Howard and Howard

[2007] FamCA 1519

FAMILY COURT OF AUSTRALIA

HOWARD & HOWARD [2007] FamCA 1519

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Superannuation

Family Law Act 1975 (Cth) - s 75(2), s 79
Superannuation Guarantee Act 1992 (Cth)
Superannuation Industry (Supervision) Regulations 1994 (Cth)
Superannuation Industry (Supervision) Act 1993
Family Law Legislation Amendment (Superannuation) Bill 2000

In the Marriage of Coghlan (2005) 33 Fam LR 414
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Pierce v Pierce (1999) FLC 92-844
Bailey and Bailey (1978) FLC 90-424

APPLICANT: Mr Howard

RESPONDENT: Ms Howard

FILE NUMBER: SYF 2718 of 2006

DATE DELIVERED: 21 December 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 27 & 28 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: York Family Law

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: Farrar Gesini & Dunn

Orders

1. That within seven days from the date of these Orders, the parties shall do all acts and things and instruct their respective solicitors to close the controlled monies account established in respect of the sale of the parties former matrimonial home at W Street, L in the State of New South Wales, which account is with the National Australia Bank and distribute the said account as follows:

   (a)       50 percent to the husband;

   (b)       50 percent to the wife; and

   (c)The interest earned on the controlled monies account is to be divided equally.

2. That the parties do all acts and things and sign all necessary documents so as to effect the sale of the property situated at and known as …, K in the State of Queensland for the best price reasonably obtainable in the following manner:

   (a)Continue to list the K property for sale by private treaty with … Real Estate Agent (“the agent”);

   (b)Continue to have the property advertised for sale at $225 000 or at such other price as may be mutually agreed upon by the parties or in the absence of agreement the price recommended to them by the agent;

   (c)Continue to each cooperate in every way with the agent including (without limiting the generality of the foregoing):

   (i)Making the key available to the agent;

   (ii)Allowing inspection of the K property at all reasonable times requested by the agent;

   (iii)Doing or saying nothing to hinder or prevent a sale being effected;

   (iv)Ensuring the K property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

   (v)Signing all documents requested by the agents in relation to the listing for sale of the K property except a contract or agreement for sale which has not been authorised by the parties’ solicitors;

   (d)The parties shall each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the agent;

   (e)The parties continue to instruct Dennis Pointon solicitor of Queensland to act upon the sale;

   (f)Neither party may confer on any agent without the consent of the other any right to any sole or exclusive agency in respect of the K property or to any commission.

3. On settlement of the K property the proceeds of sale be paid in the following manner and priority:

   (a)All costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);

   (b)The amounts required to pay all municipal and water rates and owners corporation fees outstanding with respect to the K property;

   (c)       The balance then remaining shall be divided as follows:

   (i)68.45 percent to the husband

   (ii)31.55 percent to the wife.

4. That pending settlement of the sale of the K property, each of the parties shall be entitled to receive the rent received from the said unit after deduction of agent’s commission, owners corporation, water and council rates, and any insurances in accordance with the above percentages.

5. That the base amount of $43 892 is allocated, as required by section 90MT(4) of the Family Law Act 1975 to the wife out of the husband’s interest in STA Super (“the Fund”).

6. That pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever Savings Australia Pty Limited as Trustee for the Fund (“the Trustee”) makes a splittable payment from the interest held by the husband in the Fund, the Trustee shall pay to the wife or her administrators, executors, beneficiaries, heirs or assigns an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount referred to in Order 5 hereof and there shall be a corresponding reduction in the entitlement the husband would have had in the Fund but for these Orders.

7. The operative time for the above order is twenty-eight business day after the day on which a sealed copy of these orders is served on the Trustee.

8. That these superannuation splitting orders binds the Trustee.

9. That pursuant to s 90MT(1)(b) of the Act whenever the Trustee of the Commonwealth Superannuation Scheme makes a splittable payment (whether by way of lump sum or pension) out of the interest held by the husband in the Scheme, the Trustee shall pay to the wife or her administrators and executors 30 percent of the splittable payment and that there be a corresponding reduction to the entitlement the husband would have received in the Scheme but for this order.

10. That the operative time for the above order is the twenty-eight business day after the day on which a sealed copy of these orders is served on the Trustee.

11. That these superannuation splitting orders bind the Trustee.

12. That pursuant to s 79 of the Act each party is declared the sole owner respectively of all other property and superannuation in their possession and / or control.

13. That all exhibits be released.

14. That in the event that either party should fail to sign any document necessary for the implementation of these orders, the Registrars of this Court are appointed pursuant to s 106A of the Act to sign such document in the name of the defaulting party and to do all things to give validity to such document.

15. That both parties have leave to re-list these proceedings on 7 days notice in relation to the implementation of these orders.

16. That these orders not commence operation until 1 February 2008.

17. That both parties have leave to re-list these proceedings at any time before 1 February 2008 by arrangement with the Associate to Judicial Registrar Johnston for the purpose of submissions in relation to the form of the orders only.

IT IS NOTED that publication of this judgment under the pseudonym Howard & Howard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2718 of 2006

MR HOWARD  

Applicant

And

MS HOWARD  

Respondent

REASONS FOR JUDGMENT

Introduction and Applications

1. These are property proceedings.

2. Mr Howard, to whom I shall refer as “the husband” seeks the following orders:-

   ·    That the parties sell their investment property at K and pay the proceeds after paying agent’s commission, advertising and sale costs in the proportions 70 percent to the husband and 30 percent to the wife;

   ·    That the parties cause the balance of funds in the controlled monies account to be paid 70 percent to the husband and 30 percent to the wife;

   ·    That there be a superannuation splitting order in respect of the husband’s interest in the STA Super fund providing the wife with a base amount of $100 000 and that otherwise the parties be entitled to their respective benefits in other superannuation funds and personal property in their possession and / or control.

3. On the other hand, Ms Howard, to whom I shall refer as “the wife” seeks orders to the following effect:-

   ·    That the K investment property be sold and after paying agent’s commission, advertising expenses and legal costs on the sale the proceeds of sale be paid to the husband and wife in equal shares;

   ·    That the parties cause the monies in the controlled monies account to be payable to the wife to the exclusion of the husband;

   ·    That the parties retain specified items of personal property;

   ·    That there be a superannuation splitting order in respect of the husband’s interest in the Commonwealth Superannuation Scheme so that an entitlement would be created therein in favour of the wife although the precise percentage of the husband’s interest was not clear to me.

Background

1. The husband was born in March 1955 and he is therefore 52 years of age.  The wife was born in August 1957 and she is therefore 50 years of age.

2. There is an issue about when the parties commenced cohabiting. I shall deal with this below. Suffice it to say that in my view the parties commenced cohabitation in August 1990.  They married in January 1993 and separated on 5 September 2005.  There are no children of the marriage.  The wife has two children from a previous marriage, the older daughter R born in December 1981 who is therefore 26 years of age and the younger daughter V born in September 1984 who is therefore 23 years of age.

3. At the commencement of cohabitation, the husband’s property consisted of the following:

   1.His equity in his home at …, B

   2.Honda Accord motor vehicle

   3.Antiques

   4.Some furniture

4. The husband had been working in the public service since 1972.  At the time the parties commenced cohabitation, he had long service leave credits as well as a substantial benefit in the Commonwealth Superannuation Scheme.

5. The husband’s liabilities consisted of 2 mortgages to the State Bank for $35 000 secured over his home and a personal loan from his parents for $30 000, a total of $65 000.

6. At this time the wife’s property consisted of the following:

   1.        Datsun 180B motor vehicle

   2.        Furniture and effects

   3.        AMP life insurance policy

7. The wife had no liabilities.

8. In 1992 the husband sold his home at B for $177 000. After discharging the mortgages and repaying his parents, the net proceeds of sale were $110 000.

9. The parties then purchased the property at D Street, L for $220 000. This was funded from the $110 000 net proceeds of sale of the husband’s home and a line of credit from the State Bank.

10. In 1999 the husband had a bicycle accident on his way to work. He sustained permanent damage to his right wrist.

11. At approximately this time the parties purchased a Mitsubishi motor vehicle for the wife’s use which cost $14 000 funded from the line of credit.

12. In 2000 the wife commenced studying towards a degree in education at a Sydney based University.

13. In 2000 the husband received a compensation payment of $25 000 for the injury arising from his bicycle accident. He paid this towards reducing the mortgage balance.

14. In 2001 the parties purchased a Holden Astra motor vehicle for the husband’s use. This vehicle cost $26 000. They also purchased 2 dining tables, some chairs and a billiard table for a total of $12 500. All this expenditure was funded from the line of credit.

15. In September 2001 the parties purchased the property at W Street, L for $466 500. A few weeks later they sold their D Street, L home for $328 000. The purchase of the W Street property was funded from the net proceeds of sale of the D Street property and a mortgage from the Commonwealth Bank of Australia for approximately $260 000 or $270 000.

16. In 2001 the wife sold her shares in NRMA after demutualisation and received approximately $3500. The wife used these funds to purchase a table and chairs.

17. In 2003 the wife completed her education degree.

18. In 2003 the wife’s children, R and V, decided that they wished to purchase the home unit at N (“the [N property]”).  The Commonwealth Bank of Australia as mortgagee required as a condition of the loan that the husband and the wife each take a 1 percent interest as tenants in common with the children.  The Bank also included the W Street home in its security.  The unit cost $345 000.  The entirety of the required funds were borrowed together with an amount for incidental expenses, some furniture and funds for R to study at university overseas, the total amount borrowed being $365 000.

19. Also in 2003 the wife received a $22 000 compensation payment which she paid to reduce the outstanding mortgage balance.

20. In 2004 the parties purchased a home unit at K in North Queensland for $200 000. This was funded by a loan from the Commonwealth Bank of Australia in the amount of $220 000. This property has been rented as holiday accommodation for most of the time that the parties have owned it. It has operated at a loss.

21. At approximately this time the husband was diagnosed as suffering from a leaking heart condition.

22. The husband was offered a redundancy in 2004.  He said that the wife encouraged him to accept the redundancy which he did in December 2004.  He received $104 451 tax free on redundancy.  The husband paid this towards reducing the outstanding mortgage balance.  The husband also received a payment for long service leave, the total amount being $46 218.  This was also paid towards reducing the outstanding mortgage balance.  At this point the outstanding mortgage balance was approximately $68 000.

23. Following his redundancy the husband did not work until after separation.  His father became ill and the husband assisted him and his mother.  His father died in March 2005.

24. In June 2005 the wife received $8000 from her former husband as support for R and V.

25. As indicated above, the parties separated on 5 September 2005.

26. After separation the wife withdrew almost $3106 from the line of credit without consulting the husband and used these funds to pay the mortgage on her children’s home unit.  She also charged the Visa account in excess of $1625 for expenditure including removalists costs.  The wife also received the benefit of some modest health fund refunds.

27. The parties sold their W Street home in April 2006 for $567 000.  The proceeds of sale were applied to substantially reduce the indebtedness to the Commonwealth Bank of Australia in respect of the three properties.

28. Approximately a week after the sale was settled the parties and the wife’s daughters settled the sale of the N property for $313 000.  The outstanding mortgage balance was approximately $352 000.  At settlement there was a shortfall of approximately $48 451.

29. The parties subsequently had consent orders made as a partial property settlement. Under the orders the husband received $10 000 from the joint account and the $48 451 shortfall on the settlement of the sale of the N property paid from the proceeds of sale of W Street was attributed as a payment to the wife by way of partial property settlement.

30. Monies remaining from the sale of the W Street property and monies remaining in the Security Stop account were deposited into a controlled monies account in trust for both parties. Those funds are now $113 689.

31. In April 2006 the husband was in need of money. He made an arrangement with his mother under which she obtained a supplementary card on her Mastercard account for his use. The husband incurred some indebtedness on this card which has been reduced by some repayment to his mother.

32. During the marriage the parties purchased some wine for investment. They have divided the wine between themselves equally.

Employment history of the parties

1. In 1990 when the parties commenced cohabiting the husband was employed as a public servant.  He had been employed as a public servant since 1972.  In late 1990 or during 1991, the husband was transferred to a new corporation known as ….  That corporation was wholly owned by the Commonwealth Government until it was sold in approximately 1999.  In any event the husband continued to work in similar capacity to that in which he had worked for many years.  As indicated above, he accepted a redundancy in December 2004.

2. Following his redundancy, the husband was unemployed for some months assisting his parents in circumstances where his father was very ill as indicated above.  From approximately June 2005 the husband worked for three months as a records / clerical / filing officer with a state government Department.  He was then unemployed for a period until June 2006.  He then undertook work for a company ….  In this position he performed clerical duties.  The work was casual and he received $6,465 for the work done by him.  The husband ceased this work in February 2007.  The husband commenced a three year contract with an Australian government department in October 2006.  The husband continues to work in this position. 

3. Details of the husband’s income over the following years are as follows:

Year	Taxable Income
1992	$37,801
1993	$40,856
1994	$48,013
1995
1996	$49,525
1997	$61,914
1998
1999	$55,960
2000	$60,062
2003	$59,699
2004	$54,691
2005	$61,771

1. On the other hand, when the parties commenced cohabiting in mid 1990 the wife was running her a business known as S Company.  She was also supplementing her very modest income from that business with some casual work.

2. From February 1991 to March 1992 the wife was also employed as a sales representative for … a food supplier. 

3. From July 1992 to approximately July 1998 the wife worked part time as a … teacher at … TAFE colleges. 

4. From July 1998 until approximately July 1999 the wife worked as a relief teacher at … High School.

5. From January 1999 to approximately December 1999 the wife worked as a relief teacher at … High School.

6. From December 1999 to December 2001 the wife worked as a … teacher at … High School.

7. From 2003 the wife has worked in her current position as a teacher at ….

8. Details of the wife’s income over relevant years are as follows:

Year	Taxable Income
1991	$14,470
1992	$20,005
1993	$6,165
1994	$13,448
1995	$10,189
1996	$15,914
1997	$26,844
1998	$23,085
1999	$34,298
2000	$36,754
2001	$50,102
2002	$54,144
2003	$57,708
2004	$55,444
2005	$57,949
2006	$59,298

Issues

1. There is an issue about when the parties commenced to cohabit.

2. The husband said that cohabitation commenced on 9 June 1992 when they purchased their D Street, L property. The wife said they commenced cohabitation in August 1990 and that they continued to cohabit until their separation in September 2005.

3. It is common ground that in August 1990 the parties commenced living together with the wife’s daughters in a property at J Street which was rented.  They continued to live in this property together until January 1991 when they moved into the husband’s home at B.  But the wife and children moved out after approximately one month because there were some difficulties between the husband and the wife’s daughters.  The wife and her daughters moved into a rented home at Y.  The wife and her daughters continued to live at the Y property until the parties settled the purchase on their D Street, L home in June 1992.  Then they all moved into the D Street home.

4. As indicated above the husband agrees that the parties commenced cohabiting at the J Street property and he concedes that he and the wife were living in a de facto relationship.  But he suggests that things changed in early 1991 when the wife and children moved into the Y property.  The husband says that from this time his relationship with the wife became what he described as a boyfriend and girlfriend relationship.  He said he was living at his B home.

1. Yet the wife says that little changed in terms of their relationship upon her and the children moving into the Y property.  She said that the husband had dinner and slept at the Y property every day.  The husband denied this.  I prefer the wife’s version.

2. In my view, the husband has endeavoured to place a somewhat technical interpretation on the nature of the parties’ relationship between early 1991 and August 1992.  He seemed to be suggesting that because the wife rented the Y property as a home for herself and the children, and he kept many of his belongings at his B home, their cohabitation ceased.  Yet in my view the reality of the parties’ relationship did not change.  They continued a full relationship, the only change being that the husband also kept his B home untenanted. I accept that most of his time outside his working hours was spent at the wife’s home.  In any event, by early 1992 he and the wife had committed themselves to locating a home to purchase with a view to residing there with the wife’s children as a family.

3. In all the circumstances, in my view, there were sufficient of the characteristics of a de facto relationship present from the time the parties commenced living together in August 1990 until they moved into their D Street, L home in June 1992, for this Court to be satisfied that cohabitation continued from August 1990 until that time and then continued until they separated in September 2005.  This is a period just exceeding 15 years.

4. There is also a major issue about how the Court should deal with the husband’s interest in the Commonwealth Superannuation Scheme (“CSS”).  I shall deal with this below.

The Applicable Law

1. The Court must be satisfied that in all the circumstances it is just and equitable to make an order. This is provided by s 79(2) of the Family Law Act 1975.

2. The Full Court of this Court in the case of In the Marriage of Coghlan (2005) 33 Fam LR 414 referred at page 420 to the following passage from the Full Court decision in the case of Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355:

   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 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:  In the Marriage ofLee Steere (1985) 10 Fam LR 431; (1985) FLC 91-626; In the Marriage of Ferraro (1992) 111 FLR 124; 16 Fam LR 1; (1993) FLC 92-335 (and various other well known authorities).

3. The Full Court went on to say in Coghlan as follows at page 428:

   Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.

   The parties’ contributions to all items on that list (including the superannuation interest) would then be assessed on either a global or an asset by asset basis.  It might then be necessary in the s 75(2) context to have regard to the parties’ future superannuation entitlements (having regard of course to any division proposed on the basis of their contributions), with consideration then being given to the overall justice and equity of any proposed award or order (including any proposed splitting order).  Indeed, this is the approach which the Full Court has used on its re-exercise of the trial judge’s discretion in In the Marriage of Ilett (2005) 33 Fam LR 393; [2005] Fam CA 432 (which will be delivered contemporaneously with the decision in this case).

   However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.

   Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. Specifically in the context of s 79(4)(e), that is the s 75(2) factors, any division of the property (as defined in s 4(1)) and any “division” of any superannuation interest (in the sense of an allocation of the base amount) based respectively on the assessments of the parties’ contributions to the property and to any superannuation interest, would then be considered. Similarly, the parties’ future superannuation prospects (be they in capital or income form) would also need to be considered. The overall justice and equity of the ultimate award (including any proposed splitting order or the need for such an order) would then be considered.

   In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case.  If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:

   (a)value the superannuation interest (according to the regulations if an order under Part VIIIB is sought or according to the regulations or otherwise if no order is sought);

   (b)consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;

   (c)consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and

   (d)ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.

   In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.

   If this approach is adopted, whereby superannuation interests are dealt with separately from property as defined in s 4(1), but are subject to the considerations in s 79(4), then not only will any contributions, both direct and indirect, by either party to such superannuation interests be more likely to be given proper recognition, but the real nature of the superannuation interests in question can also be taken into account, both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.

   When we refer to “the real nature” of the relevant superannuation interest, we are referring to the fact that notwithstanding that its value according to the regulations may well be calculated to be a very significant amount, that superannuation interest may be no more than a present or future periodic sum, or perhaps a future lump sum, the value of which at date of receipt is unknown.

What is the appropriate approach

1. On the basis of what was said in Coghlan, it was submitted on behalf of the husband that the Court should identify the assets in three separate lists. It was submitted that the first list would comprise what was described as the property within the definition of “property” in section 4 of the Family Law Act 1975, the second list would comprise the superannuation of the wife and that of the husband (omitting his Commonwealth Superannuation Scheme superannution “CSS”) and the third list would comprise only the husband’s CSS superannuation. 

2. It was submitted that the Court would then determine contributions and s 75(2) matters in relation to each list.

3. On the other hand, it was submitted on behalf of the wife that the Court should include all the property and the superannuation in one list and determine contributions and s 75(2) matters on a global basis. In support of this submission, learned counsel for the wife said as follow:

   -this would be more likely to represent a proper allowance for non-financial contributions and welfare contributions;

   -because of the lengthy duration of the parties’ cohabitation the global approach is more likely to produce a fair result particularly in weighing of the s 75(2) matters;

   -there have been many cases in which a party has owned an item of property prior to marriage and it was not suggested that such should be excluded from the pool of property simply because it looked after itself;

   -the fact that the husband’s CSS superannuation is different in nature from property is no justification for placing it in a different pool of assets despite what was said about superannuation in Coghlan.  This is said to be because the Court often deals with particular assets such as business interests which have been valued on a theoretical basis yet such are generally included in the one pool of property;

   -the husband’s CSS superannuation did not remain isolated from the marriage because productivity payments were made until 1999 and over the same period the parties were making all sorts of contributions including welfare contributions.

4. I must say that I am not persuaded to adopt this course.  In my view, I should take the approach as set out in Coghlan and identify the items of property and superannuation in separate lists.  I also propose to adopt the suggestion of learned counsel for the husband and deal with the husband’s CSS superannuation interest separately from the property and other superannuation interests.

Property available for division

1. The non-superannuation assets available for division between the parties consists of the following:

$
The K property	(Joint)	200,000
Controlled monies account at February 2007	Joint	113,689
Savings - Bank of Qld	(H)	1,038
Savings - Bendigo Bank	(W)	1,000
IAG shares at 25.9.07 price of $4.92 each	(H)	7,783
1998 Kawasaki motor bike	(H)	2,000
2001 Holden motor vehicle	(H)	10,000
Toyota Corolla motor vehicle	(W)	10,700
proceeds of Mitubishi motor vehicle	(W)	6,520
Furniture in husband's possession	(H)	3,000
Furniture in wife's possession	(Joint)	10,000
Interim property settlement to wife	(Joint)	48,451
Interim property settlement to husband	(Joint)	10,000
ADD BACK: Monies withdrawn by W from joint account re the N property mortgage	(W)	3,106
ADD BACK: Visa account charged by H for removalist	(H)	595
ADD BACK: Visa account charged by wife for removalists	(W)	1,360
… Trust Account
H Sole Trader
ADD BACK: Husband's legal fees paid	(H)	2,841
Total Assets	432,083

1. The liabilities are:

$
GST and Income Tax	(H)	2,200
Westpac (personal loan)	(W)	13,885
16,085

Contributions to the non-superannuation pool of property

1. There is a major issue about the finding which the Court should make about the contributions which each party has made to this property.

2. It is submitted on behalf of the husband that his contributions should be assessed as having been 80 percent.  It is submitted that there has been a significant imbalance between the overall contributions of the parties because of a number of matters.  These are the significant initial disparity in property because the husband owned equity in his B home which amounted to $110 000 when he sold it to fund the purchase of the D Street property, his motor vehicle, furniture long service leave entitlement and the fact that his employment service was such that he had accrued an entitlement to redundancy.

3. It is also submitted that the husband applied the $22 000 he received as workers compensation to reduce the outstanding mortgage balance on the home, assisted the wife in her catering business and made significant contributions to the care of the wife’s children and in particular to funding their living costs and private school fees.

4. In relation to these latter contributions by the husband to the wife’s children, in my view, these are not contributions which the Court is to take into account pursuant to s 79(4)(c) of the Act.  This is because that provision refers to the contribution made by a party to the marriage to the welfare of the family constituted by the parties and any children of the marriage.  Clearly the wife’s children are not children of the marriage.  But the husband’s efforts in this regard shall be taken into account pursuant to s 75(2)(o) of the Act.

5. On the other hand, as indicated above, learned counsel for the wife approached his submissions about contributions on the basis that the Court should adopt a global approach to assessing contributions in relation to property and superannuation. Counsel submitted that overall contributions should be assessed as 55 percent by the husband and 45 percent by the wife.

6. As should be clear from the background history, both parties have made significant financial contributions.  I have referred to their property at the time they commenced cohabitation and to their respective employment histories.  But there can be no question that the husband has made a much higher level of financial contributions over the whole period of cohabitation than has the wife, notwithstanding the fact that he became unemployed for a couple of periods after accepting the redundancy.

7. On the other hand, in my view, it is also clear that the wife has made a greater contribution to the parties’ welfare particularly in the area of the domestic work.  This is not to say that the husband has not shouldered a reasonable share of this work.  But considerable attention was given in cross-examination to this area and I am comfortably satisfied that the wife is ahead of the husband in this area.  The wife tended to understate the husband’s efforts in this regard.  It is also the case that the husband suffered from chronic fatigue syndrome during the early years of the parties’ cohabitation.  This must have limited his capacity for working around the home in addition to his full-time employment.  But I am satisfied that the husband assisted with some of the domestic tasks during most of the marriage including doing his own ironing and, despite the wife’s criticism, a reasonable amount of the maintenance of the grounds of the various homes.  The husband undertook the servicing of the family motor vehicles over most of the period of cohabitation.

8. In what was a marriage of substantial duration, how does the Court assess contributions overall when there was an imbalance because of the husband’s initial substantial contribution and of course his redundancy and long service leave?

9. The exercise becomes one of weighing such contributions along with all the other contributions by the parties over the entire period of cohabitation and after separation, in order to arrive ultimately at an appropriate assessment of overall contributions.

10. In this regard, I was referred by learned counsel for the husband to the decision of the Full Court of this Court in the case of Pierce v Pierce (1999) FLC 92-844. In that case the Full Court was considering the appropriate finding about contributions in circumstances where there was a very significant imbalance between the husband and wife in their initial financial contributions.

11. The Full Court was discussing different approaches which had been taken by senior judges of the Court to dealing with this and said as follows at pages 85,880 and 85,881:

    In Way and Way (1996) FLC 92-702, the Full Court (Barblett DCJ, Finn and Butler JJ), said at 83,404:-

    “In the subsequent Full Court decision in Bremner all three Judges expressly preferred the approach taken by Fogarty J in Money over that taken by Lindenmayer J in the same case.  Thus, and notwithstanding the attempts by Counsel for the husband in this case to demonstrate that there was some inconsistency between what Fogarty J said in Money and what was actually said in the joint judgment of the Full Court in Lee Steere, we regard the law in this area as now settled by the statement by Fogarty J in Money (and subsequently accepted by all members of the Full Court in Bremner) that “...an initial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party”.”

    However, it is important to put that quotation in its correct context.  Fogarty J in Money and Money (supra) said at page 81,054:-

    “I am unable to agree with the criticism in his Honour by the passage in his judgment immediately after that quotation or of his analysis of the issues involved.  In an appropriate case, in my view, an initial substantial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party.  I feel, if I may say so with respect, that his Honour’s formulation to the contrary is unrealistic and does not correspond with common experience in the Court in many of these cases.

    I think it is legitimate for me to say, as I was a member of the Full Court in Lee Steere and Lee Steere (1985) FLC 91-626 that His Honour has read too much into the passage to which he refers and that the term “off-setting contribution” does not necessarily mean “greater contribution”. It simply reflects the circumstance that the respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party. This is, in my view, made clear by the Full Court in White and White (1982) FLC 91-246 where that court pointed out that the principal in Crawford and Crawford (1979) FLC 90 - 647 is that the original contribution should not be carried forward as a mathematical proportion; ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be later factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution”.

    In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution.  It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.  In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.  In the present case that use was a substantial contribution to the purchase price of the matrimonial home: …

1. In the present case, the husband’s equity in his B home provided approximately one-half of the funds required to purchase the parties’ first home namely, the D Street, L property.  As indicated above, the purchase price was $220 000 and the net proceeds of sale of the husband’s B home were $110 000. 

2. The equity in D Street enabled the parties to purchase the W Street property.  In addition, as also indicated above, the husband ultimately paid his redundancy and leave payments to reduce the outstanding mortgage by a significant amount.

3. In my view, these are significant contributions.

4. Obviously there is a significant imbalance in overall contributions because of these matters notwithstanding all the other contributions that have been made.  One must be careful not to endeavour to reduce this to mathematics.  The broad approach is appropriate.

5. In my view, upon weighing all of these contributions over the substantial period involved, the husband’s contributions are almost double those of the wife.  Accordingly, I assess the husband’s contributions overall as having been 65 percent and those of the wife as having been 35 percent.

The second pool of assets namely the non-CSS superannuation and contributions thereto

1. The second pool of assets comprises the following:

$
1.        Husband’s Australian Super	155,526
2.        Husband’s First State Super	669
3.        Husband’s PSS	1,613
4.        Husband’s Colonial First State Super	1,973
5.        Wife’s First State Super	31,471
6.        Wife’s NGS Super	40,525
Total   $231,777

1. Most of the superannuation was accumulated during the period of the parties’ cohabitation.  In these circumstances there is really no issue that the Court should find that the parties’ contributions in relation to these assets were equal.  I so find.

The third pool of assets namely the husband’s interest in the CSS

1. The parties have agreed that the husband’s interest in the CSS has a value of $897 396.

2. The following facts are contained in a Notice of Agreed Facts by the parties which became Exhibit 3 in the proceedings:

   1.That on 1 February 1977, the Husband was employed as a Commonwealth Public Servant and became a contributing member of the Commonwealth Superannuation Scheme (“CSS”) and made the mandatory 5% contribution from his after tax salary as an undeducted contribution.

   2.That on 1 January 1988, the Commonwealth Government agreed to provide additional superannuation to all Commonwealth public servants.  This was called a productivity component but no funds were paid into a member’s productivity account by the Government until 1992.  The amount reported to each member in the member’s productivity account was an unfunded liability owed by the Commonwealth to each member of the CSS.

   3.In May 1989 the Commonwealth Government established a company known as the […] and the husband ceased employment with the […] as a Commonwealth Public Servant and became employed by […] after its establishment.

   4.In May 1989, the husband commenced a superannuation membership with the Superannuation Trust of Australia (“STA”).  The superannuation guarantee contributions mandated by the Superannuation Guarantee Act 1992 (Cth) were paid into STA.

   5.Notwithstanding that the [Commonwealth Government company] was corporatised in May 1989, the husband remained a contributing member of CSS because [this company] continued to be an approved authority as defined in the Superannuation Act 1976. This continued until late November 1999.

   6.By reason of [this company] remaining an approved authority until late November 1999, productivity contributions were made by [this company] into the husband’s superannuation interest in CSS.

   7.When [the government company] was privatised in late November 1999, [the company] ceased to be an approved authority and at that time the husband’s interest in CSS became deferred (ie. the husband became a deferred benefit member).

   8.The deferred benefit membership held by the husband has three components:

   (i)A member component comprising the amount he has contributed together with interest calculated by reference to the returns on investments made by the trustee less administration costs.

   (ii)A productivity component representing 3% of the employee’s salary and derived solely from employer contributions, being unfunded until 1992 and funded by financial contribution on the part of the employer after 1992.

   (iii)An unfunded component used to calculate a pension payable for the life the member by reference to the following method contained in s.136 of the Superannuation Act 1976 (Cth).

   2.5 x F₁ x ABC (this is the member component)

   (iv)The husband’s member component on 5 September 2005 was $135,954.  This would provide a gross pension of:

   2.5 x 9.25% x $135,954 = $31,439.36 pa

   (v)The husband’s pension is a life pension payable for the remainder of his life, commencing at age 55 as a transition to retirement pension with a  reversion of 67% to any eligible spouse.

   (vi)The respondent is not an eligible spouse.

   (vii)In addition to the pension, the applicant is also entitled to a refund of his member component and his productivity component upon meeting a condition of release in accordance with Schedule 1 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).

   9.If a superannuation split occurs, the wife will receive an associate membership in the CSS.  If the operative time is when the interest is in the growth phase, the associate membership has the following components:

   (i)a lump sum equal to the funded component of the transfer amount, together with interest determined under section 154A; and

   (ii)an associate deferred pension at an annual rate calculated under the Orders by reference to the unfunded component.

   10.The benefits become payable to the associate member when they have reached a condition of release under Schedule 1 of the Superannuation Industry (Supervision) Act 1993, such as reaching preservation age and withdrawal from the workforce.

   11.If the associate member dies before the benefits become payable the Board must pay to the associate member’s legal personal representative:

   (i)a lump sum equal to the funded component of the transfer amount, together with interest determined under section 154A; and

   (ii)an amount calculated under the Orders in respect of the associate deferred pension.

   12.If the associate member dies whilst receiving the associate benefit, their dependents are not entitled to a reversionary pension.

   13.The valuation report by Mr [G] applies the prescribed method of valuation which assumes that a member will live until life expectancy and thus receive an indexed pension for that period of time.

   14.The life expectancy are found in a document titled “Actuarial Assumptions” provided by the Australian Government Actuary.

   15.The lump sum component of the member’s super interest (ABC) in CSS will attract a minimal amount of tax given that it is largely comprised of undeducted contributions.

   16.The pension component of the CSS member’s interest is taxed as ordinary income, but after aged 60, a 10% tax offset is applied.

   17.It is possible to split the ABC plus PCI component of the CSS member interest only, however, the actual split is not effected until the member retires from the workforce or commences a transition to retirement pension.

   18.That the current value of the husband’s CSS interest is $897,396 made up as follows:

   (i)       $178,488.84 ABC component;

   (ii)      $718,907.16 pension component.

   18A.The husband’s member component on 6 September 2007 was $178,488.84.  This would provide a gross pension of:

   2.5 x 9.25% x $178,488.84 = $41,275.35 pa

   19.That the matters referred to in part 5 of Mr [G]’s report as contained in his Affidavit filed 13 April 2007 no longer apply by reason of the agreed facts above, namely that all contributions made after […] May 1989 by [the government company] to CSS were productivity contributions made by [the government company] as an approved authority.

3. There was a valuation of the husband’s benefit in the CSS prepared by Mr G, Principal Forensic Accountant in accordance with the Family Law Superannuation Regulations. But the parties have agreed that the current value of this benefit is in accordance with the above Notice of Agreed Facts, although it is submitted on behalf of the husband that there is an artificiality about the value of the pension component. I shall refer to this again below.

Contributions to the husband’s CSS interest

1. It is submitted on behalf of the husband that the wife is unable to demonstrate that she has made any contribution to the husband’s CSS benefit.  It is submitted that this is on the basis that the husband’s benefit in the Scheme was solely attributable to work he had done in his employment with the Australian Government and subsequently the government formed company well prior to the parties commencing cohabitation.

2. On the other hand, it was submitted on behalf of the wife that although the contributions to much of the superannuation benefit were made before the parties commenced cohabiting, contributions were also made to the husband’s account in the Scheme after cohabitation.  It was also submitted that much of the value of the husband’s interest developed during the period of cohabitation through earnings by the Scheme.

3. In my view there can be no validity in the submission on behalf of the husband that the wife has not made a contribution to the husband’s CSS interest.  This can only be true in the narrow sense that the wife has not actually paid any money into the husband’s Scheme.  But of course, as learned counsel for the husband is well aware, relevant contributions within the legal meaning of s 79(4) of the Act go well beyond direct financial contributions.

4. For instance, it is clear that part of the CSS benefit arises from productivity payments made by the husband’s employer over many years of the parties’ marriage.  Although the amount was small in the overall context of what is agreed as the current value of the interest, this amount is directly attributable to part of the rewards of the husband’s employment during the marriage.  Similarly, a part of the value of the interest has arisen from earnings derived by the Scheme from investment of he funds of the Scheme part of which is represented by the funds comprising the husband’s member component.  The relevant appreciation of the husband’s interest occurred during the period of the parties’ cohabitation.  But in addition to these matters involving contributions by the wife in the broader legal sense, the contributions which the wife has made to the welfare of the family unit of the husband and herself cannot be somehow isolated from this asset.  As I have said above, the wife’s welfare contribution has been significantly greater than that of the husband.

5. How does the Court go about this exercise of determining the wife’s contributions to the husband’s interest in the CSS?  In my view, it goes about this in the same way as it would in relation to assessing contributions to property.  Again, I refer to the passage above which I quoted from the case of Pierce (above).  It is a matter of weighing the husband’s initial contributions to the CSS in the light of all other relevant contributions by the parties.  It is also a matter of not overlooking the fact that the Full Court said in Pierce that regard must also be had to the use made of that contribution.  The use made of the contribution by the husband has never changed in that it has resulted in the major part of the value of the superannuation interest.  Clearly, this goes to weight.

6. Doing the best that I can using the broad approach I understood the Court takes to this exercise, in my view, the wife should be assessed as having made a 30 percent contribution in relation to the husband’s CSS interest.  The reasons for this finding are as follows.  The initial contribution was made by the husband.  The subsequent contributions to the fund, and growth in the fund during the parties’ cohabitation together with all other relevant contributions in the wider sense made during the course of the marriage cannot, in my view, achieve overall equality in relation to this asset.  So the wife’s contributions to this asset must be less than 50 percent.  What weight in all the circumstances should be placed on the husband’s initial contribution compared with all other contributions?  In my view it is still substantial and is more than double the contributions of the wife.  I assess the husband’s contributions at 70 percent in relation to this asset and the wife’s contributions at 30 percent.

Summary of assessment of contributions and effect on the various assets

Total	Husband’s 65%	Wife’s 35%
Non-superannuation property	$415,998	$270,399	$145,599

Total	Husband’s 50%	Wife’s 50%
Superannuation (except CSS)	$231,777	$115,888	$115,888

Total	Husband’s 70%	Wife’s 30%
CSS	$897,396	$628,177	$269,219

Total	$1,545,171	$1,014,464	$530,706
% of Total	65.65%	34.35%

s 75(2) matters

1. The next step is to consider the relevant s 75(2) matters.

2. The husband is 52 years of age.  He had suffered from chronic fatigue syndrome when the parties commenced cohabiting but had recovered from the syndrome by year 2000.  As indicated above, the husband has permanent damage to his right wrist.  The husband has bulging discs for which condition he attends a physiotherapist and also has massage.  He also has permanent damage to his left wrist, arthritis and asthma.  He has a leaking heart condition for which he sees a heart specialist once each five years.

3. The husband is working full-time with an Australian Government agency.  This employment is pursuant to a three year contract with the Commonwealth Department which commenced in October 2006.

4. The husband commenced his present position on a salary of $59,912 although at the time of the hearing the husband was anticipating a modest salary increase.  He said that the remuneration range for his position is $59,912 to approximately $69,000.  A compulsory superannuation contribution of 5% of salary is payable from salary to the Public Sector Superannuation Scheme.

5. In my view, despite the limitations in his health referred to above, the husband should be able to continue working in positions similar to his present position for many years.

6. On the other hand, the wife is 50 years of age.  She is in good health.

7. She works full-time as a teacher.  Her annual income is approximately $69 000 and her employer pays an additional 9 percent of her salary to superannuation.

8. In my view, the wife should be able to continue working in her present or similar capacity for many years.

9. The picture these circumstances of the parties presents to me is one in which in broad terms they have similar capacities for appropriate gainful employment.

10. There is significant disparity in the assets each party would enjoy based on my findings about their overall contributions.  In the absence of other relevant s 75(2) matters, this alone would justify a significant set-off of assets in favour of the wife.  But it cannot be over-looked, that the husband’s efforts to the welfare of the wife’s children over the many years of the parties’ cohabitation were very considerable. Not only did he make substantial financial contributions to their care and sustenance including some payment of private school fees, but he involved himself, for all practical purposes, as their father.  This involved all the usual day to day involvement with them including taking them to sport and extra-curricular activities on weekends and assisting them with their homework.  Their own father was mainly absent in their lives, taking little interest in them.  The only financial assistance given by their father was a payment of $8000 late in the period of the parties’ cohabitation.

11. Another relevant s 75(2) matter is the fact that the wife has accepted sole responsibility for the loss on her children’s home unit venture, accepting, as indicated above, $48 451 which, in effect the parties paid, as a preliminary advance to her as part of the property settlement.

12. Taking account of these s 75(2) matters, the most significant are the disparity in asset positions based on contributions and the contributions which the husband made to the welfare of the wife’s children.  In my view, despite the significant efforts by the husband in this regard, these do not entirely set off the disparity in assets.

13. In all the circumstances, in my view, to achieve a just and equitable order it will be necessary to set-off a modest part of the assets in favour of the wife.  I propose to adjust the contribution based finding in relation to the non-superannuation assets 10 percent in favour of the wife.

The fourth step

1. One should be careful not to overlook the nature of each pool of assets.  I have also taken this into account pursuant to s 75(2).

2. The non-superannuation assets pose little difficulty.  While the real estate, the K property will have to be sold, and there are some add-backs, the remaining property is readily available.  The non-CSS superannuation will not pose much difficulty although, because of the imbalance in favour of the husband, it will be necessary to make a splitting order.

3. The value of the CSS interest has some uncertainty about it in the sense that the valuation was arrived at on the assumption that the husband will live for at least as long as the life expectancy tables used in the calculation indicate he will.  If he dies sooner, the value would be lower.  If he lives longer, the value would be higher.  If he dies before becoming eligible for a payment then his estate would receive the death benefit and any eligible spouse would receive the lesser payment referred to above. There was a very strong submission on behalf of the husband to the effect that he did not want there to be a splitting order in relation to his CSS interest.  On the other hand, learned counsel for the wife submitted that there would be fairness in making some splitting order in relation to the CSS interest because, amongst other things, it would attribute the uncertainties involved to both parties although not necessarily equally.

4. I accept this submission despite the husband’s preference.  There is no question that the security offered by the husband’s CSS interest to the parties in their retirement was something of which the wife was aware for most of the parties’ cohabitation.  The loss of the right to share in superannuation has long been regarded in this Court as a most important financial consequence of marriage breakdown.  In this regard see Bailey and Bailey (1978) FLC 90-424 at page 77,145.

5. In addition, account should be taken of government policy in introducing the superannuation amendments to the Family Law Act 1975.  I note that page 8 of the Explanatory Memorandum to the Family Law Legislation Amendment (Superannuation) Bill 2000 referred to the objectives.  Included in the objectives are the following:-

   -encourage parties to take responsibility for their own affairs wherever possible;

   -minimise compliance costs; and

   -be consistent with the Government’s broader retirement incomes policy goals.

6. At page 9 of the Explanatory Memorandum it is said that the Government’s retirement incomes policy has a number of broad objectives, including:-

   -ensuring that superannuation savings, which have benefited from concessional tax treatment, are used to maintain and improve living standards in retirement rather than being diverted to other uses; and

   -effectively targeting Government assistance, in the form of age pensions and other benefits to those who have limited resources with which to fund their retirement.

1. Taking each of the pools of assets but in reverse order, upon the making of the splitting order the wife will have an interest in the CSS with a value of $269 219 (30 percent of $897 396 = $269 219).  Whether such a value will ever be realised is somewhat uncertain. 

2. The wife will have other superannuation with a value of $115 888.

3. This is total superannuation of $385 107.  The wife appears also to have the opportunity of contributing to superannuation for many years.

4. The wife will also have property with a value of $187 199 (45 percent of $415 998 = $187 199). Although $67 252 of this property is the property already in the wife’s possession.  So the adjustment would be a payment to the wife from the remaining property of $119 947 (see Conclusion below).

5. On the other hand, upon the making of the splitting order the husband’s interest in the CSS will have a value of $628 177 (70 percent of $897 396 = $628 177).  Again, whether such a value will actually be realised is somewhat uncertain.

6. The husband will also have other superannuation with a value of $115 888.

7. This is a total superannuation of $744 065.  The husband would appear also to have the opportunity of contributing to superannuation for some years.

8. The husband will have property with a value of $228 799 (55 percent of $415 998 = $228 799).  However, $35 057 of this property is the property already in the husband’s possession.  He will require a payment from remaining property of $193 742.

9. Both parties will have some legal costs to pay.  After payment of legal costs, a modest amount of cash will be available to each party.  Whether this will be sufficient to enable each to buy a home is not clear to me.  But in the interests of overall justice and equity I decided to make the s 75(2) adjustment to the wife out of the non-superannuation assets in an endeavour to partially bridge the disparity between the parties in their property.

10. The orders I propose will not affect the earning capacity of either party.

Conclusion

1. The wife is to have non-superannuation assets with a value of $187 199.  The wife has the following property:-

$
1.         Bendigo Bank savings	1,000
2.         Toyota Corolla motor vehicle	10,700
3.         Proceeds of Mitsubishi vehicle	6,520
4.         Furniture	10,000
5.         Interim property settlement	48,451
6.         Money withdrawn from joint account (add back)	3,106
7.         Visa card for removalists (add back)	1,360
_____________
$81,137

1. But the wife also has a liability of $13 885 by way of a personal loan.

2. Accordingly, the wife has net property with a value of $67 252 ($81 137 - $13 885 = $67 252).  To achieve property with a value of $187 199 the wife will require further property with a value of $119 947 ($187 199 - $67 252 - $119 947).

3. On the other hand, the husband is to have non-superannuation assets with a value of $228 799.  The husband has the following property:-

$
1.         Bank of Queensland savings	1,038
2.         IAG shares	7,783
3.         Kawasaki motor bike	2,000
4.         2001 Holden motor vehicle	10,000
5.         Furniture	3,000
6.         Interim property settlement	10,000
7.         Visa card for removalists (add back)	595
8.         Husband’s legal fees paid (add back)	2,841
_____________
$37,257

1. But the husband also has a liability for GST and income tax of $2200.

2. Accordingly, the husband has net property with a value of $35 057 ($37 257 - $2200 = $35 057).  To achieve property with a value of $228 799 the husband will require further property with a value of $193 742 ($228 799 - $35 057 = $193 742).

3. This outcome will be achieved as follows.

4. The monies in the controlled monies account including interest ($113 689) are to be paid to the parties in equal shares.  So this would be a payment to each party of $56 844.50.  I shall round this up to $56 845.

5. The wife is to receive payment of $119 947 from the non-superannuation assets as I have said.  Because she will have received $56 845, she will require payment of $63 102 ($119 947 - $56 845 = $63 102) from the sale of the K property.  This is 31.55 percent of the value of that property.

6. On the other hand, the husband is to receive payment of $193 742 from the non-superannuation assets. Because he will have received $56 845 from the controlled monies, he will require payment of $136 897 ($193 742 - $56 845 = $136 897) from the sale of the K property.  This is 68.45 percent of its value.

7. The non-CSS superannuation has a value of $231 777 and is to be divided equally between the parties so that each will have $115 888.50.  I should round this down to $115 888.  The wife has the following superannuation:

$
1.         First State Super	31,471
2.         NGS Super	40,525
_____________
$71,996

1. To achieve $115 888 the wife will require $43 892 ($115 888 - $71 996 = $43 892) from the husband’s Australian Super.  This will be by way of a splitting order in this base amount to the wife.

2. There will also be a splitting order of the husband’s CSS superannuation so that the wife obtains a 30 percent interest.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judicial Registrar W P Johnston.

Associate

Date: 21 December 2007