HEWSON & BOYCE

[2018] FCCA 3726

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEWSON & BOYCE [2018] FCCA 3726

Catchwords:
FAMILY LAW – Property dispute – long marriage with some separations – parties contributions equal – wife having care of adult children – 5 per cent adjustment for future needs appropriate – parties superannuation almost entirely amassed during marriage – just and equitable to equalise superannuation.

Legislation:

Family Law Act 1975, s.75(2)

Cases cited:

Stanford v Stanford [2012] HCA 52

Applicant: MR HEWSON

Respondent: MS BOYCE

File Number: DGC 2593 of 2017

Judgment of: Judge Burchardt

Hearing date: 11 October 2018

Date of Last Submission: 11 October 2018

Delivered at: Dandenong

Delivered on: 20 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Cinar

Solicitors for the Applicant: Koya & Co

Counsel for the Respondent: Ms Mariole

Solicitors for the Respondent:	Susan Snyder
IT IS NOTED that publication of this judgment under the pseudonym Hewson & Boyce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2593 of 2017

MR HEWSON

Applicant

And

MS BOYCE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a property dispute between a couple who were married in 1994 and who finally separated, albeit after a number of interim separations of relatively short duration, in July 2016.  The applicant husband seeks that the former matrimonial home be sold and the net proceeds divided equally between the parties, with each party to retain their superannuation.

2. The respondent wife seeks that the property be sold and that she retain the entirety of the net proceeds of sale, and that there be an equalisation of the parties’ superannuation (husband’s superannuation $198,000, wife’s superannuation $118,000).

3. Although the wife, in her materials, has sought payment of Adult Child Maintenance, this has not been pressed and is not included in the draft orders filed with the Court by the wife.

4. In my view, both parties’ positions are overstated.  The wife should receive 55 per cent of the pool and the parties’ superannuation should be equalised.

Agreed or Uncontested Relevant Facts

1. The parties have not, so far as I have been made aware, put their dates of birth on affidavit.  They married in Country A in … 1994 and the wife has deposed that she was 10 years younger than the applicant at that time.  From the Initiating Application, however, it would appear that the husband was born on … 1965 and the wife on … 1974.

2. The wife came to live in Australia, where the husband already lived, in … 1994 and through their joint endeavours the parties bought a property in 1995.  They bought and sold a number of properties thereafter but, in my view, those purchases and sales have been overtaken by events.  They moved to Country B in … 2005 and returned to Australia in 2009.  The wife brought back, eventually, two relatively small tranches of superannuation from Country B in 2013, which were applied to the benefit of the family.

3. Although there is a dispute as to exactly how many periods of separation there were and as to how long they lasted, both sides agree that there were periods of separation during the relationship. 

4. The parties’ two children, Ms C born … 1997 and Ms D born … 1998, live with the wife and spend, it appears, no time with the husband, although he has deposed without significant challenge to providing $50 per week to the son and $120 per week in one form or another to the daughter.

5. The former matrimonial home at Property E, was purchased for $416,000 in 2012.  There is a dispute as to the origins, as it were, of the deposit, but it appears to be common cause that in large part it was paid out of an insurance payment of some $40,000 following a burglary, the first home buyers’ grant of some $10,000 and from the parties’ savings (predominantly it would appear those of the wife).

6. The wife worked full time until 1997 but was a stay at home mother until 2001.  She has worked and continues to work as a public servant of the Employer with a salary of $60,000, which she augments by about $10,000 of overtime per year.

7. The husband was employed for some years as a labourer but was made redundant shortly before the trial.  The extent to which he revealed his redundancy pay is a matter in issue between the parties.

8. Both of the adult children are still in tertiary education.  The mother provides, it would seem, the vast bulk of financial assistance to feed and support them.

9. Although there is a dispute as to the amount of assistance that was provided by the wife to the husband’s mother, it is common cause that the husband’s mother lived with the parties for many years and made no financial contributions.  There is a dispute as to whether she generally assisted with the running of the household.  The grandmother was put on affidavit but was not required for cross-examination.

Stanford v Stanford

1. The Court’s first task is to ascertain the legal and equitable interests of the parties and determine whether a property adjustment is appropriate.  In this case, as in so many, however, both parties have substantially re-adjusted the way in which they deal with their finances from that which obtained during the marriage and both seek a property adjustment.  It is obviously appropriate that there be one. 

The Pool

1. Both parties now accept that the matrimonial home may need to be sold, not least because the parties place such different values upon it.  If I understand the matter correctly, the wife values the matrimonial home at approximately $550,000, and the husband values it at $650,000.  It is common cause that the mortgage is approximately $281,500.  It was approximately $416,000 at separation.  It is now about $427,000 according to the wife, who has paid the mortgage since separation, albeit that it would appear of more recent times this has been interest only.

2. I have already noted the parties’ superannuation.

3. The wife seeks that there be a $2,000 add back in respect to the car retained by the husband at separation and subsequently sold for $2,000.  Albeit that the husband has doubtless used the $2,000 to defray his ongoing living expenses, I think it is appropriate to include this otherwise relatively trivial sum because the size of the pool itself may be so small.

4. The husband seeks the inclusion of credit card debts which at separation amounted to $15,005.67.  He has deposed that these debts arose from the ordinary living expenses of the household and he further has deposed that his debts have now expanded to almost $24,000.

5. While there is a measure of dispute between the parties as to financial contributions during the relationship, to which I will return, in my view, the credit card debts as at the time of separation should be included in the pool as I accept the husband’s evidence that they represent living expensed during the relationship.  Those arising post-separation are his responsibility.

Contribution Issues

1. It should be noted that both sides gave evidence within a relatively short compass.  Both parties struck me as being reasonable witnesses who struck me as doing their best to tell the truth.  In the parties’ affidavits, and more particularly those of the wife, there is a considerable attention to detail.  Issues as to who paid for the wedding in Country A in 1994, in my view, are now clearly well and truly overtaken by events.  The wife has deposed to a strict regime of allotment of financial responsibility, but having heard the parties’ evidence I prefer that of the husband.  In my view, both these parties contributed as best they were able during the relationship.  In my view, their contributions should be assessed as equal.

2. I appreciate that this short finding disposes in a relatively summary way of a matter the parties felt appropriate to elaborate at some length in their materials, but the fact is that the overall position could scarcely be clearer.  This relationship lasted from 1994 till 2016, albeit with a few punctuations caused by separation, and the parties’ finances did not always go well for them.  The ultimate outcome is surprisingly poor, given that at time they would seem to have possessed in properties in which there was considerable equity.

3. Another contribution issue raised by the parties is the question of the husband’s mother.  True it is that the parties supported her and fed her for many years, but there is no reason to doubt her assertion that she assisted with the children and in the household duties generally.  It is inappropriate to make a further adjustment arising out of this factor.

4. The final matter to record is that while the wife has solely paid the mortgage and utilities since separation until now there is no evidence of any possible resulting increase in value, and the fact is that the wife has lived there otherwise free of rent.  No adjustment is appropriate.

Other Matters

1. The wife had much to say through her counsel about the non-disclosure on the part of the husband.  I do not accept the criticisms relating to bank records.  The husband struck me as being a relatively unsophisticated person and his failure to obtain documentation, to the extent that it obtains, is in my view attributable to this consideration rather than any wilful failure to disclose.

2. One area where he does fall for criticism is his failure to reveal his redundancy pay.  He was made redundant on 4 September 2018 (see exhibit R2) and I accept his evidence that he ultimately obtained $17,000 net after tax as a redundancy payment.  This factor, of course, militates against any further consideration of his post separation credit card debt increase.

The Section 75(2) Factors

1. The husband has expressed an intention to undertake work as a self-employed following his retrenchment.  At one point, he indicated that he would be likely to make $1,000 per week in this activity, but in the witness box he was at pains to emphasise the uncertainty surrounding such an earning stream.  The most one can say is that the husband does propose to work as a self-employed and is likely to obtain work but that his future income is by no means known with any certainty, not least because he is only in the process of commencing this work now.

2. The wife, as earlier indicated, makes some $70,000 a year, of which some $10,000 is overtime.  She is in secure employment and is some nine or so years younger than the husband and has many years of work ahead of her.

3. The husband has deposed that he will never have superannuation because he will be self-employed.  That, of course, is not technically accurate because it would be open to him to make contributions to his super fund in any event, but I accept that with an income stream even of $1,000 per week, it is by no means certain that the husband will be able to siphon much into superannuation.

4. On any view of the matter, however, the wife has the substantial obligations in relation to the care and maintenance of the parties’ children which is likely to continue for some time.  In my view, as earlier indicated, an adjustment of some 5 per cent in the wife’s favour is appropriate.

Superannuation

1. Given the time of the marriage, the parties must have accrued the vast bulk of their superannuation during it.  Notwithstanding the husband’s greater age, and perhaps reduced capacity to contribute, I think it is just and equitable that the superannuation is equalised. 

Conclusion

1. This has been a short judgment in a case in which, in truth, there was little dispute between the parties.  I am quite satisfied that an outcome which gives the wife 55 per cent of the pool and with an equalisation of superannuation is indeed just and equitable in the circumstances.

2. I will direct the parties to confer and produce orders reflecting these reasons for judgment.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 20 December 2018