Golding and Golding

[2012] FamCA 297

FAMILY COURT OF AUSTRALIA

GOLDING & GOLDING [2012] FamCA 297

FAMILY LAW - PROPERTY – Consent orders sought by unrepresented litigants – Registrar refused - Orders made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Golding

RESPONDENT: Ms Golding

FILE NUMBER: AYC 419 of 2011

DATE DELIVERED: 13 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 January 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the husband pay to the wife $15,000 (noting that it has already been paid) by 10 February 2012, the wife to sign all such documents as may be required to transfer to the husband at his expense, all of her interest in the property at … N Street, Town B, NSW.

2. That forthwith, the husband pay and otherwise indemnify the wife in respect of the mortgage and outgoings concerning the Town B property.

3. That by 10 February 2012, the husband provide to the wife a discharge of her liability to the National Australia Bank in respect of the mortgage encumbering the Town B property.

4. That each party otherwise retain to the exclusion of the other, all property including superannuation in the possession of that other party as at this date.

5. That all extant applications are otherwise dismissed.

6. That a transcript of the reasons this day be placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Golding & Golding has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: AYC 419 of 2012

Mr Golding

Applicant

And

Ms Golding

Respondent

REASONS FOR JUDGMENT

1. This is an application that was sent into open court as a result of a requisition by a registrar.  The parties, who live in New South Wales, reached agreement and signed a draft of that proposed agreement on 19 October 2011, and despite a number of attempts, the registrar declined to make the orders, predominantly because there was a clear disparity between the parties in relation to their respective superannuation interests. 

2. The function of the court is to only make orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”) if it is satisfied that it is just and equitable to do so. The phrase “just and equitable” simply translates to what is fair. It is a subjective judgment, but ultimately it must be one that the court is satisfied about.

3. The parties have lived together for nine years, separating in March of last year, and they have no children, and the husband is in the armed forces and the wife is a healthcare worker.  They are aged 34 and 32 years respectively.  Each is earning roughly the same income.  The pool of assets, excluding superannuation, is modest.  They have an equity of about $34,000 in their house, a couple of cars, and a little bit of cash. 

4. The difference between their respective financial positions lies in their entitlements to superannuation.  The husband has superannuation interests, which on their face, show somewhere around $250,000.  Virtually all of that is preserved until retirement, which under the fund can only occur at the age of 65 years.  That means that that money cannot be in his hand on that scenario until 30 years roughly from now.

5. The wife is in a position where she has $10,000 from her healthcare work over the last three years, and $8000 from jobs prior to her becoming a healthcare worker.  She has a total of $18,000 in superannuation.  The gulf is obvious.

6. Section 79 of the Act requires a court, when contemplating whether or not something is fair, to look at the respective contributions of the parties, as well as a number of factors which effectively look at the economic futures of the parties.

7. In respect of contributions here, there is no dispute between the parties on the facts.  The husband had been making a contribution to the superannuation fund for about one-third or more of the total period of time prior to the relationship.  I do not have any exact figure, but I can presume that it would be not mathematically the same as about one-third of the current value.

8. The wife’s superannuation is, as I said, from her healthcare work, but for three years of the parties’ relationship, she was supported entirely by the husband whilst she studied. 

9. In this particular case, I am satisfied that the settlement is fair because the superannuation is a long way from vesting.  There could very well have been orders made for splitting of the superannuation but neither party wants that to occur.  Each party is sufficiently young to be able to build up a superannuation base, and the wife is cognisant of the fact that she will never have the superannuation entitlement that the husband has.  He contributed a lot more at the start of the relationship and no doubt he will continue to build on that. 

10. He has contributed half of the equity in the home and that is about the maximum that he can borrow.  Whilst all of these matters are very subjective, and it is a fine line, this is a case where the reality is that the parties are satisfied with what they want to do here and, more importantly, they get the benefits of getting out of the relationship that is now ended.

11. I am satisfied that, whilst there is some hesitation about the commercial realities of all of this, this is a settlement that the Court ought to approve.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 January 2012.

Associate: 

Date:  17 April 2012