FAMILY COURT OF AUSTRALIA
| KITE & KITE | [2009] FamCA 896 |
| FAMILY LAW – PROPERTY – Settlement in relation to marriage |
| APPLICANT: | Ms Kite |
| RESPONDENT: | Mr Kite |
| FILE NUMBER: | PAF | 1073 | of | 2006 |
| DATE DELIVERED: | 31 July 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | STEVENSON J |
| HEARING DATE: | 21 July 2008 Written Submissions: |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney |
| SOLICITOR FOR THE APPLICANT: | Watts McCray |
| COUNSEL FOR THE RESPONDENT: | Mr Sansom |
| SOLICITOR FOR THE RESPONDENT: | Champion Legal |
Orders
That, within 42 days of the date of these orders, the parties shall do all things and execute all documents necessary to cause the simultaneous occurrence of the following:
1.1the transfer to the wife of the whole of the husband’s interest in the property situate at and known as N in the State of New South Wales, being the whole of the land contained in Folio Identifier … (“the N property”)
1.2the transfer to the husband of the whole of the wife’s interest in all bank savings held in joint accounts
1.3the transfer to the husband of the whole of the wife’s interest in the AMP Ltd Term Life Whole of Life Plan.
That the wife shall indemnify the husband and keep him indemnified against all liabilities of whatever kind arising pursuant to the mortgage registered on the title to the N property.
That the parties forthwith do all things and execute all documents necessary to effect the sale, for the best price reasonably obtainable, of the property situate at and known as B property in the State of New South Wales, being the whole of the land contained in Folio Identifier … (“the B property”) and to distribute the proceeds of sale as follows:
3.1in payment of any capital gains tax arising pursuant to the sale
3.2in payment of real estate agent’s commission and expenses
3.3in payment of legal costs and expenses incidental to the sale
3.4in payment of an amount equal to 53% of the balance then remaining to the husband
3.5in payment of the balance to the wife.
That the wife forthwith make available for collection by the nominee of the husband the scooter and hospital type bed and hoist.
That, otherwise, each of the parties is declared to be solely entitled to all items of property and superannuation presently in his and her possession or control.
IT IS NOTED that publication of this judgment under the pseudonym Kite & Kite is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAF 1073 of 2006
| MS KITE |
Applicant
And
| MR KITE |
Respondent
REASONS FOR JUDGMENT
the proceedings
These proceedings concern settlement of property. Ms Kite (“the wife” commenced the litigation by an application filed on 31 August 2006. The orders which she sought ultimately were set out in written submissions on her behalf dated 5 December 2008. The orders sought by…
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- AGLC
- Kite and Kite [2009] FamCA 896
- Case
- [2009] FamCA 896
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were how to equitably divide the parties' net property pool, which was valued at $1,964,963 after accounting for a mortgage, and whether any adjustments should be made under section 75(2) of the Family Law Act 1975 (Cth) to account for the parties' future circumstances. Specifically, the court considered the wife's role as a homemaker and parent, her limited employment qualifications and earning capacity, and her responsibility for caring for a child, weighed against the husband's physical dependency and reliance on superannuation for his care.
Stevenson J reasoned that while the wife had devoted herself to the homemaker role during the 24-25 year marriage and had limited capacity for gainful employment, she also had the ability to increase her superannuation contributions. Conversely, the husband's physical dependency entitled him to the best possible quality of life through nursing home care and access to funds beyond the cost of that care. Balancing these factors, the court found no reason for an adjustment under section 75(2) and determined that the net property pool should be divided equally. The court also inferred that the wife's superannuation benefit accrued primarily during the cohabitation, supporting an equal division of this asset.
The court ordered the simultaneous transfer of the husband's interest in the N property to the wife and the wife's interest in joint bank accounts and an AMP life plan to the husband. The B property was to be sold, with proceeds first covering sale costs and capital gains tax, then 53% to the husband and the balance to the wife. The wife was also ordered to indemnify the husband against liabilities arising from the mortgage on the N property and to make available certain personal items. Otherwise, each party was declared solely entitled to property in their possession.
Orders
Orders of the court
1.
That, within 42 days of the date of these orders, the parties shall do all things and execute all documents necessary to cause the simultaneous occurrence of the following:
1.1 the transfer to the wife of the whole of the husband’s interest in the property situate at and known as N in the State of New South Wales, being the whole of the land contained in Folio Identifier … (“the N property”)
1.2 the transfer to the husband of the whole of the wife’s interest in all bank savings held in joint accounts
1.3 the transfer to the husband of the whole of the wife’s interest in the AMP Ltd Term Life Whole of Life Plan.
2.
That the wife shall indemnify the husband and keep him indemnified against all liabilities of whatever kind arising pursuant to the mortgage registered on the title to the N property.
3.
That the parties forthwith do all things and execute all documents necessary to effect the sale, for the best price reasonably obtainable, of the property situate at and known as B property in the State of New South Wales, being the whole of the land contained in Folio Identifier … (“the B property”) and to distribute the proceeds of sale as follows:
3.1 in payment of any capital gains tax arising pursuant to the sale
3.2 in payment of real estate agent’s commission and expenses
3.3 in payment of legal costs and expenses incidental to the sale
3.4 in payment of an amount equal to 53% of the balance then remaining to the husband
3.5 in payment of the balance to the wife.
4.
That the wife forthwith make available for collection by the nominee of the husband the scooter and hospital type bed and hoist.
5.
That, otherwise, each of the parties is declared to be solely entitled to all items of property and superannuation presently in his and her possession or control.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The wife has a modest superannuation benefit worth $20,040. According to her Financial Statement sworn on 20 November 2007 she contributes $20 per week to her superannuation fund. It is open to her to increase her contributions and accrue a greater lump sum for her retirement, if she chooses to do so.Section 75(2)(k): the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; The marriage was of 24 or 25 years duration, during which the wife largely devoted herself to the homemaker and parent role. She has no specialised employment qualifications and is now 50 years old. Principally, the factors which favour the wife are her responsibility to care for C for the next two years and her limited capacity for gainful employment. Of course, she could increase her work hours and earn a larger income if she wished to do so. She has a modest superannuation benefit, to which she can contribute greater sums if she so wishes. The husband is in a position of physical dependency and relies solely on the superannuation fund for his financial support. It seems to me that he is entitled to the best quality of life which nursing home care can provide to him, which means that he should stay at the extra care facility of S Nursing Home. I did not understand there to be any submission on behalf of the wife that he should accept the cheaper option of mainstream care. The husband is also entitled to enhance his quality of life as much as possible by having access to funds in excess of the cost of his nursing home care. Again, I did not understand there to be any submission to the contrary on behalf of the wife. When these considerations are balanced against each other, it seems to me that there should be no adjustment in favour of either party on account of section 75(2) factors. I thus find that the net property of the parties, including superannuation, should be divided equally between them. There was very little evidence in relation to the wife’s superannuation but I infer that the benefit accrued primarily during the parties’ cohabitation. It follows that the contribution-balancing exercise which I have undertaken flows through to the wife’s superannuation. The gross pool of property and superannuation is valued at $2,107,443. After deduction of the mortgage of $142,480 on the N property, the net pool amounts to $1,964,963. 50% of that figure equals $982,482. The wife sought orders to the effect that she take the N and B properties on an unencumbered basis. I was not informed of the source of the money to be used to discharge the mortgage on the N property. The only possibility would be the husband’s superannuation fund but payment of $142,480 would reduce its value to $444,407. I do not know what tax consequences would flow from such a withdrawal. If the wife takes these two properties, with the N home being unencumbered, she would hold or have had the benefit of the following property and superannuation: