Dailey and Weaver
[2011] FMCAfam 1012
•11 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAILEY & WEAVER | [2011] FMCAfam 1012 |
| FAMILY LAW – Property – two pools approach – [D] Pension. |
| Family Law Act 1975, ss.75, 79 |
| Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC93-143, (2003) 30 FamLR 355 In the marriage of Lee Steere (1985) FLC 91-626 In the marriage of Ferrarro (1993) FLC92-335 In the marriage of Clauson (1999) FLC92-877 Russell and Russell (1999) FLC92-877 Teal and Teal [2010] FamCAFC 120 C & C (2005) FLC 93-220 Kessey and Kessey (1994) FLC 92-495 (Full Court) at 89,151 Pierce and Pierce [1998] FamCA 74; (1999) FLC 92-844 (Full Court) at 85,881 Farmer and Bramley [2000] FamCA 1615; (2000) FLC 93-060 Figgins and Figgins [2002] FamCA 688; (2002) FLC 93-122 (Full Court) Robb v Robb (1995) FLC 92-555; 18 Fam LR 489 L & L [2003] FamCA 40 |
| Applicant: | MR DAILEY |
| Respondent: | MS WEAVER |
| File Number: | SYC 7097 of 2010 |
| Judgment of: | Foster FM |
| Hearing dates: | 13 & 14 September 2011 |
| Date of Last Submission: | 14 September 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 11 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cohen |
| Solicitors for the Applicant: | Biddulph & Salenger |
| Counsel for the Respondent: | Ms De Vere |
| Solicitors for the Respondent: | Barkus Doolan Kelly |
ORDERS
That the husband within 2 months from this date pay to the wife the sum of $153,969 and concurrently with such payment:
(a)the husband do all things necessary to procure a release of the wife from all or any liability in regard to the mortgages presently secured over the property at [Property A],
(b)the husband do all things necessary to discharge the [omitted] Credit Union Loan relating to the purchase of the [Q] boat,
That concurrently with the payment provided for in Order 1 the husband do all things necessary to transfer to the wife or her nominee all his shareholding and interest in [R] Pty Ltd and thereafter the wife indemnify the husband from all or any liability arising from the husbands shareholding or other interest in the said company.
That concurrently with the payment provided for in Order 1 the wife do all things necessary to procure a transfer of the Toyota Hilux vehicle presently in the possession of the husband from [R] Pty Ltd to the husband.
That a base amount of $70,000 is allocated, as required by s.90MT(4) of the Family Law Act 1975, to the husband out of wife’s interest in the [P] Superannuation Scheme ([policy number omitted]) and that, in accordance with paragraph s.90MT (1) (a) of Family Law Act 1975 the husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and the wife’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to out of the wife’s interest in the said superannuation fund is correspondingly reduced.
That the Trustee of the [P] Superannuation Scheme "the trustee" shall do all such acts and things and sign all such documents as may be necessary to calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for husband created by these order and pay the entitlement whenever the trustee makes a splittable payment out of wife’s interest in the [P] Superannuation Scheme and that this order has effect from the operative time and the operative time is four days after service of this order on the Trustee.
That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the husband shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising a request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer the transferable benefits out of the wife’s interest in the [P] Superannuation Scheme to a fund of the husbands choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
The Court declares that the parties have otherwise divided between themselves in specie all their other property including real property, their furniture and furnishings, their jewellery and other personal effects, chattels, cash on hand and including their cash at bank and building society and that they have no right title or interest in or to any such items presently in the possession of or under the control of the other including their respective accruing superannuation entitlements.
Liberty to either party to apply as to implementation or enforcement of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Dailey & Weaver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7097 of 2010
| MR DAILEY |
Applicant
And
| MS WEAVER |
Respondent
REASONS FOR JUDGMENT
Applications
This matter concerns competing applications for property settlement between the applicant husband and the respondent wife.
The husband seeks orders in summary, that he retain the property at [Property A], (“[A]”) assuming liability for the mortgage, that he retain the [Q] boat and assume liability for the loan, that the wife pay to him the sum of $12,500, that he retain the Hilux motor vehicle, that he transfer his interest in [R] Pty Ltd to the wife and she indemnify him from any company related liability and that he receive a $70,000 split from the wife’s superannuation.
The wife seeks orders that the [A] property be sold and from the net proceeds of sale she receive $220,000, with the balance to the husband, that he transfer his interest in [R] Pty Ltd to her, that she cause a transfer of the Hilux motor vehicle to the husband and that otherwise she retain her other properties and superannuation.
Background
The husband is aged 55 years and the wife 48 years. Neither suffers from any relevant ill health. The parties commenced cohabitation at the time of marriage [in] 1997. They separated under one roof in August 2009 and the wife left the [A] home in December 2009. The cohabitation thus being of nearly 13 year’s duration.
There are no children of the marriage. The wife brought into the household her three children from her previous relationships who at the time of cohabitation were aged 7 ([X]), 4 ([Y]) and 2 ([Z]). The wife during cohabitation received child support for the two eldest children in the total sum of $250 per month, about $30 per week per child. For about 10 months after marriage two of the husband’s children from his former marriage were part of the household before they retuned to live with their mother.
At cohabitation the assets of the parties are agreed. The husband had the [A] property with an equity of about $220,000, a car and superannuation of about $18,000. The wife had the property at [Property P] (“[Property P]”) with an equity of about $110,000, a car, savings of $1,000, a life policy with a value of $12,000 and superannuation of $ 48,272.
At the time of cohabitation the husband was in full time employment as a [omitted] and in receipt of a [D] Retirement and Death Benefits Scheme (“[D]”) indexed pension of $15,080 per annum. The husbands’ [D] pension accrued a result of his [employment] and membership of the scheme since August 1975 until his retirement from [omitted].
The wife at cohabitation was employed with [omitted] earning about $40,000 per annum from which she serviced the mortgage on [Property P] and supported herself and her children.
After marriage the parties resided in the husband’s [A] home, which facilitated the wife renting her [Property P] home to meet mortgage payments and other outgoings.
Prior to marriage the husband refinanced the [A] property by increasing the mortgage from about $98,000 to a total sum of $257,000. Of that increase the sum of $37,000 was a Council related guarantee bond in relation to proposed renovations. The balance of the refinance was used for renovations to the property after marriage, although a sum of $10,000 was lost to the original building contractor.
In late 1997 the wife refinanced the [Property P] property, increasing the mortgage to $154,000. From the refinance she received a net sum of about $60,000 that was applied to renovations on the [A] property and purchase of white goods for that home. Concurrently with the refinance the wife transferred the [Property P] home to [R] Pty Ltd, a company of which she was the sole director and the parties’ equal shareholders. The balance of the refinance funds of about $10,000 were applied to the costs of this transfer. It appears that the [Property P] home was transferred so as to remove the home from any claim by the husband’s former wife and the company structure used to facilitate the payment of the husbands salary payments into the company so as to reduce his exposure to child support liability. The husband acquiesced in this arrangement. Thereafter the husband paid child support, although there is no evidence as to quantum. Both the husband and wife were active in relation to the husband’s child support and parenting issues during the early years of cohabitation.
In about 1997 the wife commenced part time tertiary studies which saw her graduate with a [qualification omitted] in late 2007. She devoted time to her studies during cohabitation.
In 1999 the wife was promoted and her new position involved short term international travel during which time her children were cared for by the husband, the maternal grandmother and the husband’s parents.
In 2001 the husband voluntarily resigned his full time position and commenced part time casual employment on night shift two or three nights a week.
In late 2002 the wife resigned from [omitted] and obtained employment with [H] Pty Ltd. This employment saw her in Indonesia for a total period of three months during which the husband substantially cared for the children at [A].
In February 2003 the parties purchased a [Q] boat funded by the sale for the sum of about $5-6,000 of a boat gifted to the wife by her father and the sale for $1,500 of a boat gifted to the husband by his father together with a personal loan. Following separation the husband after a short hiatus took over the loan payments and it is agreed he will retain the boat and liability for the loan.
In mid 2003 the wife was made redundant from her employer and her redundancy payment went into the household finances. The wife was thereafter unemployed for a short period before obtaining further full time employment with [omitted].
In the context of this employment the wife was [transferred] to the [organisation omitted] in New York in March 2004. She spent three months in New York after which time the husband and the wife’s children joined her for a period of 12 months. The [A] home was rented during this period. The husband substantially cared for the children at [A] before joining the wife in New York. The husband was unable to work in the United States and substantially cared for the children whilst the wife undertook her employment responsibilities in New York.
On the wife’s return to Australia she obtained her present employment with [omitted] on a full time basis. The husband returned to part time employment as a [omitted].
In 2008 the wife refinanced her [Property P] property to fund renovations necessary to bring the property up to standard to facilitate it being tenanted. It appears the property had been vacant for some time necessitating an upgrade to attract a tenant. The renovations were not completed until late 2009. The husband gave some minor assistance with the renovations but they were substantially carried out by a friend of the wife who was paid from funds borrowed. At the time of the refinance the wife borrowed additional funds to facilitate service of the mortgage during the property’s ongoing vacancy.
During the period the parties were separated under the one roof in the [A] property the wife again refinanced the [Property P] property with the mortgage increased to $235,000. With the additional funds the wife purchased the property at [Property B]. The property was purchase for $745,000 with a mortgage advance of $705,695 secured by way of collateral borrowing over the [Property P] property.
To assist with the funding of her purchase the wife sold her car for $8,000 and cashed her life policy in the sum of $15,455.
Concurrently with the refinance the wife procured a transfer of the [Property P] property from [R] Pty Ltd to her own name. The additional costs of the purchase and transfer from the company included $29,035 stamp duty on the purchase and $15,740 stamp duty on transfer from [R] Pty Ltd to the wife of [Property P]. These costs, together with the remaining balance of purchase monies were met from the mortgage borrowings.
The wife asserts that a capital gains tax liability has accrued to the company as a consequence of the transfer of [Property P] to the wife. There was no relevant evidence as to the existence of that liability, nor were any taxation returns or taxation assessments of the company provided. In the circumstance where the additional mortgage liabilities incurred in the transaction are in the agreed asset pool the inclusion of the asserted additional capital gains tax liability was not pressed by the wife.
During cohabitation [R] Pty Ltd purchased a Hilux vehicle subject to hire purchase. After separation the vehicle was retained by the husband. The wife caused a payout of the hire purchase debt in the sum of $5,199 in October 2010.
The law
The approach the court is required to adopt in determining an application under section 79 of the Family Law Act for adjustment of property interests is well established by authority (Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143, (2003) 30 FamLR 355. In the marriage of Lee Steere (1985) FLC91-626, In the marriage of Ferrarro (1993) FLC92-335, In the marriage of Clauson (1999) FLC92-877).
The process ordinarily involves a four-staged process. Firstly the court must identify the property, liabilities and financial resources of the parties at the time of the hearing. The court then considers the contributions made by the parties as defined in section 79 (4) (a) to (c). Thirdly the court must consider the future needs of the parties by having regard to the provisions of section 75(2) in so far as they are relevant. Finally in determining what order the court should make the court must be satisfied in all of the circumstances that it is just and equitable to make the order – s.79(2). It is the justice and equity of the actual orders that the court must consider. (Russell and Russell (1999) FLC92-877, Teal & Teal [2010] FamCAFC 120 (25 June 2010)
The property of the parties
During the course of the trial ultimate agreement was reached as to the property of the parties the subject of the proceedings.
The non superannuation property comprises:
Husband [Property A] 860,000 Husband [I] shares 4,480 Husband Contents 5,000 Husband [Q] boat 20,000 Husband Hilux vehicle 8,000 Wife [Property B] 740,000 Wife [Property P] 537,000 Wife [I] shares 2,297 Wife [T] shares ([R] Pty Ltd) 457 Wife [C] shares 4,273 Wife [omitted] Scooter 2,000 Wife Contents 10,000 TOTAL 2,193,507
Liabilities:
Husband Mortgage [Property A] 165,502 Husband [omitted] Credit Union (boat) 7,536 Wife Mortgage Property B 697,391 Wife Mortgage Property P 232,132 TOTAL 1,102,561 NET 1,090,946
The superannuation property of the parties comprises:
Husband [A] Superannuation Plan 53,382 Husband [D] Pension (Single Expert) 319,682 Wife [P] Superannuation Scheme 264,730 Wife [O] Superannuation Fund 97,143 TOTAL 734,937
One or Two Pools:
The parties were in agreement that the court should adopt a two pools approach requiring the court to assess contributions and s.75(2) matters in relation to each pool (see C & C (2005) FLC 93-220). The court considers this to be an appropriate approach by reason of the circumstances of the accrual of the husbands [D] pension benefit.
The Non Superannuation Pool:
The court now considers the second step in the exercise under s.79, namely an assessment of the parties’ contributions within the context of s.79 (4)(a) to (c). These provision provide as follows:
Section 79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
In Kessey and Kessey (1994) FLC 92-495 (Full Court) at 89,151 the Full Court made clear that ultimately all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party:
“... In many – indeed probably in most – property settlement cases the Court has to evaluate and assess contributions to property in the absence of precise valuations of the contributions in question. Indeed, where the contributions to property are indirect or non-financial, precise valuation is impossible, and even where the contributions are direct or financial so that a valuation might be provided, other factors (not capable of precise mathematical statement) may well have eroded the initial value of such contributions. In a case such as the present, it is not necessary to arrive at precise mathematical valuations of the parties’ contributions - all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party.”
In Pierce and Pierce [1998] FamCA 74; (1999) FLC 92-844 (Full Court) at 85,881 the Full Court said:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: ..”.
In Farmer and Bramley [2000] FamCA 1615; (2000) FLC 93-060, Kay J clearly stated two things, namely:
“68. The Court’s task is to evaluate all of the contributions from the time of the commencement of the parties’ relationship until the time of the hearing and to give such weight to such contributions as the Court thinks is appropriate in the circumstance.
69. There is nothing in the legislation that requires s 79(4)(a)(b) and (c) contributions to be measured only in terms of what either party contributed to the assets of which the parties are presently possessed.
In Figgins and Figgins [2002] FamCA 688; (2002) FLC 93-122 (Full Court) Nicholson CJ and Buckley J observed:
“134 ... Marriage is and should be regarded as a genuine partnership to which each brings different gifts. ...”.
The assets of the parties at marriage are agreed. The husband came into the relationship in a superior position to that of the wife in terms of capital. The wife also brought into the marriage three young dependent children in respect of whom the husband had no parenting or financial obligation.
During cohabitation and until the husband left his full time employment in 2001 the party’s incomes from all sources were similar. This period is of about 4 years. Clearly the wife’s income was substantially applied to the support of her children, making the contribution to the assets of the parties over this period favour the husband.
After 2001 and until separation the incomes of the parties were disparate. The wife continued earning a full time salary which substantially exceeded that of the husband, who of his own choice remained in part time work. Although the parties combined their resources the overall income continued to shoulder the financial burden of three growing boys, this fact reduces the significance of the overall income disparity. Yet overall it remains in the wife’s favour.
Much issue was taken at trial in relation to the parties respective contributions within the home and particularly that of the husband in relation to the wife’s children. The husband asserts that such contribution is significant and should weigh in his favour in the context of s.75 (2)(o). (See Robb v Robb (1995) FLC 92-555; 18 Fam LR 489).
It is clear that the husband was substantially involved with the wife’s children. Her evidence of her work commitments, hours of employment and overseas work commitments and other travels leads to the inescapable inference that the husband was of necessity so involved and his contribution is deserving of recognition in not a token but substantial way. This will be done in considering s.75 (2) factors below.
Whilst much was made of the parties respective homemaker contributions. Overall I accept that both parties dutifully discharged their obligations in this regard having regard to time available. This is particularly so in relation to the wife who was in full time employment. The Court accepts that the husband had the greater role to play in this regard. He was simply more available to the children and the household.
After final separation in December 2009 the husband assumed liability for his home and the wife for hers. The wife did pay out the liability in regard to the Hilux vehicle to be retained by the husband.
Overall in considering contributions the court is of the view that notwithstanding the disparity at the commencement of this cohabitation of nearly 14 years and the wife’s income clearly being needed in a significant way to meet her children’s needs that contributions should favour the wife as to 55% to the husbands 45%.
The court will now turn to look at s.75(2) factors.
The court considers the relevant matters to be so taken into account are:
a) The age and state of health of each of the parties;
The husband is aged 55. The wife is aged 48. Neither asserts any relevant health circumstances. This factor does not warrant any adjustment between the parties.
b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband continues in part time work of his own choice, acknowledging he could seek full time work but chooses not to. He is in receipt of a life time indexed [D] pension.
The wife is in full time employment earning about $150,000 per annum. She is shortly to be made redundant but will receive accumulated entitlements and a separation payment of about $62,000 after tax. She will also receive significant assistance in seeking reemployment as part of her termination entitlements.
The property and resources of the parties are set out above.
This factor does not warrant any adjustment between the parties.
e)The responsibilities of either party to support any other person;
The wife still has the care of one child under 18 for the next twelve months. That child is still at school. This factor favours the wife by way of a slight adjustment.
f) subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under
(i)any law of the Commonwealth, of a State or Territory or of any other country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The parties superannuation entitlements are set out above and will be considered in this context separately below.
o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
In this context the husbands significant contribution to the welfare of the wife’s children must be considered as referred to above. He not only made available his home which became the party’s and the children’s primary residence for many years, but he combined his income with that of the wife to meet all household expenses without differentiation. This factor favours the husband.
Overall in considering the relevant factors set out above the court considers that a s.75 (2) adjustment in favour of the husband of 5% is appropriate.
Thus in relation to the non superannuation pool the court finds that an equal division is in all the circumstances appropriate. The wife is thus entitled to a sum of $545,473.
The wife has in her possession:
Wife [Property B] 740,000 Wife [Property P] 537,000 Wife [I] shares 2,297 Wife [T] shares ([R] Pty Ltd) 457 Wife [C] shares 4,273 Wife [omitted] Scooter 2,000 Wife Contents 10,000 TOTAL 1,296,027 Wife Mortgage [Property B] 697,391 Wife Mortgage [Property P] 232,132 TOTAL 929,523 NET 366,504
The wife thus needs an adjustive payment in relation to the non superannuation pool from the husband of $178,969.
The Superannuation Pool:
The court is required to consider the parties contribution based entitlements in relation to the superannuation pool and the relevant s.75(2) factors in the same way as such were considered in relation to the non superannuation pool.
The husband came into the marriage with a vested [D] pension to which the wife can’t and does not assert any contribution based entitlement. Whilst the pension has been valued to give a notional capital value it is clear that its significance in the superannuation pool is that it is wholly subscribe to the husband in assessing contributions.
Otherwise in terms of the parties superannuation at commencement of cohabitation there was an accumulation fund disparity of about $30,000 in favour of the wife.
During cohabitation the wife worked full time save for a few months in between jobs. From 2001 at the age of 45, the husband elected to cease full time employment and work part time. That he concedes was his choice.
Whilst his contribution to the accrual of the wife’s superannuation in terms of his role with the wife’s children was significant the parties ultimate superannuation entitlements clearly would have been enhanced in terms of his accrual if he had elected to remain in full time work. Thus the wife’s accrual during cohabitation reflects are more significant contribution on her part as she did the hours to earn the superannuation.
The superannuation pool is:
Husband [A] Superannuation Plan 53,382 Husband [D] Pension (Single Expert) 319,682 Wife [P] Superannuation Scheme 264,730 Wife [O] Superannuation Fund 97,143 TOTAL 734,937
Of the pool the husband’s pension capital value represents about 43.5%. That entitlement will remain with him. Of the remaining accumulation entitlements totalling $415,255 the court assess contributions favour the wife 75% to the husbands 25%. Overall the court assesses contributions to this pool to be in favour of the husband as to 57.5% and the Wife 42.5%.
In considering relevant s.75(2) factors the court is not of the view that any factor is such as to alter the contribution based entitlements.
Thus the husband has an entitlement to $422,588 from the pool being a notional superannuation adjustment of about $102,906.
The husband seeks to have his superannuation adjustive amount set off against any liability to pay the wife a fixed sum in relation to the non superannuation pool. In that event it is appropriate to discount the cash adjustment as the husband gets immediate cash benefit at today’s value in lieu of a superannuation entitlement he could only access on meeting release requirements in the years to come. There is no evidence before the court as to release entitlements that apply to the husband at his age.
The question of what, if any, superannuation orders should be made falls to be determined on just and equitable considerations (See L & L [2003] FamCA 40). Some of the factors identified by Moore J in
L & L are:* The purchase price of appropriate accommodation and re-housing costs for both parties.
* The need for a financial buffer for ordinary exigencies of independent living.
* The current level of the parties' superannuation.
* The probability that the wife would be able to acquire appropriate superannuation benefits from her own future income.
* The husband's substantial earning capacity and ability to borrow significant sums at favourable rates (from his employer).
In this matter the husband seeks to retain his [A] home which is currently tenanted whilst he resides with his mother. That property has significant equity by reason of renovations and market increases over the years. The ongoing mortgage payments were facilitated to a great extent by the parties combining their incomes. The wife has her investment property at [Property P] and a home at [Property B] she seeks to retain as her primary residence. It may be that to release equity to reduce her mortgage exposure the wife will sell the [Property P] property. This will still leave her [B] property substantially encumbered by mortgage.
The party’s respective superannuation entitlements are dissimilar in that the husband has an indexed pension stream for life and a small accumulation benefit. The wife has accumulation benefits totalling about $361,000, about the same as the value ascribed to the husband’s entitlements.
The wife it is expected will continue to accrue benefits for a longer period and at a greater rate than the husband by reason of age disparity and earning capacity disparity.
On balance the court is satisfied that it would be just and equitable to make a splitting order as sought by the husband. He seeks a splitting order in the sum of only $70,000. The court will make a splitting order in that sum.
As to the balance of his entitlement in relation to the superannuation pool in the sum of $32,906 it is submitted by the wife that any adjustment as against her monetary entitlement in the non superannuation pool should be discounted to some extent by reason of the husband getting an immediate cash benefit as against what would have been a deferred superannuation interest. The husband is aged 55. He is able on certain conditions to access his superannuation prior to age 60. Otherwise he will be able to access his superannuation in
5 years or so. In all the circumstances the court considers that a monetary adjustment of $25,000 is called for. Thus the capital sum owing by the husband to the wife in relation to the non superannuation pool will be reduced by $25,000.The orders proposed have no effect on the party’s income earning capacity. There is no issue as to child support as between the parties.
Section 79(2) – just and equitable
The fourth stage of the process is to step back and assess whether in all of the circumstances it is just and equitable to make the orders to be proposed.
The husband will have the opportunity to retain his home. The wife will receive some cash funds to reduce her present mortgage exposure. Both parties will retain superannuation interests as they approach retirement age.
Conclusion
The court is satisfied that the orders proposed are in all the circumstances just and equitable.
For the above reasons the court will make the orders set out in the beginning of this judgment.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 11 October 2011
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