COVENTRY & MCNAMEE - [2009] FMCAfam 1379

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COVENTRY & MCNAMEE

[2009] FMCAfam 1379

FAMILY LAW – Property settlement – long separation – contributions – wife’s non-financial contributions to husband’s superannuation entitlements.

Family Law Act 1975, ss.44 (3) 75 (2), 79 (4)

Applicant:

MR COVENTRY

Respondent:

MS MCNAMEE

File Number:

ADC 987 of 2009

Judgment of:

Mead FM

Hearing date:

18 September 2009

Date of Last Submission:

18 September 2009

Delivered at:

Adelaide

Delivered on:

23 December 2009

REPRESENTATION

Counsel for the Applicant:

Self Represented

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Mrs West

Solicitors for the Respondent:

Maloney & Partners

ORDERS

That on or before 20 January 2010 the wife’s solicitor forward to the husband and to the relevant trustees of the husband’s (employer omitted) Superannuation and Benefits Scheme and to the Associate to Federal Magistrate Mead, a draft Minute of Order encompassing the terms of this Judgment.
That further consideration be adjourned to 9.15am on 24 February 2010 for the making of final orders in terms of this Judgment upon procedural fairness being effected in the terms of this Judgment.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 987 of 2009

MR COVENTRY

Applicant

And

MS MCNAMEE

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Coventry and Ms McNamee are unable to decide on how to divide their property.
In determining this issue the court must first determine the asset pool available for distribution between the parties. An assessment must then be made as to the contribution that each of the parties have made to the acquisition, preservation and conservation of those assets in accordance with the principles set out in Section 79 (4) of the Family Law Act 1975 (as amended), and then determine whether there should be an adjustment to the proportions of each parties contribution to take into account any future needs of the parties. This determination is made taking into account the factors set out in Section 75 (2) of the said Act.
The court must then be satisfied that the order proposed is just and equitable as between the parties.

Background

Mr Coventry is 43 years of age. He is employed as an (occupation omitted) with the (employer omitted) and holds (position omitted). Ms McNamee is 41 years of age and engaged in fulltime home duties.
The parties separated on 8 July 2001 and a divorce was granted on

27 December 2002.
On 4 May 2009 an order was made by consent that the husband be at liberty to proceed with his application for settlement of property notwithstanding the terms of Section 44 (3) of the Family Law Act 1975 (as amended).
The parties commenced a relationship in (omitted) 1991. At that time the wife had the care of a child from a previous relationship, W born (omitted) 1988.
In (omitted) 1993 a property was purchased in the sole name of the husband at Property C. The parties commenced cohabitation in that property on or about (omitted) 1994.
The parties were married on (omitted) 1995, and separated on 8 July 2001. They cohabited for a total period of 7 ½ years.
There are three children of the marriage namely X, born (omitted) 1995 and 14 years of age as at the date of trial, Y, born (omitted) 1997 aged 12 ½ years as at the date of trial and Z, born (omitted) 1999 and aged approximately 10 ½ years as at the date of trial.
The wife and the parties’ three children as well as the wife’s son W have continued to reside in the former matrimonial home since the parties separated.
In the financial statement filed by the husband on 17 March 2009, he deposed to total average weekly income of $2,125 gross, being salary of $2,114 and $11 bank interest.
In the wife’s financial statement filed 30 April 2009, she deposed to total average weekly income of $895.72, being a parenting payment of $284.05, family tax benefits of $110.39 and child support paid by the husband in the sum of $501.28.
At the time of separation on 8 July 2001, the husband left the former matrimonial home. It is common ground that at that time the husband took with him his video camera, a filing cabinet and a (omitted) Holden Commodore motor vehicle. The parties are further agreed that the wife later provided the husband with some pots and pans and linen and some other minor household items.
The husband continued to meet all of the household expenses for three months following upon the parties’ separation, prior to the wife commencing to obtain Centrelink benefits and the issuing of a child support assessment.
The husband has been living in rented accommodation since separation in 2001, initially by way of subsidised rental accommodation on the (employer omitted) at (omitted) and subsequently in private rental accommodation. His salary includes a (employer omitted) rental allowance.

Orders sought

The orders sought by the applicant were set out in paragraphs 1–10 inclusive on pages 6 and 7 of his summary of argument. In essence the husband proposed that the wife retain the former matrimonial home at Property C, that she assume sole responsibility for the mortgage over that property by way of re-financing same, and that upon compliance with that re-financing requirement, the husband pay to the wife a further cash payment of $3,882.
The husband also proposed that each party retain all items of personalty in their possession and that he be solely entitled to any benefit to which he would be entitled pursuant to his interest in the (employer omitted) Superannuation and Benefits Scheme.
His proposal was based on the equity in the former matrimonial home being divided between the parties as to 60 per cent thereof to the wife and 40 per cent thereof to him, with the wife to also receive 60 per cent of 30 per cent of the current value of his superannuation entitlements. This was based on his argument that only 30 per cent of that amount was accrued during the period of cohabitation. He argued that this outcome was just and equitable in that there was an almost exact equal set off, one against the other, of the value of those adjustments such that it only required for him to make a minimal cash payment to the wife of $3,882. He submitted that he was then left with his superannuation benefits and a few items that he retained from the home in 2001, with the wife to be able to retain the former matrimonial home for herself and the children.
The wife sought orders based on the current value of the husband’s superannuation entitlements, with the husband’s interest in the former matrimonial home to be declared as 30 per cent of the equity, and that that amount be set off against the wife’s interest in the husband’s superannuation, which, it was argued, should be determined to be

40 per cent of the current value.
It was submitted that such a division would be equitably achieved by way of the husband’s equity in the former matrimonial home being offset against the amount of his superannuation to which the wife should be entitled, resulting in the wife retaining the home, indemnifying the husband in respect of any future mortgage payments and receiving a splittable interest in the husband’s superannuation with a base amount of $157,000.

Asset pool

The parties were agreed that the former matrimonial home for the purposes of these proceedings has a value of $310,000. It was further agreed that as at 30 May 2009, the value of the husband’s superannuation entitlements was $581,457. The parties were agreed that there were no other relevant assets to take into account for the purposes of fixing the value of the asset pool. It was agreed that the mortgage in respect of the former matrimonial home as at the date of trial was approximately $58,000.
I find therefore that the former matrimonial home for the purposes of these proceedings has a net value of $252,000.
I find the current value of the husband’s superannuation entitlements for the purposes of these proceedings to be $581,457.
Although the parties were agreed for the purposes of these proceedings as to the value of the husband’s superannuation as at 30 May 2009, it was the husband’s case that this was not the appropriate amount to take into account for the purposes of determining the issues in dispute. He argued that the value of his superannuation entitlements as at 30 June 1993 was $52,485 and as at the date of separation $187,220. These amounts were agreed by counsel for the wife.
It was the husband’s argument that the only amount of his superannuation that should be taken into account when assessing contribution issues is $134,735, which he argues is the amount of his superannuation accrued during the period of cohabitation. For the reasons to which I refer later when assessing the question of the parties contributions to the asset pool both during the period of the marriage and post separation, I find that the appropriate value for the purpose of ascertaining the totality of the asset pool is $581,457.
Counsel for the wife also submitted that it would be appropriate to take into account when assessing Section 75 (2) factors the fact that the husband as at the date of trial was entitled to long service leave of 7 months and 15 days. She further submitted that although the value of the superannuation as at 30 May 2009 was agreed at $581,457, that the value would have increased by the time of trial. There was no evidence before me with respect to that submission, and I therefore propose to rely on the agreed figure of $581,457 for the purposes of these proceedings. I will address the issue of the long service leave resource available to the husband when considering Section 75 (2) factors.

Contributions

The parties commenced cohabitation at the property at Property C in (omitted) 1994, which had been purchased in the sole name of the husband in (omitted) 1993. Although it was purchased in the sole name of the husband, it is common ground that the husband contributed $21,000 to the cost of that house and land package and the wife $5,000. It was the wife’s evidence that the property chosen was a four bedroom home as the parties intended to have a large family. That evidence was not disputed by the husband.
The balance of the purchase price was borrowed from (omitted) Bank pursuant to a (omitted) Bank Home Loan .
At the time of commencement of cohabitation, the husband was employed in the (employer omitted), initially as a (position omitted) and later as a (position omitted) and working on a full time basis.
The wife was engaged in providing (employment omitted) at the property in which she lived at (omitted). Following upon the commencement of cohabitation, the wife continued to supplement her Centrelink Family Payments Benefits that she received in respect of her son W with income from (employment omitted) that she provided from time to time at the Property C property. Her evidence was that she also undertook some (omitted) work at (employer omitted) for 3 months in 1994. None of this evidence was disputed by the husband.
It was the wife’s case that in addition to the $5,000 financial contribution towards the cost of the Property C property, she also contributed some savings (undefined) and “a house full of furniture”.
The husband’s case was that both parties contributed furniture, which he assessed to be approximately equal.
His evidence was that during 1994, when the parties first moved into the property to live, he expended some $7,500 over and above normal living expenses to cover the cost of certain fixtures in the home including gas heating, moss rocks, garden shed, security doors, carport roller door, vertical blinds, kitchen floor tiles, a rainwater tank, alarm system and boundary fencing.
The wife did not dispute the amount the husband claimed to have expended, but deposed to those expenses being paid either from the borrowed funds or from the husband’s salary, and that any direct financial contribution by the husband in that regard was offset by her parenting and homemaker contribution.
The husband deposed to a further direct financial contribution of $24,500 in 1999, being monies he obtained from a (employer omitted) Benefit.
It was common ground that $11,700 of those funds was expended on the purchase of a Ford Falcon motor vehicle retained by the wife at separation, with the balance being used for improvements to the former matrimonial home.
The wife submitted the husband benefited from the expenditure on the home by way of the value of the former matrimonial home increasing as a result of those improvements.
In principal, the parties were agreed that the husband made the major direct financial contributions to the acquisition, improvement and conservation of the parties property during the course of the relationship, with the wife’s financial contribution being less but her making the major non-financial contribution by way of her home making and parenting role.
The husband also conceded that the wife should be assessed as making a significant contribution to that amount of his current superannuation entitlements by which the value of his superannuation had increased between 30 June 1993 and July 2001, namely $134,735.
The husband conceded that the wife was the primary care-provider for the children during the years of cohabitation, and in paragraph 3 of his affidavit filed 4 September 2009, he said that he acknowledged and accepted that the wife is deserving of some adjustment in her favour for her cohabitation contribution.
The wife also conceded in paragraph 54 of her affidavit filed on

27 August 2009 that the husband undertook maintenance work in respect of the former matrimonial home wherever possible to avoid using tradesmen and hence save the parties that expense.
Although there was no significant dispute between the parties as regards equality of contribution overall during the period of cohabitation, the husband did submit that the $21,000 that he contributed at the time of the Property C property purchase in 1994 was a significant amount in relation to his income at that time, and had taken some 7 years to accumulate. He further argued that the retention benefit of $24,500 obtained by him in January 1999 and used in part to further establish the Property C property was a benefit to which he had become entitled by attaining the (position omitted) by (omitted) 1991, and as such the wife made no contribution to that benefit.
It was submitted on the part of the wife that the initial financial contributions on behalf of both of the parties, as well as their contributions by way of furniture and household effects and the modest motor vehicle brought into the relationship by the husband, were modest overall and that the weight to be attached to any greater financial contribution by the husband at the commencement of cohabitation had moderated over time such that taking into account the contributions both financial and non-financial by both of the parties during the period of cohabitation, they could reasonably be assessed as equal by the time cohabitation ceased.
I find that taking into account the parties initial financial contributions to the purchase of the property, their contributions of furniture, the husband’s financial contributions by way of wages and retention benefit during the period of cohabitation and the wife’s significant contribution to the relationship by way of her home-making and parenting role, that the parties contributions as at the date of separation should be assessed as equal.
I find that because of the level of responsibility the wife assumed for the parties’ children during the period of cohabitation, the husband’s capacity for study and advancement of his career was enhanced, which was of benefit to the parties during the period of cohabitation and subsequently to the husband, particularly with respect to the level of his superannuation entitlements.
The parties were on less common ground with respect to the issue of post-separation contributions, but even so, the husband submitted in paragraph 4 of his summary of argument that he did not object to an adjustment in the wife’s favour for contributions made post separation subject to issues of justice and equity and what is considered reasonable given all of the circumstances in the case. It must be stated however, that this argument on the part of the husband should be looked at in its entirety, when it becomes clear that the total value of the asset pool to which the husband is referring when conceding adjustments in favour of the wife is significantly less than that as submitted by the wife’s counsel, as it only takes into account the agreed equity in the former matrimonial home and $134,735 of the value of his superannuation benefit as at 30 May 2009.
It was the wife’s case that although contribution should be assessed as equal as at the date of separation, the wife’s post separation contribution was significantly greater than that of the husband, with the post separation contributions with respect to the parenting role overwhelmingly favouring the wife. It was submitted that because of the wife’s vastly greater role with respect to the care of the parties’ children in the 8 years since separation, the husband’s time has been freed to enable him to undertake further study and (employment omitted), such that his career has been assisted by this contribution on the part of the wife.
It was submitted on the part of the wife that the husband’s ability to increase his income earning capacity and to accordingly significantly increase the level of his superannuation directly relates to the efforts on the part of the wife with respect to her major parenting role both during the period of the marriage and post separation. Mrs West submitted that the wife’s contributions overall taking into account contributions during the course of the parties’ cohabitation and post separation, should be assessed as 60 per cent of an asset pool consisting of the net value of the former matrimonial home and the value of the husband’s superannuation as at 30 May 2009.
It was the husband’s case that he had made significant post separation contributions, including direct financial contributions to the mortgage over the former matrimonial home at various times until approximately October 2005. He did not dispute the wife’s evidence that at times adjustments were made with respect to the husband’s child support liability taking into account some or all of those various payments. The husband also argued that the wife has had the benefit of the exclusive use and occupation of the Property C property for 8 years post separation, and that this was a significant benefit to the wife, deliberately engineered by her by way of ignoring efforts on the husband’s part to progress the question of settlement of property.
It was the husband’s position that the wife had engaged in deliberate conduct to thwart efforts on his part to resolve issues of property settlement as between the parties post separation.
The parties separated in July 2001 and both parties were entitled to file applications for settlement of property at any time after the date of separation. Neither party filed such an application until that of the husband’s filed herein on 17 March 2009, nearly 8 years after the date of separation. I am satisfied that nothing turns on the husband’s argument in that regard.
At the time of the parties’ separation, the wife and the parties’ three children as well as the wife’s son W remained living in the former matrimonial home.
The husband left the former matrimonial home on 8 July 2001, at which time the parties three children were aged nearly 6, 4½ and 2.
Between separation in July 2001 and until the middle to latter part of 2004, the husband very rarely had the children in his care on an overnight basis.

In paragraph 25 of the husband’s affidavit filed on 11 August 2009, he deposed to his level of care for the children during 2003/2004 as being 11 per cent of the time, and thereafter approximately 15 per cent of the time. That percentage of care is confirmed by the wife in paragraph 92 of her affidavit filed on 27 August 2009.
There is no doubt that the overwhelming responsibility for the care of the parties children since separation in 2001 has been met by the wife, and I am satisfied that there should be an adjustment in her favour on account of that contribution.
I am also satisfied that the wife has made an indirect contribution to the current level of the husband’s superannuation entitlements.
I have already commented about the positive impact on the husband’s income earning capacity that has arisen because of the wife’s contribution to the care of the parties’ children during the marriage which freed up the husband’s time enabling him to study, improve his qualifications and hence, improve his (occupation omitted), his salary and thereby his superannuation entitlements. This contribution has continued post-separation and has not only meant that the wife has had the overwhelming responsibility for the children’s day to day care, but again has had the positive benefit for the husband of enabling him to continue to study and continue to enhance his work prospects and remuneration.
It is true that the wife has had the use and occupation of the former matrimonial home since separation, and I find that this has been a benefit to the wife in that the monthly mortgage commitment in respect of the (omitted) Loan is modest and further, she and the children have not been required to find alternative accommodation with the associated disruption to their day to day lives, including the possibility of the children having to change schools.
I am not satisfied that other than for a fairly short period of a few months immediately post-separation, that the husband has made a financial contribution to the expenses associated with the former matrimonial home as it seems clear that adjustments were made to his child support obligations to account for the financial contributions that he did make in that regard.
For these reasons I am satisfied that the question of the parties contributions should be assessed against a backdrop of an asset pool which includes the equity in the former matrimonial home and the total value of the husband’s superannuation as at 30 May 2009.
I am satisfied however that I should assess the parties contributions to each of the two individual assets separately, as I find that there should be an adjustment in the wife’s favour of 10 per cent with regard to the equity in the former matrimonial home such that the parties respective contributions to that asset should be assessed as 60 per cent to the wife and 40 per cent to the husband.
Although the wife has made a significant contribution to the current value of the husband’s superannuation entitlements, I find that his overall contribution has been greater in that he has undertaken the study and the additional work necessary to improve his employment prospects and accordingly, his income and his superannuation entitlements, and notwithstanding the very significant contribution made by the wife that has effectively enabled him to have the capacity so to do, there should still be an adjustment in his favour such that the contribution to the current value of the husband’s superannuation entitlements should be assessed at 60 per cent to the husband and 40 per cent to the wife.

Section 75(2) factors

The husband is aged 43 and the wife is 41 years old. Both parties are in good health.
The wife receives income from Centrelink and by way of child support payments totalling $895.72 per week, of which $501.28 is child support. The wife has no taxation liability with respect to that income.
The husband earns in excess of two thousand dollars a week, and pays approximately five hundred dollars per week tax.
The only significant property of the parties consists of their respective interests in the former matrimonial home at Property C and in the husband’s superannuation entitlements.
The husband also has an entitlement to long service leave of approximately seven and a half months, as well as bank accounts that he holds in his own name. It would also appear from paragraph 37 of his statement of financial circumstances and paragraph 33 of his affidavit filed on 17 March 2009 that he holds monies on behalf of the children.
The husband has both the physical and mental capacity for appropriate gainful employment and has been so employed throughout the period of cohabitation and post-separation.
The wife has primarily been engaged in home duties and parenting since falling pregnant with the parties’ first child X at the end of 1994.
It was not suggested by the wife’s counsel that the wife does not have the physical and mental capacity for appropriate gainful employment, but it is argued on her behalf that the level of responsibility she has undertaken both during the marriage and post-separation with respect to the day to day care of the children has precluded her from undertaking paid work outside of the home to date.
The parties have three children currently aged 14 years, 12 ½ years and 10 ½ years. It is common ground that from the date of separation in July 2001 until the husband moved into a rented house with sufficient bedrooms for the children in April 2004, the children’s overnight stays with their father were infrequent.
There is no doubt and it is not in dispute that the children have spent the majority of their time in their mother’s care since the date of separation.
There were periods of time that the husband concedes he was absent from Australia such that the children did not spend time with him for three and four weeks at a time.
The husband deposed in paragraph 25 of his affidavit filed on

11 August 2009 to having care of the children for 11 per cent of the time in 2003/2004 and since then for approximately 15 to 16 per cent of the time, consisting of alternate weekends from Friday evening to Sunday evening, and a week with the children over the Christmas/New Year period each year. He deposes to having them occasionally for a week in other school holiday periods, and to having contact with the children during the week or on weekends when they are in the wife’s care for schooling and/or sporting activities. He deposed to being Z’s (hobby omitted) manager between 2006 and 2008.
The wife set out in detail in her affidavit filed on 27 August 2009, various times that the children did not stay with the husband over the years since separation, but she did not challenge the percentage level of care asserted by the husband in his evidence.
The wife also deposed in paragraph 101 and following to behavioural difficulties exhibited by Z and the extra care and support he requires because of those issues.
She deposed to the husband not having attended any meetings at the school regarding Z’s behaviour aside from the standard parent/teacher interviews.
The husband responded to that evidence in paragraph 14 of his affidavit filed on 4 September 2009, and in particular deposed to not being aware of assessment involving Z’s behaviour and having neither seen or been aware of the psychological report for Z annexed to the wife’s affidavit until he received the affidavit subsequent to its filing on 27 August 2009. He deposed to having not attended at meetings at the school regarding Z’s behaviour because he had not been invited or made aware of same. He deposed to not having been aware that Z had a Case Worker from the Behaviour Support Team assigned to him.
It was put to the husband in cross examination that he was not aware of Z’s difficulties. He replied that he was but that he has not been given an opportunity to participate with dealing with those issues.
It was put to the husband that some two days prior to trial the mother had been called by the school as Z had to be taken from school immediately, and that he would be unable to assist if such a situation arose and the children were in his care. He disagreed and said that he probably could have so done if necessary. He agreed that he was aware that Z had been suspended from school, but said that there was no direct communication from the mother in relation to those issues.
The husband freely conceded in all of his trial affidavit material, that notwithstanding the dispute between the parties with respect to exactly what time the children had spent with each of them and exactly what parenting roles had been undertaken by them, the children had always been in the primary care of the wife both during the period of cohabitation and post-separation.
I am satisfied that the wife has the care and control of three children of the marriage who have not attained the age of 18 years and that she is principally responsible for their day to day care. This is a factor in respect of which I consider it appropriate to make an adjustment in favour of the wife.
I am not satisfied however that the husband has any lack of interest in the children, or that the wife has been as communicative as she might have been with respect to issues concerning the children.
I am satisfied that the wife has the primary financial commitment to support the children, as well as herself. I am satisfied that that responsibility is shared by the husband to the extent of the amount of child support he pays, namely $501.28 per week.
I accept that the amounts claimed by the wife as necessary to support herself and the children are modest and appropriate and I am mindful that in particular, the amount of the mortgage payments with respect to the former matrimonial home, are modest. I have referred to this issue in my consideration of the parties’ contributions.
The husband did not depose to day to day expenses for the children and himself in Part N of his statement of financial circumstances, but states in paragraph 32 of his statement of financial circumstances in Part G to an expenditure of $400 per week over and above the specific expenses referred to in Part G. I am satisfied that such an amount is modest and reasonable to support himself and the children on the occasions that they are in his care.
Neither party have the responsibility for supporting any other person save for themselves and the children of the marriage. The wife’s child W is now aged 20 years.
The wife is eligible for Centrelink Benefits paid to her by way of a Parenting Payment and a Family Tax Benefit. Those payments total $394.44 per week.
The husband is not currently entitled to any pension, allowance or benefit as referred to in paragraph (f) of Section 75 (2).
The wife and children have remained living in the former matrimonial home for the 8 years since the parties separated in 2001. There is no evidence to suggest that the house is other than adequate and comfortable for the wife and children, and the modest mortgage payments with respect to that property assist the wife in providing for the children on the income she has, such that she and the children enjoy a standard of living that in all of the circumstances is reasonable.
The husband lives in private rented accommodation and included in his income is a (employer omitted) rental allowance. I am satisfied that the husband enjoys a standard of living that in all of the circumstances is reasonable, and adequately provides for the children whilst in his care.
As to the consideration of Section 75 (2) (h) of the Act, it was the wife’s case that her earning capacity would be increased by her undertaking a course of education or training to establish herself to obtain an adequate income.
It was her evidence that in 1990 she underwent training with the (omitted) to be qualified to provide (employment omitted) and that she provided those services up to commencing cohabitation with the husband in February 2004, and then on an on-off basis during 1994 and part of 1995,
In 2003 and 2004 and accordingly post separation, the wife studied a (course omitted) in (omitted) at (omitted).
In late 2005 and early 2006 the wife undertook at 12 month course at (omitted) in (course omitted). She attended at (omitted) School three to four times a week during the time the children were at school or child care. She deposed to having studied that particular course in the hope that the topics that she studied would give her a better chance of being accepted into tertiary education to study (course omitted) with a view to becoming a (occupation omitted). She deposed to that being a three year course which she would like to study on a full-time basis, but said that would depend upon whether she had to work to supplement her income because of changes to child support legislation.
In cross examination, the husband agreed that he had studied and completed a degree during the course of the marriage, and conceded that the wife told him that she also wanted to study.
It was put to the husband that in part the separation occurred because he continued to study and would not let the wife do so, and the husband said in response that he didn’t think that the wife would attend at university so decided that he would take the lead in increasing his qualifications and income. The husband denied ever telling the wife that she had to put off her study.
It was argued on behalf of the wife that the need for the wife to undertake a course of study and training would assist in her establishing herself to obtaining an adequate income, and should be a factor to be taken into account in adjusting in favour of the wife her contribution based entitlement.
I am satisfied that the wife’s earning capacity could be increased if she was able to undertake a course of study, and that whether it be (course omitted) or another course, the wife’s earning capacity both during the marriage and post-separation has been affected by her level of responsibility for the day to day care of the parties young children. Without further education or training, the ability of the wife to earn a reasonable income at a time when the children, particularly Z, are a little older and require less intense day to day hands on care would be compromised.
The parties cohabited for a period of 7 ½ years and have as at the date of trial been separated for in excess of 8 years.
I am satisfied that the extent of the level of care provided for the children by the wife both during the marriage and post separation, a level of care that has never been seriously challenged by the husband, has affected the wife’s earning capacity, particularly taking into account Z’s special needs.
I am satisfied that although the wife wishes to continue her role as a parent, she has looked forward to a time when she might be employed provided she is able over the next 3 years or so to undertake a course of study or training.
I am satisfied that the mother wishes to continue her role as the primary parent of the parties three children and her evidence was that Z in particular has had some significant behavioural problems and requires a high level of parental input to assist with those issues. I am also satisfied however that the wife has not sought the level of assistance from the husband in this regard that he is able and willing to give.
As to the issue of the extent to which the wife has contributed to the income, earning capacity, property and financial resources of the husband, it was the wife’s case that she had taken on almost sole parental responsibility both during the course of the marriage and post-separation. She argued that without that contribution the husband would not have been able to continue studying both during the marriage and post-separation such that by the time of the trial, his qualifications had improved and he had been promoted to (position omitted) in the (employer omitted).
The husband conceded that the (qualifications omitted) that he obtained during the course of the marriage gave him credits towards his (qualifications omitted), such that he only had to undertake a further two years of study to obtain that degree rather than the usual three or four years.
It was submitted on behalf of the wife that the significance of the wife’s primary role as regards the care of the parties children was that it freed up the husband to undertake further study and (employment omitted) which would not have been possible for him, particularly post separation, even if he had the children in his care for as little as 30 per cent of the time. It was submitted that the husband’s career has been assisted by the wife’s contributions in driving him to work and university during the course of the marriage and providing an environment in the home by way of her care of the children than enabled the husband to study. It was further submitted that the husband’s ability to earn his current income as a result of his academic achievements and consequent promotions directly relates to the level of his superannuation, as he has directly benefited from the efforts of the wife.
I am satisfied that the wife’s role with respect to the parties children is a relevant factor when considering the extent to which she has contributed to the income earning capacity, property and financial resources of the husband.
Although I am satisfied that her contribution in this regard has been significant, I am not satisfied that it should be a factor to be taken into account for the purposes of assessing any further adjustment to the parties entitlements, as it has already been taken into account when assessing the contribution of the wife both during the marriage and post-separation, as well as the value of the asset pool.
Neither party is cohabiting with another person.
For the first three months of the parties’ separation in 2001, the husband continued to financially support the family. Thereafter, a Child Support Assessment came into effect and the parties then entered into a Child Support Agreement. That agreement covered the period from October 2001 to August 2002, during which time the husband paid the mortgage repayments with respect of the former matrimonial home, as well as council rates, water rates, building insurance premium and the emergency services levy. The parties also agreed that the husband would pay to the wife the sum of $1,010.42 per month by way of child support, but that 50 per cent of the outgoings referred to above being the wife’s share of those expenses, would be deducted from the child support amount.
There were various disputes between the parties with respect to child support issues from 2002 to 2005 with the husband paying certain of the household expenses and then there being offsets against child support amount.
From November of 2005 the husband has been paying child support and the wife has been paying the mortgage in respect to the former matrimonial home, although the husband has expressed concerns as to late payments made by the wife that allegedly have incurred unnecessary expense for the parties.
I am satisfied that the husband has properly maintained the children in accordance with his income since the date of the parties’ separation, that he continue to do so and that there is no evidence to suggest that he will not maintain that obligation until the children obtain the age of 18 years or become self supporting, whichever shall first occur. The level of child support paid by the husband is significant because of his relatively high income, and I find that it is not appropriate to make a further adjustment in the wife’s favour in respect of her financial responsibilities for the care of the parties’ children.
Taking all those matters into account, I find that the husband income is significantly greater than that of the wife, as are his financial resources. The wife has, by way of assuming the primary responsibility for the care of the parties’ children both during the course of the marriage and post-separation, contributed to the current financial position of the husband including his current superannuation entitlement, but adjustments have already been made with respect to this issue both as regards overall contribution percentages and the size of the asset pool.

I am satisfied that the wife’s capacity to earn an income has been affected by the duration of the marriage and the wife’s primary care and control of the children who have not attained the age of 18 years I find that it is reasonable for the wife to have an opportunity to re-train in the foreseeable future to be in a better position to earn adequate income to support herself and to share the financial support of those of the children who are still dependent on her for the majority of their day to day care from time to time.
I am satisfied that taking all of these matters into account there should be an additional ten percent adjustment in favour of the wife, such adjustments however only to be made in respect of the parties equity in the former matrimonial home.

Conclusion

I find that justice and equity would be served as between the parties by way of the value of the equity of the parties in the former matrimonial home being divided between them as to 70 per cent thereof to the wife and 30 per cent thereof to the husband.
I am further satisfied that the wife should be entitled to an amount equal to 40 per cent of the value of the husband’s superannuation entitlements as at 30 May 2009.
I am mindful in making these findings that the husband would retain for his sole use and benefit absolutely any increase in the amount of his superannuation entitlements from 30 May 2009 to the date of the making of this order, as well as his long service leave entitlements, which were in excess of 7 months as at the date of trial.
I must now consider how the division of the parties’ assets is to be effected in a manner that is just and equitable.
I have fixed the net value of the former matrimonial home for the purposes of these proceedings at $252,000. If that asset were to be divided between the parties in the proportions that I have determined, and if the wife were to retain the former matrimonial home which she seeks to do, she would be accountable to the husband in the sum of $75,600.
The husband did not argue against the wife remaining in the former matrimonial home and retaining the same for her sole use and benefit absolutely, but argued that there should not be a splitting order in respect of his entitlements in the (employer omitted) Superannuation and Benefits Scheme, but rather that he should pay to the wife a cash sum of $3,882. That was based on his proposals as set out in paragraphs 17, 18 and 19 hereof.
I have found that the wife’s contribution based entitlement with respect to the husband’s superannuation entitlements should be fixed at 35 per cent of the value of those entitlements as at 30 May 2009, being the sum of $232,582.80.
It was the wife’s argument that any amount to which she was indebted to the husband with respect to his interest in the former matrimonial home should be offset against her interest in his superannuation benefits, such that the base amount of a splitting order should be reduced by that sum. It was the wife’s case that the base amount of the splitting order should be $157,000.
I am satisfied however that this is the appropriate amount, being $156,982.80 rounded up to $157,000.
In the husband’s closing submissions he conceded that the wife was entitled to a split of his superannuation. He acknowledged that it was inherent in his proposals that his assets would continue to be “wrapped up” in his superannuation, which he could not access until the age of 55 by way of a pension, or the age of 60 by way of a lump sum.
I am satisfied that taking all of the matters into account to which I have referred the orders that I propose effect justice and equity as between the parties.
This is not a matter in which I can make final orders at this time as it will be necessary for draft orders to be provided to the trustees of the husband’s superannuation fund to effect procedural fairness as required by the Family Law Regulations.
I propose that on or before 20 January 2010 the wife’s solicitors draw and forward draft Minutes of Order incorporating the terms of this order and the base amount of the superannuation split as determined herein to the husband, the relevant trustees of the husband’s superannuation fund and to the Associate to Mead FM and I will adjourn the matter for the making of final orders to 24 February 2010 at 9.15am. I am happy for the matter to be called on earlier if procedural fairness is effected in less than the 28 days required by the legislation. The orders will of course incorporate the transfer of the former matrimonial home to the sole name of the wife, the wife’s sole responsibility for the (omitted) Loan mortgage and indemnity to the husband in respect to that liability, the parties otherwise retaining the assets currently in their possession and the split of the husband’s superannuation entitlements in terms as determined herein.
My formal order will be as follows:-

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Mead FM

Date: 23 December 2009