Fadymacious & Fadymacious

[2007] FamCA 1270

FAMILY COURT OF AUSTRALIA

FADYMACIOUS & FADYMACIOUS [2007] FamCA 1270

FAMILY LAW – PROPERTY SETTLEMENT – CONTRIBUTIONS – Capital contribution warranted minimal adjustment in favour of wife for contributions during cohabitation. Post-separation contributions equal.

FAMILY LAW – PROPERTY SETTLEMENT – SECTION 75(2) MATTERS – Substantially greater earning capacity of husband and wife’s greater burden for caring for child over next 12 months gave rise to section 75(2) adjustment in favour of wife.

FAMILY LAW – PROPERTY SETTLEMENT – CHILD SUPPORT – ARREARS – Husband’s entitlement to property settlement reduced by lump sum child support owing to wife.

Family Law Act 1975 (Cth) s 75(2)
Family Law Rules 2004 (Cth)

Black & Kellner (1992) FLC ¶ 92-287
In the Marriage of Weir (1993) FLC ¶ 92-338
Oriolo & Oriolo (1985) FLC ¶ 91-653
C & C (2005) FLC ¶ 93-220
Pierce & Pierce (1998) 24 Fam LR 377; (1999) FLC ¶92-844
Kardos v Sarbutt [2006] NSWCA 11

APPLICANT: Mrs Fadymacious

RESPONDENT: Mr Fadymacious

FILE NUMBER: PAF 3464 of 2003

DATE DELIVERED: 26 October 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 12 and 13 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT:  D. La Rosa, Izzo & Co

COUNSEL FOR THE RESPONDENT: Mr Greenaway

SOLICITOR FOR THE RESPONDENT: Oxford Legal

Orders

1. That within three months of this date the wife pay to the husband the sum of $70 064 whereupon the husband is to do all acts and things and execute all documents necessary to cause to be transferred to the wife the whole of his right, title and interest in the property known as and situate at P and the wife shall thereafter indemnify the husband and forever keep him indemnified with respect to all liabilities and outgoings relating to the said property.

2. That if, within six months of this date, the wife has failed to pay to the husband the monies provided for in Order 1 hereof the husband shall be entitled to require the wife to join in the sale of the P property and for a price agreed between the parties, or, failing agreement, determined by a valuer nominated for that purpose by the President of Real Estate Institute of New South Wales to be the market value of the property, and cause the net proceeds of sale of the property to be divided in shares of 83 per cent to the wife and 17 per cent to the husband as tenants in common.

3. That save as provided for by these orders, each party retain as his or her property absolutely and beneficially all property real or personal, inclusive of superannuation entitlements.

4. That the wife indemnify the husband with respect to any claim against him with respect to present or future arrears of child support or either child of the marriage.

5. That costs be reserved.

6. That written submissions in support of any application for costs be filed within 28 days of this date.

7. That written submissions in response to any such submissions be filed within 56 days of this date.

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

FAMILY COURT OF AUSTRALIA AT  PARRAMATTA

FILE NUMBER: PAF 3464/2003

MRS FADYMACIOUS

Applicant

And

MR FADYMACIOUS

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court relate to settlement of property under Part VIII Family Law Act 1975 (Cth) (“the Act”). The wife is the applicant in the proceedings and, as is apparent from her learned Counsel’s Outline of Case document, seeks to be awarded: -

   100% of [the parties’ former] home plus $50,000 Child Support and $50,000 spousal maintenance [Practice direction document for the Applicant Wife, page 4].

2. The husband is the respondent in the proceedings. The husband opposes the granting of relief in the terms sought by the wife and, in lieu thereof, seeks orders in accordance with his response filed 15 August 2005, as subsequently amended by his learned Counsel. The effect of the relief sought by the husband is that the former matrimonial home of the parties be sold and the proceeds of sale, after payment out of the mortgage, selling expenses and outstanding council and water rates, be divided as to 60 per cent to the wife and 40 per cent to the husband. The husband seeks to retain his share in the property in Lebanon and that the wife repay to the husband “the amount of $60 000 taken from the husband’s bank account and safe” together with an order for costs.

3. It will be readily apparent that the parties are very far apart in their respective perceptions of their own entitlements by way of property settlement. Reality has had little impact upon the claims of either party.

Credit

1. At the outset it is appropriate to record the Court’s observations with respect to the credit of each of the parties. In short, this was a case in which truth was a scarce and lightly valued commodity.

2. In his written submissions, Counsel for the respondent conceded, with masterful understatement, that, “It would be open to the Court to find that the evidence given by each of the parties was at times prone to exaggeration and lacking in belief.” [Respondent Husband’s Submissions, page 2].

3. The wife did not impress as a reliable witness. Her evidence was at times at variance with earlier sworn evidence upon which she relied, internally inconsistent, and inconsistent with the evidence of her mother, who was a witness in her case. The wife let pass no opportunity to criticise the husband and/or promote her own cause. Her answers were in many instances not responsive to questions asked of her.

4. The Court was left with the impression that the wife would, and did, say whatever she perceived at any given time to be most likely to be of assistance to her cause. Regrettably for her, her perception of how she might best help her own cause was quite inaccurate. As is generally the case when witnesses choose not to tell the truth, the wife’s evidence suffers from inconsistencies in versions of events from time to time offered.

5. Albeit on a lesser scale, across a narrow range of issues, and perhaps in part by virtue of some linguistic difficulties, the evidence of the wife’s mother suffers from a number of the imperfections which permeate the evidence of the wife. Apart from inconsistencies between the mother’s previous sworn evidence and her evidence at trial, the mother’s evidence was inconsistent with that of the wife in numerous respects.

6. In summary, so far as controversial issues are concerned, where the wife is left to rely upon her own assertions and/or those of her mother, although ultimately it is difficult to suggest any respects in which the two are consistent, unless those controversial assertions are supported by other reliable evidence, such as documents, the wife’s lack of credibility precludes her from discharging the onus of proof she bears with respect to such topics.

7. As will be seen, the most significant respect in which the Court’s conclusion in this regard impacts is with respect to a sum of approximately $76 000 which the wife had in a bank account in her own name at about the time the parties separated. Ultimately, it is not entirely clear what the wife’s case is with respect to such monies or how they were disposed of, a variety of scenarios having from time to time been floated by her.

8. The Court’s position is quite simple. The wife bore the onus of establishing that monies in a bank account in her name were not beneficially owned by her. The wife has failed to even discharge that onus to prima facie level, much less on the balance of probabilities.

9. Whilst, as the Court’s observations would confirm, the evidence of the wife and her mother was unimpressive, by comparison the evidence of the husband was truly incredible. As a reading of the husband’s cross-examination would confirm, unless confirmed by independent documentation (of which there is none) or reliable witnesses (of whom there are none), the Court could not safely accept anything asserted by the husband which is controversial.

10. The complete absence of documentation, or any attempt to obtain such documentation, the improbability of the husband’s account of his current financial circumstances, and indeed improbability of his circumstances since the parties separated bring the husband squarely within the ambit of authorities such as Black & Kellner (1992) FLC ¶ 92-287, In the Marriage of Weir (1993) FLC ¶ 92-338; Oriolo & Oriolo (1985) FLC ¶ 91-653.

11. The Court does not believe that the husband has made either a full or a frank disclosure of his finances. The evidence of the husband in cross-examination amply justifies the Court dealing with the husband without undue caution.

12. The Court’s conclusions with respect to the husband’s credibility have two implications. The first is that the Court does not accept that the husband has not had the use and enjoyment in the post-separation period of approximately $56 500. That sum includes paid legal fees, monies in a bank account at about the time of separation, $15 000 pursuant to an insurance payout on a motor vehicle retained by the husband after separation, and $2 000 which the husband had in his pocket in cash at trial.

13. The way in which the Court’s conclusions with respect to the husband’s credibility impacts is primarily in relation to s 75(2) of the Act. Albeit the husband probably does not have vast undisclosed resources, his complete failure to endeavour to present a reliable comprehensive picture of his current financial circumstances enables the Court to approach the evolution of post-separation contributions and the question of s 75(2) adjustments without being unduly cautious about the husband’s circumstances.

Material Facts

1. The husband was born in 1963 and was 44 years old at trial. The wife was born in 1967 and was 39 at trial.

2. Both the husband and wife were born in Lebanon and immigrated to Australia, the wife in 1977 and the husband in 1988. The parties married and commenced cohabitation in 1988. The husband left the former matrimonial home in 2003 and the parties divorced in 2004.

3. There are two surviving children of the marriage. M, born in 1989, is 18 years old and L, born in 1990, is 17 years old. The child B, born in 1991, passed away in 2002.

4. The husband had no assets at the commencement of the marriage. The wife claims that she had saved approximately $30 000. The husband appears to concede that she then had $10 000. Both parties were engaged in employment. The wife ceased her employment shortly prior to the birth of their first child.

5. Considerable sums of monies were paid to members of the husband’s family, namely $2000 to bring the husband’s brother to Australia and $10 000 paid to his mother. The parties also hosted both the brother and mother in their home for considerable lengths of time.

6. The parties lived with the wife’s parents without paying board for almost two years after they were married and in 1990 moved into the former matrimonial home purchased by them in late 1989. The parties also travelled to Lebanon. The husband owns property there.

The property of the parties

1. The assets of the parties are largely agreed. To the extent that they are not, the Court’s findings with respect to credibility resolve those disputed issues.

2. The former matrimonial home of the parties at P is agreed to be worth $420 000.

3. The husband’s interest in land in Lebanon is agreed to be worth $32 197.

4. The wife admits to having household contents worth $4000 whilst the husband admits to having a Toyota van worth $5000.

5. These foregoing assets are worth in total $461 197.

6. It was submitted on behalf of each party, albeit not necessarily by the conclusion of the trial, that “add-backs” should be taken into account of both sides.

7. Ultimately, little turns on whether, as could be the case, monies are added back on both sides or, as the Court proposes, are not added back for reasons which follow.

8. As noted earlier, at about the time of separation the wife had approximately $76 000 in a bank account in her name. The wife’s efforts to establish that she did not beneficially own all or some of those funds have failed in that the only evidence upon which she bases her claims is the conflicting and unreliable evidence of herself and her mother. The wife can thus be seen as having had the use and enjoyment in the post-separation period of some $76 000 which, by whatever means, the parties accumulated during the period of their cohabitation.

9. The submission of the wife’s Counsel that $11 000 of paid legal fees could only reasonably be considered to have come from that sum is able to be accepted.

10. The husband received at about the time of separation approximately $31 500 in a bank account. He has since received $15 000 from the payout of an insurance claim on a motor vehicle which he retained after separation.

11. The husband has paid $8000 in legal fees. Quite apart from the fact that the husband does not suggest that such sum came from the $31 500 or the $15 000 insurance payout, the husband’s complete lack of credit in relation to financial matters, and reality that the husband had ample capacity to have generated the $8000 by other means, precludes his successful suggestion that the $8000 of paid legal fees should not be added back or regarded as monies he has had the use of in addition to the sum of $46 500 if not added back. The $2000 the husband had in cash in his pocket at trial should also be added back or regarded as monies he has had the use of in addition to the sum of $54 500 {$8000 + $46 500 = $54 500} if not added back.

12. In capital terms, the husband has thus had the use and enjoyment in the post-separation period (during which he has paid no child support despite assessments requiring him to do so, and the capacity to do so) of capital approximating $56 500 {$8000 + $46 500 + $2000 = $56 500}.

13. Relative to the period which has passed since separation, the disparity of earning capacity of the parties during that period (making all due allowance for the wife’s unsatisfactory evidence in relation to her attempts to obtain employment) and the reality that the wife has had the greater and at times sole burden of caring for the children, the Court does not propose adding back any part of those sums or otherwise reflecting them in the contribution based entitlement of the parties.

14. The wife has a liability to NRMA which is not disputed in the sum of $11 668.

15. Understandably, Counsel for the husband submitted that this sum should not be taken into account as a liability for the purpose of determining the parties’ entitlements having regard to the wife’s own evidence that the liability arose because the wife chose to drive a motor vehicle without taking out insurance with respect to that vehicle, at least in relation to claims against her for damage to other motor vehicles.

16. Given that the wife has not demonstrated that she did not have control, use and enjoyment of capital of approximately $76 000 in the post-separation period, the failure to secure at least third party property damage insurance on the motor vehicle involved in the accident which gave rise to the NRMA liability brings the wife squarely within the ambit of the doctrine of reckless or wanton conduct, the consequences of which should not be visited upon the husband. The Court accordingly does not propose, for the purpose of determining the property of the parties and the parties’ respective entitlements to it, including that liability.

17. The husband concedes that the wife owes school fees of $2909 and that they should be taken into account. The wife has not begun to prove on the balance of probabilities that she owes her parents or either of them $15 000 or any other sum. A liability in the sum of $15 000 or any lesser sum is not reflected in the net assets of the parties.

18. The husband has superannuation interests in three funds, the total value of which is $80 113. That sum is not presently available to the husband and, consistent with the decision in C & C (2005) FLC ¶ 93-220, can be treated in a separate pool to other assets to which reference has been made.

19. The net tangible property of the parties is thus worth {$461 197 - $2909 = $458 288}. The other kind of property of the parties, being the husband’s superannuation interest, is worth $80 113.

Contributions

1. Contributions are not ultimately highly controversial. Save for the initial capital contribution of the wife, which she has failed to prove on the balance of probabilities to be the sum claimed by her, the parties’ contributions to the date of separation can be seen as approximately equal. The complicating factor is the significance appropriate to be attached to the wife’s capital contribution which the husband concedes to have been not less than $10 000 and the wife contends to have been at least $30 000.

2. The wife contends she saved about $30 000 prior to marriage (see Affidavit of the wife filed 6 April 2006, paragraph 7 and Practice direction document for the Applicant Wife, page 3). The husband is ambiguous as to this amount. He concedes that $10 000 of the deposit paid on the house came from the wife’s savings (see Affidavit of the husband filed 13 April 2007 paragraph 13 & Summary of Argument, page 1). However the husband does not mention any other amount that the wife claims to have had at the commencement of marriage. The concession regarding the sum of $10 000 does not preclude her from having had more.

3. The other contributions relied upon by the wife in support of her contention that her contributions should be seen as greater were: -

   2. The parties lived rent and board free for an extended period with her parents

   3. The wife’s parents gifted the parties with $10,000

   4. Both parties contributed to the household prior to separation by their individual endeavours, the wife through her care of the household and her role as homemaker the husband through his employment.

   5. The wife was a frugal housewife who saved from the funds she received for the support and care of [the child B] and the family allowance. [Practice direction document for the Applicant Wife, page 5, paragraphs 2 – 5].

4. Interestingly, in final submissions on the wife’s behalf, it was submitted that the wife’s parents “loaned the parties interest free… $10 000 which was subsequently repaid”. It was submitted on behalf of the wife that, to the date of separation, the wife’s contributions should be recognised as two-thirds whilst those of the husband should be recognised as one-third.

5. On behalf of the husband it was submitted with respect to contributions that “the husband made significant contributions through his hard work and renovation of the family home outside his working hours … and that both parties contributed to the care of their child [B]”. It was thus submitted “that the parties had made equal contributions of a financial and non-financial nature as at the date of separation.” [Respondent Husband’s Submissions, page 1].

6. No specific submission was made on behalf of the husband in relation to the wife’s alleged initial contribution of $30 000. Given the submissions of Counsel for the husband however in relation to the credibility of both parties, it is clear that Counsel for the husband submitted that the wife had failed to prove her case with respect to the alleged initial contribution of $30 000. The submission on behalf of the husband that “[i]t would also be open to the Court to find that unless there was supportive or corroborative evidence, where the parties were at issue it would not be possible to determine such issue” supports so concluding. [Respondent Husband’s Submissions, page 2]. The submission itself is amply supportable on the evidence which the Court has heard.

7. The wife has not proved her case beyond the initial $10 000 contribution which the husband conceded. In the absence of a concession with respect to any higher sum, and there does not appear to have been such a concession, the wife’s initial capital contribution is limited to the sum of $10 000. The wife is entitled to credit for that initial contribution although how that should be reflected today is difficult to determine. (See Pierce & Pierce (1998) 24 Fam LR 377; (1999) FLC ¶92-844 & Kardos v Sarbutt [2006] NSWCA 11). The wife is also entitled to credit for the provision of rent-free accommodation in her parents’ home.

1. Whilst the contribution entitlements of the parties of a periodic nature to the date of separation should be regarded as substantially equal, the specific contributions of the wife to which reference has been made should, when viewed in the context of the totality of contributions, result in the wife’s contribution based entitlement to the date of separation modestly exceeding that of the husband. An adjustment in the wife’s favour of perhaps 1 to 2 per cent would be the quantum of such imbalance in contributions.

2. The post-separation period requires consideration within the context of assessment of contributions. The wife has had the sole use and enjoyment of the former matrimonial home in the post-separation period. That period now exceeds 4 years. The home has had no mortgage or encumbrance on it during that period.

3. Whilst the husband’s post-separation circumstances are unclear, because he has chosen not to make them clear and credible, the wife appears to have been relatively advantaged by having sole use and enjoyment of the matrimonial home.

4. As noted earlier, the wife has had slightly more capital than has the husband in the post-separation period. As against that, the wife has had the significantly greater burden of caring for the children, albeit the Court does not accept in this case that such burden should extend beyond the 18^th birthday of either child.

5. The husband has never paid child support. Sensibly, his learned Counsel invited the Court to visit upon the husband in the determination of these proceedings the husband’s outstanding child support debt of approximately $27 625. The Court unhesitatingly agrees that this is appropriate. The effect of so doing is to preclude the wife from successfully relying upon the failure to pay child support in the post-separation period as a factor increasing her contribution based entitlement. To allow her to do so would be to double count the child support.

6. The wife’s evidence in relation to her attempts to gain employment in the post-separation period was less than convincing. The Court suspects, but cannot find proven on the balance of probabilities, that the wife has had some employment, and may still have some employment.

7. By comparison, the husband’s pre-separation earnings, and improbability of his earnings being as he suggests to have been in the post-separation period and at present renders unavoidable the conclusion that the husband has had a significantly greater earning capacity than has the wife in the post-separation period.

8. On behalf of the wife it was submitted that the wife’s contributions to the date of separation should be increased by some 9 per cent. The basis of so doing was submitted to be that the wife cared for the household without financial support in the post-separation period. Reliance was placed upon the husband owing the Child Support Agency $27 625.

9. On behalf of the respondent husband it was submitted that no more than a “minimal” adjustment in favour of the applicant wife by virtue of the post-separation contributions should be reached. [Respondent Husband’s Submissions, page 2].

10. Necessarily, as Counsel for the husband sensibly asserted, the fact that the husband conceded that the wife should receive her child support entitlement from whatever his interest in the matrimonial assets is determined to be limits the scope of any adjustment to the contribution entitlements of the parties by reference to the post-separation period.

11. It was submitted on behalf of the husband that in the post-separation period the husband had continued to assist the children financially by “providing directly for them on a regular basis”. [Respondent Husband’s Submissions, page 1]. With all due respect to Counsel for the husband, who has sought to have his client’s actions seen in the best possible light, to give credit to a party for payments, which have not been properly proved in any event, directly to children at a time when child support obligations were being blatantly disregarded is not consistent with notions of justice or equity.

12. Objectively, to the extent that the husband may have given funds directly to the children, that in no way lessens the burden which the husband’s failure to pay child support imposed upon the wife, and was, to the extent that the husband’s post-separation finances can be guessed, probably an impost which would have had minimal impact upon the husband’s finances.

13. On balance, the factors favouring each party in the post-separation period, cumulatively, do not justify an adjustment to their contribution based entitlements up to the date of separation. This is substantially because the wife had rent-free occupation of the former matrimonial home in the post-separation period and will receive in full the child support arrears payable to her out of the husband’s share of the matrimonial assets. It is also to be remembered that the husband made the only contributions to superannuation during the post-separation period. The wife will benefit from those contributions.

14. To consider the wife’s overall contribution based entitlement to be 52 per cent and the husband’s entitlement 48 per cent would, in the Court’s view, reasonably reflect what the evidence has revealed with respect to contributions.

Section 75(2)

1. The ages of the parties do not assume significance. The wife’s claims in non-responsive answers to cross-examination of health problems are not supported by any medical evidence, or other reliable evidence. The absence of such evidence, and concessions made in her learned Counsel’s Outline of Case document preclude the wife from successfully raising health as a s 75(2) factor in her favour.

2. The wife has some capacity to earn. What that is cannot be accurately suggested given the unreliability of the wife’s evidence about such matters. Objectively, the wife’s apparent lack of qualifications, and at best limited work experience suggest that her capacity to earn would probably be limited to something approximating the basic wage. To the extent that the wife seeks to rely upon the care of the children who have attained, or who are approaching 18 years of age as a reason for not seeking employment, the sun is rapidly setting on such justification, and will have completely set by the end of 2008 at which time the wife will have just turned 41 years of age.

3. Such documents as the husband produced suggest a capacity to earn of not less than $700 per week. The husband would have the Court believe that he is content to work interstate at considerable personal inconvenience for a taxable income of $7020 for the same employer who employed him nine years ago, at a wage more than six times that amount.

4. Despite the extremely modest amount of money which the husband says he is paid, and his insistence that his work is merely as a labourer, the husband’s employers, if in fact they be his employers, B Brothers, accommodate the husband in Brisbane and transport him regularly between Sydney and Brisbane. It is inconceivable that a mere labourer with no particular skills or value to the company would be so feted.

5. The husband produced what purported to be a docket book in which he claims that he records what he has earned, using that word loosely. The docket book is in pristine condition. It is inconceivable that, as the husband claims, this docket book accompanies him constantly on building sites and has done for the past six months. The Court suspects, but ultimately does not need to find, that the document was created shortly prior to and for the purpose of the trial of the proceedings in this Court.

6. The Court need not speculate about the husband’s earnings. Put simply, the Court has no reliable indication of what the husband earns. It is clear that his earnings significantly exceed those of the wife. The legality or otherwise of arrangements between the husband and B Brothers may fall to be considered by other authorities. Such evidence as there is before this Court is highly suggestive of a collusive arrangement between the husband and B Brothers to obscure the husband’s true financial position and to facilitate his avoidance of his child support obligations.

7. A substantial s 75(2) adjustment in favour of the wife by virtue of the apparent disparity of earning ability as between the parties, making all due allowances for the unsatisfactory aspects of the wife’s evidence in that regard, is demanded.

8. It was submitted on behalf of the wife that an adjustment of 15 per cent was appropriate in the circumstances, the wife’s overall entitlement accordingly being 90 per cent of the asset pool, inclusive of superannuation.

9. On behalf of the husband it was submitted that a 5 per cent s 75(2) adjustment by reference to the asset pool inclusive of superannuation in the wife’s favour was appropriate. [Respondent Husband’s Submissions, page 5]. Essentially, the factors relevant to the exercise of discretion pursuant to s 75(2) are not controversial. There is however one exception.

10. On behalf of the husband it was submitted:

    (o)  In the event that the wife is able to remain the former matrimonial home following an adjustments (sic) of the assets, as she seeks to do she will have a significant benefit in owning real estate in Australia which is not open to the husband. The purchase and/or sale of property in NSW is subject to significant Stamp Duty and other hidden costs from which the wife in this instance would be quarantined but which the husband will have to meet to acquire a home. [Respondent Husband’s Submissions, page 5, subparagraph (o)].

11. With respect to the ingenuity of the submission, it ignores the reality that the wife will, if she is able, retain the former matrimonial home only after incurring a borrowing to do so. The quantum of her entitlement will not thereby increased or otherwise enhanced. The husband will receive his just entitlement, even if that means the sale of the former matrimonial home.

12. On the evidence, this Court cannot accept that the husband would be unable to acquire another residence, assuming, which his evidence does not suggest, that he wishes to do so. Having concluded as it has with respect to the extent and reliability of the husband’s financial disclosures, it would be curious if this submission could advance the husband’s cause.

13. As noted earlier, the husband will pay in cash, out of whatever he is awarded by this Court, the current arrears of child support. The Court raised with Counsel for the parties the question of including pursuant to s 75(2)(na) a component for future child support to obviate the cost and inconvenience, and waste of public resources, in the parties agitating further child support issues. Sensibly, Counsel for the husband raised no opposition to such course. It can objectively be said of the husband that he will not pay child support in this life.

14. Realistically, now is the only opportunity the wife has to secure child support for the second child of the marriage for the period remaining before that child turns 18 years of age. To allow $50 per week for the next 12 months by way of s 75(2)(na) adjustment would in the circumstances be appropriate.

15. The Court has previously indicated that the husband’s superannuation interests could be considered in a second pool. As C & C (supra) suggests, the Court has regard to the contribution based entitlements of the parties. Although the Court has concluded that the wife’s contributions to other assets should be seen as greater than that of the husband, different considerations apply to the husband’s superannuation interests.

16. To the date the parties separated, the parties should be seen as having contributed equally to the husband’s superannuation entitlement. In the post-separation period the husband’s significantly greater earning capacity suggests that the wife’s entitlement to a share in the husband’s superannuation interest should remain at 50 per cent.

17. The husband is 44 years of age. There is no evidence that he could access his superannuation prior to his 60^th birthday. In the circumstances, and as no splitting order is sought by either party, the preferable course is to reflect in the wife’s share of the other assets her entitlement to share in the husband’s superannuation. So doing results in an adjustment in the wife’s favour of approximately $40 000. No other s 75(2) factor is relevant to be considered.

18. It remains to determine what, in all the circumstances, should be adjusted as between the parties pursuant to s 75(2) of the Act. The Court considers an adjustment in the wife’s favour of 18 per cent (inclusive of an adjustment with respect to the husband’s superannuation) of the tangible assets would in the circumstances be a proper reflection of those entitlements.

19. The effect of the Court’s conclusions with respect to contributions and s 75(2) is that the wife should receive 70 per cent of the tangible assets of the parties and that the husband should receive 30 per cent of those assets, and retain his superannuation entitlement. Seventy per cent of the tangible assets of the parties worth $458 288 is $320 802. Thirty per cent of that sum is $137 486.

20. The wife will retain the P property (subject to paying the husband his entitlement) and the contents of same, but be responsible for the school fees of $2909. The husband will retain the property in Lebanon which is worth $32 197 and his Toyota van worth $5000, accordingly, and subject to the further reductions to which reference will be made, the husband is liable to receive from the wife the sum of $100 289 {$137 486 - $32 197 - $5000 = $100 289}. It is to be remembered, particularly for the purpose of s 79(2), that the husband will retain, in addition to the tangible assets receivable by him, the entirety of his superannuation interests the current value of which is $80 113.

21. It is also to be remembered that, the Court is not required to be unduly cautious with respect to the husband’s finances. The Court is satisfied that the proposed division of the tangible assets of the parties, is just and equitable.

22. The sum payable by the wife to the husband of $100 289 is to be further reduced by reference to arrears of child support in the sum of $27 625 and by way of future child support in the sum of $2600, the wife thereby being obliged to pay the husband $70 064 {$100 289 - $27 625 - $2600 = $70 064}.

23. This sum of $70 064 represents approximately 17 per cent of the agreed value of the former matrimonial home of the parties ($420 000). If that sum is not paid within three months of the date of the Court’s order it should accrue interest in accordance with the Family Law Rules 2004 (Cth) until it is paid provided that, if the sum is not paid in full, together with accrued interest, within six months of the Court’s order, the husband should have liberty to require the wife to sell the property, in which case the net proceeds of sale to be divided in shares of 17 per cent to the husband and 83 per cent to the wife.

24. The Court is satisfied that this division of property satisfies the requirements of s 79(2) and will order accordingly.

Costs

1. Costs of the proceedings should be reserved. If either party seeks an order for costs, written submissions in support of such application should be filed within 28 days of the delivery of judgment in the substantive proceedings. Submissions responding to any such submissions should be filed within 56 days.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate: 

Date:  26 October 2007