GAUTHIER & GAUTHIER
[2019] FCCA 5
•21 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAUTHIER & GAUTHIER | [2019] FCCA 5 |
| Catchwords: FAMILY LAW – Property – alteration of property interests – assessment of contribution and future needs – just and equitable order. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79. |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395 |
| Applicant: | MR GAUTHIER |
| Respondent: | MS GAUTHIER |
| File Number: | WOC 1055 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 6 December 2018 |
| Date of Last Submission: | 6 December 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 21 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Miller |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the Respondent: | Mr Schroder |
| Solicitors for the Respondent: | Johnson Horsley Lawyers |
ORDERS
NON-SUPERANNUATION ORDERS
Within 42 days, the Husband shall pay to the Wife the sum of $450,609.00 by way of alteration of property interests.
Simultaneous with the payment referred to in Order 1 above, the Wife shall transfer to the Husband all of her right, title and interest in the property situate at and known as Property A, being the whole of the land comprised in Property A (“the home”).
Simultaneously with the transfer in Order 2 above, the Husband shall do all acts and things and sign all documents necessary to refinance into his sole name the mortgage loan secured on the home in the parties’ joint names with B Bank, and thereafter the husband shall indemnify the Wife and forever keep her indemnified against any liability in respect of the home, including but not limited to the payment of water and council rates, mortgage repayments and insurance payments.
Otherwise each party shall retain any asset or personalty in that party’s name or possession, including furniture, furnishings, savings, shares and superannuation entitlements and each party shall bear responsibility for and indemnify the other with respect to any debt or liability in that party’s name or attaching to any asset being retained by that party pursuant to these Orders.
In the event of non-compliance with Orders 1 – 3 above, leave be granted to the parties to relist the matter in relation to enforcement of these Orders.
SUPERANNUATION ORDERS
The Court allocate as required by section 90XT (4) of the Family Law Act 1975 a base amount of $226,565.95 to the Wife out of the Husband’s interest in the C Superannuation (“the fund”).
In accordance with section 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable, the Trustee of the fund:
(a)pay to the Wife or the Wife’s legal personal representatives the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)make a corresponding reduction in the entitlement the Husband would have had in the fund but for this order.
The Trustee of the fund (“The Trustee”) do all such acts and things and sign all documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the amount to be paid to the Wife pursuant to Order 7 above;
(b)pay the amount whenever the Trustee makes a splittable payment out of the Husband’s interest in the fund.
This Order have effect from the operative time and the operative time is 4 business days after the service of a sealed copy of these Orders upon the Trustee.
The Trustee do all such acts and things and sign all documents as may be necessary so that in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation)Regulations 2001, the Trustee can calculate the amount due and make payment to the Wife in accordance with Orders 7 and 8 above.
The Wife do all things necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the amount due to her out of the Husband’s interest in the fund to a fund of the Wife’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the Husband’s superannuation interests made after the Trustee has rolled over or transferred the amount due to the Wife to a fund of the Wife’s choosing are not splittable payments.
Having been accorded procedural fairness, these Orders require the Trustee to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
These Orders bind the Trustee of C Superannuation
IT IS NOTED that publication of this judgment under the pseudonym Gauthier & Gauthier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1055 of 2017
| MR GAUTHIER |
Applicant
And
| MS GAUTHIER |
Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment explain the Orders that the Court has made in a dispute between a husband and a wife about how to divide their property and assets after a relationship that subsisted for 30 years.
Background
The Applicant in this case is the Husband. He is 58 years old and is presently employed as an operator. The Wife is the Respondent. She is 57 years old and is currently employed as a service industry employee. They both live in the D location region in New South Wales. They commenced cohabitation in 1985, married in 1991, and separated in 2015, after being together for 30 years. The Court has formed the distinct impression that the breakdown of the marriage, and the post-separation period, was an emotional one for both of them. Some of that emotion was still present at the Hearing, even though this took place well over 3 years after the date of separation.
Regrettably, emotions seemed to have prevented the Husband and the Wife from sensibly compromising their respective claims. They therefore incurred substantial cost in litigating a case that really should not have been litigated.
The parties have three children who are now aged 21, 19 and 16. On separation, the Wife moved out of the former matrimonial home. The children continued to live there with their father. The youngest child is clearly dependent on the Father and the two older children are too, but to a lesser extent.
During the course of their long relationship, the parties bought and sold properties. The details of these transactions are not relevant to the decision the Court has had to make. During the course of their relationship, the Husband always worked full time and the Wife worked for periods either full time or part time, or was primarily responsible for attending to the children and maintaining the home.
The reason for the breakdown of this relationship is irrelevant. Regrettably, far too much evidence was directed to this issue.
Issues for determination
The Joint Balance Sheet will be reproduced below. The parties were able to agree about this important document.
The parties also agreed that the contributions (and future needs, if applicable) should be assessed on the basis of two pools: the non-superannuation pool, and the superannuation pool. The Court agrees that this is appropriate on the facts of this case.
The Husband contended that at the commencement of their relationship neither had any significant assets and, therefore, there were no issues for the Court to decide about initial contribution. The Wife contended that at cohabitation she had the proceeds of a compensation claim. Even her Counsel conceded in closing submissions, however, that this amount would, at most, have a minor impact on the assessment of contribution in the Wife’s favour.
The Husband contended for an assessment of contribution as at the date of separation of equality. The Wife contended that the assessment of contribution would be 52 per cent in her favour, primarily attributable to the compensation that she had available to her at the date of cohabitation.
The Husband contended for a further contribution-based assessment in his favour in respect of the post-separation period. He submitted that this would take the assessment of his contribution up to 57.5 per cent. The Wife contended that there would be no adjustment in the Husband’s favour in respect of the post-separation period.
The Husband submitted that there would be no adjustment under section 75(2) of Family Law Act 1975 (Cth) (“the Act”) if the Husband were awarded 57.5 per cent, but that there might be an adjustment in his favour if the contribution were assessed at less than 57.5 per cent. The Wife contended that there should be a 10 per cent adjustment in her favour in respect of future needs.
In relation to superannuation assets, it was common ground that in the post-separation period the value of the Husband’s superannuation had increased substantially. This was at least part of the reason for the Husband’s contention that superannuation should be split between the parties as to 57.5 per cent in his favour. The Wife contended, in relation to superannuation, that it should simply be equally divided between the parties.
The evidence and the Hearing
In the Husband’s case he relied on the following evidence:
a)Initiating Application filed 6 October 2017;
b)Affidavit of Mr Gauthier filed 23 November 2018;
c)Updated Financial Statement of Mr Gauthier filed 23 November 2018; and
d)Case outline document prepared on behalf of Mr Gauthier in relation the Final Hearing on 6 December 2018.
In the Wife’s case she relied on the following evidence:
a)Response to Initiating Application of Ms Gauthier filed 1 December 2017;
b)Affidavit of Ms Gauthier filed 23 November 2018;
c)Financial Statement of Ms Gauthier filed 23 November 2018; and
d)Case outline document prepared on behalf of Ms Gauthier in relation the Final Hearing on 6 December 2018.
The following documents were received into evidence as exhibits:
a)Respondent Wife’s Commonwealth Savings Bank of Australia Passbook dated 1986 to 1998;
b)E Bank Statement Reward Saver – dated September 2012 to September 2017 and October 2017 to October 2018;
c)Financial Statement dated 1 December 2017 – part I, item 37 “E Bank Investment Account …60”;
d)Letter from Johnson Horsley to Rita Thakur & Associates dated 7 November 2018 in relation to disclosure of documents;
e)E Bank Statement in the name of Ms Gauthier dated 4 April 2014 to 12 June 2018;
f)Letter from Rita Thakur to Johnson Horlsey dated 29 November 2018 in relation to the Wife’s job applications; and
g)Procedural fairness letters to/from C Superannuation.
Both the Husband and the Wife were cross-examined.
The Court observes that by consent the proceedings were determined, having regard to Division 12A of Part 7 of the Family Law Act. The Hearing was conducted with utmost efficiency by Counsel for the Husband and the Wife.
The Applicable Law
This is an application under s.79 of the Family Law Act 1975 which relevantly provides:
Alteration of property interests
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the Bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(2) 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.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(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
(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
(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
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(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.
Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(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
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(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
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(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
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) 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; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.
Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This is not inconsistent with step one in Hickey.
A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. This disposed of property may still be significant, however. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it. It would seem that notionally adding back such property may still be appropriate in some cases. In Vass & Vass [2015] FamCAFC 51, the Full Court said at [138]:
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108 – is authority for any necessary contrary solution.
The agreed Balance Sheet
The Court was presented with the following agreed Balance Sheet on the day of the Hearing:
| ASSETS | |||||||
| Ownership | Description | Husband's value | Wife's value | ||||
| 1 | Joint | Property A | 850,000 | 850,000 | |||
| 2 | Joint | E Bank Account number …85 | 1,923 | 1,923 | |||
| 3 | Husband | 2012 Vehicle | 9,000 | 9,000 | |||
| 4 | Husband | 1974 Vehicle | 9,500 | 9,500 | |||
| 5 | Husband | 2001 Vehicle | 600 | 600 | |||
| 6 | Husband | 1996 Vehicle | 200 | 200 | |||
| 7 | Husband | E Bank Bank Account Number …58 | 3,688 | 3,688 | |||
| 8 | Husband | E Bank Account number …38 (on trust for X) | 1,132 | 1,132 | |||
| 9 | Husband | B Bank Account number …25 | 3,329 | 3,329 | |||
| 10 | Husband | Company F Shares (674 held) | 8,034 | 8,034 | |||
| 11 | Husband | Company G Shares (1,528 held) | 33 | 33 | |||
| 12 | Husband | Telstra Shares (600 held) | 1,788 | 1,788 | |||
| 13 | Wife | 2013 Vehicle | 9,500 | 9,500 | |||
| 14 | Wife | E Bank Account number 200430860 | 33,767 | 33,767 | |||
| 15 | Wife | E Bank Account number 002114372 | 480 | 480 | |||
| 16 | Wife | E Bank Account number 062502174 | 9,278 | 9,278 | |||
| Total | $ 942,252 | $ 942,252 | |||||
| ADDBACKS | |||||||
| Ownership | Description | Husband's value | Wife's value | ||||
| 17 | Wife | Monies disbursed by wife from reward saver and term deposit accounts | Nil | ||||
| Total | $ 0 | $ 0 | |||||
| LIABILITIES | |||||||
| Ownership | Description | Husband's value | Wife's value | ||||
| 18 | Joint | Mortgage Loan with B Bank | 66,367 | 66,367 | |||
| 19 | Husband | E Bank Car Loan (held jointly with Y) | 0 | ||||
| Total | $ 66,367 | $ 66,367 | |||||
| NET ASSETS | $ 875,885 | $ 875,885 |
| SUPERANNUATION | ||||||||
| Member | Name of Fund | Type of Interest | Husband's value | Wife's value | ||||
| 20 | Husband | C Superannuation | Accumulation | 613,664 | 613,664 | |||
| 21 | Wife | H Superannuation | Accumulation | 29,624 | 29,624 | |||
| 22 | Wife | ANZ Smart Choice Super | Accumulation | 7,085 | 7,085 | |||
| 23 | Wife | I Superannuation & Rollover | Accumulation | 21,142 | 21,142 | |||
| 24 | Wife | J Superannuation | Accumulation | 1,699 | 1,699 | |||
| 25 | Wife | K Superannuation | Accumulation | |||||
| 26 | Wife | L Superannuation Master Trust | Accumulation | |||||
| Total | $ 673,214 | $ 673,214 | ||||||
| NETT TOTAL ASSETS (including Superannuation) | $ 1,549,099 | $ 1,549,099 |
The Court notes from this agreed document that there are no issues as to valuation. The Court notes that item 17, which was originally an add-back contended for on behalf of the Husband, was not pursued. This was a sensible concession made by the Husband. The evidence the Court heard from the Wife about moneys dispersed by her from her savings would not have justified an add-back as the Husband had previously contended.
The Court notes that item 19 was, by agreement, removed from the balance sheet. This was another appropriate concession to make. The loan in question was, in reality, a loan by one of the parties’ children, which the Husband guaranteed. There was no jurisprudential basis for its inclusion on the balance sheet.
The Court notes that the superannuation assets of the parties total $673,214, and the net non-superannuation assets $875,885.
Assessment of Contribution
The Court accepts the Wife’s evidence that, as at the time of cohabitation with the Husband in 1985, she had received a lump sum payment of $54,000 as compensation for injuries suffered in a motor vehicle accident in 1981. The Court accepts that the moneys were invested and reinvested, and that the Wife used these funds to support herself in the post-separation period. There was no evidence to suggest that the Wife’s expenditure of these funds was unreasonable, or extravagant.
There is no basis for adding back these funds. However, the Court concludes that the $54,000 brought into the relationship in 1985 does not ultimately detract from the Court’s finding of the equality of contribution 30 years later in 2015. When the totality of the evidence of the Husband and Wife is closely examined it becomes clear that they both contributed in different ways throughout the course of their relationship. True it is that the Husband may well have made the greater financial contribution because of his significantly higher income as compared to that of the Wife.
Be that as it may, the Wife made substantial and important non-financial contributions, as well as financial contributions. In the circumstances, an initial contribution of $54,000 does not detract from the overwhelming impression formed that both the Husband and the Wife diligently contributed to the acquisition of the assets that are now represented in the joint balance sheet, and that after such a long relationship their diverse contributions should be assessed as having equal weight.
The Husband contends that there should be a not insubstantial adjustment in his favour in respect of the contributions that he made financially and non-financially, directly and indirectly, and to the welfare of the family in the post-separation period. The evidence confirms that at the time of the separation the children were aged 12, 15 and 17. The Husband bore the overwhelming responsibility for the care of these children, for the unfortunate reason that the children did not have a good relationship with their mother. This meant that the opportunities for her to become involved in their care were limited. She paid child support, however, and whilst this went nowhere near what the Court is prepared to infer were the actual costs of raising these children, it was nonetheless a proportionate contribution, having regard to her small income, and in any event, it is the amount that was assessed by reference to the child support legislation.
The Court accepts that the Husband bore the responsibility for maintaining the home, and paying all the household expenses with the significant exception of the mortgage. The Husband’s non-payment of the mortgage beggars belief. At paragraph 42 of his Trial Affidavit, sworn 22 November 2018, he deposes:
I have not been able to make mortgage repayments on the mortgage secured against our home as I have not had sufficient funds to do so. However, while Ms Gauthier and I were together we were ahead in our mortgage repayments, and the current repayments are being drawn from those extra payments.
In cross-examination it became palpably clear that the Husband’s contention that he could not afford to pay the mortgage was plainly wrong. At all relevant times he had an income vastly superior to that of the Wife. His Financial Statement, sworn 23 November 2018 which he relied on at the Hearing, revealed a surplus of weekly income over assets of $656 per week. The Husband, at all times, had the benefit of occupying the former matrimonial home. By contrast the Wife, whose income was substantially lower than his, had to cohabit with her sister.
The Court does not accept the Husband’s contention for a further adjustment in his favour in respect of his contribution in the post-separation period in respect of the non-superannuation pool. He has had the benefit of continuing to occupy the former matrimonial home, which was a substantial benefit to him, and indeed to the children. He was at all relevant times in a better financial position than the Wife. His non-payment of the mortgage in circumstances where, the Court finds, he plainly had the capacity to do so, is inexplicable except, perhaps, by reference to the Court’s observations about the emotional overtones of this case. In short, in the post-separation period the Wife did what she could, and the Husband did what he was supposed to do having regard to his superior financial circumstances, and the benefits he received. The Court assessed this contribution as at the date of trial to be equal.
The Court mentions in passing that there was some evidence of cash that was supposedly placed in the safe in the former matrimonial home, as at the time of separation. The Husband contends that the Wife took the cash. The Wife contends that the Husband retained the cash. No findings are possible in this regard. Having regard to the totality of the evidence of the financial circumstances of this couple; if there was cash, it is hard to imagine that it was of a substantial amount, such that it would have distorted an assessment of contribution at the end of the long relationship as being equal.
The focus then turns to assessment of contribution in relation to superannuation assets. The Husband contends that it should be 57.5 per cent, the Wife 50 per cent. What is clear is that between 30 June 2015 and 30 October 2018 the Husband’s superannuation increased by an amount of $133,577, or just over 20 per cent. There is no evidence to suggest that the Wife made a direct or indirect, financial or non-financial contribution towards that accumulation of superannuation in the post-separation period. It would not, therefore, be just and equitable for her to share in that increase, particularly having regard to the very long period after separation and the Hearing of this matter. In the circumstances, the Husband’s contention of 57.5 per cent contributions to his superannuation, is just and equitable.
An adjustment for future needs?
Both the Husband and Wife are of comparable age. The Husband concedes that he is in good health and working full time. The Wife led some evidence about her health, both physical and mental, but the evidence is not such that the Court can make any finding in her favour, about her health.
The Court has assessed contribution to be equal, so in that regard each will have similar amounts of property and financial resource, with the exception of the Husband’s post-separation superannuation. The real disparity between the parties is in relation to their earning capacity. In short, the Husband is engaged in highly-paid, skilled labour, whereas the Wife is engaged in poorly-paid, unskilled labour. He earns much, much more than she does. There is no reason to believe that his income will decline, or that hers will increase. This is a significant factor pointing to an adjustment under section 75(2) in the Wife’s favour.
The Husband has the responsibility to care for the parties’ youngest child. Whilst the other two children live with him, they are adults and the Court does not accept that he has a responsibility, for present purposes, to meet their needs. The evidence suggested that the children earn some income, and yet the Husband could not explain why he was meeting all of their expenses without some contribution from them, by way of board or otherwise. Nonetheless, as regards the youngest child, this is a factor that must be taken into account in assessing any adjustment under section 75(2). It is, nonetheless, a time-limited factor.
The Wife is paying child support in relation to [X]. It is a relatively modest amount, disproportionate to the actual costs of providing care for [X]. Nonetheless, it is the amount assessed having regard to the Wife’s income.
These appear to be the main factors under section 75(2). The Court assesses these considerations by reference to the evidence, as resulting in an adjustment in the Wife’s favour of 7.5 per cent.
The Wife did not seek an order that the section 75(2) adjustment be applied to the superannuation assets. The Court accepts that this is appropriate, under the circumstances.
A just and equitable Order
Having regard to the above, the Wife should receive an adjustment in her favour of 57.5 per cent of the non-superannuation pool, and 42.5 per cent of the superannuation pool. In relation to superannuation, this means that the Wife would be entitled to $286,115.95. Taking into account the value of the superannuation she already holds, this means the superannuation split from the Husband’s fund is $226,565.95.
In relation to the non-superannuation assets, the Wife’s 57.5 per cent share totals $503,634. The assets that she already has total $53,025, meaning that the payment from the Husband to her would be $450,609.
The Husband contended that, given a reasonable time, he would be able to raise the moneys to buy out the Wife’s share in the former matrimonial home. The Wife proposed 28 days in this regard, whereas the Husband did not nominate a date. Given that the Husband will need to refinance, the Court will give him 42 days to make the payment to the Wife, failing which leave will be granted to relist in relation to enforcement. To facilitate the implementation of these Orders, the parties’ joint E BANK account should simply be transferred to the Husband after the transfer of funds has taken place. Each of the Husband and the Wife should otherwise retain all other items of personal property in their possession or control. The Court is satisfied that the order it proposes is as just and equitable as he evidence allows.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 15 February 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness
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Statutory Construction
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