Harvey and Goss

[2013] FamCA 759

FAMILY COURT OF AUSTRALIA

HARVEY & GOSS [2013] FamCA 759

FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

APPLICANT: Ms Harvey

RESPONDENT: Mr Goss

FILE NUMBER: MLC 6506 of 2011

DATE DELIVERED: 8 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: Susan Snyder Barrister & Solicitor

COUNSEL FOR THE RESPONDENT: Mr Salamanca

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

Orders

1. That the husband retain and the wife relinquish any interest in the following:

   (a)The B Town property;

   (b)The C Town property;

   (c)The Telstra shares in his name;

   (d)The D Lodge interest in the name of the husband;

   (e)The Offset account;

   (f)The Westpac account in his name;

   (g)The chattels in his possession; and

   (h)His car.

2. For the purposes of paragraph 1 (a) and (b), the husband indemnify the wife, and pay, any liability arising from the mortgage(s) encumbering those properties and any taxation consequent upon their disposal.

3. That the wife retain and the husband relinquish any interest in the following:

   (a)The Telstra shares in her name;

   (b)The D Lodge interest in the name of the wife;

   (c)The chattels in her possession;

   (d)Her car;

   (e)The campervan; and

   (f)Her Westpac Account.

4. That the proceeds of the sale of the former matrimonial home be applied as follows:

   (a)First, to pay all costs, commissions and expenses of the sale;

   (b)Secondly, to discharge:

   i.The home mortgage of approximately $187,300; and

   ii.The second debt of approximately $203,000.

   (c)Thirdly, to pay to the husband such sum as will enable him to obtain 45 per cent of the assets less liabilities referred to in the reasons for judgment given this day; and

   (d)Fourthly, to pay to the wife, the balance.

5. Paragraphs 6 to 9 of these orders are binding on the trustee of the Telstra Superannuation Fund (“the Fund”).

6. For the purposes of this paragraph, the husband (MR GOSS born 24 May 1966) is a member of the Fund (member number 36596037) and the wife (Ms Harvey born 19 May 1969) is also a member of the Fund (member number 37775328).

7. In relation to the husband’s superannuation entitlements in the Fund, the base amount to be allocated to the wife from the husband’s entitlements in the Fund is the amount of $77,000.

8. Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest (or entitlement) of the husband in the Fund, the trustee shall pay to the wife, the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount and there shall be a corresponding reduction in the entitlement of the husband accordingly.

9. Paragraph 7 of these orders has effect from the operative time which shall be 4 business days after the date of the service of these orders upon the trustee.

10. Within 14 days of becoming entitled to receive a superannuation benefit from the Fund, each party shall give the trustee:

    (a)All such forms as are necessary to enable the trustee to determine the nature of the quantum of the husband’s superannuation entitlement; and

    (b)Any related information that the trustee may reasonably require.

11. That there be liberty to each party and the trustee to apply regarding the implementation of paragraphs 5 to 9 of these orders.

12. That each party otherwise retain, to the exclusion of the other, all other assets in their respective possession or control as at the date of these orders.

IT IS CERTIFIED

1. That it was appropriate for each party to brief counsel in the proceedings.

2. That save as to costs, all proceedings are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harvey & Goss 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 MELBOURNE

FILE NUMBER: MLC 6506  of 2011

Ms Harvey

Applicant

And

Mr Goss

Respondent

REASONS FOR JUDGMENT

1. Upon delivering reasons for judgment on 9 July 2013, I said:

   83.Section 79(2) requires that a court shall only make an order if it is satisfied that it is just and equitable to do so.  If the pool of assets was roughly divided as to 55 per cent to the wife and 45 per cent to the husband, an adjustment would be necessary from the sale of the home which is the only joint asset so that the husband receives cash.  I have already mentioned that I have taken into account that he has the liability to his father but he is in a much stronger position to be able to control the repayment of that loan.

2. I did not make orders at that time formally altering the interests of the parties in property because:

   ·    There was a sale to be conducted of the former matrimonial home and details run clear as to the likely sale price notwithstanding the sworn valuation nor was I aware of the likely sale costs and expenses;

   ·    The “off set” account was described as being connected to the home and as such, it was unclear to me whether that sum could be subsumed by the mortgagee notwithstanding there was a credit balance;

   ·    Although the parties had agreed on an equal division of their superannuation, I was uncertain how the formal splitting orders would be drawn and whether the superannuation trustee had been advised of any such proposed orders;

   ·    There was an order made in February 2012 to which there had been appended, a notation that the parties would sell a camper trailer and divide the proceeds equally.  It seems that 18 months on, that has not occurred so I concluded that if action was not taken, the adjustment for the full value (albeit that amount was controversial) would be adjusted against the wife.  I propose to ignore the earlier sale notation.

3. At a hearing on 18 July 2013, the parties pointed to a potential error on my part in the mathematics which made the exercise I was proposing they undertake, very difficult.  Indeed, my calculation was a typing error on my part.  I said:

   72.The wife has a joint interest with the husband in the house at [Suburb E].  She has shares, a car and furniture.  She has therefore approximately $921,000 in net assets if she retained all of the net proceeds of the sale of the home.  That would ignore sale costs.

4. The figure referred to should have been $821,000.  In turn, that led to a repetition in paragraph 75 as follows:

   75.In my view, leaving the wife with $921,000 or thereabouts worth of assets when the husband has $602,000 would not be a just and equitable outcome. 

5. The error referred to did not vitiate the outcome even taking into account the provisions of s 75(2)(n) but made it harder for the parties to make the necessary adjustment.  Accordingly, bearing in mind that I said I had rounded figures for my convenience to show what each was retaining if no adjustment was made (see paragraph 71 to 73 and 75),  I have now set out below a more precise determination because the parties wanted to calculate the division using the percentage approach saying they could work it out from there. 

6. Hearing said that, I am not confident that such an approach by the parties will be successful.  As such, I requested they provide me with the superannuation splitting orders which they said were agreed.  Having now received those, I have been further advised of the sale of the home at $1.33 million.  That too needs to be factored into the determination.

7. Little was otherwise said by the parties about a number of bank accounts, chattels, cars, shares and their D Lodge interests.  Their respective positions as to what each would retain (as distinct from the values of such items) was canvassed frequently in a series of aide memoires.  I have relied on those in respect of the recognition of the parties’ legal and equitable interests save for the campervan.  That was earlier referred to.

8. I find the legal interests of the parties for the purposes of the division on the basis of 45 per cent to the husband and 55 per cent to the wife are as follows:

The husband

B Town  $465,000

Less mortgage  (212,000)

Less debt  (18,000)

C Town (???)  $465,000

Less mortgage  (237,000)

Less debt  (49,500)

Telstra shares  4,600

D Lodge interest  3,000

Offset account April 2013              102,000

Add back   42,000

Westpac Account  10,700

Car  14,000

Chattels  5,000

Sub-total  $594,000

The Wife

Home  $330,000 (gross)

(and which is to be adjusted for sale costs and the final balances of the debts encumbering the home)

Less mortgage  (187,300)

Second debt  (203,000)

Telstra shares  4,600

D Lodge  3,000

Campervan  10,000

Westpac account  200

Car  10,000

Chattels  5,000

Sub-total  $981,500

1. It will be evident therefore that I have ignored the loan of $85,000 referred to in the reasons, the credit card debt of $10,000 and the capital gains tax issue.

2. In relation to the off-set account, I have included that as shown but that depends on whether the account is subsumed at the settlement of the sale of the house.

3. As no evidence was led in relation to the fly buy points notwithstanding it was raised, I do not propose to deal with that at all.

4. Based on a division of 45 per cent to the husband and 55 per cent to the wife, on the table just above, the husband has $599,600 and, if the wife retained all of the proceeds of the sale of the home, she would have $981,500.  On a percentage basis, that would be an overall division of 62 per cent to the wife excluding superannuation.  In my view, that would not be just and equitable.  Bearing in mind the husband is keeping B Town, C Town, shares, D Lodge interest, the off-set account, the add-back, the Westpac account, the car and chattels, the wife must pay him cash of about $115,000 to enable him to achieve a settlement entitlement of 45 per cent.  Because there are still adjustments to be made from the sale proceeds, I propose to make orders according to the percentage calculations so that the parties received 55 per cent and 45 per cent of all of their assets as I have found them.   

5. The wife will retain the Telstra shares in her name, her D Lodge interest, the campervan, the Westpac account, the car and the chattels and she will obviously retain sufficient cash thereafter to achieve a settlement.

6. I shall make orders accordingly.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 October 2013.

Associate: 

Date:  8 October 2013