GALANIS & MACRIS (No.2)
[2015] FCCA 2729
•30 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GALANIS & MACRIS (No.2) | [2015] FCCA 2729 |
| Catchwords: FAMILY LAW – Property – application for property settlement – whether just and equitable – assessment of the asset pool – contributions by the parties – consideration of factors under Family Law Act 1975 (Cth) s.75(2) – whether any adjustment should be made – where cash adjustment from husband to wife less than the amount sought. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 78, 79, 106A |
| Cases cited: Black & Kellner (1992) 15 Fam LR 343; FLC 92-287 Galanis & Macris [2015] FCCA 2567 Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143 Morrison & Morrison (1994) 18 Fam LR 519; (1995) FLC 92-573 Stanford v Stanford [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518 |
| Applicant: | MS GALANIS |
| Respondent: | MR MACRIS |
| File Number: | WOC 576 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 6-7 November 2012, 8 February & 19 July 2013, 29 August 2014 |
| Date of Last Submission: | 4 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | Rita Thakur & Associates |
ORDERS
Within three (3) months from the date of this Order the Respondent Husband is to pay the Applicant Wife the sum of $400,000.00.
The Wife is declared to be the sole owner of the property at Property S in the State of New South Wales.
The Husband is declared to be the sole owner of the properties at Property A1 & A2 in the State of New South Wales.
The Wife and the Husband are declared to be the sole owners of any motor vehicles registered in their names or in their respective possession.
The Husband and Wife are each to retain to the exclusion of the other all of their right, title and interest in:
(a)all furniture, furnishings, watches, jewellery and other personal property in their respective possession or control;
(b)all shares, debentures, units in unit trusts, cash at bank, building society or credit union accounts standing in their sole names respectively; and
(c)all interests in life assurance policies and superannuation funds standing in their sole names respectively.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders within fourteen (14) days of being called upon to do so, the Registrar of the Court is appointed in accordance with the provisions of s.106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the party who so fails, refuses or neglects to do so and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification by way of affidavit of such failure, refusal or neglect.
IT IS NOTED that publication of this judgment under the pseudonym Galanis & Macris (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 576 of 2010
| MS GALANIS |
Applicant
And
| MR MACRIS |
Respondent
REASONS FOR JUDGMENT
Applicant
This is an Application by the Wife for orders for settlement of property. She commenced proceedings on 21st July 2010 seeking only parenting orders. However, by his Response filed on 28th September 2010 the Husband sought the following property orders:
As for Property orders
5. That the wife be the sole owner of her property at Property S.
6. That the husband be the sole owner of his properties at Property A1 & A2.
7. That the husband and wife shall be the sole owners of any motor vehicles in their possession.
8. That as between the Husband and Wife, and subject to the above Orders, the Husband and Wife shall each respectively retain all interest in and entitlement to:
8.1All personal property now in his/her respective possession or control.
8.2All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
8.3All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
9. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to this Order, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
The Wife filed an Amended Application on 29th October 2010 in which she set out the property orders that she sought:
6. That the husband pay to the wife by way of property settlement the sum of $470,000.00.
7. That in the event that the payment pursuant to 6 hereof is not paid within 42 days then the husband do all acts and things and sign all documents necessary to cause the property at Property A1 to be sold for the best price reasonably obtainable and, thereafter, to pay from the net proceeds of sale the amount necessary to satisfy the balance outstanding of any amount due to the wife pursuant to 6 hereof.
8. That subject to compliance by the husband with his obligations pursuant to 6 and 7 hereof each of the parties otherwise retain free from any claim by the other all property, assets and financial resources, (including superannuation) in such parties[1] respective possession or control.
[1] Sic
On 28th February 2011 Federal Magistrate Altobelli[2] ordered that the parties attend a conciliation conference with a Registrar to take place on 9th May 2011.
[2] As his Honour then was
The property matter did not settle at the Conference and was listed before Altobelli FM on 21st June 2011 for further mention.
On 21st June 2011 the Court directed that if the parties were unable to agree on property valuation, including historical valuation, by 1st July 2011, then they were to appoint a single joint expert to value the property by 15th July 2011.
The proceedings were set down for final hearing on 18th August 2011 but the hearing did not take place on that date.
The hearing took place on 6th and 7th November 2012 and 8th February and 19th July 2013.
Background
The Wife was born on (omitted) 1971. She is now 43 years of age.
The Husband was born on (omitted) 1969. He is almost 46 years of age.
The parties were married on (omitted) 2003. They separated, initially under the one roof, on 1st March 2010. They were divorced by Order of this Court on 13th July 2011. The divorce order became effective one month later.
There are two children of the marriage. The parties’ daughter X was born on (omitted) 2004. She is now ten years old. Their son Y was born on (omitted) 2006. He is now nine years old.
Orders were made on 12th June 2015 that the children would live with the Wife and spend time with the Husband on alternate weekends, for half of the mid-year school holidays, for two weeks during the Christmas/January school holidays and on special occasions[3].
[3] Galanis & Macris [2015] FCCA 2567
Evidence
The Wife relied on her affidavit of 15th September 2011 and her Financial Statement sworn that same day. She gave oral evidence and was cross-examined by Ms Gillies of Counsel for the Husband.
For his part, the Husband relied on his affidavit sworn 21st September 2011 and his Financial Statement sworn the same day. He, too, gave oral evidence. He was cross-examined by Mr Wong of Counsel, for the Wife.
The Husband also relied on an affidavit of Mr J, valuer, sworn 18th February 2011.
It was the Wife’s evidence that immediately after they were married she and the Husband commenced living in a property owned by her at Property S, which she had purchased for $258,000.00 in 2000. The purchase had been funded by a mortgage of approximately $100,000.00, a loan from her father of $71,000.00 and the balance came from her savings.
The Wife deposed that by the time of the parties’ marriage the mortgage on the home had been reduced to $35,529.00. Between the time she purchased the property in 2000 and the date of the parties’ marriage on 26th July 2003 she had been living at home with her parents and the property at Property S had been rented out. She used the rental income towards the amount owning on the mortgage. She was also in employment as a (occupation omitted) with (employer omitted) and paid money from her salary towards the mortgage.
The Wife deposed that at the date of the marriage the property at Property S was worth $400,000.00.
The Wife also had some household furniture and a Toyota (omitted) motor car.
The Wife deposed that at the date of marriage the Husband owned two properties, at Property A1 & A2, which he had purchased prior to the marriage. To the best of the Wife’s knowledge, the property at Property A1 was unencumbered but the property at Property A2 was subject to a mortgage.
Until the parties were married, the Husband lived at home with his parents and rented out his two properties.
The Wife deposed that the Husband had savings of approximately $111,000.00, a (omitted) Toyota Land Cruiser and some personal possessions.
It was the Wife’s evidence that once the parties were married they lived in the Property S property. She continued working and met the mortgage payments from her wages[4].
[4] Affidavit of Ms Galanis 15.9.2011 at paragraph [18]
At the time of the parties’ marriage, the Husband was working for a company but was made redundant after about a year into the marriage. He received a redundancy payment of approximately $60,000.00. The money was used to pay out the balance on the mortgage over Property S, which had been reduced to $27,723.00, and the Wife stated that the rest of the redundancy payment was used by the Husband to reduce the amount owing on the mortgage over Property A2.
The Wife deposed that in accordance with Greek tradition the parties received “wedding money” amounting to about $20,000.00 when they were married. She believed that the funds were used “towards the acquisition of household furniture and utensils as well as general living expenses”.[5]
[5] Ibid at [20]
After the parties were married, the Wife continued in her employment until she took maternity leave when the child X was born. She became pregnant with their second child Y and took more maternity leave. She did not return to work after Y was born but stayed home to look after the children. She returned to work part-time about six months before the parties separated.
The Wife described her financial contribution to the marriage in this way:
Throughout the marriage the usual financial arrangements involved me spending my income on our day to day expenses such as food and groceries, fuel, children’s clothing and the like. This continued after X was born when the arrangements were that I would spend the child endowment and family payment that I received in this fashion. When I had bills to pay or expenses to meet that I was unable to from my income I would ask Mr Macris[6] for money.[7]
[6] The husband
[7] Ibid at [23]
The Wife also stated that the Husband worked at his regular job in Sydney and also did work on weekends. After he was made redundant he obtained work (occupation omitted). He remained in that work until early 2005. He continued to be self-employed after that time.[8]
[8] Affidavit of Ms Galanis 15.9.2011 at [21]
The Wife also deposed that:
24.Mr Macris also derived income on his properties in Property A1 & A2. He always kept those monies separate and, as far as I was aware, they were placed in his own account.
25.After the death of his father in 2002 Mr Macris received an inheritance from his father’s estate. I am uncertain exactly when he received this inheritance. That money was also kept separately by Mr Macris.[9]
[9] Ibid at [24]-[25]
The Wife set out in her affidavit details of her non-financial contributions to the marriage:
26.Throughout the marriage I was primarily responsible for the housework and domestic chores. Once the children came along I was also mainly responsible for their day to day care and supervision.
27.I would do the grocery shopping, cook the daily meals, clean the house, and do the washing and ironing. Mr Macris did not help with these tasks. After the children were born Mr Macris would make Sunday breakfast and if we had guests he would cook the barbeque…
29.It was not uncommon on special occasions for us to entertain quite large parties at our home of up to 50 guests on special days such as birthdays, name days and the like…I would do all of the cooking and preparation for those occasions. The assistance offered by Mr Macris was limited to preparing the meat and cooking the barbeque.
…
32.After the children were born I was their primary carer… (The husband) often worked on weekends as well as being away at his job during the week. He was often not available to help around the home or with the children.[10]
[10] Affidavit of Ms Galanis 15.9.2011 at [26]-[29], [32]
The Wife was cross-examined by Ms Gillies of Counsel for the Husband. She agreed that the Husband would cook Sunday breakfast, as she had deposed in her affidavit, and said that the Husband would purchase meat and groceries occasionally, about once a week. She disagreed that the Husband did any housework and said that she did not ask him to. She conceded that the Husband did assist her with the care of the children.
The Wife was also cross-examined about the estate of the Husband’s late father, who had died before the parties were married. She said that the Husband did not tell her anything about his father’s will. She knew that the Husband was the executor.
The Wife maintained her evidence and was unshaken in cross-examination.
It was the Husband’s evidence that he helped care for the parties’ two children from the time they were born. He stated that:
8.I regularly bathed them and fed them. I changed nappies and clothed them. I regularly got up to them at night when they cried. I played with them on a daily basis. I was present during their births…
9.As the children got older, I regularly took them on outings to the markets, the park, to church, visiting relatives/friends and swimming. I also took them swimming and for pony rides.
10.On many occasions I have helped soothe the children to sleep when they have not been able to fall asleep. I cuddled them, read to them and brought them water.[11]
[11] Affidavit of Mr Macris 21.9.2011 at paragraphs [8]-[10]
The Husband deposed that at the commencement of his relationship with the Wife he owned the following:
a)the property at Property A1, which he owned outright, which has a current agreed value of $485,000.00;
b)Property A2, encumbered by a mortgage of $157,782.00, which has a current agreed value of $477,500.00;
c)Cash in the (omitted) Bank of $111,000.00;
d)A (omitted) Toyota Land Cruiser purchased for $25,000.00 in 1995, which he still owns;
e)(omitted) superannuation interest of $26,156.00;
f)Tools, four box trailers and personal items.[12]
[12] Affidavit of Mr Macris 21.9.2011 at [60]
The Husband stated that the property at Property A1 was valued at $425,000.00 as at (omitted) 2003, the date of marriage.[13]
[13] Ibid at [62]
The Husband deposed that he purchased Property A2 for $415,000.00 in 2002. He took out a mortgage loan of $158,000.00, most of which was still owing at the date of the parties’ marriage. He used his savings of $111,000.00 and “some other savings” repay the loan on 23rd November 2004. He had also applied rental income towards the mortgage repayments.[14]
[14] Ibid at [63]
The Husband received a cheque for $113,005.46 from his late father’s estate in 2006. He stated that this represented money bequeathed to his siblings and himself. He deposited the cheque into an account in the (omitted) Bank. He deposed:
I have not proceeded with dividing up the monies in this account. Neither I nor my siblings have drawn any monies on this account. I have disclosed a one fourth share of the monies in this account in my Financial Statement.[15]
[15] Ibid at [65]
The Husband deposed that throughout the marriage he applied his income to pay the family’s bills. He is a (occupation omitted) by trade. He also consistently performed renovations on the wife’s home.
The Husband also deposed that when he and the Wife married he received about $15,000.00 in cash and presents from his side of the family. He used the cash for their joint purposes. When he moved out of the former matrimonial home he left behind all the white goods and most of the furniture. He continues to work as a (occupation omitted).
The Husband was cross-examined by Mr Wong of Counsel for the Wife, particularly as to his financial disclosure and his earning capacity.
Submissions
It was submitted for the Wife that she was the primary carer and homemaker during the marriage whilst, unlike many other traditional marriages, she was also a significant contributor of both capital and income. In the circumstances, there should be a 10% differential as to contributions: 45% for the Wife and 55% for the Husband. A 20% differential of 60/40% in favour of the Husband would pay insufficient regard to the greater homemaking contributions of the Wife and would pay insufficient regard to her financial contributions both directly and indirectly.
As far as the applicable adjustment under s.75(2) of the Family Law Act 1975 is concerned, Mr Wong of Counsel submitted that there was a small sum of child support payable by the Wife to the Husband but if the orders sought by the Wife were to be made (which they were), a substantial and significant arrangement would result in a modest child support obligation upon the Husband.
Mr Wong further submitted that the Court would have reasonable cause to question the Husband’s disclosure. Further, as per Black & Kellner[16] and Morrison &Morrison[17]the court should not be hesitant to find that the Husband, irrespective of what he may declare in his taxation returns or his financial statements, has at his disposal an income-earning potential in excess of that of the Wife.
[16] (1992) 15 Fam LR 343; FLC 92-287
[17] (1994) 18 Fam LR 519; (1995) FLC 92-573
Accordingly, it was submitted that it is appropriate to make a 10% adjustment in the Wife’s favour.
Mr Wong submitted that the Wife seeks an adjustment of 55% in net terms and in that regard seeks a payment from the Husband of $420,000.00 in lieu of the sum of $400,000.00 sought in her Further Amended Application.
It had been the Husband’s case that the parties should retain the real estate and other property standing in their own names. Ms Gillies of Counsel submitted that if the orders sought by the Husband were granted it would see an adjustment made in his favour of about 72.5%.
No issue was taken with the balance sheet included in the submissions on behalf of the Wife except that:
a)the Husband had disclosed furniture worth $2,000.00 but the Wife did not disclose a value for the furniture and items in her possession; and
b)an amount of $18,125.00 remains in an account in the name of the children of which the Wife is trustee; the Husband says that these monies were saved by the parties on behalf of the children during the marriage and should form part of the general asset pool.
The Proper Approach to Determination of a Property Application
The way a court approaches a property application under section 79 of the Family Law Act 1975 (Cth) is, first of all, to follow the principles set out by the High Court in Stanford v Stanford.[18] First, the court must consider the requirements in subsection 79(2) of the Act, which prescribes:
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.
[18] [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518
The High Court held at [37] that the court must first identify the existing legal and equitable interests of the parties in the property.
Second, although s.79 confers a broad power on a court to make a property settlement order, “it is not a power that is to be exercised according to an unguided judicial discretion” (at [38]).
The third principle, and perhaps the most important, is:
…whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property, which is fixed by reference to the various matters (including financial contributions) set out in s.79(4).[19]
[19] [2012] HCA 52 at [40]
Thus, the decision in Stanford means that the Court must consider the requirements of s. 79(2) before embarking on the four step process set out by the Full Court of the Family Court in Hickey & Hickey.[20]
[20] [2003] FamCA 395; (2003) 30 fam LR 35; FLC 93-143
In Hickey, the Full Court set out a process of four inter-related steps that must be taken by a court when determining a property application:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and asses the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlement of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g) (“the other factors”) including…the matters referred to in s.75(2) so far as they are relevant…Fourthly, the Court should resolve what order is just and equitable in all the circumstances of the case.[21]
[21] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143 at [39] per Nicholson CJ, Ellis & O’Ryan JJ
It is neither contradictory nor redundant to consider again whether a proposed order is just and equitable under s. 79(2), because the Court is considering the matter after having undertaken the three previous steps referred to in Hickey.
Just and Equitable
The parties are now divorced. They were divorced by order of this Court on 13th July 2011. Final Orders have been made in respect of arrangements for their children.
I am satisfied that it is just and equitable in all the circumstances to make orders for the settlement of the parties’ property.
The property and liabilities of the parties
There is a balance sheet contained in the submissions on behalf of the Wife made on 16th August 2013. Counsel for the Husband took no issue with it except for a couple of items referred to in paragraph [48] above.
There are two other relatively minor areas of disagreement between the Husband and the Wife as to the balances in two of the Wife’s bank accounts with the (omitted) Bank. As to one, the Wife claims a balance of only $78.00 but the Husband claims it has a balance of $1,778.00. As to the other, the Wife claims a balance of $2,929.00 but the Husband claims a much larger balance of $,6,069.00.
In the absence of evidence from the Husband, I am of the view that the Wife’s view of the current balances of her accounts is more likely to be correct. I consider the Wife to have been a truthful witness.
Non-Superannuation Asset Pool
I find the non-superannuation assets to be:
a)Property A1 (Husband) $485,000[22]
[22] Agreed value
b)Property A2 (Husband) $477,500[23]
[23] Agreed value
c)Property S (Wife) $510,000[24]
[24] Agreed value
d)Husband's (omitted) account $157,095[25]
[25] Agreed value
e)Wife's (omitted) account $78.00[26]
[26] Not agreed by husband, who claims a balance of $1,778.00
f)Wife’s other (omitted) bank account $2,929.00[27]
[27] Not agreed by husband, who claims a balance of $6,069.00
g)Husband’s Toyota Land Cruiser $5,000[28]
[28] Agreed value
h)Husband’s business $2,000[29]
[29] Agreed value
i)Joint household contents $2,000[30]
[30] Agreed value
j)Husband’s jewellery $1,571[31]
k)Husband’s trailers $800
l)Wife’s diamond ring $4,510[32]
m)Money in children’s account[33] (held by wife) $18,125
n)Husband’s interest in late father’s estate $35,000[34]
Total $1,701,608
[31] Agreed value
[32] Agreed value
[33] Wife asserts that this amount is held on trust but husband claims that it should form part of the general asset pool (see at paragraph 48(b) above)
[34] Agreed value
Add-backs
The following amounts are to be added back into the non-superannuation asset pool:
a)Husband’s costs paid $41,411.61[35]
b)Husband’s monies in solicitors’ Trust Account $26,396.00[36]
c)Wife’s costs paid $31,121.84[37]
[35] Agreed value
[36] Agreed value
[37] Agreed value
Total $99,929.45
By adding the total of the amounts to the total of the assets in [61] above I arrive at a total of $1,801,537.45.
I find the total value of the non-superannuation asset pool to be $1,801,537 (rounded down to the nearest dollar).
Superannuation
Each party has superannuation interests as follows:
a)Husband's (omitted) superannuation $32,265.00[38]
b)Wife's (omitted) superannuation $63,666.31[39]
c)Wife (omitted) Superannuation $Nominal[40]
[38] Agreed value
[39] Agreed value
[40] Agreed value
Total superannuation $95,931.31
By adding the total of the parties’ superannuation entitlements, namely $95,931.31 (rounded down to $95,931) to the total of the non-superannuation asset pool, being, $1,801,537, I arrive at a total of $1,897,468.00.
Accordingly, I find the total asset pool to be $1,897,468.00.
The Parties’ Contributions
Each of the parties brought real property into the marriage.
The Wife brought the property at Property S into the marriage, along with a Toyota Corolla motor car and some other personalty. The property was worth about $400,000.00 at the time and was subject to a mortgage of $35,529.00. This gave her an equity of about $364471.00 plus the car and other items of personalty.
The Husband brought into the marriage the two properties at Property A1 & A2. Property A1 was worth about $425,000.00 at the date of the marriage and was unencumbered. Property A2 had been purchased the year before for $415,000.00 and was subject to a mortgage of about $158,000.00. Thus, he had an equity in Property A2 of about $257,000.00.
The Husband also had savings of about $111,000.00 and a Toyota Land Cruiser, as well as some items of personalty.
Mr Wong for the Mother has submitted, correctly in my view, that the respective contributions between the parties at the commencement of cohabitation, which was the date of the marriage, appears to be approximately one-third in favour of the Wife and two-thirds in favour of the Husband. This is not conceded by counsel for the Husband, who submits that the pre-marital assets of the Husband were more like $854,374.00. Ms Gillies submits that contributions would favour the Husband “substantially” – in the region of 75% to 25% for the Wife.
With respect, this appears to be rather optimistic.
However, the position changed over the course of the marriage. The worked until she went on maternity leave and contributed her income to the family, as well as making a contribution as homemaker and the primary carer of the children. The mortgage over Property A1 was discharged and it can be seen that the Wife made a significant indirect contribution to that asset.
Counsel for the Wife has submitted, correctly in my view, that there should be a 10% differential as to contributions for the Wife, so that the contributions should be assessed as 45% by the Wife and 55% by the Husband.
I am satisfied that the contributions of the parties should be regarded as 45% by the Wife and 55% by the Husband.
The Effect of any Proposed Order on the Earning Capacity of a Party
Subsection 79(4) requires at paragraph (d) that the Court consider the effect of any proposed order on the earning capacity of either party to the marriage. In my view the proposed orders will not have any effect on either party’s earning capacity.
Relevant Matters Referred to in Subsection 75(2)
The Wife was born on (omitted) 1971. She is 43 years of age. She appears to be in good health.
The Husband was born on (omitted) 1969. He is almost 46 years of age. He also appears to be in good health.
The Wife states in her Financial Statement filed on 16th September 2011 that her total average weekly income is $673.00. She is employed by (employer omitted). She owns the home at Property S in which she lives. She appears to have the physical and mental capacity for appropriate gainful employment.
The Husband states in his Financial Statement filed on 21st September 2011 that his total average weekly income is $813.00, although Counsel for the Wife is dubious about his veracity in this regard, noting in his submission when he was asked about such matters in cross-examination he kept saying that he was not sure and he would have to ask his accountant.
Mr Wong submitted that “the Court should not be hesitant to find that the Husband, irrespective of what he declares in his taxation returns and/or financial statements, has at his disposal an income earning potential in excess of the Wife”.
He owns the two properties at Property A1 & A2, one of which is rented out at $400.00 per week. The Husband appears to have the physical and mental capacity for appropriate gainful employment.
Whilst the parties’ two children, who are both under the age of 18 years, were living in a shared care arrangement, by the Orders of 12th June 2015 the children will be living with the Wife and spending substantial and significant time with the Husband.
Neither party has the responsibility to support any other person.
Both parties have superannuation interests but neither party can draw on their superannuation at this stage.
Neither party has re-partnered or is cohabiting with another person, except for the children.
It is likely that the Husband will acquire an obligation to pay Child Support once the children are living substantially in the care of the Mother.
In my view, there should be an adjustment in favour of the Wife of 10%. Thus, the division between the parties should be 55% to the Wife and 45% to the Husband.
Just and Equitable Orders
Again, the Court must consider whether the proposed Orders are just and equitable.
The proposed Orders would provide that the Wife would be declared to be the sole owner of the home in which she lives at Property S, whilst the Husband would be declared to be the sole owner of his properties at Property A1 & A2. Thus each party will have an unencumbered home in which to live, which will put them in a better position than many litigants in property proceedings before this Court.
The parties would be declared to be solely entitled to their respective motor vehicles and other items of personalty. There will be no superannuation splitting order. The Wife’s superannuation is greater than that of the Husband.
There would be a cash adjustment by the Husband to the Wife. The Wife’s counsel submits that the cash adjustment should be $420,000.00, which is less than the amount of $470,000.00 she originally sought, although he referred in his Case Outline of 16th August 2013 to a lesser amount of $400,000.00.
In my view, the appropriate figure for the cash adjustment by the Husband to the Wife should be $400,000.00, not a larger figure of $470,000.00 or even $420,000.00.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 7 October 2015
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