Costa and Frame

[2018] FCCA 1174

FEDERAL CIRCUIT COURT OF AUSTRALIA

COSTA & FRAME [2018] FCCA 1174

Catchwords:
FAMILY LAW – Property adjustment – final orders made.

Legislation:

Family Law Act 1975, ss.75(2), 90MT, 106A

Applicant: MR COSTA

Respondent: MS FRAME

File Number: PAC 471 of 2015

Judgment of: Judge Newbrun

Hearing dates: 6, 7, 8 November 2017

Date of Last Submission: 8 November 2017

Delivered at: Parramatta

Delivered on: 11 May 2018

REPRESENTATION

Counsel for the Applicant: Ms Druitt

Solicitors for the Applicant: Blunden & Montgomery

Counsel for the Respondent: Ms Haughton

Solicitors for the Respondent: Soden Legal

ORDERS

1. The husband shall pay to the wife the sum of $324,656 within three (3) months of the date of these Orders.

2. Immediately upon receipt of the said sum of $324,656, the wife shall do all things and sign all such deeds, documents and instruments as may be necessary to transfer to the husband all her right title and interest in the property situated at and known as Property A, Certificate of Title Folio Identifier (omitted) (“the Property A property”) at the husband’s expense.

3. That simultaneously with the said transfer referred to in Order 2 herein, the husband shall do all such acts and things and sign all such deed, documents and instruments as may be necessary to refinance the existing mortgage to the Bank 1 secured over the Property A property into his sole name PROVIDED HOWEVER that the wife shall sign the appropriate discharge authority within seven days of same being submitted to her.

4. In the event that the husband fails or neglects to pay to the wife the said sum of $324,656, in accordance with Order (1) above, then in that event, the parties shall forthwith thereafter join in the sale of the Property A property and do all such acts and things and shall execute all such deed, documents and instruments as may be necessary to list for sale and sell the said Property A property for a price and with an agent to be agreed upon between the parties, or in default of such agreement as to either agent or selling price for more than fourteen (14) days with an agent and at a price determined to be a fair market price by Mr J, valuer.

5. That upon the completion of the sale of the Property A property in accordance with Order (4) herein, the parties shall distribute the proceeds of sale, in the following order and priority:

   (a)In discharge of the mortgage presently encumbering the former matrimonial home with the Bank 1;

   (b)In discharge of any outstanding Council and Water Rates;

   (c)In payment of Real Estate Agent’s proper commission arising from the sale;

   (d)In payment of proper legal costs and expenses arising from the sale;

   (e)In payment of any other expenses which may have been reasonably incurred in respect of such sale, including valuer’s fees if appropriate;

   (f)In payment of the sum of $324,656 to the wife;

   (g)In payment of the balance then remaining to the husband.

6. That the base amount of $25,332 be allocated, as required by section 90MT(1)(a) of the Family Law Act 1975 (Cth), to the wife, Ms Frame, out of the interest held by the husband, Mr Costa, in Super Fund 2.

7. That whenever the Trustee of Super Fund 2 makes a splittable payment to the husband, Mr Costa, the Trustee shall pay the wife, Ms Frame, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), and make a corresponding reduction in the entitlement the husband, Mr Costa, would have had but for these Orders.

8. That Orders (6) and (7) have effect from the operative time.

9. That the operative time for this order is four (4) days from the date of service of the Orders on the Trustee.

10. That the above Orders bind the Trustee of Super Fund 2.

11. Thereafter the husband be declared to be the sole legal and beneficial owner of his right, title and interest in and to:

    (a)All cash at banks and monies invested in the husband’s sole name;

    (b)All furniture and personal effects in the husband’s possession;

    (c)Any superannuation entitlements received by the husband and invested by or on his behalf;

    (d)Any motor vehicle registered to the husband.

12. That the wife thereafter be declared to be the sole legal and beneficial owner of her right, title and interest in and to:

    (a)All cash at banks and monies invested in the wife’s sole name;

    (b)All furniture and personal effects in the wife’s possession;

    (c)Any superannuation entitlements received by the wife and invested by her or on her behalf;

    (d)Any motor vehicle registered to the wife.

13. That unless otherwise provided for herein, each party shall forthwith be declared entitled to retain and shall relinquish in favour of the other party any claim to any right title or interest in all items of property presently in the possession or custody of the other party including but not limited to real property, monies held in any bank, building society or credit union, shares, superannuation or life entitlements, motor vehicles, chattels, furniture, furnishings and personal effects.

14. Each party is responsible for any liabilities in their respective names and hereby indemnifies the other in relation to all claims, costs or otherwise in relation to those liabilities which may be made against all incurred by the other party in respect thereof.

15. In the event that either party fails to sign any necessary document or instrument or to do any acts required or contemplated by these Orders to be done with such failure continuing for fourteen (14) days, then the registrar of the Federal Circuit Court of Australia in pursuance of the Orders conferred on him or her under Section 106A of the Family Law Act 1975 (Cth), as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.

16. Liberty to apply on seven (7) days’ notice in relation to any issue of facilitating the above Orders.

IT IS NOTED that publication of this judgment under the pseudonym Costa & Frame is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 471 of 2015

MR COSTA

Applicant

And

MS FRAME

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was the final hearing of property proceedings between Mr Costa (“the husband”) and Ms Frame (“the wife”).

2. The husband was born on 1972 and is currently 45 years old.  The wife was born on 1974 and is currently 43 years old. 

3. There are two children of the relationship, [X], date of birth 2003, and [Y], date of birth 2009.

4. The parties commenced cohabitation in about 2002.  They temporarily separated in August 2005 for about six months.  In 2007 they married, and then cohabited until about June 2010 when they finally separated.

5. The husband works as a (occupation omitted).  The wife presently operates a Business at the (location omitted).

Parties’ proposals

1. The husband sought Orders set out in his Case Outline.Essentially, he sought Orders that the wife transfer to him her interest in their jointly owned property at Property A; that the husband refinance the mortgage over that property into his sole name; and that each party be entitled to retain all items are property including monies, motor vehicles, superannuation entitlements, currently in their respective possession or control.

2. The wife ultimately sought Orders set out in her Amended Response.  Essentially, she sought Orders that the husband pay to her $400,000; that upon receipt of the said sum of $400,000, the wife transfer her interest in the Property A property to the husband, with the husband to refinance the mortgage into his sole name; that there be a superannuation split in the wife’s favour from the husband’s Super Fund 2 policy in the sum of $36,500; and that thereafter each party be declared to be the sole owner of cash monies, personalty, motor vehicles, and superannuation entitlements in their respective names.

Material relied upon

1. The husband relied upon the following documents:

   a)Initiating Application sworn and filed on 4 February 2015;

   b)Amended Financial Statement sworn and filed on 1 November 2017;

   c)Affidavit of the husband sworn and filed on 27 October 2017; and

   d)Affidavit of Mr M (expert valuer) sworn 20 October 2016 and filed 26 October 2016.

2. The wife relied upon the following documents:

   a)Amended Response filed 1 November 2017;  

   b)Financial Questionnaire filed 20 July 2015;

   c)Financial Statement filed 31 October 2017; and

   d)Affidavit of the wife filed 16 February 2016.

3. There were certain documents tendered in evidence:

   a)Balance sheet (Exhibit A);

   b)Applicant husband’s Exhibits marked MC1-MC62 (Exhibit B);

   c)ATO Notice of Assessments for Mr Costa and tax return summaries for 2014, 2015 and 2016 (Exhibit C);

   d)Letter from Soden Legal to Blunden & Montgomery; Vessel Registration Certificate for (omitted); Certificate of Registration for (omitted) (Exhibit D);

   e)Mortgage document dated 1995 (Exhibit E);

   f)Husband’s financial questionnaire filed 21 July 2015 (Exhibit F);

   g)Documents not produced under subpoena that the RW will cross examine (Four stapled documents – Two Residential Loan Agreement Offers Bank 1, Two Home Loan documents Bank 1) (MFI1 Exhibit S);

   h)Notice to produce to Mr Costa dated 31 October 2017; email from Soden legal to Blunden Montgomery dated 31 October 2017 (MFI1 Exhibit G);

   i)Bundle of documents including emails from Blunden and Montgomery and Soden lawyers (MFI3 Exhibit V);

   j)Bundle of documents from Respondent wife (MFI4);

   k)Statement of Settlement and Tax Invoice from Mr E and Associates to Applicant husband dated 16 February 2012 (some documents from MFI4) (Exhibit H);

   l)Email trail engaging and briefing expert valuer dated 12 and 13 October 2017; Email of 2 November 2007 to valuer (Exhibit I);

   m)Screenshot of husband’s Bank 1 Account showing balances of accounts as at 7 November 2017 (Exhibit J);

   n)Photo identified as shed with damage (Exhibit K);

   o)Bank transaction document titled Statement 13, Account number ending (omitted) (Exhibit L);

   p)Respondent wife’s Business appointment book (photocopy version) (Exhibit M);

   q)Respondent wife’s green book, Collins A24 Series Analysis Book (photocopy version) (Exhibit N);

   r)Subpoena dated 1 September 2017 to Ms Frame (Exhibit O);

   s)Notice of Assessment and tax return of Mr Costa dated 2012 (MFI5 Exhibit R);

   t)Financial Questionnaire of Ms M filed 20 July 2015 (Exhibit P);

   u)Child Support Payer Transaction Statement of Mr Costa for the period 1/8/05 – 26/5/15 (Exhibit Q);

   v)Bundle of documents in Bank 1 folder (Exhibit T);

   w)Bank 1 bank statement re: husband’s Bank 3 account, account number ending (omitted) (Exhibit U); and

   x)Updated agreed balance sheet (Exhibit W).

Credit and disclosure

1. Both parties presented as fairly unsophisticated witnesses who generally sought to answer questions put to them in cross-examination responsively, whilst noting that aspects of their documentary evidence were ultimately revealed to be unreliable.

2. Both parties failed to make financial disclosure in a timely manner.

3. Belatedly, by the commencement of the trial, disclosure was made by each party of their superannuation entitlements.

4. Both parties were cross-examined extensively in relation to financial disclosure.  Certain disclosures were made by each of them during cross-examination.  Certain documents were belatedly produced by both sides during their respective cross-examinations.

5. The wife’s failure to make financial disclosure in a timely manner was contended to relate, in particular, to her Business which she began to operate in late 2016, and her bank accounts.

6. In this context, it became apparent that the wife had not answered adequately a subpoena to produce documents served upon her by the husband.

7. The wife stated that she had not yet completed business activity statements for her business, nor had she completed her income tax return, whilst noting that the Business had only been operated by her since late 2016.  Her produced records for her business were quite basic.  Her last filed Financial Statement was revealed to be incorrect in relation to her business.

8. Nevertheless, the wife was cross-examined in relation to her business (as well as being questioned by the Court), including her approximate income and expenses in that business, as well as her bank accounts, and the Court accepts this evidence of the wife.  That evidence included evidence that the wife’s clientele in her Business at the (location omitted) are elderly and that the wife has to keep her prices low.

9. There was no evidence adduced by the husband to suggest that the wife had specific undeclared funds or assets.

10. The husband’s non-disclosure, including failure to make financial disclosure in a timely manner, was contended to relate, in particular, to rental income and certain bank accounts, including transactions in relation to such accounts.

11. In relation to the husband’s bank accounts, it is not without relevance that the cross-examination of the husband often focused on post-separation cash transactions. On at least one occasion the husband referred to the source of a cash deposit (being a post-separation deposit) being from his work income.

12. There was no evidence adduced by the wife to suggest that the husband had specific undeclared funds or other assets.

13. Ultimately, the Court, having heard both parties’ oral evidence relating to contended financial non-disclosure, and considering all the material before the Court, is not persuaded that they presently have significant assets or financial resources that remain undisclosed.

Evidence

1. At the commencement of cohabitation in September 2002, the husband was a self-employed (occupation omitted), and the wife was a (occupation omitted) at a (employer omitted) earning about $530 per week.  The wife was already pregnant with the child [X] before cohabitation commenced.

2. At the commencement of cohabitation, the husband owned a property at Property B, subject to a mortgage loan.  This property had been purchased in 1993 by the husband’s father for about $125,000.  The husband purchased the property from his father and in 2001 obtained mortgage finance in the sum of $150,000.  The lender, Bank 2, undertook a valuation of the Property B property in 2001 in the sum of $210,000.  The sum of $210,000 was also stated to be the sale price of the Property B property from the husband’s father to the father, such transfer being dated 2001.

3. The mortgage balance on the Property B property was about $100,408 on 2002.

4. Mr M, valuer, sought to value the Property B property as at 1 2003 in the sum of $350,000.  The Court does not accept this valuation.  The valuation incorrectly recorded the Property B home as having been built in about 2006, whereas in fact it was a brand new home in about early 1993 when the husband’s father purchased it; the Court notes the reference to the “Age of dwelling: 10 years” in Exhibit I is consistent with the reference in paragraph 7 of the report to the building being built in about 2006.  The valuer conceded that he had not been able to inspect internally the three properties referred to on page 6 of his affidavit, nor was he able to internally inspect the subject property.  The Court does not accept the valuer’s belated evidence that he regarded the subject dwelling as having been ten years old in 2003, or that there was a typographical error in paragraph 7 of his report.  The Court did not regard Mr M as being an impressive witness.

5. There is force to the wife’s submission that the purported valuation of the Property B property as at 2003 is without significant relevance.

6. At the commencement of cohabitation, the husband, besides owning the Property B property, owned a truck (with associated debt of $25,000), utility vehicle, nominal savings and superannuation.  The wife had a car and no other assets.

7. The parties lived in the Property B property at the commencement of cohabitation.  The child [X] was born on 2003.

8. Following the birth of the child [X], the mother cared for the child, whilst the husband worked in his Business.

9. In about 2003, the wife obtained a casual position at a (employer omitted) where she worked night shifts between 6 PM and 10 PM.  Between 2003 and 2008 her role with the (employer omitted) changed to the position of (occupation omitted), which became a full-time role.  By 2008 the wife was working about 40 hours per week at (employer omitted).

10. In about late 2003, the husband purchased a property at Property C for $350,000.  He used the equity in the Property B property to assist in its purchase.  A home loan was taken out for $129,000.  The parties moved into the Property C property to live, whilst renting out the Property B property.

11. In about 2005 the parties separated for about six months (inter alia, the Court notes in this context that the husband’s affidavit evidence that he paid child support as assessed to the Child Support Agency from 2 August 2005 was shown to be incorrect by reference to Exhibit Q).  The wife moved back to her parents’ home, taking the child [X] with her.  The husband began to spend time with the child frequently on weekends.  They resumed cohabitation and later married in 2007.

12. The husband continued to pay the mortgage repayments for these properties.

13. The parties had joint accounts.  The husband stated that the joint account started when they married in 2007.  The husband stated that the majority of his income was paid into the joint account.  He stated that the funds in the joint account paid for all the household bills.  He did not dispute that both parties’ pay went into the joint account.

14. In 2008 the Property B property was sold for $345,000.  The husband agreed that its mortgage balance was $120,000 at this time.

15. In about mid-2008 the Property C property was sold for $370,000.  No profit was made on its sale after payment of liabilities relating to it.

16. In about 2008 the parties purchased a property at Property A for $596,000.

17. Arising out of the sale of the Property B property, about $225,000 was contributed to the purchase of the property at Property A.

18. The wife ceased her casual work for about five months after the Property A property was purchased.  Then she resumed her casual employment, working up until about a month before the child [Y] was born on 2009.  The wife did not work in paid employment thereafter until about 2015, when she did some casual (omitted) work earning about $30 per week.

19. In about 2016 the wife commenced to operate a Business at the (location omitted).  The wife is a qualified (occupation omitted).

20. The husband agreed that the wife had done more for the children compared to himself during the relationship.

21. The parties separated in about June 2010.  A final Apprehended Domestic Violence Order was made for the wife’s protection on 30 July 2010.

22. Following the parties separation in June 2010, the husband commenced to pay formal child support to the wife.  Exhibit Q states that child support has only been paid from 18 June 2010, the approximate date of the parties’ final separation; the Court accepts the content of Exhibit Q.

23. In 2010, the husband received worker’s compensation of about $8,000 from his employer relating to an assault at work, which had occurred in about late June 2010, which he paid towards the mortgage loan (the husband had agreed with the mortgagee bank not to make mortgage repayments until he could obtain alternative employment following that assault).  He made further payments of about $3,500 and $4,300 to pay arrears on the mortgage.  He made a further payment of about $2,800 in November 2010.

1. The husband asserts that the parties had come to an agreement in about June 2011 for the husband to have the property at Property A subject to the mortgage debt.  He asserts that it was part of the agreement that he could spend time with the children on weekends.  He asserts that he was left with a joint credit card debt and the wife took a Vehicle 1 motor vehicle.  The Court is not persuaded that such an agreement was entered into by the parties.  Not without relevance in this context is, inter alia, the husband’s further evidence that the parties tried to sell the Property A property from about November 2011 to February 2012, and that the best offer they received was $550,000.

2. At separation, there was a joint credit card debt owing to the Bank 4 in the sum of about $9,000, and the husband paid off that debt in instalments.  He also paid off a joint credit card debt owed to Bank 1 at separation of about $3,158.

3. The property was left unoccupied from final separation in June 2010 to about January 2012.  Thereafter it was rented out.  The rental income was paid towards the mortgage loan.  The husband has been responsible for the mortgage repayments on the Property A property since separation, again noting his utilisation of workers compensation payments for this purpose, and rental income post January 2012.

4. In this latter context, the husband asserts that for a significant period after the property at Property A was rented out he paid the difference between the rental received for that property and the mortgage repayments.  The Court is not persuaded that the husband’s asserted payments in this context totalled about $96,000 but, nevertheless, they were probably of a total sum which represented the major proportion of this sum.  In this context, the Court observes that there are discrepancies between the husband’s Exhibit B schedule relating to rent received for the property and his gross rental disclosed for taxation purposes in his individual tax returns.

5. The husband’s taxable income for the financial year 2004 was $12,886; for 2005, $10,945; for 2006, $35,863; for 2007, $43,651; for 2012, $93,821; for 2014, $43,858; for 2015, $94,704; and for 2016, $105,704.

6. Since the purchase of the Property A property, the husband also paid Council rates, water rates, management and administration fees.

7. The husband usually worked long hours as a (occupation omitted) during the relationship.  Whilst the husband was carrying out this work, the wife, when not working in her casual employment, was the primary carer of the children, and she was primarily responsible for the day-to-day cleaning and maintenance of the properties.  The husband attended to mowing the lawns.

8. After the separation in June 2010, the children lived with the mother.  The children spent alternate weekends with the father.  Then in about July 2014 the child [X] lived in an equal time arrangement.

9. Since about the beginning of 2015, the child [X] has lived with the father, and usually spends alternate weekends with the mother (there being occasions where he will resist spending time with the mother).  The father would leave for work early in the morning and have a neighbour assist [X] in getting to school.  Later this neighbour moved and could not so assist, and [X] would organize himself for school in the mornings.

10. The younger child [Y], in about mid-2015, stopped spending regular time with the father.  The father sees this child every Friday after school for a few hours.

11. The wife has entered into a relationship with Mr D, with whom she lives in a rented property.  The rental is $580 per week.  The wife pays half this rent.  The partner is an (occupation omitted), and he has two children, with one of these children living with the wife and partner, and the other child spending alternate weekends and school holidays with them.

12. As to the financial circumstances relating to the wife’s cohabitation with her new partner Mr D, she asserts that she was lent $18,000 by him, in part to assist the wife with a rental bond, and in paying for expenses to start up the Business. The wife asserts that he shares rent with the wife and also contributes to household expenses. He works as an (occupation omitted) and has 2 children from his prior relationship.

13. In cross-examination, the wife asserted that her new partner was an (occupation omitted).  She asserted that he received about $90,000 in 2014/2015 relating to the dissolution of his former relationship.  She had entered into a bona fide domestic relationship with him about two years previously.

14. Following the parties’ separation in June 2010, the wife approached the Child Support Agency for official collection of child support.

15. The husband was in arrears of child support in February 2016 in the sum of about $2,000.

16. The husband’s superannuation records (Exhibit C 52 to husband’s affidavit) reveal the following history relating to his entitlements:

    ·    Super Fund 3: $6,411 as at 30.6.16; account opened 19.3.07 (rolled over into Super 2 on 10.11.16)

    ·    Super Fund 1: $7,196 as at 30.6.16 account opened 7.9.05

    ·    Super Fund 4 fund: $8,041 as at 30.6.17; account opened 10.10.16

    ·    Super Fund 2: $51,389 as at 30.6.17; account opened 1.8.09

17. The wife’s Super Fund 5 superannuation ($11,525 in the balance sheet below) started when she commenced work at (employer omitted) during the relationship.

Property adjustment

1. The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of the property, and the fact that the continuance of the current legal ownership of the property would not afford them justice and equity.  The parties join in seeking Orders for property adjustment.

Balance sheet

1. Exhibit W was the parties’ joint balance sheet:

Ownership		Description	Wife / de facto partner’s value	Husband / de facto partner’s value
ASSETS
1.	H/W	Property A	$ 1,050,000.00	$    1,050,000.00
2.	H	Motor Vehicle – Vehicle 1	$       5,000.00	$           5,000.00
3.	H	Motor Vehicle – Vehicle 4	$     10,000.00	$        10,000.00
4.	H	Boat &Trailer	$       4,000.00	$           4,000.00
5.	H	Bank 1 – (omitted)	$       2,344.00	$            2344.00
6.	H	Bank 1 – (omitted)	$             3045	$                 3045
7.	W	Bank 4 (omitted)	$          896.00	$                    NK
8.	W	Bank 4 – (omitted)	$          143.83	$                   NK
9.	W	Vehicle 2	$              NIL	$               3,000
10.	W	Motor Vehicle – Vehicle 3	$       2,000.00
11.	W	Business	$               NIL	$        20,000.00

Total $ 1,077,428.83 $     1,097,389.00

ADDBACKS
12.	$	$
13.	$	$

Total $                   0 $                    0

LIABILITIES
14.	H/W	Mortgage – Bank 1	$   366,514.00	$      366,514.00
15.	H/W	Mastercard – Bank 1 (joint)	$          187.00	$              187.00
16.	H	Loans – personal with Bank 5	$               NIL	$        20,000.00
17.	W	Loan to Ms F	$     15,000.00	$  NK
18.	W	Loan to Mr D	$     18,000.00	$                   NK
19.	W	Loan to Centrelink	$     20,000.00	$                   NK

Total $        419,701 $            386,701

SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife / de facto partner’s value	Husband / de facto partner’s value
20.	H	Super Fund 2	$      51,389.64	$        51,389.64
21.	H	Super Fund 1	$              7,197	$                7,197
22.	W	Super Fund 4	$           11,525	$              11,525
23.	H	Super Fund 4	$       8,041.22	$           8,041.22
24.	W	Super Fund 5	$                506	$                  506

Total $      78,658.86 $        78,658.86

FINANCIAL RESOURCES
Ownership		Description	Wife / de facto partner’s value	Husband / de facto partner’s value
25.	$	$
26.	$	$

Total $  0 $  0

1. The Court will now determine the disputed items in the joint balance sheet.

Items 2, 3, 7, 8, 9, 10, 11, 16, 18, 19

1. These items shall be removed from the balance sheet in accordance with the parties’ submissions.

Item 4: the husband’s boat and trailer

1. The wife conceded in cross-examination that the husband’s boat and trailer had been purchased after 2010.  The wife contends that this item should remain in the balance sheet “because of nondisclosure of the husband of the second Bank 1 account he held during the relationship – funds may have come from that account”.  In the view of the Court, that contention is speculative and the Court refers to its discussion above in relation to credit and disclosure.  The item shall be removed from the balance sheet.

Items 5, 6: the husband’s bank accounts with Bank 1

1. The wife contends, inter alia, that these items should remain in the balance sheet:

   because of nondisclosure of the husband of the second Bank 1 account he held during the relationship – funds may have come from that account or because the husband asserts any of the wife’s post separation acquired business forms part of the pool, so do his savings. He retained the bigger income at separation and he is keeping the rent from the house which may well be in this account.

   This is the account (the second Bank 1 account the husband held during the relationship) the husband has produced not one statement for, so we can only guess how long those funds have been in the account or whether they represent rent from the jointly owned house.

2. In the view of the Court, the wife’s contentions are speculative, and the court refers to its discussion above in relation to credit and disclosure.  

3. In cross-examination, the wife accepted that the husband’s bank monies were probably earnt post separation.

4. The items shall be removed from the balance sheet.

Item 17: the wife’s loan from Ms M, her mother, $15,000

1. The Court is not satisfied that the wife has established that this item should be included in the balance sheet.  Inter alia, the asserted loan was taken out a significant period post-separation (in about 2013); there is no affidavit of loan from the maternal grandmother; and the alleged loan is not referred to in the wife’s Financial Questionnaire (Exhibit P).

2. This item shall be removed from the balance sheet.

3. Accordingly, the Court’s final balance sheet is as follows:

Ownership		Description	Value
ASSETS
1.	H/W	Property A	$    1,050,000.00

Total $     1,050,000.00

LIABILITIES
2.	H/W	Mortgage – Bank 1	$       366,514.00
3.	H/W	Mastercard – Bank 1 (joint)	$             187.00

Total $       366,701.00

SUPERANNUATION
Member		Name of Fund	Type of Interest	Value
4.	H	Super Fund 2	$              51,389
5.	H	Super Fund 1	$                7,197
6.	W	Super Fund 4	$              11,525
7.	H	Super Fund 4	$               8,041
8.	W	Super Fund 5	$                  506

Total $              78,658

1. The Court finds that the parties’ net non-superannuation assets total $683,299.  The Court finds that the parties’ superannuation assets total $78,658.  Accordingly, the total non-superannuation and superannuation assets total $761,957.

Contributions

1. The Court refers to the evidence, discussed earlier in these Reasons.

2. The parties’ relationship spanned the periods from 2002 to 2005, and following a six-month separation, continued until final separation in June 2010.

3. At about the time of cohabitation, the husband had a utility vehicle, nominal savings, a truck which had a debt pertaining to it of about $25,000, some superannuation and owned the Property B property with equity of about $110,000. The wife only had a car at cohabitation.

4. The husband’s bringing the equity in the Property B property into the relationship was a significant contribution by him.

5. The Court takes into account that $225,000 was contributed towards the purchase of the property at Property A from the sale of the Property B property in 2008.

6. The husband paid Council rates, water rates, management and administration fees for the property at Property A after its purchase. Up until separation it was the husband who predominantly made the mortgage repayments on this property.

7. Post separation in June 2010, noting the husband’s work injury, the husband’s worker’s compensation of about $8,000, received in 2010, was paid against the mortgage loan for the Property A property.  He made further payments to pay arrears on the mortgage in late 2010.  He made payments in relation to the joint credit card debts with Bank 4 and Bank 1.

8. Whilst the property at Property A was being rented out, the husband made top up payments representing the difference between the rental income and the required mortgage repayment, being a major proportion of a sum of about $96,000.  The husband has remained responsible for the mortgage loan repayments since that time, with that property still rented out.

9. The wife was the primary carer of the children from their birth and such primary care continued after the parties’ separation in June 2010.  From about July 2014 the child [X] was subject to an equal time arrangement between the parties.  Since the beginning of 2015, the child [X] has primarily lived with the father.  The wife has continued to be the primary carer of the child [Y].

10. The wife’s contributions as primary homemaker and parent, for the relevant periods referred to above, were significant.

11. In particular, her superior homemaker and parent contributions (both pre- and post- separation) indirectly contributed to the husband’s earning capacity, enabling him to earn significant income as a (occupation omitted), and thereby make significant financial contributions towards the relevant mortgage debts and his superannuation entitlements.

12. The Court takes into account the history of the husband’s superannuation entitlements, referred to previously in these Reasons.

13. The Court takes into account the fact that the wife’s income from her (omitted) employment from about 2003 until about late 2009 (the wife having ceased work for about five months after the property at Property A was purchased in about 2008), which employment progressed from casual employment to a full-time role during that period, was paid into the parties’ joint account, together with the majority of the husband’s income, and from which the household bills and mortgage repayments were paid.

14. During the parties’ brief separation for about six months from 2005, the wife received no child support for the eldest child, and she was required to maintain this child.

15. The wife submitted that financial and non-financial contributions at trial date favoured the husband 55/45%. The husband, on the other hand, submitted that his contributions were 97% at trial date.

16. The Court, viewing the parties’ respective contributions holistically, assesses the parties’ contributions up to trial as favouring the husband 60/40%.

Section 75(2) of the Act

1. The husband is aged 45 years, the wife 44 years.

2. Both parties are in good health.

3. The husband’s income earning capacity is superior to the wife’s capacity.  He will be able to make greater contributions to his superannuation.

4. Each party has the primary care of a child of the relationship; [X] lives with the husband and [Y] with the wife.  However, the child [Y] is only aged 8 years, whilst [X] is aged 15 years; accordingly the wife’s likely longer care of a child under the age of 18 years will be taken into account.

5. The husband pays child support to the wife.  The wife is yet to inform the Child Support Agency of her business details.  The wife presently does not pay child support to the husband.

6. The wife submits that her Centrelink debt of $20,000 should be taken into account under section 75(2). In evidence the wife asserted that the debt dates back to 2013/2014. Noting, in particular, the parties’ separation in June 2010, this debt shall not be taken into account.

7. The wife has previously received financial assistance from her new partner and he contributes to her household expenses.

8. The husband submitted there should be no adjustment under section 75(2). The wife submitted that there should be an adjustment of at least 10% in favour of the wife.

9. The Court is of the view that overall there should be an adjustment in the wife’s favour of 7.5%.  This results in an adjusted division in favour of the husband of 52.5/47.5% relating to the parties’ assets, including superannuation.

Justice and equity

1. It will be just and equitable that there be, in favour of the husband, a 52.5/47.5% division of the net non-superannuation asset and a 52.5/47.5% division of the superannuation assets.

2. To effect a 52.5/47.5% division of the total superannuation assets, in favour of the husband, there should be an order for splitting of the husband’s Super Fund 2 policy such that the wife receives a share of that policy in the sum of $25,332, and the other policies should remain in their current ownership.

3. In relation to the non-superannuation assets, should the husband retain the property at Property A, net $683,486, then he will be required to pay the wife the sum of $324,656.  He should have three months to make this payment, otherwise the property should be sold.

4. The parties can make arrangements to pay the Bank 1 Mastercard debt of $187 in accordance with the adjusted property division findings above.

5. In the above circumstances, the Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 10 May 2018