Fasolo and Fasolo (No.2)
[2016] FCCA 1871
•22 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FASOLO & FASOLO (No.2) | [2016] FCCA 1871 |
| Catchwords: FAMILY LAW – Property – Property settlement – contributions by the parties – parties’ assets and liabilities – whether any adjustment should be made to the parties’ entitlements under Family Law Act 1975 (Cth) s.75(2) – just and equitable – where wife seeks delay in the sale of the former matrimonial home until after the parties’ youngest child attains the age of 16 years in December 2020. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 106A |
| Cases cited: Best & Best (1993) 16 Fam LR 937; FLC 92-418 |
| Applicant: | MR FASOLO |
| Respondent: | MS FASOLO |
| File Number: | SYC 3760 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 22-24 April 2015 |
| Date of Last Submission: | 24 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sperling |
| Solicitors for the Applicant: | Solari & Stock |
| Counsel for the Respondent: | Mr Cairns |
| Solicitors for the Respondent: | McCabe Partners |
ORDERS
The Applicant and the Respondent are to do all such acts and things and execute all such documents and instruments as may be necessary to cause the property situated at and known as Property W in the State of New South Wales, being the whole of the land in Certificate of Title (omitted) to be sold at auction within three (3) months of the date of this Order.
For the purposes of implementing the above Order:
(a)The parties are to agree upon the appointment of a Real Estate Agent to sell the said property and in default of agreement as to the appointment of a Real Estate Agent within fourteen (14) days of the date of this Order, then with such Agent as the President of the Real Estate Institute of New South Wales shall appoint, the costs of and incidental to this appointment to be borne equally by the parties as and when they shall fall due.
(b)The parties are to instruct such Solicitor or Conveyancer as they shall agree upon to have the conduct of the sale of the said property on behalf of the parties or in the absence of agreement being reached within fourteen (14) days of the date of these Orders instruct such Solicitor as may be appointed by the President for the time being of the Law Society of New South Wales, the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due.
(c)Neither party may confer on any Agent, without the consent of the other party first had and obtained, any right to any sole or exclusive agency in respect of the said property or to any commission.
(d)The auctioneer is to be agreed upon between the parties and failing agreement then the auctioneer is to be nominated by the President of the Real Estate Institute of New South Wales or his nominee.
(e)The reserve price is to be as agreed between the parties and failing agreement is to be proposed by the auctioneer.
(f)The auction is to take place within three (3) months of the date of these Orders.
(g)The Husband and Wife are each to pay and be responsible for half of the auction expenses.
(h)The parties must co-operate in every way with the Agent including but not limited to:
(i)making the key or keys available to the Agent;
(ii)allowing inspection of the said property at all reasonable times requested by the Agent;
(iii)doing or saying nothing to hinder or prevent a sale being effected;
(iv)ensuring the said property, including the grounds, is in a neat and clean condition at the time of inspection by the Agent and prospective purchasers;
(v)signing all documents requested by the Agent in relation to the listing for sale of the real property, except a contract or Agreement for Sale which has not been authorised by the parties’ Solicitor.
(i)The party not in possession of the property is entitled upon reasonable notice, on one occasion each fortnight, to enter and view the state of repair of the said property.
(j)If the property is not sold by auction or private treaty within fourteen (14) days of the auction having taken place then the Husband and Wife must do all such acts and things and sign all necessary documents and pay equally all monies as shall be necessary to procure a second auction within a further period of two (2) months of the date of the first auction.
Upon completion of the sale of the said property the parties must pay the proceeds of sale in the following manner and priority:
(a)all costs and expenses of sale, including legal costs and disbursements, Agent’s commission, advertising expenses, Valuer’s fees and auction expenses including repayment of any such expenses as have been paid by either or both of the parties;
(b)in discharge of any mortgage over the said property; and
(c)to divide the net balance between the parties as follows:
(i)35% to the Husband; and
(ii)65% to the Wife.
Until the sale of the said property is completed the Wife must pay all monies and indemnify the Husband in relation to:
(a)any mortgage registered on the title to the said property including all repayments of principal and interest in relation to the said mortgage; and
(b)all rates, taxes, utilities, home and contents insurance and other outgoings in relation to the said property.
The Husband is declared the sole legal and beneficial owner to the exclusion of the Wife of the following items:
(a)a 5 metre aluminium runabout boat and trailer;’
(b)all monies held in his (omitted) Bank account;
(c)two trail bikes;
(d)all of his lawn mowing equipment;
(e)the Husband’s lawn mowing business; and
(f)Holden (omitted) motor vehicle.
The Wife is declared the sole legal and beneficial owner to the exclusion of the Husband of the following items:
(a)all items of furniture, whitegoods and furnishings at the said property;
(b)Honda (omitted) motor vehicle; and
(c)All monies held in her (omitted) Bank account.
The Husband is declared to be the sole legal and beneficial owner to the exclusion of the wife of all superannuation entitlements and benefits in his name.
The Wife is declared to be the sole legal and beneficial owner to the exclusion of the Husband of all superannuation entitlements and benefits in her name.
In the event that either party refuses or neglects to execute any deed or instrument within seven (7) days of that deed or instrument being forwarded to him or her or his or her solicitor then the Registrar or a Deputy Registrar of the Court at the Sydney Registry is appointed under the provisions of section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the party who has refused or neglected to do so and to do all acts and things necessary to give validity to the operation of the deed or instrument and the party in default must pay all reasonable solicitor/client costs incurred by the party not in default for the purpose of enforcing this Order.
If either party seeks an order for costs of these proceedings leave is granted to file and serve an Application in a Case and an affidavit in support setting out the amount of costs sought and the basis upon which those costs are calculated within six (6) weeks of the date of this Order.
IT IS NOTED that publication of this judgment under the pseudonym Fasolo & Fasolo (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3760 of 2013
| MR FASOLO |
Applicant
And
| MS FASOLO |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Husband for orders for settlement of the parties’ matrimonial property. The proceedings commenced on 5th July 2013 when the Applicant filed an Application for both parenting and property orders.
The parties attended a Conciliation Conference with a Registrar on 14th October 2013 but the financial matters between them did not resolve.
An Independent Children’s Lawyer was appointed for the parenting proceedings on 15th October 2013. Interim parenting Orders were made by consent that same day.
There were further interim parenting Orders made by consent on 28th April 2014.
On 23rd June 2014 the parenting and property proceedings were set down for final hearing from 22nd to 24th April 2015.
Notwithstanding the imminence of the final hearing, the Father sought to vary the interim parenting orders and an interim hearing took place on 17th December 2014. On 19th December I handed down a decision increasing the amount of time that the children spent with the Father.
At the final hearing, which commenced on 22nd April 2015, the parties concentrated on the parenting issues, with the assistance of Counsel for the Independent Children’s Lawyer, Mr Guterres. The following day they entered into final consent orders, resolving the parenting issues between them.
The Parenting Orders to which the parties consented provided that, in summary:
a)the parties would have equal shared parental responsibility for the three children;
b)the children would live with the Mother;
c)the children would spend time with the Father:
i)each alternate weekend from after school Friday until the commencement of school on Monday;
ii)for the first half of the short school holidays in even numbered years and the second half in odd numbered years;
iii)for the second two weeks of the 2015 Christmas school holidays and for half of those holidays in subsequent years; and
iv)other special days such as Father’s Day.
Background
The parties were married on (omitted) 2000 and commenced living together from that date in at Property W. They separated under the one roof in late February or early March 2011. They separated physically when the father moved out of the former matrimonial home on 17th August 2012.
There are three children of the marriage, all of whom are under the age of 18 years.
X was born on (omitted) 2001, so he is now aged 14 years and seven months.
Y was born on (omitted) 2003, so she is now aged 12 years and seven months.
Z was born on (omitted) 2004, so she is aged 11 years and seven months.
The Wife has two children from her previous marriage, both of whom are now adults.
Ms R was born (omitted) 1988. Mr C was born on (omitted) 1991.
On (omitted) 1997 the husband purchased a property at Property A for $233,000.00, with the assistance of a mortgage loan from (omitted) Bank.
The Husband set up a company called (business omitted) on (omitted) 1999. He was involved with that company until 2003, when he ceased being a director and shareholder. He asserts that during his time with the company he did not make a profit or a loss. He was employed on full time basis as a (occupation omitted).
The parties moved into the property at Property W when they were married on (omitted) 2000. The property was owned by the Wife’s parents.
On (omitted) 2001 the Husband sold the property at Property A for $338,000.00. The payout figure for the mortgage was $92,710.58. The net proceeds of sale of $229,312.00 were deposited into the Husband’s account at the (omitted) Bank.
On (omitted) 2001 the parties purchased the matrimonial home from the Wife’s parents. They remained living there until they separated on 17th August 2012 when the Husband moved to his mother’s house at (omitted) .
In February 2013 the Father commenced living with a woman named Ms S at her home in (omitted).
The Husband commenced paying Child Support to the wife as from 24th May 2013 under a Child Support Assessment.
The matrimonial home was valued at $875,000.00 on 3rd December 2013. An updated valuation was made on 19th March 2015, showing the value of the property to be $1,050,000.00.
Orders Sought
The Husband, in a Minute of Orders handed up in Court by his Counsel, Mr Sperling, on 24th April 2015, seeks orders that provide:
a)the parties should submit the property at Property W, for sale by auction;
b)upon completion of the sale, the net proceeds of sale after legal costs, Agent’s commissions, Valuer’s fees, auction and advertising expenses and discharge of any mortgage, are to be paid as follows:
i)as to the Wife 49%; and
ii)to the Husband 51%;
c)until completion of the sale of the home, the Wife is to pay all monies and indemnify the husband in respect of:
i)any mortgage registered on the title; and
ii)all rates, taxes, utilities, home and contents insurance and other outgoings in relation to the former matrimonial home;
d)each party is to be entitled to all chattels, goods, motor vehicles, furniture, furnishings currently I their possession or control;
e)each party is to be solely entitled to any moneys, shares and debentures standing in their respective names;
f)each party is to be solely entitled to any superannuation benefits in their respective names; and
g)each party is to be solely liable for and indemnify the other against any debt, loan or liability whatsoever in their respective names; and
h)and in the event of either party refusing or neglecting to execute any necessary deed or instrument, an officer of the Court at the Sydney Registry is to be appointed under the provisions of s.106A of the Family Law Act 1975 (Cth) and the defaulting party is to pay all reasonable solicitor/client costs of the other party.
The Wife, in a Minute of Order handed up in Court by her Counsel, Mr Cairns, on 24th April 2015, seeks orders for the sale of the former matrimonial property at Property W with a specified commencing date being within 60 days of the parties’ youngest child Z turning 16 years of age. I note that the child Z was born on (omitted) 2004 so the sale of the property would not take place until after 22nd December 2020.
Until the sale of the former matrimonial home, the Wife would remain living in the home with the children and would continue making mortgage payments;
Until the sale of the home the Wife would continue to pay all insurance premiums, Council rates, water rates and other outgoings on the home;
Upon completion of the sale of the home the parties would apply the proceeds of sale as follows:
a)in payment of all selling costs, real estate agent’s commission, legal costs and expenses of the sale;
b)to discharge the mortgage secured over the property; and
c)to divide the net balance between the parties as follows:
i)65% to the Wife; and
ii)35% to the Husband.
Alternatively, subject to the Husband at his own expense and in a proper and workmanlike manner completing the unfinished carpentry works upon the property within 90 days, the parties are to do all things necessary to effect a sale of the former matrimonial home by private treaty.
Until the sale of the home is completed:
a)the Wife would continue making the mortgage repayments;
b)the Wife and the children would remain living in the home;
c)the Wife would continue to pay all insurances premiums, council rates, water rates and other outgoings on the property.
Upon completion of the sale, the parties would apply the proceeds of sale as follows:
a)in payment of all selling costs, real estate agent’s commission, legal costs and expenses of the sale;
b)to discharge the mortgage secured over the property; and
c)to divide the net balance between the parties as follows:
i)75% to the Wife; and
ii)25% to the Husband.
The Husband would be declared the sole legal and beneficial owner to the exclusion of the Wife of the following items:
a)a 5 metre aluminium boat and trailer;
b)monies held in his (omitted) Bank account;
c)two trail bikes;
d)lawn mowing equipment; and
e)the husband’s (omitted) business.
The Wife would be declared the sole legal and beneficial owner to the exclusion of the Husband of the following items:
a)all items of furniture and effects at the Property W property;
b)her Honda (omitted) motor vehicle;
c)monies in her (omitted) Bank account; and
d)furniture and whitegoods at the Property W property.
The Husband would be declared the sole legal and beneficial owner to the exclusion of the Wife of all superannuation entitlements and benefits in his name.
The Wife would be declared the sole legal and beneficial owner to the exclusion of the Husband of all superannuation entitlements and benefits in her name.
Evidence
The final hearing took place on 22nd, 23rd and 24th April 2015.
The Husband relied on the following documents:
a)Initiating Application filed on 5th July 2013;
b)his affidavit of 7th April 2015;
c)the affidavit of Ms S of 2nd April 2015;
d)the affidavit of Mr G of 2nd April 2015; and
e)the affidavit of Ms C of 31st March 2015.
The affidavits of Ms S, Mr G and Ms C only went to parenting issues and as the parenting matters were settled, their affidavits no longer needed to be relied on.
The Husband gave oral evidence and was cross examined by Mr Cairns of Counsel for the Wife.
The Wife relied on the following documents:
a)her Amended Response filed on 16th April 2015;
b)her affidavit of 15th April 2015; and
c)her Amended Financial Statement filed on 16th April 2015.
The Wife gave oral evidence and was cross-examined by Mr Sperling of Counsel for the Husband.
Submissions
Mr Sperling submitted that the Consent Parenting Orders did not reflect the medical needs of the children. He said that the medical issues would only call for a 5% adjustment in favour of the Wife under s.75(2) of the Family Law Act 1975.
As to the parties’ contributions, the Husband had clearly detailed what his contributions were during the marriage. There was an issue about the actual purchase price of the former matrimonial home, whether it was $400,000.00 or $299,000.00, but he noted that the parties paid stamp duty on the full amount of $400,000.00, not $299,000.00.
The issue of Capital Gains Tax was not resolved by the Wife’s evidence and he noted that the Wife’s parents did not come to Court.
The Wife’s jewellery was also a major issue. Her evidence in relation to the contents of the home was of little weight. The Wife did not disclose the value of her jewellery or her superannuation.
Mr Sperling urged the Court not to make an order delaying the sale of the former matrimonial home until the youngest child, Z, attained the age of 16.
Mr Cairns of Counsel, for the Wife, submitted that the Court should be cautious about accepting the Husband’s evidence of the renovation that was done.
Certainly, he submitted that there was a contribution of $100,000.00 but it was used to improve the property and there was also a reduction in price by the Wife’s parents of $100,000.00 when selling the home to the parties.
Mr Cairns submitted that there was a substantial post-separation contribution by the Wife. She “soldiered on” paying the mortgage and keeping the children in the house.
As to the absence of any evidence about the financial transactions from the Wife’s parents, he submitted that there could be a number of reasons for the fact that they did not attend Court.
Further, the Husband remains in employment and his superannuation “nest egg” continues to grow. The Wife has no superannuation and no employment. The children have special needs.
Mr Cairns referred the Court to the decisions of Money & Money[1]and Bremner & Bremner[2] in support of the proposition that the Wife’ non-financial contributions during the marriage including her additional responsibilities in relation to the children’s special needs and the Wife’s overwhelmingly greater post-separation contributions, both financial and non-financial, erode any initial financial contribution made by the Husband.
[1] (1994) FLC 92-485
[2] (1995) FLC 92-560
It was submitted that the parties’ overall contributions should be assessed at 55% to 45% in the Wife’s favour.
It was further submitted in respect of the subsection 75(2) factors that the Husband had remained in the workforce and since separation had received a substantial redundancy payment in the sum of $38,000.00. Since separation, the Wife has been dependent on Centrelink benefits. It was submitted that it has long been recognised that in most cases the most valuable “asset” which a party can take out of a marriage is a substantial, reliable income/earning capacity (Clauson & Clauson[3]; Best & Best[4]).
[3] (1995) 18 Fam LR 693; FLC 92-595
[4] (1993) 16 Fam LR 937; FLC 92-418
It was therefore submitted that the Wife should receive a substantial adjustment in her favour. Mr Cairns submitted that it would be just and equitable for the Court to postpone any property settlement until the youngest child turns 16 but if the Court were not disposed to making an order delaying the property settlement, it was submitted that it would be just and equitable to make an adjustment under s.75(2) in favour of the Wife at 30%.
The Proper Approach to determination of a Property Application
The proper approach to determining a property application under s.79 of the Family Law Act 1975 (Cth) is, first of all, to follow the principles set out by the High Court of Australia in Stanford v Stanford[5].
[5] (2012) 247 CLR 108; 47 Fam LR 481; FLC 93-518; [2012] HCA 52
First, the Court must consider the requirements in subsection 79(2) of the Act, which prescribes that:
The court shall not make an order under this section unless it is satisfied that it is just and equitable to make the order.
Their Honours[6] held at paragraph [36] of the judgment:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s.79 is not “to be exercised in accordance with fixed rules”, nevertheless three fundamental propositions must not be obscured.[7]
[6] French CJ, Hayne, Kiefel and Bell JJ
[7] [2012] HCA 52 at [36]
The three fundamental propositions are:
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s.79(4)(1)(a) itself, which refers to “altering” the interests of the parties to the marriage in the property (emphasis added)…
38.Second, although s.79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion…
…
40.Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s.79(4).[8]
[8] [2012] HCA 52 at [37]-[38], [40]
Clearly, the decision in Stanford v Stanford means that the Court must consider the requirements of s.79(2) before embarking on the four step process set out by the Full Court of the Family Court in Hickey & Hickey,[9] or at least before taking the second step, identifying and assessing the contributions of the parties. Satisfaction that it is “just and equitable” to make an order is a condition precedent to considering the matters referred to in s.79(4). The court must first of all be satisfied that it is just and equitable to make an order at all.
[9] (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395
In Hickey & Hickey, the Full Court set out at paragraph [39] of the judgment a process of four interrelated steps that must be taken by a court when determining a property application:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of subsection 79(4)(a),(b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in subsection 79(4)(d),(e), (f) and (g), (“the other factors”) including the matters referred to in subsection 75(2) so far as they are relevant. Fourthly, the Court should resolve what order is just and equitable in all the circumstances of the case[10].
[10] [2003] FamCA 395 at [39] per Nicholson CJ, Ellis & O’Ryan JJ
It is neither contradictory nor redundant to consider again whether a proposed order is just and equitable under s.79(2) because the Court is considering the matter after having undertaken the three previous steps referred to in the decision in Hickey & Hickey.
Just and Equitable
The parties have been physically separated since 17th August 2012, a period of nearly four years. They have finalised the parenting matters between them by Consent Orders made on 23rd April 2015. The Father has re-partnered and has been living with Ms S since February 2013.
The marriage between the parties is clearly at an end and in all the circumstances it is just and equitable to make orders for the settlement of the matrimonial property.
The Parties’ Assets and Liabilities
The Court has the benefit of a Balance Sheet that was tendered on the first day of the hearing, 22nd April 2015.
Non-superannuation Asset Pool
I find the value of the non-superannuation asset pool to be:
a)Property W (joint) $1,050,000.00
b)Wife's Honda (omitted) motor vehicle $15,000.00
c)Boat and trailer (joint) $7,000.00
d)Household contents and items (joint) $10,000.00
e)Husband’s savings $614.00
f)Wife’s savings $30.00
g)Husband’s (omitted) equipment $200.00
h)Bikes (joint) $1,000.00[11]
i)Husband's Holden (omitted) motor vehicle $40,000.00
j)Wife’s jewellery $13,000.00[12]
Total $1,136,844.00
[11] Husband’s value – more realistic
[12] Husband’s value – wife did not provide evidence of value
Liabilities
I find the parties’ liabilities to be:
a)Mortgage to (omitted) Bank (joint) $193,000.00
b)Husband’s loan from mother $10,000.00
c)Husband’s loan from Ms D $15,000.00
Total liabilities $218,000.00
By subtracting the total of the liabilities, $218,000.00 from the total of the assets, $1,136,844.00, I arrive at a net total of $918,844.00.
I find the total value of the non-superannuation asset pool to be $918,844.00.
Superannuation
Each party disclosed superannuation interests, although the Wife’s information was not provided until the first day of the hearing.
I find the parties’ superannuation interests to be:
a)Husband's (omitted) Super interest $138, 412.00
b)Wife's MTAA superannuation interest $1,908.00
Total superannuation $140, 320.00
By adding the net total of the non-superannuation asset pool, $918,844.00, to the total of the superannuation asset pool, $140,320.00, I arrive at a total of $1,059,164.00.
I find the net value of the parties’ superannuation and non-superannuation assets and liabilities to be $1,059,164.00.
The Contributions of the Parties
The parties were together from (omitted) 2000 to 2011, when they separated under the one roof and then separated physically when the Husband left the former matrimonial home in August 2012.
The Husband worked full-time as a (occupation omitted) throughout the marriage.
The Wife was in receipt of a pension at the commencement of the marriage and had the full-time care of her two children from her previous marriage, who were then 11 and 10 years old. The Wife also worked at her father’s (omitted) business as a (occupation omitted) for a period after the commencement of the marriage.
At the commencement of the marriage the Wife owned furniture, whitegoods, personal items and a motor car.
The Husband, on the other hand, owned the house at Property A, which was sold 6 months later for $338,000.00. The Husband realised about $230,000.00 from the sale after the mortgage was paid out.
The Husband’s other assets at the commencement of the marriage consisted of:
a)A (omitted) Suzuki Vitara valued at approximately $29,000.00;
b)A boat valued at about $1,000.00; and
c)Superannuation in the amount of approximately $40,000.00.
The Husband sold the boat and deposited the proceeds into the matrimonial account.
The parties purchased the property at Property W from the Wife’s parents. The Wife claims the property was purchased for $299,000.00. The Husband claims that they paid an additional sum of $100,000.00 to the Wife’s parents.
It is the Husband’s case, which I accept, that he paid for the purchase of the house with the money that he received from the sale of his Property A property and that his total contribution to the purchase of the house was about $203,500.00. The balance of purchase money came from a mortgage over the property.
The parties received gifts from their respective parents during the marriage. The Husband’s parents provided gifts of around $19,000.00 in about 2006, $9,000.00 in 2010 about $5,000.00 in 2004 and 2005.
The Wife’s parents provided assistance by way of purchasing them a refrigerator for approximately $2,500.00, various items of furniture and two family holidays at a caravan park at (omitted).
The Wife had the care of her two children from her previous marriage. The Husband was responsible for their upkeep as the children’s natural father paid no child support.
The Husband was primarily responsible for household maintenance and improvement during the marriage.
The Wife was primarily responsible for homemaking and parenting duties in respect of the children.
After the parties separated the Father paid, and is still liable to pay, child support under an assessment I 2013.
The Wife has lived in the former matrimonial home with the children since the parties separated. The Husband continued to pay the mortgage payments until November 2013.
In my view, the contributions favour the Husband by, conservatively, 60% to 40%.
I assess the contributions by the parties as 60% by the Husband and 40% by the Wife.
Other Factors taken into account under subsection 79(4)(d) to (g)
Paragraph (d) of subsection 79(4) requires the Court to take into account the effect of any proposed order on the working capacity of either party. There does not appear to be any likely effect on either party’s working capacity.
Subsection 75(2) matters
Paragraph (e) of subsection 79(4) requires the Court to take into account the matters referred to in subsection 75(2) of the Act so far as they are relevant.
The Wife was born on (omitted) 1967. She is 48 years of age. She is in good health.
The Husband was born on (omitted) 1969. He is 46 years of age and will attain the age of 47 in (omitted). He is in good health.
The Husband is a (occupation omitted) by trade. Although he was retrenched, he is self-employed and has the capacity to earn income.
The Wife is on a carer’s pension and in receipt of family payments. She has not worked for more than 10 years and has limited prospects of employment in the future.
The Wife has the care and control of the parties’ three children, all of whom are under the age of 18 years.
The Husband has now re-partnered with Ms S, who deposed in her affidavit that she is a self-employed (occupation omitted) who works school hours[13].
[13] Affidavit of Ms S 2 April 2015 at paragraph [4]
The Wife has not re-partnered.
The Husband pays child support under a Child Support Assessment.
The three children, who are in the Mother’s care, have special needs. The Wife deposed in her affidavit that the party’s son X has ADHD (Attention Deficit Hyperactivity Disorder) and learning difficulties that may include Dyslexia.[14].
[14] Affidavit of Ms Fasolo 15.4.2015 at [13]
The parties’ second child Y, born on (omitted) 2003 suffers from Enuresis, an inability to control urination and has been prescribed medication. She requires a special diet.
The parties’ youngest child, Z, born (omitted) 2004, suffers from encopresis, involuntary defecation and also requires medication and a special diet.
In my view, the fact that the Wife has the three children in her care, all of whom suffer from some disability, would lead to an adjustment in her favour of 15%.
I assess the parties’ entitlements at 45% to the Husband and 55% to the Wife.
Just and Equitable
The Court must again consider whether, in the light of the assessments of the parties’ entitlements, the orders proposed are just and equitable.
It is not just and equitable to delay making property orders, at least in respect of the former matrimonial home, until after the child Z attains the age of 16 years on (omitted) 2020. The parties need to be able to move on with their lives.
The net asset pool is $1,059,164.00. The entitlement of the Husband would be 45%, $476,624.00[15]. The entitlement of the Wife would be 55%, or $582,540.00[16]
[15] Rounded up to the nearest dollar
[16] Rounded down to the nearest dollar
The Husband will retain the following assets:
a)Boat and trailer $7,000.00
b)Savings $614.00
c)Bikes $1,000.00
d)Holden (omitted) $40,000.00
e)Superannuation $138,412.00
Total $187,026.00
The Wife will retain the following assets:
a)Honda (omitted) $15,000.00
b)Household contents $10,000.00
c)Savings $30.00
d)Jewellery $13,000.00.
e)Superannuation $1,908.00
Total$39,938.00
The value of the house is $1,050,000.00 less the amount of $193,000.00 owing on the mortgage, a net of $857,000.00.
The Husband would therefore receive $476,624.00 from the sale of the house, less the sum of $187,026.00, making a net amount of $289,598.00.
The Wife would therefore receive $582,540.00 from the sale of the house, less $39,938.00, making a net amount of $542,602.00.
Thus, in round terms, the Husband’s share of the net proceeds of the sale of the house will be 35% of the net proceeds.
The Wife’s share of the net proceeds of the sale of the house will be 65% of the net proceeds.
I am satisfied that the proposed orders are just and equitable in all the circumstances and I will order accordingly.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 22 July 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Property Law
Legal Concepts
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Costs
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Remedies
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