Jansson and Olberg
[2018] FCCA 2443
•17 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JANSSON & OLBERG | [2018] FCCA 2443 |
| Catchwords: FAMILY LAW – Application for property adjustment orders between de facto spouses – assessment of contributions – final orders made. |
| Legislation: Family Law Act 1975, ss.79, 90SF, 90SM |
| Cases cited: In the Marriage of Harris (1991) 104 FLR 458 |
| Applicant: | MS JANSSON |
| Respondent: | MR OLBERG |
| File Number: | PAC 5192 of 2017 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 27 August 2018 |
| Date of Last Submission: | 27 August 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 17 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr O’Connor of A J & Associates Lawyers |
| Counsel for the Respondent: | Ms Rebehy |
| Solicitors for the Respondent: | Smythe Wozniak Solicitors |
ORDERS
These Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975 (Cth).
That within forty-two (42) days of the date of these Orders, Ms Jansson, shall pay Mr Olberg the sum of $243,966 (the Sum).
Simultaneously with the payment of the Sum:
(a)Mr Olberg shall do all acts and things and sign all documents necessary to transfer the whole of his right, title and interest in the property known as Property A NSW being folio identifier (the Property) to Ms Jansson;
(b)The parties shall do all acts and things and sign all documents necessary to discharge the Bank 1 mortgage secured by the Property, and
(c)Ms Jansson acts and things and sign all documents necessary to refinance the mortgage over the Property into her sole name.
That if the payment of the sum to Mr Olberg does not occur in accordance with Order 2 of these Orders, then within fourteen (14) days of the failure to comply with Order 2 of these Orders, the parties shall do all acts and things and sign all documents necessary to list the Property to be sold by private treaty with a real estate agent agreed between the parties and failing agreement with a real estate nominated by the President for the time being of the Real Estate Institute of New South Wales or his or her nominee and to sell the Property for the best price reasonably obtainable and to distribute the proceeds of such sale in the following manner and priority:
(a)In payment of real estate agent’s commission and advertising expenses of the sale;
(b)In payment of proper legal costs and disbursements, in respect of and incidental to the sale of the Property;
(c)In adjustment of rates, levies and taxes on the Property in respect of the sale; and
(d)In payment of the mortgage to Bank 1 secured over the property.
(e)In payment of 50% of the balance to the wife, plus a payment of $47,706.
(f)In payment of the balance remaining to the husband.
That if the parties are unable to agree as to the listing price or sale price of the Property then they shall appoint Mr S of Valuations and if he is no longer undertaking valuations, such valuer nominated by the President for the time being of the Real Estate Institute of New South Wales or his or her nominee, to determine the value of the Property and:
(a)In the case of the listing price of the Property shall list the Property for sale at a price not more than 10% higher than the value as so determined, and
(b)In the case of the sale price shall accept any offer to purchase the Property at that price or higher.
In the event that a valuer is appointed by the parties pursuant to Order 3 of these Orders, the parties shall pay the costs of such valuer in equal shares.
That in the event the Property is listed by private treaty and contracts have not been exchanged and the cooling off period expired within a period of five (5) calendar months of the date of these Orders, then the parties shall forthwith do all acts and things and sign all documents necessary to cause the Property to be listed for sale by public auction with a real estate agent agreed between the parties and failing agreement with a real estate nominated by the President for the time being of the Real Estate Institute of New South Wales or his or her nominee upon the following terms and conditions:
(a)The auction shall take place within six (6) weeks after the date three (3) calendar months after the date of these Orders or as soon as practicable, whichever is the later;
(b)The reserve price shall be as agreed between the parties and failing agreement as determined by the auctioneer;
(c)Both parties shall attend at the auction and in the event that the Property is passed in they shall negotiate with the highest bidder and the parties shall accept any offer to purchase the Property at no less than 90% of the reserve price, and
(d)That in the event that the Property does not sell at auction or does not sell by private treaty within two (2) weeks after the date of the auction then the parties shall relist the Property for sale by auction at intervals of no more than six (6) weeks upon the same terms and conditions as set out herein until the Property is sold.
That upon the Property being sold at auction the proceeds of sale shall be distributed in accordance with Orders 4(a) to 4(f) inclusive of these Orders.
That the parties instruct Smythe Wozniak Lawyers to act on the sale of the Property unless otherwise agreed between the parties.
That from the date of these Orders and pending transfer of the Property to Ms Jansson or sale of the Property as applicable, Ms Jansson shall pay, as they fall due, all regular instalments in respect of the mortgage and house and contents insurance for the Property.
That from the date of these Orders and pending transfer of the Property to Ms Jansson or sale of the Property as applicable, Mr Olberg shall pay, as they fall due, the water rates and water usage, council rates and electricity bills in respect of the Property.
That in accordance with s.90MT(4) of the Family Law Act 1975, a base amount of $20,000 is allocated to Ms Jansson out of Mr Olberg’s interest in the Super Fund A.
That in accordance with s.90MT(1)(a) of the Family Law Act 1975:
(a)Ms Jansson (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the order immediately preceding this Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)The entitlement of Mr Olberg in the Super Fund A (or the entitlement of such other person who becomes entitled to receive a payment out of Mr Olberg’s superannuation interest) is correspondingly reduced by force of this Order.
(c)That the trustee of Super Fund A (the trustee) shall do all such acts and things and sign all documents as may be necessary to:
(i)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to Ms Jansson in the immediately preceding Order, and
(ii)Pay the entitlement whenever the trustee makes a splittable payment from Mr Olberg’s interest in the Super Fund A.
That this Order have effect from the operative time and the operative time is the beginning of the day four (4) days after service of these Orders on the trustee.
That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (the SIS Regulations), the Court notes that the trustee of the Super Fund A must observe the operating standards under Part 7A of the SIS Regulations which include the roll over or transfer of:
(a)the withdrawal benefit of the non-member spouse in accordance with the request by Ms Jansson under r.7A.03D of the SIS Regulations, or
(b)the transferable benefit in accordance with the request by Ms Jansson under r.7A.06 of the SIS Regulations;
as the case may be.
That the Court notes:
(a)The amount to be taken as the value of the non-member spouse interest is calculated in accordance with the Part 7A of the SIS Regulations, and
(b)Any payments from Mr Olberg’s superannuation interest in the Super Fund A made after the trustee has observed its obligations under the operating standards under Part 7A of the SIS Regulations are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001.
That the solicitor for Mr Olberg shall forthwith cause a sealed copy of these Orders to be served on the trustee of the Super Fund A.
That Mr Olberg shall be and is hereby declared to be the sole and absolute owner at law and in equity as against Ms Jansson of:
(a)Any motor vehicle in his possession or name;
(b)The Ski boat registered number in his sole name;
(c)The trailer registered number;
(d)the two framed signed football jerseys of the (football team) from 2002 and 2003;
(e)shares in his sole name;
(f)Tools at the Property A property;
(g)All savings or monies in his possession, custody or control;
(h)Subject to Order 12, his contributions and accumulated entitlements with respect or arising from his membership of any superannuation fund, and
(i)His employment related entitlements including but not limited to annual leave, sick leave and long service leave.
That Ms Jansson shall be and is hereby declared to be the sole and absolute owner at law and in equity as against Mr Olberg of:
(a)Any motor vehicle in her possession or name;
(b)All savings or monies in her possession, custody or control;
(c)Her contributions and accumulated entitlements with respect or arising from her membership of any superannuation fund, and
(d)Her employment related entitlements including but not limited to annual leave, sick leave and long service leave.
(e)Subject to Order (18), the household contents.
That each party retain any liability in their sole name and indemnify and keep indemnified the other party with respect to such liability.
That each party hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
That pursuant to Section 81 of the Family Law Act 1975, the parties acknowledge that these Orders are intended to operate so as to finally determine the financial relationship between the parties to the marriage and to avoid any further proceedings between them.
Leave to relist the proceedings on 7 days notice in the event of any difficulty facilitating the above orders.
NOTATION:
The Court refers to its Orders declaring that the wife be declared owner of the household contents. Should the parties wish to divide in some manner the household contents, then they should endeavour to agree on an appropriate minor adjustment to Orders (2) and/or (4).
IT IS NOTED that publication of this judgment under the pseudonym Jansson & Olberg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5192 of 2017
| MS JANSSON |
Applicant
And
| MR OLBERG |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties’ relationship commenced in about 1985. They separated in about January 2015.
Presently the husband works as a (occupation omitted), and the wife works as a (occupation omitted). The husband is aged 55 years, and the wife is aged 56 years.
The parties had one child through their relationship, Mr M, born 1989.
The wife brought into the relationship one daughter from a prior relationship, Ms K. She was treated by the husband as his daughter during the parties’ relationship.
The parties purchased a house and land package at Property A in about 1986 and in about 1987 the parties and Ms K moved into the new property.
Both parties worked in paid employment during the relationship. There were occasions when the parties were unemployed between jobs. For example, the husband was not receiving an income in paid employment from about July 2012 for some five months before eventually receiving an income in paid employment with (employer omitted).
During the relationship, the parties each received redundancy or termination payments from their former employers and they each applied such sums towards the accumulation of their assets, including towards the Property A property and mortgage loan repayments.
The parties had an arrangement during their relationship that the wife’s salary went to pay the mortgage loan and the husband’s salary paid for other household expenses, including utilities and council rates. This arrangement was usually facilitated by each of the parties.
The parties more or less kept their bank accounts separate, and usually it was only the wife the transacted upon a joint account the parties held.
The mother was the primary carer of the child Mr M during the relationship. She was also Ms K’s primary carer. And she was the primary homemaker during this period. On the husband’s own admission, when the child Mr M was young, the husband was very involved in sport and played a lot of (sport omitted) which took him away from the home on many evenings. The husband states that he realises that “this must have been difficult for (the wife)”. When the child Mr M became older, at ten years, the husband took him into his (sport) games and training. When the child Mr M reached his teenage years he preferred to play games on the PlayStation rather than participate in sports.
The husband occasionally mowed the lawns and undertook some minor maintenance tasks inside and outside the home during the relationship.
The husband financially supported Ms K during the relationship and, again, treated her as his daughter. He provided some assistance to the wife in caring for Ms K but, again, the wife was that child’s primary carer.
During the parties’ relationship the husband made some contributions towards the improvement of the property at Property A. For example, he built a carport, having obtained materials at a discount from his employer. Later he built a garage and awning at the property, again obtaining materials at a discount. The wife contributed $6,000 of her $9,000 redundancy package received in about 2004 towards the garage materials. The husband erected roofing between the garage and the side of the house, purchasing materials at a discount from his work. At one stage during the relationship he painted the house.
The property at Property A was renovated in various respects during the relationship. For example, a new kitchen and bathroom were installed, and the parties’ mortgage loan was increased accordingly.
Post separation, separation being in about January 2015 with the parties living under one roof, the wife solely made mortgage repayments, and it was common ground that her total repayments from separation to date are about $44,760. Over the same period, it was common ground that the husband’s contributions towards council rates and utilities total sum $17,500. During this period each party usually paid for their own consumables, such as food.
In April and September 2015 the wife drew down $4,000 in total from the parties’ mortgage account to pay her own bills.
As at 31 December 2014 the husband’s superannuation balance was $129,327. As at the same date the wife’s superannuation balance was $36,258.
Property adjustment
Pursuant to section 90SM(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), in property settlement proceedings, the Court may make such Order as it considers appropriate, in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them, altering the interests of the parties to the de facto relationship in the property. Such Order may include an Order requiring either or both of the parties to the de facto relationship to make, for the benefit of either or both of the parties to the de facto relationship, such transfer of property as the Court determines.
The Court, in determining property proceedings, should firstly identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property that is available for distribution between them. The Court should then determine whether it is just and equitable to make an Order altering the parties’ interests in such property. If the Court is satisfied that it is so just and equitable, the Court should then consider the contributions made by each of the parties pursuant to section 90SM(4) of the Act before looking at their future needs by reference to the factors set out under section 90SF(3) of the Act.
Balance sheet
The following balance sheet was agreed upon by the parties, during the course of the hearing, representing amendments to their earlier joint balance sheet, exhibit A:
| Ownership | Description | Wife/de facto partner’s value | Husband/de facto partner’s value | ||
| ASSETS | |||||
| 1 | J | Matrimonial Home – Property A | 730,000 | 730,000 | |
| 2 | W | Car – Motor Vehicle M | 500 | 500 | |
| 3 | J | Household contents | 7,500 | 7,500 | |
| 6 | H | Shares | 6,888 | 6,888 | |
| 7 | H | Ski Boat and Boat Trailer | 10,000 | 10,000 | |
| 8 | H | Football Jerseys – Collectable | 1,900 | 1,900 | |
| Total | $756,788 | $756,788 | |||
| LIABILITIES | |||||
| 11 | J | Mortgage Matrimonial Home – Bank 1 | 146,656 | 146,656 | |
| Total | $146,656 | $146,656 | |||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Wife/de facto partner’s value | Husband/de facto partner’s value | |
| 13 | W | Super Fund B | Accumulated Interest | 78,491 | 78,491 |
| 14 | H | Super Fund C | Accumulated Interest | 203,115 | 203,115 |
| Total | $281,606 | $281,606 | |||
Accordingly, as at trial date, the Court finds the parties’ net non-superannuation assets to be $610,132. As at trial date, the Court finds the parties’ superannuation assets to be $281,606 as at trial date. The total of these assets is $891,738.
Section 90SM (3) of the Act
The Court is satisfied that it is appropriate in this case to alter the property interests of the parties in light of the breakdown of their de facto relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity. The parties join in seeking Orders for property adjustment.
Contributions
The Court refers to the case law dicta below, relating to section 79 property proceedings, and which are relevant to these de facto property proceedings under the Act.
In In the Marriage of Harris (1991) 104 FLR 458 the Full Court of the Family Court of Australia said in assessing contributions:
The task of the court in proceedings under section 79 is not akin to an accounting exercise. To borrow a phrase used by McClelland J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to section 20 of the De Facto Relationships Act 1984 (NSW):
...
the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.
In Dickons & Dickons [2012] FamCAFC 154, the Full Court said:
23. We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
24. There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26. The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
At the commencement of cohabitation, neither party had any assets of significance, including superannuation.
The Court finds that, during the parties’ relationship up until separation in January 2015, the parties’ financial contributions, both direct and indirect, towards their relationship assets, including the property at Property A and their respective superannuation interests, were approximately equal.
The Court finds that the husband made contributions by way of physical labour towards improvement of the property at Property A but observes that these contributions were during relatively short discrete periods during the relationship, noting that the parties’ relationship spanned the period from about 1985 to January 2015. The Court also takes into account the husband’s occasional lawn and maintenance work at the property up until separation and the wife’s maintenance around the property post-separation to trial.
The Court finds that the wife’s homemaker and parent (the Court only referring to the child Mr M in this context) contributions during the relationship were superior to the husband’s contributions in this regard, with the wife providing the significant majority of such contributions. This was a particularly significant contribution by her during this long relationship.
The Court finds that neither party made any significant direct or indirect financial or non-financial contributions to the other party’s superannuation entitlement post separation to trial date. Neither party made submissions to the contrary.
Each party’s superannuation entitlement increased significantly post separation to date.
The wife’s superannuation at separation was $36,257. The husband’s was $129,327 at separation. At trial date, the wife’s is $78,491 (an increase of $42,234 from separation). The husband’s is $203,115 (an increase of $73,788 from separation).
Between separation and trial date, the parties’ respective financial contributions towards the Property A property, direct and indirect, have been unequal: the wife’s mortgage repayments have been about $44,760, whereas over the same period, the husband’s contributions towards council rates and utilities were about $17,500.
The Court notes the parties’ differing contentions as to the contributions assessment of the parties’ respective relevant contributions under section 90SM of the Act.
The Court, assessing contributions in a holistic manner, assesses the parties’ contributions at 52.5% in the wife’s favour relating to the total asset pool, comprising both non-superannuation assets and superannuation assets, of $891,738. This results in a disparity of $44,586 in favour of the wife.
Section 90SF(3)
The wife submitted that there should be no adjustment, noting she had contended for a contributions assessment finding of 55% in her favour.
The husband submitted that there should be an adjustment of at least 5% in his favour, by reason of the husband’s inferior income earning capacity, his cardiac condition, the wife’s drawdown of $4,000 from the mortgage loan post separation, and the husband’s contribution towards the financial care and support of the wife’s child Ms K.
The parties are aged in their mid-fifties.
The wife is in reasonable health.
The husband suffers from, in particular, chronic congestive cardiac failure. The Court refers to the medical evidence before the Court.
In 2009 he spent a month in hospital for treatment for this condition. Thereafter he was prescribed medication and saw the cardiac specialist every three months for monitoring. In July 2017 his condition flared up and he spent a week in hospital in 2017 and five weeks off work recovering.
Before his admission into hospital, in April 2017, his cardiologist reported that the husband does have significant left ventricle impairment, with the husband feeling poorly with shortness of breath, which he has not had for several years.
In early July 2017, just before his hospital admission, his cardiologist reported that he was not really able to work at that moment as his job involved (duties omitted), which the husband just could not cope with.
In summary, the discharge summary from hospital dated 20 July 2017 states that the husband, suffers from severely dilated left ventricle with severely decreased systolic function, and takes numerous medications. Nevertheless, that summary states that on 13 July 2017 the husband was well and cleared for discharge with follow up by his general practitioner and cardiologist, and was to continue regular medications.
Post discharge from hospital, the husband states that his medication has been changed and his energy levels have improved. He states that his work as a (occupation omitted) entails significant physical exertion. He works 40 hours per week. On some days he feels exhausted, particularly if he has to do a lot of walking at work. He states that he will not be able to obtain employment as a (occupation omitted) again due to his age – the Court notes that the husband began work with (employer omitted) in 1993 and ceased working with them 2012.
The wife submits that there is no express medical evidence indicating the husband’s prognosis for his cardiac condition, nor is there any express medical evidence addressing work capacity. The Court notes that the general practitioner’s report of 28 June 2018 states that the husband will require lifelong medications for his conditions.
Whilst there is some force to this submission, the Court, having reflected on the evidence before the Court relating to this issue, as discussed above, is nevertheless of the view that such evidence, considered as a whole, indicates that there is a real risk (the Court noting that in the absence of discrete medical evidence quantifying that risk it cannot estimate such risk to be any greater) that the husband may have periods of work incapacity by reason of this cardiac condition, that he may well have days off work until retirement to attend treating doctors, and that if he was to become incapacitated for the (occupation omitted) work by reason of that condition, his ability to return to (employment omitted) work is absent. There should be a quite modest adjustment accordingly in favour of the husband, noting further in this context that should the husband become partially or totally permanently incapacitated he may well be able to access his superannuation entitlement.
The parties’ superannuation entitlements are quite disparate; the husband’s present entitlement is $203,115 whereas the wife’s is $78,491.
The Court finds the parties’ present income earning capacities to be fairly comparable.
In the view of the Court, the justice of the case does warrant a modest adjustment to take into account the husband’s financial assistance and care for the wife’s child Ms K, with such assistance being brought to account under section 90SF(3)(r) of the Act. It should be a “modest” adjustment in this context because the Court finds that the wife provided the significant majority of parenting care for Ms K during her childhood years, and the husband does not particularise the extent of his financial support for Ms K.
The Court takes into account in the husband’s favour the fact of the wife’s drawdown of $4,000 post separation to pay for her personal expenses.
The Court notes the parties’ assets in the final balance sheet.
Both parties own motor vehicles. The wife has some $95,150 in total debt which did not enter the final balance sheet.
The husband has some $45,346 of debt which did not enter the final balance sheet.
The above matters warrant an adjustment of 2.5% in favour of the husband, resulting in an adjusted contributions assessment of 50% to the wife and 50% to the husband. 50% of the net value of the total assets ($891,738) is $445,869.
Justice and equity
Section 90SM(3) of the Act
The wife seeks to retain the property. She does not seek a super split. She is able to borrow up to $400,000 to buy out the husband’s interest in the property.
The husband, if the wife is to retain the property, seeks a cash payment in return for his transferring his interest in the property to the wife. He seeks a super split in the wife’s favour in the sum of $46,535.
With the wife retaining the property at Property A, net $583,344, and retaining the assets now in her name, including car, household contents and her superannuation asset, being a figure of $669,835, absent a super split, she will be required to pay the husband $223,966, noting that each party will receive $445,869 pursuant to the Court’s adjusted contributions assessment. This will result in the wife needing to refinance: the current mortgage loan that she will have to take over if she is to buy out the husband’s interest in the property is $146,656 together with a cash payment to the husband of $223,966, a total of $370,622. The wife has an ability to borrow up to $400,000.
With the husband needing to rehouse, and receiving a cash payment of $223,966 from the wife, he will likely need to borrow a fairly significant sum, and bearing in mind that there is some uncertainty relating to his ability to maintain regular employment by reason of his health condition.
He would be assisted accordingly by receiving an additional cash payment by the wife in return for a super split in her favour from his superannuation fund. (The Court has not overlooked the possibility that the husband, if partially or totally permanently incapacitated for employment, may be able to resort to his superannuation asset. Nevertheless, there is arguably an intermediate situation in which the husband is neither partially or totally permanently incapacitated for employment but is potentially experiencing intermittent periods of time off work by reason of his health condition.)
In the above circumstances, the parties will be afforded justice and equity by ordering a super split from the husband’s superannuation asset of $20,000 in favour of the wife, thereby requiring the wife to make a cash payment to the husband of $243,966, should she wish to retain the property. The wife’s cash payment of $243,966 plus the existing mortgage debt of $146,656 will result in an affordable refinance for the wife of some $390,622.
The wife should be given 42 days to buy out the husband’s interest in the property, otherwise the property should be sold; when one takes into account the assets (apart from the property) that will remain in each parties ownership, including their adjusted superannuation entitlements, the wife will need to receive, in addition to 50% of the net proceeds of sale of the property, an additional sum of $47,706, with the balance of the net proceeds of sale remaining to be paid to the husband.
The Court is satisfied that Orders reflecting the above matters will afford justice and equity to the parties.
I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 17 September 2018
Key Legal Topics
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Family Law
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Equity & Trusts
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