Gully and Jewell
[2019] FCCA 276
•13 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GULLY & JEWELL | [2019] FCCA 276 |
| Catchwords: FAMILY LAW – Property – short relationship – contributions – consideration of future needs |
| Legislation: Family Law Act 1975 (Cth), ss.90SM, 79 |
| Cases cited: Coughlan & Coughlan (2005) FLC 93-220 Quinn & Quinn (1979) FLC 90-677 Norbis v Norbis (1986) 161 CLR 513 Stanford & Stanford (2012) 247 CLR 108 |
| Applicant: | MR GULLY |
| Respondent: | MS JEWELL |
| File Number: | HBC 382 of 2017 |
| Judgment of: | Judge Baker |
| Hearing dates: | 30 – 31 July 2018, 2 August 2018 and 30 January 2019 |
| Date of Last Submission: | 30 January 2019 |
| Delivered at: | Hobart |
| Delivered on: | 13 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Munro |
| Solicitors for the Applicant: | Munro & Associates |
| Counsel for the Respondent: | Ms Mooney of Counsel |
| Solicitors for the Respondent: Counsel for the Independent Children’s Lawyer: Solicitors for the Independent Children’s Lawyer: | PWB Lawyers Mr Fitzgerald Legal Aid Commission of Tasmania |
ORDERS
Within 30 days the applicant shall do all acts and things necessary to refinance the Members Equity Bank home loan … comprised of loan account numbers … and … with respect to Property A in Tasmania and Property B in Tasmania into his sole name, to the intent and effect that the respondent is released entirely from that liability.
Contemporaneously with paragraph 1, the applicant shall pay the sum of $42,617 to the respondent by bank cheque payable to PWB Lawyers.
If the applicant is unable to comply with paragraphs 1 and 2, he shall immediately list for sale the property at Property A and/or the property at Property B in Tasmania and for that purpose the following will apply:
(a)The selling agent shall be such agent or agents as the parties may from time to time agree or in default of agreement as hereinafter provided.
(b)The listed sale price and method of sale and manner of advertising for sale shall be as agreed by the parties and in default of agreement as hereinafter provided.
(c)The terms and conditions of sale, including the acceptance or rejection of any offer to purchase the property, shall be as agreed between the parties and in default of agreement as hereinafter provided.
(d)In default of agreement between the parties in respect of any of the matters referred to in sub-paragraphs (a) to (c) inclusive hereof:
(i)Either party may request the President of the Law Society of Tasmania or his nominee (hereinafter called ‘the Arbitrator’) to determine the matter in dispute;
(ii)The cost of the Arbitrator’s determination shall be borne equally between the parties.
The parties shall do all such acts and things necessary and co-operate in every way with the selling agent, including signing all documentation requested by the agent in relation to the listing for the sale of the property.
If the property is sold pursuant to paragraph 3 after payment of Members Equity Bank Home Loan …, payment of agent’s commission and costs and legal costs on the sale, the net sale proceeds will be paid in the following priority:
(a)To effect a total cash payment to the respondent of $42,617.
(b)The balance to the applicant.
Pending the sale or sales, the applicant shall be responsible for the payment of the mortgage instalments, council rates and taxes, and all outgoings in respect of the properties.
The applicant shall relinquish in favour of the Respondent and where necessary transfer to her any right, title and interest he may have in the following:
(a)The property at Property C in Tasmania;
(b)Any furniture and contents formerly used by the parties jointly, but now in the possession or control of the respondent;
(c)Any monies at bank, credit unions, savings accounts or investments held by or registered in her name;
(d)Any superannuation benefits held by or for the respondent
(e)to the intent that the respondent be the sole and absolute owner thereof.
The Respondent shall relinquish in favour of the applicant and where necessary transfer to him any right, title and interest she may have in the following:
(a)The property at Property B in Tasmania;
(b)The property at Property A in Tasmania;
(c)Motor Vehicle;
(d)Speed boat;
(e)Drum kit, sports gear, wakeboarding gear and pool table;
(f)Tools;
(g)Any furniture and contents formally used by the parties jointly, but now in the possession or control of the applicant;
(h)Any monies at banks, credit unions, savings accounts or investments held by or registered in his name;
(i)Any superannuation benefits held by or for the applicant;
(j)To the intent that the respondent be the sole and absolute owner thereof
Save as otherwise provided in the orders each of the parties remain solely responsible for any other liabilities in their sole name or liabilities encumbering any property that they are to retain in accordance with the orders.
Save as otherwise provided for in the orders, each of the parties releases in favour of the other party any claim they may otherwise have to an interest in, ownership or possession of any real or personal property presently registered in the name of or in the possession of the other party and to any debt, damages or other sum due or alleged to be due by the other party to that party.
Each of the parties do all such acts and things and execute all such documents as they may be required to do to give effect to the terms of the orders.
IT IS NOTED that publication of this judgment under the pseudonym Gully & Jewell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 382 of 2017
| MR GULLY |
Applicant
And
| MS JEWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings involve an application for parenting and property orders. Following three days of hearing, the parties settled their parenting dispute. Final orders were made by consent on 3 August 2018. The property dispute remained outstanding.
The parties were in a short relationship, commencing co-habitation on …2015 and separating on …2017.
There is one child of the relationship, [X] (‘X]’) born …2016. Since separation, [X] has lived with the respondent and spent time with the applicant, from around October 2017, on one day per week. The parties agreed that [X] will continue to live with the respondent and spend substantial and significant time with the applicant.
Circumstances of the Parties
The applicant is 31 years of age. He is employed as a tradesman and deposed that he earns $41,600 from this employment. He has re-partnered with Ms D, who is a public servant and earns an income of $96,000 per annum. He lives with Ms D in her home. They are engaged to be married.
The respondent is 29 years of age. She is employed as a professional at the Employer A. She earns an income of around $74,000 per annum. She lives with [X] in the home that she owned at the commencement of the relationship. She has re-partnered with Mr E, but does not live with him.
The respondent was diagnosed with multiple sclerosis in 2016. She has also been diagnosed with a generalised anxiety disorder. Her employer allows her to work from home on two days per week, which makes her job manageable.
Proposals
The applicant proposed that a two pool approach be taken. In relation to the non-superannuation pool, he sought a 60/40 per cent division in his favour. It was submitted that the contributions favour the applicant 75/25 and there should be an adjustment of 15 per cent in favour of the respondent for s.90SF factors. In relation the superannuation pool, he proposed a 60/40 division in his favour.
The respondent proposed a one pool approach. In her case outline, she sought a 57/43 per cent division of the non-superannuation pool and the superannuation. This would result in a cash payment to her of $71,303. In closing, her counsel submitted that there should be a division on the basis of 65/35 per cent in her favour. It was submitted that the contributions favour her 55/45, and there should be an adjustment of 15 per cent for s.90SF factors. However, because it was a short relationship, it was submitted that the division should not exceed 65 per cent in her favour.
Relevant Law
Section 90SM(1) of the Family Law Act 1975 (the Act) provides that in property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate. Section 90SM(3) provides that ‘The court must 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.’ Section 90SM(4) sets out the factors which the Court must take into account:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship 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 de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, 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 de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
The court is required to consider whether it is just and equitable to make a property order by identifying the existing legal and equitable interests of the parties in the property. Having regard to those existing interests, the court must be satisfied that it is just and equitable to make a property settlement order.[1] It is then for the court to determine the appropriate order, having regard to the considerations outlined in s.90SM(4).
[1] Stanford & Stanford (2012) FLC 93-518.
An important factor to be considered in this matter is the short duration of the relationship of around two years.
In Quinn & Quinn[2] which was a matter involving a period of cohabitation of less than two years, the Full Court of the Family Court refused an appeal by the husband stating that it was important for the court under s.79 to reach a view as to the proportions which should be regarded as the contributions of each spouse to the acquisition, conservation or improvement of the property. The court did not consider that mathematical precision in calculations was necessary. Chief Justice Evatt stated at page 78,615:
Speaking for myself, I do not necessarily subscribe to the view that one should do mathematical calculations in determining the appropriate property order to make under s. 79. Nevertheless, it is important for the court under s. 79 to reach a view as to the proportions which should be regarded as the contribution of each spouse to the acquisition, conservation and improvement of the property under s. 79 (4), particularly para. (a) and (b). As I said, I do not necessarily think that need be done with mathematical precision, but it is important to reach a view as to whether the contributions of one party were greater than or equal to those of the other party. His Honour has certainly attempted, with some precision, to determine the precise financial contributions of each party, but I think when one tries to be too precise about these matters, it can sometimes happen that that one forgets about the indirect and non-financial contributions.[3]
[2] (1979) FLC 90-677.
[3] Ibid 78,615.
In this matter, both parties have made initial financial contributions, and financial contributions and non-financial contributions during the relationship. They have had a child, so s.90SM (4)(e) factors are relevant.
The Parties’ Interests in Property
The parties tendered a joint list of assets and liabilities.[4]
[4] Exhibit M&F1.
Property in Dispute
The applicant asserted that the respondent’s furniture was worth $4,000. The respondent sought that her furniture be excluded from the pool. The value she attributed to it in her financial statement was $2,500, and she attributed $2,600 to it in her trial affidavit. The applicant attributed a value of nil to his furniture in his financial statement. In the joint list of assets and liabilities, he attributed a value of $500 to it. Neither party had their furniture valued. I consider that the furniture should be included in the list of property at the higher values attributed by each party. It was agreed that the value of the pool table at the Property C home has a value of $700 and that the applicant can retain it.
The respondent included in the liabilities a loan of $7,000 from her mother, Ms F. This loan was used to purchase roller blinds for the Property C property. The respondent has retained the roller blinds. She gave evidence that a loan was jointly obtained from … for $7,000, and after separation the applicant stopped making payments. The loan has been repaid, as the respondent’s mother lent her the funds to discharge it. This sum is included in a loan of $80,000 from Ms F to the respondent. The respondent has not included this liability in the list of liabilities. I consider the amount of this loan should be taken into account under s.90SM (4)(e), rather than included in the list of liabilities.
I find the property and superannuation is as follows:
| Property | ||||
| Property C (‘the Property C property’) | (Respondent) | $450,000 | ||
| Property B (‘the Property B property’) | (Applicant) | $270,000 | ||
| Property A (‘the Property A property’) | (Applicant) | $300,000 | ||
| Motor Vehicle | (Applicant) | $9,500 | ||
| Wakeboarding gear | (Applicant) | $600 | ||
| Drum kit, sports gear and tools | (Applicant) | $4,000 | ||
| Furniture | (Respondent) | $2,600 | ||
| Furniture | (Applicant) | $500 | ||
| Pool Table | (Joint) | $700 | ||
| Total Assets | $1,037,900 | |||
| Liabilities | ||||
| ME Bank Mortgage – the Property C Property | (Respondent) | $358,000 | ||
| ME Bank Mortgage – the Property B Property | (Joint) | $210,000 | ||
| ME Bank Mortgage – the Property A Property | (Joint) | $211,000 | ||
| Total Liabilities | $779,000 | |||
| Total Net Non-superannuation property | $258,900 | |||
| Superannuation | ||||
| Super Fund 1 | (Respondent) | $44,600 | ||
| Super Fund 2 | (Applicant) | $68,600 | ||
| Total Superannuation | $113,200 | |||
Is it just and equitable to make a property order?
I consider that it is just and equitable that a property adjustment order be made. The respondent is a party to the mortgages secured over the applicant’s two properties. They need to finalise their financial relationship.
Approach to be taken
The usual approach is for the court to consider the property as an overall pool. However, it is also open to the court to consider an asset-by-asset approach. In Norbis v Norbis,[5] Mason and Deane JJ, with whom Brennan J agreed, said:
…Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient.[6]
[5] (1986) 161 CLR 513.
[6] Ibid 523.
Both parties adopted a global approach. Although the relationship was a short one, they did not strictly separate their assets. The applicant helped the respondent improve the Property C property. The respondent became a mortgagor of the Property A and Property B properties. The parties had a child during the relationship. I consider the global approach is appropriate.
In respect of superannuation, there was no agreement about the approach.
The applicant adopted a two pool approach, which may result in a small split if he succeeds on his proposal.
The respondent’s position was that the superannuation should be included in one property pool for division.
There was no evidence that either party’s superannuation is property within the definition of s.4 of the Act. I am of the view that it is appropriate for the superannuation to be included in a separate pool in accordance with the approach preferred in Coughlan & Coughlan.[7]
[7] (2005) FLC 93–220.
Credit of the Parties
I consider that the applicant was an unimpressive witness. His evidence about cash jobs was not credible. It was conceded by his counsel that he was ‘underhanded’ about earning cash income.
The respondent asserted that the applicant received up to $25,000 cash during their relationship. This amount was denied by the applicant, who said ‘…there would be the odd cash job, and it was declared because it wasn’t substantial at all.’
The applicant agreed that he had been untruthful to the Child Support Agency (‘CSA’) about his income. Contrary to evidence given during his cross-examination, he told the CSA that ‘he currently does not have a job and is not working cash job.’[8] He said that he lied to the CSA because he did not think that his cash earnings were substantial
[8] Exhibit M4.
The applicant agreed that he had not disclosed in his affidavit and financial statement evidence that he earned cash income. He did not depose that he had declared cash income of $2,500 to the Australian Tax Office (‘ATO’).
In April 2018, the applicant became aware that the respondent had accessed his Google notes. She took a bundle of screenshots of notes from his Gmail account between 8 May 2017 and 1 December 2017. He agreed that the notes reflected him doing cash work. He agreed that it was a regular source of income, not big money, but tax-free income. The Google notes evidenced cash payments for jobs done by him. After he became aware of the respondent’s access to the notes, he stopped making notes. He also said that he stopped doing cash jobs in around May 2018. At the hearing in July 2018, he said that he told his accountant about the cash income of $2,500 ‘recently.’
The cash of $2,500 was declared in his BAS statement lodged with the ATO in May 2018 for the third quarter of the 2018 financial year, even though he earned the cash in the second quarter of that financial year. He had not declared the cash in that period.
He said that he declared cash income of $2,500 for the 2018 financial year, by making a guestimate, rather than adding up his cash jobs, as set out in his notes. He said, ‘it might be more than that, and prior to that I didn’t declare anything because it wasn’t substantial in my mind.’ He agreed that the CSA could not assess his income because it did not know about the cash income. The respondent had objected to the CSA about the applicant’s estimate of income at $1,018 for 2017/2018.
His google note made in September 2017 reads ‘…plus $160 farm. Plus Cashies per day of 8 hours $400…’ The applicant explained this as his calculation of potential earnings for a cash job for eight hours. He agreed that he did this, ‘from time to time.’ He agreed that he worked for his father on his farm, for a couple of days.
His google note made in November 2017 reads, ‘Financial plan…Ms D smash mortgage. Do up to Ms D’s house… take out $250 cash each week myself Say that it’s gone to food, keep cash receipts. Save the cash… Save $350 per week in the cash plus cashies.’ It was suggested to the applicant that he has put this financial plan into effect. He answered that he has not, and they have not saved a deposit. He denied that he is taking out cash and saving it, and said that he was taking out cash for bills. He denied that the plan was to hide his savings.
I do not accept the applicant’s denials about the extent of his cash earnings. I consider that he has a greater earning capacity than he has indicated.
Although during the hearing I did not accept the respondent’s evidence that she did not know that her access to the applicant’s Google notes was not authorised, I consider that overall she was a credible witness.
I prefer the respondent’s evidence to the applicant’s evidence wherever it conflicts, unless I indicate otherwise.
Contributions
At the commencement of the relationship the applicant owned a property at Property A, which he purchased in 2014 for $220,000. He also owned a property in Property B, which he purchased in 2011 for $222,500. At the commencement of cohabitation, they were worth $235,000 and $225,000 respectively, a total of $460,000. The applicant had made some improvements to both properties prior to the commencement of the relationship.
At cohabitation, the properties had mortgage loans secured over them totalling around $419,294, so there was total equity in them of $40,706. The rental income for both properties largely covered the outgoings, including the mortgage loans. The properties have increased in value and now have a total equity of $149,000.
At the commencement of the relationship, the applicant also owned a Motor Vehicle worth about $8,000.
At the commencement of the relationship, the respondent owned a property at Property C, which she purchased in 2013 for $285,000. She did not pay a deposit, as her mother was a joint purchaser. A mortgage loan was secured against both the Property C property and a property owned by her mother. This loan was around $381,170 at the date of co-habitation. At the time of purchase, $60,000 of the loan was borrowed for renovations of the Property C property. A further $30,000 was borrowed for more renovations in 2014. At cohabitation, there was no equity in the property, and was around $16,708 in debit. The property has increased in value and now has equity of $92,000.
The parties lived at the Property C property during the relationship. Whilst the respondent’s mother is a joint registered proprietor, it was not disputed that the respondent is the equitable owner of the property. She also owned a household of furniture at the commencement of the relationship.
The respondent did not dispute that she had a $14,000 personal loan at the commencement of cohabitation. The applicant deposed that he and the respondent received an insurance payout of $14,000 for damage to the Property C property. The sum of $12,000 was used to pay out the respondent’s personal loan, and the remaining $2,000 was used for general bills.
During the relationship the applicant earned income from his employment as a tradesman. His taxable income for the 2016/2017 financial year was $72,425. He also received cash from his tradesman work.
The applicant had the benefit of living at the Property C home, which enabled him to rent out both his properties. I accept the respondent’s evidence that she assisted the applicant to prepare the Property A home for rental, by decorating and promoting the house for rent.
After the applicant commenced living with the respondent, he received $330 per week from the rental of the Property A property. He serviced the loans on both properties from the rental income, with a small shortfall.
The applicant did not contribute to the Property C property mortgage instalments for a period of around eight months from commencement of cohabitation in February 2015 until about 29 September 2015, when the parties opened a joint account for bills and expenses, including the Property C property mortgage.
The applicant was able to save income to purchase a motor vehicle for $16,000, a half share in a speedboat for $12,500 and wakeboarding gear for $600.
He contributed $3,000 for the purchase of a motor vehicle for the respondent. She sold the car post-separation for $2,600.
The applicant assisted in renovating the Property C property. This included knocking out walls, installing overhead beams, electrical works, plastering, painting, putting in a new shower area, flooring and building. He asserted he spent $16,250 on materials, but did not provide any evidence of the amounts spent. Although he asserted that these renovations added $60,000 in value to the property, there was no expert evidence provided by him. The respondent disputed that the applicant paid for the materials or works. During cross-examination, she said that she assumed that they paid for them with joint funds, or from the applicant’s cash income, but the applicant never provided receipts when she requested them.
The renovations were done in September/October 2016 over a six week period. The parties lived with the respondent’s mother during this time. The respondent was on paid maternity leave and contributing equally with the applicant to the joint bank account.
The respondent did not dispute that the applicant made substantial physical contributions with the renovations, but said that her step-father assisted. She also complained about the standard of the work completed by the applicant.
In January 2017, five weeks prior to separation, the loans secured over the Property A and Property B properties were refinanced for $56,000. The applicant’s father was a guarantor for the loans. The respondent agreed for the mortgages to be refinanced into the joint names of her and the applicant. She contributed by enabling the applicant to refinance to pay the applicant’s father around $36,000 and for him to retain the properties.
From the balance sum of around $20,000 paid into a joint account, the applicant spent the funds on tyres for his car, on a wardrobe and pantry for the Property C property. The applicant gave evidence that the balance was spent during the relationship on various accounts, and at separation he placed $7,000 into his mortgage account.
At separation, a balance sum of around $6,491 remained in the joint bills account. The applicant subsequently deposited a total sum of $2,600 into the account. Around $2,000 was transferred to the parties’ respective mortgage accounts. The respondent had access to this account between the 9 March and 3 May 2017 for living expenses.
In around May 2017 the applicant was made redundant. On 9 May 2017, he received $22,490 from his employer. He spent around $13,000 and retained $7,000. He used the funds to repair his car, pay bills and pay legal costs. He obtained a new job for a period of three months, and then obtained other employment in September 2017. He also sold his share of the boat he purchased during the relationship and had the benefit of $5,000 sale proceeds.
The applicant was ordered to pay the respondent $9,000 after a defended interim property hearing in July 2017. The sum of $3,500 came from the applicant’s redundancy payment and the sum of $5,500 came from the $20,000 redraw, which the applicant had placed in the mortgage account for one of his properties. The respondent used the funds for living expenses.
During the relationship the respondent contributed income from her employment at Employer A. Until [X] was born, she also earned a small income from an eBay business, selling her old clothes and other items. She was on maternity leave from …2016 and returned to work as a professional at Employer A in …2017.
During the relationship, the respondent was the main homemaker. She was [X]’s primary carer. She purchased his clothes and toys. Her parents paid for major items for him, such as a pram, cot and change table.
Post-separation the respondent has continued to be [X]’s primary carer. The applicant spent day time with him. Final consent orders were made on 3 August 2018, which provided for a graduated increase in the father’s time with [X], including overnight time. [X] attends childcare on five days per week.
The respondent had the main financial burden of maintaining [X] post-separation. The applicant was assessed to pay child support to her of $175 per week, which was later reduced to $133 per week. In August 2017, the applicant declared his income as $1,018 per annum. The child support was assessed at $26 per week from 8 August 2017 until 30 June 2018. In September 2017 it was re-assessed at $73.21 per week. It was again reassessed in late 2018 for the applicant to pay $176 per week.[9]
[9] Exhibit M6.
Post-separation, both parties have been responsible for servicing the mortgages on their respective properties and for maintaining them.
Conclusion about contributions
Both parties made initial contributions of real estate. The properties have all increased in value and the equity in all three properties has increased.
Both parties earned income and contributed to mortgage payments and outgoings on their respective properties. The applicant contributed to the respondent’s mortgage from September 2015. The applicant made a substantial indirect contribution with renovations on the Property C property. I consider that both parties made direct financial contributions to the renovations on the Property C property.
The respondent made indirect contributions to the applicant’s properties. She enabled the applicant to refinance by becoming a mortgagor. She enabled him to rent both properties, because he lived in the Property C property during the relationship.
I consider that the applicant made the greater financial contributions, with a greater initial contribution. The respondent made the greater homemaking and parenting contributions.
I assess the contributions on the basis of a 62/38 per cent in the applicant’s favour. This will result in the applicant receiving property to a value of $160,518 and the respondent to a value of $98,382.
Section 90SM(4) (e ) Factors
The applicant is 31 years of age. He is employed as a tradesman and earns around $47,419 based on three days per week. He also receives cash for work he undertakes outside his employment. He lives in his partner’s home. His partner earns $96,000 per annum. They share expenses.
The applicant has a personal loan of $13,000 from his father that was not disputed.
The parties have the expenses set out in their financial circumstances.
The respondent is 29 years of age. She is employed at Employer A. Her income is around $74,000 per annum. She receives a family tax benefit of $93 per week or $4,836 per annum. The respondent has arranged with her employer a salary sacrifice for the lease of a motor vehicle that costs her $250 per week.
The respondent has re-partnered. I accept the evidence that she does not live with him or share expenses.
The respondent has been diagnosed with multiple sclerosis and with a generalised anxiety disorder. She has significant health and medical costs. She has the costs of MRI leaving her out of pocket of $550. She spends $127 per month on fatigue medication and $40 per month for other medication. She can work full-time now, but is likely to have to reduce her hours in the future. Her G.P., Dr G, gave evidence about her symptoms. She was of the opinion that full-time employment is not sustainable for her. She believes that working full-time is deleterious for her health. I accept Dr G’s evidence. She was challenged during cross-examination, but did not alter her views.
The respondent is primarily responsible for [X], a young child. She is out of pocket for around $7,800 per annum for his day care costs. The applicant is currently assessed to pay $176 per week in child support.
The respondent has a loan to her mother of $80,000, around $47,000 of which relates to legal costs. The balance relates to general living expenses, credit card debts and the loan for the roller blinds, which has been discharged.
Ms F deposed that she provided $40,000 to her daughter in various increments between 9 March 2017 and 28 January 2018. She also deposed that she paid her a further $40,000 on 29 January 2018 in two deposits of $20,000 each. She explained that $80,000 in total was advanced to her as a loan.
A signed loan agreement provides that the respondent repay Ms F $120 per week until 31 August 2018, the balance then owing to be paid. There is no interest charged on the debt. Between 6 February 2018 and the date of Ms F’s affidavit, the respondent had paid her $240 on 12 occasions, a total of $2,880. Ms F deposed, ‘it is very clear to Ms Jewell the financial assistance I have offered her is a loan.’ When she was asked if she expected to be repaid the loan outstanding from the property settlement to be received by her, Ms F said that her daughter can repay the loan when she can.
I accept the evidence of the respondent and Ms F about the loan and that Ms F expects her daughter to repay it. I do not accept the submission of counsel for the applicant that the loan is a ‘sham’. I accept that it is a genuine loan and that Ms F requires her daughter to repay it.
The respondent also has a loan of $2,600 from her father that was not disputed.
As a result of the contribution based entitlements there will be a disparity of property owned by the parties.
I consider that the respondent should receive an adjustment of 15 per cent for these factors. This means that the applicant will receive property to a value of $121,683 and the respondent will receive property to a value of $137,217.
Superannuation
There was little evidence about the parties’ superannuation.
At the commencement of their relationship, the applicant deposed that he had approximately $40,000 in superannuation, and the respondent had an estimated $33,000. The applicant deposed that he contributed around $15,000 of superannuation during cohabitation. Its value is currently agreed at $68,600, so the applicant has made post-separation contributions.
The respondent did not give evidence about her contributions. It is now worth $44,600, so I infer that she has made contributions since the commencement of cohabitation and post-separation.
Neither party has made a direct contribution to the other’s entitlements.
The applicant made a greater initial contribution.
The respondent has made an indirect contribution to the respondent’s superannuation during the relationship, and for a short period after separation, by staying at home to care for [X].
Doing the best I can on the limited evidence from both parties, I consider that the contributions favour the applicant 65/35 per cent.
In respect of section 90SM (4)(e), the applicant has a better capacity to increase his superannuation having regard to his better health, and being more likely to work full-time for a longer period to accumulate more superannuation.
As a result of contributions, the applicant is entitled to receive superannuation to a value of $73,580. The respondent is entitled to receive superannuation to a value of $39,620.
I consider that, balancing the above factors, there should be an adjustment in the respondent’s favour of 5% so that the superannuation is divided on a 60/40 per cent basis in favour of the applicant.
As this will result in a small superannuation split of $680, the applicant’s counsel submitted that each party should retain their respective entitlements without a split. I consider that this is an appropriate course in the circumstances.
The effect of the order
The applicant will retain the following:
The Property B Property $270,000 The Property A Property $300,000 Motor Vehicle $9,500 Wakeboarding gear $600 Drum kit, sports gear and tools $4,000 Furniture $500 Pool Table $700 Total Assets $585,300 ME Bank Property B $210,000 ME Bank Property A $211,000 Total Liabilities $421,000 Net Total $164,300 Less cash to the respondent $42,617 Total retained by the applicant $121,683
The respondent will retain the following:
The Property C Property $450,000 Furniture $2,600 Total Assets $452,600 ME Bank Property C $358,000 Total Liabilities $358,000 Net Total $94,600 Plus cash payment from the applicant $42,617 Total retained by the respondent $137,217
In respect of superannuation:
The applicant will retain $68,600 The respondent will retain $44,600
The applicant may need to refinance to pay the applicant. I will give him time to obtain finance. If he cannot refinance, he may need to sell a property. The order will provide for this.
Both parties will have property and superannuation. I consider the effect of the order is just and equitable.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 13 February 2019
Key Legal Topics
Areas of Law
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Equity & Trusts
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Property Law
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Family Law
Legal Concepts
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Remedies
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Injunction
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Costs
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Damages
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Res Judicata
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Fiduciary Duty
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