Darwish and Rajavi

[2014] FCCA 2226

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARWISH & RAJAVI [2014] FCCA 2226

Catchwords:
FAMILY LAW – Property – significant initial contributions – small pool with the need for a 25% increase on the basis of s.75(2).

Legislation:

Family Law Act 1975, s.75

In the Marriage of Clauson & Clauson (1995) FLC 92-595
Pierce & Pierce (1999) FLC 92-844
Stanford & Stanford (2012) FLC 93-518

Martin Bartfeld QC, Current Developments in Family Law Property, Section 79(2) – Hiding in Plain Sight, 13 May 2014

Applicant: MR DARWISH

Respondent: MS RAJAVI

File Number: BRC 11188 of 2013

Judgment of: Judge Cassidy

Hearing date: 25 August 2014

Date of Last Submission: 23 September 2014

Delivered at: Brisbane

Delivered on: 30 September 2014

REPRESENTATION

Counsel for the Applicant: Mr McGregor

Solicitors for the Applicant: Best Wilson Buckley Family Law

Counsel for the Respondent: Mr Shoebridge

Solicitors for the Respondent: V Pennisi & Associates

ORDERS

1. That the husband retain 45% of the “Combined Net Matrimonial Assets” (defined herein), such calculation to include:

   (a)The “Husband’s Net Matrimonial Assets” (defined herein); and

   (b)A sum from the total proceeds referred to in Order (5)(a) herein.

2. That the wife retain 55% of the “Combined Net Matrimonial Assets”, such calculation to include:

   (a)The “Wife’s Net Matrimonial Assets” (defined herein); and

   (b)A sum from the total proceeds referred to in Order(5)(a).

Property

1. For the purposes of these Orders, the “Wife’s Net Matrimonial Assets” is $34,776 being the sum of the following:

   (a)The wife’s superannuation with [H], at a value of $1,676;

   (b)The superannuation to be received by the wife pursuant to Orders (7) to (12), at a value of $20,000; and

   (c)The wife’s motor vehicle, at a value of $13,100.

2. For the purposes of the these Orders the “Husband’s Net Matrimonial Assets” is $24,155, being the sum of the following:

   (a)The superannuation held by the husband with [E] Superannuation, following the split of super to the wife pursuant to orders (7) to(12), at a value of $39,660;

   (b)His [H] motor vehicle, at a value of $6,600;

   (c)The debt owed to the St George Bank for the [H] motor vehicle motor vehicle, at a value of ($11,710);

   (d)The debt owed to the National Australia Bank Limited under Visa card [1], at a value of ($2,064); and

   (e)The debt owed to Westpac Bank under Visa card [2], at a value of ($10,381).

3. For the purpose of these Orders, the “Combined Net Matrimonial Assets” shall be the total of:

   (a)The total of the proceeds of the sale of the property known as Property A in the State of Queensland more particularly described as Lot [omitted] (“the [A] Property”) held pursuant to Order 5(c) of the Orders dated 1 October 2014;

   (b)$34,776 (i.e. the “Wife’s Net Matrimonial Assets”); and

   (c)$22,105 (i.e. the “Husband’s Net Matrimonial Assets”).

Superannuation

1. That the Wife retain, and the Husband abandons any claim to, the Wife's superannuation entitlements with [H] Superannuation.

2. That in accordance with Section 90MT(4) of the Family Law Act 1975, a base amount of $20,000 is allocated to the Wife out of the Husband`s interest in the [M] Super Scheme (“Fund”).

3. That, in accordance with Section 90MT(1)(a) of the Family Law Act 1975:

   (a)The Wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)The entitlement of the Husband in the  Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the Husband’s superannuation interest) is correspondingly reduced by force of this Order.

4. That the trustee of the Fund (“Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

   (a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Wife in the immediately preceding clause of this Order; and

   (b)Pay the entitlement whenever the trustee makes a splittable payment from the Husband’s interest in the Fund.

5. That this Order has effect from the operative time and the operative time is four days after service of these orders on the trustee.

6. That within the time prescribed under the governing rules of the Fund, the Wife request the trustee of the Fund to create a new interest, rollover or transfer the Husband’s entitlement in accordance with the requirements of the Trust Deed (or insert name of statute, e.g. Superannuation Act 1976).

7. That, in accordance with the Family Law (Superannuation) Regulations 2001, any payments from the Husband’s superannuation interest made after the trustee has acted under its governing rules to create a new interest in the Wife’s name in the Fund are not splittable payments.

Other Orders

1. That within 7 days of the date of these Orders the Respondent do all acts and things and sign all documents necessary to deliver the following household goods and chattels to the Applicant:

   (a)The [jewellery omitted] gifted by the husband’s mother;

   (b)Sony CD player;

   (c)Sofa bed;

   (d)Panasonic Bread maker and microwave;

   (e)Outdoor charcoal grill and barbeque;

   (f)Bosch drilling machine and hardware tools;

   (g)Mower;

   (h)Computer previously located in the study and computer desk;

   (i)Personal papers, technical books,  papers and CD’s;

   (j)Recently purchased Breville toaster, electric Kettle and Food processor;

   (k)Samsung fridge and Bosch washing machine;

   (l)The 4 drawer chest;

   (m)The old TV and stand, small dining set and chairs, wooden IKEA coffee table.

2. That the husband and wife sign all documents and do all things necessary to close the joint NAB Bank Account No. [4] and distribute any proceeds between them equally.

3. Except as otherwise expressly provided for herein each party shall be solely responsible for and shall indemnify and forever indemnify the other party with respect to all personal liabilities and credit card debts in each of their respective names or possession at the date of these Orders.

4. That save as otherwise provided for in these Orders, the Applicant should be entitled to, to the express exclusion of the Respondent all other property and chattels and resources of a whatsoever nature and kind in her possession and in respect of which the Applicant has an actual, beneficial and/or contingent interest as at the date of these orders including but not limited to his:

   (a)Balance of his [M] Superannuation entitlements;

   (b)Funds held to the Applicant’s credit in any bank, savings or credit union account;

   (c)Household goods and chattels; and

   (d)Annual leave and other work related entitlements.

5. That save as otherwise provided for in these orders, the Respondent shall be entitled to, to the express exclusion of the Applicant, all other property and chattels and resources of whatsoever nature and kind in his and in respect of which the respondent has an actual beneficial and/or contingent interest as at the date of these Orders including but not limited to her:

   (a)2008 [A] Motor vehicle (registration [omitted]);

   (b)Funds held to the Respondent’s credit in any bank, savings or credit union account;

   (c)Household goods and chattels; and

   (d)Annual leave and other work related entitlements.

Procedural

1. That the parties shall do all acts and things and sign all documents necessary within seven (7) days of a request to so act in order to give full force and effect to the provisions of these orders.

2. That in the event of either party refusing or neglecting or sign within 7 days of a written request to do so, any document necessary to give effect to the terms and provisions of these orders, a registrar of the Brisbane registry of the Federal Circuit Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 (as amended) to execute all the deeds and documents in the name of the defaulting party and to do all such acts and things to give validity and operation to all such deeds and documents so as to give validity and operation to the provision of these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11188 of 2013

MR DARWISH

Applicant

And

MS RAJAVI

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to the Court for a determination of the property interests of the parties.  The parties have one child together, [X], born [omitted] 2012.  The parenting proceedings are still currently pending before the Court.  The property proceedings were listed for a one day trial on 24 August 2014, at which time the children’s proceedings were also mentioned. 

2. I am satisfied that it is appropriate to make an order in circumstances where the parties have jointly owned the single most significant asset in the pool, a property at Property A.  They have a joint mortgage on that property. 

3. The parties are now living separately and apart and the ownership of the former matrimonial home needs to be changed.  For that reason, I am satisfied that it is just and equitable to make an order in relation to this matter (Stanford & Stanford (2012) FLC 93-518).

The Material

1. The husband relied upon the following material:

   a)The further amended initiating application filed 7 August 2014;

   b)The financial statement of the husband filed 7 August 2014l;

   c)The affidavit of the husband filed 8 August 2014;

   d)The notice to admit facts filed 11 August 2014;

   e)The written submissions of the husband filed 15 August 2014;

   f)The affidavit of the husband filed 20 August 2014;

   g)The affidavit of [name omitted] filed 20 August 2014;

   h)The objections of the applicant filed 22 August 2014; and

   i)The submissions filed 23 September 2014.

2. The wife relied upon the following material:

   a)The response filed 14 March 2014;

   b)The affidavit of the wife filed 11 August 2014;

   c)The financial statement of the wife filed 11 August 2014;

   d)The affidavit of [name omitted] filed 11 August 2014;

   e)The affidavit of [name omitted] filed 11 August 2014;

   f)The case outline of the wife filed 15 August 2014;

   g)The objections to evidence, two separate documents filed by leave on 25 August 2014; and

   h)The written submissions filed 12 September 2014.

3. I have also considered the exhibits tendered in this matter, being:

   a)Exhibit 1 – the wife’s Commonwealth bank statement from 27 July 2009 until 30 September 2009 and the wife’s ANZ Access Advantage Cheque statements, tendered by the wife:

   i)From 19 November 2010 until 19 January 2011;

   ii)From 18 November 2011 until 19 January 2012; and

   iii)From 19 July 2012 until 19 September 2012.

   b)Exhibit 2 – the wife’s ANZ Access Advantage Cheque statement from 18 March 2011 until 19 May 2011, tendered by the wife;

   c)Exhibit 3A – the wife’s Commonwealth Bank statement from 1 April 2013 until 30 September 2013, tendered by the husband;

   d)Exhibit 3B – the Commonwealth Bank Youthsaver Account statement in the name of [X] from 16 April 2013 until 15 October 2013, tendered by the husband; and

   e)Exhibit 4 – the Commonwealth Bank Youthsaver Account statement in the name of [X] from 16 October 2013 until 15 April 2014, tendered by the husband.

The Orders Sought by the Applicant

1. The husband seeks orders that would see the asset pool distributed on a 65%:35% basis, in the husband’s favour.  He seeks that the real property at Property A be sold and that is not disputed by the wife. 

2. The husband seeks that the wife retain:

   a)Her superannuation;

   b)The block of land he alleges she owns in [country omitted];

   c)An [A] motor vehicle;

   d)Gold coins he alleges she has in her possession;

   e)Cash he alleges is held by the wife, converted from US dollars;

   f)Furniture; and

   g)Savings. 

3. The husband seeks to retain:

   a)His superannuation, subject to a split to the wife;

   b)His [H] motor vehicle; and

   c)The debts of the Visa cards. 

4. The husband also seeks to allocate the wife $20,000 of his interest in his superannuation fund.  He seeks that certain chattels be returned.  They, in fact, have agreed to a list of chattels that the wife is to return to the husband.  That was put before me during the trial. 

The Orders Sought by the Respondent

1. The wife seeks the sale of the former matrimonial home and that the balance, after payment of any liability in relation to the sale, including the mortgage, be distributed 65%:35% in the wife’s favour.  She seeks an order that the contents of the home be divided equally between the parties and otherwise the parties retain the respective possessions in their power and control. 

The Approach Taken

1. The approach that I intend to take in this matter is the approach identified by Martin Bartfeld QC in his paper Current Developments in Family Law Property, Section 79(2) – Hiding in Plain Sight 13 May 2014:

   “[59] …

   a. Identify and value the legal and equitable interests of each of the parties in their individual or joint assets, with equitable interest only being relevant if they are external to the parties;

   b. Create a separate list of legitimate add backs;

   c. Determine whether there are facts and circumstances support the finding that it is just and equitable to make an order.  Put another way, is the case one which is outside the “ordinary” property cases,

   d. Marshall evidence of the various types of contributions;

   e. Marshall evidence of all relevant s 75(2) factors, including any adjustments for add backs;

   f. Determine whether the order to be made is “appropriate”.”

Background Facts

1. The preliminary written submissions of the husband, together with the case outline of the wife, adequately summarise the history of the matter.  I have accepted and taken into account the following facts. 

2. The applicant husband was born on [omitted] 1974 in [country omitted] and is currently forty years old.  The respondent wife was also born in [country omitted] on [omitted] 1984 and is currently thirty years of age.  The parties have one child together, [X], who was born on [omitted] 2012.  He is almost two years old.  Neither party has any other children. 

3. The parties met in Brisbane in June of 2008.  The husband had previously worked as an [omitted] in [country omitted] and then [country omitted] before relocating to Australia in July of 2008.  The wife had become a New Zealand citizen in August of 2006 and she returned to New Zealand in July of 2008. 

4. In 2009 the husband travelled to New Zealand and proposed to the wife.  In July of that year, the wife, the husband and the wife’ parents travelled to [country omitted].  The wife alleges that this was done at the expense of the wife’s parents, including return airfares.  During that trip, the parties had their first wedding reception at the [venue omitted], in [country omitted] (prior to the actual wedding ceremony).  Approximately 350 guests attended and the wife alleges that this was again paid for by her parents. 

5. The parties agree that the husband was in possession of two blocks of land in [country omitted] shortly prior to the wedding of the parties.  The wife alleges that her father paid the husband the equivalent of $15,000 AUS for the husband to transfer one of the blocks of land in [country omitted] to the wife, on the basis that the husband had no money to pay for the reception and that the wife then transferred that land to her father.  The husband alleges that he transferred the block of land held by him to the wife as a cultural wedding gift and that he also gifted the wife with gold worth approximately $7,000 as a further wedding gift.  The parties were married at the residence of the husband’s sister on [omitted] 2009.  The parties had a second wedding reception of approximately 200 guests, which the husband paid for.  The wife then moved to Australia and both parties resided together in Australia from late July of 2009. 

6. In September of 2009, the parties purchased a property at Property A (“the former matrimonial home”) for $535,000.  The parties agree that the property was purchased with the $14,000 first home owner’s grant received by the wife, together with either $100,000 of the husband’s savings (on the wife’s case) or $121,000 of the husband’s savings (on the husband’s case) and that the remainder of the purchase was secured with a mortgage to the National Australia Bank. 

7. In October of 2009 the parties’ marriage was registered in Australia.  In December of 2010 the husband became a permanent resident of Australia by way of sponsorship through his employer.  The child of the relationship, [X], was born on [omitted] 2012.  On 13 December 2012 the husband became an Australian citizen. 

8. In February of 2013 the wife’s sister relocated to Australia and commenced living with the parties in the former matrimonial home.  The wife contends that this was to assist her after the birth of the child.  On 23 July 2013 the wife’s parents relocated to Australia and commenced living with the parties (and the wife’s sister) in the former matrimonial home.

9. In September of 2013 the parties separated and the husband moved out of the former matrimonial home.  The wife graduated from a Bachelor of [omitted] in November of 2013.  She gained casual full time employment as a [omitted] on 6 January 2014.  The wife obtained Australia citizenship in February of 2014 and now holds dual New Zealand and Australian citizenship. 

10. The husband commenced proceedings in this Court on 18 December 2013. 

11. Both parties appear to be in good health, notwithstanding the husband’s [omitted] condition which he describes as minor to moderate.  The husband states that his [condition omitted] is well controlled with medication and that he is compliant with same (page 2 of the father’s affidavit filed 8 August 2014). 

The Assets

ASSETS – AGREED VALUES
Asset	Value	Liability
Property A	$550,000	Joint
2007 [H] motor vehicle	$6,600	Husband
2008 [A] motor vehicle	$13,100	Wife
LIABILITIES
Liability	Value			Ownership
Home Loan Ac No [3]	$323,400			Joint
St George Loan on 2007 [H] motor vehicle	$11,710			Husband
NAB-Visa Ac No [1]	$2,064			Husband
Westpac Visa Card Ac No [2]	$10,381			Husband
SUPERANNUATION
Asset			Value		Ownership
[E] Superannuation			$59,660		Husband
[H] Superannuation			$1,676		Wife
ASSETS IN DISPUTE
Asset		Value		Ownership
Overseas Land in [country omitted]		Not Valued		Wife’s Father
Cash in US Dollars		$14,855		Husband alleges the Wife holds the money
Gold Wedding Gifts		Not Valued		Each allege the other holds the gold

The Assets in Dispute – the Gold

1. The parties are in agreement that the gold exists because it was a wedding gift at the receptions that the parties had to celebrate their marriage.  The traditional gift in [country omitted] is gold and the parties were given gold by all of the guests attending the wedding.  Gold was taken to the husband’s sister’s home on the night of the wedding.  There is no dispute as to that.  The dispute then is what happened to the gold subsequently. 

2. The husband alleges that the wife’s parents brought the gold to Australia and that he saw it in the home in Australia but it has disappeared.  The wife’s evidence is that the gold was left in the husband’s sister’s home in [country omitted] and that is where it still is.  The husband’s sister gave evidence and the effect of her evidence is that there was no gold in her home.  It had been moved. 

1. I do not have a value of the gold, although there are estimates of up to $30,000 in the husband’s material.  I do not have any evidence, other than the parties’ evidence and the husband’s sister’s evidence, as to where it might be.  In those circumstances, I am not able to, on an issue of credit, determine who has the gold.  So neither party has satisfied the onus of proof for me to be able to find, on the balance of probability, where the gold is.  I will not put the gold into the pool.  Even if I had been able to make a finding in relation to the gold, I do not have a value for the gold.  For that reason, I would not be able to put it into the pool. 

The Land in [country omitted]

1. The husband owned a block of land in [country omitted].  This land was transferred to the wife at around the time of the wedding.  The husband’s case is that it was transferred to the wife as a wedding gift.  His evidence is that this is a common occurrence in [omitted] culture.  The husband also gifted the wife some gold, which he alleges was worth approximately $7,000. 

2. The wife, it seems, transferred that block of land to her father.  The difficulty I have is that there is no documentary evidence of the current ownership of the land, but it appears from the evidence that both parties accept that the title is with the wife’s father.  I have no evidence of how land is held in [country omitted] as compared with the Torrens title system in existence in Australia. 

3. The wife’s case is that her father provided the husband with approximately $15,000 to assist in the payment of the wedding reception and that the land was transferred to him to offset that payment.  I struggle with that because the land was transferred to the wife and not her father initially.  One would have thought that if there was a direct consideration for the land coming from the husband to the wife’s father and from the wife’s father to the husband, then you would anticipate that the land also would be directly transferred. 

4. I note, in evidence that the wife’s father gave, that he would readily assist his daughter if she needed funds.  The land could be looked upon as a resource for the wife and I am prepared to do that although I have no value for the land.  I accept that the husband had significant funds available to him in [country omitted] at the time of the wedding because shortly after the wedding, he was able to pay a significant deposit on the home that the parties purchased in Australia. 

5. Given that there was no direct transfer to support the wife’s case and given that the husband had significant funds available to him, I am satisfied that the husband’s evidence is to be preferred and that the property was gifted to the wife. As the land is in [country omitted], any argument about it being held on trust for the wife is not available without significant evidence about how land is held in [country omitted]. So I will treat it as a resource available to the wife under s.75(2) of the Family Law Act 1975 (Cth) (as amended) (“the Act”).

The US Currency

1. The husband’s case is that the wife had possession of approximately $14,000 in US currency.  His case is that the wife’s mother transferred the sum into the wife’s account on 22 August 2013 and the wife then transferred the money into the account of the parties’ son, then back into her own account and then returned the money to her mother.  The husband therefore alleges that the money is being held on trust for the wife, by her mother. 

2. There was a transfer of $12,800AUD to the wife’s account.  That was a transfer from the wife’s mother, of some US dollars and those US dollars were exchanged for Australian currency and they produced the sum of $12,800.  Then the wife transferred $15,000AUD to her son, [X], to an account in his name.  It was suggested by Counsel for the husband that those US dollars were kept in a box under the bed during the marriage.  The wife denied this.  The husband suggested that the US dollars were banked, converted by the wife’s mother, and then paid into the wife’s account.  The wife’s case is that it was her mother’s money. 

3. I am persuaded that the transfer from the wife’s mother to the wife was more likely than not a transfer of the wife’s mother’s money.  This is because the wife’s mother had a history of paying money into the wife’s account.  The wife’s mother gave evidence that she had sold some land and had US dollars available to her.  It is difficult to imagine when the parties were, at that stage, separating (the parties separated on 8 September) that the wife would have her mother bank the wife’s US dollars into the wife’s account.  It does not make sense if the wife was attempting to conceal these US dollars, to deposit them into her bank account in circumstances where they would be seen in any disclosure. 

4. I am satisfied that the funds were a deposit from her mother, consistent with the wife’s mother’s evidence and consistent with the course of conduct that the wife’s mother had engaged in during the course of the parties’ relationship. 

The Credit Card Debts

1. The husband seeks to include the credit card debts he has incurred.  The wife seeks to exclude these debts.  I am satisfied it is appropriate to include the debts to consider all of the assets and liabilities at the date of the trial.  This is so because the husband has continued to pay the mortgage and utilities on the former matrimonial home after separation, so it is appropriate to include the credit card debts. 

The Asset Pool (Including Superannuation)

ASSETS
Asset	Value			Ownership
Property A	$550,000			Joint
2007 [H] motor vehicle	$6,600			Husband
2008 [A] motor vehicle	$13,100			Wife
Total	$569,700
LIABILITIES
Liability	Value		Ownership
Home Loan Ac No [3]	$323,400		Joint
St George Loan on 2007 [H] motor vehicle	$11,710		Husband
NAB-Visa Ac No [1]	$2,064		Husband
Westpac Visa Card Ac No [2]	$10,381		Husband
Total	$347,555
NETT ASSETS	$222,145
SUPERANNUATION
Asset		Value			Ownership
[E] Superannuation		$59,660			Husband
[H] Superannuation		$1,676			Wife
TOTAL NETT ASSETS (INCLUDING SUPERANNUATION)		$283,481

Initial Contributions

1. Pierce & Pierce (1999) FLC 92-844 is authority for how a Court should consider initial contributions. Pierce & Pierce (supra) states at paragraph 28:

   “[28] 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. …”

2. At the commencement of the parties’ relationship, the husband had cash savings of $62,300 in [omitted] Bank.  He had cash savings in [country omitted] of $27,768 and cash savings in the Commonwealth Bank in Australia of $16,000.  He also had a motor vehicle and about $5,000 worth of superannuation. 

3. The wife had limited assets at the commencement of their cohabitation.  The husband had approximately $106, 068 at the commencement of cohabitation.  He also had two blocks of land, one that he subsequently gifted to his brother and one he gifted to the wife that is now owned by her father.  This is a significant initial contribution when the value of the pool is only $283,481 including approximately $60,000 in superannuation. 

Contributions

1. The husband contributed approximately $121,000 to the initial purchase price of the former matrimonial home.  The wife was entitled to the first home owner’s grant of $14,000. 

2. The parties paid $535,000 for the house and they borrowed $400,000, so that the husband, I accept, contributed approximately $121,000.  The wife contributed the $14,000 from the first home owner’s grant.  A further amount of $15,000 the parties used to complete renovations on the home came from funds held by the husband. 

3. The wife’s parents made some financial contributions to the family.  I accept that they were to the value of $65,131.20.  The wife’s mother, in her affidavit, set out contributions of $90,131.20.  She conceded the husband repaid the $15,000 for the airline tickets and the $10,000 (Item 4(m) in the wife’s mother’s affidavit) paid during 2012.  Hence the wife’s family contributed $90,131.20, minus the $25,000 that was repaid. 

4. I note that the wife’s parents provided $10,000 by way of a wedding gift that the parties purchased furniture with. 

5. The husband argues for an 80%:20% distribution on contributions, most particularly 30% in his favour for a significant initial contribution and a further 10% in his favour for contributions during the relationship.  In particular the husband paid for the wife’s tertiary education ($21,000).  He also made significant post-separation contributions, including the growth in his superannuation entitlements and the contributions to the wife’s family.  They remained living in the former matrimonial home after separation while the husband continued to pay the mortgage and utilities. 

6. I accept there was a very significant initial contribution of funds that were provided by the husband at the beginning of the relationship. 

7. The husband and the wife had traditional roles, with the husband being the primary income earner and the wife being the homemaker.  The parties have a child, [X], who was about 12 months old when the parties separated.  During the relationship the wife primarily cared for [X].  The husband made some contributions to the child’s care when at home, not working.  The husband paid the costs of the wife’s [omitted] training in the sum of $21,000.  The wife’s sister and her parents lived with the parties for a period.  The wife’s sister lived there for approximately eight months, the parents for a couple of months.  I accept that the husband paid the mortgage repayments and utilities whilst the wife continued to reside in the house after separation. 

8. I am satisfied that there should be a 20% increase in contributions allowed to the husband on the basis of his initial contributions, when in fact the amount of money he contributed initially was approximately $100,000 (35% of the current pool).  I accept that the contributions during the relationship slightly favour the wife because of the money her parents contributed.  I accept that the post-separation contributions of the husband paying the mortgage and providing funds for the wife’s education offset the contributions by the wife’s parents, so that the overall contributions favour the husband 70%:30%. 

The s.75(2) Factors

1. The husband is paying child support as assessed, as I understand it.

2. The relevant s.75(2) factors, the husband argues, should provide a 15% adjustment in favour of the wife. The relevant factors are that the husband is 10 years older than the wife. Each of the parties are in reasonable health. I note the husband has been diagnosed with [omitted] but this is managed by medication.

3. With respect to the s.75(2) factors, the husband is earning approximately $125,000 a year and the wife is earning approximately $60,000 a year. The wife is primarily responsible for the care of the child, [X].

4. The husband argues that there should be a 15% adjustment in favour of the wife because of the s.75(2) factors. I accept that there should be a significant adjustment and given the size of the pool, which net, including nearly $60,000 of superannuation, is $281,481. I consider that the increase to the wife should be 25% to the wife, not 15% as argued by the husband. The reason for that is as is pointed out in In the Marriage of Clauson & Clauson (1995) FLC 92-595:

   “Section 75(2) factors

   [2] The trial Judge's assessment of 15% in relation to the sec 75(2) factors fell well below a legitimate conclusion.  There is a tendency by the Court to assess sec 75(2) factors in percentage terms without considering the real impact, and legitimacy in the view that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears to be almost inevitable that the sec 75(2) factors will be assessed in the range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.

   [3] The Full Court arrived at the conclusion that the property should be divided equally: 25% for contributions and 25% for sec 75(2) factors. Equality was not in this case the justification for that conclusion. There were quite disparate factors at the beginning and at the end of the marriage which had to be balanced, that is, the husband's substantial contributions and future income compared with the wife's future income and responsibilities.

   [4] The trial Judge’s orders fell below a reasonable exercise of the discretion in this case; they fell outside the generous ambit within which reasonable disagreement was possible.  In the view of the Full Court, an appropriate exercise of the discretion was an equal division of property between the parties.  This represented a difference from the conclusion of the trial Judge of 10%.  That may or may not justify intervention but in many cases references to percentages can be misleading; the reality is to be found in the actual figures and the difference here represented $140,000.”

5. In the present case, 25% is approximately $70,000 which is really only the difference between the husband’s income and the wife’s income in one single year.  In my view, an adjustment of 25% is justified.   

Justice & Equity

1. I am therefore satisfied that the appropriate overall adjustment in relation to the matter is a 55%:45% division of the assets of the parties in favour of the wife.  I have no difficulty with part of the split to the wife being a superannuation split given that this is a very small pool to begin with and each party should be left with some money from the division of the asset pool.  I accept the husband’s proposal of $20,000 is appropriate in the circumstances. 

2. I have been asked to make orders in relation to the chattels that the parties agreed to.  Hence they were not included in the asset pool by consent.  The parties have agreed to sell the former matrimonial home.  I have made orders by consent that provide for appropriate machinery provisions. 

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date:  31 October 2014