Hornby and Hornby
[2009] FMCAfam 397
•4 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HORNBY & HORNBY | [2009] FMCAfam 397 |
| FAMILY LAW – Property – responsibility for payment of outstanding school/university college fees – adjustment of section 75(2) factors – should an adjustment take place which would effectively leave the husband in a negative position vis-à-vis the parties’ realisable assets. |
| Family Law Act 1975, ss.75(2), 79 |
| Hickey v Hickey (2003) FLC 93-143 |
| Applicant: | MS HORNBY |
| Respondent: | MR HORNBY |
| File Number: | MLC 10119 of 2008 |
| Judgment of: | Bender FM |
| Hearing date: | 28 April 2009 |
| Date of Last Submission: | 28 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 4 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | CE Family Lawyers |
| Counsel for the Respondent: | Mr Fookes |
| Solicitors for the Respondent: | Hicks Oakley Chessell Williams |
ORDERS
Within 45 days of the date of this order being made (“the date”), and subject to order 4 herein, the wife pay to the husband the sum of $60,639.00 (“the payment”).
Contemporaneously with the payment pursuant to order 1 herein:
(a)the husband transfer to the wife all his right, title and interest in the former matrimonial home situate and known as Property L (“the Property L property”) and that upon such transfer the wife be responsible for and indemnify the husband in respect of:
(i)all rates, taxes and like apportionable outgoings; and
(ii)the mortgage and Viridian loans to the Commonwealth Bank (“the loans” which include the mortgage); and
(b)the wife discharge the loans.
Pending the transfer of sale of the Property L property to the wife pursuant to order 2 herein:
(a)the wife be responsible for and indemnify the husband in respect of the loans;
(b)any joint tenancy in the real property is hereby expressly severed;
(c)neither party encumber or further encumber the Property L property without the consent in writing of the other party; and
(d)the husband be and is hereby restrained from further borrowing or drawing from the loans secured over the Property L property.
In the event the wife does not make the payment or discharge the loans then both parties do all such acts and things and sign such documents as necessary to place the Property L property on the market for sale at such price and the terms as agreed between the parties and failing agreement as determined by the president of the REIV and the proceeds of sale be disbursed as follows:
(a)payment of all costs associated with the sale of the property, including legal fees and real estate agent’s commission;
(b)discharge of the loans;
(c)all rates, taxes and like apportionable outgoings;
(d)with respect to the net proceeds then remaining:
(i)80% thereof to the wife save that from the wife’s share the sum of $7,516.00 is payable to the husband; and
(ii)20% thereof to the husband together with the sum of $7,516.00 payable to the husband pursuant to sub-paragraph 4(d)(i) herein.
The husband within 28 days of this order being made, pay the following sums:
(a)the sum of $25,952.00 to [G] Grammar School;
(b)the sum of $4,700.00 to [R] College;
(c)the sum of $4,700.00 to [T] College
and indemnify the wife in respect of those payments.
The husband retain the following shares;
(a)48,455 [O] shares;
(b)27 CSL Ltd shares;
(c)10,056 AMP Capital China shares;
(d)1,320 Telstra shares;
(e)522 Consolidated Media Holdings Ltd shares; and
(f)522 Crown casino shares, (“the shares”) and with respect to those shares:
(i)the husband be responsible for and indemnify the wife in respect of any liability whatsoever with regard to the said shares, save for the Viridian loans, including but not limited to capital gains tax; and
(ii)the wife sign all such documents and do all such acts and things, at the expense of the husband, within 14 days of the date of this order or receipt of transfer from the husband whichever the latter.
Both parties do all acts and things and sign all such documents necessary to transfer the following shares to [W] and [X] on trust for [Z] born in 1995 (“[Z]”) and [Y] born in 1993 (“[Y]”):
(a)Amcor – 65 shares for [Z];
(b)AMP – 75 shares for [Z];
(c)Bank of Queensland – 68 shares for [Y]; and
(d)Tattersalls – 641 shares for [Z] and [Y] equally
and to be transferred to them upon attaining the age of 18 years.
The husband do all such acts and things and sign all such documents as necessary to transfer to the wife the Honda Civic motor vehicle registration number [P].
Having been afforded procedural fairness, orders 9 to 13 inclusive of this order are binding on the [O] Supperanuation Fund (“the trustee”), the Trustee of the [O] Supperanuation Fund subject to the Family Law Act 1975 and the SIS Act.
The base amount to be allocated to the wife out of the husband’s interest in the [O] Supperanuation Fund pursuant to section 90MT(4) of the Family Law Act 1975 is $145,786.00 of the husband’s interest in the [O] Supperanuation Fund.
Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the husband in the [O] Supperanuation Fund the Trustee of the [O] Fund shall:
(a)pay the wife the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in order 10 herein; and
(b)make a corresponding reduction in the entitlement that the husband would have had but for this order.
These orders have effect from the operative time.
The operative time for the purposes of these orders is the fourth business day after the day on which a sealed copy of these orders is served on the Trustee of the [O] Supperanuation Fund.
Until the happening of any of:
(a)the establishment of a separate account in the name of the wife in the [O] Supperanuation Fund; or
(b)the transfer or “rolling over” into another superannuation fund of the payment split created by these orders; or
(c)the wife satisfies her condition of release and is paid the payment split pursuant to these orders; or
(d)the wife executing a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 in relation to the payment split pursuant to these orders,
the husband be and is hereby restrained by himself, his servants or agents from doing any act or things which could render any part of his interests in the [O] Supperanuation Fund a “non splittable payment” within the meaning of regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001.
The husband and wife do all acts and things and sign all necessary documents as may be required including exercising the request pursuant to regulation 7(A).06(1) of the Superannuation Industry (Supervision) Regulation 1994 for the roll over and transfer of the transferable benefits out of the husband’s interest in the fund to a fund of the wife’s choosing in accordance with regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
Except as otherwise provided in this order, the husband and the wife are entitled to be the sole legal and beneficial owners of all items of property in the possession or control of each of them respectively, including but not limited to:
(a)money;
(b)motor vehicles;
(c)insurances;
(d)equities;
(e)superannuation entitlements;
(f)furniture and chattels; and
(g)personal effects, save that in the event the wife finds in her possession the husband’s chess set she will return it to the husband.
Except as otherwise provided in this order, the husband and the wife be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order.
Any joint tenancy of the parties in any real or personal estate is expressly severed.
All extent applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hornby & Hornby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10119 of 2008
| MS HORNBY |
Applicant
And
| MR HORNBY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties advised the court at the commencement of the trial that they had reached agreement in relation to the arrangements for their two youngest children [Y] born in 1993 and [Z] born in 1995 on the basis of a week about, shared care arrangement.
In relation to the adjustment of property matters, the wife in her outline of case document sought orders in the following terms:
a)that the husband transfer to the wife his interest in the former matrimonial home and she be responsible for the mortgage on the property;
b)that the husband transfer to the wife the 1998 Honda motor vehicle;
c)that the husband retain the [O] shares, all other shares and his 2006 Chrysler Voyager motor vehicle;
d)that the husband pay the tax liability owing in relation to the [O] shares;
e)that the sum of $135,974.44 be added back to the asset pool and be classified as an asset in the possession of the husband;
f)that there be a further adjustment in the wife’s favour to effect a 70/30 division of assets in her favour;
g)that there be an equal division of the parties’ respective superannuation entitlements;
h)that the husband discharge the debt to [G] Grammar School with respect to outstanding school fees; and
i)such other orders the court deems appropriate.
When the matter commenced, Counsel for the wife indicated that the wife was no longer pursuing the issue of the “add back” of the $135,974.44.
In final submissions, the wife’s Counsel sought on her client’s behalf:
a)that the husband transfer to the wife the former matrimonial home and she indemnify him in relation to the mortgage;
b)that the wife retain the Honda Civic motor vehicle;
c)that the husband retain the [O] shares, all other shares and his Chrysler motor vehicle;
d)that the husband pay the taxation liability on the [O] shares, all arrears of [G] Grammar fees and the outstanding [omitted] University College fees owing in relation to the parties eldest children;
e)that the division of the realisable assets be calculated on the basis of between 70/30 and 80/20 in the wife’s favour; and
f)that there be an equal adjustment of the parties’ superannuation entitlements, but in the event there was a “shortfall” of assets for the husband in relation to the “immediately” realisable assets, such shortfall be reflected in the superannuation adjustment.
The husband seeks orders in these terms:
a)that he retain the [O] and all other shares;
b)that the wife retain the Honda motor vehicle;
c)that the former matrimonial home be sold and that from the proceeds, the costs of sale be paid, the mortgage be discharged, the tax liability be paid, the outstanding [G] Grammar and [omitted] University College fees be paid and that there be an adjustment of the realisable assets on the basis the wife receives 60% of same; and
d)that there be an equal division of the parties’ respective superannuation entitlements.
Background
The wife was born in 1961 and is aged 47.
The husband was born in 1958 and is aged 50.
The parties married in April 1988 and separated under the one roof in April 2008. Pursuant to consent orders made in November 2008, the husband vacated the former matrimonial home on or before
30 November 2008.
The parties have four children:
a)[W] born in 1989, currently aged 20 years (“[W]”);
b)[X], born in 1989, currently aged 20 years (“[X]”);
c)[Y], born in 1993, currently aged 16 years (“[Y]”); and
d)[Z], born in 1995, currently aged 14 years (“[Z]”).
[W] and [X] are full time students at [omitted] University studying [omitted] respectively. They reside in the University Colleges during the University year.
[Y] and [Z] attend [G] Grammar. [Y] is in Year 10 and [Z] is in Year 8.
The parties entered into interim orders for a shared care arrangement, on a week about basis for [Y] and [Z]. Both parties have agreed that this arrangement will continue into the future.
The husband is an accountant employed by [O]. He receives a salary package valued at $260,000.00 per annum.
The husband previously worked for [S], which company was taken over by [O] in 2007. As part of the husband’s salary package following the takeover, he received shares in [O]. The shares have been deemed part of the husband’s 2007 income and he has been assessed to pay income tax on those shares in the sum of $133,960.00. Those shares have now dramatically reduced in value.
Arising from the takeover by [O], it is possible the husband will be made redundant in August 2009. It is his preferred position to remain with the company, but this will not be known until August 2009. If he is made redundant, the husband will receive a lump sum payment of $400,000.00 gross, of which he would receive $240,00.00 after tax.
The wife is a [healthcare professional]. She has worked part-time for the majority of the marriage. She is currently working at [omitted], and has recently been able to increase her working hours to four days per week when a new practice opened, making the increased hours available to her. She currently earns $570.00 net per week.
It is agreed that the husband has been the principal income earner for the parties during the marriage.
It is agreed that during the marriage, the wife was the children’s primary carer and that she performed the majority of the home duties.
Both parties agree that whilst the husband had a high level of income, they invested heavily in their children’s education, sending them to [G] Grammar and supporting the eldest girls in their tertiary education. Because of this they have a relatively small asset pool available for division between them.
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 v Hickey (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
The parties agree that the matrimonial asset pool consists of the following:
Assets
Property L (former matrimonial home) $575,000.00 Wife’s motor vehicle (Honda Accord) $ 4,000.00 [O] shares $106,601.00 Other shares $ 19,000.00 Total $704,601.00
Superannuation
Husband’s superannuation entitlements $313,500.00 Wife’s superannuation entitlements $ 21,929.51 Total $335,429.51
Liabilities
Commonwealth Bank mortgage (with respect to the former matrimonial home) $309,240.00
Income tax on [O] shares $133,960.00 *[G] Grammar fees $ 25,952.00 *Outstanding University College fees $ 9,400.00 Total $478,552.00
One of the major issues for the parties is who should be liable for the outstanding [G] Grammar fees and the outstanding University College fees.
Both the parties gave fairly short evidence, which was consistent as between them on all the salient points. Both the husband and wife impressed me as being honest decent people.
When the parties separated, the husband was very keen that their two youngest children, [Y] and [Z] be able to continue to attend and complete their secondary education at [G] Grammar. He strongly believes that the younger children should be given the same educational opportunities as their two older siblings.
The wife however, was strongly of the view that because of the separation, the parties could no longer afford to pay the fees for the younger children to continue at [G] Grammar. She advised the husband at separation that in the event the husband determined that the children’s enrolment should continue at [G] Grammar, then the fees would have to be met by him.
It was the husband’s evidence that he is of the view that the two elder girls would need to find cheaper accommodation than that being currently provided by way of attendance at the University Colleges. He is of the view that he will continue to support them as much as he is able, but that subsequent to separation, the payment of school fees and College fees was no longer financially viable.
It was the wife’s evidence that she wishes the two older girls to continue at the Colleges for as long as they wish to, and that she will do everything in her power to support them to do so into the future.
It is the parties’ evidence that they had agreed that they would each equally share the costs of the two older children attending at the College, at least up to the date of the trial.
It was the wife’s evidence that a half share of the College fees is $9400.00. It was her evidence that she had paid her half share of those fees, but had received the benefit of a reduction in same in light of her financial circumstances. She was not questioned as to the extent of that reduction.
The husband conceded that he was prepared to pay his half share of those fees, but argued that he should have the benefit of any reduction that was obtained by the wife, so that they both pay an equal amount.
In November 2008, the parties entered into consent orders that provided inter alia as follows:
“5.That until the duty list hearing referred to in order 1 of these orders (sic 23 February 2009 at 9.30am) the husband be restrained from paying any further [G] Grammar School or University College fees for the children or the elder children [W] and [X].”
It was the husband’s evidence that but for the existence of that order, he would have paid both the outstanding school fees and the University College fees.
It was the husband’s evidence that into the future, he intended to continue to be fully responsible, as long as his income enabled him to do so, for the fees that would enable [Y] and [Z] to continue to attend [G] Grammar, and that he would expect no contribution for same from the wife.
It was the wife’s evidence that she would continue to support the elder girls living at the University Colleges, to the extent that it was financially possible for her to do so.
It was argued on behalf of the husband that the outstanding school fees and outstanding University College fees should be deemed the joint debts of the parties, and that they should be paid from the proceeds of sale of the matrimonial home, prior to any division of the parties’ assets between them.
It was argued on behalf of the wife, that as it was the husband’s sole decision for the younger children to remain at [G] Grammar after separation, in circumstances where the wife made it quite clear she was unable to contribute and did not believe it was financially viable for them to do so, that the husband should be personally liable for those outstanding fees. Similarly, she argued that both of them had agreed to share the costs of the elder children’s University College fees, at least up until the date of the hearing, and that as she had paid her half, the remaining amount similarly was a personal debt of the husband.
I am satisfied that these amounts are not joint debts, but are those of the husband personally, and that he should be responsible for the payment of same from any funds received by him from the property settlement or from his income.
I note that both parties conceded that the taxation liability in relation to the [O] shares was incurred during the course of the marriage, and was a joint liability of the parties.
In those circumstances, I find the assets of the parties to be as follows:
Realisable Assets
Property L (former matrimonial home) $575,000.00 Wife’s motor vehicle (Honda Accord) $ 4,000.00 [O] shares $106,601.00 Other shares $ 19,000.00 Total $704,601.00
Liabilities
Commonwealth Bank mortgage (with respect to the former matrimonial home) $309,240.00
Income tax on [O] shares $133,960.00 Total $443,200.00
Accordingly, the total sum of the net realisable assets is $261,401.00.
Superannuation
The parties agree that their superannuation entitlements are as set out below.
Husband’s superannuation entitlements $313,500.00 Wife’s superannuation entitlements $ 21,929.51 Total $335,429.51
Contributions
It was submitted on behalf of both parties that the contributions made by both of them should be deemed equal.
As noted earlier in this judgment, the parties have had a 20 year marriage, four children and something of a traditional marital structure, with the husband being the primary income earner and the wife being the primary carer of the children and homemaker. The wife also worked part-time to assist with the family’s finances.
I agree that their contribution has been equal.
Section 75(2) factors
The husband is 50 years of age and is employed as a [finance professional] with [O]. He has a salary package of $260,000.00, as well as the capacity to earn considerable bonuses, subject to the performance of the company. In the period since separation, the husband has received a bonus of $67,000.00 in addition to his salary. It was his evidence that in the current economic environment, there was no expectation of any further bonuses this financial year.
As noted earlier in this judgment, there is the possibility that the husband may be made redundant in August 2009, and if this were to be the case, he would receive a redundancy package of some $400,000.00 before tax.
It was his evidence, which I accept, that he has advised his employer that he wishes to remain in their ongoing employment and that he has not accepted the redundancy offer. A decision on his future employment is expected in August this year.
It was also the husband’s evidence that in the current economic climate, if he were to be made redundant, it would not be easy for him to obtain employment of a similar nature.
The wife is 47 years of age, and is employed four days a week as a [healthcare professional] at [omitted]. She currently earns $570.00 net per week. It was her evidence, which I accept, that her hours with the clinic have recently increased from two days to four days because they have opened a second clinic, and that she has pursued all additional hours available to her through her employer.
Even if the wife was able to obtain full-time work, ie. five days a week, it is quite apparent that there is a large discrepancy between the income earning capacity of the wife and the income earning capacity of the husband.
The parties have reached agreement that they will equally share the care of their two younger children on a week by week basis.
When the elder children are not at University, it was agreed that they generally return to the former matrimonial home, where they each have a bedroom. They spend time with their father, but as he only has a three bedroom house at this time, it is easier for them to return “home”, and visit with him.
Pursuant to the consent orders made in November 2008, the husband pays the wife the sum of $330.00 per week, and that sum is credited against and counts for 100 per cent of any liability for child support for the children accrued or accruing during the periods that he makes such payments.
It was the husband’s evidence that upon the finalisation of these proceedings, he will seek that there be an assessment by the Child Support Agency in relation to any liability he has to pay child support to the wife, and that he will thereafter pay such support as assessed. It was his expectation that this would result in him making a lesser weekly payment of child support to the wife.
The parties’ proposals
Wife’s proposal
The wife is seeking to retain the former matrimonial home. It is a five bedroom property, in which each of the children have their own bedroom. As noted earlier, when the eldest children are home from University, they return to this home and the wife wishes to retain the home to enable them to continue to do so.
It was also her contention that in the event that the matrimonial home was sold, she would not be able to re-accommodate herself in a similar property.
It was her position that her relatively poor financial situation, compared to the husband, was such that the retention by her of the matrimonial property would be her only opportunity to continue to be accommodated in this manner. It was also argued it was her best opportunity to establish some financial security into the future.
It was the wife’s evidence that she has made enquiries of lending institutions, and that she has been advised that she is able to borrow up to $350,000.00. She further gave evidence that she has been advised that the cost of servicing a loan of $330,000.00 would be $475.00 per week. No evidence was led as to how she could afford this level of mortgage payment as well as all other living expenses on her income of $570.00 per week.
It was submitted on behalf of the wife that, considering the relatively small property pool and the very large discrepancy in earning capacity, there should be an adjustment of the realisable assets in her favour of between 70 and 80 per cent.
If the wife were to receive 80 per cent of the realisable assets, she would be entitled to $209,120.80. If she retained the equity in the former matrimonial home and the Honda motor vehicle, she would have net assets of $269,760.00. Accordingly, she would “owe” the husband $60,639.20. If she were to receive 70 per cent of the asset pool, she would be entitled to $182,980.70, and doing the same calculation, she would “owe” the husband $86,779.30.
It was submitted on the wife’s behalf that in the circumstances of this case, and in particular, taking on board the wife’s inability to borrow beyond the current mortgage on the former matrimonial home, that an equitable property settlement could be achieved by adjusting the superannuation split as between the parties.
If the court were to accept there should be an adjustment of superannuation as between the parties so that each had an equal share in superannuation, there would be a splitting order as against the husband’s superannuation, whereby an amount of $146,981.50 would be the base figure payable to the wife. It was argued that that base figure should be reduced by an amount that reflected the greater amount of realisable assets retained by the wife.
It was submitted on behalf of the wife that at the end of the relationship, the husband retains a very large income earning capacity. Whilst the wife’s proposal leaves him holding initially some $50,000.00 of debt, that within five years, and with the diminution of the necessity for him to pay school fees and other liabilities, he would be easily able to re-accommodate himself.
Additionally, the husband would continue to make large superannuation contributions, so that on retirement his financial security would be guaranteed.
Conversely, it was submitted on behalf of the wife that the sale of the matrimonial home would leave her unable to ever re-establish herself to any level that was commensurate with the husband.
Husband’s proposal
It was argued on behalf of the husband that the adjustment appropriate to reflect the disparity in their income capacity was a 60/40 division, and that there should be an equal division of superannuation.
On this basis, if the wife wished to retain the former matrimonial home, she would need to pay the husband $113,000.00 (approximately). This is clearly beyond her capacity.
It was further argued by the husband that the wife’s proposal would leave the husband in a negative realisable asset position, in that he would be retaining shares to the value of $125,000.00 and debts of $169,312.00 (that figure including the outstanding school fees and University College fees). This is a negative position of $43,711.00.
It was argued that to leave the husband in a negative position would be inequitable, in that the general standards of equity are such that the husband should not be left with assets less than the amounts required to be paid by him.
Conclusion
As noted earlier in this judgment, despite the relatively high income earning capacity of this household, there was a decision made that the parties would invest in the education and futures of the children. Because of this, the parties have a relatively small property pool, particularly with respect to the realisable assets.
There is also little doubt that into the future, the husband is in a much better position to re-establish himself financially because of his vastly superior income earning capacity to that of the wife.
I have therefore formed the view that there should be a division of the realisable assets between the husband and wife so that the wife receives 80 per cent of same and the husband receives 20 per cent of same.
I do not believe however that it is an equitable outcome that there be a division of the assets such that the husband is left with considerable debt. I am therefore not prepared to make an order in the terms that have been suggested on behalf of the wife.
I intend to make an order that there be a division of the realisable assets on the basis that the wife receives 80 per cent of same and the husband receives 20 per cent of same. In the event that either party wishes to retain an asset, be it the matrimonial home or the parties’ shares, then the party retaining that asset shall have to pay to the other an amount that enables that 80/20 division to take place.
In relation to the parties’ superannuation, a splitting order shall be made so that there is an equal division of the parties’ superannuation entitlements as between them.
Finally, orders will be made reflecting my finding that the husband is personally liable for the outstanding [G] Grammar school fees and [omitted] University College fees.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 4 June 2009
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