Hackett and Hackett
[2010] FMCAfam 17
•15 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HACKETT & HACKETT | [2010] FMCAfam 17 |
| FAMILY LAW – Property orders – assessment of section 79(4) and 75(2) factors. |
| Family Law Act 1975, ss.75, 79 |
| Kennon v Kennon (1997) FLC 92-757 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 |
| Applicant: | MR HACKETT |
| Respondent: | MS HACKETT |
| File Number: | MLC 1738 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 30 November & 1 December 2009 |
| Date of Last Submission: | 1 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 15 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Stavrakakis |
| Solicitors for the Respondent: | Nevett Ford |
ORDERS
The husband pay to the wife the sum of $180,000.00 (“the payment”) on or before the 15th day of March 2010 (“the date”).
Contemporaneously with the payment:
(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right, title and interest in the real property situate at and known as Property B, being the whole of the land more particularly described in Certificate of Title Volume [omitted] (“the former matrimonial home”); and
(b)the husband indemnify the wife against all payments and liability for all apportionable rates, taxes and outgoings of or with respect to the former matrimonial home of whatsoever nature and kind and do all things necessary to formally discharge the mortgage registered number [U] to the Commonwealth Bank of Australia currently registered against the former matrimonial home in both party’s names.
In the event that the whole of the payment has not been made by the date then the husband sign all documents and do all things necessary to transfer to the wife the former matrimonial home to be held on trust for sale (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)first to pay all costs, commissions and expenses of (the said trust transfer and) the sale;
(b)secondly to discharge any mortgage and any other encumbrance affecting the former matrimonial home;
(c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the date to the wife;
(d)fourthly the balance to the husband.
Pending the payment or completion of the sale:
(a)the husband have the sole right to occupy the former matrimonial home and during such right of occupation the husband pay all instalments pursuant to any mortgage and all rates and taxes and like apportionable outgoings of the former matrimonial home as they fall due;
(b)the parties hold their respective interests in the former matrimonial home upon trust pursuant to these orders; and
(c)neither party encumber the former matrimonial home without the consent in writing of the other party.
The husband and wife sign all documents and do all things necessary to immediately place the real property at Property K, being the land more particularly described in Certificate of Title Volume [omitted] (“Property K”) on the market for sale at a reserve price of $285,000.00 and on such terms and conditions as agreed between the parties, and failing agreement as determined by the selling agent (“the Property K sale”).
Upon completion of the Property K sale, the proceeds of the Property K sale be applied:
(a)first to pay all costs, commissions and expenses of the sale;
(b)secondly to discharge the mortgage registered number [A] to the Commonwealth Bank of Australia (“the mortgage”) and any other encumbrance affecting Property K; and
(c)thirdly, the balance to the wife.
Pending the completion of the Property K sale:
(a)the husband continue to manage the tenancy of the Property K property and the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Property K property as they fall due;
(b)the parties hold their respective interests in the Property K property upon trust pursuant to these orders; and
(c)neither party encumber the Property K property without the consent in writing of the other party.
Any Capital Gains Tax payable on the sale of Property K shall be paid on the basis the wife shall be responsible for 30% of same and the husband shall be responsible for 70% of same.
Each party shall have liberty to apply in relation to the terms and conditions of the sale of the Property K property.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the former matrimonial being deemed to be in the possession of the husband);
(b)insurance policies remain the sole property of the owner named thereon;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Hackett & Hackett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1738 of 2008
| MR HACKETT |
Applicant
And
| MS HACKETT |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was listed before me on 30 November 2009 in relation to both children’s and property matters.
When the matter came before me, it was apparent that the children’s matters would not be able to be dealt with.
When the matter came before the court on 29 June 2009, interim orders were made for the husband to spend supervised time with the parties’ three children [X] born [in] 1993 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2001 (“[Z]”). Otherwise extensive procedural orders were made to prepare the matter for final hearing in respect to both children’s and property matters.
In relation to children’s matters, the wife brought an urgent Application in a Case on 18 September 2009 seeking that the husband’s time with the children be suspended because of ongoing domestic violence, alcohol abuse and inappropriate threats to the wife.
The matter came before me on 2 October 2009, at which time the husband failed to appear, although he did contact the court to advise of an inability to attend because of illness.
Because of the seriousness of the allegations made by the wife, I made orders, supported by the independent children’s lawyer, suspending the husband’s time with the children and requiring the husband to attend a men’s group and to undertake an alcohol rehabilitation course. The husband was given liberty to apply within 14 days to have the matter relisted in relation to the orders made in his absence. The husband made no such application.
On 30 November 2009, the husband’s counsel advised the court that his client had only very recently obtained legal representation, had not fully understood the orders made and had had no opportunity to comply with the orders. All parties consented to the children’s matters being adjourned. Accordingly, orders were made by consent that adjourned the children’s matter for final hearing on 1 February 2010, made provision for the husband to comply with my orders of 29 June 2009 whereby he was to forward an application to a contact centre and thereafter spend time with the children on a supervised basis at the contact centre and for the husband to comply with the orders made on 2 October 2009 for him to attend a men’s group and an alcohol rehabilitation course.
The husband also sought orders that the property matter be adjourned. This application was vigorously opposed by the wife.
My orders of 29 June 2009 required the parties to attend a conciliation conference with a Federal Magistrates Court Registrar on 9 September 2009, to obtain sworn valuations in relation to the parties’ two pieces of real estate by 12 August 2009 and to otherwise comply with the Federal Magistrates Court Rules to provide full and frank disclosure in relation to their financial positions, including superannuation entitlements. The orders also required that the husband file and serve a sworn financial statement.
The husband failed to comply with the orders to file a financial statement, he failed to make full and frank disclosure and he failed to attend the conciliation conference.
It was ordered on 2 October 2009 that if the husband failed to comply with the orders requiring full and frank disclosure and the filing of a sworn financial statement within 21 days, the wife would have liberty to proceed on an undefended basis at the final hearing of this matter.
The husband did not comply with the orders of 2 October 2009. He also failed to file a trial affidavit or any evidence in relation to the value of the jointly owned real estate.
In anticipation of the final hearing on 30 November 2009, the wife filed a trial affidavit, together with an updated financial statement and sworn valuations of the jointly owned real estate.
The wife is currently in emergency housing which she must vacate at the end of January 2010. The husband has the benefit of residing in the unencumbered former matrimonial home and the management of the parties’ investment property.
Having heard the parties’ submissions as to the adjournment of the property matters, I ordered the property matter be adjourned for hearing on 1 December 2009, and that the husband make available to the court and the wife’s legal representatives a sworn financial statement and his most recent superannuation statement at the commencement of the matter on 1 December 2009.
On the morning of 1 December 2009, the husband’s legal representative again sought to have the property matter adjourned. When advised that the application for adjournment had been dealt with on the previous day, the husband’s counsel indicated his instructions had been terminated. Counsel was excused and the matter proceeded on the basis the husband was self-represented.
The husband failed to provide to the court and the wife’s legal representatives a sworn financial statement or his most recent superannuation statement.
Background
The husband was born [in] 1959 in Sri Lanka and is 50 years of age. He is employed as a [occupation omitted] with [F].
The wife was born [in] 1970 in Sri Lanka and is 39 years of age. She is engaged in home duties.
The husband migrated to Australia in 1990.
The parties married [in] 1991 in Sri Lanka. They moved to Australia as a couple in 1992.
The parties purchased the former matrimonial home at Property B (“the former matrimonial home”) in July 1996 for $83,000.00. They obtained a bank loan of $80,000.00 to purchase the property, the deposit and sale costs coming from the parties’ joint savings. The property is now unencumbered.
The parties purchased an investment property at Property K (“the Property K property”) in 2002 for $175,000.00. They funded the purchase with a loan of $170,000.00, with the deposit and sale costs coming from the parties’ joint savings. The amount currently outstanding pursuant to the mortgage on the property is $99,622.00.
The Property K property has been tenanted since its’ purchase. The current rental paid is $800.00 per month. The mortgage commitment is $950.00 per month. The shortfall is met by the husband, who obtains a tax benefit through negative gearing.
The parties first separated in January 2008 after the husband assaulted the wife. The wife and children moved into a refuge in [W]. The wife obtained an intervention order against the husband.
The husband commenced proceedings in the Federal Magistrates Court and orders were made on an interim basis by consent on 14 April 2008 that provided for the children to live with the wife and spend time with the husband each alternate weekend.
In June 2008, the husband was arrested and charged with breaching the intervention order and leaving the children without supervision when he broke into the wife’s refuge in [W] with poison in his pocket, leaving the two youngest children unsupervised in the caravan he has rented to spend time with them whilst exercising ‘contact’ pursuant to the April 2008 orders.
The husband was remanded in custody. He was released from jail in September 2008.
Shortly after the husband’s release in September 2008, the parties reconciled. The wife alleged further domestic violence by the husband and they finally separated in December 2008 when the wife and children vacated the former matrimonial home and moved to a refuge.
The husband commenced further proceedings in the Federal Magistrates Court in March 2009. Interim orders were made in May 2009 for the husband to spend time with the children supervised by family friends. The wife alleged ongoing breaches of the intervention order by the husband at the time of changeover and on 3 June 2009, a two year intervention order was made against the husband by consent.
Orders were made by the court in June 2009 and October 2009 as previously outlined in this judgment.
The husband’s evidence
It was the husband’s evidence that the matrimonial assets consisted of the following:
a)the former matrimonial home situate at Property B;
b)the investment property situate at Property K;
c)the net proceeds of sale of the Toyota Motor vehicle, being $5,000.00; and
d)the husband’s superannuation entitlements with [F], which he valued at approximately $30,000.00.
In relation to the value of the former matrimonial home, the husband indicated that he thought the sworn valuation provided by the wife of $305,000.00 was a little high, but conceded he had no evidence to contradict the valuation. The husband confirmed this property was unencumbered.
In relation to the Property K property, the husband commented that the sworn valuation of $285,000.00 could be a little low, but indicated he had no evidence to counter the sworn valuation. It was ascertained that the current amount outstanding on the mortgage over that property is $99,622.00. The property is currently tenanted and the rental received is $800.00 per month. It was the husband’s evidence that the current mortgage commitment is $950.00 per month and that he is responsible for any shortfall payable in relation to that mortgage. It was the husband’s evidence that he receives a tax advantage on the basis that he is able to establish that this property is negatively geared.
It was the husband’s evidence that the rental received is paid directly into an account in his sole name, and that the bank automatically deducts the mortgage payments from that account.
It was the husband’s evidence that the Property K property has generally been tenanted since its purchase and that the rental received has been used to meet mortgage payments and other costs associated with that property.
In relation to the husband’s superannuation entitlements, despite the orders made that he provide a current superannuation statement, it was the husband’s evidence that he had not been able to locate same. He gave evidence that from the best of his recollection, he had been contributing to superannuation with [F] since 1996. He indicated he believed the amount of his superannuation entitlement as at June 2008 was $30,000.00.
In relation to motor vehicles, the husband indicated that he did not own a car as he had lost his licence. It was his evidence that when the parties separated in January 2009, the wife had used the parties’ Toyota motor vehicle to take her and the children to a refuge. It was his evidence that he was then contacted by someone from the refuge who advised him that he could collect the motor vehicle from a roadside address where the motor vehicle had been left by the wife. It was the husband’s evidence that when he went to collect the motor vehicle, the vehicle had been vandalised with the tyres being removed, the windows being broken and the sound system having been removed. It was his evidence that it cost him $5,000.00 to repair the motor vehicle. Once it was repaired, the husband advertised the motor vehicle for sale privately and had received the sum of $10,000.00 for that vehicle. He indicated that he had retained those funds.
It was the husband’s evidence that he had been employed for most of his working life in the motor vehicle industry as a [omitted]. It was his evidence that for most of 2009 he had not been employed. He indicated that he had not actively been seeking employment as he had been depressed because of the breakdown of the marriage and because of the limited time he was able to spend with his children.
The husband gave evidence that he had been employed on a casual basis for some three weeks prior to the final hearing of the matter with [F], but that his contract would expire on 21 December 2009 and he would have to seek alternate employment after that date. It was his evidence that he was currently earning somewhere between $600.00 to $700.00 per week net.
The husband’s evidence was that because of the current downturn in the motor vehicle industry, employment was difficult to obtain and that of the 120 people that were being put off in December 2009, only 16 of those people were guaranteed further employment.
The husband conceded that for most of 2009 he had not been paying child support because he had not been engaged in paid employment.
The husband was questioned in relation to property that he had owned in Sri Lanka. It was his evidence that he, along with other family members, had owned a small holding in Sri Lanka which had recently been transferred to his adoptive brother. He indicated that no monies had been received in relation to this transfer and that at best his interest in that land would have been worth $500.00 AUD.
The wife made serious allegations against the husband in relation to ongoing domestic violence. The husband was questioned at some length in relation to these allegations and denied that such violence had occurred. He conceded that he had been in prison for some three months as a result of him breaching the intervention order when he broke into the wife’s refuge in [W], but denied that he was intending any harm to her at that time.
It is the husband’s proposal that property matters resolve on the basis that the Property K property be transferred to the wife unencumbered and the former matrimonial home be transferred to the husband, and that the mortgage currently registered over the Property K property be transferred to the former matrimonial home, with the husband to assume responsibility in relation to same. It was the husband’s proposal that he otherwise retain his superannuation entitlements and the proceeds of the sale of the Toyota motor vehicle.
It was the husband’s evidence that he wished to continue to reside in the former matrimonial home.
Accepting the husband’s evidence in relation to the value of his superannuation entitlements and the manner in which the jointly owned motor vehicle was disposed of, such a proposal would represent the wife retaining 54 per cent of the parties’ joint assets.
The wife’s evidence
It was the wife’s evidence that she has no formal training, and other than for a very short period of time, has not been in paid employment since her arrival in Australia in 1992.
The wife gave evidence that she is currently in emergency housing and that she will be required to vacate that property in January 2010.
The wife was questioned as to why she would not agree to the husband’s proposal on the basis that the properties could be preserved for the children, to which she responded that she did not wish to live in the Property K property and that she required a property settlement to be able to reaccommodate herself and the children in a property of her choosing.
In relation to the Toyota motor vehicle, the wife confirmed that having driven to the refuge, it was not possible for the husband to be given the address of the refuge to collect the vehicle and in those circumstances she had parked the vehicle on a street well away from the refuge and that her social worker had then contacted the husband to advise him as to where the vehicle could be collected from.
It was the wife’s evidence that at the time the vehicle was left in the street, it was in an undamaged condition. She was unable to offer an explanation as to why the vehicle was not left in a secure car park or returned by an independent third person to the former matrimonial home so as to avoid the potential of the vehicle being vandalised.
The wife agreed that she has in her possession a 1995 Mitsubishi motor vehicle worth $3,000.00. Neither party refuted that she would retain this motor vehicle.
The wife was questioned as to whether she owned any property in Sri Lanka. It was her evidence that she had a small block of land which had been gifted to her by her father some four years ago. She estimated the value of same at being no more than $3,000.00 AUD.
It was the wife’s evidence that ideally she would like to retain the unencumbered former matrimonial home, with a view to being able to sell it. She conceded she did not wish to live there and that part of the attraction of that property was that it would not attract Capital Gains Tax in the event it was to be sold.
The wife confirmed the contents of her affidavit in relation to the allegations of ongoing domestic violence, particularly when the husband was affected by alcohol. She expressed a genuine concern as to the husband’s violent behaviour when affected by alcohol.
It was the wife’s proposal that there should be a division of the matrimonial assets which enabled her to retain 70 per cent of same.
The legislation
Section 79 of the Family Law Act1975 (“the Act”) defines the court’s powers in determining applications for property settlement.
Sub-section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The four-step approach
In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….
Assets and liabilities
As indicated earlier in this judgment, the only evidence before the court in relation to the value of the parties’ real estate was that presented by the wife by way of sworn valuations prepared by Mr D, certified practicing valuer, of [omitted] Valuers, [address omitted], Melbourne. Perusal of those valuations satisfies me that they have been done in accordance with the proper professional standards and I accept that the valuations accorded to the properties by Mr D are a true and correct reflection of their proper market value.
There was no independent evidence supporting the evidence of the husband in relation to his current superannuation entitlements, nor had the wife independently subpoenaed the husband’s superannuation fund in an effort to obtain that information. In those circumstances, the figure that the husband gave by way of oral evidence of a value of approximately $30,000.00 in 2008 is the only evidence before the court at this time.
Similarly, there was no independent evidence supporting the husband’s evidence in relation to the amount that he disposed of the jointly owned Toyota motor vehicle, nor the amount he alleged that he had to expend because of its vandalism. In those circumstances, the figures attributed can only be taken as estimates.
Accordingly, I find the matrimonial pool consists of the following:
The former matrimonial home situate at Property B $305,000.00 The investment property situate at Property K, with a value of $285,000.00, less mortgage of $99,622.00, leaving net equity of $185,378.00 $185,378.00 1995 Mitsubishi motor vehicle $3,000.00 The net proceeds of sale of the Toyota Motor vehicle, being $10,000.00, less the cost of the repairs being $5,000.00, leaving net equity of $5,000.00. $5,000.00 The husband’s superannuation entitlements (estimated value only) $30,000.00 Total $528,378.00
In the absence of evidence as to the value of the parties’ respective interests in property in Sri Lanka, I do not intend to include those properties in the matrimonial pool.
Contributions
It was common ground that when the parties commenced cohabitation, neither had any assets of great significance.
During the course of the marriage, the parties assumed fairly traditional roles, with the husband being the primary income earner and the wife performing the majority of the homemaker and domestic duties.
By these combined efforts, the parties were able to obtain the matrimonial home and discharge its’ mortgage, as well as obtaining an investment property.
It was argued on behalf of the wife that the continuous domestic violence that the wife suffered at the hands of the husband was such that her contribution should be seen to be greater than that of the husband.
In Kennon v Kennon (1997) FLC 92-757, the Full Court held as follows:
“Our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contribution to the marriage, or put the other way, to have made his or her contribution significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within section 79.”
The wife’s affidavit sets out her allegations in relation to the level of abuse suffered by her during the course of the marriage. She deposes that the husband regularly became intoxicated during the marriage, drinking anywhere up to between half to a full bottle of whisky on three or four occasions per week. It was her evidence that when intoxicated, the husband became verbally abusive towards her in front of the children as well as occasionally being physically abusive to her.
When the parties separated, it was the wife’s evidence that this abuse continued, despite intervention orders to the extent that the husband was imprisoned for three months, having broken into the refuge that she was staying in with poison in his pocket. The wife had genuine concerns that he was intending to use the poison against her.
The parties’ eldest son [X], who is nearly 17 years of age, expressed concerns about his father’s alcohol consumption and abuse of his mother to the family report writer. It is noted that the family report writer was not questioned in relation to her report in the property proceedings.
The husband denies the wife’s allegations in relation to violence and alcohol abuse, though concedes that he did break into the refuge in which the wife was residing but was unable to offer an explanation as to his actions, particularly as they took place at a time when he had the two youngest children in his care.
Since the parties separated in November 2008, the wife has had the primary care of the parties’ three children. The parties’ eldest son [X], refuses to spend any time with his father and has not done so since separation. The parties’ two youngest sons have spent limited time with their father on a supervised basis, though they have not been spending any time with the father since I made orders suspending that time in early October 2009.
In addition, the entire financial burden for the care of the boys has fallen on the wife, as the husband has not been in paid employment for most of 2009.
Whilst children’s matters remain to be determined, the reality is that the wife will continue to have the primary care of the parties’ three children into the future and some question has to remain as to what, if any, level of financial support she will receive from the husband in relation to the children.
In those circumstances I am satisfied that there should be a loading in the wife’s favour of five per cent.
Section 75(2) factors
The husband is aged 50 years and, other than some initial depression arising from the breakdown of the relationship and the estrangement from his sons, is in good health. He is an experienced [occupation omitted] in the motor vehicle industry and has a history of ongoing employment in that industry.
It was difficult to ascertain the husband’s precise earning capacity, but it must be noted that during the course of the marriage the parties were able to purchase a matrimonial home and discharge the mortgage, and purchase an investment property and service the mortgage on that property at the same time. This was funded from the husband’s earnings in the motor vehicle industry.
The wife is 39 years of age and is in good health. She has no formal training, and other than for a very brief period, has never been in paid employment since coming to Australia in 1990.
As set out earlier in this judgment, the wife has the primary care of the parties’ three children and is currently in receipt of no child support from the husband in relation to those children, and has not been so since separation.
It was argued on behalf of the wife that because of the husband’s greater earning capacity and because of the wife’s responsibilities as the children’s primary carer, there should be a loading in her favour of some 15 per cent.
I am satisfied that such a loading in the wife’s favour of 15 per cent in these circumstances would be appropriate.
Retention of the former matrimonial home
Whilst the wife was proposing that the former matrimonial home be retained by her, it was conceded by her counsel that this purely to enable it to be sold.
In the circumstances that the husband wishes to continue to reside in the former matrimonial home, I am of the view that it is appropriate that he should be given an opportunity to be able to continue to reside in that property.
Capital Gains Tax payable on the Property K property
Counsel for the wife indicated that in the event the Property K property was transferred to the wife and that it was then subsequently sold by her, she would incur Capital Gains Tax in relation to that sale. The wife’s counsel was however unable to provide any evidence as to the amount of Capital Gains Tax would be payable by the wife in the event of a sale by her.
Just and equitable
The orders I have made will give the husband the opportunity to retain the former matrimonial home. If, however, he is unable to obtain the necessary finance to pay the wife out, then the orders will make provision for all the jointly owned real estate to be sold and for there to be a division of the net proceeds of sale of all the real estate on the basis that the wife receives 70 per cent of same and the husband receives 30 per cent of same.
The orders will also provide for the husband to retain his superannuation entitlements and the proceeds of sale from the Toyota motor vehicle disposed of by him. The wife will retain her Mitsubishi motor vehicle and interest in land in Sri Lanka.
This will enable the wife to reaccommodate herself and the children in a property of her own choosing and for her to be able to get on with her life. It will also afford the husband the opportunity to continue to reside in the former matrimonial home.
In all these circumstances, I am satisfied that such an outcome is just and equitable for the parties.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 15 January 2010
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