Gully and Aksoy

[2017] FCCA 118

FEDERAL CIRCUIT COURT OF AUSTRALIA

GULLY & AKSOY [2017] FCCA 118

Catchwords:
FAMILY LAW – Property – contributions – assessment of contributions in long marriage where husband suffered injury post separation and received payout equating to 60% of the current matrimonial pool – adjustment to wife and husband having regard to the relevant 75(2) factors being wife’s care of a disabled child and husband’s incapacity to work.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 75(2)(o)

Cases cited:

Ferraro v Ferraro (1993) FLC 92-335

Fields v Smith (2015) FLC 93-638

Pierce v Pierce (1998) FamCA 74

Applicant: MS GULLY

Respondent: MR AKSOY

File Number: SYC 6249 of 2013

Judgment of: Judge Henderson

Hearing dates: 27 and 28 July 2016

Date of Last Submission: 20 October 2016

Delivered at: Sydney

Delivered on: 30 January 2017

REPRESENTATION

Counsel for the Applicant: Mr Givney

Solicitors for the Applicant: Burt & Allen Lawyers

Counsel for the Respondent: Mr Schonell SC

Solicitors for the Respondent: Pritchard Law Group

ORDERS

1. That within 56 days of the date of these orders the husband via his financial manager Ms N cause the current mortgages secured over the former matrimonial home including the Property B overdraft to be discharged and pay (omitted financial service) the sum of $6,600 from the funds held in his superannuation fund together with the tax payable as a consequence of the draw down.

2. Within 14 days thereafter the wife to sign all documents necessary to transfer to the husband all her right title and interest in the former matrimonial home situate and known as Property A being all the land in certificate of title volume (omitted) and the (omitted) car.

3. Simultaneously with the wife’s compliance with order 2 the husband to effect a super splitting order to allocate to the wife the sum of $1,142,122 in his (omitted) Superannuation Fund.

4. That subject to and upon compliance with orders 2 and 3 herein Mr Aksoy and his Financial manager and (omitted) Superannuation Limited (“Trustee”), do all necessary acts and things, sign all documents and give all consents necessary to give force and effect to the Orders hereunder.

   (a)Order that paragraph 4 (b) to (g) of these Orders are binding on the Trustee of the Fund.

   (b)That the amount allocated to the Wife in these proceedings out of the interest of the Husband in these proceedings in the Husbands Superannuation Fund held with (omitted) (“the Fund”) is $736,000.

   (c)That pursuant to s.90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of the Husband in the Fund the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and that there be a corresponding reduction in the entitlement of the Husband to whom the splittable payment would have become payable but for these Orders.

   (d)That Order 9d) has effect from the operative time.

   (e)The operative time for the purpose of Order 4 (d) of these Orders is fourteen (14) days from the date of service of these Orders upon the Trustee of the Fund.

   (f)The Husband shall, within fourteen (14) days of becoming entitled to receive superannuation benefits from the Fund, provide to the Fund all such forms as shall be necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require.

   (g)That there be liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

   (h)The husband may at his election reduce the splittable payment to the wife by making a cash payment in addition to a super splitting order in order to comply with order 3 herein.

5. That the Husband be declared, as against the Wife, the sole legal and beneficial owner of such interest as the Husband has in motor vehicle 2009 (car model omitted), (car model omitted), (omitted) motorbike, (omitted) motorbike and (omitted) Boat all his bank accounts, the Fund and the contents of the Home.

6. Except as otherwise provided in this Order, each party is entitled to be the sole legal and beneficial owner of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.

IT IS NOTED that publication of this judgment under the pseudonym Gully & Aksoy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6249 of 2013

MS GULLY

Applicant

And

MR AKSOY

Respondent

REASONS FOR JUDGMENT

1. This is an application for property proceedings, heard on 27 July 2016 and stood over for final submissions to 20 October 2016. Mr Givney of Counsel appeared for the applicant wife and Mr Schonell SC for the respondent husband.

2. The material I read for the Wife was as follows;

   a)The wife’s application filed 25 October 2013;

   b)The wife’s affidavits filed 13 October 2016, 25 July 2016, 24 October 2013 and 9 February 2013;

   c)The wife’s financial statements filed 25 July 2016 and 6 July 2015.

3. The material I read for the husband was;

   a)The affidavit of Ms N (the husband’s sister, who is his case guardian), filed 5 July 2016;

   b)The affidavit of [X] (a daughter of the parties), filed 25 July 2016;

   c)The affidavit of [Y] (a daughter of the parties), filed 10 July 2015;

   d)The affidavit of Mr L, filed 10 July 2015; and

   e)The affidavit of Ms J, filed 10 July 2015.

4. Only the wife and Ms N were cross-examined.

5. The Wife’s Exhibits were:

   a)Exhibit 1: Letter from child support to the wife dated July 2016 showing child support to be paid to her of $114.42 per month for [Z].

   b)Exhibit 2: Affidavit of wife dated 13/10/2016

   c)Exhibit 3: A report from Mr I clinical psychologist relating to [Z]’s current functioning and prognosis for his possible future independence dated 21 January 2014,

   d)Exhibit 4: Copies of statements for the husband’s superannuation account ending (omitted) from 16 January 2014 to 30 June 2014 and statements for the account ending (omitted) in the husband’s name for the period 16 May 2014 to 8 June 2014.

   e)Exhibit 5: Wife’s statement of assets and liabilities.

   f)Exhibit 6: Further submissions and the effect of the orders sought by the wife

6. The Husband’s exhibits were:

   a)Exhibit 1: Notice of tax assessment for the husband for the year ended 30 June 2015.

   b)Exhibit 2: Bank statements account ending (omitted).

   c)Exhibit 3: A letter from (omitted) to the husband dated 20 June 2012.

   d)Exhibit 4: A letter from (omitted) to the husband dated 10 May 2016.

   e)Exhibit 5: 2016 estimated tax return for husband.

   f)Exhibit 6: Payout details for the (car omitted).

   g)Exhibit 7: Wife’s financial statements of 24 October 2013, 26 March 2014 and 6 July 2015.

   h)Exhibit 8: Wife’s bank account statements produced at the hearing in July.

   i)Exhibit 9: Minute of the orders sought by husband.

   j)Exhibit 10: Email in relation to the husband’s superannuation.

   k)Exhibit 11: Husband’s further estimated tax return for 2016.

   l)Exhibit 12: Email dated 7 May 2013 from the husband’s lawyer to the wife’s lawyers regarding wife withdrawing $25,000 in 2013.

   m)Exhibit 13: Invoice in relation to the cost for preparing his tax return.

7. A report was prepared by Mr N in relation to the taxation implications for the husband and wife of the various options available to the husband in relation to his superannuation. That report was marked court exhibit 1 and was tendered by consent.

8. There is a sad history in this matter. Apart from the breakdown of their marriage the parties have suffered significant tragedies in their life. Their first tragedy is their son [Z] has a significant disability and is on the autism spectrum. [Z] lives with his mother and spends limited time with his father.

9. The second tragedy is that the father suffered a life-changing accident in August 2013 after separation, when he was injured in a motorcycle accident. The consequences of that have been that he is now, and has been since May 2016 unemployed and will never be able to work again. That is clear, accepted and understood.

10. Thirdly, the wife had re-partnered and was living in the (country omitted) with the child and her partner Mr K. The wife and Mr K were married one month before his tragic death in March 2016 from a brain tumour. The wife determined to return to Australia with the child.

11. The short relevant history is as follows;

    a)The parties were married on (omitted) 1990 and separated on 3 March 2012.

    b)[X] was born on (omitted) 1993, [Y] on (omitted) 1997 and [Z] on (omitted) 2005.

    c)The wife is 52 and the husband is 51.

    d)At marriage the husband owned a property at Property C with which the wife agrees. The wife had few assets and was employed at (employer omitted).

    e)The husband sold his unit and received some $60,000 which assisted the parties in the purchase of the former matrimonial home.

    f)The husband was always employed throughout the marriage and earned a significant income. The wife has not worked since before the birth of the child [X].

    g)The parties purchased a property in 1997, being part of a development the husband was involved in.

    h)The parties purchased the former matrimonial home at Property A in 1998.

    i)The parties expended about $250,000 on the property in renovations. This money came from monies the husband received when he wound up a company in 1992.

    j)The parties purchased a block of land in Property B in 2004 for $103,000 and built a home on that property and leased it out as a holiday guest home.

    k)In 2009 the husband purchased an (omitted) motor bike. He withdrew $10,000 from the line of credit. He purchased an (omitted) motorbike and a (motorbike omitted) in August 2009 and withdrew something like $22,000 from the line of credit for those purchases.

    l)In April 2010, the husband purchased a (omitted) motor vehicle for $100,000 and withdrew $99,000 from the line of credit.

    m)In 2011 the husband received a cash bonus of $65,000.

    n)In 2011 [Z] is diagnosed with global developmental delay and autism.

    o)The husband received a cash bonus in January 2012 of $ 48,189

    p)The parties separated under the one roof in March 2012.

    q)The wife left for (country omitted) in June 2012 and left the children with the father and he employed a nanny to care for [Z].

    r)In 2012 the wife formed a relationship with Mr K.

    s)The parties commenced to negotiate a property settlement.

    t)Wife moves to the (country omitted) in 2013

    u)The husband is earning a substantial income in May 2013 of around $303,000 pa plus bonuses.

    v)In August in 2013, the husband has a serious motorbike accident and which has resulted in a severe brain trauma.

    w)The wife returns to Australia to care for the children in September 2013.

    x)By agreement the wife is given sole parental responsibility for [Z] and [Z] has lived with his mother since September 2013.

    y)Just prior to Christmas in 2013, the wife and [Z] leave for the (country omitted).

    z)The husband is discharged from hospital in 15 January 2014 and his sister is appointed as his guardian in February 2014.

    aa)Various orders are made by the court to sell items of personality being the husband’s cars and motorbikes as he can no longer drive.

    bb)They have not been sold. The evidence of Ms N was that even though he is unable to drive the husband is emotionally attached to these vehicles and motor bikes and she could not see a way to sell them given his distress at that prospect.

    cc)The property at Property B is sold for $350,000 and the proceeds of sale were used to reduce the mortgage on the former matrimonial home.

    dd)The husband is ordered to pay the wife $60,000 by 21 May 2014 which he does

    ee)Remarkably, the husband returns to employment in July 2014.

    ff)At that time the wife was living in (country omitted) with the child. On December 29 2014 the wife commences to live in the (country omitted) and [Z] commences at a special school in the (country omitted).

    gg)In 2015, the husband is suspended from work due to unacceptable behaviour.

    hh)The wife marries Mr K in March 2016 and he dies one month later.

    ii)The husband’s employment with (employer omitted) ceases in May 2016 and the husband ceases paying child support.

    jj)The wife has received some $140,000 by way of partial property settlement since separation being $25,000, $65,000 in April 2014 and $47,000 in June 2016.

    kk)The husband earned income up until he ceased employment in May 2016 and he continued to pay child support for the child whilst he was employed.

12. Ultimately, there are very few factual disputes that impact upon the decision I am tasked to make, which is what is a just and equitable division of the parties’ property having regard to the following;

    a)For the husband his entitlement to the matrimonial property expressed as a percentage having regard to his;

    i)initial financial contribution of $60,000 at the commencement of the relationship in November 1990;

    ii)the significant superannuation in the husband’s name totalling around $2.102 million of which $1.4 million was realised only as a consequence of an insurance payout due to the husband’s motorcycle accident in August 2014;

    iii)any adjustment made to his contribution based entitlement due to his current disabilities and any other relevant factor under 75(2) of the Act.

    b)For the wife: her entitlement expressed as a percentage of the matrimonial property having regard to her;

    i)contribution as parent and homemaker during and post the marriage

    ii)any further adjustment to be made having regard to the relevant 75(2) factors.

13. The wife has not worked since before the birth of [X], some 24 years ago and has the full-time care of [Z]. [Z] struggles with mainstream school or any mainstream activity due to autism and global intellectual delay. It may be that [Z] will never be self-supporting financially or physically and his mother may be supporting him at all levels for the rest of her life.

14. Mr C’s report regarding [Z]’s’ future employment and independence prognosis starts at paragraph 4.8.1;

    “…any comment about the likelihood of future employment is speculative and considerably difficult. [Z] is still very young, and with the advancement of technology and shifting occupational roles, it is likely future employment prospects will be significant different from today’s standards.

    4.8.2 With the above caveat in mind, in my opinion, finding gainful employment for [Z] will be difficult. His problem solving ability, conceptual awareness, short term memory and learning ability, and speed of mental processing are severely impaired …

    … 4.8.3 With today’s knowledge of the workforce, it is most likely that [Z] will be able to work in some form of manufacturing with strict supervision. It is unlikely that he will be able to make complex decisions and it is unlikely that he will be able to undertake jobs that require an independent approach.”

15. Mr C’s diagnosis of [Z]s’ conditions is at paragraph 4.4.1

    “Autism Spectrum Disorder – Moderate

    Intellectual Disability –Moderate to Severe.”

16. At paragraph 4.7.1;

    “In my opinion, [Z]’s future emotional needs will be similar to his current needs. It is likely that he will need assistance with decision making, socialising, problem solving and general day-to-day living. People with intellectual disability at [Z]’s’ level are at an increased risk of exploitation by others, and require assistance even as adults.”

17. I accept the submission by Mr Schonell that it is not known whether the wife will return to the (country omitted) or (country omitted). I do not see that possible unknown has any great impact upon the decision I am to make. There have been significant tragedies in the wife’s life and one of them is her potential forever full-time care of [Z]. The wife will make a decision where she is to live that is best for her and the child. That decision will not affect her responsibility to [Z].

18. I accept the submission of Mr Givney that the monies the wife receives from her property settlement will be all the money she will ever get. However, that is also true of the husband given he has no capacity to work. What the parties have today is all they are likely to have into the foreseeable future and is all they have to divide between them.

19. What do the parties have today? There was no agreed balance sheet, unfortunately. However, looking at their assets I find as follows.

    a)The home is agreed at $1.180 million.

    b)Furniture $11,000. The wife seeks a split of the furniture or an adjustment in relation to the furniture if the husband keeps it.

    c)The husband has $6,495 in four bank accounts. In July 2016, he had substantially more in those bank accounts, and those amounts were variously $9,053 in his (omitted) account, $3,846 in his (omitted) account, $1,506 in his (omitted) account. The total of those accounts at that time was $28,000, and it is currently $6,495.

    d)The wife has $23,000 in her bank account.

20. The husband is seized of the following personality:

    a)(omitted car), $120,000;

    b)(omitted) motorbike, $10,000;

    c)(omitted motorbike), $22,000;

    d)(omitted) boat, $25,000;

    e)(omitted car), $15,000:

    f)Total $192,500.

21. The wife has 2694 stapled securities in (company omitted) value $11,943.80.

22. The joint matrimonial debts are:

(omitted) Line of Credit on Property B property	$2,354
Fixed Home Loan	171,665.51
Variable Home Loan	$54,659
2nd (omitted) Line of Credit	$295,268.15
Husband’s finance for the (omitted car)	$10,067
fees for the (omitted financial service) report prepared by Mr N	$6,566.17
Total	$534,552

1. I do not see that the husband’s estimated tax liability for 2016 of $12,180 nor his accountants fees of $990 are matrimonial debts.

2. Mr Givney asserts that the debts are only $475,229 as the wife seeks I add back to the pool monies the husband has spent post separation from sources other than his income.

3. The husband does not seek to add back any monies the wife has received post separation.

4. The reality is, the husband has had, despite his injury, a reasonably high income since separation due to work he engaged in post his injury without assistance from the wife. Mr Givney asserts the husband has received in excess of $600,000 post-separation. However, some of those monies he received have been paid to the wife and were used to maintain joint matrimonial assets.

5. The husband’s position is that the income that he received over the four-year period amounted to about $135,000 per annum and it was income he earned and thus not an add-back, and I accept that submission. I prefer the approach of Mr Schonell on this issue and will have regard to the totality of the financial resources each have had had and the source of that resource in my decision and I find there are no add-backs in this matter.

6. The impact of the affidavit filed 13 October 2016 and the submission by Mr Schonell that the husband had an income of $135,000 per annum at minimum supports the wife’s position that the husband’s lifestyle had not radically changed since separation.

1. Whereas I accept the wife’s position she has been living in extremely straitened financial circumstances since separation. The wife was being supported either by Mr K or from monies paid to her by the husband by way of distribution of matrimonial assets as she was not working and could not work for a host of reasons, the key reason being her care of [Z].

2. The husbands’ position changed when his employment with (employer omitted) ceased in 2016. Each party is now dependent upon the monies they receive in these proceedings to support themselves into the future.

3. It is true, as Mr Schonell submitted, that the wife has no physical impairment preventing her from working. The wife is physically well and suffers no disabilities. However, her capacity to work is compromised by three factors.

   a)The first is the length of the marriage, some 22 years, and that she was the primary stay-at-home parent and homemaker and has not worked for 24 years.

   b)Secondly, she has no skill or training for any work and would have to retrain at age 52.

   c)Thirdly her care of [Z], a child who requires significant day-to-day care. I find that the wife has like the husband no capacity to support herself into the future from work.

4. I accept the proposition that the wife’s contribution to the current superannuation is limited due to the husband’s contributions of $1.4 million due to his accident. Mr Giveny assessed her contribution at around 17.5% .

5. However consistent with authorities such as Fields v Smith[1], Pierce v Pierce[2] and Ferraro v Ferraro[3] both parties contributions must be looked at over the whole of the period being during the marriage and post separation and then an assessment made of their needs into the future.

   [1] (2105) FLC 93-638

   [2] (1998) FamCA 74

   [3] (1993) FLC 92-335

6. Looking at the parties entitlement to the assets other than superannuation the parties contribution based entitlement is as at separation equal and neither party contended for any other finding.

7. These assets are;

Cars	$192,500
The home	$1,180,000
Stapled securities in (company omitted)	$11,933
furniture	$11,000

1. I will not include monies in the husband’s bank account or the wife’s bank account as part of the assets for division.

2. The matrimonial debts are as follows:

(omitted) Line of Credit	$295,268
Variable home loan	$54,659
Fixed home loan	$171,665
(omitted) Line of Credit for Property B	$2,354
Finance debt for the (car omitted),	$10,607.85
Total	$534,553

1. Total debts are $534,553. Deducting those debts from the matrimonial assets as I found them to be there is an amount of $860,390 to be divided.

2. The total superannuation, including the wife’s modest amount of $2,422 is $2,120,806.86.

3. I accept the submission and the report of Mr N that the parties can each draw down from the superannuation fund in the husbands’ name due to his incapacity for work and thus this money is available to them. I accept that there is a tax liability in relation to any superannuation monies drawn down if drawn down prior to the age of 60.

4. Mr Schonell’s submission was that if the total amount of the superannuation in the husband’s name was drawn down, the tax payable on that would be $316,470 with the tax free component of $661,500. Thus, he says the superannuation amount ought to be reduced by $316,470. He says this is appropriate because the husband wishes to retain his cars and he wishes to retain the home. The wife is not averse to the husband retaining the home and merely seeks a cash adjustment.

5. Mr Givney’s submission was that I ought not to reduce the superannuation balance at all by deducting tax payable as the parties may not wish to draw down their superannuation entitlement to pay out debts. However the matrimonial debts secured over the home are just that, joint debts. If in paying those debts off and reducing them to nil a tax debts arises then that tax liability must also be shared. The husband will be required to extinguish the wife’s’ liability for the current mortgages upon the home being transferred to him and he does not have sufficient other liquid funds to do so other than drawing down from his superannuation fund to do so. It would be grossly unfair to saddle only the husband with tax payable upon discharging joint debts.

6. However, I will not take the entirety of tax payable as if the whole amount was drawn down as I accept Mr Givney’s submission that the wife may not draw down her share of superannuation until age 60. In the event either the husband or wife choose to draw down their superannuation once matrimonial debts are paid, that is a matter for them and tax will come off their share.

7. The matrimonial debts are $524,485 being $534,553 less the (omitted) car debt of $10,550. Going to Mr G’s table if an amount of $600,000 is drawn down by the husband he will incur a tax debt of $90,420. I accept that I should reduce the gross superannuation to be divided by $90,000 to make allowance for extinguishing the joint matrimonial debts.

8. Thus the adjusted superannuation to be divided between the parties is $2,030,806 being the current superannuation of $2,120,806 less $90,000. This sum together with the liquid assets of $860,390 is a total of $2,891,196 to divide. I have disregarded the cents in this calculation.

9. At separation I accept the husband’s superannuation was around $276,000 and that at the time of the accident was some $600,000. Mr Schonell says that that superannuation has now grown to in excess of $2 million due to two factors.

10. First, the husband’s continued earning of income and consequent increase in his superannuation and the huge insurance payout after his most unfortunate accident of some $1.4 million.

11. Mr Schonell submitted that these increases are his contributions solely and his entitlement to that pool must stand at 90 to 92 per cent and that the wife could only possibly be entitled to some seven to eight per cent of that pool by way of her contribution.

12. I do not accept the submission that I am bound to only have regard to the value of the superannuation at separation in determining the wife’s contribution based entitlement for several reasons.

13. The first is that the superannuation increased over time since separation due not only to the husband’s contribution due to employment but also the usual increase in the value of the assets comprised in the superannuation fund over time by investment strategy and the like of the trustee of the fund.

14. Secondly, the wife has clearly contributed to the increase in the base superannuation to $600,000 as she made a contribution to the amount in the fund at separation and has continued to contribute to that fund by her parent and homemaker contribution continuing post separation in the sole care of [Z] since September 2013 and her contribution must be looked at over the whole of the period see Fields v Smith[4], Pierce v Pierce[5] and Ferraro v Ferraro[6].

    [4] (2105) FLC 93-638

    [5] (1998) FamCA 74

    [6] (1993) FLC 92-335

15. In relation to the $1.4 million of the fund from the insurance pay out, I accept the wife’s contribution based entitlement is limited as the monies came to the husband due to an accident and from injuries he suffered post separation although she had made a contribution to the husband in being able to acquire and sustain his position with (employer omitted) by her homemaker and parenting contributions.

16. The first issue is whether I assess the wife’s contribution to the total superannuation pool separately to the other assets? Given that the superannuation is available to the parties albeit with a tax liability for drawdowns prior to age 60 I propose to treat the party’s assets as one pool even though I accept the wife’s contribution to the current value of the superannuation pool is at first blush limited.

17. Looking at the party’s marriage as a whole, the wife’s contribution was and still is as a parent and homemaker. The wife was the stay at home parent and continues in the sole care of [Z] and this permitted the husband in the past to work the long hours and do the job he did as she was the parent who took up the care of three children of the marriage. The wife’s support of her husband in working in jobs that took him away during the week and for long hours during the week at times meant he was only available on weekends and in holidays to assist her. Her care of [Z] post separation and sole care since the husband’s accident has allowed him to focus on his rehabilitation and to continue to work for some time after his accident as he did not have the care of or responsibility for [Z] and this is a contribution to the increase in superannuation.

18. The husband made an initial contribution of $60,000 to the party’s assets at the commencement of the marriage some 20 years ago, was clearly the sole income provider for the family and has made a superior contribution to the current superannuation.

19. I find the based on the parties past contribution to their assets that the husband has made a superior financial contribution to the parties assets and I assess his contribution as 75% and the wife 25%.

20. Going now to the 75(2) factors and whether an adjustment ought to be made to my finding of the parties past contribution based entitlement to these assets.

21. I find that the 75(2) factors in relation to the wife and husband being unable to work are similar. The fact that the wife is physically capable of working is not the only issue. The wife has not worked for 25 years; she has no training and would need to re-train. The wife is 52. Even if I found the wife had some limited capacity to re-train and then find work that is simply not an available finding given the care needs of [Z] which are overwhelming to the wife re-training and /or working.

22. Secondly, I do not accept that at 18 [Z] will be self-supporting with a job. The expert report by Mr I marked wife’s exhibit 3 regarding [Z]’s capacities and needs said if he did find work the income he would earn would be minimal. I find it more likely than not that he will be unable to live independently in any sort of accommodation and will be reliant upon his mother, and that she will be supporting him at every level for the rest of her life. The father spends limited time with the child and [Z]’s emotional and day to day support and financial support will fall to the mother into the future.

23. Thirdly, the wife is unlikely to receive child support from the husband given he is no longer working or if she does it will be a modest sum. Thus the wife will be required to support [Z] solely from her own resources.

24. Fourthly, post separation and having regard to section 75(2)(o) of the Act[7] the wife has solely cared for [Z] for the majority of that time, a child with autism, behavioural difficulties and global developmental delay. The husband has lived in the former matrimonial home, and whilst maintaining that home he has had the benefit of stable, good quality accommodation, earning an income of no less than $135,000 per annum. Further, the husband will continue to reside in the home and has no need to pay the costs associated with re-housing himself as the wife must do.

    [7] Family Law Act 1975 (Cth), s.75(2)(o)

25. The wife has lived like a gypsy endeavouring to establish herself with her son across the globe. Up until he lost his position with (employer omitted) in May 2016 the separation has had little financial impact on his lifestyle whereas for the wife separation has wrought a significant negative change.

26. I accept the husband is no longer able to work and he, like the wife, must support himself from the monies he receives after this hearing. However the wife has both herself and [Z] to support and [Z]’s support is more likely than not to be for the remainder of the wife’s life.

27. Additionally the husband had the whole of his legal fees of $180,000 paid by his employer, employment to which the wife has contributed yet the wife received no such windfall and she must pay her legal fees from her resources.

28. Looking at the above matters I find the wife’s 75(2) factors to be greater than the husbands and that her past contribution to the party’s assets should be adjusted by 15 per cent for the above reasons. This results in an entitlement of 40% to the wife and 60% to the husband.

What is the result of this division?

1. The total of the assets are $2,891,196 of which $860,390 has no tax liability attached to it and to which each party agrees they made an equal contribution.

2. 40% of $2,891,196 is $1,156,478 to the wife and $1,734,718 to the husband. The wife has $11,934 in stapled securities and $2,422 in superannuation therefore the net payment to her is $1,142,122.

3. I am mindful that the home and cars are to remain in the husband’s control and they do not attract any tax on sale or liquidation unlike a draw down from superannuation if done so before age 60 and this is further support for a 40% division to the wife in order to do justice and equity between the parties.

4. Mr Giveny’s submission was I should not reduce the superannuation fund at all by giving an allowance for tax as the parties may not draw down their superannuation until age 60. I did not accept that submission for the purpose of paying off joint debts however I accept the submission that it is not known what monies the wife will draw down from her superannuation split and thus no allowance could be made for the tax implications.

5. I propose that the husband make a splittable payment to wife of the entirety of the money I have found she is entitled too from his superannuation fund. That will be payment of $1,142,122. No tax attaches to that money unless drawn down before age 60. If the wife draws down any money prior to that time she will pay tax. This order may operate unfairly to the wife if she draws down a large sum prior to age 60 however whether she will or not is so contingent I cannot do otherwise if I am to make an order that is just and equitable to both parties .

6. The husband would retain

   a)the unencumbered home at $1,180,000 ,

   b)cars etc $192,000

   c)furniture $11,000

   d)total of $1,383,000

7. The balance of his superannuation after a super splitting order to the wife of $1,142,122 and paying the joint debts of $524,000 is $364,648

8. If the husband wishes to retain more superannuation he can sell his cars and pay the wife her entitlement by way of cash and a splitting order. He would then retain some $560,000 in superannuation. That is a matter for him and his financial manager.

Are these orders just and equitable?

1. The wife is receiving 40% of a net asset pool of $2,891,196. The wife has made a modest contribution to the superannuation component of the pool given that 75% of that asset was an insurance payout of $1,400,000 due to the husband’s injury. That contribution was overwhelmingly the husbands’ contribution. The wife has the full time and life time care of [Z] with little financial or practical support from the husband due to his injuries. The wife will be seized of assets which will be sufficient to house her and [Z] with little left for her future support by way of superannuation. The husband will retain the unencumbered former matrimonial home and if he sells his cars etc have sufficient superannuation to support himself into the future. In these circumstances I find the orders are just and equitable and I will so order.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  30 January 2017