El Maalouf and Issa
[2020] FamCA 76
•14 February 2020
FAMILY COURT OF AUSTRALIA
| EL MAALOUF & ISSA | [2020] FamCA 76 |
| FAMILY LAW – DE FACTO PROPERTY – Where consideration of applicable principles – Where significant contributions by the de facto wife – Where de facto husband at hearing was in custody for third party fraud offences –Where assessment of contributions significantly favours the de facto wife – Where further adjustment in favour of de facto wife by reason of section 90SF(3) considerations in the Family Law Act 1975 (Cth). |
| Family Law Act 1975 (Cth) ss 90SF, 90SM |
| Bevan & Bevan [2014] FamCAFC 19 Brandt v Brandt [1997] FamCA 21; (1997) FLC 92-758 Chapman & Chapman [2014] FamCAFC 91 Farmer and Bramley [2000] FamCA 1615 Fontana & Fontana [2018] FamCAFC 63 Harris & Harris (1991) 104 FLR 458 Kessey and Kessey (1994) FLC 92-495 Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 Russell & Russell (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Ms El Maalouf |
| RESPONDENT: | Mr Issa |
| FILE NUMBER: | PAC | 2389 | of | 2017 |
| DATE DELIVERED: | 14 February 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 24 and 25 October 2019 and by way of written submissions last received on 30 January 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Jones of Adam Jones Solicitor |
| SOLICITOR FOR THE RESPONDENT: | Mr Morris of Circle Bridge Legal |
Orders
That within six months from this date the applicant pay to the respondent the sum of $60,000.
That in default of the sum provided for in Order 1 being paid by the due date, the applicant and respondent sign all necessary documents and do all things necessary to sell the said property at H Street, Suburb J at the best price reasonably available and that from the net proceeds of sale the respondent be paid a sum that would then represent 12.5 per cent of the asset pool for adjustment as set out at [64] of these reasons for judgment.
That the wife do all things necessary to permit the husband or his nominee within one month from this date to collect the motorbike presently in her possession and such items of his clothing and personal effects that she agrees remain in her possession.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym El Maalouf & Issa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2389 of 2017
| Ms El Maalouf |
Applicant
And
| Mr Issa |
Respondent
REASONS FOR JUDGMENT
The jurisdiction of this Court is enlivened to determine the property entitlements of the applicant de facto wife and the respondent de facto husband.
Proceedings for property settlement were commenced by the applicant de facto wife by application filed 16 May 2017. The property hearing was heard over two days on 24 and 25 October 2019.
At hearing, the husband was produced from custody as he was then serving a period of full-time imprisonment. He was represented at the hearing by his solicitor. The husband in September 2018 had been sentenced to two years imprisonment as a consequence of various fraud offences with his earliest release date being about September 2020.
At the conclusion of evidence, directions were made for the parties to prepare a joint trial balance sheet by reference to the evidence and issues at hearing and, otherwise, for the parties to file supplementary written submissions: as to the applicant by 22 November 2019, as to the respondent by 6 December 2019 and as to any further submissions in response by the applicant by 13 December 2019.
Ultimately, final submissions were not received from the applicant de facto wife until 30 January 2020. Accordingly, judgment was reserved on that day.
Context
The parties cohabited in a de facto relationship from 2010 until late 2016/early 2017.
There is one child of the parties’ relationship who was born in 2012 (“the child”). Final orders were made in respect of the child by consent on 13 October 2017. Those orders provided that the parties have equal shared parental responsibility, that the child spend specified daytime contact with the father and, otherwise, live primarily with the mother.
Subsequently, further parenting proceedings were commenced by the father by application filed in August 2019. This further application seeks orders as to the child’s time with the father whilst he is serving a full-time period of custodial imprisonment and thereafter seeks more expansive time with the child. Otherwise, there is an issue as to parental responsibility between the parties.
It was an agreed circumstance between the parties that the ongoing parenting issues would not prevent property matters from being determined as the child, in any event, would remain primarily living with the mother.
At trial, the applicant de facto wife relied upon the following documents:
a)her Amended Financial Statement filed 6 December 2017; and
b)her primary trial affidavit filed 20 February 2019.
At trial, the de facto husband relied upon the following documents:
a)his Financial Statement filed 27 July 2017;
b)his trial affidavit filed 14 March 2019; and
c)the affidavit of his sister Ms Berry filed 14 March 2019.
The relationship: at cohabitation
The parties commenced to reside in a de facto relationship in early January 2010.
The wife is presently aged 36 and the husband aged 44.
At the time of commencement of cohabitation the wife had the following assets:
a)A home unit property at F Street, Suburb G;
b)Accruing superannuation having a value of about $40,000;
c)Motor vehicle 1; and
d)Household contents.
The wife had purchased the home unit property in December 2008. The property was purchased for $185,000 and was subject to a mortgage of $140,000. The balance of purchase price comprised the wife’s savings and a first home buyer’s grant of $15,000. The property was rented out by the wife.
At the commencement of cohabitation, the husband had little known assets. Otherwise, the husband owed $35,000 to his brother-in-law.
The Suburb J property
In 1998 the husband, as trustee for his parents, purchased the property at H Street, Suburb J (“the Suburb J property”) for $335,000. The property was, in fact, a purchase of a property by his parents but to facilitate the obtaining of finance the property was purchased in the husband’s name. Subsequently in 2001 the husband’s father was able to refinance the property and it was transferred primarily to the husband’s father in February 2001 for an asserted value of $375,000. The husband asserts that his father subsequently ran into financial difficulties and the Suburb J property was transferred to the husband’s brother Mr K in January 2004 for an asserted value of $560,000. The husband’s brother at that time refinanced the then existing mortgage. The husband asserts that he contributed to loan payments and outgoings on the property subsequent to 2001. No evidence is adduced by him supporting such contentions, in particular, evidence from his brother Mr K.
Employment
At the commencement of cohabitation the wife was in full-time employment as a public servant.
Subsequent to cohabitation the husband was variously self-employed. Initially, the husband asserts he worked in his service business and then worked in a partnership trading as “M Business”. His contribution to the business acquisition was funded by a borrowing against the wife’s home unit. The partnership ended sometime in 2012.
During the existence of the “M Business” partnership the husband claimed a Centrelink carer’s entitlement purportedly as a carer for his parents. He was not entitled to this payment and as a consequence had a debt of about $86,000 owing to Centrelink. The wife has no information as to the financial circumstances of the partnership or, indeed, as to the circumstances of its termination. The husband asserts the business was sold to his brother-in-law but no evidence is adduced to support the husband’s contention from this person.
The funds received by the husband from the sale of the “M Business” partnership were used to repay his brother in law $35,000 and the balance contributed to a further partnership arrangement trading as D Business. The wife attended those premises on a number of occasions and observed the husband and his partners working there. Once again the wife has no knowledge as to the financial circumstances of this business save that the husband asserts that it ceased trading in late 2013.
The husband’s tax returns for the period 2010 to 2013 as produced reveal no taxable income (Exh “Q”).
In late 2013 the husband obtained full time employment as a para-legal. Part of his earnings were provided for the benefit of the family. During the period the husband worked at the firm he perpetrated various frauds for his own financial advantage. The husband’s employment at the firm was terminated in late 2015.
The husband set up a different business in mid-2015 trading as N Business. The wife has no knowledge as to the financial circumstances of this enterprise. He later obtained various employed positions with his income in 2016 totalling only about $25,000 and in 2017 only $12,800 (Exh “Q”).
The wife continued in employment as a public servant between 2010 and 2016 save for a period in 2012 taken as maternity leave consequent upon the birth of the parties’ child. In 2016 the wife purchased a small business trading as “L Business” which provides her with an income of about $300-$550 per week which was supplemented by part time casual work as a public servant.
During the relationship
The wife agrees that the husband made some contribution to property outgoings and mortgage payments and to the household over the years of cohabitation with contributions being deposited to her account from time to time. It is common ground that deposits to the wife’s Westpac Bank account by the husband in the period March 2010 to November 2015 totalled about $38,600 but mostly in the early years: Exh “N”. Such payments averaging about $190 per week.
During the course of the cohabitation the wife attended to the primary tasks within the home and was the primary carer for the child, although she concedes that the husband became more engaged in the child’s extracurricular activities as the child got older.
In early 2010 the property at Suburb J was transferred from the husband’s brother to the wife at a contract price of $595,000. The wife asserts that the transfer was as a consequence of the property mortgage being in arrears. The wife provided her home unit property as collateral security so as to facilitate the property being refinanced with the property being transferred into the wife’s name. The property was refinanced with a mortgage of $476,000 with the mortgage then secured over the wife’s home unit increasing by about $110,000 on an interest only payment basis to provide most of the balance of the purchase price. The wife’s home unit remained tenanted with her income servicing the shortfall in relation to the mortgage secured over that property. This increase in borrowing against her equity in the home unit is to be considered as a contribution by her.
Until about mid-2012 the husband and wife met mortgage commitments from their respective income with those mortgage payments being in the order of about $650 a week. However, in about June 2012 the husband ceased making contributions to the mortgage payments and the wife has thereafter continued to meet mortgage payments on the property that was occupied by the parties until separation and thereafter and to date of trial by the wife and the parties’ child.
In late 2015 the husband informed the wife that he was facing various further fraud related charges at Suburb O Local Court. Without informing the wife, the husband attempted unsuccessfully to sell her home unit property with the wife asserting that the husband had forged her signature on a selling agency agreement.
In January 2016 the wife agreed that she would permit her home unit to be refinanced to raise funds to assist the husband in relation to his criminal proceedings and the parties’ accumulating debts. To facilitate this, subsequently in April 2016 the home unit property was “sold” to the husband’s sister Ms Berry at a contract price of $385,000. The husband’s sister made no contribution to the purported purchase and it is common ground that Ms Berry concedes that she held the subject property in trust for the wife.
The “sale” generated a capital gains tax liability for the wife that as at trial was about $36,000 (Exh “J”).
From the funds generated by the refinance on sale and with settlement cheque directions prepared by the husband he directed payments as follows:
$12,835 for stamp duty on the purchase
$ 7,000 to P Lawyers for his criminal matter legal fees
$ 6,500 to Debt Agency 1 debt repayment
$ 4,000 for payment of outstanding strata levies
$ 7,100 for payment of outstanding water rates
$10,500for payment of outstanding council rates for the home unit and the home
$ 1,500 for payment of outstanding electricity accounts
$30,500to the wife used by her to meet ongoing mortgage payments and outgoings on Suburb J and living expenses
$26,000to repay his former employers
$31,357to the husband with those funds he asserts being paid to cover car payments, mortgage payments, his personal debt of $10,000 and otherwise for living expenses.
Payment of outstanding property outgoings was made as set out above notwithstanding that the wife asserts that she had provided funds to the husband to attend to payment of such expenses.
Again, the equity in the wife’s home unit was utilised.
The de facto husband in custody and thereafter
In April 2016 the husband was sentenced to a period of full-time imprisonment and was not released until March 2017.
It is common ground that the parties agree that they separated whilst he was in custody.
Upon the husband’s release from custody the wife agreed that he could take up residence in the home unit provided he attended to payment of the mortgage and outgoings. In May 2017 the husband removed the tenant in the home unit but then shortly thereafter installed another tenant. He informed the wife that from the rent he would attend to making mortgage payments and payments of outgoings. Between June 2017 and November 2018 the husband retained rental payments in his account totalling about $25,000 and applied those funds, it appears, to his own purposes. He made no mortgage payments. This retention of rent by him will be regarded as waste on his behalf.
Since separation, the wife has met mortgage payments on the home occupied by her. She was able to obtain some relief by reason of hardship in the period from November 2018 until April 2019. Otherwise, she has attempted to maintain mortgage payments on the home unit from separation until February 2017. The home unit was subsequently the subject of a mortgagee sale with no realised surplus.
Subsequent to separation, the wife has been the sole carer for the child of the parties save for a period between October 2017 and October 2018 when the father spent some limited time with the child until his present incarceration. As at trial, the father makes no financial provision by way of child support or otherwise for the child.
The wife presently earns income (Exh “G”) from being a part-time public servant, her small business and receives some Centrelink benefits with her financial circumstances being significantly assisted by funds received by her from her father.
The Law
The parties agree that they lived in a de facto relationship to which the Act applied.
Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) provides for alteration of property interests between parties formerly in a de facto relationship.
The legislative process and course of consideration is similar to that under Part VIII of the Act in respect of married persons.
Section 90SM of the Act defines the Court’s powers in determining applications for property settlement between de facto couples. Sub-section 90SM(3) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 90SM(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
a)The financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
ii)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 de facto relationship or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
ii)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 de facto relationship or either of them; and
c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
g)any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SF(3) of the Act sets out the relevant further considerations which are as follows:
a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
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; and
c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain; and
e)the responsibilities of either party to support any other person; and
f)subject to subsection (4), 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 another 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; and
g)a standard of living that in all the circumstances is reasonable; and
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
l)the need to protect a party who wishes to continue that party’s role as a parent; and
m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
n)the terms of any order made or proposed to be made under s 90SM in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party; and
o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
i)a party to the subject de facto relationship (in relation to another de facto relationship); or
ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
i)a party to the subject de facto relationship; or
ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
q)any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203. The approach is similar in de facto matters.
The process ordinarily involves a staged process.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 90SM(4).
The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjusting orders but are unable to agree as to same. Here both parties seek different orders as to the division of their property and it is conceded by counsel for both parties that it is appropriate for the Court to make orders altering their present property interests. It is appropriate to do so.
If it is appropriate to make orders adjusting property, the Court then considers the contributions made by the parties as defined in s 90SM(4).
The Court must then consider s 90SF(3).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 90SM(3) of the Act.
The asset pool
The parties were required to provide a footnoted Joint Balance Sheet and same was received on 13 November 2019.
The present asset and liability pool comprises:
Wife Home at Suburb J $1,000,000
Husband NAB account $ 1,161
Wife Westpac accounts $ 378
Husband Motor vehicle 1 $ 1,000
Wife L Business $ 15,000
Wife Contents/Personalty $ 13,000
Wife Motor vehicle 2 $ 25,000
Husband Contents/Personalty $ 5,000
Wife Super Fund 1 $ 84,036
Husband Super Fund 2 $ 10,000
Liabilities:
Wife Mortgage Suburb J $ 441,280
Wife Second mortgage Suburb J $ 53,372
Husband Centrelink Debt $ 86,220
Wife Debt Agency 2 Finance $ 10,358
Wife Capital Gain tax debt $ 31,000
The parties were at issue as to whether legal fees paid as to $11,000 by the husband and $6,000 by the wife should be added to the pool. There is no evidence on which to determine the issue. They will not be included.
Issues on the Joint Balance Sheet as provided and marked H1 other than as referred to above were:
a)Value of Suburb J property: the wife asserts that the updated single expert valuation should be accepted. Such is patently the case where it was not sought to cross examine the expert.
b)Inclusion and value of wife’s Motor vehicle 2: There is no evidence that the vehicle was the subject of any post separation contribution by the husband. It will be excluded for adjustment purposes.
In considering the appropriate pool for adjustment:
a)The parties’ minimal bank accounts so long after separation shall be ignored.
b)The parties’ motor vehicles shall be omitted as there is no evidence as to acquisition nor any relevant contribution thereto by the other party.
c)Mortgage arrears sought to be “added back” by the wife are already incorporated in the current mortgage balance.
d)The husband’s Centrelink debt shall be omitted by reason of it accumulating as a consequence of the husband’s fraud for the benefit of his parents. He shall bear the liability.
e)The wife’s Debt Agency 2 debt shall be excluded as there is no evidence that would suggest that the husband should bear any liability therefor.
In the circumstances of this matter, the pool for division should then comprise the following:
Wife Home at Suburb J $1,000,000
Wife L Business $ 15,000
Wife Contents/Personalty $ 13,000
Husband Contents/Personalty $ 5,000
Wife Super Fund 1 $ 84,036
Husband Super Fund 2 $ 10,000
$1,127,036
Liabilities:
Wife Mortgage Suburb J $ 441,280
Wife Second mortgage Suburb J $ 53,372
Wife Capital Gain tax debt $ 31,000
$ 525,652
The net pool for adjustment is thus $601,384.
Contributions:
In Kessey and Kessey (1994) FLC 92-495 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 Farmer and Bramley [2000] FamCA 1615 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 assessing contributions the Full Court said in Harris & Harris (1991) 104 FLR 458:
…the task of the court in proceedings under section 79 (and thus s90SM (4)) is not akin to an accounting exercise. To borrow a phrase used by McClelland J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to section 20 of the De Facto Relationships Act 1984 (NSW) ''the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind”.
In Fontana & Fontana [2018] FamCAFC 63 at [27] the Full Court reiterated that there is no requirement for the primary judge to particularise percentages for contributions at each stage of the relationship. Indeed, the authorities are consistent in finding that assessing contributions is not an accounting exercise but a holistic one (Brandt v Brandt [1997] FamCA 21; (1997) FLC 92-758; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513).
This is a relatively short relationship. As such financial contributions loom more significant.
These parties have struggled financially. The wife’s income provide an early foundation. Their incomes during the relationship have as best as the evidence can reveal been discussed above. The disparity is to an extent reflected in their accrued superannuation. The wife introduced a home unit into the relationship and that property, although now gone, provided a foundation on which the present pool is based.
The parties’ capital funds have been applied in part by the husband for his own purposes including criminal legal fees and repayment of funds defrauded. Some of the funds retained by him remain unexplained by objective evidence. He has, otherwise, retained and expended significant rental income that was to be applied to mortgage payments. He, on his own admission, diverted funds from his income after 2015 to his girlfriend.
The husband had been and still is incarcerated for significant periods leaving the wife to provide financially and non-financially for herself and the child in circumstances detailed above. Her contributions continued in an even greater way since separation to hearing.
The husband concedes in submissions that contributions must significantly favour the wife.
Overall, it is considered that contributions when balanced one against the other should be assessed at 80 per cent to the wife and 20 per cent to the husband.
Section 90SF(3) relevant factors:
The wife is aged 36 and does not assert any health issues. The husband is aged 44 and does not assert ill health.
The property and assets of the parties are considered above. The wife is a public servant who chooses to work part-time to be available to the parties’ child and work her small business. She does not suggest that she cannot return to full-time work in the future. The husband remains incarcerated for some time yet his future prospects of employment are uncertain but of his own making.
The wife has a taxation liability arising from dispossession of her home unit in an attempt to deal with the parties’ then poor financial position. The husband carries a Centrelink debt by reason of his own dishonest conduct.
The wife retains primary care of the child now aged nearly eight.
The wife needs to provide into the future for herself and the child with that obligation including primary accommodation.
The wife has modest superannuation reflecting her initial superannuation cohabitation and accumulated superannuation thereafter. She will have into the future years in the work force to add to her entitlement. The husband has very modest superannuation reflecting his poor history of income and employment. He too has the opportunity in the future to accrue further superannuation. The wife also receives modest Centrelink benefits by reason of her low income and primary childcare.
The husband pays minimal child support, if any, at present and the prospects of meaningful future child support appear poor.
The husband, in submissions, concedes that an adjustment in favour of the wife is called for.
Overall, these factors are indicative of a further adjustment in favour of the wife over and above contribution based entitlement of 7.5 per cent representing a further disparity of about $90,000 between the parties.
Overall
Overall there should be a split as to 87.5 per cent to the wife and 12.5 per cent to the husband. The husband is thus entitled to a monetary sum of about $75,000. He has his superannuation of $10,000 and personalty of $5,000. Thus the wife will be required to pay him the sum of $60,000 in consideration of which she shall be entitled to retain the Suburb J home albeit subject to considerable debt.
Orders will be made accordingly including discrete orders that are agreed between the parties.
I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 February 2020.
Associate:
Date: 14 February 2020
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