Crawford & Crawford
[2012] FMCAfam 1315
•4 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CRAWFORD & CRAWFORD | [2012] FMCAfam 1315 |
| FAMILY LAW – Alteration of property interests – add backs – assessment of contributions and s.75(2) considerations – where the wife is in receipt of a police hurt on duty pension – whether asset by asset or global approach is appropriate – three separate pools adopted by the court. |
| Family Law Act 1975, ss.75(2), 79, 79(2) |
| Burke & Burke (1993) FLC 92-356 Cahill & Cahill (2006) FLC 93-253 Hayton & Bendle [2010] FamCA 592 Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 PJM & STM (2005) FLC 93-242 Norbis v Norbis (1986) 161 CLR 513 AJO v GRO (2005) FLC 93-218 Schmidt & Schmidt [2009] FamCA 1386 Semperton & Sempterton [2012] FamCAFC 132 Stanford v Stanford (14 November 2012) [2012] HCA 52 Treloar & Treloar (No 2) [2007] FamCA 1127 T & T (2006) FLC 93-263 Wheeldon & Wheeldon [2011] FamCA 40 |
| Applicant: | MS CRAWFORD |
| Respondent: | MR CRAWFORD |
| File Number: | SYC 2716 of 2011 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 5 & 6 November 2012 |
| Date of Last Submission: | 6 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Anne Day & Associates |
| Counsel for the Respondent: | Mr Kearney SC |
| Solicitors for the Respondent: | Crawford Ryan Lawyers |
ORDERS
That within 60 days of the making of this Order that the wife shall pay to the husband the sum of $105,056.
That contemporaneous upon the wife's payment as required by Order 1 herein, that the husband do all such acts and things and sign all such documents, so as to transfer to the wife all of his right, title and interest in the property situate and known as Property P, [W], being the whole of the land more particularly described in folio identifier, [omitted] ("the Property P real property") and the wife shall do all such acts and things, so as to cause to be discharged the existing mortgage and any other encumbrance affecting the title of the Property P real property and the wife shall thereafter indemnify and keep indemnified the husband with respect to any liability arising whatsoever with respect to the Property P real property.
That in the event that the wife fails, omits or neglects to comply with Order 1 of these Orders, the parties are to do all acts and things and sign all documents necessary, so as to effect a sale of the Property P real property for the best price reasonably obtainable in the following manner:
(a)list the real property for sale by private treaty with such Agent as the parties may agree to appoint and in default of agreement as to Agent, within 14 days, with such Agent as the President of the Real Estate Institute of NSW will appoint (“the Agent”), the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
(b)the sale price at which the real property is listed be mutually agreed upon by the parties, or in the absence of agreement reached within 14 days of the date of the Wife’s failure to comply with Order 1 herein, be the price nominated as the fair market value by a Valuer appointed by the President for the time being of the NSW Division of Australian Institute of Valuers and Land Administrators (Incorporated)(“the Valuer”), the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when they fall due.
(c)the Valuer will, if requested by either the husband or the wife at a date 3 calendar months after the date upon which the real property is first listed pursuant to paragraph (a) of these Orders and thereafter at 3 calendar monthly intervals until the real property is sold nominate a sale price other than the originally nominated sale price;
(d)the parties each cooperate in every way with the Agent, including:
(i)making the key available to the Agent;
(ii)allowing inspection of the Property P real property at all reasonable times requested by the Agent;
(iii)ensuring the Property P real property, including the grounds, is in a neat and clean condition at the time of inspection by the Agent and prospective purchasers;
(iv)signing all documents requested by the Agent in relation to the listing for sale of the Property P real property except as Contract or Agreement for sale which has not been authorised by the parties’ solicitors.
(e)the parties shall each execute a Contract for Sale in the form prepared by the solicitors or conveyancers having the conduct of the sale at a price agreed upon by the parties, or in the absence of any agreement at or above the price nominated by the Valuer appointed pursuant to paragraph 3.2 and 3.3 of this Order.
(f)the parties are to jointly instruct such solicitor or conveyancer as they agree upon to have the conduct of the sale of the Property P real property on behalf of both parties, or in the absence of agreement reached within 14 days of the date of these Orders, such solicitor as may be appointed by the President for the time being of the Law Society of NSW (“the solicitor”), the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due;
(g)neither party may confer on any Agent without the consent of the other party any right to any sole or exclusive agency in respect of the Property P real property or to any commission; and,
(h)the party not in possession be entitled upon reasonable notice of once per fortnight to enter and view the state of repair of the Property P real property.
In the event the Property P real property is not sold by private treaty within 3 months of the date of first listing for sale by way of private treaty:
(a)the parties shall list the Property P real property for sale by public auction with the Agent appointed pursuant to paragraph 3.1 of these Orders;
(b)the reserve price for the purpose of such auction shall be as the parties agree upon within 14 days after the date upon which the Property P real property is first listed for sale in accordance with paragraph 3.1 of these Orders or in the absence of agreement, a price determined by the Valuer appointed pursuant to paragraphs 3.2 and 3.3 of these Orders;
(c)in the event that the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidders or any other interested person and effect a sale of the Property P real property at a price which is not more than 5% below the reserve price; and,
(d)if the Property P real property remains unsold the parties shall do all acts and things and sign all documents necessary to immediately relist the Property P real property for sale by public auction again on a date nominated by the said Agent.
On settlement of the sale of the Property P real property the proceeds of sale shall be paid in the following manner and priority:
(a)all costs and expenses of sale including legal costs and disbursements, Agent’s commission, Valuer’s fees and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
(b)the amount required to discharge the mortgage registered on the title of the Property P real property;
(c)the amounts required to pay all municipal and water rates outstanding with respect to the Property P real property;
(d)to the husband, the sum of $105,056 together with interest on such sum calculated in accordance with the Family Law Rules from the date of default of compliance with Order 1 herein until the date of payment; and,
(e)the balance then remaining to the wife.
That pending compliance by the wife with Order 1 herein and/or payment to the husband in accordance with Order 5.4 herein, the wife be and hereby is restrained from dealing with her interest in the Property P real property in any way, including but not limited to further encumbering such interest and/or causing or permitting the amount owing on any facility secured over the title of the said property to increase, save for the purpose of complying with these Orders.
That within 30 days of the date of this Order that the wife do all such acts and things and sign all such documents as may be required to transfer to the husband all of her right, title and interest in the real property situate and known as Property B, [W], being the whole of the land more particularly described in Folio Identifier, [omitted] ("the Property B real property") and the husband shall pay such monies as are required to discharge any mortgage or encumbrance in the wife's name secured on the title of the Property B real property and shall thereafter indemnify and keep indemnified the wife with respect to any liability arising whatsoever with respect to the proprietorship of the Property B real property.
That within 30 days of the making of this Order the husband is to transfer to the wife any interest in shares which she may have in the following companies:
(a)BHP Billiton Limited;
(b)Harvey Norman Holdings Ltd;
(c)MacArthur Coal Limited;
(d)SMS Management and Technology Limited;
(e)Shaw River Resources Pty Limited; and,
(f)Shell Village and Resorts Pty Limited
Other than as specifically provided for in these Orders, the husband and wife be declared the sole, legal and beneficial owner of all items of personal and real property in his or her possession of which he or she is the registered proprietor as at the date of the making of these Orders including but not limited to all or any monies standing to the credit of the husband or wife in any bank, building society, superannuation benefit, share holdings, motor vehicles and any present or future expectation under a trust or estate and each shall indemnify the other with respect to any liability arising by reason of the proprietorship of any real property, goods, chattels or entitlement retained by each of them as a consequence of the making of these Orders or otherwise.
Liberty to re-list before Federal Magistrate Altobelli at any time in the next 42 days, on 7 days’ notice as regards the interpretation or implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Crawford & Crawford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2716 of 2011
| MS CRAWFORD |
Applicant
And
| MR CRAWFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for alteration of property interests under section 79 of the Family Law Act, commonly known as a property settlement. The main complicating factor is that over two-thirds of the asset pool consists of superannuation and most of that is the value attributed to the wife’s “Police Hurt on Duty” pension.
Background
The wife is the applicant. She is 46 years old and is a retired police officer in receipt of weekly payments from the New South Wales police superannuation scheme. It is agreed between the parties that the value of the wife’s pension is $987,717. The husband is the respondent. He is 46 years old and is a senior sergeant in the New South Wales police. The parties joined the police at exactly the same time in February 1986, commenced a relationship in 1989, and married in November 1991. They have three children aged 17, 14 and 12, all of whom live with their mother. In 2006 the wife retired from the police service and commenced to receive a pension from her superannuation scheme, initially at 72.75 per cent of her annual salary, and then at 79 per cent. She has not thereafter worked on a full-time basis.
The parties separated in May 2009, three and a half years before the final hearing of this case. At the time of separation the husband continued, and indeed continues, to work as a police sergeant and he moved from the former matrimonial home in Property P to another property owned by the parties in Property B.
Even before the parties commenced cohabitation, and certainly afterwards, they purchased and sold property using savings, borrowings, and money provided to them by third parties. They worked and accumulated superannuation. They were each involved in various work-related injuries for which they received compensation. The husband worked full-time, and the wife worked full-time except when the children were born, and until her retirement in 2006. Both were involved in parenting and homemaking, though it is likely that the wife did slightly more in this regard.
There is an issue in this case as to whether the wife’s contribution under section 79, at the end of their relationship, should be assessed as being higher than that of the husband’s. Apart from the wife’s police pension, it’s value, and how it is to be treated, the assessment of contribution up until the date of separation is a discrete issue that can be dealt with succinctly, and indeed at this point in the reasons. After a period of cohabitation of 18 years, each of the husband and wife contributed diligently, and faithfully, albeit in slightly different ways, and there is no evidence before the court that warrants a finding of greater contribution at the end of a long and productive relationship.
There is an issue in this case about assessment of contribution in the three and a half year post-separation period. This will need to be dealt with by reference to the evidence, which will be discussed below.
The main, and indeed the most complex issue in this case, is how the wife’s pension should be considered within the section 79 adjustment process.
There is an issue about add-backs. That is perhaps unsurprising given the fairly lengthy period since the date of separation.
There is also an issue about assessment of considerations under section 75(2), not just in terms of the assessment, but also by reference to what pool of assets.
Indeed, there is a fundamental issue in this case as to the approach to be adopted to the section 79 process. For all practical purposes the husband contends for a global approach, whereas the wife contends for an asset-by-asset approach – indeed, by reference to three pools consisting of non-superannuation assets, the wife’s pension, and the remaining superannuation assets.
The evidence
Each of the parties relied on one affidavit and financial statement. Expert evidence was given by Mr S on behalf of the husband, and
Mr B on behalf of the wife. This expert evidence will need to be considered in detail below.
The evidence of the parties may be dealt with succinctly, and as a discrete issue, here. The court accepts all of the evidence of the wife, except as regards the repayment by her of $10,000 to her mother in the months leading up to the hearing. The court does not accept on the available evidence that it was a repayment of a loan from the wife’s mother. The court accepts that it was money that the wife’s mother kindly provided to them during the course of cohabitation. It is money that the court has taken into account in assessing the contribution up until the date of separation to be equal. However, it was not money that the wife was entitled to unilaterally pay to her mother thus depleting the pool of assets available for division between the parties in the period leading up to the final hearing. As it turns out nothing turns on this. The amount was not sought to be added back and the court takes it into account in a general sense.
The court accepts all of the evidence of the husband, except as regards his relationship with his partner, Ms S. The true nature and extent of his relationship with her, particularly its financial aspects, is a matter he has failed to disclose to the court. Clearly there is a co-mingling of finances, the details of which he has not placed before the court. For example, he drives her car, and she drives his car. He claims to pay over $200 each week as expenses for a motor vehicle owned by him, but which she drives. It was incumbent on the husband to disclose the financial aspects of his relationship with Ms S. That he has failed to do so is something that the court will consider under section 75(2).
Whilst the court has indicated that, apart from the specific matters referred to above, the court accepts the evidence of both the husband and the wife, that does not necessarily signal an acceptance of the contentions they make in their evidence about what they said and did. Where this is relevant, this will be discussed below.
The competing applications
The wife seeks orders in accordance with the final orders sought in her application filed 5 May 2011. Mr Jackson, who appeared for the wife, submitted that the effect of the wife’s proposal was to give her 61.7 per cent for contribution and 12.5 per cent as section 75(2) considerations. Mr Kearney SC for the husband expressed, for good reason as it turns out, some puzzlement about whether the orders sought do in fact amount to that submitted by Mr Jackson. In any event, the practical effect of the orders the wife sought was for her to retain Property P, the husband to retain to Property B, for each to assume responsibility for and discharge the mortgages secured over their properties, for the husband to pay to her $50,000 and that they would otherwise thereafter keep all property in their possession or control including their respective superannuation entitlements.
The orders sought by the husband are contained in the summary of argument prepared and filed on his behalf by his senior counsel,
Mr Kearney. There is much common ground between the orders in the sense that each proposes that the wife retain Property P and the husband retain Property B, and their respective superannuation interests, but the husband seeks an order that the wife pay to him the sum of $257,244.
It is significant to note that neither sought orders that their respective superannuation entitlements be split. Each seeks a cash adjustment which could be satisfied, if necessary, through the sale of real estate.
The polarity in the competing proposals is a direct result of a fundamentally different view between the parties about how the wife’s pension should be treated. As foreshadowed above, the husband’s approach was by reference to a single pool of assets consisting of both superannuation and non-superannuation asset, and for contribution and future needs to be assessed in global terms. By contrast, the wife’s approach was on the basis of three pools, with assessment of contribution and future needs differentiated as regards each of the pools.
The precise orders sought by each of the wife, and the husband, are reproduced in the first schedule to these reasons.
Applicable law
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances; and
The court acknowledges that the High Court’s recent decision in Stanford v Stanford (14 November 2012) [2012] HCA 52 may signal a departure from the approach described above. To the extent that this may be the case it has no bearing on the outcome of this case.
One of the legal issues that arises is whether the court should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to the court, in part or in whole. The discretion in this regard should be exercised having regard to the facts of this case.
In relation to add-backs, the applicable law can be found in decisions such as the Full Court's decision in AJO v GRO (2005) FLC 93-218 that describes the situations in which add-backs are appropriate.
30. To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-816 the Full Court said at 85,262:
“11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.”
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
“In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.”
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
“As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec.75(2)(o) to applications for settlement of property instituted under the provisions of sec.79.”
31. As the Full Court said in Browne and Green (1999) FLC 92-873 at 86,360:
“44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction – a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.”
The pool of assets
At the commencement of the hearing, the court was presented with the following joint balance sheet:-
| Property | Title | Husband | Wife | |
| 1 | Property P, [W] | J | $ 650,000 | $ 650,000 |
| 2 | Property B, [W] | J | 475,000 | 495,000 |
| 3 | Police Credit Union account | W | 20 | 20 |
| 4 | BankWest account | W | 349 | 349 |
| 5 | Etrade list / publicly listed shares: | J | 12,033 | 11,629 |
| 6 | IAG shares – 671 @ $4.52 | W | 3,033 | 1,350 |
| 7 | Shaw River Resources shares – 9,395 @ $.015 | W | 141 | 140 |
| 8 | 2007 Holden Berlina | W | 10,000 | 10,000 |
| 9 | Household contents | W | 3,000 | 3,000 |
| 10 | Household contents | H | 3,000 | 3,000 |
| 11 | Police Credit Union account | H | 1,000 | 1,000 |
| 12 | Toyota Prado (net) | H | 0 | nk |
| 13 | Add-back: sale proceeds of Suzuki Bandit motor vehicle | H | 0 | 9,000 |
| 14 | Add-back: sale proceeds of BMW vehicle | H | 0 | 6,000 |
| 15 | Add-back: funds drawn by husband from Portfolio loan account | H | 0 | 7,900 |
| 16 | Add-back: funds drawn by wife from Portfolio loan account | W | 21,000 | 0 |
| 17 | Add-back: paid legal costs and disbursements | H | 6,127 | nk |
| 18 | Add-back: paid legal costs and disbursements | W | 3,000** | nk |
| 19 | Gross assets | $ 1,187,703 | $ 1,198,388 |
| Less, liabilities | ||||
| 20 | St George mortgage – Property P | J | $ 128,851 | $ 128,851 |
| 21 | St George mortgage – Property B | J | 384,000 | 384,000 |
| 22 | Westpac credit card | W | 0 | 9,600 |
| 23 | Westpac Visa | H | 25,000 | 0 |
| 24 | Citibank Visa | H | 6,000 | 0 |
| 25 | Toyota Finance (net – see item 12) | H | 0 | 0 |
| 26 | Total liabilities | $ 543,851 | $ 522,451 |
| 27 | Net non-superannuation assets | $ 643,852 | $ 675,937 |
| Superannuation | ||||
| 28 | Police superannuation (pension in payment phase) as at 6.10.2011 | W | $ 987,717 | $ 751,484 |
| 29 | [F] Super (defined benefit in growth phase) as at 30.12. 2011 | W | 850 | 850 |
| 30 | Police superannuation (defined benefit in growth phase) | H | 589,219 | 589,219 |
| 31 | Police superannuation (defined benefit in growth phase) | H | 45,315 | 45,315 |
| 32 | [F] Super (defined benefit in growth phase) as at 30 June 2011 | H | 2,100 | 2,100 |
| 33 | [U] Super | H | 595 | 595 |
| 34 | Total superannuation | $ 1,625,796 | $ 1,625,796 |
| 35 | Net assets and superannuation | $ 2,269,648 | $ 2,301,733 |
As may be discerned from the balance sheet above, a number of issues arise, but principally in the context of add-backs (items 13-18 inclusive) and in relation to credit card liabilities (items 22-24 inclusive).
The common feature of most of the contentious items is that they involve transactions after the date of separation, but before the hearing. It is important to note that during this period there was much co-mingling of income. For example, the wife explained in cross-examination that between the date of separation (May 2009) and May 2011 both parties maintained a joint account into which their respective income was paid. Thus, for example, up until May 2011 the husband’s income as a police officer was paid into the joint account, the wife would deduct the assessed child support, pay the rest of his salary to him, and he would be responsible to pay the mortgage on Property P, the property occupied by him. The joint account, otherwise known as the portfolio facility, was a running account secured over Property P, the current balance of which is at item 20 in the balance sheet, i.e. $128,851. The wife agreed in cross-examination that this liability increased from what she described as “the high 80 thousands” at separation to its current balance. She gave evidence that the increase was attributable to the drawings that each of them had made on that account, though she conceded that they were principally drawn by her, and used for living expenses – either her own, or those of the children, or pertaining to joint expenses. She agreed that interest accumulated on this liability.
She agreed that many living expenses were initially incurred on a credit card, which was then paid from the portfolio account. The wife agreed that some of the expenditure was personal in nature, e.g. for her own travel. Ultimately, the wife accepted that the effect of including item 20 in the balance sheet was that the husband was accepting responsibility for substantial increase in this liability, but most of which benefited the wife and children, though not to the exclusion of the husband. In context, it must be recognised that this occurred at a time when the wife’s income included her police pension at the rate of $54,000 per annum, as well as the child support the husband paid, as well as whatever income she was able to derive from her other, limited, employment.
Moreover, the wife conceded that not only during the marriage, but in the post-separation period as well, the husband was involved in the care of the children, not just during the period that they spent time with him, but in their weekly commitments, especially sporting commitments.
In relation to the add-backs issue, in cross-examination the husband conceded that “pretty much all” of a withdrawal of $7900 from the portfolio account was used towards payment of his legal fees. Indeed, he agreed that the Friday before the hearing, he had withdrawn a further $2772 to pay towards the cost of his expert. He accepted that some of the wife’s payments from the portfolio account benefited not just the wife and children, but himself. The husband agreed that his Westpac Visa credit card liability at item 23 related to his living expenses and that he did not, indeed, expect this to be a liability shared with the wife. It must follow that item 23 is removed from the balance sheet.
The reasonableness, or otherwise, of the expenditure incurred by the husband and wife in the post-separation period, some of which is now sought to be added back, must be determined by reference to their circumstances as well as the arrangements that they themselves agreed to put in place. There is a real risk in this case that once the parties agree that the increase in the liability represented at item 20 of the balance sheet, between the date of separation and the date of the hearing, should be included on the balance sheet, that adding back the funds drawn would potentially be inequitable without having regard to the purpose for which the funds were drawn. The potential relationship between credit card debts, and the liability at item 20, must also not be overlooked.
As a general proposition the authorities indicate, and the court accepts, that the parties are entitled to conduct their financial affairs, within reason, as they see fit in the post-separation period. The court accepts that the cost of running two households is significantly greater than running one. What the parties might comfortably have afforded before separation often becomes difficult, if not impossible, after separation. Whilst the husband clearly had a higher income in the post-separation period, he was also responsible for a mortgage and child support. The wife had a lower income but much higher commitments, particularly involving the costs of caring for children that, the court accepts, were not necessarily covered by the amount of child support.
With these general comments in mind, consideration will now turn to specific aspects of the balance sheet.
The court regards it as entirely appropriate that the value of the Toyota Prado owned by the husband at item 12 be nil, on the basis that item 25, the amount owed on the Prado, is also nil.
Item 13 is the wife’s contended add-back, being the proceeds of sale of a Suzuki motorcycle owned by the husband. The husband contends that the sale proceeds from the Suzuki was in fact $7200, but that he applied the said money towards credit card debts of the husband which had been incurred for the children’s sporting expenses, a holiday with the children, and living expenses. Having regard to how the parties structured their finances in the post-separation period, and their financial circumstances, this does not seem unreasonable. The court declines to make the add-back at item 13.
Item 14 represents sale proceeds of the husband’s BMW motor vehicle that the wife contends ought to be added back. The husband contends that the BMW was traded in on the purchase of the Toyota Prado and that $2000 was received as a trade-in. In the circumstances of this case, and having regard to the reality that the wife obtains the benefit of not having the Prado and its liability on the balance sheet, the court declines to make the add-back contended at item 14.
Items 15 and 16 are funds drawn by each party from the portfolio loan account. Again, having regard to the matters set out above, the court declines to make the add-backs asserted by either party. There are elements of personal expense, including for legal costs, incurred by each party. It is impracticable, and not in the public interest, to conduct a detailed analysis of expenditure and source and application of funds in these circumstances.
For the same reasons, the court declines to make the add-back at items 17 and 18 for paid legal costs. The amounts are relatively small having regard to the size of the pool of assets and there is the risk of duplication.
The court also declines to make the add-backs at items 22, 23 and 24. On the basis of the evidence before the court, all of these liabilities seem to bear the characteristic that they were primarily incurred in the post-separation period.
Accordingly, and having regard to the findings set out above, the final balance sheet for the purposes of these proceedings will be as follows:-
| Property | Title | Court | |
| 1 | Property P, [W] | J | $ 650,000 |
| 2 | Property B, [W] | J | 475,000 |
| 3 | Police Credit Union account | W | 20 |
| 4 | BankWest account | W | 349 |
| 5 | Etrade list / publicly listed shares: | J | 12,033 |
| 6 | IAG shares – 671 @ $4.52 | W | 3,033 |
| 7 | Shaw River Resources shares – 9,395 @ $.015 | 141 | |
| 8 | 2007 Holden Berlina | W | 10,000 |
| 9 | Household contents | W | 3,000 |
| 10 | Household contents | H | 3,000 |
| 11 | Police Credit Union account | H | 1,000 |
| 12 | Toyota Prado (net) | H | 0 |
| 13 | Add-back: sale proceeds of Suzuki Bandit motor vehicle | H | 0 |
| 14 | Add-back: sale proceeds of BMW vehicle | H | 0 |
| 15 | Add-back: funds drawn by husband from Portfolio loan account | H | 0 |
| 16 | Add-back: funds drawn by wife from Portfolio loan account | W | 0 |
| 17 | Add-back: paid legal costs and disbursements | H | 0 |
| 18 | Add-back: paid legal costs and disbursements | W | 0 |
| 19 | Gross assets | $ 1,157,576 |
| Less, liabilities | |||
| 20 | St George mortgage – Property P | J | $ 128,851 |
| 21 | St George mortgage – Property B | J | 384,000 |
| 22 | Westpac credit card | W | 0 |
| 23 | Westpac Visa | H | 0 |
| 24 | Citibank Visa | H | 0 |
| 25 | Toyota Finance (net – see item 12) | H | 0 |
| 26 | Total liabilities | $ 512,851 |
| 27 | Net non-superannuation assets | $ 644,725 |
| Superannuation | |||
| 28 | Police superannuation (pension in payment phase) as at 6.10.2011 | W | $ 987,717 |
| 29 | [F] Super (defined benefit in growth phase) as at 30.12. 2011 | W | 850 |
| 30 | Police superannuation (defined benefit in growth phase) | H | 589,219 |
| 31 | Police superannuation (defined benefit in growth phase) | H | 45,315 |
| 32 | [F] Super (defined benefit in growth phase) as at 30 June 2011 | H | 2,100 |
| 33 | [U] Super | H | 595 |
| 34 | Total superannuation | $ 1,625,796 |
| 35 | Net assets and superannuation | $ 2,270,521 |
The parties’ legal and equitable interests in these assets is reflected in the balance sheet above. The parties are already separated. It is just and equitable to alter the parties’ interests: s.79(2); Stanford (op. cit.) at para.42.
Assessment of contribution, excluding wife’s pension
As indicated in the background section of these reasons, and for the reasons briefly set out therein, contribution up until the date of separation is assessed to be equal.
The wife contended that in the post-separation period she made a greater contribution because of the burden she bore with parenting, particularly in circumstances where her income was less than that of the husband and where the child support paid did not meet the actual expenses of the children.
The husband contends that there should be no adjustment in the wife’s favour for the post-separation period, particularly having regard to how their financial circumstances were structured and conducted in the post-separation period. In short, from the husband’s perspective, the significance of his contention is reflected in the findings made by the court about the balance sheet. The inclusion of the increased liability on the portfolio account, represented at item 20 of the balance sheet, means that the husband is assuming a responsibility for this. By declining to make the add-backs contended on the husband’s behalf, the effect was to equalise financial burdens in the post-separation period. Moreover, the husband asserts that he paid child support, that he was involved in the lives of the children to the extent that the wife would permit, and that in any event the wife enjoys the benefit of inclusion in item 30 of the balance sheet of the husband’s current superannuation balance, thus reflecting the contributions he made in the post-separation period.
In the circumstances of this case, the court accepts the husband’s submissions that there is no greater contribution made on behalf of the wife in the post-separation period.
Contribution – the wife’s pension
The position as regards the wife’s pension is summarised in Exhibit 1, the joint expert statement prepared by Mr B of [S] (the wife’s expert) and Mr S of [P] (the husband’s expert) dated 5 November 2012. The relevant parts of the joint statement are reproduced below:-
1. Mr B of [S] (“Mr B”) and Mr S of [P] (“Mr S”) conferred on 5th November 2012 in relation to the superannuation interest of the Wife in these proceedings.
Points of Agreement
2. Mr B and Mr S agree on the matters in paragraphs 3 to 7 of this Joint Statement:
3. The Wife is a pension member of the Police Superannuation Scheme. She is now in receipt of a pension by reason of her being hurt on duty (“hurt on duty pension”).
4. The hurt on duty pension is paid pursuant to s.10(1A) of the Police Regulation (Superannuation) Act 1906 (NSW). The most recent Superannuation Information Form available shows that, at the relevant date of 12 July 2011, the Wife was in receipt of a hurt on duty pension in the annual amount of $54,086.92 indexed to movements in the consumer price index. At the relevant date of 12 July 2011, the Wife was 46 years of age.
5. A hurt on duty pension is payable under s.10 of the Police Regulation (Superannuation) Act 1906 (NSW) to a disabled member of the police service where the trustee is satisfied that the member is incapable of discharging the duties of office. The pension has the following characteristics:
(a) It is paid at the rate of 72.75% of the member’s attributed salary of office – s.10(1A) of the Police Regulation (Superannuation) Act 1906 (NSW) – up to a maximum of 85% where the member is totally incapacitated for work outside the police service. There is an entitlement for an increase up to 100% but that is only available where the police officer has been exposed to unusual risks. The Wife has had an increase approved to 79%;
(b) The trustee may require the member to submit to a medical examination, and if the trustee is satisfied that the incapacity has ceased the trustee may, with the approval of the Commissioner, cease the superannuation allowance and require the member to return to duty (s.16 Police Regulation (Superannuation) Act 1906 (NSW));
(c) The Wife has two commutation elections. The first is an election under s.10C of the Police Regulation (Superannuation) Act 1906 (NSW) and enables the member to commute the prescribed part of the pension to a lump sum. That part that may be commuted is calculated in accordance with the workers compensation rates as at the date of discharge as set out in the Workers Compensation Act 1987. The second commutation becomes available at either age 55 or age 60 when the member is able to commute the pension in whole or in part to a lump sum.
6. The method to obtain the amount to be taken as the value is set out in Schedule 2, Part 5 of the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 and the application of that method at the relevant date of 12 July 2011 results in the amount of $987,717.
Paragraph 7 of the joint statement deals with the implications of a splitting order of the wife’s pension. As this is irrelevant on the facts of this case it has not been reproduced. It is useful, however, to reproduce the section of the statement dealing with areas of disagreement:-
Areas of Disagreement
(i) Nature of Payments before Retirement
8. Mr B says that the provisions of the Police Regulation (Superannuation) Act 1906 (NSW) allow for payments by way of a hurt on duty pension before retirement age is reached. These payments replace the lost income of the police officer. This is obtained by reference to s.10 of the Police Regulation (Superannuation) Act 1906 (NSW) which does not provide that the payments are compensatory.
9. Mr S says that once a hurt on duty (HOD) pension has been granted under the Police Regulation (Superannuation) Act 1906 (NSW), retirement age is no longer a relevant concept. Once a HoD pension has been granted, it continues until death of the member. Although there are provisions, which may require the employee to report for duty, should the trustees be of the view that the police officer’s health has improved, this is a rare event. The Police Amendment (Death & Disability) Act 2011, was introduced specifically to address rehabilitation failures of the Police Regulation (Superannuation) Act 1906 (NSW) – see FAQ published on the Valuation to age 65
10. While Mr B and Mr S agree that one of the characteristics of the hurt on duty pension is that it is paid both before and after retirement age, there is disagreement about what age should be selected as the retirement age.
11. Mr B says that the valuation should be to the maximum retirement age and in the absence of trustee evidence to the contrary refers to regulation 3 of the Family Law (Superannuation) Regulations 2001 (Cth) definition of maximum retirement age and section 14M of the Police Regulation (Superannuation) Act 1906 (NSW). Regulation 3 of the Family Law (Superannuation) Regulations 2001 (Cth) defines maximum retirement age as the age of 65. Mr B notes that the trustee advises that retirement age is 65 in the Superannuation Information Form for the State Authorities Non-contributory Superannuation Scheme under cover of letter to the Wife’s solicitor dated 14 September 2009.
12. Mr S says that any single retirement age chosen will not give an accurate breakdown of the HoD pension between normal superannuation payments and compensation/invalidity payments. The HoD pension combines what would have been paid in terms of a superannuation payment with an element that recognises an inability to continue to work, or compensation/insurance element. The closest approximation of what might constitute compensation/insurance is what the member was offered in terms commuting part of the pension to a lump sum prior to age 55.
13. In any event, age 65 is not appropriate to use to derive the compensation/insurance element. Age 65 is the maximum retirement age. Superannuation paid to Police Officers is rarely based on maximum retirement age as most police members achieve their maximum superannuation entitlements after 30 years of service. The normal retirement age is 60 and the early retirement age is 55. The average age of retirement is 45 years according to the NSW Auditor- General’s Report to Parliament, Volume 5 2011), Media Release dated 9 Nov 2011.
(iii) Likelihood of Return to Work
14. In relation to the likelihood of a return to work, Mr B relies on statements by the trustee that require regular medical examination and compliance with reasonable directions concerning rehabilitation. Mr B has no direct knowledge of the likelihood of a return to work.
15. Mr S says that based on his 13 years as Deputy Commission of Superannuation and Chair of the Invalidity Review Committee oversighting a similar invalidity arrangements for Defence Force members with similar legislative provisions, return to work is an exceptional event. The employer is not motivated to make offers of employment to invalidity pensioners.
The wife’s contention in relation to her pension is that it should be treated as belonging to a separate pool, and that contribution should be assessed in her favour as to 82 per cent. The husband’s contention is that the wife’s pension should not be treated as part of a separate pool, and that his contribution should be assessed as being equal to that of the wife.
The court rejects the husband’s contention that the pension should not be treated as part of a separate pool. The weight of authority favours an asset-by-asset, or separate pools approach to superannuation benefits in the payment phase, particularly when the benefit cannot be commuted to a lump sum, but also in cases where commutation is theoretically possible, but the evidence indicates it is not likely. On the facts of this case, for example, there is no evidence that the wife will seek to commute her pension at any time. The weight of authority includes PJM & STM (2005) FLC 93-242, Cahill & Cahill (2006) FLC 93-253, T & T (2006) FLC 93-263, Schmidt & Schmidt [2009] FamCA 1386 (2 April 2009), Wheeldon & Wheeldon [2011] FamCA 40 (7 February 2011), Treloar & Treloar (No 2) [2007] FamCA 1127 (16 August 2007), Hayton & Bendle [2010] FamCA 592 (16 July 2010) and Semperton & Sempterton [2012] FamCAFC 132 (25 August 2012). Many, but not all, of these cases deal with DFRDB pensions which, whilst not possessing identical features to the wife’s pension, have very many similar features, in particular an income stream the value of which is capitalised, based on an actuarial statutory calculation.
The real issue in relation to the wife’s pension, therefore, is how to assess contribution to it. The husband’s case is that he contributed equally to it. Whilst he concedes that the trigger for the receipt of the wife’s entitlement was that she was hurt on duty, and thus retired from the New South Wales police, he submits that in reality the wife’s entitlements are derived from a period of employment of almost 20 years, most of which took place during the marriage. Moreover, the reality of the contribution made by each of them during the marriage, directly and indirectly, financially and non-financially, over a long marriage enabled them each to work, and thus he contributed to the accumulation of the wife’s entitlements in this regard. The husband contends for no relevant distinction being drawn as between the contributions that each made over many years: Burke & Burke (1993) FLC 92-356.
The wife’s case emphasises the peculiar nature of the pension. It is a periodical, indexed payment granted by statute. It became payable only because the wife was hurt on duty. It is designed to replace lost income, and is therefore not compensatory in nature. It continues until death, and thus retirement age is irrelevant.
One of the issues between the experts in this case was whether it was possible to break down the value of the wife’s pension ($987,717) into components which would then facilitate a contribution-based assessment. Thus Mr B for the wife expressed the opinion that it was possible to distinguish between pre- and post-retirement benefits by calculating the value of the pension payments between the present, and the maximum retirement age, as if the pension were a fixed term pension. His opinion, therefore, based on the assumptions he made, is that the $987,717 has different characteristics prior to and post retirement age:
· Pre-age 65 amount – $751,484
· Post-age 65 amount – $236,233
Implicit in the wife’s case is that it is only the post-age 65 component to which it could be argued that the husband had made any contribution, as the balance merely represents her lost income.
Whilst Mr S disagrees with Mr B’s methodology, the reality is that even he concedes that the value of the pension can be broken down into two components that he calls the compensation component, and the retirement component. He places a lower value on the compensation component, and higher value on the retirement component pointing out, for example, that by the time the wife retired after 20 years’ service, she had already accrued a substantial benefit for retirement purposes.
Ultimately, neither Mr B nor Mr S’s expert evidence directly assists the court in assessing whether, and if so to what extent, the husband has made a contribution to the wife’s pension. Indirectly, however, their evidence confirms that in reality the wife’s pension does have some component to it that is not exclusively referable to her injury. To that extent the husband must have contributed to it, a fact conceded by the wife who submits his contribution should be assessed at 18 per cent.
Assessing the husband’s contribution to the pension is more art than science. The different character of the pension is an important factor. Other cases might provide some guidance, but ultimately each case is different, and thus different judicial approaches might be warranted: Thackray & Ryan JJ in Semperton (op cit), paragraph 190. Thus, for example, in T & T the non-beneficiary spouse was awarded 15 per cent. In Schmidt it was 10 per cent. In Wheeldon it was 15 per cent, Treloar 15 per cent, and in Hayton & Bendle it was also 15 per cent.
Given that the husband’s own expert, Mr S, conceded that the value of the wife’s pension consisted of both a compensation and a retirement component, it is hard to understand, let alone accept the husband’s submission which seems, with respect, to gloss over the “nature, form and characteristic of the wife’s pension”, or pay mere lip service to this fact. Once it is accepted that a sizeable component of the value of the pension merely compensates the wife for the income she is no longer earning, there can be no logical basis for claiming to have contributed to this. To accept the husband’s logic invites a further logical step – to consider the husband’s post-separation income as some form of property to which the wife can claim to have contributed. What the husband contends for is beyond the bounds of current family law jurisprudence, and authority.
A close examination of the husband’s evidence reveals that there is in fact little that he contends he contributed as a direct result of the wife’s retirement. At paragraph 22 of his affidavit sworn 25 October 2012 he explains that between 7 April 2006 when the wife retired, and 10 May 2009 when they separated, she did not work. Thus he contributed during this period as the sole breadwinner, though the evidence of the wife indicates that she was receiving her pension as well as some lump sum payments referrable to her retirement. If the husband’s case is that he did make significant contribution to the compensation component of the wife’s pension, it is a poorly articulated case. The court accepts, however, that over a long marriage he did make a contribution to what Mr S described as the retirement component, without necessarily preferring Mr S’s methodology over that of Mr B.
Doing the best the court can do under the circumstances, the court would have in fact assessed the husband’s contribution to the wife’s pension at 15 per cent. As the wife herself proposes 18 per cent, a figure which is well within the reasonable range for assessing the husband’s contribution, the court will adopt this figure.
Three pools of assets
Having regard to the court’s findings above, it follows that the court accepts the wife’s contention that the appropriate approach to assessment of contribution is on an asset-by-asset approach. Moreover, the court accepts the wife’s contention that there should be three pools, with Pool A consisting of the non-superannuation assets (value $644,725), Pool B consisting of the wife’s pension valued at $987,717, together, for convenience sake, with the wife’s interest in [F] Super totalling $850 (total value Pool B $988,567), and finally Pool C consisting of the husband’s superannuation (items 30-33 in the balance sheet), total value $637,228.
In relation to Pool A, whilst the wife contended for an assessment of contribution as to 55 per cent in her favour, for the reasons articulated above, the court finds that contribution to Pool A should be equal.
In relation to Pool B, for the reasons articulated above, the court has accepted the wife’s contention that her contribution should be assessed at 82 per cent, and the husband’s at 18 per cent.
In relation to Pool C, the husband’s superannuation, the somewhat odd situation in this case is that whereas the husband contended, in effect, that the wife had contributed to 50 per cent of this pool, the wife’s contention is that her contribution should only be 37 per cent. Whilst the precise rationale for the wife’s contention that she only contributed 37 per cent of the husband’s superannuation is unclear, nonetheless if that is what the wife contends for, and in circumstances where the court might have accepted an argument for a higher contribution, the court will nonetheless settle for what the wife contends.
Expressed in the form of a table, therefore, the effect of assessment of contribution is as follows:-
| Husband | Wife | ||
| Pool A | $644,725 | $322,362 (50%) | $322,362 (50%) |
| Pool B | $988,567 | $177,942 (18%) | $810,624 (82%) |
| Pool C | $637,228 | $401,453 (63%) | $235,774 (37%) |
| $901,757 | $1,368,760 |
Section 75(2) considerations
The wife contends for a 10 per cent adjustment in her favour, predicated on an acceptance of her proposal for three pools, and an asset-by-asset approach to assessment of contribution.
The husband contends for a 7.5 per cent adjustment, but on the basis that a global approach was adopted to the assessment of contribution.
The court found particularly helpful the written submissions on this issue prepared by senior counsel for the husband.
Both parties are 46 years old. The husband asserts that he suffers from shoulder and back injuries as a result of his employment, but this does not prevent him from working full-time. The wife asserts that because of the injuries she suffered in the course of her employment, she continues to receive a pension. In reality, to the extent that both the husband and the wife sought to assert that their current state of health was a relevant consideration their case was poorly articulated, and in the wife’s case, left to inference. In the husband’s case, whatever his state of health, the fact is that he can work full-time. In the wife’s case, whatever her health may be, the evidence indicates only that she is incapable of discharging her former duties as a police officer.
In terms of the income, property and financial resources of the parties, and the related issue of capacity for gainful employment, the fact remains that the husband is employed full-time with the New South Wales police and earns at least $105,000 per annum. By contrast, the wife’s only certain income is from her pension, which is about $56,628 per annum. She has previously worked as a [omitted], earning as much as $170 per week, and she receives child support which amounts to $18,500 per annum. She has recently undertaken some employment [omitted]. The wife enjoys a discounted tax rate on her pension, compared to the husband.
There is no issue about the husband’s current, and reasonably foreseeable capacity for appropriate gainful employment. There is some uncertainty about the wife’s equivalent capacity, but the absence of evidence on her part makes it difficult to make firm findings in this regard. All that is known is that she is clearly incapable of discharging her former duties as a police officer. Since retirement, the evidence indicates she has undertaken very limited paid employment.
Whilst there is probably some merit to the husband’s submission that the wife is of an age, and has the qualifications and experience which would enable her to obtain remunerative employment, on the basis of the evidence before the court it is unlikely that her capacity for gainful employment will match, let alone even approach, that of the husband. That is a significant section 75(2) consideration operating in her favour.
The husband concedes that in considering the income, property and financial resources of each of the parties, the fact that the wife’s superannuation entitlement involves an element of capitalisation of income is a relevant consideration. True it is that she has the option to commute at age 55, and then again at 60 years, and true it is that the evidence indicates that such commutation would result in substantial capital sums being made available to her. However, she would lose her income stream, and thus the value of commutation must be considered with that perspective.
It is also true, however, that unlike the husband’s income, the wife’s is guaranteed, free from the normal vicissitudes of life attaching to employment, and without the impost of personal exertion.
The husband concedes that the wife will retain primary responsibility for the care and parenting of the three children of the marriage currently aged 12, 14 and 17. He pays child support, as assessed, and spends time with the children each alternate weekend and during school holidays. He did not contend, nor could he reasonably contend, that the $356 per week child support that he pays covers all or even half of the costs of the children. The wife’s care of the children is therefore a significant consideration.
In terms of the eligibility of either for pension or superannuation, the wife’s entitlement to a pension, indeed an indexed pension for the rest of her life, has already been noted. The husband’s superannuation entitlement is not insubstantial.
The fact of child support has already been noted.
The wife’s case, whilst acknowledging all of the above considerations, emphasises a number of other factors the most significant of which really focuses on the disparity in earning capacity. Her counsel’s submission, which carries much weight, is that whereas her pre-retirement income has been quantified, indeed fixed subject to indexation, and subject of course to any capacity she might have to earn other income, the husband’s pre-retirement income is not fixed, and cannot be quantified.
The court records that it is acutely conscious of the fact that the nature of the wife’s pension entitlement has been considered in the context of contribution and is also being considered in assessing whether, and if so to what extent, to make an adjustment under section 75(2) of the Act. This was a matter discussed by their Honours Thackray and Ryan JJ in Semperton at paragraphs 143-166 of their judgment. The fact is that the court has made a finding that the wife’s contribution to her pension is significantly greater to the husband’s contribution. It would not be appropriate to place any significant weight on this in assessing any section 75(2) adjustment. The court therefore takes it into account, as it should because under section 75(2)(b) the court must take into account the “property and financial resources” of both parties, but that is not to say that having taken it into account it carries any, or any significant, weight in the assessment process.
A finding of a 10 per cent adjustment in the wife’s favour, producing a 20 per cent discrepancy, is available without any reference to the nature and quality of the wife’s pension. The court so finds. The 10 per cent adjustment, however, should not be calculated by reference to the wife’s pension as that would not be just and equitable as regards the husband, and it would otherwise carry an air of artificiality. Indeed, the 10 per cent adjustment should only be calculated by reference to the non-superannuation pool. This means the wife receives $128,945 more than the husband. The focus here should be on the quantum of the adjustment rather than which pool it is levied against. Thus, the wife would be entitled to 60 per cent of Pool A, 82 per cent of Pool B, and 37 per cent of Pool C. This is expressed in a table as follows:-
| Husband | Wife | ||
| Pool A | $644,725 | $257,890 (40%) | $386,835 (60%) |
| Pool B | $988,567 | $177,942 (18%) | $810,624 (82%) |
| Pool C | $637,228 | $401,453 (63%) | $235,774 (37%) |
| $837,285 | $1,433,233 |
Having regard to the above table the husband is entitled to $837,285 and has assets available to him as follows (by reference to the balance sheet):
| 2 | Property B | $475,000 |
| 10 | Household contents | $3,000 |
| 11 | Police credit union | $1,000 |
| 21 | St George mortgage | ($384,000) |
| 30 | Police Superannuation | $589,219 |
| 31 | Police Superannuation | $45,315 |
| 32 | [F] Super | $2,100 |
| 33 | [U] Super | $595 |
| $732,229 |
The wife would therefore need to pay him $105,056 in order to give effect to these reasons.
Having regard to the table above, the wife is entitled to $1,143,233 and has assets available to her as follows (by reference to the balance sheet):
| 1 | Property P | $650,000 |
| 3 | Police credit union | $20 |
| 4 | Bank West account | $349 |
| 5 | Shares (E-trade) | $12,033 |
| 6 | Shares (IAG) | $3,033 |
| 7 | Shares (Shaw River) | $141 |
| 8 | Berlina Car | $10,000 |
| 9 | Household contents | $3,000 |
| 20 | St George mortgage | ($128,851) |
| 28 | Police Superannuation | $987,717 |
| 29 | [F] Super | $850 |
| $1,538,292 |
Once she pays $105,056 to the husband, her net assets will still be about 63% of the asset pool. The payment to the husband should not be difficult in a practical sense for the wife. Even if she borrowed all of it it would only increase the mortgage secured over Property P to about $234,000 which is less than 40% of the equity in the property. Her financial statement sworn 27 October 2012 already shows a weekly surplus of $59 per week in circumstances where item 30 claims weekly credit card payments of $700. There seems to be capacity to comfortably service any additional borrowing. The husband proposes that this payment be made in 30 days, but the order will be for 60 days, particularly having regard to the time of year.
If orders are made to reflect the above, would this be just and equitable? The answer is that it is as just and equitable as the circumstances permit. Both parties end up with homes that are encumbered by manageable mortgages, especially if the husband uses the payment to him to reduce his mortgage. Both have an income: for the wife it is for life, for the husband it is till retirement at which time his superannuation will be available to him. The particular challenge of dealing equitably with the wife’s police pension is also dealt with adequately.
The Orders
Very little time was spent at the hearing considering the form and details of the orders proposed by the parties to implement the outcome they sought. The court has adopted the orders proposed by the husband altering the relevant amounts. Should this cause inconvenience to the parties leave will be granted to re-list so that a more fulsome consideration of the orders may be undertaken.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 4 December 2012
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