Fenton and Fenton
[2016] FCCA 135
•9 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FENTON & FENTON | [2016] FCCA 135 |
| Catchwords: FAMILY LAW – Property – property pool – contributions – s.75(2) factors – spousal maintenance. |
| Legislation: Family Law Act 1975 (Cth) |
| Bevan & Bevan [2013] FamCAFC 116 Gollings v Scott (2007) FLC 93-319 Kowaliwv v Kowaliwv (1981) FLC 91-029 |
| Applicant: | MS FENTON |
| Respondent: | MR FENTON |
| File Number: | MLC 4310 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing date: | 14 December 2015 |
| Date of Last Submission: | 14 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 9 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Wheeler |
| Solicitors for the Applicant: | Adrian Abrahams Family Lawyers |
| Counsel for the Respondent: | Mr J Gates |
| Solicitors for the Respondent: | Mackinnon Jacobson Lawyers |
ORDERS
The property of the parties (excluding superannuation entitlements) be divided as to 70% of the net value to the wife and 30% of the net value to the husband.
For the purpose of order 1 hereof:
(a)The former matrimonial home situate at Property J in Victoria be sold as agreed between the parties but failing agreement then the parties or either of them have liberty to apply in respect of the terms of the sale.
(b)Each of the parties retain those items of chattels, personalty and motor vehicles currently in the party’s possession and control but subject to being wholly responsible for and to indemnify the other party in respect of any and all liabilities attaching to such asset(s).
For the purposes of these orders:
(a)the Wife is the member spouse;
(b)the Husband is the non-member spouse;
(c)the superannuation fund is the (omitted) Superannuation (“the Fund”).
Paragraphs 3 to 9 of these orders are binding on the trustee of the Fund.
In accordance with section 90MT(1)(a) of the Family Law Act 1975:
(a)the husband is entitled to the sum of nineteen thousand, four hundred and forty five dollars and zero cents ($19,458.00); and
(b)there be a corresponding reduction in the entitlement of the wife to whom the splittable payment would have been made but for these orders.
Order 5 is to have effect from the operative time.
The operative time for the purposes of these orders is four business days after the day of service of these orders upon the trustees of the Fund.
Until the happening of any of:
(a)the establishing of a separate account in the name of the husband; or
(b)the transfer or rolling over into another superannuation fund of the payment split created by order 5; or
(c)the husband executing a waiver of rights within the meaning of s.90MZA of the Family Law Act 1975 in relation to the payment split created by order 5; or
(d)the husband satisfying a condition of release and being paid the payment split which was created by order 5 hereof,
the wife be and is restrained by herself, her servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of her interest in the fund a non-splittable payment within the meaning of regs.12 or 13 of the Family Law (Superannuation) Regulations 2001.
Each party and the trustee of the Fund have liberty to apply in relation to the implementation of orders 3 to 9 inclusive.
IT IS NOTED that publication of this judgment under the pseudonym Fenton & Fenton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4310 of 2015
| MS FENTON |
Applicant
And
| MR FENTON |
Respondent
REASONS FOR JUDGMENT
The parties in this matter to their great credit have settled issues in respect of their only child, X born (omitted) 2011 (aged four years). Unfortunately, their financial issues are left for my determination.
The applicant wife seeks an order that she receive 70 per cent of the net tangible assets of the parties and that there be a splitting order in respect of her superannuation entitlement (approximately $39,000) as to 50 per cent of value to the husband. Mr Fenton is self-employed and has no superannuation policy or entitlement. The respondent husband proposes orders whereby the wife receive 60 per cent of the property pool including a superannuation split of 40 per cent of the wife’s entitlement to the husband.
The parties have recently agreed orders in respect of X which see the wife as his primary carer. The husband’s time with X is initially limited but with a graduated regime whereby X will eventually spend five nights per fortnight with the husband.
Background
The husband is a self-employed (occupation omitted). The wife works as an (occupation omitted) for two and a half days per week and subsidises her income with a “hobby business” making (omitted). The wife is 36 years of age. The husband is 35 years old.
The parties commenced cohabitation in 1996. They married on (omitted) 2008 and separated on 1 August 2014, according to the husband, or in September, according to the wife. Little turns on this dispute. The husband remains living in the former matrimonial home although the parties are now agreed that it will be sold.
Issues
The issues between the parties are few but not insignificant. They can be summarised as follows:-
(1) the percentage distribution of the property pool after consideration of contributions and relevant section 75(2) factors;
(2) the status to be given to an amount of $21,800 removed by the wife from the parties’ joint mortgage account following separation and paid ($20,000) towards her legal costs, including for an application for intervention order;
(3) the status of an inheritance received by the husband on 31 July 2014 in a sum of $55,000;
(4) the husband’s claims of accrued tax liabilities as at the date of separation or relevant to the period prior to separation in a quantum of $25,106.91, where the wife says that the correct figure is $6,322 but that, in any event, the Court should disregard the husband’s tax liabilities on the basis of his drawings from his business during the relevant periods and his failure to meet tax liabilities and/or his ability to have done so.
The wife’s Counsel also raised an issue of her claim for spousal maintenance. The wife’s application and outline of case suggests a claim for capitalised spousal maintenance. However, in final submissions the wife’s Counsel sought an order for periodic spousal maintenance (apparently open-ended) at $500 per week. Frankly, there appeared to be no consistency or commitment by the wife to such a claim.
Indeed, the highest that her Counsel could put it in closing submissions was that; “If the wife doesn’t get 70 per cent of the property, then she seeks spousal maintenance of $500 per week.” This case was not articulated in the wife’s Counsel’s opening. There was little cross-examination by the wife’s Counsel as to the husband’s expenditure but, not surprisingly given the non-statement or particularisation of the case, none by the husband’s Counsel of the wife’s needs or her ability to attend to her own needs. Nevertheless, I take the view that the wife has put before the Court an application for spousal maintenance such to be continuous and open-ended in a sum of $500 per week. I will consider that application in respect of the probative evidence and the matters for consideration under ss.72, 74 and 75 of the Family Law Act (1975) (“the Act”).
The Relevant Law
The accepted process of consideration for the trial judge is again relatively settled following the well-known decisions of Stanford v Stanford[1] and Bevan & Bevan.[2] Firstly, the Court is to identify the legal and equitable interests of the parties in property as at the date of the hearing. Property includes the identification of liabilities and resources and, for these purposes, superannuation is to be “treated as property”. The Court should attribute value to each of the items in the property pool.
[1] [2012] 87 ALJR 74.
[2] [2013] FamCAFC 116.
Pursuant to s.79(2) of the Act the Court must determine whether it is just and equitable to alter the property interests of the parties. This is a consideration separate than that of considerations as to the specific contributions of the parties or the s.75(2) factors. In reality, however, as in this case, the fact of a separation and the joint ownership or interest in property would irresistibly make the alteration of the parties’ interests just and equitable and appropriate.
The Court must consider the contributions of the parties pursuant to section 79(4)(a – c) being financial contributions by or on behalf of the parties and contributions of a direct or indirect type to the acquisition and conservation or improvement of any of the property of the parties. Further, the Court is to consider contributions, other than financial contributions, made directly or indirectly by or on behalf of a party to the acquisition, conservation or improvement of any of the property, including contributions as homemaker, parent or to the welfare of the family.
A Court will also consider the matters under section 79(4)(d – g) of the Act, notably being the numerous matters referenced under section 75(2) of the Act and also the effects of any proposed orders upon the earning capacity of each of the parties together with any child support assessments obligating or benefiting a party.
The notion of justice and equity permeates the entire process, which is essentially a discretionary one for the Court but within the parameters as set out above. After a consideration of the various contributions and other factors under section 79(4) the Court should be satisfied that the proposed orders are just and equitable and not just any underlying mathematical or percentage division of the property pool.[3]
[3] Russell v Russell (1999) FLC 92-877.
Wife’s removal of $21,800
It is not contentious that the wife unilaterally removed these monies from a joint mortgage bank account following separation. She agrees that she used the monies to meet legal costs, including for an application to a State Court for intervention orders. The husband says that these monies should be considered as a “partial” or “interim” property settlement in favour of the wife and in this sense it would be added back to the pool.
Whilst I am mindful of the comments of the High Court in Stanford (supra) as to the assessment of the property pool being “current” and the doubt thrown by the Full Court in Bevan (supra) as to the process of “add-backs”, the fact remains that for a practical consideration and assessment in an issue such as this the husband’s argument is best seen on the basis of “add-backs”. The alternative is a consideration under s.75(2)(o) of the Act, but for the purposes of clarity in this particular argument I prefer the use of the add-backs if I were to accept the husband’s argument.
Counsel for the wife argues that while accepting the unilateral removal of the funds and their purpose the Court should disregard these monies or, more properly, not attribute them as an interim property settlement to the wife. This argument is based on what she says has been their reasonable expenditure post-separation. Prior to Bevan (supra) the Full Court in AJO & GRO[4] identified three categories where a Court might determine that it is appropriate to notionally add-back assets that no longer exist or monies that have been expended. They include:
a)where a party has expended money on legal fees;
b)where there has been a premature distribution of a matrimonial asset (Townsend v Townsend)[5]; and
c)where financial losses have resulted from a course of conduct designed to reduce or minimise an asset pool or where a party has acted recklessly, negligently or wantonly in respect of the property pool.[6]
[4] (2005) FLC 93-2018
[5] (1995) FLC 92-569
[6] Kowaliwv v Kowaliwv (1981) FLC 91-029 at [76,644]
The above circumstances are equally appropriate in a consideration under s.75(2)(o) as they are in respect of the previous prevailing use of add-backs.
Generally, Courts have acknowledged that once parties have separated then they should be entitled to pursue their own financial lives, interests and preferences and that add-backs should accordingly be the exception rather than the rule.[7] Nevertheless, the Court is able to exercise its discretion in such matters and each case should be considered on its own facts and circumstances as to the reason for the dissipating of the property pool. The spectrum is broad and ranges from the reasonable use of joint monies for living expenses post-separation to a deliberate dissipation of the pool to defeat an entitlement of the other party.
[7] Gollings v Scott (2007) FLC 93-319
In the matter now before me it is not disputed that the wife removed the funds without the husband’s permission. She used those monies to pay her legal costs. There is no evidence before me of any compulsion. The wife was in employment, albeit not full-time at the relevant period, but with her income being supplemented by government benefits. The benefit which was accrued by the wife’s removal and disbursement of the moneys was to her only, with no benefit to the husband. It is reasonable to infer that each of the parties to these proceedings have incurred legal costs, although the wife would argue that the husband has had a greater capacity to meet his costs by reason of his greater income capacity.
On consideration, I am not persuaded that the wife’s use of the $21,800 could be categorised as “reasonable post-separation living expenses” or the like. She has both achieved a benefit for herself and reduced the property pool. In all of those circumstances justice and equity demand that the $21,800 be considered in the property pool. As mentioned above, and for ease of calculation, I prefer that the amount be “added back” to the pool.
Husband’s claim taxation liability – $25,106.91
The husband himself in his evidence did not profess to have any particular or expert knowledge in respect of taxation matters. He was, in fact, a good and candid witness who tended to give his evidence in a direct and honest manner. The evidence in support of his assertion of a taxation liability of $25,106.91 is solely that of an annexure to his own affidavit, being apparently a printout of a “portal” from the Taxation Office. Strangely and surprisingly common in matters coming before this Court, no objection was taken to this evidence. No accounting, taxation or other expert evidence was given in support of the documentary evidence or the husband’s assertions.
Rather, Counsel for the husband invited the Court to interpret the document in the terms of the husband’s assertion as to the liability. Also surprisingly, the husband volunteered that his own father, Mr I, is an accountant and responsible for the husband’s own taxation returns. Mr I was apparently present throughout the hearing, but did not give evidence. The annexed printouts from the “tax agent portal” appear under two annexures to the husband’s trial affidavit, being annexures 20 and 21. These numerals in themselves demonstrate the tendency all too apparent in this Court of presenting a client’s case by way of annexure to affidavit.
Such annexures are usually voluminous. They are almost inevitably hearsay and therefore objectionable. They regularly present difficulties for the Court in a forensic and evidentiary sense. Given that the husband’s Counsel claims a liability of $25,106.91, the husband’s sworn affidavit which grounds the annexures, 20 and 21, makes interesting if not confusing reading. At paragraph 22, subparagraphs (o) and (p) (which in themselves contain numerous subparagraphs) states:
(o)My outstanding ATO personal income tax liabilities totalling $8,082.40 as follows:
i.For the period 1 July 2013 to 30 June 2014 in the sum of $9,044.45 less the $3,400 I was previously in credit with the ATO in respect of these accounts.
ii.For the period 1 July 2014 to 30 June 2015 in the sum of $2,436.95.
Now annexed and marked with the letter “F-20” is a true and correct copy of my ATO income tax account as at 7 October 2015.
(p) My outstanding ATO business tax liabilities totalling $42,998.59 as follows:
(i) GST and PAYG amounts for the period ended 30 June 2014 in the sum of $7,133 less $874.54. I was previously in credit with the ATO in respect of these accounts.
(ii) GST and PAYG amounts for the period ended 30 September 2014 in the sum of $13,204.00.
(iii) GST and PAYG amounts for the periods ended 31 December 2014 in the sum of $6,687.00.
(iv) GST and PAYG amounts for the period ended 31 March 2015 in the sum of $7,594.00.
(v) GST and PAYG amounts for the period ended 30 June 2015 in the sum of $5,708.00.
(vi) Penalties and interest charges for the relevant period totalling $3,547.13.
Now annexed and marked with the letter “F-21” is a true and correct copy of my ATO Integrated Client Account as at 7 October 2015.
The husband swore this affidavit on 11 November 2015. I repeat that the husband gave no indication in the witness box that he held any particular understanding of taxation matters, or indeed, any greater than myself which is seriously not of any substance. Nevertheless, this remains his sworn evidence, if only by way of hearsay annexure. No evidence was led from the husband to correct the contents of his trial affidavit in any way and certainly not in the particulars transcribed above.
Consequently, an initial rhetorical question for the Court is why the husband in his sworn affidavit adopted in the witness box should be apparently making out an argument that he has personal and business taxation liabilities of some $51,080.99, whereas (despite the adopted affidavit) his own Counsel claims a liability of $25,106.91.
A further interpretation might be extracted from annexures 20 and 21. Given a date of separation in September 2015, then annexure 20 (which might relate to the husband’s personal taxation) shows an amount owing to the tax office of $8,082.40. Annexure 21, at the same date, shows a liability to the tax office of $6,332.46 or a total of $14,414.86. This figure is, of course, different than that posed by the husband’s Counsel in his final submissions and even more substantially different than that sworn to by the husband in his affidavit and as such adopted it at the commencement of his evidence.
Annexures 20 and 21 do, however, offer some assistance to the Court in an evidentiary sense. That is, annexure 20 shows no input in or deposits by the husband into his account or towards his liabilities between March 2014 and September 2015. And similarly, annexure 21 shows no injections of money to the account or to the husband’s tax liabilities after 17 July 2014 to the end of the statement in October 2015.
Indeed, Mr Fenton candidly agreed that there were long periods when he was not making payments towards his taxation liabilities and I am prepared to accept the annexures as corroborating his evidence given in Court. He says, and I accept, that he was emotionally traumatised by the breakdown in his marriage and that he “left those matters to his father”. Further, however, Mr Fenton conceded that he took drawings from his business in the financial year ending June 2014 of $123,000.00 and for the financial year ending June 2015 of $162,599.00. I accept his concession in the witness box in this respect. No explanation was forthcoming as to the expenditure of those monies. When asked, Mr Fenton suggested that he might normally have an income of around $100,000.00 per annum. It follows, by way of mathematical logic and simple observation, that Mr Fenton had the capacity to meet his taxation liabilities, whatever their quantum, during the periods that he was drawing the above mentioned income.
In summary, therefore, given the deficiencies and contradictions in the evidence, I am unable to quantify to the requisite degree of the husband’s liability to the tax office. I prefer to exercise my discretion that the husband had the capacity to meet his taxation liabilities during the period leading up to the final separation and post-separation. To put it simply, he has had the benefit of the income of the business and should have therefore met its liabilities. I will not include any taxation liability in the property pool.
Husband’s inheritance - $55,000
The husband inherited $55,000.00 from a late grandparent on or about 31 July 2014 which was just the day before he says that the parties first separated. He says that he did not immediately bank the cheque. He used these monies to buy a Mitsubishi (omitted) motor vehicle.
The wife’s material and her Counsel’s opening submissions suggested some claim by the wife that the bequest was to “both of us”. There was no evidence to sustain such a claim and her Counsel in final submissions properly, in my view, conceded that the wife made no contribution to the inheritance. It is clear that it came at or near separation.
It is clearly an asset in the hands of the husband but for reasons of clarity I do not put it into the list of assets constituting the property pool. In this sense, however, it should be taken into account as a resource available to and in the hands of the husband and for consideration under s.75(2).
Chattels
There was much discussion in the trial as to the distribution of household chattels. Despite some serious deficiencies in the evidence given and adduced, neither party was prepared to concede that the Court should simply leave the issue of chattels out of the equation.
The wife in her case outline asserts that the husband holds household contents to a value of $2,500 and that she holds contents to a value of $1,000. The husband’s case outline suggests “joint household furniture and chattels” to a value of $5,000. Neither party professed any expertise as a valuer of chattels. Neither party purported to provide a complete inventory of the chattels. Neither party adduced any expert valuation evidence. Neither party asserted any chattels of intrinsic value, such as works of art or antiques.
Whilst it is not unusual for common sense to prevail and household chattels of minimal actual value to be left out of the consideration of the makeup of the property pool, such concessions were not made here and the evidence was seriously lacking in probity. This does little credit to those legal practitioners apparently assisting these parties in the preparation of their trial and certainly could do little to assist in any potential settlement. Given the lack of evidence and the discrepancy in the estimates of the parties I am not prepared to put any value on household contents for the purposes of this consideration and will not include them as an “item” in the property pool.
The parties are otherwise in substantial agreement as to the property pool and as to the former matrimonial home being sold. Consequently, I find the property pool for the purposes of this consideration under section 79 of the Act to comprise the following:
ASSETS
Property at Property J in Victoria (to be sold)
$1,115,000.00
Husband’s Holden (omitted) motor vehicle (RedBook valuation)
$50,000.00
Wife’s Holden Commodore motor vehicle (agreed value)
$15,500.00
Husband's Mitsubishi (omitted) motor vehicle (purchased from inheritance post-separation)
Not included
Husband’s jet ski and trailer (agreed)
$10,000.00
Husband’s tools
$6,440.00
Wife’s removal of $21,106.91 (partial property settlement)
$21,106.91
Tangible Assets
$1,218,046.91
LIABILITIES
Mortgage
$518,978.00
Hire purchase liability (husband’s Holden (omitted) motor vehicle
$61,867.00
Total liabilities
$580,045.00
Net Tangible Assets
$638,001.91
SUPERANNUATION
(omitted) Superannuation
$38,915.00
Contributions
The parties agreed, at the end of the evidence at least, that their contributions during the course of the relationship were equal, although varying in type. The wife was a student at the time of commencement of cohabitation but gave up her studies to enter the workforce. At that time the husband was an (occupation omitted) with minimal income. As the relationship developed the husband’s income became superior to the wife. Her hours of employment decreased but she assumed a greater homemaker and parenting role. I am entirely satisfied that their contributions during the relationship were equal.
The wife’s grandmother provided the parties with a loan of $40,000. This was a loan which was eventually repaid. Its significance, however, should not be underestimated. Firstly, it provided this young couple with relief from any interest payments which would have accompanied a commercial loan. Secondly, it allowed them the advantage of an earlier entry into the property market than might have been otherwise expected and in this sense is perhaps traceable to their current substantial equity in the former matrimonial home. Whilst the wife’s grandmother perhaps saw herself as assisting both of the parties, this is undoubtedly a contribution on behalf of the wife in accordance with a long line of principles commencing with Crawford & Crawford[8]:
[8] [1979] FLC 90-647
The wife has been primarily responsible for X’s care since separation. The husband pays child support, although on the balance of probabilities, I prefer that he may have reduced his income for assessment purposes by way of some creative accounting. Certainly, he does not appear to currently pay child support consistent with his own evidence as to his recent drawings and in this respect I note that he is self-employed and that his taxable income might not necessarily equate to his “real” income. However, in any event, it is a little disingenuous for the wife to mount this argument when she has not mitigated any of her claimed damages by a simple process of an objection or review application to the Child Support Agency when she might reasonably have been expected to be appraised of this option, given that she has been represented by solicitors.
The husband has had the benefit of residence in the former matrimonial home since the parties physically separated. He has, however, been meeting the mortgage repayments as struck, including both capital and interest payments, together with other outgoings on the property. Further, the husband claims some ongoing financial contributions to the benefit of the wife post-separation such as car payments and telephone payments. Whereas the wife, like the husband, was generally a good and candid witness, she was not forthcoming with her admissions in every particular of the husband’s claims in this regard. She did, however, make some concessions. The husband was not challenged in respect of his evidence of these post-separation contributions. I prefer the husband’s evidence and accept that he has made some post-separation contributions to the wife’s benefit, which mitigate to a degree any criticism of him in respect of child support payments.
I am of the view that a significant contribution in this matter is that of the wife’s grandmother, who provided an interest-free loan over a lengthy period of some 14 years. Taking into account all of the contribution issues and that the loan from the grandmother has been repaid, I propose to allocate a loading to the wife of 2.5 per cent of the net tangible assets of the parties on account of her superior contributions but with weight on the benefits from the grandmother’s loan.
Section 79(4)/Section 75(2) Considerations
The wife is the primary carer for X. The regime of orders entered into by the parties makes this an onerous imposition on the wife, at least in the short term. X is still just four years of age.
The husband pays child support but arguably is not, and has not of late, paid to his capacity or full responsibility.
The former matrimonial home will be sold pursuant to these orders and each of the parties will need to reaccommodate themselves and, in the wife’s case, provide immediate suitable accommodation facilities for X.
I am satisfied on the evidence that the husband has a far superior current income and earning capacity than does the wife. The father’s affidavit evidence was vague and, in a sense, misleading as to his actual income. Undoubtedly the husband is able to make deductions from his actual income in order to arrive at his taxable income by reason of his self-employment. The same status affords him other benefits such as telephones and petrol. This is not a criticism of the husband. He is simply taking the legal advantages available to him by reason of being self-employed.
In respect of his actual income, I prefer the husband’s own evidence given voluntarily from the witness box as to his drawings in the past two years. That evidence is of drawings of $123,000 and $162,599 respectively in those years. The husband runs a successful business. He says that he is highly regarded as a (occupation omitted). He has regularly engaged both employees and subcontractors and has been a consistent successful tenderer for work. I am satisfied that any downturn in his business is short term only and relevant to him dealing in that short term with the marriage breakdown.
The wife currently works two and a half days per week. She has no professional qualifications, having relinquished her diploma course so as to provide support to the family unit in its early days. Her earning capacity is, of course, limited by her responsibilities to X. Her employment brings her an income of approximately $36,000 gross per year and her hobby-business a further $5000.
For the reasons set out above, I have not included the father’s Mitsubishi (omitted) motor vehicle in the pool of assets and for reasons of clarity given that he purchased it with moneys from his inheritance at or soon after separation. Nevertheless, it is proper to consider under s 75(2)(o) the fact that the husband has had the resource available to him of $55,000 such has not been available to the wife and I do give this some weight when seen within the context of the parties’ relative financial circumstances and their wealth, which is predominantly in the form of equity in their home. Also in attributing weight to the relative responsibilities for X’s care and the discrepancy in earnings and earning capacity, I am satisfied that it is just and equitable and appropriate to make a further adjustment of the property pool by 17.5 per cent in favour of the wife.
Conclusion
Consequently, taking into account my findings in respect of the marriage itself, the contributions and the relevant section 75(2) factors, I am satisfied that an alteration of the net tangible assets as to 70 per cent to the wife and 30 per cent to the husband is just and equitable.
The husband has no superannuation entitlements. The wife has a superannuation entitlement of $38,915. The wife’s proposal, common both in her counsel’s final submissions and in an aide mémoire handed to the Court at the commencement of the evidence, is for a fifty-fifty division of her superannuation entitlement despite some obvious but small contributions by the wife since separation. The value of the fund is not substantial. Each of the parties is still relatively young and some years from contemplating retirement. In these circumstances, I am prepared to accede to the wife’s proposal of a split in the order of 50 per cent of value to the husband.
There remains for me to deal with the wife’s spousal maintenance application. Frankly, I am not satisfied that one was prosecuted in the form that would allow me to make the necessary findings under section 72 of the Act. However, in any event, the submission of the wife’s Counsel was that she only sought spousal maintenance if she didn’t achieve 70% of her property pool. There will be no orders for spousal maintenance.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 9 February 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Injunction
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Statutory Construction
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Jurisdiction
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