GULOTTA & GULOTTA

[2013] FamCA 114

FAMILY COURT OF AUSTRALIA

GULOTTA & GULOTTA [2013] FamCA 114

FAMILY LAW – PROPERTY SETTLEMENT – Long marriage – Wife seeks to retain former matrimonial home and husband seeks it be sold – Minimal assets other than former matrimonial home – Mortgage secured over home parties’ sole liability – Husband’s legal costs excluded from the liabilities of the parties as per the general rule set out in section 117(1) of the Family Law Act 1975 (Cth) – Contributions equal over long marriage – Adjustment in respect of husband’s greater future earning capacity –Superannuation entitlements divided equally as accumulated during marriage

FAMILY LAW – SPOUSAL MAINTENANCE – Wife withdrew application at commencement of proceedings

FAMILY LAW – CONTRAVENTION – Wife withdrew application at commencement of proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Gulotta

RESPONDENT: Ms Gulotta

FILE NUMBER: PAC 5367 of 2011

DATE DELIVERED: 28 February 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 30 and 31 January, 1 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Self-represented Litigant

Orders

1. That the wife shall pay to the husband within forty-two (42) days of the date of these Orders, or such further or other time as the parties shall agree to in writing, the sum of $58,200.

2. That upon payment by the wife to the husband in accordance with Order 1 above, the husband shall do all things and execute all documents necessary to transfer to the wife all his right, title and interest in the property situate and known as D Street, Suburb B in NSW …, Lot …, DP… (hereinafter “the property”).

3. That simultaneously with the wife paying the whole of the said sum to the husband as per Order 1, the wife shall effect a discharge of the mortgage presently secured over the property.

4. That in the event that the wife does not comply with Orders 1 and 3 above within the time specified then the parties shall do all things and execute all documents necessary to procure a sale by private treaty of the property at a price to be agreed between the parties, and failing agreement, at a price of $280,000.  The parties shall, within seven (7) days thereafter, agree upon the following:-

   (a)       An agent to act on their behalf in respect of such sale; and

   (b)       A solicitor to have carriage of such sale. 

5. That in the event that the parties cannot agree upon an agent to act on their behalf then the parties shall request the President for the time being of the Commonwealth Institute of Valuers (NSW Chapter), or their nominee, to appoint such an agent. 

6. That in the event that the parties cannot agree upon the identity of a solicitor to have carriage of the matter then the parties shall request the President for the time being of the Law Society of NSW, or their nominee, to appoint such a solicitor.

7. That in the event that the property is not the subject of a binding exchange of contracts within eighteen (18) weeks of the date of these Orders then the parties shall do all things and execute all documents necessary to procure and complete a sale of the property by public auction. 

8. That the parties shall agree upon an auctioneer for the sale of the property by auction, and failing agreement, that appointment shall be made by the agent acting on behalf of the parties as previously provided in these Orders.

9. That the parties shall agree upon a reserve price for the property at auction, and failing agreement, the reserve price is to be determined and fixed by the auctioneer on the date of the auction. 

10. That in the event of a sale being completed pursuant to either private treaty or public sale in accordance with these Orders, the parties shall deal with and disperse proceeds of sale then arrived at in payment of and in the following order:-

    (a)In payment of all agents commissions and fees including auction expenses if appropriate incurred in such sale;

    (b)In payment of all solicitors fees and disbursements properly incurred in such sale;

    (c)In payment of an amount to discharge the mortgage secured over the property;

    (d)In payment to the wife of an amount equivalent to 45.5 per cent of the amount then arrived at; and

    (e)In payment of the balance then remaining to the husband. 

11. That the husband shall, at settlement, pay to the wife from his entitlement the sum of $4,419.15 in respect of adjusting the parties’ superannuation entitlements.

12. That subject to the foregoing, each party is hereby declared to be the absolute owner both at law and in equity of all real and/or personal property, chattels, contents, furnishings, motor vehicles, monies on deposit with any institution and superannuation entitlements presently in the possession and/or control of that party.

13. That all applications and cross-applications relating to property and/or maintenance be and are hereby dismissed.

14. That I stand all property and maintenance issues out of the pending cases list.

15. That all material produced on subpoena in relation to property or spousal maintenance proceedings be returned, but not before fifty-six (56) days from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gulotta & Gulotta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Mr Gulotta

Applicant

And

Ms Gulotta

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the distribution of the parties’ modest assets following the breakdown of their marriage.

2. Neither party has been represented during the course of this difficult, and at times distressing, hearing.

3. The husband has done his best without assistance.  He has largely focused on what has occurred since the parties separated and who paid what from that time onwards.  He has cross-examined the wife extensively in regard to this period of time.

4. The wife has had the assistance of a counsellor for two days of the hearing, and of her sister and mother throughout the hearing.  Her behaviour has at times caused me real concern.  I raised with her several times my concerns as to her capacity to continue to conduct the proceedings.  She insisted she could carry on.  Both parties wanted the matter concluded.

5. The wife abandoned her claim for spousal maintenance on the basis that the matter would proceed.  She has since confirmed that situation by email, having made some approach to the Court following the conclusion of the hearing that she might seek to re-open the matter in that regard.

6. She had also made allegations of contravention, albeit not in a proper or appropriate form.  These she also abandoned so that the hearing of the property dispute could proceed.

Orders sought by the parties

1. The husband, who is the Applicant, sought orders in the following terms in a minute that he incorporated into his affidavit sworn 23 January 2013:-

   1.That both parties take all necessary steps and execute all necessary documents to cause the property situate at [D Street, Suburb A] in NSW … and being the whole of the land in title reference Lot …, DP … be sold by private treaty at the earliest possible date ad a price to be agreed on between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of New South Wales or his nominee and that the proceeds of the said sale be disbursed as follows:

   a.In adjustment of municipal and water rates;

   b.To the agent in payment of his/her proper costs and disbursements;

   c.To the lawyer acting for the parties on the sale of the property in the payment of his/her proper costs and disbursements;

   d.In discharge of the mortgage to Westpac Banking Corporation registered against the title of the property;

   e.In payment of the husband’s legal costs to Cathers Mulley Kamiya, Lawyers in the amount of $26,000;

   f.The net balance to be divided between the parties as follows:

   i.60% to the Applicant (husband)

   ii.40% to the Respondent (wife).

   2.That in the event that the property fails to be sold by private treaty within a period of one month hereof, then each party take all necessary steps and execute all necessary documents to cause the said property to be sold by auction at the earliest possible date at a reserve to be agreed upon between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute or his nominee and that the proceeds of the said sale be disbursed as detailed above at order 1(a) – (e) above. 

   3.Order that if the property is not successfully auctioned as provided above, that the property be re-submitted to auction at a reserve price 10% lower than the reserve price, at the previous auction and such cycle of auction sales is to continue until the property is sold.

   4.That either or both parties be at liberty to attend at and bid at the auction of the property.

   5.That the parties retain all their right, title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.

   6.That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent orders:

   a.Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;

   b.Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

   c.Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;

   d.All insurance policies are to become the sole property of the owner named hereon.

   7.An order pursuant to s106A that if either party refuses or neglects to execute any deed or instrument necessary to give force and effect to all or any of these orders that the Registrar of the Family Court of Australia at … be appointed to execute such deed or instrument in the name of the defaulting party and that:

   a.    The Registrar do all necessary acts and things to give force and effect to these orders; and

   b.    That the defaulting party pay the costs of the other party on a lawyer/own client basis.

   8.That both parties do all acts and things and sign all documents and give all consents necessary to give effect to these orders.

   9.That the Respondent (wife) pay the costs of the Applicant (husband).

   10.That costs be reserved.

2. Simply put, he seeks a sale of the former matrimonial home, initially by private treaty, and failing that, within a period of time by auction.  He seeks proper expenses for the sale be paid.  He seeks then that he receive from the proceeds of sale the sum of $26,000 for legal costs he alleges he has been forced to expend by the wife’s actions, and that the net sale proceeds then arrived at be divided 60 per cent in his favour and 40 per cent to the wife.  Further, he sought both a payment and reservation of costs presumably of these current proceedings.

3. The wife’s position was set out in her minute sent to my chambers on 29 January 2013, as follows (in respect of only property matters):-

   1.   Pursuant to section 79 by way of alteration of property interests:

   a.   The wife shall, within 3 months of the date of these orders, pay to the husband the sum of $40,000.

   b.   Contemporaneously with the payment to the husband referred to in order 1(a), the husband shall transfer to the wife all his right, title and interest in the former matrimonial home being [D Street, Suburb B], NSW … (“the property”).

   c.   Contemporaneously with the payment to the wife referred to in order 1(a), the wife shall cause the existing mortgage registered against the property to be discharged.

   2.   The wife be declared the sole legal and beneficial owner of all items of personal and real property in her possession or of which she is the registered proprietor as at the date of these orders, including but not limited to superannuation, all or any money standing to the credit of the wife in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.

   3.   The husband be declared the sole legal and beneficial owner of all items of personal and real property in his possession or of which he is the registered proprietor as at the date of these orders, including but not limited to superannuation, all or any money standing to the credit of the husband in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.

   4.   That the parties are hereby directed and shall do all acts and things and execute all documents, instruments, authorities and writings and give all consents necessary to give effect to the orders made herein. Failing either party signing any deed or instrument necessary, a Registrar be empowered pursuant to section 106A of the Act to sign such deed or instrument on behalf of the defaulting party.

   5.   That pursuant to section 74 of the Act, the wife requests an order for payment of spousal maintenance of $500 per month due to the financial consequences of poor health outcomes due to family violence experienced in the marriage and ongoing financial hardship. 

   6.   That pursuant to section 81 of the Act, the parties intend these orders shall finally determine their financial relationship and avoid further proceedings between them in relation to property settlement and spouse maintenance.

4. Simply put, she sought to acquire the husband’s interest in the former matrimonial home for the sum of $40,000, an order for the discharge of the existing mortgage secured over the property and for the parties to each retain all other assets of theirs.

Brief background

1. A brief history of the matter is as follows. 

2. The husband was born in 1958, and as at the time of hearing, he was 54 years of age.

3. The wife was born in 1966, and as at the time of hearing, she was 46 years of age.

4. The parties commenced cohabitation in about 1988.

5. The parties married in October 1992.  It will be noted that during the hearing, the wife said the parties’ year of marriage was 1992 and the husband said it was 1993 but conceded his memory could be wrong in this regard.  The parties’ marriage certificate was later received in chambers confirming the year of marriage was in fact 1992.

6. The parties then separated on a final basis on 4 April 2011, when the husband left the former matrimonial home following an incident between the parties.  The parties’ marriage of 18 to 19 years in duration can therefore be considered a “long marriage” for the purposes of property settlement.

7. The parties were not divorced at the time of the hearing.  However, the wife raised the issue of divorce in her minute of orders sought and I granted the parties leave to have a divorce application, once filed, come before me at short notice.

8. There are two children of the marriage.  C was born in December 1994 and is now an adult, over 18 years of age, and E was born in January 1998 and is currently 15 years of age.  E remains the subject of parenting proceedings outstanding between the parties.

The parties’ documents

1. The parties filed and appeared to rely upon the following documents. 

2. On the husband’s part, he indicated that he relied upon his affidavit sworn 23 January 2013 and filed 24 January 2013 and his minute of proposed order, which formed part of that affidavit.  He said these were the only documents he relied upon. 

3. For the sake of completeness, other documents filed by the husband during the course of the proceedings, which were of relevance to the property matters, are as follows:-

   a)A bundle of documents collated by the husband, received by the Court on 17 January 2013 (containing financial information, a previous minute of order and 3 market appraisals in respect of the former matrimonial home);

   b)An Initiating Application filed 15 November 2011;

   c)A Financial Statement filed 15 November 2011;

   d)An affidavit of himself sworn 9 November 2011 and filed 15 November 2011; and

   e)An affidavit of himself sworn 14 November 2011 and filed 15 November 2011.

   These documents I found of assistance in setting out a more detailed history of matters occurring prior or at the time of the parties’ cohabitation/marriage, during the parties’ marriage and, to a degree, post-separation.

4. On the wife’s part, she appeared to rely upon the following documents:-

   a)A minute of proposed order received by my chambers on 29 January 2013;

   b)A bundle of documents received by my chambers on 29 January 2013;

   c)An Amended Response filed 12 March 2012;

   d)A Financial Statement filed 30 January 2012;

   e)An affidavit of herself sworn 17 October 2012 and filed in Court on 28 October 2012;

   f)An affidavit of herself sworn 8 March 2012 and filed 12 March 2012; and

   g)An affidavit sworn 9 December 2011 and filed 9 December 2011.

   The wife also tendered several documents into evidence, which became exhibits in her case.

The hearing before me

1. The only witnesses were the parties themselves.  Each cross-examined the other at some length. 

2. The husband in his evidence denied receiving cash payments for work done for his own benefit.  He asserted that any money he had received had been the subject of an invoice and was properly accounted for.  He denied that the wife had supported him for any period of time of any significance.  He gave evidence of being off work with a broken hand and later with cancer.  He gave evidence of receiving a modest redundancy. 

3. He asserted that the wife had utilised monies initially borrowed for renovations to purchase a car for herself.  He then said he had to borrow a further amount to carry out the renovations.  Much of his cross-examination was devoted to a loan that had been made to a person described as FF.  The wife appeared to allege that there was some wrongdoing concerning the repayment of that loan.  So far as is necessary, I am satisfied that the loan was repaid and the monies received were used of the benefit of the family. 

4. The husband’s evidence was that he had stopped making mortgage payments because the wife sought and obtained an assessment from the Child Support Agency.  He had prior to this, at the wife’s insistence, paid a sum of $150 weekly to the mortgage and monies direct to her in a similar sum. 

5. The husband denied any domestic violence by him towards or upon the wife.  He denied pouring kerosene around the house whilst the wife and children were inside.

6. The wife gave evidence, I am satisfied from that evidence, that she retained an amount between $3,000 and $5,000 from the proceeds of an insurance policy paid out as the result of the death of the husband’s father.  I am further satisfied that she ensured that the husband’s tax refund cheque for a particular year was banked into a joint account, whilst she kept her own tax refund for that year in a separate account.

7. The wife cross-examined the husband at length in respect of payments that she had made since the parties separated. 

8. Indeed, each party was at pains to mathematically prove the payments made by them following separation in respect of the mortgage and other amounts.  This period of time, that is post-separation, appeared to preoccupy the parties and very little was put to me by way of cross-examination or otherwise as to what had happened during the parties’ period of marriage and/or cohabitation. 

Credit of the parties

1. The husband appeared to me to give his evidence truthfully.  Having said that, at times he appeared quite confused and on many occasions he was unable to follow simple directions as to what he should or should not do.  He was unable to answer questions in a concise fashion, seeming to want to explain at great and unnecessary length.  Notwithstanding this, I am satisfied that he did not seek to mislead the Court. 

2. The wife gave her evidence in a manner which was the cause of concern.  At times she claimed she had no recollection of matters put to her.  At times she was unable to carry on and sought adjournments.  She needed the assistance of her counsellor and, in addition, her sister and her mother.  She needed frequent adjournments.  Following the hearing, she contacted the case coordinator and members of my chamber staff to apparently seek to re-agitate several issues, particularly the issue of spousal maintenance.  As a result, I directed that she notify in writing her intention in regard to these matters.  I have now received a communication addressed to my Legal Associate indicating that she abandons the claim for spousal maintenance.

3. Despite the wife’s frequent displays of helplessness and confusion, and a lack of understanding as to the procedure and proceedings in which she was involved, I am satisfied that she understood that which was occurring to a far greater extent than she was prepared to concede.  I detected in her an element of cunning, which I found to be entirely lacking in the husband. 

The parties’ marriage

1. In 1998, the parties commenced cohabitation.  At this time, it appears that both parties were working.  It is not contradicted that the wife received a redundancy in an unknown amount at about this time.  The parties then constructed a home in Suburb R utilising the monies that the wife obtained and borrowing the balance.  The parties occupied that home.

2. The parties married in October 1992.  As noted earlier in these reasons for Judgment, this was established by the production of a marriage certificate subsequent to the conclusion of the hearing.  During the proceedings, it was the wife’s case that the parties married in 1992 and the husband’s case that it was in 1993, however, the husband conceded that it could have been in 1992.

3. In about July 1994, the husband had surgery for bowel cancer.  It is the wife’s case that she cared for the husband and was the sole income earner during a period of his recovery.  The husband says that the period of time was much less than asserted by the wife. 

4. In December 1994, the parties’ first child, C, was born. 

5. In about March/April 1994, the parties separated for a short period. 

6. I accept that in the mid 1990s, the parties experienced some financial difficulties and the Suburb R home was sold.

7. In about 1997, the wife asserts the husband received an insurance payout and the parties then purchased the Suburb B property.  The husband says, and I accept, that in about June 1998, he received the insurance payout in respect of a motor vehicle accident of approximately $25,000.  He says that part of this money was used to place a deposit on the Suburb B home, which was purchased for $89,000, the balance being secured by mortgage. 

8. In January 1998, the parties’ second child, E, was born.  The husband says the wife did not return to work for approximately two and a half years thereafter, asserting that her return to work was in 2001. 

9. The wife asserts that in the mid 2000s she commenced to become chronically ill and reduced her working hours.  She then says she suffered from depression.

10. The husband says that in about 2008, the wife stopped working and he was then the sole income earner.  The wife asserts that she stopped working in about 2009 and her leave was paid out and those monies she used to pay credit card debts.  She says she assisted to care for the husband’s father. 

11. The wife asserts that in mid March 2011, she told the husband the marriage was over and for a period of time the parties slept in separate rooms with the husband finally leaving the home on 4 April 2011.  On that occasion, police attended at the property, although the circumstances in which this occurred are by no means clear.  The husband, in about June 2011, moved into rented premises.  The child C, at various times, lived away from the former matrimonial home.

12. The husband then commenced proceedings in this Court in November 2011 in respect of both parenting and property matters.  The matter first came before me in a duty list in respect of parenting.  There was then a long running and still unresolved dispute concerning the parties’ children following their separation.  A series of Orders have been made in this Court in respect of that issue.

13. This then appears to be a factual background to the matter.  I turn then to the law to be applied.

The law to be applied

1. In property matters, the Court is required to take into account the following matters in accordance with the provisions of section 79(4) of the Family Law Act 1975 (Cth):-

   a)The financial and non financial contributions made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation and improvement of any of the property to the parties to the marriage or either of them (subparagraphs (a) and (b)).

   b)The contribution made by a party to the marriage to the welfare of the family including any contribution made in the capacity of homemaker or parent (subparagraph (c)).

   c)The effect of any proposed orders upon the earning capacity of either party to the marriage (subparagraph (d)).

   d)The matters referred to in s 75(2) of the Act so far as they are relevant (subparagraph (e)).

   e)Any other order made under the Act affecting a party to a marriage or a child of the marriage (subparagraph (f)).

   f)Any child support payable (subparagraph (g)).

2. Accordingly, in assessing the entitlement of each of the parties to property settlement, there is both a retrospective element relating to contributions of each of the parties and a prospective element relating to matters referred to in section 75(2).

3. According to the guidelines established through a series of leading decisions, the Court should determine the following matters on the evidence:-

   a)Firstly, the Court must determine the assets, liabilities and financial resources of the parties to the marriage as at the date of the final hearing.

   b)Secondly, the Court must consider all relevant contributions of each of the parties and, where possible, assign an entitlement, expressed in percentage terms of each of the parties as earlier assessed on account of contribution as is deemed necessary having regard to those s 75(2) factors.

   c)Thirdly, the Court should then consider the prospective components of the claim of each of the parties arising as a result of the provisions of s 75(2). The Court should then identify what alterations, if any, should be made to the entitlement to each of the parties as earlier assessed on account of contribution as is deemed necessary having regard to those s75(2) factors.

   d)Fourthly, having regard to the entitlement of each of the parties then arrived at, it is necessary to stand back and look at the result thus achieved to ensure that it is in all the circumstances fair and equitable to each of the parties.

The pool of assets

1. The parties, to their credit, have largely agreed upon a balance sheet, which I set out hereunder.

2. I have treated superannuation separately from non-superannuation assets and have thus created two pools.  The parties have, for themselves, put evidence before the Court of the value of their superannuation entitlements and I accept those valuations for the purpose of these reasons for Judgment.

Non-superannuation assets

1. The parties have likewise agreed on the bulk of the matters to be included in the non-superannuation pool of assets.

2. The non-superannuation pool of assets is as follows:-

   D Street, Suburb B     $280,000 (agreed value)

   Wife’s contents in property  $7,500

   Husband’s household contents                 $1,000

   Wife’s CBA savings account  $433

   Wife’s CBA Netsaver account                   $2

   Wife’s motor vehicle  $10,000

   Wife’s NRMA shares  $2,700

   Husband’s bank account  $350

   Husband’s motor vehicle  $2,000

   Total              $303,985

Liabilities

1. An item of contention is that the husband sought payment of an amount of $26,000 for his legal costs.  I understand these costs to be in relation to the proceedings concerning the parties’ children. 

2. The husband appears to assert that because of the wife’s behaviour in the conduct of those proceedings that he is entitled to recover the amount he paid to legal practitioners who previously appeared on his behalf in this matter.  There certainly has been a long and complicated history to this matter.

3. Whilst I understand that the husband seeks to recover what he considers a great amount of money that he has been required to pay, I am not persuaded that circumstances exist which require a departure from the general rule to be found in section 117(1) of the Family Law Act 1975 (Cth) that each party pay his or her own costs. Accordingly, I do not propose to take into account the amount the husband claims for costs in determining the pool of assets available for distribution. This amount will thereby be the sole liability of the husband.

4. Having determined the above, I take into account that the only liability therefore is the mortgage secured over the property at $165,100.70.

5. When one takes the liabilities from the assets, a net figure of $138,884.30 is arrived at.

Contributions

Non-superannuation assets

1. As I have said, much of the cross-examination by the parties of each other dealt with the period post separation.  Whilst this is of course the most recent aspect of the parties’ contribution to the pool of assets, what cannot be ignored is the fact that the marriage was a long one and two children were born of that marriage. 

2. I am satisfied that during the marriage, the parties worked collaboratively for the benefit of their family.  It is not possible, apart from anything else having regard to the state of the evidence to deal precisely and mathematically with the contributions made during the marriage, nor in the circumstances of such a long marriage would I endeavour to do so.  With each of the parties working at times during the marriage and contributing their income during the course of the marriage, with the parties bringing in sums, particularly in the case of the husband, by way of insurance payouts that enabled property to be acquired, I am satisfied that the financial contributions of the parties slightly favoured the husband.  However, I am satisfied that during the course of the marriage, the wife’s contributions as homemaker and parent were greater than those of the husband, although I accept that the husband did his best in this regard.

3. Overall, and up to the time of separation, I am satisfied that the parties’ contributions should be found to be equal. 

4. Post-separation, each of the parties has argued for amounts of money that they paid to be taken into account so as to favour them in a finding as to contribution. 

5. I am satisfied that post-separation both parties made payments directly towards the mortgage.  I am not satisfied that the wife can complain to the extent that she seeks to do so that the husband did not make payments that he ought to have done to support her and one or more of the children at any given time.  Whilst I am satisfied and find that the husband did not pay one half of mortgage instalments from the date I so ordered, I am satisfied that the situation that had prevailed until then, that is with the husband either paying $300 to the wife or $150 to the wife and $150 directly off the mortgage, was no longer possible when the wife obtained, against the husband, a child support assessment requiring the husband to pay money in respect of child support.  I accept that in paying that amount, the husband was effectively unable to pay the mortgage as well.

6. Accordingly and despite all of the disputed argument between the parties as to what happened following their separation, I am satisfied that as at the date of this hearing, I should, and indeed I do, find that the contributions of the parties are equal.

Section 75(2) factors

1. I turn then to the section 75(2) factors. 

2. I am satisfied that neither party is in particularly good health.  However, it appears that the husband is able to continue in paid employment whilst the wife is not. 

3. I am satisfied that the parties’ standard of living has at all times been frugal and continues to be following separation.  I am satisfied that the husband has for the foreseeable future the care of the parties’ youngest child, without apparent support from the wife. 

4. When I balance all of the relevant section 75(2) factors, I am satisfied that the husband’s superior earning position requires a significant adjustment in the wife’s favour.  However, I am satisfied that the fact that the husband has the care of the parties’ youngest child offsets this to some extent, but not completely. 

5. In the circumstances of this case, I am satisfied that the wife is entitled to receive a further two and a half per cent of the non-superannuation asset pool.  This would mean the wife would receive 52.5 per cent of that pool, and the husband 47.5 per cent.  Thus, a differential of five per cent is created.

Superannuation Entitlements

1. As I have mentioned above, I propose to deal with superannuation assets in a separate pool.  The total of the husband’s superannuation entitlements is $33,838.30.  The wife’s superannuation is an agreed figure of $25,000.  Accordingly, the total of the parties’ superannuation entitlements is $58,838.30.

2. I am satisfied that the superannuation entitlements of the parties were acquired during the course of their marriage and cohabitation, at least to a very large extent.  So far as contribution is concerned, I am satisfied that I should find that the parties therefore have contributed equally to the pool of superannuation.  I am not satisfied, in the circumstances of this case, that any further adjustment to that original finding is required, and accordingly I would be satisfied that the parties are equally entitled to the superannuation pool.

3. Given that I have determined these should be divided equally, there will need to be a payment by the husband to the wife in this regard.  The total superannuation held is $58,838.30.  If I divide that amount equally, an amount of $29,419.15 is produced.  As the wife already has for her own superannuation entitlements in the sum of $25,000, she is entitled to a further sum of $4,419.15 to adjust the parties’ superannuation entitlements equally.  The husband will need to pay this sum to the wife to adjust their respective entitlements.

How is a result to be achieved?

1. In order to bring about a resolution and division of the matter, the figures then appear to be as set out hereunder.

2. The net pool of assets of a non-superannuation nature I have established at $138,884.30.  If the wife is to receive 52.5 per cent thereof, a figure of $72,914.25 is produced.

3. The wife already has in her possession contents of the home at $7,500, her bank account monies totalling $435, her motor vehicle at $10,000 and her shares at $2,700.  These figures together produce a total of $20,635.  When that amount it taken from her percentage entitlement so determined, a figure of $52,279.25 is produced, representing the wife’s entitlement. 

4. It will be remembered that the wife seeks to acquire the husband’s interest in the property.  I am of the view that, provided payment is made within a specified time, such time being relatively short, then there is an advantage to the parties in that they will not have to pay agent’s fees, possibly including auction fees, together with conveyancing costs on the sale of the property.  If the property is transferred, of course the instrument of transfer will not attract stamp duty. 

5. I am therefore of the view that it would not create any injustice to the husband if the wife is given a reasonable time in which to make such payment.  I am satisfied that in all the circumstances of this case, a period of 42 days from the date of these orders would be an appropriate time.  The amount the wife will have to pay I calculate as follows:-

   Agreed value of property  $280,000

   Less mortgage  $165,100.70

   Subtotal$114,899.30

   Less wife’s entitlement  $52,279.25

   Total$62,620.05

   This is the amount then required to be paid by the wife to the husband to secure the property be transferred to her. 

6. If the husband were to pay direct to the wife required to adjust superannuation entitlements, the wife could immediately apply it to reduce in turn the amount that she has to pay the husband.  Accordingly, I propose to deal with that amount this way:- should the wife acquire the husband’s interest in the property, the amount that she would need to pay him, which I have established at $62,620.05, would be reduced by the amount the husband would need to pay her of $4,419.15.

7. Accordingly, in the case that the wife is to acquire the husband’s interest in the former matrimonial home, keep such things and items as she presently has, and to adjust the superannuation entitlements of the parties, she would need to pay to him the sum of $58,200.90.  I will round that amount to $58,200.  This is the amount that I will order her to pay o the husband within 42 days.

8. In the event that the wife has not paid the whole of that sum within the time, or such further or other time as the parties shall in writing agree, then I will order that the property be sold and the sale proceeds divided.  I propose to order that the property be sold by private treaty.  I will order that the property if not the subject of a binding contract for sale at the expiration of 18 weeks from the date of these Orders shall then be sold by auction.  I will make orders for the appointments of agents and auctioneers in the event that any sale of the property is necessary.

9. In the event of any sale being concluded then the wife will be entitled to receive from the proceeds of sale the amount required to establish her entitlement, some $52,279.25.  A percentage therefore of 45.5 percent is produced (being her percentage entitlement less assets in her possession).  Therefore, upon a sale of the property being effected, either by private treaty or auction, the wife is to receive 45.5 per cent of the proceeds of sale and the husband the balance.

10. The wife will then have the items and monies presently in her possession and control. 

11. So far as superannuation is concerned, I will, in the circumstances of a sale of the property, order that the husband pay to the wife from his percentage entitlement the amount to adjust the superannuation entitlements to equality.

12. The husband will therefore have the items in his possession, his percentage of the sale proceeds less the amount he has to pay the wife in respect of superannuation.

Just and Equitable

1. The fourth step that I am required to undertake is to step back, look at the result I have arrived at, and ascertain that if in all the circumstances I am of the belief that my decision is just and equitable.

2. The orders I have indicated I would make are of course in two stages:- the first, for the wife to acquire the property, and secondly, if the property needs be sold.  I am satisfied that to give the wife the opportunity to retain the property is in all the circumstances just and equitable as affects both parties.  However, if the wife is unable, for whatever reason, to acquire the property then the sale of that property is inevitable.  The methods that I propose to use for a sale to be effected are such that give an opportunity for private sale, but after a period of time require the parties to deal with the resolution of this matter by auctioning the property and dividing the proceeds.

1. I am satisfied the adjustment of superannuation that I have indicated that I will make is equally, in all the circumstances, a proper and just one.

Conclusion

1. Accordingly, the orders that I make are as set out at the commencement of these reasons for Judgment.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 28 February 2013.

Legal Associate:      

Date:    28 February 2013