COOPER & WALDEN
[2020] FamCA 431
•29 May 2020
FAMILY COURT OF AUSTRALIA
| COOPER & WALDEN | [2020] FamCA 431 |
| FAMILY LAW – PROPERTY – Application for adjustment of interests in matrimonial property – Where the husband inherited substantial funds from his late mother at the time of or just after separation of the parties – Where s 79(4) factors favour the husband due to the provision by him of the unencumbered property which became the family home – Where s 75(2) factors favour the wife due to her providing more of the care and supervision of the children during the marriage and post separation, disparity of income, superannuation and the resource of inherited funds – Where the husband holds more than 90 per cent of the total asset pool – Where parties agree it is just and equitable to make an adjustment in favour of the wife – Ordered an adjustment to reflect equality between the parties in respect of the pool excluding inheritance. |
| Family Law Act 1975 (Cth) ss 75, 79 |
| Bevan & Bevan [2013] FLC 93-545 Stanford & Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Cooper |
| RESPONDENT: | Mr Walden |
| FILE NUMBER: | SYC | 5366 | of | 2017 |
| DATE DELIVERED: | 29 May 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 13 February 2020; 15 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levick |
| SOLICITOR FOR THE APPLICANT: | Boyd Olsen Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Pigdon Norgate Family Lawyers |
Orders
That the husband pay to the wife within 28 days the sum of $969,150.
That the parties be solely, legally and beneficially entitled to all superannuation funds in their respective names.
That other than as provided herein the wife transfer to the husband all of her right, title and interest in any item of property or personalty in the husband’s possession and/or control as at the date of these orders.
That other than as provided herein the husband transfer to the wife all of his right, title and interest in any item of property or personalty in the wife’s possession and/or control as at the date of these orders.
That other than as provided herein the wife indemnify and keep indemnified the husband in respect of any liability in her sole name as at the date of orders or attaching to any property transferred to her pursuant to these orders.
That other than as provided herein the husband indemnify and keep indemnified the wife in respect of any liability in his sole name as at the date of orders or attaching to any property transferred to him pursuant to these orders.
That each of the parties do all acts and things and sign all documents necessary to give effect to these orders.
That pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”), in the event that either party shall fail, neglect or refuse to sign any document required to give effect to these orders within seven days of being requested in writing by another party who has an interest in the execution of such document, then upon the filing of an Affidavit evidencing such failure, neglect or refusal, a Registrar of the Newcastle Registry of the Family Court of Australia is appointed to execute such document in lieu of the defaulting party.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cooper & Walden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYC 5366 of 2017
| Ms Cooper |
Applicant
And
| Mr Walden |
Respondent
REASONS FOR JUDGMENT
Introduction
These are competing applications for an adjustment of interests in matrimonial property.
The parties began their relationship in 2003, began living together in mid-2004 and married in 2008.
The parties separated in 2016, either in March (husband) or November (wife).
The parties divorced in 2018.
Over the course of their thirteen year relationship, two children were born, aged nine and four years at date of trial.
Final parenting orders were made by this Court on 6 August 2018.
The Parties
By agreement the wife became the applicant in these property proceedings. Parenting proceedings had been heard previously with the wife as respondent.
The Applicant Wife (“the wife”)
The wife was 45 years of age at date of trial.
In 2008 the wife completed a Degree from F University. She first began a course at the J University which study is suspended.
In the past, the wife has been employed as a professional, however she is not currently in paid employment.
Since July 2017 she has been studying for a certificate by distance education. She is studying to be an educator.
The wife, together with the two children, lives with her mother and step-father in Suburb F in Region D NSW.
The Respondent Husband (“the husband”)
The husband was 67 years of age at date of trial and was then employed in the transport industry with M Company. He continues to live in the former matrimonial home in Suburb L in Northern Sydney.
In 2018 the husband re-married in Country H. His wife (“Ms K”) and the child of their marriage, aged two years, live in Country H. The husband visits his wife and child three or four times per year.
The Applications
The Husband
The husband proposed a payment to the wife of $500,000 within 28 days.
The Wife
The wife proposed a payment to her by the husband of $1.5 million and in default sale of the former matrimonial home in Sydney.
Both parties proposed that each other keep what was in their possession except for items specified in Order 3 of the application of the husband.[1]
[1] Further Further Amended Initiating Application filed 30/01/2020.
No questions were asked of the wife about these photographs and CDs. Accordingly no order has been made since the Court is not in a position to know whether the wife has all or any of those items. Of course the parties are free to come to a private arrangement in that regard.
The Trial
The trial had been over-listed for two days commencing 13 February 2020 and was reached.
Both parties were represented by solicitor and counsel.
The trial affidavits included substantial material irrelevant to the issue in dispute, for instance in relation to parenting and the personal conduct of the parties during the marriage. Experienced counsel did not take objections on the basis that the irrelevant material would be disregarded by the Court. It was a pragmatic and client focused approach.
The trial concluded on the first day.
Application to re-open
On 18 March 2020 the husband filed an Application in a Case to re-open the evidence based primarily on a change in his income and employment.
COVID-19 restrictions, including Australia closing its national border, led to the husband being stood down from his employment. Further his employer, M Company, went into receivership.
On 1 April 2020 the application was granted. Directions were made for the husband and wife to file a further affidavit.
On 15 May 2020 the parties made brief submissions in support of fresh material.
Judgment was once again reserved.
History of Relevant Events
In mid-2004, the wife moved to live with the husband in his property at P Street, Suburb L (“the former family home”). The property had been purchased by the husband 20 years prior. At date of cohabitation it was unencumbered.
At that time the wife, aged 30, was working full time as a senior professional at R Company. The husband was 51 and working as an educator.
In October 2008 the husband obtained employment with M Company and worked with that company full-time until stood down in 2020. Other than a period of about 18 months in 2010-2011, when he moved to domestic operations, the husband conducted overseas operations from 2008 to 2017.
In mid-2009 the wife was made redundant from R Company and received a redundancy payout of $30,000.
The following month, July 2009, the wife took up full time employment with Q Company.
In May 2010, shortly before the birth of the parties’ first child, the wife took maternity leave. She used her redundancy funds for family living expenses for the eight month period of leave after the birth of the child. Of that period six weeks were paid leave.
In early 2011 the wife returned to work; three days per week for the first year, four days per week thereafter. The wife paid for child care from her wage.
In early 2014 the wife suffered a miscarriage.
In early 2015 the wife again took leave shortly before the birth of the parties’ second child and returned to work six months after she was born.
Inheritance for the Husband
In 2015 the husband’s mother died.
Probate of her estate was granted in late 2015.
By July 2016 the husband had received from the estate of his late mother a total of $2,045,789 in cash and shares worth about $450,000 [$2,495,789].
Whether it was early or late in that year, in 2016 the parties ended their relationship and separated, but remained living in the family home.
Physical separation
In April 2017, whilst the husband was overseas, the wife left the former matrimonial home with the children and moved from Sydney to live with her mother and step-father in the B Town area where she continues to live.
Commencement of litigation and transfer
In August 2017 an Initiating Application for parenting orders was filed in the Federal Circuit Court by the husband.
By her Response filed 5 October 2017 the wife introduced the application for property orders now being determined.
Transfer to Family Court of Australia
By consent, on 18 October 2017, the husband was ordered to pay to the wife a combined sum of $100,000; $50,000 into the trust account of the wife’s solicitors and $50,000 as partial property settlement.
On that day the proceedings were transferred to this Court.
On 13 November 2017, by his Amended Initiating Application, the husband responded on the issue of property, proposing an immediate payment to the wife of $500,000.
Marriage of husband in Country H
In February 2018 a child of the husband’s current marriage was born in Country H.
On 3 July 2018 the husband provided the funds, approximately $78,000 for the purchase of a house in Country H in the name of his current wife.
In 2018 the husband ceased paying school fees for the parties’ older child.
Trial delayed
On 12 April 2019 the matter was allocated trial dates in November of that year.
On 18 October 2019 an order was made, and complied with, for the further payment by the husband to the wife of $60,000. Those funds were applied to costs.
On 21 November 2019 the trial dates in that month were vacated on the successful application, due to ill health, of the husband.
The second affidavit filed for this trial relates to evidence of the ill health suffered by the husband which gave rise to the adjournment application.
The Evidence
The documents relied on in respect of the application were as follows:
The Applicant Wife - Ms Cooper
(a)Response filed 5/10/2017;
(b)Affidavit of the wife filed 20/09/2019;
(c)Financial Statement of the wife filed 20/09/2019;
(d)Affidavit of Ms S (wife’s mother) filed 20/09/2019;
Re-opening
(e)Affidavit of the wife filed 06/05/2020;
The Respondent Husband – Mr Walden
(f)Further Amended Initiating Application filed 30/01/2020;
(g)Affidavit of the husband filed 20/09/2019;
(h)Financial Statement of the husband filed 20/09/2019;
(i)Affidavit of the husband [Health] filed 13 February 2020;
Re-opening
(j)Affidavit of the husband filed 31/03/2020;
(k)Affidavit of the husband filed 29/04/2020;
Valuer
(l)Affidavit of Mr T valuer filed 24/01/2020.
Approach to alteration of interests in property
In considering applications for alteration of property interests and transfer of property the Court must:
(i)Identify the existing legal and equitable interests of the parties in property;[2]
(ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
(iii)If an alteration should be made, to consider the matters contained in ss 79(4) and 75(2) of the Act in coming to an adjustment; and
(iv)Analyse and consider whether the adjustment under consideration would be just and equitable.
[2] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FLC 93-545
i. Identify the legal and equitable interests of the parties
The parties’ assets are set out in the joint balance sheet:[3]
[3] Exhibit 1.
Ownership Description Wife’s
valueHusband’s value ASSETS 1 H P Street, Suburb L $1,210,000 $1,210,000 2 H Motor Vehicle 1 $13,000 $13,000 3 W Motor Vehicle 2 $13,000 $13,000 4 H CDIA (#...10)(as at 12.2.20) $3,791.00 $3,791 5 H CDIA (#...49)(as at 12.2.20) $7,629.00 $7,629 6 H CBA Term Deposit (#...19)(as 12.2.20) $0.00 0 7 H CBA Pensioner Security Account (#...97)(as at 12.2.20) $51,588.00 $51,588 8 H CBA Netbank Saver (#...62)(as at 12.2.20) $1,829,341.00 $1,829,341 9 H CBA Youthsaver (#...29)(as at 12.2.20) $1,031.00 $1,031 10 H AA Bank Account (#...34)(as at 30.6.2019) $8,698.00 $8,698 11 H CBA Travel Money Card (USD $54 and AUD $85) $160.00 $160 12 H Commsec Shares (#...05)(as at 12.02.20) $537,984.00 $537,984 13 H Commsec Shares (#...34) $8133 (Y)(as at 12.02.20) ($7,904.26) $0.00 $0 14 H Commsec Shares (#...49) $14,047 (Z)(as at 12.02.20) ($14,370.50) $0.00 $0 15 H Commsec Shares (#...31) $16,858 (X)(as at 12.02.20) ($16,516.99) $0.00 $0 16 H Commsec Shares (#...15) W $0.00 $0 17 H CC Bank (#...75) $36.00 $36 18 H Pigdon Norgate Trust Account $72,311.00 $72,311.00 19 W DD Bank Account (#...36)(as at 30.09.2019) $500.00 $0 20 W DD Bank Account (#...85)(as at 31.12.19) $0.00 $0 21 W FF Bank Account (#...48)(as at 31.12.19) $0.00 $0 22 W Westpac Choice (#...31)(as at 31.10.19) $20.00 $46 23 W Westpac Bump Savings (#...35) X $0.00 NK 24 W Westpac Bump Savings (#...27) $0.00 NK 25 H Furniture & effects $5,000.00 $5,000.00 26 W Furniture & effects $2,500.00 E $ 2,500 27 W Payment from Husband to Wife pursuant to Orders made 18.10.2018 $0.00 $100,000 28 W Payment from Husband to Wife pursuant to Orders made 18.10.2019 $0.00 $60,000 29 W Half of fee paid to HH Valuations in June 2018 ($715) and October 2019 ($770) $0.00 $1,485 ‘29Z’ H Legal fees paid $398,691.00 Total Assets $4,155,280 $3,916,000 ADDBACKS ‘29A’ W Payment from Husband to Wife pursuant to Orders made 18.10.2018 $100,000 ‘29B’ W Payment from Husband to Wife pursuant to Orders made 18.10.2019 $60,000 ‘29C’ H Legal fees paid $398,691 TOTAL $558,691 LIABILITIES 30 W Personal Loan from Ms S $58,842 $0 31 W DD Bank Credit Card (#...94) $0 $0 32 W M Company Credit Card (#...23) $6,894 $0 33 W Westpac Ignite Credit Card (#...17) $6,679 $6,759 34 H CBA Mastercard (#...20) $0 35 H GG Credit Card (#...01) $0 36 H ANZ Platinum Account (#...66) $0 Total Liabilities $72,415 $6,759 SUPERANNUATION Member Name of fund / Type of interest Wife’s / Partner's
valueHusband’s / Partner's value 37 H FF Superannuation (as at 03.12.19) (Accumulation) $388,011 $388,011 38 W FF Superannuation (as at 26.04.2019) (Accumulation) $0 $0 39 W GG Superannuation (Accumulation) $235,365 $235,365 Total Superannuation $623,376 $623,376 FINANCIAL RESOURCES Ownership Description Wife’s / Partner's
valueHusband’s / Partner's value 15 H Balance of Mother’s estate $50,000.00 $50,000 Total $50,000 $50,000 TOTAL NET ASSETS (Assets - Liabilities + Superannuation)
Total $4,706,241 $4,532,617 Notes In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading: 1 Why an item should not be on the balance sheet; 2 Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert; 3 Whether documents in the possession of the other party need to be provided before the value of an item can be agreed; 4 Any other comment a party wishes to make in relation to the disputed item. Item No Notes 1 Husband: Valuation Report from HH Valuations dated 15 November 2019. 13, 14, 15 Husband: These shares are held by the Husband beneficially for Y, Z, X and W, respectively. 16 Husband: These are held in W's name. The Husband has no entitlement to them. 38 Husband: Husband requires updated evidence that current balance held in this superannuation account is 0. 39 Husband: Wife has not disclosed current balance.
END OF EXHIBIT 1
Revised Balance Sheet
The Balance Sheet is revised as follows:
A) Items 6, 13-16 inclusive, 20, 21, 23, 24, 31, 34-36 and 38 are removed because no value for the item is asserted by either party.
B) Item 19 the wife asserts a value which is accepted as an admission against interest.
C) Item 22 - accepted wife’s figure where there is a disparity in a very small sum.
D) Items 27, 28, 29 and 29Z are omitted. Those items are repeated and/or accounted for by items 29A, 29B and 29C which are legal costs added back.
E) Item (Second) 15 is Balance of Estate added in as husband’s asset consistently with overall approach to inherited funds.
F) The figure in “Exhibit 1” for the sum of assets in the husband’s column is $3,916,000. It should be $3,917,600.
The net asset pool of the parties, including the balance of the husband’s inheritance, is therefore $4,916,241 held as follows:
Assets held and liabilities of wife:
Assets
Item 3 Motor Vehicle 2 13,000
Item 19 DD Bank Acc 500
Item 22 Westpac Acc 20
Item 26 Furniture and Effects 2,500
Item 29A Payment from husband 100,000
Item 29B Payment from husband 60,000
Item 39 GG Superannuation 235,365
Total Assets $411,385
Liabilities
Item 30 Debt to Ms S 58,842
Item 32 M Company CC 6,894
Item 33 Westpac CC 6,679
Total Liabilities 72,415
TOTAL Net Assets of wife $338,970
Assets and liabilities of husband:
Assets
Item 1 Suburb L property 1,210,000
Item 2 Motor Vehicle 1 13,000
Item 4 CDIA 3,791
Item 5 CDIA 7,629
Item 7 CBA Pensioner Acc 51,588
Item 8 CBA Netbank 1,829,341
Item 9 CBA Youth Saver 1,031
Item 10 AA Bank 8,698
Item 11 CBA Travel 160
Item 12 Commsec Shares 537,984
Item 17 CC Bank 36
Item 18 Pigdon Norgate Trust Acc 72,311
Item 25 Furniture and Effects 5,000
Item 29C Paid Legal fees 398,691
Item 37 FF Superannuation 388,011
Item 15 (second) Bal of Mother’s Estate 50,000
Total Assets $4,577,271
(Nil liabilities)
The net asset pool [including balance of inherited funds of $2.5 million] is $4,916,241. It is apparent that the inheritance of the husband was roughly equivalent to the matrimonial asset pool.
ii. Would it be just and equitable to make an adjustment to interests in property
The majority of the assets, more than 90 per cent of the total net asset pool, is in the possession and sole name of the husband. The husband by his application properly acknowledges that an adjustment in favour of the wife is appropriate. The parties are divorced and wish to bring an end to their financial relationship. It is just and equitable to make an adjustment in favour of the wife.
iii. Consideration of ss 79(4) and 75(2) of the Act in order to come to a just and equitable adjustment
Contributions under section 79(4)
At cohabitation
When they began living together the wife was working as a professional for R Company. She had a salary package of $70,000 per annum. The husband was working as a sailing coach. There is no evidence of his income from that occupation.
The husband owned the residential property that the parties lived in. He had some cash ($12,000) and shares ($24,000) and superannuation of about $69,000. The wife had a motor vehicle, some furniture and shares in R Company and no other significant assets.
The initial contribution by the husband of an unencumbered home for the parties to live in must be properly recognised.[4]
[4]Pierce v Pierce (1998) FLC 92-844; [1998] FamCA 74.
During the relationship/marriage
The parties at no stage had a joint account. Each kept personal accounts.
In the early years the parties shared equally in the cost of skiing holidays and in most expenses of the household.
In 2008 the husband began working as a transport worker for M Company and his income rose from $60,000 per annum to $123,000 per annum over the following five years.
From 2010, after the first child was born, it was not contested that the wife met child care expenses from her wage and received the government rebate.
Although the husband asserted that he did not know how the wife spent her wages, there was no accusation by him that the wife applied her income outside the needs of the family. I conclude that her income was used for that purpose.
The husband did not include in his affidavit any information about what household expenses he paid for if he did. He was able to save a percentage of his salary.
The wife was able to transfer funds online from an account of the husband to her account when she needed money beyond her wages. I accept that she did so sparingly and reluctantly. I also accept that the explanation she gave to her mother for borrowing from her occasionally, rather than drawing on the husband’s savings, namely “Mr Walden [the husband] gets mad”, was the genuine explanation for doing so.
I conclude that the husband was irritated when withdrawals were made. He would challenge the wife about the need for withdrawals and her use of funds. He conceded that “on the odd occasion” he would say to the wife (about a transfer) “what do you want that for”. Likewise he would accuse the wife, “You are ripping me off”.[5]
[5] Affidavit of Ms Cooper filed 20/09/2019, Annexure C.
During cross-examination the husband said quite indignantly, referring to 2016 “I gave her $18,500 in that year” referring to these transfers. His tone suggested inexplicable levels of spending.
The total amount transferred by the wife from the account of the husband over five to seven years was $82,000, a very modest amount in relation to his income over that period.
The proposition was put to the husband that there would be no reason for the wife to have borrowed from her mother unless it had been difficult to call on him. The husband replied with a flash of spontaneous anger:
I don’t know. She could have been down playing poker machines. How do I know?
Overall the evidence suggests that the wife exhausted her income on the needs of the children, herself and the household. Financial assistance for the wife at times, from her mother, allowed the husband to preserve a little more of his salary.
On 31 March 2016, before any inheritance money was received, the husband had $310,000 in savings in the bank and shares. He was airily dismissive about his financial position at that time “I can’t recall”, “I don’t remember”, “I buy shares and forget them.” It seems entirely unlikely. The evidence suggests that the husband was at all times conscious of his financial position.
The wife provided most of the day to day care of the children with the husband involved with them when he was not away on an overseas trip.
The husband conceded that most of the washing, cooking and food shopping was also carried out by the wife.
Since separation the wife has made a much greater contribution to the welfare of the children.
By date of trial, over 16 years, the contributions of the parties should be assessed excluding the inheritance in the ratio 60/40 in favour of the husband. The ratio reflects the provision by the husband of the home throughout the marriage, and the contributions of the wife through all of her wages, and as a homemaker and parent.
The relevant matters for future needs to be taken into account are as follows.
Relevant factors under section 75(2)
The age and state of health of each of the parties
The husband is 67, the wife is 45. Both are in reasonably good health although the husband has suffered from complications of kidney stones.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The husband has the former family home in Sydney which he owned and lived in before meeting the wife. He has long term savings. He has been the beneficiary of a substantial inheritance.
This last factor is a most significant one. Not all of the $2.5 million of inherited funds is in the asset pool. The majority of it is. Legal fees of approximately $398,000 have been paid from those funds but have been added back. The Court cannot put an exact figure on what has otherwise been spent by the husband on travel between Australia and Country H, and maintenance of the family there. The house was purchased for $78,000. That asset is not in the pool. Estimating, the balance of inheritance is represented by about $2.3 million of the assets in the pool.
The remaining inherited funds provide financial security for the husband now and an income in addition to superannuation for life.
An adjustment for the future for the wife who has the care of the children is appropriate.
Income
The husband was confident in the trial that he would probably work as a transport worker for a few more years into his early seventies.
His net weekly income disclosed in his Financial Statement in September 2019 was $2,430.
His evidence on re-opening was that he was much less confident about future employment.
This is a difficult matter to analyse. The husband expresses a pessimistic personal opinion:
There is significant uncertainty as to M Company continuing to operate in Australia and if it does at what capacity. From my experience it is highly unlikely that M Company will continue to operate.[6]
[6] Affidavit of Mr Walden filed 29/04/2020, para 13.
There is no evidentiary basis for concluding that the husband will or will not resume employment with his current employer.
The Court cannot know whether the husband will receive any severance payment or redundancy if his employment does end permanently.
However there must be a theoretical possibility that the husband could be employed by another company as a transport worker within Australia.
Some modest adjustment in favour of the husband is required. The balance is between return to work for the next few years or no return to work at all, which amounts to early retirement at 68 years.
Employment of wife
The husband believes that the wife will return to a senior professional position after these proceedings are complete. The evidence does not support that outcome as likely, although of course it is possible.
The wife has committed herself to qualifying as an educator and also to living close by to her parents for their support. Certainly she will earn less in that occupation but that does not give rise to a finding that the wife would inevitably return to a more lucrative position in future.
Further she would likely be obliged to move from a rural town to a city with all the attendant costs of housing there.
The wife can potentially work for another 20 years. Her income at present is artificially higher for six months because the Commonwealth JobKeeper payment exceeds that of her wage as an educator.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The wife has the full time care of the parties’ two children now aged nine and five years. There are orders which provide for contact between the children and the husband.
The wife wishes to work around the needs of the children at home and at school. The younger child will start school in 2021. For that reason, although she plans to live independently, the wife is intending to remain living in close proximity to her mother in the B Town area.
I accept that the wife will more likely stay in the B Town area and work in child care at least while the parties’ children are young.
Commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain
The husband has bought a house in Country H as a residence for his wife and child, in the name of his wife.
The husband travels to Country H three or four times a year. He provides a payment of $750 per month to his wife to maintain the household there.
Subject to s 75(2)(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
Each party has superannuation; the husband through FF Superannuation in the sum of $388,011. The husband could access his superannuation as income if he does not return to full time employment. He could continue to contribute if employed.
The wife has superannuation of $235,000 through GG Superannuation. She will continue to contribute over the balance of her working life.
Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The husband has maintained a reasonable standard of living unchanged from the marriage.
The wife proposes to buy a property in the B Town area. It would be reasonable for the wife to accommodate herself and the children in a house with comparable space and comfort as the former family home in Sydney.
The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The marriage endured for 13 years. The wife had a reasonable income during the marriage which she used to meet her expenses and those of the children.
The wife will have a lower income but in an area where housing is less expensive.
The need to protect a party who wishes to continue that party's role as a parent
The wife has always provided more of the day to day care of the children due to the nature of the husband’s work as an overseas pilot.
The wife wishes to be available to the children around their attendance at school, for activities and maternal family events and for travelling to spend time with their father.
The husband too wishes to maintain his role as a parent spending time with the children according to current operative orders. He is also committed to his parental role in Country H.
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The husband has paid child support. In June 2019 the assessment was $1,825 per month.
A late filing of a tax return led to a reassessment of child support creating arrears. There was $600 outstanding in February 2020; the husband having been paying arrears down. I accept that the husband has met his obligations nonetheless.
I accept the submission of counsel for the wife that if the fears of the husband about not returning to work as a transport worker are realised, child support is likely to drop down significantly when re-assessed.
There should be a modest adjustment in favour of the wife reflecting the balance of child support perhaps continuing at present levels (or higher), against a re-assessment for a much lower sum if the husband does not return to work in the transport industry.
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The husband put forward evidence of a drop in value of his shares and superannuation as he was permitted to do.
However I confirm reliance on the trial Balance Sheet.[7] To do otherwise would require opening up the asset and liability pool in its entirety for revaluation. Fluctuations in values of realty, chattels and bank account balances are inevitable during the period when judgment is reserved.
[7] Exhibit 1
Analysis
Provision for the future requires an adjustment to the wife on account of a disparity in income and superannuation and the arrangements the wife has made by residence and employment to provide care and supervision for the children with the assistance of her family.
I take into account that the husband may be forced to retire and commence receiving superannuation as income but if he does, child support payable will be significantly less.
I also take into account that the husband may return to work, with his current or new employer and receive income at a very much higher level than that of the wife, even if she did resume her earlier more lucrative employment.
Taking the balancing factors into account the adjustment will be in favour of the wife to equality with the husband in respect of the matrimonial asset pool.
Therefore the wife should receive a sum which provides her with 50 per cent of the net assets of $4,916,241, excluding estimated balance of inherited funds ($2,300,000) = $2,616,241.
To the husband 50 per cent; $1,308,120.
To the wife 50 per cent; $1,308,120.
Cash payment to the wife by the husband of $1,308,120 less assets of $338,970 in her possession = $969,150.
iv. Is the adjustment contemplated just and equitable?
The outcome is that the wife will retain her superannuation and have funds for the purchase of a property after repayment of personal debts. There will likely be a fund for contingencies for the children and herself.
The husband will retain his Sydney home, his superannuation and the balance of his shares and cash remaining from his inheritance after the payment to the wife.
The allocation to the wife represents approximately 25 per cent of the total asset pool including the inheritance.
I am satisfied that the adjustment adequately reflects the contributions and future needs of each party.
Orders are made accordingly.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 29 May 2020.
Associate:
Date: 29 May 2020
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Costs
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Injunction
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Procedural Fairness
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