HORTON & HURST
[2008] FMCAfam 56
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HORTON & HURST | [2008] FMCAfam 56 |
| FAMILY LAW – Children – property. |
| Family Law Act 1975, ss.4(1), 60CC, 65DAA, 75(2), 79 |
| Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Edson & Edson [2006] FMCAfam 512 Bassi, KD and Kd Sales Force Specialists Pty Ltd & Maas (1999) FLC 92-867 Burke (1993) FLC 92-356 M & M [1998] FamCA 42 |
| Applicant: | MS HORTON |
| Respondent: | MR HURST |
| File number: | BRM 1729 of 2006 |
| Judgment of: | Howard FM |
| Hearing dates: | 22 & 23 November 2007 |
| Date of last submission: | 15 February 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 5 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms C Carew |
| Solicitors for the Applicant: | Ryan Kruger |
| Counsel for the Respondent: | Ms K McMillan SC |
| Solicitors for the Respondent: | Hopgood Ganim |
ORDERS
That the parties file and serve a proposed final order to reflect these Reasons for Judgment by no later than 4.00 p.m. on 12 June 2008.
I direct that in the event that the parties are unable to reach agreement as to the terms of the order the matter shall be relisted for further mention at 9.00 a.m. on 18 June 2008.
IT IS NOTED that publication of this judgment under the pseudonym Horton & Hurst is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 1729 of 2006
| MS HORTON |
Applicant
And
| MR HURST |
Respondent
REASONS FOR JUDGMENT
Background
Ms Horton married Mr Hurst [in] 1991.
Prior to their marriage they had lived together from 1990.
The relationship between the parties lasted 15 years and they separated on 2 March 2005.
The parties cannot agree on parenting orders and nor can they agree on how to divide their property.
[Ms Horton] (hereinafter “the mother” or “the wife”) is a [occupation omitted] and was born in Australia [in] 1954. She is currently aged 53 years.
Mr Hurst (hereinafter “the father” or “the husband”) was born in New Zealand [in] 1967 and is presently 40 years of age.
The parties have two children, [X] (born [in] 1993) and [Y] (born [in] 1997).
The two children of the marriage are currently living with the father and spending time with the mother during school holiday periods.
The father has re-partnered but the mother has not re-partnered.
The mother has relocated to Canada to pursue her [omitted] career.
The mother was previously married and has two children from her previous marriage. Those two children are [U] aged 28 years and [T] aged 25 years. I note that those two elder sons of the mother had lived with the parties for a period during the marriage.
The parties’ divorce became final on 3 June 2006.
Parenting issues
The parties have substantially reached agreement in relation to parenting orders.
The two children are to live with the father in Australia and spend time with the mother.
The parties agree that there should be equal shared parental responsibility in respect of the children. Section 65DAA of the Family Law Act 1975 (hereinafter, “the Act”) states that if a parenting order is to provide that a child’s parents are to have equal shared parental responsibility for the child the Court must consider certain matters. Initially the Court is required to consider an order for equal time. In this case such an order is not appropriate. Such an order is not reasonably practicable because the mother will be living in Canada and the father is living in Australia with the children. The orders that the parties do propose (in the event that the mother is able to be present in Australia during school term) will satisfy the definition of, “substantial and significant time” as defined in s.65DAA(3) of the Act.
The parenting issues which remain outstanding between the parties must therefore be decided on the basis of the best interests of the children. I am mindful of the primary consideration - to make orders which will enable the children to have a meaningful relationship with both parents (s.60CC(2)(a)).
I do not consider it necessary and therefore do not propose to refer to each of the subsections in s.60CC(3) – the additional considerations.
I make the following findings concerning the parenting by these parties:-
a)both parents have an excellent relationship with the children;
b)both parents are willing and able to facilitate and encourage a close and continuing relationship between the children and the other parent;
c)both parents have the capacity to provide for the needs of the children (including emotional and intellectual needs);
d)both parents have a good attitude to the children and both have accepted the responsibilities of parenthood. This has been demonstrated by the actions of both parents over time.
It is more convenient to merely set out those areas of disagreement between the parties.
a)Telephone and/or video communication between children and parents
The children are currently aged 15 ([X]) and 10 ([Y]).
I do not consider it to be in [X]’s best interests to be required to be available during the middle of the day each Saturday in order to communicate with his mother. Indeed I consider that, having regard to [X]’s age, all telephone, email and video communication et cetera between [X] and his mother should be by agreement between [X] and the mother.
[Y] is still at an age where it is appropriate for there to be set times to ensure that he does continue to communicate regularly with his mother.
It seems to me that it is in [Y]’s best interests if he communicates each Saturday by telephone or video communication with his mother for up to one hour between 12.00 noon and 1.00 p.m. (Queensland time). Furthermore, it is appropriate that there be further telephone and video conference communication between [Y] and the mother as agreed between the parties.
Email contact should be unrestricted between the children and the parents.
b)Applicant’s time with the children in Australia during school terms
I consider that it is in the best interests of the children for them to spend time during the school term in Australia with the mother – in the event that the mother is able to be present in Australia during such school terms. It is appropriate for there to be a further eight weeks for the children to spend time with the mother during school term each year provided that time is broken into two week blocks with a week in between where they would return to the father. Furthermore, I agree that it is appropriate there should be a one week break in between any holiday time that fell either side of the term time which the children spend with the mother in Australia. Structuring orders in this way will enable the children to return to their usual residence – namely the father’s house – to give them a chance to ensure that their normal weekly routines are being maintained. In addition I also consider it appropriate for the mother to provide 28 days written notice of her intention to exercise such time.
c)Children’s time with parents during Christmas school holidays
I consider that it will be in the best interests of the children to spend one half of the Christmas school holiday period with each parent. The children shall spend the first half of the 2008 Christmas school holiday period with the mother and the second half of the 2008 Christmas school holiday period with the father (and each alternate year thereafter that situation shall persist). In respect of the 2009 Christmas school holiday period the children shall spend the first half of that holiday period with the father and the second half of the 2009 Christmas school holiday period with the mother. That situation shall persist in each alternate year thereafter.
I consider that the children will therefore spend Christmas Day with whichever parent they are then currently spending time.
In my view this less complicated approach is in the children’s best interests. The children will know, with certainty, where they will be during the Christmas school holidays and where they will be on Christmas Day. It also will enable the children to travel overseas to Canada to spend time with their mother. Such an arrangement would clearly be in the best interests of the children enabling them to enjoy an overseas holiday while spending time with their mother. In the event that the children do travel overseas during a Christmas school holiday period I consider that it is in their best interests to ensure that they return to Australia at least five clear days before the first day of the commencement of the school term.
d)Children’s time with parents during the end of first term school holidays
If the mother is present in Canada (or elsewhere overseas) during the school holidays which occur at the end of term one then I consider that the children should spend that entire school holiday period with the father. That is because I consider it inappropriate for the children to have to travel overseas for such a short period of time.
In the event that the mother is present in Australia during the school holidays that occur at the end of term one then the children should spend the first week with the father and the second week with the mother (commencing 2009). I can see no reason then why that situation should not alternate each year. I consider that such an arrangement is in the children’s best interests.
e)Children’s time with Applicant’s children of a previous relationship
I do not consider it appropriate to make any specific order concerning time to be spent with the Applicant’s children of her previous relationship. I have confidence that the parties will both ensure that there is an ongoing relationship between the children and the Applicant’s children from her previous relationship (the children’s half siblings).
f)Is a surety required?
I do not consider the mother to be a flight risk. The mother owns property in Australia. The mother has other family living in Australia (apart from her children from the previous relationship). The mother’s own mother and her three siblings apparently live in Australia. I do not find it necessary for the parties to tie up cash reserves in a trust account.
I note that the mother will be living in Canada which is a signatory to the Hague Convention.
However, because there has been a high level of conflict between these parties I do consider that some orders should be in place and I consider that the orders proposed by the mother in the case outline document dated 20 November 2007 are appropriate. In particular those proposed orders appear under the heading, “overseas travel by the children” and the orders should include paragraphs 15, 16, 17, 18, 19 and 20 of that document.
g)Remaining parenting issues
I agree generally with the parenting orders proposed by the mother under the headings “special occasions” and “specific issues” appearing in the Applicant’s case outline dated
20 November 2007 – provided such proposed orders are consistent with these Reasons for Judgment.
Child support
I note that the parties agreed that the child support departure applications could not proceed as there was no child support assessment. The child support applications should therefore be dismissed.
Property
In deciding how the property of the parties should be divided there are four steps to be considered, namely:-
a)the net asset pool of the parties;
b)the contributions of each party to that pool;
c)a consideration of the parties’ current financial and family circumstances and a consideration of the needs of the parties both now and in the future; and
d)a consideration of the just and equitable requirement.
These four issues to be determined by the Court reflect the well known four step approach in cases concerning s.79 of the Act – in particular note Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; and note Edson & Edson [2006] FMCAfam 512 per Mead FM.
The property pool
The parties have substantially agreed on what items should be included in the property pool.
There are two main items in contention namely:-
a)the husband’s redundancy payment; and
b)certain add backs which the wife contends should be included in the pool.
In addition there are two other items not mentioned by the husband which ought to be included in the pool. They are the wife’s Toyota motor vehicle valued at $15,000.00 and a car loan (a liability) which the wife has in the amount of $17,045.00. I consider that both of those items should be included in the pool.
The redundancy payment
The Respondent husband contends that a redundancy payment received by him in October 2007 in the sum of $114,000.00 should be excluded from the property pool. In fact it seems to be the case that the amount of $114,000.00 included a redundancy payment ($92,250.00) as well as holiday pay and long service leave.
The evidence reveals (annexure “DLH2” of the wife’s Affidavit filed 19 November 2007) that the calculation of the redundancy payment was made on the basis of the length of the husband’s service. In annexure “DLH2” of the wife’s Affidavit filed 19 November 2007 – I note the letter from [omitted] (the husband’s former employer) states, inter alia, in the second paragraph:-
“On this basis, given your length of service, we will pay the following separation package.”
Throughout the course of the parties’ 15 year relationship the wife made financial contributions and non-financial contributions. Indeed the wife’s non-financial contributions were substantial and by taking the role of primary carer for the children the wife enabled the husband to continue to work long hours, improve his earning capacity and advance in his career.
Accordingly, I find that the wife has made contribution to this redundancy package.
I have also had regard to the decisions in Bassi, KD and Kd Sales Force Specialists Pty Ltd & Maas (1999) FLC 92-867 and Burke (1993) FLC 92-356. Both of those cases are referred to in the written outline on behalf of the Applicant wife. I consider that both of those decisions support the conclusion which I have reached that the redundancy payment in the entire amount of $114,000.00 should be included in the property pool.
The fact that the payment was received by the Respondent two years and seven months post separation does not mean that the amount should not be included in the pool. I find support for this conclusion in the following statement of principle by Anthony Dickey QC (“Family Law”, 5th Edition, page 523):-
“(b) All property of both parties to be taken into account
It is now firmly established that upon the hearing of an application by a party to a marriage for an alteration of property interests under s.79, the court is required to take into account all of the property of both of the parties to the marriage, or if one party has become bankrupt, all of the property of the non-bankrupt party and all of the property of the bankrupt party that is now vested in his or her bankruptcy trustee. As the Full Court of the Family Court said in In the Marriage of Duff [1977] FLC 90-217, “We are of the view that the intention of s.79 is to enable the court to take into account and assess all the property of the parties upon being asked by either of them to make an order altering the interests of the parties in property.” This is indeed implicit in the broad terms of the first limb of s.79(1).
It is irrelevant for the purpose of the exercise involved in this first step how or when the property was acquired. It is accordingly irrelevant that certain assets were acquired before marriage, after separation, through a windfall, or in circumstances unconnected with either the marriage or the other party to it (for example, through an award of damages or an inheritance.) Such facts and circumstances become relevant at a later stage of the proceedings, but not at this initial, “marshalling” stage. It is also irrelevant that an applicant seeks an alteration of interests in only one or more particular items of property. The obligations of the court are the same regardless of the particular orders sought.”
Add backs
The first three items which the wife contends should be added back into the property pool are relatively minor amounts. Those three amounts are:-
a)loss in car sale purchase for husband’s girlfriend $6,000.00
b)the sale proceeds of a Subaru motor vehicle $6,000.00
c)a tax refund $21,295.00
The Applicant wife, by her counsel Ms Carew, has provided the following written submissions concerning those three items:-
“41.The husband sold his car before separation as set out in paragraph 285 of his affidavit filed 16 November 2007 but received the proceeds after separation. But for the sale the car would have been reflected in the pool of assets currently available for distribution between the parties. The proceeds were retained by him and should be notionally added back.
42.The husband purchased his first girlfriend a car and sold it at a loss after he broke up with her (conceded by husband during cross-examination). Originally, the husband through his solicitor alleged that the purchase of the car was necessary because his car could not transport the children. The husband acknowledged in paragraph 297 of his affidavit filed 16 November 2007 that that was not the case. It was an unnecessary expense and the loss should be added back.
43.On the 8 September 2006 the husband received a tax refund of $21,295, which it is reasonable to assume related to the 2005 financial year. The parties did not separate until the 2 March 2005. As he has had use of those funds to the exclusion of the wife it is reasonable to notionally add back that sum.”
I agree that the $6,000.00 loss on the sale of the car the husband bought for his post-separation girlfriend should be added back into the pool. However, as to the other amounts ($6,000.00 on the sale of the husband’s car and the $21,295.00 tax refund) I accept the husband’s evidence and his submission that those amounts ought not be added back into the pool because those amounts were deposited into bank accounts which are now accounted for in the pool.
The options to purchase shares and the proceeds of sale of the shares so acquired
I make the following findings based on the evidence concerning the options:-
a)that the husband, as part of his remuneration package was granted options to purchase shares in his employer company from time to time;
b)that the husband has exercised those options from time to time including after separation;
c)that the options are “property” for the purposes of the Act. In particular I consider that the options come within the definition of property contained in s.4 of the Act. Further, I accept paragraphs 34 and 35 of the written submissions on behalf of the wife in this regard.[1] Those submissions state:-
“34.‘Property’ means every species of valuable right and interest including real and personal property, incorporated hereditaments such as rent and services, rights of way, rights of profit or use in land of another and choses in action, but does not include mere personal licences which are not assignable. (Minister for the Army v Dalziel (1944) 68 CLR 261 at 290; [1944] ALR 89; (1944) 17 ALJ 405 per Starke J; Duff (1977) FLC 90-217 at 76,132).
35.‘An option granted by a company in relation to its unissued shares is a chose in action which allows a person to subscribe for a specified number of shares on specified terms on a future date or within a specified period’ (Halsbury’s Law of Australia Vol 1 [120-5125]).”
d)that the date of granting of the option (rather than the vesting date) is the relevant date for the purpose of identifying whether the property existed (in any event note subparagraph (f) herein);
e)that the “property”, in particular, the options, existed at the date of separation (in any event subparagraph (f) herein should again be noted);
f)that options which may have been granted after separation arose only as a direct result of the husband’s continued employment. The statement of principle by Anthony Dickey QC which appears in paragraph 30 herein is therefore also applicable in this instance. Such options, therefore, which may only have come into existence post separation must still be included in the property pool.
[1] Those submissions on behalf of the wife accord with the statement of principle by the learned author, Dickey in “Family Law”, 5th Edition, page 483 under the heading “Judicial Definition of Property”.
Date to value the options
In my view the proper date for valuing the options is the date of the trial. In this regard I note the learned author, Dickey QC states at page 528 (5th edition Family Law):-
“The preponderance of cases, however, especially from the Full Court of the Family Court, have held that normally the proper time to value property is the time of the hearing. This can now be taken to be the general rule.”
I can see no reason to depart from the general rule in this case. Furthermore, it seems to me that the sale proceeds (of the shares which the husband acquired when he exercised the options) represent the value that ought to be attributed to that “property” in this case.
Should the proceeds of sale of the shares be added back into the pool?
At page 16 of the wife’s written submissions dated 1 February 2008 a table has been commenced. The table concludes at the top of page 18. The wife contends for add backs in the total sum of $818,162.00 (primarily comprising proceeds of the sale of shares acquired by the husband when he exercised the share options). I will include that table here for convenience.
Reference
Item
Amount
Para 17 H 16.11.07
CBA bank accounts in husband’s name as at date of separation (H)
$558,634
Exhibit 6 (# 3 H 11.12.06)
Gross proceeds from sale of shares after date of separation (2.3.05) to 8.9.06
$948,529
Para 33 H 16.11.07 together with page 2 of annexure “TJH-3”
Gross proceeds from sale of further shares during the period 15.12.06 – 11.10.07
$554,049
Paragraph 36 H 16.11.07
Gross proceeds from sale of shares (employee share purchase program) 9.7.06
$10,614
Paragraph 52 H 16.11.07
Gross proceeds from sale of shares 18.10.07
$477,245
Total
$2,549,071
Reference
Disbursements claimed
Disbursements that should be allowed
Para 63(a) H 16.11.07 and para 10 H 23.11.07 (1)
Mediation and Family report
$5,266
Para 10 H 23.11.07 (1)
Child support payments
$0.00
Para 63(c) H 16.11.07 and para 10 H 23.11.07 (1)
School fees
$33,829
Para 10 H 23.11.07 (1)
Accommodation costs
$0.00
Para 10 H 23.11.07 (1)
Outgoings on former matrimonial home
$5,300
Para 10 H 23.11.07 (1)
Rent payments
$0.00
Para 10 H 23.11.07 (1)
Legal fees
$0.00
Para 63(f) H 16.11.07 and Para 10 H 23.11.07 (1)
Furniture and set up costs for new property
$23,500
Para 10 H 23.11.07 (1)
[C] costs
$1,925
Para 10 H 23.11.07 (1)
Entertainment expenses
$0.00
Para 10 H 23.11.07 (1)
Restaurants
$0.00
Para 10 H 23.11.07 (1)
Purchase of Property A
$555,000
Para 10 H 23.11.07 (1)
Exercise of options
$55,157
Para 10 H 23.11.07 (1)
Expenditure on partner(s)
$0.00
Para 10 H 23.11.07 (1) and para 6 H 23.11.07 (2)
Taxation on capital gains from share trading
$1,020,932
Para 57(b) H 16.11.07
Improvements to Property A
$30,000
Para 12 H 23.11.07 (1)
General living expenses
$0.00
Para 8 H 23.11.07 (2) and see below
Income tax on salary earned after separation
$0.00
$1,730,909
Balance
$818,162
The husband’s submissions on add backs
The husband in written submissions in reply received after 1 February 2008 submitted in paragraph 15 that there were a number of errors in the wife’s calculations of the add backs. Those errors referred to by the husband were:-
a)the amount of $10,614.00 being gross proceeds from the sale of shares – according to the husband, “This amount is already included in the calculations of the husband’s CBA bank accounts set out above and it is a ‘double count’ to include it again. This amount should not be included here.”
The husband’s submission on this point is not particularly clear. He doesn’t refer to any evidence that would lead to the conclusion which he is urging. It seems to me that the wife’s submission in this regard is correct and the sum of $10,614.00 should be included as the wife contends.
b)$477,245.00 – the husband submits, “This is the amount that was actually deposited into the husband’s bank account on 18/10/07 as a result of the trading for the period 15/12/06 – 11/10/07. This represents a double counting of the amount of $554,049.00 listed above. This amount should not be included here because it has already been included in the $554,049.00 included above. …”.
Paragraph 79 of the husband’s Affidavit filed 16 November 2007 sets out the total of the husband’s income from 1997 until the time of the hearing. Of particular significance at this stage is the income received post separation. The income received includes salary income and capital gains income. In terms of accounting for the gross proceeds from the sale of shares the column in paragraph 79 headed, “net capital gains income” must be considered. According to page 16 of the wife’s submissions and paragraph 15 of the husband’s submissions in reply an amount was received by the husband in the sum of $948,529.00 representing the gross proceeds from the sale of shares after the date of separation (2 March 2005) up until 8 September 2006. It is apparent from paragraph 79 of the husband’s said Affidavit that the net capital gains income has been included in the husband’s 2007 tax return (estimate) in the amount of $727,052.00 – apparently having been received by the husband in the financial year ended 30 June 2007.
I infer that the amount must have been received by the husband between 1 July 2006 and 8 September 2006.
In the tax estimate for the financial year 2008 the net capital gains income is stated as $551,276.00. This accords with the submission made by the husband in paragraph 15 of the submissions in reply. If the wife’s submission was correct the amount of net capital gains income in the 2008 financial year received by the husband would have been substantially higher than the evidence as revealed in paragraph 79 of the husband’s said Affidavit. A review of this evidence of the husband’s income (which I accept) leads me to the conclusion that the inclusion of the amount of $477,245.00 (dated 18 October 2007) in the wife’s table of add backs does amount to a “double counting”. The income evidence of the husband supports his submission concerning the amount of $477,245.00.
Furthermore, I agree with the submission made on behalf of the Respondent husband (and with the reasons provided on page 6 of his Submissions in Reply) that the balance of the husband’s CBA accounts in the amount of $216,930.00 should be deducted as a part of this process.
The husband contends that the total at the first stage of the wife’s table (quoted above on page 13 herein) should be $2,061,212.00. Because I agree with the wife’s submission concerning the amount of $10,614.00 I find that the total should actually be $2,071,826.00.
The amount that should then be deducted from the figure of $2,071,826.00 is $1,947,839.00 (made up of the wife’s total disbursements on page 18 of her submissions plus the $216,930.00 still in the husband’s CBA accounts). This leaves an amount of $123,987.00.
Should the amount of $123,987.00 be added back into the pool?
I can see no reason why the amount of $123,987.00 should not be added back into the pool.
Having regard to the Respondent husband’s income from salary since the date of separation there would be no reason why he could not have met all of his financial obligations (including caring for the two children) from his salary income. The husband’s own calculation of his income from salary after tax since separation works out at approximately $2,300.00 per week.
I accept the submissions made on behalf of the Applicant wife and included in the table which appears at pages 16, 17 and 18 of the wife’s written submissions dated 1 February 2008. In respect of those entries where the amount of, “0” has been included under the heading, “Disbursements that should be allowed” I accept the wife’s submissions. This is primarily because of the reasons stated in paragraph 42 herein and noting that I also accept the following submission made by the wife:-
“46.It is submitted that, given the husband’s substantial post separation income, the wife should not be expected to, in effect, subsidise his living expenses, from assets that should properly be available to the parties in the property settlement. To do so would be unreasonable and unjust (Westmore [2007] FamCA 1341 where the Court noted at page 27:-
‘Given the husband’s admission that he was earning up to $800.00 per week after his redundancy and up to the trial, there was no reason shown for him to use the parties’ capital to provide for his daily support.’”
In M & M [1998] FamCA 42 the Full Court stated:-
“There seems to be no appropriate basis for notionally adding back monies that existed at separation but which had been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the Trial Judge.” (Bold added.)
Having regard to the husband’s income from salary since the date of separation, in my view it would be unreasonable and extravagant to, essentially, allow the husband access to the sum of $123,987.00 – without accounting for the same by way of an add back into the property pool.
In my view the approach adopted by counsel on behalf of the Applicant wife is an acceptable approach in the circumstances.
Accordingly, I find that the amount of $123,987.00 should be added back into the property pool.
In paragraph 14 of the submissions in reply on behalf of the Respondent husband, counsel for the husband states:-
“The Respondent entirely rejects the approach adopted by the Applicant to quantifying the add backs sought as inappropriate and incorrect.”
Counsel for the Respondent husband does not state why the Applicant’s approach is “inappropriate and incorrect”.
Essentially there is an amount of $123,987.00 which the husband is not able to account for and if he did use it for living expenses, et cetera then in my view this was unreasonable having regard to the amount of salary income he was receiving.
I also note that the parties agreed that the parties’ superannuation should also be included in the same property pool as the non superannuation assets.
I therefore find that the property pool is as follows:-
ASSET
VALUE
OWNERSHIP OR CONTROL
Property P
$475,000.00
Wife
Property A
$495,000.00
Husband
CBA [1]
$23,548.00
Husband
CBA [2]
$1,520.00
Husband
CBA [3]
$191,862.00
Husband
Bank of America
$3,269.00
Joint
[L]
$33,161.00
Husband
Uni Credit Union [4]
$12,686.00
Wife
Uni Credit Union [5]
$316.00
Wife
Royal Bank Canada
$1,659.00
Wife
Partial property settlement
$26,038.00
Wife
Shares
$9,660.00
Husband
2004 Peugeot
$34,250.00
Husband
2000 Landcruiser
$22,500.00
Joint
1998 Nissan
$6,500.00
Joint
Toyota
$15,000.00
Wife
Furniture
$16,070.00
Wife
Furniture
$10,760.00
Husband
Superannuation
$295,638.00
Wife
Superannuation
$162,148.00
Husband
Add back: Loss in car sale purchase for girlfriend
$6,000.00
Husband
Add back:
$123,987.00
Husband
SubTotal
$1,966,572.00
LIABILITIES
Car loan
$17,045.00
Wife
Net assets
$1,949,527.00
Contributions
The relationship between the parties lasted 15 years.
The husband provided most of the financial contributions. The wife did provide some financial contributions but these were minimal compared to the husband’s financial contributions.
The wife provided substantial non-financial contributions including taking on the role as primary carer for the children and performing the home making duties.
I accept the following submission made at paragraph 55 of the wife’s written submissions:-
“55. There was no value added to the options after separation by the husband. The effluxion of time gave rise to the circumstance where the options vested, could be exercised and then sold. It is not the case that any post separation contribution by the husband has directly affected the value of the options and subsequently the sale price of the shares. The eventual sale proceeds are a ‘windfall’ that should be shared between the parties. (Zyk (1995) FLC92-644; Zappacosts (1976) FLC 90-089 and Well (1977) FLC 90-285).”
I find that, throughout the course of the relationship and the marriage between the parties they both made significant contributions for the benefit of their family.
The husband contended for a finding that he had provided greater contributions than the wife. For the reasons stated above I do not accept that submission.
I do not consider that any contributions made by either party at the outset of the relationship were so significant that they should be particularly taken into account at this point in time.
I find that the contributions based entitlements of the parties up until the date of trial are equal.
Section 75(2) factors
I will only refer to those subsections in s.75(2) which I consider to be relevant.
The wife is 53 years of age and the husband is 40 years of age.
The evidence reveals (paragraph 79 of the husband’s Affidavit filed
16 November 2007) that the husband has the capacity to earn a significant income. In paragraph 100 of the husband’s said Affidavit he states (and I accept) that he is “particularly gifted in the field of encryption. This has meant career advancement.”
The husband was made redundant in October 2007. However, he still retains his earning capacity and I find that it is highly likely that the husband will find appropriate employment with remuneration similar to that which he has received in the past.
The wife is an [occupation omitted] and is currently [working] in Canada. The wife has a gross income of $100,000.00 Australian dollars per year. I note that the wife is on probation for two years in that position.
The two children will live with the husband and spend time with the wife (primarily during school holiday periods).
The wife seeks an adjustment of 10% in her favour at this stage of the process.
The husband seeks an adjustment in his favour of 10%.
Conclusion in relation to section 75(2)
The husband has the primary care of the two children, [X] and [Y] aged 15 and 10 respectively. On the other hand the husband is 13 years younger than the wife and has a substantially higher earning capacity. I consider that in all the circumstances, an adjustment in favour of the wife in the amount of 5% is appropriate.
Just and equitable
Having regard to the size of the property pool and the age and earning capacity of the parties I consider an order whereby the wife receives 55% of the net assets and the husband receives 45% of the net assets to be appropriate.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Howard FM
Date: 5 June 2008
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