FISCHER & FISCHER
[2018] FCCA 3755
•18 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FISCHER & FISCHER | [2018] FCCA 3755 |
| Catchwords: FAMILY LAW – Property – Application for property adjustment – whether just and equitable to alter the parties interests – defined benefit superannuation entitlement. |
| Legislation: Family Law Act 1975 (Cth), ss.79, 75(2) |
| Cases cited: Stanford v Stanford [2012] HCA 52 In the Marriage of Hickey [2003] FamCA 395 |
| Applicant: | MS FISCHER |
| Respondent: | MR FISCHER |
| File Number: | MLC 2009 of 2015 |
| Judgment of: | Judge Williams |
| Hearing date: | 27 September 2018 |
| Date of Last Submission: | 16 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mort |
| Solicitors for the Applicant: | Vassis & Co. |
| The Respondent: | In Person |
ORDERS
The Application of the Wife filed 28 April 2016 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Fischer & Fischer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2009 of 2015
| MS FISCHER |
Applicant
And
| MR FISCHER |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for property adjustment pursuant to s.79 of the Family Law Act 1975 (“the Act”).
ISSUES IN DISPUTE
The issue in dispute between the parties is:
i)Is it just and equitable to alter the parties interest in property;
ii)If so, whether the remaining asset, a defined benefit superannuation entitlement in the payment phase, should be split between the parties.
BACKGROUND
The applicant wife was born on … 1956 and is aged 62. She is self-employed in the partnership with the parties’ daughter, Ms A in a business known as “Business D”.
The respondent husband was born on … 1955 and is aged 63 years. He is retired.
The parties married on … 1977 and separated on 1 January 2008. They divorced on 28 April 2015.
Between the date of the marriage and 1983 the parties lived rent-free with the wife’s parents.
In 1983 the parties purchased from the wife’s parents a property situated at Property F. The purchase price was $85,000, which was the price the wife’s parents had paid for the property in 1977. An arrangement was entered into whereby the wife’s parents lent the purchase price to the parties, subject to them paying interest of 10% per annum.
The husband and wife made loan repayments till … 1991, when the balance outstanding was approximately $84,000. The loan was then forgiven by the wife’s parents.
In … 1997 the husband received the sum of $25,000 from his mother’s estate.
Between late 1990’s and early 2000’s the wife received the sum of approximately $140,000 from her superannuation which was applied towards renovating the family home.
In 2001 the husband was forced to resign from his full time employment with Employer 1. He had also been working as a tradesman, which was contrary to his employment conditions.
In … 2001 the husband received the sum of $64,470.41 as a final payment from his employer, Employer 1.
In … 2001 the parties purchased the business B for the sum of $350,000. The balance of the purchase price was obtained by a loan of $315,000 from the National Australia Bank. The business was jointly operated by the parties until early 2008 and thereafter by the husband until December 2008.
The husband’s final employment payment was partially applied towards the deposit of the purchase of the business, Business B. The balance was applied towards other joint expenses.
In … 2003 the wife pursued proceedings in the Supreme Court. Upon leaving her employment with Employer 2, the wife made application for a disability/retirement payment from her superannuation fund, as a result of mental health problems. The trustees of the superannuation fund declined to pay a disability/retirement benefit to the wife and she appealed that decision to the Supreme Court. The wife engaged Maurice Blackburn Cashman Lawyers to act on her behalf on a no win no fee basis. The wife was unsuccessful and incurred a liability for disbursements, to her lawyers of at least $48,727.36. There is a dispute between the parties about whether:
i)husband was supportive of the proposed litigation, or did the wife single-mindedly pursue the litigation;
ii)the husband was aware that the wife’s litigation would incur the costs eventually charged by her lawyers;
iii)the liability to her solicitors was approximately $100,000.
In … 2008 the wife and the two youngest children, [X] and [Y] moved in to the wife’s parent’s apartment in Suburb G, where the wife has continued to reside.
In late 2008 the business B was voluntarily liquidated due to extreme financial difficulties.
In December 2008 the parties sold their family home and after discharging the mortgage to the National Australia Bank, the sale realised net proceeds of $350,889.
The sale proceeds were distributed so that each party received $100,000 for personal use. On 17 December 2008 the balance, $150,889, was deposited into the Suburb H branch of the Westpac bank. The husband asserts that the funds were set aside to pay creditors of the failed business.
Shortly after receiving his $100,000 in early 2009, the husband invested his money with his then employer, Employer 3.
The wife applied $60,000 of her $100,000 towards the purchase of a business in Suburb H, Business C. The business was sold in 2014 for $64,000 and the proceeds of sale were invested in her current business, Business C, which she operates with the parties’ daughter, Ms A. The balance of the $100,000 was spent on general living expenses.
On 3 June 2009 sum of $40,000 was paid to School 1, the school the boys had attended, to reduce outstanding school fees.
The husband asserts that the balance of the funds in the Westpac account were dispersed by the wife for her personal purposes and not primarily to pay outstanding business creditors. The wife asserts that she reduced an outstanding joint credit card from her own income and that she solely paid the girls’ school fees. The balance of the Westpac account was expended to enable her to support the family, in the absence of child support payments from the husband. A spreadsheet of her expenditure is annexure GF 2 to her affidavit of 10 July 2018.
Subsequent to separation the wife asserts that she paid the following outstanding creditors, from both the Westpac account and her own funds:
i)Finance Company;
ii)Bank credit card.
The wife’s evidence is that in July 2010 there was a series of text messages between the parties about the husband’s superannuation entitlements. A hand written transcript of these text messages is annexure F 3 to the wife’s affidavit of 10 July 2018. The wife did not produce the original text messages.
In … 2010 the husband received a lump sum of $193,000 from his superannuation fund, and also invested this sum with his then employer, Employer 3. The wife submits that the investment of these funds constitutes wastage. The husband’s superannuation pension payments commenced around this time.
On 20 February 2015 the husband forwarded a letter to the wife proposing a joint divorce. He did not receive a response from the wife.
On 6 March 2015 the husband filed a divorce application. A divorce order was made on 28 April 2015.
On 7 September 2015 the wife’s solicitor forwarded a letter to the husband, (annexure 5 to the husband’s affidavit of 26 September 2018) which was responded to on 20 October 2015. (Annexure 6 to the husband’s affidavit of 26 September 2018).
On 28 April 2016 the wife filed an application for property settlement.
Proposals of the Parties
WIFE
The wife’s proposals are set out in her Initiating Application and the Final Written Submissions of her counsel. They are as follows:
a)There be a superannuation spitting order of the husband’s superannuation entitlements in favour of the wife to equate to a 50% share of the husband’s current benefits.
HUSBAND
The husband’s proposals are set out in paragraph 17 of his affidavit sworn 26 September 2018, as follows:
a)the wife’s claim be dismissed;
b)there be no order as to costs.
DOCUMENTS RELIED UPON BY THE PARTIES
Wife
The wife relied upon the following documents:
i)Initiating Application filed 28 April 2016;
ii)Financial Statement filed 10 July 2018;
iii)The wife’s affidavit filed 10 July 2018;
iv)Affidavit of Ms B filed 19 July 2018 (superannuation valuation);
v)Outline of Case document filed 20 July 2018.
Husband
The husband relied on the following documents :
i)Affidavits filed 26 September 2018, 17 July 2018, 6 July 2018, 20 February 2017, 12 December 2016, 25 August 2016;
ii)Financial Statements filed 20 February 2017 and 11 July 2016;
iii)Affidavit of Mr C (psychologist) filed 26 September 2018.
EVIDENCE
The standard of proof in this case is the balance of probabilities (s.140 of the Evidence Act1995 (Cth)).
Section 140 of the Evidence Act provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
The wife and the husband relied upon their respective affidavits and exhibits tendered on their behalf. The affidavits recounted the history of the parties’ marriage and the dispute pertaining to property.
I do not intend to recite the evidence of all parties at trial. However, all of that evidence, together with the affidavits of the parties relied upon, the exhibits tendered and submissions made by Counsel for the wife and the husband, has been considered and taken into account.
In Bell & Nahos [2016] FamCAFC 244, Strickland J addressed the obligations of a trial judge in that regard as follows (at [28]-[29]):
[28] Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
[29] I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.
The wife
The wife gave evidence and was cross-examined by the husband.
Except for her evidence about Business C, she seemed generally truthful, although at times she was not a particularly accurate historian. I accept many of the dates and times would be difficult to recall, as events occurred many years ago, and in the context of difficult financial and emotional circumstances for the parties.
She was however, evasive about the financial situation of Business C, the extent of her interest in the business and the income she derives from it. Her evidence tended to minimise her involvement, remuneration and the fact that the two proprietors of business had sufficient confidence in its future expansion to relocate the premises and pay substantially more rent.
Her counsel also called Mr D, from School 1, about the issue of the payment of $40,000 to School 1 from the Westpac account in June 2009. That issue is referred to later in these reasons.
Mr D was a truthful and credible witness.
The husband
The husband gave evidence and was cross-examined by counsel for the wife.
The husband presented as generally a witness of truth. He also was not a particularly accurate historian of past events. I also accept that many of the dates and times would be difficult for him to recall, as events occurred many years ago in the context of difficult financial and emotional circumstances. He was emotional and at times visibly distressed.
He was, however, evasive in his responses about the text messages the wife allegedly forwarded to him in July/August 2010 about accessing his superannuation entitlements.
Mr C, the husband’s psychologist was not required for cross-examination. I accept the contents of Mr C’s report which is annexure 1 to his affidavit of 26 September 2018, as unchallenged evidence about the husband’s fragile mental health.
RELEVANT LEGISLATION
Property proceedings between parties to the marriage are governed by the provisions of s.79 of the Family Law Act1975.
Section 79 (1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79 (2) provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s.79 (4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
That section provides as follows:
Section 79(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
Section 79(4) (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
Section 79(4) (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
Section 79(4) (e) the matters referred to in subsection 75(2) so far as they are relevant; and
Section 79(4) (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
Section 79(4) (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Prior to the decision of the High Court in Stanford v Stanford [2012] HCA 52 the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003] FamCA 395.
The approach, as set out in Hickey (supra) may be summarised as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s.75(2) of the Act. Fourthly the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court noted that s.79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties’ interests in property, the court must determine whether it is just and equitable to make any property orders, or to alter the party’s interests in property.
At Paragraph [36] of Stanford , the High Court said:
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 [21]. It is not possible to chart its metes and bounds.
In Bevan & Bevan [2013] FamCAFC 116 the Full Court considered which matters might be taken into account in determining whether it is just and equitable to alter existing property interests.
At paragraphs [84] and [85], Bryant CJ and Thackray J said:
[84] Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection (emphasis added).
[85] This requirement to consider the s 79(4) matters in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
In Bevan (supra) Finn J stated at paragraph 169:
[169] Findings of fact concerning the parties’ financial history (i.e. their contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.
The Full Court in Chancellor & McCoy [2016] FamCAFC 256 said at paragraph [42]:
[42] In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan and Chapman, namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 (Cth) (“the Act”) when determining whether it is “just and equitable” to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters.
The High Court stated in Stanford at [37]:
[37] First, it is necessary to begin consideration of whether it is just and equitable to make 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……. The question posed by s.79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.”
At paragraph [40] of Stanford (supra), the High Court stressed that the question of whether it is just and equitable to make property settlement orders should not be answered by starting with an assumption:
[40] … 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 a marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s79 (4). The power to make a property settlement order must be exercised. “In accordance with legal principles, including the principles which the act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79 (4) without a separate consideration of s79 (2), B to conflate the statutory requirements and ignore the principles laid down by the act.
The High Court further stated at [42] that in most cases:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.
This is not such a case. In this matter, the parties have separated and, the wife seeks orders adjusting their respective property interest, so that an order is made splitting the pension entitlements. However, the husband seeks orders that there be no adjustment of the parties interests in the one remaining asset, a pension in the payment phase.
The orders which the husband seeks are premised on the fact that it would not be just and equitable to make an adjustment of the parties’ property. He refers to Stamford (sic) at paragraph 17 of his affidavit sworn 26 September 2018.
Is it just and equitable to make any order?
I will now consider whether it is just and equitable to make an order adjusting property in this particular case. In order to do so, I am required to adopt the pathway set out in the relevant authorities and to embark on a separate but very careful deliberation. As previously referred to, Stanford requires the first step of that inquiry to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The parties existing interests in property
The agreed assets are as follows:
| No. | Asset | Valuation | Party |
| 1. | Employer 1 – Defined benefit pension in the payment phase | $1,718.13 Nett per fortnight | Husband |
The wife’s additional assets, according to her evidence are as follows:
| No. | Asset | Valuation | Party |
| 2. | Business | $10,000 (Applicant’s valuation) | Wife |
| 3. | Piano/furniture/jewellery | $3,000 | Wife |
The husband’s additional assets according to his evidence are as follows:
| Asset | Valuation | Party | |
| 4. | Car | $3,000 | Husband |
| 5. | Household, wine and other items | $3,000 | Husband |
During the trial neither party sought to bring into account their respective nominal assets nor any personal liability. The trial proceeded on the basis that the husband’s Employer 1 pension was the only substantial asset the subject of the litigation.
The wife filed an affidavit of Ms B sworn 19 July 2018, which purported to value the husband’s superannuation entitlements as a lump sum. That amount was included in the wife’s asset pool in her Outline of Case document as an asset of $828,030. Most appropriately, counsel for the wife conceded that there was no possibility of commuting the pension to a lump sum and submitted that I should consider the pension in the payment phase. I adopt that submission.
Factors relevant to exercise of discretion as to just and equitable
The matters I consider relevant, in addition to consideration of the factors in s.79(4), to determine whether it is just and equitable to make an order adjusting property in this case are as follows:
i)the length of separation;
ii)the financial autonomy and independence of each of the parties post separation;
iii)the control and disposition of the funds in the Westpac account;
iv)the respective living circumstances of each party post separation;
v)the wife’s expectation of an inheritance from her elderly parents;
vi)the nature of the remaining asset for distribution; and
vii)whether the husband’s investment of the lump sum superannuation in Employer 3 should be characterised as waste.
I will now consider in more detail each of the factors referred to in the preceding paragraph.
Length of Separation
The husband and the wife separated in January 2008, when the wife and the two younger children left the former family home.
The proceedings were issued by the wife on 28 April 2016, the 365th day after the husband obtained a divorce on 28 April 2015. At the date of the filing of the wife’s application for property settlement, the parties had been separated for over eight years and had pursued completely separate lives. As at the date of trial, the parties had been separated for over 10 ½ years.
There was no explanation by the wife of the delay in issuing the proceedings.
The financial autonomy and independence of each of the parties post separation
The settlement of the sale of the former family home occurred in December 2008. The net proceeds of the sale were $350,889. The parties agreed to a division of the proceeds of sale as follows:
i)$100,000 to the wife;
ii)$100,000 to the husband; and
iii)$150,889 was deposited by them into a joint bank account at the Westpac Bank, Suburb H Branch.
It is apparent that each party applied the $100,000 autonomously of the other prior to the issue of the proceedings. There was no evidence that :
i)enquiries were made by either party of the other, about the proposed application of the funds;
ii)either party required the other to account for the disposition of those funds.
None of the wife’s affidavits address the disposition of the $100,000 by the wife, except her evidence that she deposited the funds into her parent’s term deposit account. It was only in response to questioning by me, that the wife stated she had applied a portion of her $100,000 towards the purchase of a business in Suburb H, Business C.
Her oral evidence was:
i)In 2009 she had paid $60,000 for a rundown business in Suburb H, which she subsequently transformed into Business C;
ii)The wife and the parties daughter Ms A, continue to operate Business C until December 2014, when it was sold for $64,000;
iii)The wife and Ms A then established Business D in Suburb J, which they continue to operate and expand;
iv)The sale proceeds of the Suburb H business were applied to the set up costs of the Suburb J business.
The wife applied her funds, and made financial decisions, as she considered appropriate, without any recourse whatsoever to the husband, during the 10 ½ years post separation.
Similarly, the husband paid his $100,000 to Employer 3, where he was employed at the time, without recourse or reference to the wife.
There was no evidence that either party had any financial connection or relationship with the other, except the Westpac account, subsequent to the settlement of the sale of the former family home in December 2008. Both the husband and wife earned income post separation, and applied it to their own benefit, without any recourse to the other.
The control and disposition of the funds in the Westpac account
In relation to the funds in the Westpac account, the husband’s evidence was that the funds were to be primarily applied to payment of creditors of the failed business, Business B.
Annexure B to the husband’s affidavit of 12 December 2016 is a copy of the relevant bank statements.
Annexure F 2 to the wife’s trial affidavit is a spreadsheet prepared by the wife of her use of the account.
The wife’s evidence was that she had applied the funds to some outstanding creditors but primarily towards living costs of herself and the two younger children who remained with her post separation. The husband did not pay child support during that time.
There was considerable confusion during the trial about whether the husband had paid $40,000 from the Westpac account, to School 1 for outstanding school fees.
The wife asserted that in June 2009 the husband had paid the sum of $40,000 to School 1, in reduction of the boy’s outstanding school fees.
The husband was unable to recall the payment, and relied on a letter and running balance from School 1 which is annexure 1, to his affidavit of 17 July 2018. That letter states that the school wrote off $89,385.87 due to the family financial situation and bankruptcy proceedings.
Mr D, administrator of school fees at School 1, gave oral evidence on the second day of the trial. His evidence was that he had found a file note from the previous finance manager, Mr E, which stated that the husband had attended School 1 on 3 June 2009 and had handed over a cheque for $40,000. The balance of the outstanding fees were then written off by the school.
Subsequent to Mr D’s evidence, it was established that the Westpac bank account statements annexed to the husband’s affidavit demonstrate that a cheque for $40,000 was drawn on 3 June 2009.
It was then apparent that the balance remaining in the Westpac account, which was dispersed by the wife, was reduced by the payment to School 1.
Apart from one occasion in March/June 2009, referred to in paragraph 22 of the wife’s trial affidavit, there was no evidence that there had been any requests by the husband in the intervening years for the wife to account to him for her expenditure and application of the funds in the Westpac account. The funds were expended at her discretion.
The spreadsheet of the wife’s expenditure of the funds in the Westpac account between 18 March 2009 and 27 August 2009, demonstrate that $99,362.46 was spent in that five month period. I accept that there were amounts paid for the children, and in particular on 18 March 2009 $32,258.80 was paid to School 2, the girl’s private school. However, an examination of the expenditure and the wife’s commentary, make it clear that she did apply some of the funds for her personal use.
I consider that the evidence does not enable me to make findings as to the apportionment of personal and joint expenditure. I am able to conclude that some of the funds were spent for the wife’s personal use.
The respective living circumstances of each party post separation
Subsequent to separation in January 2008 the wife and the children in her care commenced living with her parents in their two-bedroom apartment in Suburb G.
The wife and the two younger children, who were then 16 and 14, shared the second bedroom of the wife’s parent’s apartment. The wife has remained living in that apartment.
There was no evidence that the wife has been required to contribute rent or any outgoings towards her accommodation, nor that she will be required to do so in the future. Paragraphs 32 to 34 of her affidavit refers to her current living circumstances and the age and health of her parents. The wife is an only child and her evidence is that she will need to care for her parents in the future.
She did not provide any detailed evidence in her affidavit of her future commitments. In response to questioning by me her evidence was :
i)her 90 year old father has Alzheimer’s and an autoimmune nervous system disease;
ii)her father had been placed in respite care when her mother recently had a knee operation;
iii)he spent five weeks in respite care and rapidly deteriorated;
iv)he was currently in the Hospital and she was trying to arrange admittance for him at a facility in Suburb K;
v)the estimated costs for his future care would be 80% of his pension;
vi)the remaining 20% of his pension would have to be spent on clothing and other personal needs;
vii)her mother’s pension would reduce by half upon her father being placed in care;
viii)her mother is 85 years old and suffers from osteoarthritis and leukaemia;
ix)her health is not good;
x)if her mother was placed into care, she would be looking at a similar facility, subject to a possible fee increase according to the valuation of her asset;
xi)she had not made any inquiries because her mother was still at home;
xii)if she continued to live in the unit she would have to pay rent and that could affect the amount to be contributed to her mother’s care.
Following the settlement of the sale of the former family home in December 2008, the husband has rented premises.
He currently rents a three-bedroom apartment in Suburb L, where he has lived for just over two years. Paragraph 4 of his affidavit of 26 September 2018 refers to the modest size of the unit and the fact that the parties’ son, [Y], who is a student, lives with his father. The husband’s monthly rental is $2,130 which is equivalent to a weekly rental of $492.00. He also deposes that two-bedroom units in the area are of similar rental cost. He was unable to raise the rental bond and first months’ rent of $4260, and is indebted to a friend, Mr F, who advanced the funds to him.
The accommodation which the wife currently enjoys and has done so during the past 10 ½ years since separation, is an enormous financial benefit to her, when compared with the rent the husband has had to pay post separation.
After having considered the wife’s evidence, I am satisfied, that whatever the situation of her elderly parents, the wife will be in a far superior situation than the husband in terms of her accommodation.
The wife’s expectation of an inheritance from her elderly parents
It was agreed that the wife is the only surviving child of her parents. There was no evidence to suggest that there would be beneficiaries of the estate of her parents, other than the wife. At paragraph 13 of her trial affidavit, the wife deposes that her parent’s decision in July 1991 to forgive the debt owed to them, was based on the fact that the wife was their only heir.
In relation to her expectation of an inheritance, in the matter of De Angelis & De Angelis [1999] FamCA 1609 ((1999) 30 Fam LR 304), the Full Court said at paragraph 95, as follows:
[95] The discussion by the Full Court in White and Tulloch v White (1995) 127 FLR 105 ; 19 Fam LR 696 ; (1995) FLC 92–640 of this question of the treatment of anticipated inheritances in property settlement proceedings indicates that there is no absolute rule and that each case will depend on its own facts. However, we think it important to remember that the court is required in exercising the jurisdiction under s 79 of the Family Law Act 1975 to accord justice and equity to both parties. The question therefore has to be asked whether, in the present case, it would be just and equitable to the husband for the court to have ignored the probability that, in what could well be very short period of time (given the ages of her aunt and mother), the wife could well be the owner of two properties having a combined value of almost the same amount as the value of the parties’ property currently available for distribution, and particularly in circumstances where the husband had been found to have done substantial improvement and maintenance work on both properties?
There was a dispute about the value of the wife’s parent’s apartment. The husband asserted that the property was worth $700,000. Annexure 15 to his affidavit of 26 September 2018 are various two-bedroom apartments for sale in Suburb G. That evidence was properly objected to by counsel for the wife.
The wife, in her oral evidence estimated that the property was worth approximately $450,000.
I am unable to make any finding as to the value of the property, in the absence of independent evidence.
However, even if I accept the wife’s estimate of the value of the property, the evidence enables me to conclude that the wife has an expectation of an inheritance from her parents of substantial value. That is likely to occur in the foreseeable future.
That will be either the apartment in Suburb G, or if the property is sold, the whole or a substantial portion of the proceeds of sale.
The nature of the remaining asset for distribution
Unfortunately for the husband and the wife they have very little to show for many years of hard work and support of their five children.
The wife obtained a valuation of the husband’s superannuation entitlements of $805,920.01. That valuation is annexure 2 to the affidavit of Ms B.
The valuation purports to be in accordance with the Family LawSuperannuation Regulations2001 as at 5 June 2018.
There is no evidence that the superannuation entitlements, which are in the payment phase of a pension, are able to be commuted to a lump sum.
Sensibly, counsel for the wife conceded that the only appropriate way to deal with the pension in the payment phase was for the wife to seek a split of the pension payments which are currently made to the husband.
The current nett pension paid to the husband is $1718.13 per fortnight, which is equivalent to $859.06 per week. That is the extent of the assets available for distribution.
Whether the husband’s investment of his lump sum superannuation of $193,000, in Employer 3 should be characterised as waste
The wife’s evidence was that in July/August 2010, she sent a series of text messages to the husband enquiring about sharing his superannuation entitlements. A handwritten transcript of those text messages is annexure F 3 of the wife’s trial affidavit. The wife did not produce the original text messages, nor did she provide any explanation why she had not done so.
Counsel for the wife cross-examined the husband comprehensively about the text messages. The husband was steadfast in his denial of having received any of the text messages, and maintained that the wife had concocted the messages. He did not cross-examine the wife about the text messages.
During cross-examination, when asked why he did not advise the wife of the forthcoming superannuation payments, nor consult her about the proposed investment, his response was that it was not on his mind at the time.
I accept that the husband did not notify the wife of the forthcoming superannuation benefits and that it would have been appropriate to have at least notified her. However, there is no evidence that the wife took any action, including legal proceedings until April 2016, some five and a half years later. As I have previously remarked, that is consistent with the conduct of the parties at the time, in so far as neither of them seemed to consult the other about their respective financial matters.
In late 2010, following the payment to the husband of his lump sum superannuation entitlements, of $193,000, the husband invested these funds, with his then employer, Employer 3. The sum was invested in different amounts, progressively between August 2010 and February 2011.
The husband had previously invested the sum of $100,000, which he received from the sale of the former family home in January 2009, with Employer 3.
Paragraph 2 (viii) of the husband’s affidavit sworn 17 July 2018 and Paragraph 12 of the husband’s affidavit sworn 26 September 2018 and his evidence whilst being cross-examined, refer to the circumstances of his investment in Employer 3.
His evidence may be summarised as follows:
i)At the time of the investments he was working at Employer 3, albeit a short period prior to the first investment;
ii)He worked there between … 2008 and either 2012 or 2013;
iii)The company was involved in [details of employer];
iv)The company had signed long-term contracts with [clients]. Annexure 8 to the husband’s affidavit of 26 September 2018 is a signed copy of Licenses and Services Agreement between Employer 3 and Company A Ltd;
v)He thought there was a multimillion dollar re-occurring revenue stream arising from the contracts;
vi)He was responsible for the billing for the company on its database and could see the cash flow coming in;
vii)Whilst he was working at the business he could see what was happening, including having access to financial statements of the business;
viii)The company had appointed Company B, a not-for-profit organisation set up by Company A throughout Australia, to market [description of company];
ix)Company B had instigated several trials overseas, including [clients in country];
x)He was of the view the company had a bright future;
xi)In the context of his state of mind at the time, he considered he was doing appropriate due diligence and doing the right thing at that time;
xii)His objective was to get back on his feet financially and he perceived this as a way to achieve that goal and perhaps save his marriage.
Baker J in Kowaliw & Kowaliw [1981] FamCA 70 sets out the principals to be applied in determining wastage, in the context of apportionment of losses between parties.
At [10], Baker J stated:
[10] As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of the marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally), except in the following circumstances;
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with the matrimonial assets, the overall effect of which has reduced or minimised the value.
[11] Conduct of a kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec.75(2)(o) to applications, the settlement of property instituted under the provisions of sec.79.
With the benefit of hindsight the husband’s optimism was not well-founded. The company was eventually wound up and there is no prospect of recovery of the amounts invested.
The husband’s oral evidence under cross-examination was that Mr G, was currently in a remand facility, facing charges of [details of charges].
Counsel for the wife, in his final written submissions, submitted that the husband’s actions prevented the wife from any opportunity to invest the money or use the money to purchase another property; his unilateral use of funds diminished the asset pool for the distribution.
Whilst I agree that the husband’s investment in Employer 3 diminished, the asset pool, the wife, apart from the text messages which she asserts were sent to the husband in July/August 2010, did not take any steps until 7 September 2015, almost 5 years later to assert or protect any claim she may have had to the husband’s superannuation entitlements.
On 7 September 2015 a letter was forwarded to the husband by her solicitors and that letter is annexure 5 to the husband’s affidavit of 26 September 2018. It was not until 28 April 2016, that she chose to file an application seeking a share of the husband’s superannuation pension entitlements. Her actions are consistent with the financial autonomy of the parties post separation.
I am of the view that the husband’s investment in Employer 3 whilst imprudent, cannot be construed as either:
i)embarking on a course of conduct designed to reduce the asset pool; or
ii)acting recklessly, negligently or wantonly.
Counsel for the wife, in his final submissions asserts that the husband wasted $293,000 by virtue of his investment in Employer 3. Whilst it is true that the husband invested that amount in Employer 3, I consider that the husband’s initial investment of $100,000 was akin to the wife’s investment and disposition of her $100,000. It must also be seen in the context of the financial autonomy of the parties post separation.
The wife’s own evidence is that her business is valued at $10,000, despite her having invested upwards of $60,000 to initially purchase the Suburb H business.
Consideration of section 79 (4) (a) (b) and (c) factors
I will now consider the contributions of the parties by reference to the assets of each party at the commencement of cohabitation, the financial and non-financial contribution of the parties during the relationship and the contributions of each party post separation. I will also consider s.79(4)(d) and relevant s.75(2) factors, as I am required by s.79(4)(e) of the act.
Initial Contributions
The asset and liability position of the parties at the commencement of the relationship was not controversial. Neither party had much in way of assets or liabilities.
Contributions during the relationship
Section 79(4)(a) financial contributions
The parties lived rent-free in a property owned by the wife’s parents situated at Property F from 1977 to 1983.
In 1983 husband and the wife purchased the Property F property from the wife’s parents for the sum of $85,000, which was the acquisition price of the property in 1977.
Loan payments to the wife’s parents were paid by the parties until … 1991, when the principal debt outstanding was $84,000. The wife’s parents forgave the debt.
In … 1997 the husband received an inheritance from his mother’s estate of $25,000.
Between 1990 and 2004 the wife received her superannuation entitlements from Employer 2 of approximately $140,000. Her initial evidence was that she received $160,000, however her oral evidence was that she received $140,000. The wife was unable to recall the exact date on which the funds were received, which is not surprising given the length of time which has elapsed.
Both parties agreed that the superannuation monies were applied towards renovations of the family home.
The husband was employed by Employer 1 on a full-time basis, until 2001 when he was forced to retire from his employment due to a breach of his employment terms and conditions. That breach arose because he operated a business to supplement his income.
The wife worked with Employer 2 until she ceased that employment due to mental health problems. Thereafter, she commenced litigation against the trustee of the Employer 2 superannuation fund.
There was no dispute that the parties contributed their income to the joint benefit of the family including paying private school fees for their five children.
In … 2001 the husband received resignation benefits from Employer 1 of $64,470.41.
In … 2001 the parties purchased a business, Business B, for the sum of $350,000. The deposit for the purchase of the business was funded by the husband’s resignation benefits from Employer 1, and the balance was funded by a mortgage from the National Australia Bank, which was secured against the family home.
Section 79(4)(b) non-financial contributions
The wife asserts that during the relationship she undertook the role of primary caregiver to the five children and homemaker responsibilities.
There was little contentious evidence about the respective roles of the parties during the relationship. I accept that each party contributed to the domestic requirements of a busy household with five children, to the best of their ability, subject to work commitments.
Contributions post separation
Section 79(4)(a) financial contributions
Subsequent to separation, the wife ceased working at Business B in early 2008. The husband continued to operate Business B until it was placed into voluntary liquidation in December 2008. The administrator of the business employed the wife for a month or so to assist with the business accounts.
Both parties were understandably stressed and upset about the failure of their business.
The wife had the benefit of the parties remaining funds in the Westpac account of approximately $110,000. She applied the funds as she saw fit for:
i)Payment of some business debts;
ii)Payment of expenses for the two children in her care and her personal expenses.
The expenditure of the funds in the Westpac account is referred to at paragraphs 86 – 98 hereof.
The wife’s evidence is that post separation she contributed to paying out joint debts arising from Business B, with her own funds. Specifically she asserts:
i)Discharge of Finance company debt;
ii)Payment of Bank credit card.
The wife’s evidence was that she was effectively “owed” $12,417, because she had personally expended that amount on joint items. The husband disagreed with that proposition, whilst being cross-examined by counsel for the wife, although he did not cross-examine the wife about the individual expenditure claimed by her. He commented that it was interesting that the wife had recently produced the spreadsheet of expenditure, although she was unable to remember what happened in Business C last week.
Section 79(4)(b) non-financial contributions
Following separation, the two younger children, [X] and [Y] aged 14 and 16 respectively live with the wife in her parents’ home at Suburb G. Apart from some of the funds in the Westpac bank, the wife was solely responsible for the financial costs of the children as the husband did not pay child support.
Subsequent to the sale of the family home, two of the three older children remained living with the husband, there was no evidence about their age at the time nor the financial costs of providing for their support.
There was little evidence about the husband’s work capacity immediately following the demise of Business B. I am unable to make any findings as to whether or not the husband had the capacity to contribute towards the support of the two younger children.
[Y] now lives with his father in his unit in Suburb L and is a student. The husband provides accommodation for [Y].
Section 79(4)(c), (d), (e), (f) and (g) and Relevant Section 75(2) Factors
Section 79(4)(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage including any contributions made in the capacity of homemaker or parent
I refer to my comments at paragraph 151 – 152 hereof.
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage
The husband has no earning capacity, as he is retired and has mental health issues. In that regard, I rely on the evidence of the husband’s psychologist, Mr C. The orders which I propose to make do not have any effect upon the wife’s earning capacity.
Section 79(4)(e) the matters referred to in subsection 75 (2) so far as they are relevant
Relevant Section 75(2) Factors
(a) the age and state of health of each of the parties
The wife is aged 62 years and is in good health.
The husband is aged 63 years has retired from the workforce. He suffers from mental health issues.
The husband relies on the evidence of his consultant psychologist, Mr C, as to his mental health. Mr C swore an affidavit on 26 September 2018. Annexure 1 to that affidavit is a report dated 25 September 2018. Mr C was not cross-examined.
Mr C’s report may be summarised as follows:
i)The husband was referred to him by Dr H on 7 April 2016 because of anxiety and depression;
ii)The husband attended six appointments between 23 June 2016 and 17 August 2016;
iii)The husband attended seven appointments between 15 September 2016 and 24 September 2018;
iv)Although he did show improvement, his general state of mental health appears to remain extremely fragile and has worsened with the legal process;
v)He has now developed serious symptoms of self-harm and suicidal ideation.
I accept Dr C’s unchallenged evidence about the husband’s mental health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
The wife and the parties’ daughter, Ms A are the proprietors of a business known as Business D in Suburb J.
I refer to paragraphs 82 hereof in relation to the establishment of the Suburb J business.
The wife was keen to emphasise that the business was operated through her daughter’s ABN, although it is clear that the wife contributed substantial amounts of capital to the business. There was no explanation why the business was operated through Ms A’s ABN. The wife did concede in her oral evidence ‘It’s our asset’.
The wife’s trial affidavit did not address in any detail her interest in the business. She was cross-examined by the husband about the ABN and ownership of the business. Additionally, in response to my questioning her evidence was as follows:
i)She earns approximately $400 per week from the business;
ii)Despite her being responsible for the books at Business D, she was unable to say what the weekly revenue of the business was;
iii)She was not up to date with the books because the business was growing and they were also trying to move businesses;
iv)Most weeks she was at the premises six to seven days;
v)She is mainly responsible for the computer side of the business, but helps out with [other duties];
vi)She was initially unable to provide an estimate of the weekly turnover of the business, until pressed, and then conceded it was probably $7000 a week;
vii)The business turnover was expanding and the business was moving from its existing premises to a shop next door, which would be renovated;
viii)The current rent of the premises was $36,000 per annum and the rent of the new premises would be $52,000 per annum;
ix)Despite the expansion of the business, including a substantial increase in the rent to be paid, she and Ms A were struggling to pay themselves;
x)Although the business is expanding, she does not anticipate receiving additional income;
xi)She was unable to recall any details about the most recent BAS statement, including the business turnover, although she was responsible for its preparation;
xii)When pressed, she recalled that the most recent BAS payment was around $8000, but could not recall the income in the BAS statement;
xiii)Was unable to provide a satisfactory explanation why a struggling business would decide to pay $16,000 a year more in rent and upgrade premises.
The wife had not disclosed any recent financial information about the business prior to her evidence during the course of the proceedings. After the lunch break, she provided limited financial information which was tendered by her counsel as follows:
i)Her personal tax return for the financial years ended 30 June 2013, 30 June 2014 and one page of her tax return for the financial year ending 30 June 2017;
ii)A draft profit and loss statement for Business D from 1 August 2018 to 31 August 2018;
iii)BAS activity statements for the last quarter of 2017 and the first and second quarters of 2018.
After considering the wife’s evidence, I find that the wife has:
i)The capacity to engage in future employment to enable her to financially support itself;
ii)Minimised her actual income from the business;
iii)The capacity to increase her income as the business continues to grow and expand.
The husband’s income is the superannuation pension of $ 1,718.13 per fortnight nett. After considering the evidence I find:
i)It is unlikely that he will be able to work and earn an income in the future;
ii)Subject to continuing receipt of his superannuation pension, he has the capacity to financially support himself.
d) Commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
The wife filed a Financial Statement on 10 July 2018. Part B paragraph 2 A discloses that the wife estimates her income at $400 per week and her personal expenditure at $485 per week. She does not particularise her personal expenditure other than those items listed in part G. At paragraph 32 she estimates the total of all other expenditure is $375 per week. There is no explanation how she funds the deficit of expenditure of $85 per week.
The husband filed a Financial Statement on 11 July 2016. He also filed an affidavit on 6 July 2016. That affidavit, at paragraph 8 states his fortnightly oncome as $1,718.13 nett. Paragraph 10 sets out the husband’s fortnightly expenses as follows:
i)Rent $1,065.00
ii)Electricity $65.00
iii)Gas $40.00
iv)Water $10.00
v)Food $200.00
vi)Clothing and miscellaneous $500.00
After paying his rent, the husband’s weekly income is $326.56.
(e) the responsibilities of either party to support any other person; and
There was no evidence that either party was responsible to support another party.
However, the parties’ adult son, [Y], aged 27, who is a student, lives with the husband and does not contribute to rent. There is no legal obligation for the husband to support [Y].
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
There was no evidence about the wife’s eligibility for a government pension allowance or benefit, nor the quantum of any such benefit.
During cross-examination of the husband, counsel for the wife put it to him that he may be eligible for a disability pension or rent assistance.
His response was that he was not sure what he could apply for at that time.
In the Final Written Submissions of the wife, counsel for the wife referred to the possibility of the husband obtaining such benefits. However, there was no evidence upon which I could make a finding about pension eligibility or quantum.
(g) Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
Both the wife and the husband have modest incomes and live frugally.
They have both experienced significant financial disappointment and distress, which culminated in the breakdown of their marriage. It is a very sad series of events.
Post separation the wife has had the significant benefit of a home, which has been provided by her parents, albeit less than satisfactory from her perspective.
The husband has had the benefit of the superannuation pension, which is relatively modest.
The wife proposes that the superannuation pension of $859.00 per week be divided equally between them. This would result in the wife having income of $829.50 per week and the husband having income of $429.50 per week. The wife also has the benefit of no accommodation expenses.
I consider that if I acceded to the wife’s application, the husband would not enjoy a standard of living that in all the circumstances is reasonable. Even if he were to obtain cheaper accommodation, if such accommodation were available, the balance of funds available to him would not enable him to meet his basic needs.
The orders which I intend to make will result in the husband being able to accommodate himself and provide for his basic needs.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
I am satisfied that the orders I intend to make under s.79 enable both parties to adequately maintain themselves.
Section 75(2)(o)
I have considered the husband’s investment in Employer 3 earlier in these reasons. I have no doubt that had the investment been successful, the wife would have claimed what she perceived to be her entitlement.
The husband alleges that the wife’s litigation in relation to an invalidity claim against her former employer, Employer 2 was wastage, and that the couple was required to borrow additional funds of around $100,000 to meet the costs of the ill-fated litigation.
Both parties agree that Maurice Blackburn Cashman lawyers rendered a disbursement account of $48,727.36 which was paid by them by obtaining a loan. However, the husband asserts that the total amount of fees rendered by that firm was approximately $100,000. He relies on annexure 8 to his affidavit of 26 September 2018, which is a letter from Maurice Blackburn dated 21 November 2006.
The husband also asserts that the wife was fervent in her desire to proceed with the litigation and could not be discouraged from proceeding. The outcome of the Supreme Court litigation was that the matter was remitted to the relevant superannuation trustee for determination. No actual benefit was derived from the litigation as the wife received her accrued benefits and not the disability benefit she had hoped to secure.
There is insufficient evidence to enable me to make a finding about:
i)The actual costs incurred to Maurice Blackburn Cashman;
ii)The imprudence or otherwise of embarking upon the litigation.
I am not of a view that the wife’s actions should be considered as wastage. I have no doubt that both parties intended, that had she been successful, the family would have shared in the fruits of that litigation.
I intend to take into consideration, pursuant to s.75(2)(o) the following:
i)The husband’s investment of $193,000 in Employer 3;
ii)The costs incurred in the wife’s superannuation litigation.
Section 75(2)(c), (d)(ii), (h), (ha), (j), (k), (l), (m), (n)(ii), (naa), (na), (p) and (q)
These considerations are not relevant to this dispute.
Section 79(4)(f) any other order made under this act affecting a party to the marriage or a child of the marriage and;
There are no other orders.
Section 79(4)(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide or might be liable to provide in the future for a child of the marriage
All five children of the marriage are over the age of 18 and there is no obligation for either party to pay child support. I have previously referred to the lack of payment of child support subsequent to separation.
Conclusion as to exercise of discretion
Despite the significant and varied contributions of the wife and her parents, particularly in the early years of the marriage, both parties otherwise contributed to the best of their ability, during the marriage.
Each party contributed lump sums from their employment, which was principally undertaken during the marriage. The wife contributed her accrued superannuation from her employment with Employer 2 and the husband contributed his resignation payment from Employer 1.
Both assert that the other has wasted assets. The wife asserts that the husband’s investment in Employer 3 was wastage and the husband asserts that the costs incurred in the wife’s pursuit of litigation against the trustee of the Employer 2 superannuation fund was wastage.
After having considered the evidence, I have found that neither constitutes wastage, albeit, with hindsight, the expenditure of both amounts seems imprudent.
The events subsequent to separation can only be viewed as a financial catastrophe for the parties. The diminished proceeds of sale of the family home due to the global financial crisis significantly and adversely affected both parties. Despite such adversity, it is a credit to them that they managed to educate their children to the highest possible standards.
A significant and compelling issue is the respective future needs and circumstances of the parties, and their capacity to support themselves in a modest and frugal fashion.
The wife’s expectation of an inheritance from her elderly and frail parents cannot be ignored, when considering the financial reality of the orders sought by her. The expectation of the inheritance is of immense benefit to the wife, as is her current rent free accommodation.
Likewise, the wife has the benefit of an interest in a business, which, on her own evidence, is growing and expanding. The husband has no such opportunities available to him.
In the absence of proper evidence about the husband’s eligibility for government assistance, and the quantum of that assistance. I am unable to find that he would be able to adequately provide for himself, if orders were made as sought by the wife.
In exercising my discretion, I have, as I’m permitted to do, considered the matters in s.79(4) of the Act, and to the matters referred to at paragraphs 74 -137 hereof. I have determined that it would not be just and equitable to make any order altering property interests.
I am cognisant of the effect of my determination on the wife and her likely dissatisfaction with the result.
I certify that the preceding two-hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 18 December 2018
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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Fiduciary Duty
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