direct and indirect. Without what each of the parties put into the relationship, the parties would not have had the assets they did at the conclusion of the relationship.
However, on analysing the parties’ evidence it is a finding of this Court that the husband’s contributions were of greater weight than those of the wife in terms of the effect of those contributions on the assets overall. This finding is made on the basis of:
a)The husband’s interest in the Property B Property at the commencement of the relationship;
b)The husband’s share portfolio at the commencement of the relationship; and
c)The husband’s inheritance and the significant cash injections the husband made to the Property A Property mortgage.
The Court finds that the use of these assets by the parties early in the parties’ relationship to a large extent provided the solid foundation upon which their overall wealth was thereafter built.
It was submitted on behalf of the husband that the use of his inheritance has been the lynchpin of the wealth that is available. There is significant force in this submission, noting the cash injections made by the husband to the Property A mortgage. The Court also notes the large share portfolio which the husband held at separation, which is a significant portion of the net pool.
Overall, the Court assesses the parties’ contributions as 62% to the husband and 38% to the wife. This assessment is made on a broad brush approach, taking into consideration the assets each of the parties brought into the relationship, their contributions over the entirety of their relationship and their post separation contributions.
It is the Court’s finding that both parties will continue to care for their children in an almost equal manner pursuant to the orders made by consent. Any discrepancies in the care arrangements, given the other factors referred to above, do not warrant any further adjustments to be made in respect of the care of the parties’ children. There is a child support assessment in place.
The husband is of ill-health with serious and debilitating health conditions which have a significant detrimental effect on his capacity to earn an income. He has very limited capacity to earn an income going into the future. He does have a significant financial resource in the TPD payout he has received. He is in receipt of weekly worker’s compensation payments.
The wife is currently in gainful employment and she has the capacity to continue in paid employment. As an employee the wife is entitled to compulsory superannuation contributions. This means that as long as she remains employed, her superannuation will continue to accumulate.[23] The wife also suffers from some ill-health.
[23] The Court is aware that due to market forces the amount in the fund will fluctuate from time to time, but what the Court is referring to here is the employer’s compulsory contributions
To do justice an adjustment is required on account of the large disparity of present and future incomes, as well as the parties’ current financial resources, a small adjustment of 2% will be made in the wife’s favour as a result of s75 factors.
In the circumstances of this case, it is appropriate to adopt a two pool approach, with the division of assets according to non-superannuation assets and superannuation assets.
Therefore, on the basis of findings with respect to contributions and the further findings in respect of s.75(2) factors, an overall adjustment of 60% to the husband and 40% to the wife shall be made in respect of the non-superannuation assets.
On the available evidence, the parties’ superannuation interests are not too disparate. The wife will continue to work and therefore accumulate superannuation whereas it is unlikely that the husband will do so, at least not for a number of years. Furthermore, the evidence in the wife’s case in respect of her superannuation interest was less than satisfactory. The Court finds that the wife has not been fully open or frank in respect of her obligations for financial disclosure. In such circumstances, the Court should not be unduly cautions about making findings in favour of the innocent party.[24] In this instance, this leads the Court to the conclusion that it is not just and equitable to adjust the parties’ superannuation interests in any manner. In any event, the superannuation interests of the parties are at present and on the available evidence as to 58% to the husband and as to 42% to the wife, which is broadly in line with what the Court considers to be just and equitable overall. In fact, not adjusting the superannuation interests favours the wife.
[24] Weir & Weir (1993) FLC 92-338
Conclusion as to Adjustment
An adjustment of 60% to the husband and 40% to the wife is just and equitable having regard to the parties’ contributions, ongoing financial circumstances and other relevant matters considered herein. It is only the non-superannuation assets which will be adjusted accordingly, which is the amount of $1,273,841.
This means that the husband will receive 60% of $1,273,841 which is $764,305, his TPD and his superannuation.
The wife will receive 40% of $1,273,841 which is $509,536 and her superannuation.
As such, the husband is to receive:
Item
Owner
Value
Property B
Husband
$500,000
Share Portfolio
Husband
$354,447[25]
Motor Vehicle
Husband
$12,000
Mountain bike
Husband
$1,500
Race bike
Husband
$700
Children’s bank account
Husband
$3,000
Payment from wife
Husband
$59,275
Mortgage over Property B
Husband
-$152,697
Credit card debt
Husband
-$2,820
HELP Loan
Husband
-$11,100
TOTAL
$764,305
[25] With legal fees notionally added back in
As such, the wife is to receive:
Item
Owner
Value
Property A
Wife
$680,000
Motor Vehicle
Wife
$10,000
Bank account
Wife
$4,037
Jewellery
Wife
$4,000
Household contents
Wife
$10,000
Mortgage over Property A property
Wife
-$120,306[26]
Credit card debt
Wife
-$626
HELP Loan
Wife
-$18,294
Payment to Husband
Wife
-$59,275
TOTAL
$509,536
[26] With money spent by the wife from the mortgage account notionally added back in. The balance as at the date of hearing is $210,018. The loan is in the wife’s name, and she will remain liable for that debt.
Conclusion
The above adjustment will result in both parties having significant assets at their disposal. They will both retain the benefit of significant superannuation assets, and the wife will no doubt continue to accumulate superannuation as she continues to work.
In all of the circumstances and for all of the reasons set out above orders to be made as set out in the forefront of these reasons are just and equitable.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 12 February 2019
0
11
2