Elliott and Arnold (No.2)
[2019] FCCA 435
•26 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIOTT & ARNOLD (No.2) | [2019] FCCA 435 |
| Catchwords: FAMILY LAW – Parenting – best interests of the children – property adjustment – assessment of contributions – orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D, 75, 79 |
| Cases cited: Weir & Weir (1992-1993) 16 Fam LR 154 |
| Applicant: | MS ELLIOTT |
| Respondent: | MR ARNOLD |
| File Number: | PAC 631 of 2016 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 22 February 2019 |
| Date of Last Submission: | 22 February 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 26 February 2019 |
REPRESENTATION
| The Applicant appeared in person |
| No appearance by the Respondent |
| Independent Children’s Lawyer: | Ms Newland of JLM Family Lawyers Pty Ltd |
ORDERS
That the parents have equal shared parental responsibility for the children [X] born … 2007 and [Y] born … 2007 (“the children”).
That the children live with the wife.
That the children spend time with the husband as agreed by the parents in writing or by text message.
That the husband not consume illicit drugs 12 hours prior to and when the children are in his care.
That each parent advise the other parent and keep the other parent advised of their mobile telephone number and advise of any changes to that number within 24 hours of such change occurring.
That during any period referred to in these Orders, in the event that the children or either of them are hospitalised or receive urgent medical treatment, the wife shall advise the husband by text message as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
That within 7 days of the date of these Orders and within 7 days of the children’s subsequent enrolment at any school the wife shall do all things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time forwards directly to the husband copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities that is normally available to parents.
That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
The wife shall retain full ownership of the former matrimonial home situated at Property L, in the state of New South Wales, being the whole of the land contained in Property L, to the exclusion of the husband, and the wife shall indemnify the husband in relation to all and any outgoings in relation to the said property including but not limited to mortgage payments and land and water rates.
That the wife shall retain in her ownership and control her superannuation entitlement with Superannuation A, any motor vehicle registered in her name, the contents of any bank account in her name, all items of personalty currently in her possession and control including the household contents of the above Property L.
That the husband shall retain in his ownership and control his superannuation entitlement with Superannuation B, and any other item of personalty currently in his possession and control.
The husband shall within seven days direct his former solicitors, Trust account T, to forthwith pay to the wife, from monies held in Trust account T trust account on behalf of the parties, the sum of $14,784. The husband shall retain for his absolute benefit the balance of monies in such trust account.
The husband shall be liable for any remaining capital gains tax payable in respect to the parties’ former property at Property M.
The husband shall within seven days remove the caveat that he caused to be placed on the title to the above Property L.
That in the event that either party refuses or neglects to comply with any part of these Orders in relation to the execution of any deed, instrument or document the Court appoints and authorises the Senior Registrar of the Family Court of Australia, Parramatta Registry, and/or any Registrar or Deputy Registrar thereof to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints that Registrar or Deputy Registrar to do all acts and things necessary to give validity and operation to the deed, instrument or document.
Liberty to the parties to apply to the Court on seven days’ notice in relation to the implementation of the above Orders.
NOTATION:
Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001, the Court or a Registrar may set aside or vary an Order if it was made in the absence of a party. Any application by the husband pursuant to Rule 16.05 to vary or set aside the above final parenting and property adjustment Orders shall be made within 14 days of being notified of such Orders.
IT IS NOTED that publication of this judgment under the pseudonym Elliott & Arnold (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 631 of 2016
| MS ELLIOTT |
Applicant
And
| MR ARNOLD |
Respondent
REASONS FOR JUDGMENT
These are Reasons for Judgment relating to an undefended hearing held before the Court on 22 February 2019, relating to parenting and property proceedings.
The subject children are [Y] and [X], twins, born 2007.
The wife appeared, legally unrepresented. The Independent Children’s Lawyer (“ICL”), Ms Newland, appeared. The husband failed to appear. There was no appearance by the husband; the Court is satisfied that the husband has had notice of today’s proceedings including the Court’s Orders made on 13 December 2018 directing that, should there be no appearance by the husband and/or he has failed to comply with the Court’s Orders of 13 December 2018 relating to financial disclosure, the Court may hear the wife’s final parenting proposals on a final and undefended basis.
In relation to parenting proceedings, the ICL proposed final parenting Orders as set out in her case outline, with which the wife agreed. Inter alia, those proposed Orders provide that the children shall live with the wife; that the parties shall have equal shared parental responsibility for the children; and that the children spend time with the husband in accordance with the agreement of the parties.
In relation to property proceedings, the wife sought Orders as set out in an Application a Case filed by her on 11 February 2019, having indicated to the Court at the undefended hearing that she would propose property Orders as set out in that Application in a Case, but rather than seeking such Orders on an interim basis, she would seek such Orders on a final basis.
The Court has had regard to all the wife’s Affidavits filed in these proceedings in relation to both her proposed parenting and property Orders.
The husband in these proceedings has filed limited material in this Court. The Court has had regard to the husband’s Response in relation to his proposed final parenting and property Orders (the latter described as “Financial Orders” in the husband’s Response). Further, the Court has had regard to the husband’s Financial Statement filed 4 May 2016, and his Affidavits filed 4 May 2016 and 7 December 2016.
Financial disclosure
The Court finds that the husband, in numerous respects, has failed to make adequate financial disclosure to the wife in the context of the property proceedings.
For example, he failed to comply with Court Orders for financial disclosure of documentation, such Orders being made on 21 September 2017, 26 February 2018 and 25 May 2018 (including disclosure of the husband’s personal bank accounts, disclosure of his credit cards, disclosure of relevant bank statements and other records for the former business at Suburb N, disclosure of bank statements for Company O, income tax returns for the former business, and income tax returns for the said Company O); he has failed to disclose current income from work activities; and he has failed to file and serve an updating Financial Statement (noting that the husband’s last Financial Statement was filed on 4 May 2016).
Accordingly, the Court should not be unduly cautious about making findings in favour of the wife: Weir & Weir (1992-1993) 16 Fam LR 154.
Parenting
Evidence
The wife and husband are both aged 44 years. The wife has been a public servant with a NSW government department for the last seventeen years.
The parties were married in 2000.
The parties separated in August 2013 and lived separately under one roof until final separation in October 2015. Again, there are two children of the marriage, twins, born 2007. The children reside with the wife in the former matrimonial home at Property L.
From about early 2016 to date, despite the wife seeking to facilitate the children spending regular time with the husband, and despite there being interim parenting Orders from 25 May 2018 that the children spend time with the husband each alternative Sunday from 10 am to 5 pm, the husband has only spent limited time with the children. He has spent approximately, and on average, about half a day with the children at a frequency of about once a month.
There has been an Apprehended Domestic Violence Order in place for the protection of the wife; it was in place in May 2018 at the time of the Child Inclusive Conference. The Court notes the wife told the family consultant at the Child Inclusive Conference that she does not believe that the husband would physically harm the children.
The wife, in terms of the husband’s Affidavit evidence (which the Court observes is quite out of date), presently has no knowledge of the husband’s usual residential address, his employment, and indeed little knowledge of his current general life circumstances. The Court has not overlooked in this regard the assertions made by the husband as to his work and living circumstances, to the family consultant at the Child Inclusive Conference.
The wife told the family consultant that the child [Y] does not cope well with changes to routine and will ruminate when this occurs. This child is particularly sensitive to the husband’s cancellations of the spend time arrangements.
By reference to the Child Inclusive Conference Memorandum, it would appear that both children are content to spend time with the husband, whilst noting that the child [Y] would like the husband to not yell at them, not cancel time with arrangements (this was a sentiment expressed by the child [X] also), and have an activity organised.
At the Child Inclusive Conference, the family consultant advised both parents that if it is the case (which the Court finds) that the husband has failed to take up time with the children in a routine manner and on a regular basis, the children are at an age and stage of development that, if this is not remedied quickly, the children are likely to reject a relationship with the husband in the near future. The family consultant advised the husband that if he is time poor, it would be better for him to commit to spending a small period of time with the children but ensure that it occurs, than to promise longer periods and frequently cancel or change the arrangements. This is particularly the case for [Y].
Relevant legal principles: parenting
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:
a)Subsection (2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)Subsection (2)(b): the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In applying these considerations, as per section 60CC(2A), greater weight must be given to the “need to protect” the child over the benefit to the child of a meaningful relationship with the parents.
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have meaningful relationships with each parent and would benefit from a continuance of those relationships.
The wife has been the children’s primary carer from birth to date, and it will be in the children’s best interests that they live with the wife.
Should the Court order that the children spend time with the husband as agreed by the parents in writing or by text message, in view of the Court being satisfied that it is likely that the wife will facilitate the children spending regular time with the husband, the Court is of the view that there is a significant prospect that the children’s meaningful relationship with the husband will be maintained.
Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Again, the wife told the family consultant that she does not believe that the husband would physically harm the children. The children want to spend time with the husband. However, they have informed the family consultant at the Child Inclusive Conference that they become disappointed when the husband does not reliably attend spend time arrangements.
The husband admitted to the family consultant to using various substances in relation to bodybuilding, including anabolic steroids. However, he denied that these substances cause him increased irritability. Nevertheless, in the view of the Court, and acting cautiously and conservatively, it will be in the best interests of the children to make a final parenting Order that the husband not consume illicit drugs twelve hours prior to and when the children are in his care.
Section 60CC(3): additional considerations
The husband has not paid child support reliably post separation.
Again, the children wish to spend regular time with the husband, and the Court gives some weight to their views.
The Court observes that these children have particular health issues; the child [X] has arthritic disorders, and the other child [Y] has an eating disorder (the Court refers to the Child Inclusive Conference Memorandum).
Again, the Court finds that the wife has at all relevant times post separation sought to act protectively towards the children, and has facilitated the children spending time with the husband post separation when she has regarded it as physically and emotionally safe for them to do so.
As to parental responsibility, both parties seek an Order for equal shared parental responsibility, and it will be in the best interests of the children to make such an Order. Neither an equal time Order nor an Order for substantial and significant time between the children and the husband will be in the best interests of the children, because post separation the husband has been quite unreliable in spending time with the children as arranged between the parties. Further, to make such Orders in such circumstances of unreliability in the husband will potentially lead to disappointment in the children to their emotional detriment, with possible negative impacts upon their present meaningful relationship with the husband.
The Court is of the view, by reason of the above discussed considerations under section 60CC of the Act, that it will be in the best interests of the children to make final parenting Orders in accordance with the Independent Children’s Lawyer’s proposed Minute of Order, which is set out in her case outline filed 20 February 2019.
Property
It appears that neither party had significant assets in 2000.
The husband worked as a labourer during the relationship. At one stage during the relationship, for about five years, the husband and a colleague operated their own company called Company O. The husband also worked in a business, which the parties established in 2013.
The parties purchased an investment property at Location P in 2005 in their joint names. They took out a 100% loan from Q Bank. The property was rented out and the rental income was used to repay the mortgage loan to that bank.
During the relationship both parties purchased motor vehicles and obtained car finance. Specifically, the parties’ first car was in the wife’s name. The husband was in a car accident in relation to this motor vehicle. The parties received an insurance payout, with the funds being used to buy another motor vehicle in the wife’s name. The wife then used her income to pay off a car finance loan for this car over five years. That motor vehicle was sold by the husband without the wife’s knowledge in 2015. The husband did not disclose to the wife what he did with the sale proceeds. In 2013 the wife purchased another motor vehicle (her present car) with a car finance loan, and since that time the wife has made the repayments from her own income (noting that such car was in the husband’s name initially). The husband had this car repossessed by a financial services company, with the wife thereafter regaining this car under her name.
In 2007 the parties purchased the family home in Location L. The house was valued at this time at about $732,000. They took a mortgage loan representing almost the entirety of the property’s purchase price. They contributed joint savings of about $25,000 towards the purchase price. The property was registered in the wife’s name. The wife paid the mortgage repayments on this home from her own income, and the husband began to indirectly contribute to the mortgage repayments by paying the household expenses, including utilities, phone and internet bills, together with saving his income for the family’s overseas trips. The property is presently valued, according to the wife’s last filed Financial Statement on 24 November 2017, in the sum of $1,050,000, with an outstanding mortgage loan to the CBA bank of about $624,000.
In October 2013, the parties sought to establish a business at Suburb N. From this time the husband diverted his own income towards the running of the business. The wife continued to make the mortgage repayments on the family home to the CBA bank from her own employment income.
The parties then began to struggle financially. They drew down further monies on the Q Bank loan in relation to the location P property. Then they refinanced that Q Bank loan with the NAB bank, utilising $130,000 from the refinanced loan with the NAB bank to renovate the rental space that they had obtained for the business. It transpired that they ran out of monies to fully renovate the business. The wife contributed $30,000 towards the renovations, being part of an inheritance from her late father. The parties still needed more funds to fully renovate the business. The husband then approached the NAB bank for a personal loan of $30,000, which was obtained and contributed towards the business. The business then opened. The lease of the space for the business, together with the equipment of the business, was in the husband’s name.
In early 2014 the husband travelled to Country R. While he was overseas, the wife was contacted by a real estate agent who was looking for the husband. The wife was informed that the rental for the business space was about three months in arrears. The wife then contributed a further $11,000 from her inheritance towards reducing the rental arrears. Thereafter, from the beginning of 2014 to the parties’ final separation in October 2015, the wife took over the running of the business whilst continuing to work full-time as a public servant.
Following the parties’ separation in October 2015, the husband took over the running of the business from the wife. From that time he did not make any direct or indirect financial contributions towards the mortgage repayments on the family home, and he did not contribute towards the wife and children’s household expenses. The wife continued to make the mortgage repayments on the family home and pay the household expenses, and refinanced a car finance loan with motor vehicle finance through the ANZ bank. Accordingly, she presently has a personal loan of the ANZ bank for $15,000.
The husband caused the company which operated the business, Company S (trading as Company S), to be placed into voluntary administration.
Again, the Court finds that the husband failed to disclose, inter alia, income received by the business.
The parties agreed to sell the Location P property. Settlement was in November 2015. The net proceeds of sale were placed into the trust account of the parties’ then solicitors (who had acted on the sale of the Location P property), being some $325,000.
There were dispersals from the solicitors’ trust account approximately as follows:
a)CBA: $10,329
b)Company W: $26,000
c)Australian Taxation Office: $8,405
d)Valuation: $880
e)Husband’s child support arrears: $16,600
f)Children’s school fees: $5,130
g)Location P real estate (the business rental): $80,000
h)The wife: $79,400
i)The husband: $62,000
There now remains some $36,719 in the said trust account.
The husband’s motor vehicle, purchased at the end of 2015 by him, registration …, was repossessed in about the second half of 2016.
Since the last payment of child support arrears on 17 May 2017, the husband has paid no child support, and presently there is about $30,000 owing by the husband for child support, through the Child Support Agency.
The wife has received all moneys relating to her inheritance from her late father.
In about 2016 the husband sold his interest in the company known as Company O, and he has failed to disclose relevant documentation relating to that sale.
Legal principles: property
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
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 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 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto 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 adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.
Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (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 79(1) of the Act.
The Court finds the parties assets and liabilities to be as follows:
Assets:
a)In the wife’s name:
i)Former matrimonial home at Location L: $1,050,000
ii)NAB bank account: $2000
iii)Motor vehicle: $30,000
iv)Household contents: $30,000
v)Superannuation: $145,000
b)In the husband’s name:
i)Superannuation B: $13,000
c)In joint names:
i)Monies in trust account of Trust account T: $36,719.85
Liabilities:
d)In the wife’s name:
i)Mortgage loan on former matrimonial home: $624,000
ii)Personal loan with ANZ (relating to the refinancing of her former car finance with motor vehicle finance): $15,000
iii)Credit card debt with U Bank: (the Court treats this debt as a matrimonial debt by reason of the husband’s failure to pay child support in a timely fashion; it is likely that but for the said failure this debt would not have been incurred): $6,000
iv)Personal loan with Financial Services Company V (personal loan taken out to pay a capital gain tax liability of $24,000 in relation to the sale of the Location P investment property and to pay $8,000 relating to a joint credit card debt of the parties, but in the wife’s name): $29,000
e)In the husband’s name:
i)Capital gains tax liability (relating to the sale of the Location P investment property): $36,000
From the above, it can be seen that the parties’ net non-superannuation assets are $438,719, the wife’s superannuation entitlement is $145,000, the husband’s superannuation is $13,000, with a total asset pool of $596,719.
Section 79 (2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
The Court adopts a two pool approach; there is a paucity of evidence relating to the history of the parties’ superannuation contributions.
Pool A: non- superannuation assets
The parties’ direct and indirect contributions towards the former matrimonial home and Location P investment property were approximately equal up until about October 2015.
After that time the wife solely contributed to the mortgage loan on the former matrimonial home.
The parties’ contributions to the Location P property were approximately equal.
The wife’s contribution to care of the children was superior to the husband’s contribution in that regard during the relationship, and post separation she has made the sole contribution, apart from irregular time spent by the husband with the children after separation. The Court would regard this contribution by the wife to be very significant and attaches significant weight to it.
The business will be discussed below under section 75(2), noting its demise with the husband causing the company that operated the business to be placed into voluntary administration by reason, ostensibly, for non-payment of rent.
There is no evidence that the husband contributed to the wife’s NAB bank account ($2,000), or her car ($30,000).
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to non-superannuation assets as at the present time to be 70% to the wife and 30% to the husband. That results in a disparity of about $175,487 in favour of the wife.
Pool A: section 75(2)
The wife will remain the primary carer of the twin children aged 11 years. The husband has failed to pay child support since about 17 May 2017 (the date the last arrears were paid) and there is a significant prospect that he will not reliably make payments of child support in the future.
Pursuant to the Court’s parenting Orders, the children may spend time with the husband in accordance with the agreement reached between the parties. Since October 2015, being the parties’ final separation, the husband has only spent quite limited time with the children.
The children have significant health issues, in particular the child [X]. She suffers from three different types of arthritis, in her knees, in her neck, and in the right eye. She is required to take regular medication for these conditions, and she is required to have tests and attend specialist appointments on a regular basis.
The child [Y] suffers from an eating disorder and may require further psychological counselling and participation in a two week live-in hospital course.
It is likely that the wife will be liable to pay for any out of pocket expenses for the children’s medical treatment.
The wife and husband are both in good health.
The wife continues to work as a full-time public servant.
The husband has failed to disclose, inter alia, his current income relating to his present work activities.
The Court takes into account, pursuant to section 75(2)(o):
a)The husband’s failure to make adequate financial disclosure, as previously discussed in these reasons. The Court is unaware of the husband’s current financial position, including assets, liabilities and financial resources.
b)The business, which ultimately failed, both parties having contributed to its establishment and operation at different periods. The wife contributed monies from her inheritance, being some $41,000, towards the renovations for the business. The husband has failed to account for the business’s financial position from October 2015 until its demise, including by disclosing relevant financial records relating to the receipt and apparent dispersal of income of at least $82,000 to the husband.
c)The husband’s failure to disclose financial records relating to the sale of his interest in a company.
d)From the proceeds of sale of the Location P property, there was paid $16,600 for child support arrears owed by the husband.
e)The husband’s failure to account in relation to the motor vehicle he sold in 2015.
Taking into account the above matters, there should be an adjustment in favour of the wife of 25%. This results in an adjusted contributions finding for non-superannuation assets of 95% in favour of the wife and 5% in favour of the husband.
Pool B: superannuation assets
There is a paucity of evidence relating to the history of the parties’ respective superannuation entitlements.
The wife would appear to receive superannuation contributions through her employment.
The wife obtained her first full-time employment as a public servant some 17 years ago.
There is no evidence relating to the value of the parties’ superannuation entitlements as at commencement of cohabitation or separation.
There is no evidence of direct financial contributions made by one party to the other’s superannuation entitlement, either during the relationship or post separation to date.
There is no persuasive evidence of any significant indirect contribution made by either party to the other’s superannuation entitlement, either during the relationship or post separation to date. In any event, even if there could be found to exist some indirect contribution by either party, it is unquantifiable by reason of the paucity of evidence before the Court.
The Court finds that the parties made no relevant contributions to the other’s superannuation entitlement.
Pool B: Section 75(2)
There is a significant disparity in the parties’ respective superannuation assets.
The Court refers to its discussion above, relating to section 75(2) under Pool A.
Both parties are in their mid forties with many years ahead of income earning potential before retirement. The husband has failed to disclose his current financial position including income. There is no call for an adjustment under section 75(2) by reason of the parties’ disparate superannuation entitlements.
Justice and equity
Pursuant to the Court’s contribution assessment, the husband should be left with assets representing, in value, 5% of the net non-superannuation assets, being $21,935 (5% of $438,719). He can be paid this sum of $21,935 from the trust account of Trust account T. He should retain his superannuation asset at $13,000. He will be left with his capital gains tax debt of $36,000.
The wife will retain her car, bank account, the former matrimonial home (including mortgage debt), household contents, superannuation asset at $145,000, balance of trust account being $14,784, and other debts of some $50,000.
The wife will be able to live in the house with the children. She will be left to service the mortgage debt and other personal debt (reduced by $14,784). The husband can utilise the cash he receives pursuant to the Court’s Orders to pay off in part his capital gains tax debt.
The Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 26 February 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Property Law
Legal Concepts
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Costs
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Injunction
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Jurisdiction
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Remedies
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Res Judicata
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Stay of Proceedings
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