Kay & Schofield
[2024] FedCFamC2F 195
•19 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kay & Schofield [2024] FedCFamC2F 195
File number(s): PAC 1415 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 19 February 2024 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Kennon & Kennon (1997) FLC 92-757
Lotta & Lotta [2017] FamCA 50
Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 8 February 2024 Place: Parramatta Solicitor for the Applicant: Barber Lawyers Counsel for the Respondent: Mr Spicer Solicitor for the Respondent: Vaikom Law ORDERS
PAC 1415 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAY
Applicant
AND: MR SCHOFIELD
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
19 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Within 60 days of the making of these Orders the following shall occur simultaneously:
(a)the husband shall pay to the wife the sum of $478,417;
(b)the wife shall do all acts and things and sign all documents necessary to cause the transfer to the husband of all her right title and interest in the property situated at and known as B Street, Suburb C, New South Wales (“the Suburb C property”);
(c)the husband shall do all acts and things and sign all necessary documents to discharge the mortgage secured over the Suburb C property and refinance that mortgage into his sole name.
2.Failing compliance with Order 1 herein, the husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the Suburb C property.
3.For the purposes of Order 2 herein, the sale shall proceed as agreed between the parties and, failing agreement as to the mechanism for the sale, the following provisions shall apply:
(a)The listing price for the Suburb C property shall be as agreed between the parties and if there is no agreement then the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of New South Wales;
(b)The Suburb C property shall be listed for sale by private treaty with estate agents as agreed upon between the parties and if there is no agreement then the estate agent shall be as nominated by the President of the Real Estate Institute of New South Wales;
(c)In the event that the Suburb C property has not been sold by or before a date 3 months from the date that the Suburb C property is listed for sale by private treaty, then the husband and wife shall make all such arrangements and do all such acts and things and sign all such documents and pay all monies equally as necessary to procure a sale by public auction of the Suburb C property upon the following terms:
(i)The auctioneer shall be as agreed upon between the parties and if there is no agreement then the auctioneer shall be as nominated by the President of the Real Estate Institute of New South Wales;
(ii)The auction shall take place within 3 months after the deadline date for sale by private treaty;
(iii)The reserve price shall, unless agreed upon the parties, be as proposed by the auctioneer;
(iv)The parties shall each pay and be responsible for payment of one half of the auction expenses payable before the Suburb C property's auction.
(d)In the event that the Suburb C property is not sold by auction or by private negotiation within 14 days after the said auction, then the husband and wife shall do all such acts and sign all necessary documents and shall pay all monies equally necessary to procure a second auction within a further 5 weeks of that date otherwise upon the same terms and conditions as apply to the first auction.
4.The proceeds of the sale of the Suburb C property shall be applied in the following order and priority:
(a)To discharge the mortgage secured over the Suburb C property;
(b)To pay all costs and expenses of the sale of the Suburb C property including legal costs and disbursements, agent’s commission, advertising and sale expenses;
(c)In payment of $33,950 to the wife (to enable her to discharge debts owed by her to 5 persons referred to in her Financial Statement filed 8 December 2023);
(d)The balance as follows:
(i)$401,771 to the husband;
(ii)$444,468 to the wife.
5.The wife, on or before settlement of the above sale of the Suburb C property, shall cause to be obtained from Ms D, solicitor, a duly executed Withdrawal of Caveat form in respect to the caveat registered over the Suburb C property, and provide such form to the purchaser’s representative at settlement of the sale of the Suburb C property.
6.The husband and wife shall forthwith do all acts and things and sign all necessary documents to transfer the parties’ joint NAB account into the husband’s sole name.
7.The Court allocates, as required by s 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $115,853 to the wife out of the husband’s interest in the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …).
8.In accordance with s 90XT(1)(a) of the Act:
(a)The wife (or the wife’s administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(b)The entitlement of the husband in the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …) (or the entitlement of such other person who becomes entitled to receive a payment out of the Wife’s superannuation interest) is correspondingly reduced by force of this Order;
(c)The Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …) (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(i)Calculate, in accordance with the requirements of the Act the entitlement awarded to the wife above;
(ii)Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …).
(d)This Order has effect from the operative time and the operative time is the fourth business day after the Order is served on the Trustee.
9.After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”) the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …) shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse’s interest to a complying superannuation fund of the wife’s choosing in accordance with SIS Regulations.
10.The Court notes:
(a)The value of the non-member spouse’s interest is calculated in accordance with the SIS regulations; and
(b)Any payments from the husband’s superannuation interest in the Superannuation Fund 1 of which the Trustee of the E Super Trust is the trustee (Account Number: …) made after the trustee has created a new interest in the wife’s name in the Superannuation Fund 2 (Member Number: …) are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
11.Subject to the above Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such parties at the date of the making of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's records thereof, insurance policies are deemed to be in the possession of the party named as the life insured, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlement.
12.That if either party refuses or neglects to sign, within 14 days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Federal Circuit and Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
13.Each party has liberty to apply in relation to the implementation or enforcement of these Orders upon 14 days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are Reasons for Judgment relating to a final property hearing held before the Court on 8 February 2024.
The husband and wife both appeared, legally represented.
PROPOSALS
The wife sought orders giving effect to a division of the parties’ net assets, including superannuation, of 55 per cent to the wife and 45 per cent to the husband.
The husband, by his proposed Minute of Order, sought orders, inter alia, that in return for the wife transferring her interest in the property at B Street, Suburb C to the husband, the husband pay the wife 50 per cent of the equity in that property. In relation to superannuation, he sought orders that effectively provided for the parties to share equally in their total superannuation assets.
MATERIAL RELIED UPON
The wife relied upon:
(a)Her affidavit filed 12 December 2023;
(b)Her Financial Statement filed 8 December 2023;
(c)Her Case Outline filed 6 February 2024.
The husband relied upon:
(a)His affidavit filed 22 January 2024;
(b)His affidavit filed 25 September 2023;
(c)His Financial Statement filed 29 May 2023;
(d)His Case Outline filed 7 February 2024.
The following documents became exhibits:
(a)Exhibit A: Wife’s proposed balance sheet filed 19 September 2023, as amended by consent;
(b)Exhibit B: Husband’s proposed balance sheet at pages 4 and 5 of Case Outline filed 7 February 2024, as amended by consent;
(c)Exhibit C: Husband’s proposed Minute of Order.
EVIDENCE
The Court has considered the documentary material relied upon by the parties discussed above, and the parties’ oral evidence. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out under the headings, “Balance Sheet”, “Contributions”, and “Section 75(2) of the Act”.
LEGAL PRINCIPLES
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
BALANCE SHEET
The wife’s balance sheet, Exhibit A, is now set out:
Ownership Description Applicant’s value Respondent’s value Assets 1 House B Street, Suburb C $1,200,000.00 $1,200,000.00 2 Furniture TV, fridge, computer, sofa, bed, etc $1,000.00 $1,000.00 3 Bank ANZ (Account ending in …07) $279.49 $ Total $ $ Liabilities 9 Personal loan: Mr G $12,450.00 - 10 Personal loan: Mr H $10,500.00 - 11 Personal loan: Ms J $10,000.00 - 12 Personal loan: Mr K $7,000.00 - 13 Personal loan: Mr L $3,500.00 - Total $43,450.00 Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 13 ATO $2,571.28 14 Superannuation Fund 1 $223,000 (As per original, blank rows omitted)
The husband’s balance sheet, Exhibit B, is now set out:
Property interests, superannuation and financial resources Description Ownership Applicant’s value Respondent’s value ASSETS 1 B Street, Suburb C Joint $600,000.00 $600,000.00 2 NAB Joint account Joint $83.48 $83.48 3 NAB account ending …61 Husband $75.22 4 Combank account ending in …30 Husband $75.22 5 Combank account ending in …42 Husband $0.86 6 M Ltd Country N Husband $345.00 7 Furniture husband 1000.00 $1,000.00 8 CBA Account ending in …68 Wife 9 CBA Account ending in …56 Wife 10 ANZ Account ending in …93 Wife 11 ANZ Account ending in …59 Wife 12 ANZ Account ending in …07 Wife $279.49 13 Motor Vehicle 1 Wife $31,485.00 14 Country N Deposit scheme Wife 15 Property (Land) in Country N At P Property, Region Q Wife $38,500.00 16 House in Country N, Region Q Wife $100,000.00 17 Gold Ornament Wife $40,000 Total LIABILITIES 17 Mortgage of Suburb C property Joint $159,906.78 $159,906.78 18 Credit Card Husband $19000.00 19 Personal Loan Husband $4,000.00 Liabilities subtotal SUPERANNUATION Name of Fund Type of Interest Member Applicant’s value Respondent’s value 25 Superannuation Fund 2 unknown $2571.00 26 Superannuation Fund 1 unknown unknown Superannuation subtotal TOTAL (assets – liabilities) TOTAL (assets – liabilities + superannuation) (As per original, blank rows omitted)
The agreed value of Item 1, the Suburb C property, was $1,200,000.
It was agreed in Court that the present value of the husband’s superannuation is $223,000.
The husband contended that the relevant separation date was about July 2021. The wife contended that the date of separation under the one roof was 5 December 2021. The Court accepts the husband’s asserted date of separation.
In respect to the wife’s liabilities set out in Exhibit A, totalling $43,450, opposed by the husband, the wife conceded that of such sum she had spent $9,500 in legal fees. That leaves a figure of $33,950. The wife asserts that this liability arose out of personal borrowings from five different people during the period from 18 May 2023 to 16 October 2023.
The wife asserts that she worked as a subcontractor for F Company from 2020 until mid-2023, when it appears she became unemployed.
The wife, in paragraph 102 of her affidavit filed 12 December 2023, asserts that she is currently unable to work due to PTSD, anxiety and major depression. She refers to her copy Centrelink medical certificate dated 31 October 2023 referring to these conditions impacting, inter alia, her work capacity. The medical certificate states that this incapacity will last from 31 October 2023 to 31 January 2024. The medical certificate refers to the date of onset of these conditions as being 19 January 2018.
In her affidavit at paragraph 102 she also states that as a result of her inability to work due to those conditions she borrowed some monies from a few of her friends to keep up with her basic living expenses and which is outlined in her Financial Statement. The wife’s Financial Statement filed 8 December 2023 refers to the above five different people as having lent her a total of $46,510.
The Court recognises that the wife had purchased vacant land in early 2023 for about $38,500 having borrowed monies from persons who appear to be unrelated to the five different people referred to above. The wife asserts that this vacant land was of significance to her family. No submission was made by the husband, and in any event the Court would not accept, that the wife should have sold this vacant land to meet her living expenses after her employment ceased in mid-2023.
The wife sold her Motor Vehicle 1 in late 2023 for about $10,000, because she had no money to live. The sale proceeds were spent on her general living expenses, and this is consistent with the above evidence.
The Court is of the view that the sum of $33,950 should form part of the final balance sheet as representing borrowings the wife obtained from third parties to enable her to meet her reasonable living expenses having become unemployed in mid-2023.
The husband contended that the full mortgage debt relating to the Suburb C property in the sum of $319,812 should be included in the final balance sheet. The wife’s balance sheet, exhibit A, did not refer to any mortgage debt at all. This mortgage debt was referred to in the husband’s financial statement filed 29 May 2023 (the husband’s 50 per cent share of the home mortgage debt therein stated to be $163,000). At paragraph 46 of the husband’s affidavit filed 25 September 2023 he refers to the mortgage on the Suburb C property being some $319,813. The wife alleges in paragraph 34 of her affidavit filed 12 December 2023 that in about 2021 the husband took out a personal loan of $20,000 from the NAB which was added to the balance of the mortgage. The wife alleges a conversation with the bank manager relating to a personal loan of the husband being added to the mortgage account and a conversation with the husband at the time she signed for the loan wherein he said, “I will keep the funds in my account for emergency support”. In the husband’s affidavit filed 22 January 2024 at paragraph 25 he responds to the wife’s above allegations stating, inter alia, that he did not have any personal loan from the NAB, and that the wife did not sign for a personal loan nor any top up of their home loan. The husband refers to the parties having two loan accounts with that bank which were both opened in June 2020. He annexes relevant bank statements pertaining to the two loan accounts and which do not reflect the parties’ borrowings with that bank increasing as alleged by the wife. The full amount of the parties’ mortgage loan indebtedness to that bank in the sum of $319,812 shall appear in the final balance sheet.
Item 13 in the husband’s balance sheet, the wife’s Motor Vehicle 1, in the sum of $31,485, shall not appear in the final balance sheet. The Court, again, accepts the wife’s evidence that she sold this car in late 2023 because she had no money to live. The sale proceeds of the car in the sum of $10,000 were paid into the wife’s ANZ bank account and the monies were spent on general living expenses.
Item 15 in the husband’s balance sheet, property in Country N, in the sum of $38,500 shall not appear in the final balance sheet. The Court accepts the wife’s evidence that this vacant land was purchased by the wife for about $38,500 in early 2023, being a date well past separation. The wife had acquired this property using personal loans as recorded in Annexure G to her affidavit filed 12 December 2023.
Item 16 in the husband’s balance sheet, a house in Country N said to be owned by the wife in the sum of $100,000 shall not appear in the final balance sheet. The husband’s counsel conceded there was no valuation evidence supporting this figure of $100,000. The wife in paragraph 32 of her affidavit filed 12 December 2023 asserted that she did build a house in Country N from funds provided by her mother. The father lives in this property and she does not own the land upon which this house is built.
Item 17 in the husband’s balance sheet, gold ornament of the wife in the sum of $40,000, shall not appear in the final balance sheet. There was no valuation evidence before the Court supporting item 17. Whilst the husband had asserted this item of property in his affidavit filed 25 September 2023, the wife had not asserted her ownership of such asset in her affidavit filed 12 December 2023 and nor had she included such asset in her financial statement filed 8 December 2023. The wife denied owning gold as alleged by the husband. There was no cross examination by either party on this issue.
Item 18 in the husband’s balance sheet, his credit card debt in the sum of $19,000, shall not appear in the final balance sheet. In the husband’s financial statement filed 29 May 2023 he refers to a credit card debt in the sum of $19,971. In his affidavit filed 25 September 2023 he refers to a credit card liability in the sum of $18,341. There was no relevant evidence adduced by the husband indicating that this credit card liability bore some relationship to the parties’ former matrimonial relationship, nor when such liability was incurred.
Item 19 in the husband’s balance sheet, his personal loan in the sum of $4,000, shall not appear in the final balance sheet. In his financial statement filed 29 May 2023 he referred to this debt from a lender Mr R. It was also referred to in his affidavit filed 25 September 2023. There was no relevant evidence adduced by the husband indicating that this liability bore some relationship to the parties’ former matrimonial relationship, nor when such liability was incurred.
The Court accepts the husband’s evidence relating to his purchase of land in Country N in 2013 for about $5,000 and sale of that land in 2016 for between $7,000 to $7,500.
The final balance sheet will be as follows:
Ownership Description Value Assets 1 J B Street, Suburb C $1,200,000 2 J NAB joint account $83.48 3 H NAB account ending …61 $75.22 4 H Commbank account ending …30 $20.36 5 H Commbank account ending in …42 $0.86 6 H M Ltd Country N $345 7 H Furniture $1,000 8 W Furniture $1,000 9 W ANZ account ending …07 $279.49 Total $1,202,804 Liabilities 9 J Mortgage for B Street, Suburb C $319,812 10 W Personal loans $33,950 Total $353,762 Superannuation Member Name of Fund Value 11 W Superannuation Fund 2 $2,571 12 H Superannuation Fund 1 $223,000 Total $225,571 Net Total Assets Total $1,074,613
Accordingly, the parties’ non-superannuation assets are $1,202,804. Liabilities are $353,762. Accordingly, the total for net non-superannuation assets is $849,042. The parties’ superannuation entitlements are $225,571. The net total asset figure is thus $1,074,613.
SECTION 79(2) OF THE ACT
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their 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.
CONTRIBUTIONS
The relationship of the parties spanned the period from 1996 to about July 2021; a relationship of about 25 years.
Both parties contended that the Court should find that the parties’ contributions were equal over this long marriage. The Court concurs with such contention.
SECTION 75(2) OF THE ACT
The wife contended for an adjustment under s 75(2) of 5 per cent, by reason of, in particular, her mental health issues. The husband contended that there should be no adjustment in favour of either party.
The wife is aged 47 years. The husband is aged 50 years.
The total length of the parties’ relationship was some 25 years. The 2 male children of the relationship are now adults, aged 19 and 22. They live with the husband in the former matrimonial home at Suburb C. It appears the wife does not have contact with the adult children.
The husband continues to pay the mortgage loan.
The husband has a significant disability; he adduces numerous medical reports in this regard. The report of Dr S dated 27 March 2023 refers to the husband suffering from a medical condition. The doctor states that the husband will have difficulty in his outdoor responsibilities as a professional even after the surgery that he may require. It states that he may have to look for a sedentary job. It states that he will need lifelong physiotherapy and exercise. The husband in fact changed employment to work as a supervisor and he is now looking for an office job. He explains that surgery may cost him at least $40,000.
The wife is unemployed. The wife’s Centrelink Jobseeker benefits are $888 per fortnight. The wife rents premises in the sum of $320 per week. Her other expenses are some $129 per week. She graduated and has a postgraduate qualification from a tertiary establishment in Country N. During the relationship she worked inter alia in various service industry roles.
The wife asserts she suffers from PTSD, anxiety and major depression and is thereby currently unable to work. Her Centrelink medical certificate dated 31 October 2023 refers to these conditions and states that her incapacity to work, study or participate in activities (by reason of these conditions) will last from 31 October 2023 to 31 January 2024. She takes medication which she has been taking since June 2023. She does adduce other supportive health professional evidence relating to her stated conditions.
On balance, the husband probably still retains a greater income earning capacity compared to the wife. Historically his income has been significantly superior to the wife’s employment income. He remains in work as a supervisor and is looking for an office job. The wife, though presently unemployed, in the future may possibly be able to obtain employment in fields in which she has previously worked, particularly if she continues with psychological treatment.
The wife asserts that the husband perpetrated family violence against her during the marriage. There was no significant cross examination of the wife relating to the above asserted family violence. The husband was cross-examined briefly by the wife’s solicitor in relation to previous ADVOs against the husband, to which the husband made a certain denial and gave reasons for accepting the terms of an ADVO relating to legal costs. The husband’s affidavit evidence asserts abusive behaviours by the wife towards him during the relationship and makes significant denials in relation to the wife’s assertions of family violence perpetrated by him.
The Court has had regard to all the wife’s evidence relating to asserted family violence including her affidavit evidence, medical and other health professional reports, ADVOs against the husband from 2012 and 2018, and conviction for common assault against the husband. On the balance of probabilities, the Court accepts the wife’s evidence relating to her assertions of family violence perpetrated against her by the husband.
However, the wife does not expressly assert that her contributions during the parties’ relationship were made more onerous by reason of the family violence perpetrated against her by the husband. Again, the wife for significant periods during the parties’ relationship was the primary carer of the children and she also worked in employment during the relationship finally ceasing work in mid-2023 having worked as a sub-contractor between 2020 and mid-2023. The Court is not persuaded that there should be any adjustment in favour of the wife under s 75(2)(o) of the Act by reason of this family violence. In reaching this conclusion the Court has had regard to relevant legal principle as set out in the decision of Kennon & Kennon (1997) FLC 92-757.
The husband’s Financial Statement filed 29 May 2023 states that he receives $2,350 in wages before tax each week. He is employed as a supervisor. He has completed tertiary education in Country N in his relevant industry.
The wife owns land in Country N purchased in early 2023 for $38,500 and this property did not enter the final balance sheet. However, she did borrow monies to purchase this property. The Court observes she currently rents her accommodation. The husband has a credit card liability in the sum of about $19,000 together with a personal loan liability in the sum of $4,000, which sums did not enter the final balance sheet. Again, it is possible that he may have to pay for surgery in the future. The adult children, who have mental health issues, live with the husband and he continues to meet their expenses including tuition fees and will do so until they complete their graduation and get a good job. These adult children will need one year and four years respectively to complete their degrees. The wife has no contact presently with the adult children.
Taking into account the above discussed matters, there should be an adjustment in favour of the wife of 2.5 per cent. This results in an adjusted contribution finding of 52.5 per cent in favour of the wife and 47.5 per cent in favour of the husband. This results in a disparity of $53,730 in favour of the wife.
JUSTICE AND EQUITY
The wife’s 52.5 per cent of the net property pool including superannuation ($1,074,613) is $564,171.
The husband’s 47.5 per cent of the net property pool ($1,074,613) is $510,441.
The husband seeks to retain the former matrimonial home at Suburb C.
Should the husband retain:
(a)The Suburb C property, $1,200,000, less the mortgage debt, $319,812, leaving net $880,188;
(b)NAB joint account and his 4 bank accounts set out in the final balance sheet, $524;
(c)His furniture, $1,000;
(d)Superannuation (after a superannuation split) being 47.5 per cent of the parties’ total superannuation entitlements ($225,571): $107,146;
Being a total of $988,858,
Then he will need to pay the wife $478,417 ($988,858 less $510,441).
Should the wife retain:
(a)Superannuation (after a superannuation split) (52.5 per cent of $225,571): $118,424;
(b)Her furniture: $1,000;
(c)Her bank account, $279;
(d)The husband’s cash payment to her, $478,417;
Being a total of $598,120,
And retain her personal loans which entered the final balance sheet, $33,950,
Leaving net $564,170,
Then she will have assets representing her entitlement of 52.5 per cent of $1,074,613.
It is difficult to see how the husband can refinance an existing mortgage debt of $319,812, as well as borrow further monies to pay the wife (see above), $478,417.
In the event that the Suburb C property must be sold, leaving net proceeds of $846,238 (after the mortgage loan of $319,812 and the wife’s personal debts of $33,950 are paid from such proceeds) then:
Should the husband retain:
(a)NAB joint account and his 4 bank accounts set out in the final balance sheet, $524;
(b)His furniture, $1,000;
(c)Superannuation (after a superannuation split) being 47.5 per cent of the parties total superannuation entitlements ($225,571): $107,146;
Totalling $108,670,
Then he should receive $401,771 from the net proceeds of sale.
Should the wife retain:
(a)A superannuation split (52.5 per cent of $225,571): $118,424;
(b)Her furniture: $1,000;
(c)Her bank account, $279;
Totalling $119,703,
Then she should receive $444,468 from the net proceeds of sale.
In view of the above, the husband will retain, inter alia, superannuation of $107,146, and cash of $401,771. The latter sum may enable him to purchase real estate noting his work capacity, as discussed above.
In view of the above, the wife will retain, inter alia, superannuation of $118,424, and cash of $444,468 but less legal fees to be paid to Ms D solicitor (see below). The latter sum may enable her to purchase real estate noting her work capacity, as discussed above.
It was common ground that a caveat over the Suburb C property for outstanding legal fees owed by the wife to Ms D (the wife’s solicitor asserted Ms D was owed $10,463 having viewed an email from Ms D) would need to be removed prior to or at settlement of the sale of the Suburb C property. The husband sought an Order that the wife pay Ms D the outstanding fees to effect the caveat’s removal. It appears that the wife will likely be in a position to pay Ms D’s legal fees at least by settlement of the sale of the Suburb C property; such legal fees can be paid to Ms D from the sale proceeds of that property. An Order should be made to this effect.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes Orders accordingly.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 19 February 2024
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