KURIAKIN & KURIAKIN
[2010] FMCAfam 40
•22 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KURIAKIN & KURIAKIN | [2010] FMCAfam 40 |
| FAMILY LAW – Property settlement – 21 year marriage – equal division of property. |
| Family Law Act 1975, ss.75, 79 |
| Hickey & Hickey (2003) FLC 93-143 Mallett v Mallett (1984) 156 CLR 605 Norbis v Norbis (1986) 161 CLR 513 C & C (2005) FLC 93-220 In the marriage of Pearce (1999) FLC 92-844 In the Marriage of Ferraro (1993) FLC 92-335 Rosati & Rosati (1998) FLC 92-804 |
| Applicant: | MS KURIAKIN |
| Respondent: | MR KURIAKIN |
| File Number: | SYC 5463 of 2008 |
| Judgment of: | Wilson FM |
| Hearing date: | 15 October 2009 |
| Date of Last Submission: | 23 November 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 22 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Macelbing Mednis & associates |
ORDERS
The property of the parties, found to be $1,832,145.04 be adjusted such that each party receives 50% thereof.
To give effect to order 1 hereof:
(a)The husband shall retain:
(i)The property at [M];
(ii)The property at [S];
(iii)His share of the property situate at [T];
(iv)Any bank accounts in his sole name;
(v)Any shares registered in his sole name;
(vi)Any insurance policies in his name;
(vii)The Volkswagen and Chevrolet motor vehicles and the motor boat.
(b)The wife shall retain:
(i)Any bank accounts in her sole name;
(ii)Any shares registered in her sole name;
(iii)The Holden Calais motor vehicle;
(iv)The entitlement to recover monies lent to her brother Mr S;
(v)Her superannuation.
(c)The wife shall be entitled to the entire balance of any joint bank account in the parties’ names as at the date of final hearing and the husband shall execute such documentation as may be necessary to give effect to this order, and shall cease to be entitled to operate such account thereafter;
(d)The property at [V] shall be transferred into the sole ownership of the wife, and to that effect:
(i)The husband shall execute a transfer in registrable form of his interest in the property to the wife, to be provided to the wife, or her nominee, in exchange for the discharge or release of mortgage referred to in sub-paragraph (ii) hereof;
(ii)The wife shall cause the mortgage secured against the property in respect of a joint loan to the husband and the wife to be discharged, and shall indemnify the husband against any liability in respect of such loan on and from the date of transfer;
(iii)At the date of transfer into the wife’s sole name, the wife shall pay to the husband one half of any payments made by him in respect of the property or any loan in respect thereof from the date of final hearing to the date of transfer;
(iv)If the mortgage presently secured against the property is not discharged within 42 days of these orders, or such other time as may be agreed between the parties, the [V] property shall be sold and the proceeds of sale of such property shall be distributed:
1. First, in payment of the costs of sale, including agent’s commission;
2. Secondly, in discharge of any encumbrance secured and registered against the property;
3. Thirdly, in payment to the husband of one half of any payments made by him in respect of the property or any loan in respect thereof from the date of final hearing to the date of sale;
4. Fourthly, by paying the balance to the wife, who shall remain liable for any capital gains tax payable in respect of the sale.
(e)The property at [I] shall be sold at a price agreed to by the parties, being not less than $290,000 in the first instance, and failing agreement as determined by the President of the Real Estate Institute of New South Wales, and the proceeds of sale of such property shall be distributed:
(i)First, in payment of the costs of sale, including agent’s commission;
(ii)Secondly, in discharge of any encumbrance secured and registered against the property;
(iii)Thirdly, by paying the sum of $22,449 to the trust account of the wife’s solicitors on account of capital gains tax to be assessed on the realisation of the said property;
(iv)Fourthly, by paying the balance to the wife.
(f)The husband shall pay to the wife, within 14 days of the date of settlement of the sale of the [I] property one half of the costs of sale, including agent’s commission;
(g)Provided that if the [I] property sells at a price exceeding $290,000, the wife shall pay to the husband one half of any additional sale proceeds;
(h)If the assessment of capital gains tax payable by both parties exceeds the combined amount of $22,449, each party shall be responsible for paying 50% of such excess notwithstanding in whose name the assessment is issued;
(i)if the assessment of capital gains tax payable by both parties is less than the combined amount of $22,449, the difference between the combined assessments and the sum of $22,449 shall be shared equally by the parties;
(j)The husband shall pay to the wife the sum of $136,018.00, such payment to be made not less than seven (7) days prior to the settlement of the sale of the [I] property;
(k)If the husband fails to pay all or any part of the sum specified in order 2(j) hereof, then the husband shall forthwith list for sale the property at [M] at a price agreed between the parties, or failing agreement as determined by the President of the Real Estate Institute of New South Wales, and upon such sale, the wife shall be paid the sum of $136,018 together with interest on that sum at the rate of 10% per annum from the date such sum was required to be paid pursuant to order 2(j) hereof, until the date of such payment.
(l)That:
(i)The Court allocates, as required by s.90MT(4) of Family Law Act, a base amount of $73,640 to the applicant wife out of the respondent husband’s interest in the [I] Superannuation member number [omitted] (“the Fund”).
(ii)In accordance with s.90MT(1)(a) of Family Law Act, the Court:
1. creates an entitlement on the part of the applicant wife to be paid the amount calculated in accordance with Part 6 of Family Law (Superannuation) Regulations 2001; and
2. makes a corresponding reduction in the entitlement to the respondent husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for this order.
(ii)Whenever the Trustee of the Fund makes a splittable payment out of the respondent husband’s interest in the Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 2(l)(i) of this order in accordance with the requirements of Family Law Act and Family Law (Superannuation) Regulations 2001.
(iii)This order has effect from the operative time and the operative time is the date of five business days after the sealed orders are served on the Trustee.
(m)In the event that the wife or the husband shall refuse or neglect to execute any deed or instrument necessary to give effect to these orders, the Registrar or a Deputy Registrar of the Court shall be empowered pursuant to s.106A of Family Law Act 1975 to execute such deed or instrument in the name of the wife or the husband to do all acts and things necessary to give validity and operation to the said deed or instrument provided that such Registrar or Deputy Registrar shall be satisfied upon affidavit evidence of the party alleging the refusal or neglect that the other party is in breach of these orders.
That both the husband and wife shall do all acts and things and give all consents and execute any documents in relation to give effect to these orders made herein.
IT IS NOTED that publication of this judgment under the pseudonym Kuriakin & Kuriakin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5463 of 2008
| MS KURIAKIN |
Applicant
And
| MR KURIAKIN |
Respondent
REASONS FOR JUDGMENT
After a marriage of 21 years, the applicant wife and the respondent husband seek property settlement orders pursuant to s.79 Family Law Act1975 (“the Act”).
The husband, a [occupation omitted], was born [in] 1947 and is rising 63 years of age. The wife, a [occupation omitted], was born [in] 1952 and is rising 58 years of age. The parties married [in] 1986. They separated on 26 January 2008. The parties have an adult son, [X], who is now 22 years of age.
The parties’ son lives with the mother but is substantially financially independent.
In Hickey & Hickey (2003) FLC 93-143 at [39] the Full Court of the Family Court of Australia stated:
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79 (4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79 (4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determine and resolve what order is just and equitable in all the circumstances of the case.”
In Mallett v Mallett (1984) 156 CLR 605, the High Court made it clear that s.79(1) and (2) of the Act confer on the Court a very wide discretion to make such order as thought fit, when satisfied that it is just and equitable to do so. Gibbs CJ, at 608, observed that there are some broad principles to which the court is required to give effect, and some circumstances which it is required to take into account. His Honour identified the principles as the need to achieve finality (s.81 of the Act) and that the parties to a marriage are equal in status. However, the Court expressly eschewed any presumption of an equal division of property, or that it should be the normal starting point for the exercise of the court’s discretion (Gibbs CJ at 610, Mason J at 625, Wilson J at 636, Deane J at 640-1, Dawson J at 648).
In Norbis v Norbis (1986) 161 CLR 513, the High Court reiterated that although s.79 of the Act confers a very wide discretion on the court, that discretion is not unlimited. Its exercise is conditioned on a number of matters: that the order is just and equitable (s.79(2)); that the matters specified in s.79(4) are taken into account; and the general principles embodied in ss.43 and 81 (see Mason J at 521). In Norbis the Court was primarily dealing with the argument as to whether an asset by asset approach or a global approach was appropriate to the determination of contributions. Not surprisingly, the Court concluded that no fixed rule could be applied. However, at 523 Mason J observed that “there is much to be said for the view that in most cases the global approach is the more convenient” (see also Wilson and Dawson JJ at 530-532).
In the present case, the solicitor for the wife submitted that a global approach should be taken. Counsel for the husband did not dissent from that view, but submitted that the Court could, as a check method, give consideration to an asset by asset approach. In my view, the global approach is to be preferred after such a long marriage, particularly where the parties have intermingled their financial dealings.
Both parties made submissions on the basis that there should be a two pool approach, comprised of superannuation and non-superannuation assets. In my view authority such as C & C (2005) FLC 93-220 permits that course. I adopt the parties’ agreement that there be two pools.
By the time of final submissions the pool of assets and liabilities was agreed and is reflected in ex 11:
| Property [M] | $515,000 |
| Property [I] | $290,000 |
| Property [S] | $305,000 |
| Property [V] | $402,500 |
| One third interest in Property [T] | $186,666 |
| Wife’s [1] Credit Union account | $136,340 |
| Wife’s [2] Credit Union account | $23,651.92 |
| Wife’s [2] Credit Union Moneymax account | $13,500 |
| Wife’s [2] Credit Union Money Manager Account | $5,137.19 |
| Wife’s [1] Credit Union Everyday account | $1,500 |
| Wife’s [1] Credit Union Advest Account | $4,590.71 |
| Wife’s Commonwealth Bank account | $50 |
| Husband’s Commonwealth Bank Account [1] | $14,000 |
| Husband’s Commonwealth Bank account | $387.91 |
| Joint ANZ account | $17,700 |
| Joint ANZ Rental account | $1,986.52 |
| [A] Ltd shares in wife’s name | $2,240 |
| [A] Ltd shares in husband’s name | $5,656 |
| [E] shares in husband’s name | $10,679 |
| Colonial Life insurance policies in husband’s name | $23,629.79 |
| Loan to Mr S | $52,000 |
| Wife’s Holden Calais motor vehicle | $13,000 |
| Vintage Chevrolet motor vehicle | $8,000 |
| 1973 VW motor vehicle | $3,000 |
| Motor boat | $3,000 |
| Less Mortgage secured against [I] property | ($112,102) |
| Less Mortgage secured against [V] property | ($307,437.32) |
| Total | $1,619,675.72 |
The parties respective superannuation entitlements, at the date of final hearing were:
a)The husband with [I] Super - $191,100 (ex 10);
b)The wife - $43,818.32.
Some observations should be made about some of these assets. The property at [M] was the former matrimonial home. It was brought into the marriage by the husband, but renovations were made to the property to which both parties contributed. The husband remains living at this property and wishes to retain it.
The husband received a one third interest in the property at [T] by way of inheritance in 1996. Its value was determined by Ms H, as a court expert. Other members of the husband’s family reside at the property. The husband maintained that he could not realise this asset. That is not correct as a matter of law, but having regard to the fact that it was his parents’ property and is lived in by his siblings, I accept that he will not, as a matter of fact, seek to sell his share of the asset. I also accept that the husband and the wife have not undertaken any work to the property, nor spent any money on it. The husband wishes to retain this property.
The wife also received an inheritance, on the death of her mother in 2007. The position is a little more complicated in respect of the wife’s inheritance than that of the husband. The wife’s mother became progressively incapacitated between 2002 and 2004. In 2004 the wife’s mother moved to live with the parties for approximately 12 months. Her home was then sold. Net proceeds of $395,258.16 were realised. A large payment was made to the nursing home where the wife’s mother went to live. At this time, the wife received a payment of $30,905.72 from her mother. The parties’ son received a gift of $10,000. No money was paid at this time to the wife’s brother, Mr S.
Some $84,019.77 was left over from the sale proceeds. The wife established a joint account in her name and that of her mother. She used this account to pay her mother’s expenses. The mother’s pension was deposited to this account. A further deposit to this account of $30,905.72 was made on 15 July 2005 when the balance deposit less agent’s commission was received from the sale of the wife’s mother’s home. None of the income of either of the parties was deposited to this account.
The wife gave evidence, that was not challenged, and which I accept, that she used monies in this joint account to meet some of the acquisition costs of the property that the parties purchased at [V]. That property was purchased largely using borrowed funds.
I accept that the wife also used some of the funds in the joint account, although it is not possible to quantify the amount, to meet living expenses of the parties.
By the time the wife’s mother died in October 2007 there was some $78,000 left in the account. This amount was paid to the wife’s brother.
Counsel for the husband argued that the wife was entitled to one half of this money, and account should be taken of the fact that the wife in effect ‘gifted’ $39,000 to her brother. The wife gave evidence that her mother wanted her brother to receive this money, and she honoured her mother’s wish.
If account is taken of the $78,000 payment to the brother, the almost $31,000 that the wife received from her mother two years before her death also needs to be taken into account.
Each of the wife and her brother were entitled to one half of their mother’s estate. The wife’s brother effectively received $23,500 more than he was entitled to. Should this amount be notionally added back to the pool, or debited to the wife’s account in terms of a negative contribution? In my view it should not. There was not wanton or reckless conduct by the wife. She acceded to a wish expressed by her late mother. Her brother was in financial difficulty. The husband has not received rental for his one third interest in the [T] property, also because of a family situation. Further, both parties submitted that the respective inheritances of the parties were approximately the same. In my view, the additional $23,500 paid to the wife’s brother from the wife’s mother’s estate should not be specifically adjusted in any way.
It is accepted that the wife lent her brother $52,000. That is reflected in ex.2 and in the evidence of Mr S, who was not required for cross examination.
When the wife’s mother died, a refund was made by the nursing home of almost $250,000. The amount received was divided equally between the wife and her brother. The wife received $123,564.96 on 10 June 2008.
Thus, the wife received a little over $150,000 from her mother’s estate. The husband received an asset now worth $186,666. By equating the contribution made by each party’s inheritance sufficiently allows for the extra money paid by the wife to her brother. The wife’s inheritance is now represented by the [1] Union account.
The wife was subjected to a detailed cross examination about her bank accounts and what had happened to monies before and after separation. The wife was accused of not making proper disclosure. A bundle of documents, mainly financial documents, was provided very late. The wife was uncertain about many of the details of her transactions, which is hardly surprising.
The agreed balance of the wife’s accounts is set out above. Those bank accounts put into evidence by the husband (exs.1, 2 and 3) do not, in my opinion, show any inappropriate hiding of funds, or unexplained withdrawals of amounts that, in the context of the size of the pool in this case, attract critical inspection. After all, the wife has had to meet her living expenses and contribute towards the mortgage of the [I] and [V] properties since separation.
It emerged during his cross examination that the husband had not disclosed a Commonwealth Bank account with a balance of $14,000 (that is now included in the agreed pool) nor an expected tax refund of some $4700. As that tax refund was wholly attributable to the husband’s post separation earnings it has not been included in the pool.
I turn then to the second step identified in Hickey.
Sections 79(4)(a), (b) and (c) of the Act provide:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
The wife gave evidence that at the commencement of the marriage she had the following:
a)A residential property at [G] subject to a mortgage encumbrance;
b)A motor vehicle;
c)Two bank accounts, the balance of which cannot be recalled.
The husband agrees that the wife had these assets at commencement.
At the commencement of the marriage the husband had the following:
a)The residential property at [M] subject to a mortgage;
b)Vacant land at [S] subject to a mortgage;
c)The motor boat referred to in the pool;
d)Two motor vehicles including the Vintage Chevrolet;
e)The two Colonial insurance policies referred to in the pool;
f)Savings including the proceeds of a life insurance policy for his first wife who died in 1985 of some $20,000 - $24,000.
The wife agreed that the husband made these contributions.
Each party took objection to evidence of value of these contributions being given by the parties personally. Therefore, the Court is left in the position where it cannot ascribe a value to the parties’ respective contributions. Having regard to the duration of the marriage, any initial disparity in their contributions has been ameliorated by the passage of time: In the marriage of Pearce (1999) FLC 92-844.
I therefore regard the parties’ initial contributions as roughly commensurate.
At the time of their marriage the wife worked as an [omitted]. She continued to work until the parties’ son was born. She then remained at home for two years. Since 1994 the wife has been in her current employment as a casual [omitted].
The husband has always been employed as a [omitted]. This work has taken the husband to [workplaces] both interstate and overseas. The husband has worked in Bangladesh and Taiwan for extended periods. The husband’s work necessitated the moving of the family on a number of occasions, particularly before their son commenced his schooling.
Once the child started school, the wife and the child did not travel with the husband. During the time that he was absent, the full time care of [X] fell onto the wife.
It must be accepted that during the marriage the husband was a higher income earner than the wife. However I accept the wife’s evidence that she not only worked and looked after [X] but also undertook most of the domestic chores. I accept that it was only in the last couple of years of the marriage that the husband did any ironing or cooking.
In In the Marriage of Ferraro (1993) FLC 92-335 the Full Court highlighted the difficulty involved in evaluating and balancing fundamentally different activities. It also reinforced that the court’s task includes evaluating the significance of the various contributions, the weighting of which is ultimately a matter for the court. The Full Court said:
“The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a home maker contribution is vulnerable to subjective value judgments as to what constitutes a competent home maker and parent and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the home maker role. However, there are cases where the performance of those roles has what may be described as “special features” about it either adding to or detracting from what may be described as the norm. For example, in relation to the home maker role the evidence may demonstrate the carrying out of responsibilities well beyond the norm as, for example, where the home maker has the responsibility for the home and children entirely or almost entirely without assistance from the other party for long periods or cases such as the care of a handicapped or special needs child. On the other hand, in the breadwinner role the facts may demonstrate an outstanding application of time and energy to producing income and the application of what some of the cases have referred to as “special skills”.
The parties also contributed in other ways. The wife sold her property in May 1987, and the net proceeds received by her were applied to renovations that the parties undertook to the former matrimonial home. The proceeds of sale of her motor vehicle were defrayed on living expenses. The husband undertook some of the renovation work, installing a kitchen. He did electrical works and installed installation, and he did some painting. Later, in 2006, further renovation work was undertaken, particularly to a bathroom. Part of the wife’s savings paid for this.
The husband brought into the marriage the property at [S]. During the marriage the parties built a residence on the land. They both worked on it at weekends. The husband was the owner builder. He accepted, albeit reluctantly, in cross examination that the wife helped construct the kit home.
The parties were both involved in assisting in maintaining the wife’s mother’s house and they renovated the kitchen at this property.
In the mid 1990s the parties purchased the property at [I]. It was rented out until separation. Since separation the wife has lived at the property. That property is owned by the parties as tenants in common in shares 90% to the husband and 10% to the wife. This apportionment was probably done to maximise the tax effectiveness of the investment.
The husband agreed that the wife made a contribution to the renovation of the [V] property which the parties purchased as an investment. It has been rented.
It can be seen that both parties contributed significantly, at times in different ways, during a long marriage. Their contributions were equal.
Sections 79(4)(d), (e), (f) and (g) of the Act require consideration of:
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Both parties retain the capacity to work, and the property settlement orders will not affect that. There are no relevant orders for child support, nor are there any other relevant orders under the Act.
It is then necessary to consider the s.75(2) factors.
Both parties are in good health. Both have the physical and mental capacity to keep working. The husband obviously has a shorter working life than the wife, but his income is greatly superior to hers.
The wife earns $65,000 per annum. The husband’s salary package, including superannuation and the provision of a motor vehicle is $138,616.90. The husband has been with the same employer since 1987. There was no evidence of any entitlement to accrued long service leave.
The parties are each able to save some money from their earnings. Each has made post-separation contributions. The [E] shares were purchased by the husband post separation. The wife has continued to meet the mortgage for the [I] property.
Neither party has an obligation to maintain any other person. Neither party is in receipt of government benefits.
Both parties enjoy a standard of living commensurate with their pre-separation lifestyle. Each lives in a property that they acquired during their marriage.
In my view, the only s.75(2) factor that warrants an adjustment in either party’s favour is the disparity in earning capacity. That of course has to be balanced against the age difference of the parties.
I also take into account that the husband will, in all likelihood, never access any benefit from his share of the [T] property.
The adjustments for these considerations effectively cancel each other out. An equal division of the property is appropriate.
The disposition of any property of the parties other than the former matrimonial home is likely to attract capital gains tax.
Rosati & Rosati (1998) FLC 92-804 clarified the manner in which capital gains tax should be treated. For the tax to be included as a liability of either party there must be an intention by him or her to sell the property in the foreseeable future or a significant risk that the properties would have to be sold in the short to mid term.
By further submissions the wife has stated that she intends to move from the [I] property. It is therefore proposed by both parties that the property be sold.
To address the potential tax liability the wife adduced evidence from Ms A, an accountant. Her report addresses the tax liability that would arise on a sale of the [I] property. Assuming the property was sold for its agreed value, in the current financial year, the capital gains tax payable by the parties would be:
a)Husband - $20,015
b)Wife - $2,434
The wife wishes to retain the [V] property.
The husband submitted that, to enable her to re-house the property should be adjusted so that the wife receives a greater amount of non-superannuation assets. I agree.
In matters where there are superannuation interests the majority of the Full Court in C & C (2005) FLC 93-220 said:
“The Trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary, where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that just and equity is achieved) to:
a. value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
b. consider and make findings about the types of contributions referred to in s.79(4)(a)(b) and (c) which have been made by the parties to the superannuation interests in either a global approach or an asset by asset approach depending on the circumstances;
c. consider the other factors in s.79(4) being the matters in s.79(4)(d)(e)(f) and (g);
d. ensure that pursuant to s.79(2) the orders in relation to the parties’ property and any order under Part VIIIB in relation to superannuation interests are just and equitable.
The parties’ respective superannuation interests have come from their employment. It is appropriate to adjust them in proportions different to the other property owned by the parties.
The husband should retain the [M] and [S] properties. The wife should retain the [V] property. The [I] property will be sold.
An equal division of the parties’ property would see each of them entitled to $798,133.36 (after taking into account the capital gains tax referred to).
The wife has cash assets in her name of $184,769.82. It makes sense for the loan to her brother to be recoverable by the wife. The wife has a motor vehicle worth $13,000 and shares worth $2,240. The [V] property has a net value of $95,062.70. The total of these various assets is $347,072.52.
The wife has superannuation of $43,818.32.
When each of these items is taken into account, to achieve an equal division the wife needs to receive an additional $407,242.52.
The expected net proceeds of sale of the [I] property will be $177,898 less selling costs. Those selling costs should be borne equally. There is $19,686.52 in the joint bank accounts. If the wife receives each of these, a further adjustment in her favour of $209,658 is called for.
A splitting order should be made in respect of the husband’s superannuation interest so that the wife is allocated $73,640. In that way, after the adjustment the parties will have roughly equal superannuation entitlements.
The balance of $136,018.00 will have to be paid by the husband to the wife.
Are such orders just and equitable? The husband will retain three properties. Each is unencumbered. The [S] property is worth $305,000. If the husband does not make the necessary cash payment to the wife, that property can be sold. The husband will continue to work. He has a small parcel of shares, and a modest amount of cash in the bank. He will continue to receive his substantial income from employment for another two years at least. He has no other financial commitments.
The wife will receive one property heavily encumbered, and will have sufficient cash (slightly in excess of $518,000) to purchase a property to live in of roughly equal value to the [M] property. The wife will be able to continue working and will have approximately the same superannuation as the husband at the present date.
I am satisfied the orders are just and equitable.
There will be orders as set out prior to the commencement of these reasons.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate:
Date: 22 January 2010
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