Lambers & Earle
[2024] FedCFamC2F 816
•31 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lambers & Earle (No 2) [2024] FedCFamC2F 816
File number(s): MLC 624 of 2022 Judgment of: JUDGE STEWART Date of judgment: 31 May 2024 Catchwords: FAMILY LAW – PROPERTY – Wife’s response proceeded undefended, notwithstanding Husband attended at Court – Parenting proceedings previously resolved – Third party equitable claim against former matrimonial home previously resolved – Loss or wastage from Husband’s criminal activity – Evidentiary gaps in Wife’s case – Court cannot speculate as to facts – Failure by Wife to afford procedural fairness to superannuation trustee – Draft orders to be provided to superannuation trustee Legislation: Family Law Act 1975 (Cth) ss 75, 75(2), 79, 79(2), 102NA
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 10.27
Cases cited: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172; (2000) 74 ALJR 1206; (2000) 173 ALR 648
Chang & Su [2002] FamCA 156; (2002) FLC 93-117; (2002) 29 Fam LR 406
Kowaliw & Kowaliw [1981] FamCA 70; (1981) FLC 91-092
Morgan & Valverde [2022] FedCFamC1A 133; (2022) FLC 94-100; (2022) 66 Fam LR 585
Zane & Allan [2008] FamCAFC 115; (2008) FLC 93-378
Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 29 May 2024 Place: Melbourne Counsel for the Applicant: The Applicant appearing in person Counsel for the Respondent: Mr Gorman (solicitor) Solicitor for the Respondent: Whitehead Legal Services Pty Ltd ORDERS
MLC 624 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LAMBERS
Applicant
AND: MS EARLE
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
31 MAY 2024
THE COURT ORDERS THAT:
1.All extant applications be adjourned for Mention to 1 July 2024 at 10.00am ("the adjourned date").
2.The draft orders annexed hereto and marked with the letter A be served on the Trustees of the Husband's Super Fund 1 Account (the "Superannuation Trustee") by the solicitors for the Wife AND IT IS REQUESTED THAT the Superannuation Trustee respond with regard to procedural fairness prior to the adjourned date.
3.Upon the Wife's solicitor forwarding to the Chambers of Her Honour Judge Stewart written evidence that procedural fairness has been afforded to the Superannuation Trustee, orders will be made in Chambers with no further need for appearance by the parties, subject to any amendments required by the Superannuation Trustee.
4.The Wife make, file, and serve any written submissions as to costs within 14 days of the date of these orders.
5.The Husband respond to the Wife's costs application (if any) within 14 days of service of the Wife's submissions upon him, with liberty reserved for the Husband to make further viva voce submissions on the adjourned date.
6.The ex tempore reasons made this day be transcribed, settled by Her Honour Judge Stewart, and made available to the parties.
“A”
7.Of the $135,829 (plus interest) of moneys in the B Company trust account resulting from the sale of the former matrimonial home at C Street, Suburb D, Victoria, be awarded to the parties in the following manner:-
(a)$20,000 to the Husband; and
(b)The remainder thereon to be deposited into the Whitehead Legal Services Pty Ltd Law Practice Trust Account, E Bank, BSB: …, Account Number: …94.
8.Pursuant to section 90XT(4) of the Family Law Act 1975 (Cth), a base amount of
sixty-five thousand dollarsforty-eight thousand, two hundred and seventy dollars ($48,270) to the Wife MS EARLE out of the Husband MR LAMBERS’ interest in his Super Fund 1.9.Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth):-
(a)The Wife (or her 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 (Cth); and
(b)The entitlement of the Husband in the Super Fund 1 (or the entitlement of such other person who becomes entitled to receive a payment out of the Husband's superannuation interest) is correspondingly reduced by force of this order.
10.The Trustee of the Super Fund 1 shall do all acts and things and sign all such documents as may be necessary to:-
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement of the Wife as set out in the orders preceding this order; and
(b)Pay the entitlement whenever the Trustee makes a splitable payment from the Husband's superannuation interest in Super Fund 1.
11.These orders have effect from the operative time and the operative time for the purpose of these orders is four (4) business days after a certified copy of these orders is served on the Superannuation Trustee.
12.The Husband retain Motor Vehicle 1 and the Wife do all such acts and things as may be necessary to transfer that Motor Vehicle 1 to the Husband.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(ex tempore reasons, corrected from transcript)JUDGE STEWART
These are property proceedings between Mr Lambers (“the Husband”) and Ms Earle (“the Wife”). Due to procedural default on the part of the Husband, the property proceedings will proceed on an undefended basis, although the Husband did appear at Court on the date of hearing.
The proceedings between the parties initially commenced as parenting proceedings, issued by the husband in January 2022 in relation to the parties’ two children X born in 2009 (who is now aged 14), and Y born in 2012 (who is now aged 11). By her Response filed on 25 February 2022, the Wife introduced property matters. The Wife subsequently filed an Amended Response with a supporting affidavit on 17 May 2024, which are the documents upon which she seeks to rely today.
By way of brief background, the Husband is 33 years old and the Wife is 32 years old. The parties commenced their relationship in 2007, when the Husband was 17 and the Wife was 16. They married in 2019 and separated in late 2021. Accordingly, their relationship endured for around 14 years and produced the two children. During that time, the Husband was working as a tradesperson and the Wife was working as a health care worker. At the time of separation, the family was living in the City F area in the former matrimonial home. That home was purchased in 2014, initially in the name of the paternal grandfather but used by the parties. The former matrimonial home was inherited by the Husband on the paternal grandfather’s death in 2022.
Within days of the separation, the Wife unilaterally relocated the residential location of herself and the children to Queensland. Just over a month after separation, the Husband issued urgent proceedings seeking the children’s return to Victoria. The Wife had relocated to Queensland in the context of assertions that she had been subject to serious family violence (including strangulation) by the Husband, fuelled by the Husband’s illicit drug use. She had obtained an intervention order against the husband in City F Court at or around the time of separation, which was made a final intervention order in early 2022.
Turning to procedural matters, the matter came before a Judicial Registrar for First Return on 2 March 2022 and was listed for an interim defended hearing before a Senior Judicial Registrar on the same day. The Senior Judicial Registrar ordered the Mother to return to Victoria with the children, and the Father was to spend supervised time with the children at a contact centre. The matter returned before a Senior Judicial Registrar on 7 April 2022, and further parenting orders were made for the Father to communicate with the children to take place in addition to the supervised time orders that were already in existence.
The matter came before me on 9 May 2022 and a conciliation conference was ordered to take place on 17 August 2022. The matter returned to Court on 11 July 2022, prior to the conciliation conference. By that time, it was apparent that the Husband’s ailing father had an alleged interest in the former matrimonial home. On 17 August 2022, the conciliation conference took place before a Judicial Registrar, and it was noted that the parties reached an in-principle property agreement on that day. The parenting issues remained listed for an interim hearing in September 2022.
On 12 September 2022, the matter came before a Senior Judicial Registrar, who ordered that the existing parenting orders remain in full force in effect. Therefore, the Husband's time with the children remained supervised. The proceedings were listed for a Final Hearing in February 2023. On 5 December 2022, prior to the scheduled Final Hearing, the matter was mentioned before me and various orders progressing the matter were made. The matters remained listed for the February 2023 Final Hearing. A family report was prepared and released on 9 February 2023.
On 22 February 2023, the matter reached Final Hearing for the parenting proceedings. The Husband did not attend on that date, nor did he file any material as ordered by the Court. An undefended hearing took place, where the Husband's parenting application was struck out. On the Wife's response application, the Wife was granted sole parental responsibility and residence of the children. She was permitted to relocate the children's residence to Queensland, and the Husband was to have limited communication and supervised time with the children, with more expansive time contemplated in the event the Husband complied with various conditions designed to address his drug use.
By this time, it was apparent that the property agreement reached at the conciliation conference had broken down, and the property aspect of the case was adjourned for mention in the May 2023 Circuit. At this point, it is relevant that the Husband's father had passed away in 2022. When the property proceedings were mentioned in the May 2023 Circuit, with the Husband appearing in person on that date, the paternal grandfather's wife was joined in the property proceedings as the Second Respondent in her capacity as administrator of the paternal grandfather's estate. The Second Respondent was ordered to file a Statement of Claim setting out the basis on which the estate made an equitable claim against the former matrimonial home, which I shall come to. The proceedings were adjourned to the July Circuit for Mention. The July Mention was vacated by consent and adjourned to the September 2023 Circuit. Orders were made on 11 September 2023. The Husband appeared in person. The proceedings with respect to the estate of the paternal grandfather were resolved by a small payment made to the estate to extinguish any alleged equitable interest in the former matrimonial home, and the Second Respondent was otherwise excused from further participation. External mediation between the Husband and the Wife was ordered to occur.
On 23 January 2024, the proceedings were listed for Final Hearing on 29 May 2024. The Husband was ordered to file affidavit material and an Amended Application 28 days prior to the Final Hearing, namely by 1 May 2024. He has failed to do so and has not filed any affidavit or material in the proceedings since September 2022.
On 29 May 2024, at the Final Hearing, the Husband initially failed to appear. He was called outside of the Court with no response. He subsequently appeared in person late in the day. The matter will proceed undefended owing to the Husband's failure to file material. However, he was able to participate in proceedings.
In undefended proceedings, it is often the case that the proceedings are undefended because the Respondent (or the Applicant, in this case) does not attend. That was not the case here. I therefore need to determine how the matter should proceed. Undoubtedly, the Court has a wide discretion as to how to conduct such proceedings, and I refer to the Full Court’s decision in Zane & Allan [2008] FamCAFC 115; (2008) FLC 93-378, and the approved principles in relation to the conduct of undefended hearings. Nevertheless, I also note that later Full Court authority refers to allowing parties to have an opportunity to cross-examine in undefended proceedings. For instance, in Morgan & Valverde [2022] FedCFamC1A 133; (2022) FLC 94-100; (2022) 66 Fam LR 585, Austin J, sitting as a single judge in the appellate jurisdiction, referred to the procedure to be followed when dealing with a hearing that proceeds on an undefended basis when a party is present. In that case, His Honour was dealing with an appeal where one party was in default of procedural orders to file affidavit evidence and other documents. His Honour referred to the procedure and the discretion of the Court in such circumstances, contained in the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) at rule 10.27, which relevantly provides as follows:-
(1) If a party is in default, the court may do any of the following:
…
(c)order that a step in the proceeding be taken within the time limited in the order;
…
(f)make any order that is to take effect if the party does not take a step ordered by the court in proceeding in the time limited in the order;
(g)proceed on the non-defaulting party’s evidence together with:
(i)if considered appropriate by the court—such evidence as the defaulting party has filed; and
(ii)such evidence as tendered during cross-examination by the defaulting party; and
(iii)submissions by either party limited to the matters that are the subject of evidence;
(h)in exceptional circumstances—proceed on the non-defaulting party’s evidence without hearing from the defaulting party.
In this matter, although strictly speaking the Husband is the Applicant, he sits as the Respondent to the orders sought by the Wife in her response. His Honour Austin J also referred to the obligation of the Court to advise the Respondent – in this case, the Husband – as to the right of calling witnesses, and whether or not the Respondent has a right to cross-examine the witnesses. In this case, I advised the Husband that in the ordinary course he would have had the right to cross-examine the Wife. However, due to the provisions of section 102NA of the Family Law Act 1975 (Cth) (“the Act”), his right to cross-examine on a personal basis was exterminated.
I also refer to the High Court authority of Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172; (2000) 74 ALJR 1206; (2000) 173 ALR 648, which stands for the proposition that a party has a right to appear or be heard on a matter. As was pointed out by Kirby J at paragraphs [38]-[40] of that decision, the following applies, and these are the words of Kirby J:-
38. …Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39. Decision makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40. Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer, or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against the unreasonable delay in concluding litigation.
(citations omitted)
Those principles are also enshrined in the Case Management Guidelines set out by this Court, which (in summary) provide for prompt, judicious use of judicial resources and resolution for the parties. I note in this case that the Wife is funding her proceedings personally. On that basis, in my view it is appropriate that the Wife's response proceed on an undefended basis, and the Husband's Amended Application for property orders filed 29 April 2022 be struck out. It is therefore the position that the Wife’s Response stands as her application. As I said earlier, orders have previously been made that the provisions of section 102NA of the Act apply. Previously, the Husband had the benefit of a lawyer provided under the Commonwealth Cross-Examination Scheme, but he appeared as a litigant-in-person at the Final Hearing. I therefore advised him, as noted above, that he would not be permitted to cross-examine the Wife, notwithstanding his appearance. The matter proceeded on oral submissions.
The Husband successfully queried the Wife's financial statement, arguing that the income of the Wife's new partner should be included in that statement. The solicitor for the Wife told me that the Wife's partner earns approximately $93,000 before tax. This was an admission against interest, and I accept that position. I am troubled that this evidence did not appear in the Wife's most recent financial statement.
Since the Husband has failed to file material and was unable to cross-examine the Wife, I have otherwise generally accepted the facts set out in the evidence the Wife provided. However, I was compelled to reject a number of submissions made by the Wife's solicitor, as those submissions went beyond what was supported by the documentary evidence available. Most notably, the Wife's solicitor submitted that I should assume that the Husband's superannuation had reached $105,000. However, the last evidence available was a statement from the Husband’s Super Fund 1 scheme of August 2022, which indicated that the Husband's superannuation entitlements at that time were approximately $85,000. The Wife's solicitor argued that I should assume the greater amount because the Husband had failed to make full and frank financial disclosure. That submission misapprehends the nature of the Court's discretion to respond to a lack of proper disclosure.
As per Chang & Su [2002] FamCA 156; (2002) FLC 93-117; (2002) 29 Fam LR 406, the Court may take account of the lack of full disclosure in a general way, and that may justify a degree of uplift in an award to another party. What the Court may not do is enter into speculation. I am also cautious about applying a Chang & Su style uplift in this case, because it was in the Wife's power to remedy that lack of information. I asked the Wife's solicitor why they had not sought an updated figure from the Husband's superannuation fund, and the Wife's solicitor was unable to provide an answer.
Turning then to the Wife's application, the Wife seeks that:-
(a)the proceeds of sale of the former matrimonial home (held in trust in the sum of approximately $135,829) be transferred to her;
(b)the Husband retain a family motor vehicle and chattels; and
(c)there be a $65,000 superannuation split in her favour.
Although the Husband had not filed material, he told me at first instance that he sought a fifty-fifty split of assets and resources, including superannuation entitlements. When I told him that that outcome was not likely in the range, he said he would like $20,000 from the proceeds of sale of the former matrimonial home.
In any property proceeding, I must be satisfied that it is appropriate pursuant to section 79(2) of the Act that a property order be made. The parties in this case have separated after many years of marriage, and they hold very modest assets and resources, which I will come to shortly. After the effluxion of 14 years, in what I would style as the busy years of a marriage between two young people, I am well satisfied that a property order and division should be made in this case. In any event, the proceeds are held in a joint trust account and something needs to happen with them.
The Wife posits the asset pool in this matter as follows:-
(a)the proceeds of sale of the joint matrimonial home, fixed in the sum of $135,829;
(b)Motor Vehicle 2 valued at $30,000, and encumbered by a loan of approximately $20,000;
(c)Motor Vehicle 1 in the parties’ joint names, with a value estimated by the Wife of $5,000 (the Husband told me he thought Motor Vehicle 1 worth only $2,000, but in light of his lack of filed material I propose to take the value at $5,000);
(d)miscellaneous matrimonial assets valued at $20,000 and presumably retained by the Husband;
(e)a balance sheet item valued at $30,000 for “replaced household furniture and items”; and
(f)a liability in the form of the Wife’s HECS loan, said to be in the sum of approximately $21,500.
Motor Vehicle 2 was acquired by the Wife after separation, as was the loan. I propose to exclude it from the assets and liabilities available to be determined between the parties. The Husband apparently has a motor vehicle but the value of that is unknown and that will be excluded from the asset pool to be divided. Motor Vehicle 1 will be retained by the Husband. Regarding the matrimonial assets posited by the Wife, they amount to little more than speculation, and there is no evidence that the parties hold valuable chattels. I will exclude them from consideration.
Regarding the "replaced household furniture and items", that arises from an assertion by the Wife (which I cannot locate in the affidavit material), that the Wife had replaced personal items that were mouldy and unusable after the Husband had placed those items out for the Wife’s collection. Again, that value and the items are little more than speculation and I cannot safely include those in the asset pool.
Regarding the HECS loan, although that certainly is a liability that will be paid by the Wife, it will be paid on a deferred basis. Rather than include it in the asset pool, I take the loan into account in that it is a liability in the Wife's name, and ultimately when her income reaches a certain point, she will be required to repay that liability in instalments.
I then turn to the superannuation entitlements. The Wife has $21,891 in superannuation entitlements, and the Husband as at August 2022 had $85,267.
Accordingly, for the purpose of this decision, I calculate the asset pool as follows:-
(a)the money held in trust of $135,829;
(b)Motor Vehicle 1, which I value at $5,000;
(c)the Wife's superannuation of $21,891; and
(d)the Husband's known superannuation at $85,267;
being a total pool of $247,987.
The question then arises as to how to divide the asset pool between the parties. It is undoubtedly the case that during the marriage each of the parties made valuable direct financial contributions and indirect financial contributions to the acquisition, conservation and improvement of matrimonial assets and resources. In 2014, the Husband's father and his then-partner made contributions allowing the parties to purchase the former matrimonial home at C Street, Suburb D, for $175,000. Each of the father and his then-partner provided part of the down payment to purchase the home. However, what seems to be clear is that the home was purchased (at least in part, if not entirely) for the benefit of the parties. That is evidenced by the small settlement based on the estate of the paternal grandfather, to relieve the putative interests of the Second Respondent in these proceedings.
It is conceded by the Wife, and I think it obvious from how the parties conducted themselves, that each of the parties worked hard during their relationship to improve their property interests. They had two children, and from the inception of the acquisition of the home, the Husband and the Wife paid for all of the costs associated with the former matrimonial home. They did so on the assumption that the property was theirs. They did not pay rent. They conducted renovations over the property, and I note that the Husband was a tradesperson. In my view, the contributions made by the parties during the period, especially from the purchase of the former matrimonial home to separation, were approximately equal, except that the Husband should be entitled for a slight uplift on the basis that, on the basis that his family contributed some monies in order to assist the parties in acquiring the former matrimonial home. Aside from that initial financial contribution, it appears to me appropriate to consider the parties’ other contributions to the home, to the children, to mortgage payments, to home payments, for holidays and for clothing and all of those other myriad of contributions that are made during a marriage, as being relatively equal.
Post-separation, the Wife has had the sole care of the children. She has been the sole contributor to their financial needs, including providing accommodation and the like. That is not an insignificant contribution. She has been required to purchase furniture and clothing for the children, and I note that the Husband is currently in arrears of child support in the sum of approximately $25,000. Since the orders were made in February 2023, the mother has had the sole parental responsibility for the children. The children have not spent overnight with the father, and unfortunately and sadly, I find due to the Husband seemingly being in the grip of an illicit drug addiction, the children are not likely to spend time with him in the near future.
It is likely that the Wife will be the sole caregiver for the children for the remainder of their minority. The children are normal children with normal needs and the usual hopes and aspirations for careers in the future. The Wife’s salary at present is $61,500 as a health care worker. She is in reasonably good health, although she does suffer from some health conditions. She has a fairly limited working capacity at $61,500 as a health care worker. I suspect, although I do not know, that the Wife is not working full-time. The Wife has a partner who earns $91,500 and that will assist her in the future, although of course, her partner has no legal obligation to support the children.
In the past, the Husband's salary has exceeded $105,000 per annum. However, as noted above, I understand him to be in the grip of a serious drug problem. He told me at the Final Hearing that he could not work because of the disposition of his criminal proceedings. However, I would hope that his position improves in the future. His assessed child support is $1661 per month, although if the Husband is not working, that assessment is unlikely to be correct. The last payment of child support the Wife received was $56.70 in November 2023.
The Wife also raises a waste application following the principles in Kowaliw & Kowaliw [1981] FamCA 70; (1981) FLC 91-092, in that she alleges that the Husband has recklessly, negligent or wantonly damaged matrimonial assets. It is said by the Wife that in mid-2022 the value of the matrimonial home was approximately $461,000. However, in early 2023, the Husband was arrested for property-related offences. It is said that goods were subsequently seized, leaving the matrimonial home virtually uninhabitable and that the value of the house was reduced from approximately $460,000 to $380,000, and ultimately was sold for around $340,000. Again, those amounts are not particularised except by speculation in the Wife's material. However, in a general sense, I accept that the Husband's actions have reduced the value of the property, although I am unwilling to place a precise value on that.
In considering the contributions to the property, and taking into account section 75(2) factors, and taking into account the myriad of contributions over the course of a busy, productive, industrious and relatively lengthy (having regard to the parties’ ages) period of cohabitation, in my view, the property contribution aspect should weigh in favour of the Wife due to her post-separation contributions and the wastage argument as against the Husband. I reach this conclusion notwithstanding the Husband's superior financial contribution as I have discussed during the marriage due to the assistance of his father and stepmother. I assess the contribution-based entitlement of the Wife as being superior to that of the Husband.
However, I do not assess the contribution based entitled as being as high as is put by the Wife. In my view, it would be unjust and inequitable not to recognise that the Husband has also made significant contributions during the course of the relationship and marriage, although those contributions in my view are outweighed by the section 75(2) factors and the superior contributions of the Wife post the conclusion of the relationship. Having regard to all of the factors, I then make the difficult decision as to how to move from contribution and needs assessments into numbers.
The asset pool in this matter is very modest indeed, being less than $250,000. In my view, on an assessment of contribution in section 75(2) factors, those factors should weigh in favour of the Wife as to 75 per cent to the Wife and 25 per cent to the Husband. On that basis, on a pool of $247,987, the Husband’s entitlement at 25 per cent is $61,997. I also take into account in that assessment is that it is likely (in an unquantifiable way) that the Husband's superannuation is slightly higher, and it is likely that the proceeds of sale of the former matrimonial home may be slightly higher (being held in the trust account of B Company, and assuming that it was an interest bearing trust account). I also, however, do not think it is fair that the Husband take all of his entitlements as superannuation entitlements, less any split to the Wife.
I consider that the Husband should receive $20,000 of the money in trust, and the superannuation split should be adjusted accordingly. On that view, 25 per cent to the Husband will result in him receiving a $20,000 adjustment from the trust account, $5,000 in Motor Vehicle 1, and in order to adjust his amount to 25 per cent, the Wife should receive a superannuation split of $48,270. I will make an order that the Husband retain the family Motor Vehicle 1, and that the Wife do all such acts and things as may be necessary to transfer that Motor Vehicle 1 to the Husband.
I will also make an order that the Wife’s solicitors forthwith serve a sealed copy of these draft orders (and in particular of the draft superannuation split orders) on the Husband’s superannuation fund. Upon the Wife’s solicitor forwarding to my chambers written evidence that procedural fairness has been provided to the superannuation trustees, orders will be made in chambers without the need for further appearance by the parties.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Stewart. Associate:
Dated: 27 June 2024
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