Emmeran & Emmeran
[2022] FedCFamC2F 1507
Federal Circuit and Family Court of Australia
(DIVISION 2)
Emmeran & Emmeran [2022] FedCFamC2F 1507
File number(s): MLC 4662 of 2021 Judgment of: JUDGE GLASS Date of judgment: 15 November 2022 Catchwords: FAMILY LAW – PROPERTY – assessment of financial and non-financial contributions throughout the relationship – initial contributions – whether the Husband should receive an adjustment where he financially supported two children from the Wife’s previous marriage who lived with the parties for a lengthy period of time – add-back of paid legal fees– whether it is just and equitable to make an order – orders made. Legislation: Family Law Act 1975 (Cth) ss 79(2), 79(4), 75(2), 81, 90XT, 117(1)
Family Law (Superannuation) Regulations 2001
Family Law Regulations 1984
Superannuation Industry (Supervision) Regulations 1994
Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Carrron & Laniga (2019) FLC 93-909; [2019] FamCAFC 115
Crick & Bennett (2018) FLC 93-832; [2018] FamCAFC 68
Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57
Jasper & Thorp [2016] FCCA 2981
Kowaliw & Kowaliw (1981) FLC 91-092
Lane & Lane [2015] FCCA 173
Oamra & Williams (2021) FLC 94-035; [2021] FamCAFC 117
Pailing & Gilbert [2015] FCCA 2533
Robb & Robb (1995) FLC 92-555; (1994) 18 FamLR 489
Russo & Wylie (2016) FLC 93-747; [2016] FamCAFC 227
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
NHC v RCH (2004) FLC 93-204; [2004] FamCA 633
Zaruba & Zaruba (2017) FLC 93-776; [2017] FamCAFC 91
Division: Division 2 Family Law Number of paragraphs: 44 Date of last submission/s: 2 November 2022 Date of hearing: 2 November 2022 Place: Melbourne Solicitor for the Applicant: Keith A Elliot Pty Ltd Counsel for the Applicant: Mr James Solicitor for the Respondent: Dandenong Family Lawyers Counsel for the Respondent: Mr Goddard ORDERS
MLC 4662 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EMMERAN
Applicant
AND: MS EMMERAN
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
15 November 2022
THE COURT ORDERS THAT:
1.The Wife pay to the Husband's solicitors Keith A Elliot Pty Ltd on behalf of the Husband the sum of $294,916 ("the payment") on or before the 2nd day of December 2022 ("the date").
2.Contemporaneously with the payment:
(a)The Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of his right title and interest in the real property situate and known as B Street, Suburb C in the State of Victoria ("the real property");
(b)The Wife at her expense discharge the mortgages secured against the real property ("the mortgage") and indemnify the Husband against all payments and liability pursuant to Westpac Home Loan Account No …17 and Westpac Home Loan Account No …65 ("the home loans");
(c)The Wife at her expense repay the balance of the parties’ joint Westpac Visa card and the parties do all things necessary to close the account; and
(d)The Wife indemnify and keep indemnified the Husband in relation to all liabilities of whatsoever nature and kind and whensoever arising from his prior involvement with the real property.
3.In the event the Wife fails or neglects to pay the whole of the payment by the date, then the real property be forthwith placed on the market for sale ("the sale") and the proceeds of the sale be applied in the following priority:
(a)First, to the costs and commissions associated with the sale;
(b)Second, to discharge the mortgage and any other encumbrance affecting the real property;
(c)Third, to repay and close the parties’ joint Westpac Visa card;
(d)Fourth, so much of the payment that remains outstanding as at the date to the Husband's solicitors Keith A Elliot Pty Ltd on behalf of the Husband, together with interest at the rate set under the Family Law Regulations 1984 calculated from the date until settlement of the sale; and
(e)Fifth, the balance to the Wife.
4.Pending payment of the sum or settlement of the sale:
(a)The Wife have the sole right to occupy the real property and during such right of occupation she be solely responsible for all outgoings of and in relation to the real property and the home loans as they fall due;
(b)Each of the Husband and Wife hold their interests in the real property on trust pursuant to these Orders and be restrained from dealing with the said property other than to give effect to these Orders.
5.In accordance with Section 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $36,818 is allocated to the Husband out of the Wife's interest in the Super Fund D
("the Superannuation Fund") with account number …13.
6.In accordance with Section 90XT(l)(a) of the Family Law Act 1975 (Cth):
(a)the Husband (or his legal personal representative) 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 Wife in the Superannuation Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the Superannuation Fund superannuation interest) is correspondingly reduced by force of this Order.
7.Super Fund D, the trustee of the Superannuation Fund ("the trustees") shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate in accordance with requirements of the Family Law Act 1975 (Cth) the entitlement awarded to the Husband in Order 5 above; and
(b)pay the entitlement whenever the trustee makes a splittable payment from the Wife's interest in the said Superannuation Fund.
8.This Order has effect from the fourth (4th) business day after the original certified copy of the Final sealed Orders is served on the trustee and is binding upon the trustee.
9.After service by the trustee of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 ("the SIS Regulations"), the Husband and Wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Husband's request in accordance with the SIS Regulations, for the retention of the non-member spouse interest in the Husband's name in the said Superannuation Fund.
10.Each party bear their own costs incidental to the preparation, lodgement and implementation of these Orders.
11.The Husband retain and the Wife forego any claim in relation to the following:
(a)His Motor Vehicle 1;
(b)His Boat;
(c)His savings;
(d)Furniture and contents in his possession; and
(e)His entitlement in Super Fund E superannuation fund.
12.The Wife retain and the Husband forego any claim in relation to the following:
(a)Her Motor Vehicle 2;
(b)Her savings;
(c)Furniture and contents in her possession; and
(d)Her entitlement in Super Fund D save as otherwise provided for in these Orders.
13.Unless specified in these Orders and save for the purposes of enforcing any monies due under the terms of these Orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of signing these Orders;
(b)Each party forego any claim they may have to any superannuation benefits belonging to or earned by the other party;
(c)All insurance claims become the sole property of the owner named therein;
(d)The credit balances remaining in any joint bank accounts are to be forthwith distributed to the Wife and then closed; and
(e)Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
14.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Emmeran & Emmeran has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Mr Emmeran and Ms Emmeran commenced cohabitation in 2001, married in 2002 and ceased cohabitation in March 2020, although did not regard their marriage as over until later that year. Arising for determination are their competing applications for orders altering their interests in property.
Mr Emmeran proposes that he receives a payment of $309,705 from Ms Emmeran such that he retain 60% of the value of the parties’ interests in non-superannuation assets. He also proposes a split from Ms Emmeran’s superannuation of $44,025 such that he retain 60% of the value of the parties’ superannuation.
Ms Emmeran proposes that she pay Mr Emmeran the sum of $239,920.50 such that the parties’ each retain an equal value of the parties’ non-superannuation assets. She proposes no alteration to the parties’ interests in superannuation.
Statutory framework
Pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”), I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, that it is just and equitable to do so.[1] If I am so satisfied, I am required to consider the matters prescribed by subsection 79(4) of the Act and by the device of paragraph 79(4)(e), relevant matters referred to in subsection 75(2) of the Act.
[1] Family Law Act 1975 (Cth), s 79(2).
Property interests
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[2] For reasons that follow, I find those interests to comprise:
[2] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
Asset O'ship Value B Street, Suburb C Jt $645,000 Less Westpac mortgage Jt ($164,583) Westpac bank accounts Jt $1,925 Westpac Visa Jt ($6,462) Motor Vehicle 1 H $29,850 Boat H $7,500 Bank F accounts H $9,639 Bank F Visa card H ($1,809) Motor Vehicle 2 W $10,413 Westpac bank accounts W $42,346 Paid legal fees (add back) W $17,653 Total non-superannuation interests $591,472 Super Fund E H $128,964 Super Fund D W $159,352 Total superannuation interests $288,316 Total property interests $879,788
Mr Emmeran proposes that Ms Emmeran’s paid legal fees be added back to the assets available for distribution. Ms Emmeran opposes that proposal. It is common ground that she has paid $17,653 in legal fees to date. Mr Emmeran has paid no legal fees. Both parties have liabilities to their legal representatives.
Whilst add backs are generally exceptional,[3] paid legal fees occupy a particular position by reason of the principle enshrined in subsection 117(1) of the Act that each party is to bear their own costs.[4] In effect, failing to addback paid legal fees pre-emptively determines that Mr Emmeran pay some of Ms Emmeran’s costs.[5]
[3] Carrron & Laniga (2019) FLC 93-909 at [56].
[4] Trevi & Trevi (2018) FLC 93-858 (“Trevi”) at [36].
[5] Trevi at [37].
Whilst the treatment of funds used to pay legal costs is ultimately a matter of discretion, regard should be had to the source of the funds.[6] Here, Ms Emmeran applied funds to her legal fees from her savings which had essentially accumulated after the parties ceased cohabiting. As has been referred to, the parties did not then consider their marriage to be over, rather it was agreed Mr Emmeran would move out due to particular consequences of the COVID-19 pandemic for them and their extended family. For approximately 6 months thereafter, the parties made no substantive changes to their financial arrangements that involved a pooling of their respective incomes. For approximately a further year thereafter, Mr Emmeran made substantial contributions to the parties’ joint expenditure, including their mortgage for the home then occupied by Ms Emmeran. It is common ground that over that 18 month period, Mr Emmeran applied approximately $17,700 of his income to the mortgage. During that period, Ms Emmeran applied approximately $10,563 from her savings to her legal fees and accumulated other savings. She had also received a tax refund of approximately $8,581 for the Financial Year ending 30 June 2020, a year during which the parties had largely continued their relationship.
[6] NHC v RCH (2004) FLC 93-204 (“NHC v RCH”) at [56].
Generally the payment of legal fees from post-separation income rather than from funds that existed at separation would not be added back unless they were generated from “assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement.”[7] However, that focus on the source of funds should be subservient to the overall discretionary consideration of the interests of justice in the circumstances of the particular case.[8] It may be unjust where a party “who had developed significant earning capacity during a course of a long marriage, was able to use that earning capacity to pay legal fees when the other party, who did not have that earning capacity, was left with a liability to pay legal fees from their share of the property settlement order.”
[7] NHC v RCH at [58].
[8] Oamra & Williams (2021) FLC 94-035 at [110].
Here, Ms Emmeran developed her significant earning capacity that exceeds $100,000 per annum during the parties’ 18 year marriage. She had the benefit of income from Mr Emmeran during the period in which she was able to accumulate funds to pay her legal fees. Ms Emmeran did not establish that Mr Emmeran was able to pay his legal fees which are anticipated to be owing in the amount of approximately $41,000. He nevertheless made contributions to Ms Emmeran’s household which persisted for 18 months after he left the former matrimonial home from his more modest income of approximately $65,000 per annum.
In those circumstances, I consider it would create an injustice for Ms Emmeran’s paid legal fees not to be added back. Given her ultimate concession that the totality of her savings ought be included in the assets to be divided between the parties had she not paid her legal fees from those savings, there would have been an increase in the funds available for distribution to Mr Emmeran by the same sum. To fail to add back Ms Emmeran’s paid legal fees would have the effect of requiring Mr Emmeran to contribute to her legal costs contrary to the position enshrined in subsection 117(1) of the Act.
The parties otherwise agree on the identity and value of their other interests in property.
Justice and equity
Both parties seek an alteration of their property interests in order to finally determine the financial relationships between them.[9] It would fail to accord with that statutory duty to leave them as joint proprietors of a real property and jointly liable for a mortgage secured against it.
[9] Family Law Act 1975 (Cth), s 81.
It is implicit in both parties’ requests that the Court make orders that it is accepted the making of an order would be just and equitable.[10] I consider it to be just and equitable to make a property settlement order because there will no longer be the common use of property by the parties.[11]
[10] Russo & Wylie (2016) FLC 93-747 at [54].
[11] Stanford at [42].
Contributions
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[12] I am also required to take into account the parties’ contributions to the welfare of the family constituted by the parties and any children of the marriage.[13] It is well-established that contributions made to Ms Emmeran’s children of a prior relationship do not fall within that latter category and so do not fall for consideration under paragraph 79(4)(c) of the Act.[14]
[12] Family Law Act 1975 (Cth), s 79(4)(a-b).
[13] Family Law Act 1975 (Cth), s 79(4)(c).
[14] Zaruba & Zaruba (2017) FLC 93-776 (“Zaruba”) at [53]; Robb & Robb (1995) FLC 92-555 (“Robb”) at 81,547.
At the commencement of the parties’ relationship, Ms Emmeran did not have any assets or superannuation of significance. Mr Emmeran owned a property at G Street, Suburb C. It had been purchased in 1999 for $120,000 and, at the commencement of the parties’ cohabitation, was subject to a mortgage of approximately $125,000. He did not otherwise have any assets or superannuation of significant value.
In 2003, the parties sold the G Street, Suburb C property. The proceeds were primarily applied to the purchase of the B Street, Suburb C property, with Mr Emmeran also deposing to them being applied to renovations and the purchase of household furniture. B Street, Suburb C was purchased for $230,000, of which $184,126 was financed by way of home loan. Whilst the parties dispute the value of the proceeds of sale of the G Street, Suburb C property, I consider it unnecessary to resolve the dispute given the equity in that property had entirely accumulated during the parties’ cohabitation.
During approximately the first six months of the parties’ cohabitation, Mr Emmeran was incarcerated for driving offences. During that period, Ms Emmeran received sole parenting benefits to support herself and her children. I also consider it unnecessary to resolve the controversy between the parties as to whether Mr Emmeran gave the refund from his income tax return to Ms Emmeran to repay her for meeting the outgoings for the G Street, Suburb C property during his incarceration. It is common ground that the parties applied their respective incomes to the benefit of their family over the course of a lengthy relationship.
From early 2002, Ms Emmeran received income by way of family tax benefits only. Mr Emmeran’s income initially as a casual labourer and then permanently for Employer H, supported the household. Ms Emmeran studied to obtain a tertiary health care qualification before she commenced full time work as a health care worker in early 2007. During her studies, she had obtained some casual work as a health care worker between 2004 and 2006. Mr Emmeran accepted in cross-examination that Ms Emmeran had commenced work as a health care worker in 2007 despite his affidavit evidence that she did so in 2009. In light of that concession, I accept Ms Emmeran’s evidence as to when she commenced full time work as a health care worker.
Mr Emmeran deposes to withdrawals made by Ms Emmeran from the parties’ mortgage for what he describes as “her own personal use”.[15] He does not submit, and I do not find, that expenditure falls into one of the established categories that might result in any losses being other than shared between the parties.[16] Ms Emmeran’s oral evidence that she moved income between accounts for the needs of the family was not challenged.
[15] Applicant’s Affidavit filed 13 October 2022, paragraph 14.
[16] Kowaliw & Kowaliw (1981) FLC 91-092 at 76,644.
There is limited evidence before the Court in relation to the parties’ non-financial contributions, although Mr Emmeran gave oral evidence that there was not really any basis to conclude that one party did more by way of home duties than the other. It was his evidence that he did the majority of the cooking whilst Ms Emmeran did the cleaning and laundry. I accept Mr Emmeran’s evidence in that regard.
Ms Emmeran submits that contributions should be assessed as slightly favouring her as a result of her post-separation contributions. It should first be observed that all contributions must be weighed collectively and that it is an error to segment or compartmentalise various contributions and weigh one against the remainder.[17]
[17] Benson & Drury (2020) FLC 93-998 at [35] and the cases there cited.
It is certainly the case that Ms Emmeran has accumulated savings in the period post separation, including applying such funds to the payment of her legal fees. However, she has done so in circumstances where her earning capacity improved markedly during the course of the parties’ relationship and she had the benefit of ongoing financial support from Mr Emmeran until October 2021.
I am required to consider the parties’ contributions holistically over the whole period from the commencement of cohabitation until trial.[18] In all of the circumstances, I assess those contributions to be equal.
[18] Fields & Smith (2015) FLC 93-638 per Bryant CJ and Ainslie-Wallace J at [168].
Ms Emmeran sought to differentiate the assessment of contributions to non-superannuation as opposed to superannuation assets. It is effectively her submission that because the parties’ superannuation balances had been approximately equal in June 2020, no further consideration of that class of asset should be entertained. That submission overlooks the fact that Ms Emmeran’s balance at around 30 June 2020 of $113,536 was already greater than Mr Emmeran’s of $102,429. It also overlooks the ongoing financial contributions made by Mr Emmeran to Ms Emmeran’s household until October 2021 and the fact that Ms Emmeran’s earning capacity had substantially increased as a result of the parties’ relationship.
I consider that the finding of equality of contributions to the value of the parties’ current interests in property should apply equivalently both to their superannuation and non-superannuation assets. In dollar terms, that finding equates to each of the parties retaining non-superannuation assets worth $295,736 and superannuation assets worth $144,158.
Paragraph 79(4)(d, e, f and g) and subsection 75(2) factors
Mr Emmeran is 64 years old. He is a left leg through knee amputee. His right knee is failing due to the overload from his left knee. He considers it extremely likely that he will not be able to walk at all in the near future. Whilst I accept that there is no direct medical evidence to that effect, no objection was taken to the admissibility of Mr Emmeran’s evidence regarding his health. I am accordingly entitled to take it into account.[19] Further, Ms Emmeran deposed to understanding that he “may eventually require hip replacement surgery and/or decreased working hours due to ‘wear and tear’ on his unaffected leg.”[20]
[19] Crick & Bennett (2018) FLC 93-832 at [57].
[20] Respondent’s Affidavit filed 20 July 2021, paragraph 14.
Mr Emmeran works as a factory worker. His taxable income for the last financial year was $64,593. His evidence that he intends to retire in approximately one year was not challenged, although I accept there is no evidence to support a finding that he will then be required to retire for medical reasons.
Ms Emmeran submits that weight should be given to the fact that Mr Emmeran has the benefit available to him of being able to live with his mother without paying board. I am not satisfied that is a matter upon which I ought afford any significant weight in circumstances where Mr Emmeran is making substantial contributions to the household expenditure, does not intend to live there forever, his mother is 86 years old and has previously been in poor health.
Ms Emmeran is 63 years old. She suffers from severe to moderate osteoarthritis in both hands. Whilst she considers those injuries will impact on her ability to work full time in her current role in the future, she gave evidence she intends to work as long as she is able to.
She works as a health care worker. Her base salary is approximately $92,600 per annum, however, she is entitled to additional penalty rates and other allowances depending on the particular shifts she works. She earned taxable income of $101,854 in the last financial year. Her gross earnings from 1 July 2022 to 23 October 2022 were $41,235, equating to a current rate of gross earnings of approximately $132,000 per annum.
At the commencement of the parties’ relationship, Ms Emmeran’s two children from a previous relationship, J and K, also commenced living with the parties. They were then aged 6 and 4 years respectively. The children’s father did not pay child support for them. Whether that outcome was the result of an agreement between the parties not to pursue child support from him or not is immaterial, as is Ms Emmeran’s evidence that she did not pursue child support because she did not wish to aggravate the situation with the children’s father given his previous perpetration of family violence. The children spent time with their father on alternate weekends and for extended holiday periods and he, from time to time, gave some money directly to them.
Until Ms Emmeran obtained employment as a health care worker in approximately 2007, the only income she received was by way of Family Tax Benefit payments from the government and six months of sole parenting payments in 2001. Mr Emmeran overwhelmingly financially supported J and K for approximately 5 years, before their costs were more evenly shared between the parties for the remainder of the relationship.
In Robb, the Court relevantly held:
“[i]n considering whether the justice of a case requires some act done by a party to be taken into account under s. 75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.”[21]
[21] Robb at 81,547.
Equivalently to the parties in Robb, Ms Emmeran had a legal duty to maintain the children of her prior relationship and Mr Emmeran had no such legal duty to maintain them. Accordingly, “in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations.”[22] On that basis, the “justice of the case clearly required the husband’s contribution to be taken into account under s. 75(2)(o)”.[23]
[22] Robb at 81,547.
[23] Robb at 81,547.
That is not to say that everything done by Mr Emmeran for the benefit of Ms Emmeran’s children “should result in some monetary reward in property settlement proceedings”,[24] nor that such contributions are more than a factor of “potential relevance”.[25]
[24] Zaruba at [54].
[25] Zaruba at [53].
Ms Emmeran accepts that the discretion to take Mr Emmeran’s contributions to the welfare of her children into account is enlivened, but submits it should not be exercised. Admitting the cases are not binding upon me, she relies on three first instance judgments where no adjustment was made on account of Robb. Two of those cases are readily distinguishable on the basis that the parties to the marriage went on to have other children of their own.[26] Whatever disquiet that was expressed in the third of those cases about the principle emerging from Robb,[27] predates the Full Court’s subsequent restatement of it in Zaruba.[28]
[26] Lane & Lane [2015] FCCA 173; Pailing & Gilbert [2015] FCCA 2533.
[27] Jasper & Thorp [2016] FCCA 2981 at [211].
[28] Zaruba at [53].
Mr Emmeran accepted in cross-examination that in marrying Ms Emmeran, he made a commitment to her children. He also agreed that he treated Ms Emmeran’s children as a father would, that he enjoyed a strong relationship with them and received the rewards and benefits of parenting them. I am not satisfied those matters detract from the fact that in supporting J and K, Mr Emmeran acted as a volunteer without any legal obligation to do so. I consider the justice of the case requires that contribution to be taken into account.
I consider that assessment of the relevant factors, in particular the substantial discrepancy between the parties’ income and Mr Emmeran’s contributions to the welfare and support of Ms Emmeran’s children, warrant an adjustment in his favour of 7.5%. I consider the same adjustment ought be applied both to the non-superannuation and superannuation assets, which would leave Mr Emmeran in a stronger position by $88,721 with respect to the former and $43,247 with respect to the latter, equating to a differential between the parties’ overall positions of $131,968.
Conclusions
I consider it to be just and equitable for the parties’ interests in property to be altered such that Mr Emmeran retain 57.5% of their value, which conclusion equitably applies to both non-superannuation and superannuation interests.
In order to achieve that outcome, Mr Emmeran needs to retain non-superannuation assets worth $340,096. He already has assets worth $45,180 and accordingly needs a further $294,916 to make up his entitlement. It is agreed that Ms Emmeran will have the opportunity to make the necessary payment to Mr Emmeran and retain the former matrimonial home.
I considerate it just and equitable for Ms Emmeran to retain the benefit of the parties’ joint bank accounts and to be responsible for their joint credit card debt.
Mr Emmeran also needs to retain superannuation assets worth $165,782. He already has superannuation interests worth $128,964, with the result that he needs a further $36,818 by way of superannuation splitting order.
The parties otherwise agree on the form of the Orders that should be made, which I consider to be otherwise just and equitable.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 15 November 2022
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