KHALID & KHALID - [2019] FamCA 479

FAMILY COURT OF AUSTRALIA

KHALID & KHALID

[2019] FamCA 479

FAMILY LAW – PROPERTY – Where it is just and equitable to make an adjustment of the property interests held by each party – where there is a small property pool – where the Husband has entered into a deed of settlement with the Intervenor – where the Wife should not share in the debt – where the contributions are equal – where the considerations at s 75(2) weigh in favour of an adjustment for the Wife – where it is just and equitable to make the orders sought by the Wife.

FAMILY LAW – SPOUSAL MAINTENANCE – where the Wife sought $2,000 per month – where the Wife sought the payment as periodic payments of future sums as part of the property settlement or as spousal maintenance – where the Wife demonstrated a need for spousal maintenance but not as to quantum – where the Husband demonstrated a capacity to pay for spousal maintenance but not as to quantum – where the evidence was insufficient to ground the making of a spousal maintenance order – where no order for spousal maintenance is made.

Family Law Act 1975 (Cth) ss 72, 75, 79.

Bevan v Bevan (2013) 49 FamLR 387
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner v Steinbrenner [2008] FamCAFC 193
Wynona & Friend [2011] FamCAFC 6

APPLICANT:

Ms Khalid

RESPONDENT:

Mr Khalid

INTERVENOR:

U Lawyers

FILE NUMBER:

CAC

128

2014

DATE DELIVERED:

19 July 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

26 & 27 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms J Haughton

SOLICITOR FOR THE APPLICANT:

Infinity Legal

SOLICITOR FOR THE RESPONDENT:

Self-representing

Orders

That the remaining proceeds of the sale of the property known and situated at Section …, Block …, Deposited Plan …, Suburb AA in the Australian Capital Territory, being the sum of $26,046.31 are the property of the Respondent Wife.
The parties forthwith do all things necessary to cause the funds referred to in the above order to be paid into an account at the Wife’s direction.
In accordance with section 90XT(1)(b) of the Family Law Act 1975 (Cth) (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of Mr Khalid from his interest in the BB Superannuation ('Plan') -… under the Y Superannuation Savings Trust (Fund), Ms Khalid is entitled to be paid by the Trustee of the Y Superannuation Limited Trustee 70 per cent of the splittable payment, and there is a corresponding reduction in the entitlement Mr Khalid would have had but for these Orders.
The Operative time for Order 3 is four days after the service of sealed final Orders on the Trustee.
In accordance with section 90XT(1)(b) of the Act, whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of Mr Khalid from his interest in the DD Superannuation Fund, Ms Khalid is entitled to be paid by the Trustee of the DD Superannuation Fund 70 per cent of the splittable payment, and there is a corresponding reduction in the entitlement Mr Khalid would have had but for these Orders.
The Operative time for Order 5 is four days after the service of sealed final Orders on the Trustee.
That except as otherwise provided in these Orders:
(a) The Applicant Husband be entitled to be the sole legal and beneficial owner of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of him respectively; and
(b) The Applicant Husband be solely liable and indemnify the Respondent Wife against any liability encumbering any item of property, or any other liability, to which the Applicant Husband is entitled pursuant to these Orders.
That except as otherwise provided in these Orders:
(a) The Respondent Wife be entitled to be the sole legal and beneficial owner of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of her respectively; and
(b) The Respondent Wife be solely liable and indemnify the Applicant Husband against any liability encumbering any item of property, or any other liability, to which the Respondent Wife is entitled pursuant to these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalid & Khalid has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 128 of 2014

Ms Khalid

Applicant

And

Mr Khalid

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Khalid, the Applicant Wife, and Mr Khalid, the Respondent Husband.
The current proceedings concern property and spousal maintenance applications brought by the Applicant Wife.
The parties were married in India in 2007. The parties moved to Australia in 2017 and were remarried in Australia in 2007. The parties separated on a final basis on 29 April 2014 and divorced in 2015. There is one child of the relationship, D, born in 2009. D lives with the Wife, but is the subject of an as yet unresolved dispute between the parties. There is another child from the Wife’s previous marriage, C, born in 2005, whom the parties raised as their child. C also lives with the Wife. The Husband has remarried and has another child.
The Intervenor in these proceedings is the liquidator for I Holdings Pty Ltd, a company operated by the Husband and his friend, Mr W. The Intervenor has entered into a deed of settlement with the Husband that requires the Husband to pay proceeds from these proceedings to them, and otherwise make payments to them.

Orders Sought

By way of the Wife’s Minute of Orders Sought (contained at Exhibit W7), provided at the start of final submissions, the Wife seeks the whole of the proceeds from the sale of a property in Suburb AA (in the sum of $26,046.31), monthly payments of $2,000 from the Husband for a period of 24 months, and 70 per cent of the Husband’s superannuation.
The Wife initially sought periodic payments of future sums as a property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (the Act), on the basis that the Husband had retained funds from the marriage. However, it was conceded in final submissions that this claim could not be sustained. The payment was then pursued as spousal maintenance pursuant to s 75 of the Act.
The Husband sought that the Wife’s applications be dismissed.
The Intervenor sought no particular orders, but sought that the Court consider the effect of any orders upon the ability of the creditor to recover the creditor’s debt, as owed by the Husband.

Material relied upon

The Wife relied upon the following:
a)Affidavit of Ms Khalid filed 14 August 2017; and
b)The Wife’s Financial Statement filed 20 April 2017.
The Husband relied upon the following:
a)Financial statement of Mr Khalid filed 29 May 2017.
The Intervenor relied upon the following:
a)Affidavit of Mr Rollo filed 5 May 2017.

Principles

When the Court exercises its discretion to alter the property interests of parties under the Act, it is to consider what is just and equitable. That is, the Court must be satisfied that it is just and equitable to make an order adjusting the property interests at all,[1] and to adjust them in a particular manner.[2]
[1] Stanford v Stanford (2012) 247 CLR 108 per French CJ, Hayne, Kiefel and Bell JJ [35] (“Stanford”); Family Law Act 1975 (Cth) s 79(2).
[2] Bevan v Bevan (2013) 49 FamLR 387 per Bryant CJ and Thackray J [86].
The first step requires the Court to identify “according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property.”[3]
[3] Stanford, [37].
Once the property interests have been identified, the Court is to consider the contributions of the parties as set out in s 79(4) of the Act. The assessment of contributions involves a qualitative evaluation that finds its expression in a quantitative result.[4] The Court will then consider if an adjustment should be made to the property as a result of the factors set out in s 75(2) of the Act. The Court will then consider the adjustment made through this process and assess whether the resulting property order would be just and equitable.
[4] Steinbrenner v Steinbrenner [2008] FamCAFC 193, [234], per Coleman J.
The principles governing spousal maintenance are found in s 72 of the Act. Pursuant to s 72, a party will be liable to maintain the other party if the other party is unable to support themselves, and the first-mentioned party is reasonably able to do so.

What are the existing interests of the parties?

The parties’ joint position was that there was no significant tangible property other than the proceeds from the sale of the Suburb AA property. While a balance sheet was submitted for the Wife, by the end of the trial the property position was non-contentious, and was as follows:
a)The Wife has Motor Vehicle 1 worth $5,000.
b)The Husband has home contents worth $3,000.
c)The Husband owes a sum of up to $175,000 to the Intervenor (pursuant to the deed of settlement). The Husband conceded that he owed a sum of approximately $500,000 to the Intervenor. However, the deed of release meant that he would only be liable to pay $175,000. The structure of the deed also meant that if the Husband did not receive $175,000 from the property settlement (which he cannot because it is not available), then he would only be liable to pay $100,000. The $100,000 would come from the property settlement, part payments made by the Husband each month, or a combination of both. It is unclear what amount of the debt the Husband has already paid.
d)Proceeds from the sale of a property previously held by the Husband at Suburb AA at $26,046.31.
e)The Wife has an outstanding loan from X Bank at approximately $1,500.
f)The Husband has two sets of superannuation, DD Super valued at 30 June 2016 at $46,893, and Y Superannuation valued at 26 May 2017 at $53,655, with the Wife having negligible superannuation of $559 with First State. The values of the Husband’s interests were agreed by the parties, the Husband having provided member information statements to the Wife’s solicitors in respect of the same, and it is inferred that formed the basis of the value.

The history of the parties

Apart from the brief history outlined above, the relevant history of the parties is as follows.
During the relationship the Husband was employed and then subsequently started his own company, I Pty Ltd.
The Wife worked within the home looking after the family and also engaged in some paid employment. In 2011, the Wife worked for a community business. Then later in 2011 or in 2012, for a period of about 18 months the Wife undertook work within the home receiving approximately $200 per week. The Wife says that the proceeds of this work went, in the case of the community business, towards paying for a trip to India, and the proceeds of her in-house work went to various expenses including lawn mowing and groceries and also to obtain items for her son C. The Wife asserted that she paid most of the expenses for the children from the money that she earned each month.
In relation to payments for C, the Wife said that she had not asked the Husband for money in relation to C, then accepted that she had asked for money for C, and then accepted that the Husband had given some money towards C. The Wife also received an amount for support for C from her previous partner.
It may be accepted that the Husband contributed to the support of C.
The Wife alleged that the Husband was controlling in respect of money. When questioned by the Husband, the Wife initially denied that they had held a joint account together but, when challenged as to how she was able to withdraw money while in India without an account, she accepted that they had held a joint account. The Wife’s evidence again varied to say that she did not know if the parties’ had a joint account or if her name was simply on the account, and said that the Husband had cancelled that account after a couple of months. The Wife’s claim in this respect is not made out.
The Wife says that during the relationship the Husband was violent to her, physically hurting her such that she felt that she was “walking on eggshells”. The Wife was not challenged about this. The Wife was also not challenged when under cross-examination she asserted that for a period of time other parents ceased to send their children to her in-home childcare because of the Husband becoming mad at her and hitting her. By this evidence the Husband’s conduct made the Wife’s contribution more difficult.
Following parties’ separation, the Wife moved into a refuge. The children came with her to the refuge, although for a period of time the Husband had the primary-care of D from September 2014.
Following separation, the Husband moved into a property that was being developed by his construction business.
Two properties remained and pursuant to Interlocutory Orders of Benjamin J dated 21 April 2016, the Wife was appointed trustee for sale of the properties at Suburb Q and Suburb AA, with the Husband to pay all outgoings pending sale. The Husband ceased making payments toward rates and toward the mortgage. Ultimately, the bank foreclosed and sold the properties. It was the Husband’s conduct that led to the sale in this manner, despite his protestations that the bank had previously been prepared to work with him and that, in contrast, the foreclosure occurred on the Wife’s watch.
The Husband’s business has, since the end of the relationship been liquidated, the proceedings involving the Intervenor as liquidator were resolved in the Victorian Supreme Court on 1 February 2017.
The circumstances leading up to the liquidation, including what money was, or was not taken from the company by the Husband remains unknown, in the context of abject failure on the part of the Husband to comply with disclosure obligations. Even in the circumstances of failures in disclosure, the evidence was insufficient to demonstrate that the Husband has retained proceeds from the business. It was not suggested to him that he had, and it was conceded on this basis that such an allegation could not be made out. It was also not shown that whatever money he accessed from the company was misused or wasted.
Following the separation, in June 2015 the Wife commenced studying. The Wife was challenged, and implicitly criticised, as to why she had not sought employment or commenced study at an earlier time following the separation of the parties. She agreed that the time before she commenced study was wasted time, but pointed to the various challenges that she has faced since the end of the relationship. She noted the fact that she had been referred to counselling by her general practitioner, was dealing with Court proceedings including in relation to contraventions of child related orders by the Husband and that, generally, she had a lot to deal with during that period. It is reasonable to expect the Wife to take time to establish herself following the end of the relationship.
The Wife ultimately finished the practical component of her course in February 2016 and received a qualification in April 2016. During the period of study her course ran from 9am until 3pm. After that she looked after the children, and then, after that, completed her study in relation to the course. This caused her, she said, to be up until 3am or 4am before recommencing again the next morning. This is indicative of a lack of capacity on her behalf to earn further income at this time.
Sometime after obtaining the qualification the Wife travelled to India, between November 2016 and January 2017. In between getting the qualification and travelling to India the Wife obtained a permit (to enable her to engage in the employment) but did not actually seek employment, wanting to have a break. She accepted that the child support that she was receiving, along with the Centrelink payments were enough to live on during that time and that she had, in fact, been able to save money towards the trip to India.
The Wife has subsequently been working. The nature of that work is casual although she hopes eventually to obtain a contract and then a permanent position. The casual nature of the work means that she might only receive notice in the morning that she is to work that day, or perhaps the day before that she will work the following day. Although this employment started off slowly, in recent times it has seen her working five days per week. The nature of the benefits that she receives means that her New Start Allowance decreases as she has more work. She described her current standard of living as “ok”.
The Husband cross-examined the Wife about her need for spousal maintenance. She initially said that she needed the amount because “I’ve got children and everything”.[5] When further asked about her need for spousal maintenance the Wife asserted that she needed it in order to take the children to activities so that they could have fun, to take them on holidays and to purchase videogames for her son. Consistently the Wife answered that her desire for spousal maintenance was so that she could provide more for the children and that she was struggling with the money that she was currently on, in particular to provide further for the children. The Husband disputed this asserted struggle, on the basis that her bank statements showed that for a period from August 2017 until the time of the proceedings her bank account had never fallen below the $900 mark. The Wife disagreed thinking that it had fallen to $300 or $400 but accepted, on examining the bank statements, that it had not. The Husband suggested that this showed that the Wife was not in fact struggling.
[5] Transcript 26 April 2018, 78.
However, it should be noted that the Wife is in casual employment and unexpected expenses arise. A buffer of $900 is neither excessive nor does it rebut the notion that the Wife struggles financially.
The Wife also said that she needed spousal maintenance in order to be prepared for whatever happens next, pointing to the uncertainties of life. Her position is that because she is on a casual income she cannot rely on a steady payment.
The Wife was further challenged as to her requirement for spousal maintenance on the basis that she was able to sometimes eat out. The Wife asserted that this was once a month and at the request of the children. This does not speak of an excess capacity on the Wife’s part. It was a somewhat odd attack by the Husband, given his acceptance that he organised an afternoon tea for their daughter D for her birthday at a hotel which cost $425, and that he agreed that he had engaged in various activities such as visiting a Zoo with D, and taking D to the snow. None of these activities should be criticised. They do, however, illustrate that the Husband’s criticism of the Wife was misplaced.
The particular item that the Wife indicated that she was struggling with related to her car which had recently been in an accident. She asserted that she may need a new car because she was having problems with her car following the accident.
When further asked about the spousal maintenance amount of $2,000, and as to why that particular sum was requested, the Wife accepted that she had not calculated her expenses and vaguely indicated that she would “probably go for a car or something like that”.[6] She accepted that she had reached that amount on the basis of the Husband's income.
[6] Transcript 26 April 2018, 91.

Despite the Wife’s emphasis on the potential use of maintenance for the children, counsel sought to characterise these payments as being related to her support on the basis that payments to her would then free up income to be used in relation to the children, and also that her expenses were in some senses inextricably entwined with expenses relating to the children.
The position then is that the Wife is living on a precarious level of income. She clearly has to go without in order to make ends meet. She is on a means tested benefit, although it was not made clear the degree to which her income was sourced from that benefit.
It may be accepted that the Wife has established that she has some need for spousal maintenance in order to reasonably support herself. What has been left unclear is the extent of this reasonable need. This is in part unclear because the degree to which she receives a means tested benefit (which must be disregarded as income for these purposes) was not established. The degree to which the Wife sought support for herself as opposed to the children was also not established. The degree to which the Wife is unable to support herself was not established. Her object, for the large part of her evidence, was to secure further funds for the children. Even accepting that to some degree these are entwined, spousal maintenance must be directed to the support of the Wife. The degree to which this was needed was not established.
The Husband is currently on an income of approximately $250,000 per year. While he asserts that his expenses outweigh his income, such as to amount to approximately $300,000 per year in expenses, there is reason to think that he still has excess capacity. There can be no doubt of the debt owed the liquidator. However, the Husband failed to provide adequate corroboration in respect of the other debts that he asserted. While some bank records were provided, he did not comply with requests for the production of documentation to support the various other debts. He did not call evidence from the people to whom he says he owes money, such as his sister and his various friends. The banks records that he produced, for example in relation to payments to his sister, did not demonstrate that his payments were in respect of some sort of debt. What the records did show is that whatever payments were being made were at a far lower rate than that asserted in the Husband’s financial statement.
One particular example identified by the Wife was at item 29 on the Husband’s Financial Statement. There he claimed the payment of a set of liabilities being loan repayments to GG Bank, HH Bank, JJ Pty Ltd, EE Business, T Insurance, KK Lawyers, Mr W and Mr LL. A number of these debts are no longer in existence, in particular the debts to GG Bank and HH Bank.
Further, the debt repayments the Husband asserted in his financial statement, being a weekly payment of $1,215 appeared, on analysis of his bank statements to in fact be a monthly payment. That is, he overestimated the payments by a factor of approximately four.
A further reason to reject the Husband’s position that he lacks capacity to pay spousal maintenance, was that, despite a claimed lack of excess capacity, the Husband has entered into a rental agreement for his use of Motor Vehicle 2 in the sum of approximately $1,400 per month, (although he also asserted that the true after tax benefit price of this would ultimately be less than that). If his financial statement was even close to accurate, then he had no capacity to make such payments for the car rental.
From these matters it may be taken that the Husband has the capacity to pay spousal maintenance. His expenses do not outweigh his $5,000 per week average income. However, the extent of that capacity is unclear and was not established. That is, it may be accepted that he has some capacity to pay spousal maintenance. The difficulty is that the quantum of such a capacity has not been adequately established.

The claim for periodic payments

The Wife seeks that the Husband make periodic payments a rate of $2,000 per month for a period of 12 months from the date of the orders. She provides two bases for making such an order. The first is that she says that such payments ought to be made pursuant to s 79 as an adjustment of the parties’ property interests. The second is that she says that the payments should be made, if not on the above basis, by way of spousal maintenance.
The first of these justifications hinged upon the notion that there is property that remains available, outside the amounts contained in the balance sheet, and outside the amounts disclosed by the Husband, that could be the subject of such a distribution. This was predicated upon the Husband’s apparent use of significant funds from the business that he previously operated, in the context of his failure to provide documentary evidence to show what did or did not occur with the funds. It may be observed that contrary to both court directions and with his obligations under the rules, the Husband produced very little material to substantiate the many financial claims that he made. It was said that because of these facts it could be inferred that there remains property in existence.
The fatal difficulty with this approach is that it required such a proposition, that is that there was undisclosed property still in existence, to be put to the Husband. That did not occur. In those circumstances a finding that there remains such property is not open. This was accepted by the Wife in final submissions.
As to the second basis, that is that the payments be pursuant to the maintenance power, two preconditions need to be met. That is, pursuant to s 72 of the Act, the Wife must establish both a reasonable ability on the part of the Husband to pay maintenance and that she is unable to support herself adequately.
Given the conclusions reached above, while it may be concluded that the Husband has a capacity to support the Wife, and the Wife a need for that support, the evidence did not establish, on either limb, the quantum in a manner sufficient to ground the making of a spousal maintenance order.

The s 79 adjustment

This leaves the adjustment of property. In this case it is just and equitable to make an adjustment of the property interests. The parties cooperated through their relationship in performing different roles in the family, with all of the most significant property interests now being held by the Husband despite that cooperation. While this did not impact upon the parties during this period of cooperation, now that it has come to an end an adjustment is justified.
The only property of any substance are the superannuation interests held by the Husband in two funds totalling approximately $100,000, and the proceeds held from the sale of the property at Suburb AA of $26,046.31.
The Wife seeks the whole of the proceeds of the sale of the property at Suburb AA and 70 per cent of the Husband’s superannuation.
This property needs to be considered in the context of the debt owed by the Husband, flowing from the business operated during and after the relationship which has now apparently failed.
The Intervenor asks that the debt, in accordance with s 75(2)(h), which, by operation of s 79(4) of the Act includes as a relevant consideration to the exercise of the s 79 discretion:
The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant.
As a matter of practical reality, the effect of the order sought by the Wife would mean that the proceeds for Suburb AA would go to her rather than to the Intervenor. This does not equate to the Intervenor not being paid, but rather to a delay in the finalisation of the payment to the Intervenor, who is entitled to receive $1,000 per month from the Husband until the amount is paid. Effectively the orders sought by the Wife would result in the Intervenor not receiving the final balance for an additional two years.
The general approach in relation to liabilities is that ordinarily parties will share the economic ups and downs of a relationship. There are, however, aspects of this debt that tell against a sharing of the debt as an economic down flowing from the relationship. While it is true that the Husband has established that the debt exists (by virtue of the material filed by the Intervenor), he has failed to file any material to explain how the debt came about or what in particular the debt relates to, other than the business that he ran with another person. Perhaps it was in existence during the relationship, or perhaps it arose after the end of the relationship. It is certainly a debt that crystallised after the end of the relationship in the entry into the deed of settlement with the Intervenor. How the settlement, and how the debt came about, remain a mystery, as does what caused the debt. They remain a mystery because the Husband did not explain them.
In Bevan & Bevan the Full Court observed that s 75(2)(o) “gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.”[7] Whether the debt here is considered such a disposal or otherwise, the scope of s 75(2)(o) is broad enough to take into account the above matters in considering whether, as a question of what is just and equitable, the Wife should now bear some sort of burden for the debt. Under the above circumstances it is not appropriate to conclude that the Wife should share in this particular economic down that has been encountered.
[7]Bevan v Bevan (2013) 49 FamLR 387.
In terms of contributions made by the parties, there are differences between them. Apart from the parties undertaking differing roles which did not distinguish the degree of their contributions, there are three other matters of distinction. The first is that the Husband contributed to the upkeep of the Wife’s son from a previous relationship. The second is that, pending the resolution of the property proceedings, the Wife has had (for most part) the care of the parties’ child. The third is that the Husband’s conduct toward the Wife during the relationship made her contributions more difficult. On balance, the Husband and Wife’s contributions should be considered as equal.
When the s 75(2) factors are considered, it can be observed that there is a stark difference between what confronts the Wife and what confronts the Husband.
The Wife has the primary care and control of the child of the relationship, D who is aged 10 (in August 2019).
The Wife has the care of another child, as does the Husband.
The Wife works, with a weekly income of $629.20,[8] while the Husband has an estimated weekly income of $5,000.[9]
[8] Updated Financial Statement filed by the Wife on 20 April 2017.
[9] Financial Statement filed by the Husband on 29 May 2017.
In what is a very modest pool of property, these matters call for an adjustment that favours the Wife, in the terms sought by the Wife, being an adjustment that, while in cash terms, and in terms of superannuation will result in modest property being held by the Wife, will result in a percentage adjustment (disregarding the debt owed by the Husband) meaning approximately 76 per cent will go to the Wife.
In Wynona & Friend the Full Court emphasised the need to consider the real impact of orders, not just in percentage terms, but also in terms of the “real impact in money terms.”[10] In a small pool such as this, percentages do not tell the whole story. The adjustment is better understood, in terms of substance, in what will actually be received by the parties. Undertaking the task identified in Wynona, that is to “stand back and look at the reality of the percentage division” reveals what is in fact a modest adjustment in favour of the Wife, which is justified by her ongoing care of the child of the marriage in the context of her modest income and the Husband’s significant income.
[10]Wynona & Friend [2011] FamCAFC 6.
That will primarily be a contribution of superannuation and the proceeds of the Suburb AA property. The superannuation was sought as a splitting order. The Husband did not address me as to any issues arising from such a manner of dealing with the superannuation. He may need to consider opening a fresh superannuation account for the future lest his future contributions also go to the Wife in a 70-30 split.
Despite the debts he has to pay, the Husband’s income should see him in a position to secure strong superannuation entitlements over the longer term, and also see him in a position to recover and improve his financial position markedly in the medium term. The Wife is unlikely to find herself in such a position. She has a meagre buffer against contingencies, a car with problems and the care of the parties’ child.
The adjustment is unlikely to result in any significant long term consequence to the Husband other than to delay his paying off of debt. It will give the Wife some respite from her comparatively strained financial circumstances. These matters justify the adjustment sought by the Wife.

Conclusion

Orders will be made for the Wife to receive the proceeds from the Suburb AA property and for a division of the Husband’s superannuation of 70 per cent to the Wife.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 July 2019.

Associate:

Date: 19 July 2019

Appendix A: Minutes of orders sought by respondent Wife in relation to property dated 16 August 2018

That the applicant husband pay to the respondent wife, the sum of $2,000.00 on the first day of each calendar month for the period of 24 months from the date of these orders, with such funds to be paid into an account nominated by the Respondent Wife.
That in the event that there is any equity in the property known and situate at Section …, Block …, Deposited Plan …, Suburb AA in the Australian Capital Territory, after all liabilities in relation to the property have been satisfied, the Applicant Husband authorise and direct the bank subject to the mortgage to allocate the 100 per cent of the remaining funds to the Respondent Wife.
In accordance with section 90MT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Khalid from his interest in the BB Superannuation ('Plan') -… under the Y Superannuation Savings Trust (Fund), Ms Khalid is entitled to be paid by the Trustee of the Y Superannuation Limited Trustee 70 per cent of the splittable payment, and there is a corresponding reduction in the entitlement Mr Khalid would have had but for these Orders.
The Operative time for Order 4 is four days after the service of sealed final Orders on the Trustee.
In accordance with section 90MT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Khalid from his interest in the DD Superannuation Fund, Ms Khalid is entitled to be paid by the Trustee of the DD Superannuation Fund 70 per cent of the splittable payment, and there is corresponding reduction in the entitlement Mr Khalid would have had but for these Orders.
The Operative time for Order 5 is four days after the service of sealed final Orders on the Trustee.
That except as otherwise provided in these Orders:
7.1The Applicant Husband be entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of him respectively; and
7.2The Applicant Husband be solely liable and indemnify the Respondent Wife against any liability encumbering any item of property, or any other liability, to which the Applicant Husband is entitled pursuant to these Orders.
That except as otherwise provided in these Orders:
8.1The Respondent Wife be entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of her respectively; and
8.2The Respondent Wife be solely liable and indemnify the Applicant Husband against any liability encumbering any item of property, or any other liability, to which the Respondent Wife is entitled pursuant to these Orders.

IT IS NOTED:

A.That pursuant to Section 81 of the Family Law Act the parties intend these orders to be in full and final settlement of any financial claims each may have against the other for property settlement or spousal maintenance and each party undertakes to make no further claim against the other by way of property settlement or spousal maintenance.
B.That the provisions of Section 77A of the Family Law Act are not applicable in these proceedings.