Landon and Landon
[2013] FCCA 709
•10 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANDON & LANDON | [2013] FCCA 709 |
| Catchwords: FAMILY LAW – Parenting dispute – lengthy relationship – wife bringing up four children and working for substantial periods when children young – husband greater earnings – contributions and future needs both equal – orders for equal division of property pool. |
| Legislation: Family Law Act 1975 (Cth), ss.69(2), 75(2) |
| Chang vSu (2002) FLC 93-117 Stanford v Stanford [2012] HCA 52 Erdem v Ozsoy [2012] FMCAfam 1323 |
| Applicant: | MS LANDON |
| Respondent: | MR LANDON |
| File Number: | MLC 9284 of 2011 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 11 April 2013 |
| Date of Last Submission: | 11 April 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Vivarini |
| Solicitors for the Applicant: | LaurasLaw Lawyers |
| The Respondent: | In person |
ORDERS
The wife be granted sole authority to attend to the urgent sale of the matrimonial home situate at and known as Property E forthwith.
In accordance with order 1 hereof, the wife attend to signing all documentation with the real estate agent of her choice to enable the house to be placed on the market forthwith.
After 45 days from the date of these orders the husband be ordered to vacate the property taking with him all his personal belongings to enable the house to be placed on the market.
The husband be directed to leave all existing chattels and fittings in the home as of this date.
The wife attend to any reasonable maintenance and/or repairs to assist the sale of the property and the costs to be borne by the wife at the time for the said repairs/maintenance be deducted from the settlement moneys due prior to any property settlement determined by this Court.
A copy of these orders be provided to the (omitted) Bank.
The proceeds of the sale of the matrimonial home be held on trust by the wife’s solicitors, and applied as set out in Order 8 below.
That the proceeds of sale of the Property E property be applied as follows:
(a)First, to pay all reasonable, costs, commissions and expenses of the sale;
(b)Secondly, to remove caveats registered on the property to enable the sale to proceed, namely Harwood Andrews caveat number (omitted) lodged 6 December 2011 and Australian Government Solicitor caveat number (omitted) lodged 29 June 2011.
(c)Thirdly, to discharge the registered mortgages to the (omitted) Bank (“the (omitted Bank) mortgage”).
(d)Fourthly, to pay the debts of the marriage:
(i)The debt owed to (omitted) College, in relation to unpaid school fees, the total of which is currently estimated at $18,572.95 (“unpaid school fees”) as at 2 April 2013.
(ii)The debt owed to (omitted) Services currently estimated at $7,089, plus any costs, interests and penalties which have accrued thereon (“(omitted) Services debt”);
(iii)The wife’s (omitted) Bank credit card, in her sole name in the amount of $7,000 as at the date of separation.
(iv)The husband’s (omitted) Bank credit card, in his sole name in the amount of $40,000 as at the date of separation.
(e)Fifthly, the Husband to pay the following debts from his 50% settlement funds as follows:
(i)The amount of $7,669.22 (plus interest) (payout figure to be obtained prior to settlement) to the wife as reimbursement of the husband’s costs incurred by Harwood Andrews for the removal of caveat number (omitted);
(ii)All arrears of rates, which may then be owed to (omitted) City Council, and all and any penalties which have accrued thereon (“rates arrears”);
(iii)The debt owed to Australian Government Solicitor (Child Support) in the amount of approximately $46,000 to remove the caveat number (omitted) in order to allow the property to be sold;
(iv)The wife’s costs of 27 July 2012 at $3,234, and of 19 December 2012 at $1,500 and those reserved on 13 February 2013 at $1,750.
That the husband be liable for the indemnify the wife and keep her indemnified against all and any taxation liabilities of whatsoever kind and nature or howsoever arising, be they past, present or future, as may be assessed against the husband and/or all and any entities controlled by the husband and/or in which the parties, or either of them, held any interest.
That the husband be liable for and indemnify the wife and keep her indemnified against all and any taxation liabilities that may be assessed against the wife, as a result of any audit, review, revision, amendment or re-assessment of the wife’s personal taxation position in the financial years from 1995 to 2012 inclusive.
That the wife retain to the exclusion of the husband the Honda (omitted) motor vehicle which is registered in her name.
That the wife do all acts and things and sign all such documents as may be required to transfer to the husband or at his discretion the Honda (omitted) motor vehicle, presently registered in the wife’s name.
The husband to return the manual and service booklet for the Honda (omitted) motor vehicle as ordered on 27 July 2012 orders.
That the husband retain his Ford (omitted) motor vehicle, which is presently unregistered.
That the parties’ superannuation be split on a 50/50 per cent basis adopting the sums of $25,104 for the wife and $68,000 for the husband.
The Court orders a superannuation audit of the husband Mr Landon to ascertain all superannuation funds in his name.
That unless specified in these Orders and save for the purpose of enforcing these orders;
(a)Each party be solely entitled to the exclusion of the other party all other property (including choses-in-action) in the possession of the party at the date of these orders;
(b)Insurance policies remain the sole property of the owner named herein;
(c)Each party be solely liable for and indemnify the other party against all and any liability encumbering any item of the property to which that party is entitled pursuant to these orders; and
(d)Any joint tenancy in any real or personal estate between the parties be and is hereby expressly severed.
That all extant applications be dismissed.
That the matter be removed from the list of cases awaiting determination.
That there be general liberty to apply to the parties in relation to the implementation of these Orders.
IT IS NOTED
The parties intend that these Orders shall end all financial and other relationships between the parties and avoid the need for any further legal proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Landon & Landon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9284 of 2011
| MS LANDON |
Applicant
And
| MR LANDON |
Respondent
REASONS FOR JUDGMENT
Introductory
The applicant wife seeks that there be a 50/50 split of the assets of the marriage in this property dispute. That position is qualified by the fact that she seeks that the husband be ordered to address a number of debts out of his 50 per cent share.
The husband seeks a 65/35 split in his favour of both property and superannuation, and resists a number of the more particular claims that the wife advances.
For the reasons that follow, I am largely going to make orders in the form sought by the wife.
The procedural history
It is not possible to understand the parties’ positions in this case without an unfortunately relatively lengthy exposition of the procedural difficulties that have bedevilled the matter.
The matter was first before the Court on 28 November 2011, at which time orders were made by consent. Those orders included that the husband have sole use and occupancy of the former matrimonial home in Property E, and that he pay the mortgage in respect of that property. It was also agreed that there would be a valuation of the property if the parties were otherwise unable to agree. The matter was listed for final trial on 27 July 2012 with an estimate of one day.
On 5 March 2012 a conciliation conference was held before Registrar
Riddiford. The Registrar made notations on the Court file. These relevantly recorded that all outstanding tax returns would be attended to by the end of March 2012. After that matter had been attended to, the parties were next to attend to the Centrelink and Child Support debts. It was agreed that there would be a joint valuation if agreement was not reached by the end of March 2012. It was agreed that the Honda (omitted) (essentially the husband’s motor vehicle), had an agreed value of $20,000, and the wife’s Honda (omitted) motor vehicle, $9,000.
It was also agreed that a number of debts were joint matrimonial debts, namely, $7,100 to the wife’s (omitted) Bank credit card, $40,000 to the husband’s (omitted) Bank credit card, $3,000 owing to the (omitted) City Council, and $8,000 to (omitted) Services.
It should be noted that this last debt is noted in the case outline filed by the wife at a value of $7,089 plus interest etc.
On 27 July 2012, the matter did not proceed to final determination. The proceeding was adjourned to 11 April 2013. There were orders by consent which included a valuation of the matrimonial home by (omitted) by 1 November 2012. The husband was ordered to provide all his relevant financial documents within 7 days, and to lodge a financial statement by 20 August 2012, and to serve upon the wife therewith, all source documents relating to the entries in the financial statement.
The wife’s costs of the hearing on 27 July 2012 were fixed at $3,234 and reserved to trial.
The husband did not comply with those orders, and on 19 December 2012, further orders were made. The husband was ordered to file a financial statement and affidavit of evidence by 25 July 2013, and to comply with the order for valuation made in July 2012 forthwith.
On 6 February 2013, the Court made ex-parte orders on an urgent application brought by the wife, who sought to sell the matrimonial home because of endeavours being made by the bank to proceed with a writ of possession.
Those orders were effectively reversed by further orders made on
13 February 2012. The husband was given until 13 March 2013 to file his affidavit of evidence and to make available all relevant financial documents.
The husband had in the interim filed a financial statement on
25 January 2013, but he has not served upon the wife any supporting documents going to explain the figures in that statement. More particularly, he has not served any documents in relation to his superannuation interests, some of which are only estimates in any event.
It should be noted that various solicitors for the applicant, and the applicant herself, have filed affidavit material from time to time showing substantial endeavours to make the husband disclose his relevant documentation. The husband is an (occupation omitted). He is clearly aware of his obligations in relation to documentation.
The lodging of tax returns, both initially on the part of the wife and the husband, but more recently the husband alone, has simply not even now fully occurred. It appears that the husband’s last lodged tax return was 2008. This is an extraordinary state of affairs from a man who (omitted).
The application to adjourn
On 13 February 2013, the wife filed an application in a case seeking, in effect, that orders be made in her favour on a peremptory basis, given the husband’s failure to comply with previous Court orders as to discovery and the like.
On 5 April 2013, the wife filed an affidavit and an outline of case document. She sought that the Court grant her the orders claimed in the outline of case as a result of the husband’s failure to comply with previous orders.
I have not endeavoured to traverse in any detail the substantial amounts of correspondence sent on a unilateral basis by the solicitor for the wife to my associate from time to time in which, inter alia, it was sought that the matter proceed undefended, or that the matter be adjourned because of the husband’s failure to comply with orders.
At the start of the proceeding, counsel for the wife sought that the matter proceed on an undefended basis. The husband sought that the matter be adjourned.
Not for the first time the husband asserted that, so to speak, all matters involving the bank were under control and that if he was just given a bit more time, he would sort everything out and in due course pay to the wife an appropriate amount. Given that the parties do not agree as to the division of any relevant amount, this would in any event have been a problematic procedure to adopt.
I put it to the parties that the Court was likely in the circumstances of the matter to proceed with the trial, notwithstanding the husband’s failure to comply with his obligations as to discovery, and to apply the sort of reasoning exemplified by the Family Court in cases such as Chang vSu (2002) FLC 93-117. I explained, putting the matter broadly, this meant that where parties had not made adequate discovery, the Court was entitled to be more robust.
In the ultimate, I declined the application made by the wife to proceed on an undefended basis. For all his egregious failure to comply with his obligations, both as to discovery generally and more particularly with the Court’s orders, the fact is that the husband is self-represented and should not be shut out wholly from being heard.
I was equally, however, not prepared to adjourn the matter yet further. The matter has been adjourned from one previous trial date and there have been a number of interlocutory applications during which the husband has asserted, putting the matter broadly, that he would sort out all extant problems in relation to the debts owed on the home and otherwise. This has not occurred. Despite being ordered to do so on various occasions, and having undertaken to do so before Registrar Riddiford, the reality is that the husband has not completed his tax returns.
I had and continue to have no confidence that the husband would ever have addressed the proper progression of this matter if an adjournment was granted. He has had the best part of a year and a half to get his affairs in order for trial.
The wife’s counsel submitted that the wife desperately needed closure as to the financial inter-relationship with the husband, and her affidavit material had deposed to the stress and difficulties this has occasioned her.
It was clear, in my view, that the proper administration of justice required that the matter proceed on the day, and it therefore did so.
The parties’ evidence
It is uncontroversial that the husband was born on (omitted) 1960 and the wife on (omitted) 1966. They married on (omitted) 1987, and separated for the final time on 22 January 2011.
There are four children of the marriage, W born (omitted) 1989, X born (omitted) 1991, Y born (omitted) 1993 and Z born (omitted) 1994.
Although at the time the wife swore her first affidavit filed on 14 October 2011, the children were living in the matrimonial home with the husband and spending weekends with her, it is clear that they have since become aligned in this matter and that their relationship with their mother is now fractured.
The four children continue to live at home. The eldest makes as much as $1,000 a week, and even the youngest makes several hundred dollars, according to the husband’s most recent financial statement. Nonetheless, it appears that they do not contribute in any meaningful way to the household expenses. Parents are notoriously generous.
The husband earns $100,000 a year as an (omitted) and despite earlier doubts it seems clear that his employment is reasonably secure. The wife earns approximately $60,000 a year as a (omitted).
I do not propose to traverse the parties’ affidavits in any great detail because the picture that emerged was not one of great controversy. When the parties commenced to live together, the husband had savings of something of the order of $50,000 (the parties put slightly different figures). At or about that time, they applied those funds to buy the first matrimonial home in (omitted). Once again, there is some slight dispute as to the exact purchase price, but it seems to have been of the order of $110,000 to $120,000. That property was itself sold at some point (not apparently indicated in the materials), with net proceeds of between $60,000 and $75,000, which were applied towards the purchase of the Property E property, which again appears to have been in total a little under $300,000.
It should be noted that whichever set of figures is the more accurate (and nobody has provided any documentation), the mortgage cannot have been much more than about $230,000 at the start. Given that this purchase took place a long time ago, on any view one might have expected it to decrease.
The wife’s evidence, given without, in my view, any effective challenge, was that she worked for very substantial tranches of time during the marriage. She said more particularly that from about 2005, when the husband exited a previous business partnership, and possibly 2007 onwards, the husband’s employment became intermittent and he had lengthy periods out of work.
I accept that during these periods the wife’s contribution to the finances of the relationship would have been substantially greater than would otherwise have been the case.
There is a Child Support debt assessed against the husband which presently stands at approximately $50,000. It is protected by caveat lodged on behalf of the Commonwealth of Australia as represented by the Child Support Registrar on 29 June 2011 (see exhibit A1).
The wife appears to concede that there is a countervailing Child Support debt alleged against her in the sum of $2,500 (see wife’s affidavit filed 13 July 2012 – paragraph 115).
The husband denies that there is any Child Support debt properly levied against him because he made countervailing payments in kind, and also because during the substantial period of the time that the Child Support debt accrued the parties were in fact living together.
This issue became the subject of some dispute during the hearing, but as I pointed out at that time, challenges to Child Support Assessments of this sort are properly brought through the Agency and the SSAT. I was not prepared to exercise the Court’s power, which in theory I could have, to determine the matter myself, not least because it was quite clear that the relevant documents necessary to identify and illuminate the matter were simply not available and would not be made available to the Court (albeit that the wife annexed a tranche of Child Support documentation to her 13 July 2012 affidavit). The parties will have to sort that dispute out through the relevant channels.
The husband has always been adamant that he wishes to keep the matrimonial home, although I note that one of the matters previously pressed, namely that the youngest child Z wanted to complete her year 12 there, has now been completed.
The wife’s affidavit filed 13 July 2013, clearly intended to be her trial affidavit at the time, set out a considerable history of family violence, denigrating and controlling behaviour on the part of the husband.
That affidavit appended as exhibit NML6, an appraisal which valued the Property E property at some $620,000 to $670,000.
Although nobody has provided a copy to the Court, so far as I am aware, I understand that (omitted) ultimately valued the property at some $550,000. This discrepancy is disturbing.
It should be noted that the wife took out Intervention Orders against the husband in 2007 and 2009 during previous periods of relatively short separation.
The wife complained that tax returns were not lodged, because of a failure on the part of the husband who controlled these matters in their relationship, to do so.
The wife deposed to a Centrelink debt of approximately $28,000 arising out of earlier confusions. Once again, that debt appears to have vanished in the wife’s most recent assertion of the pool in her outline of case document, although it does stand in the tabulation set out at paragraph 46 of her trial affidavit filed 13 July 2012.
The wife conceded the Child Support debt is $2,500.
It seems clear that the wife’s superannuation is most recently valued in her updated financial statement filed 13 July 2012 at $25,104, and the husband’s claimed total is $68,000, being an estimate and provided with no supporting documentation (the husband’s financial statement filed 25 January 2013).
The oral evidence given in Court
The applicant wife confirmed that she is employed as a (omitted). She said she left the marriage effectively with almost nothing and she was desperate to achieve financial closure.
Under cross-examination by the respondent husband, who was representing himself, she denied leaving $10,000 worth of household bills behind. She said they were in the appropriate cycle for payment. She gave evidence, which I found convincing, that she had contributed by direct debit to a debt owed to the (omitted) City Council. She confirmed that she had lived alone for 18 months and then re-partnered (nothing whatever has been said about this partner and the extent to which he may contribute to any household expenses that the applicant has).
The wife denied, in terms I found convincing, that she had been given all her group certificates by the husband. Her evidence was given with conviction and I accept it.
The husband asserted that there had always been a verbal agreement for a two thirds/one third split. I asked him to comment on the matters in the pool set out in the wife’s outline of case. He confirmed that the school fees figure of $18,572 was correct. He said that the (omitted) City Council fees had been reduced. The husband asserted that the mortgage was now $295,000. He referred to debts to the four daughters, allegedly owed by the wife, because she had taken moneys from trust accounts held on their behalf in 2004.
The husband confirmed that a debt owed to Mrs Landon, his mother, went back very many years. I explained that given that there was clearly no written or oral agreement as to its repayment, it was obviously statute barred.
Following these exchanges which took place while the husband was at the bar table, he adopted his affidavits in the witness box and was cross-examined.
The husband confirmed his salary of $2,000 per week gross. He said he had not paid the mortgage because he had had a six months hardship application for which the wife had withdrawn her support. He said he had not filed his affidavit more recently ordered because he missed the 13 March 2013 (extended) time line, and had not thought to contact the Court to seek a further extension.
The husband asserted that he had made interim enquiries with both the (omitted) and the (omitted) banks to refinance to keep the house. He confirmed that although he was a (omitted), his last tax return was lodged in 2008. He said that the returns were being drawn up, but had not been completed because of his responsibilities in looking after the children.
The husband’s demeanour while giving his evidence was entirely unconvincing. Some of his answers, while argumentative, were entirely unbelievable. His assertion, for example, that he has not completed his tax returns because he is looking after the now adult children, I am afraid, is utterly unbelievable. He was not a good witness.
The wife was recalled to address the issues about moneys owed to the children. It is sufficient to say that while the wife acknowledges an indebtedness to two of the children and intends to repay them, these are nothing to do with the dispute between the husband and wife. It is also apparent that the moneys taken out of the children’s trust accounts were taken out to meet family needs at the time, and would have been properly so applied at that time, in any event.
In final submissions, the husband said that it had always been agreed and discussed that the parties would split the matrimonial pool 65/35. His materials filed in the case suggest that he regards this as an appropriate outcome because he always earned more money than the wife, and because he put in the original investment that enabled the purchase of the first matrimonial home.
Tellingly, however, in his final submissions, the husband conceded that on occasion, the wife had in fact suggested in these discussions to which he referred that the appropriate split was 50/50. That of course is the figure she is now seeking.
Section 69(2) matters
Should the Court make an order altering the property interests of the parties in the light of their legal and equitable interests?
The High Court in the recent case of Stanford v Stanford [2012] HCA 52, has made it clear that there is no automatic presumption that in a property dispute case, a property order altering the parties’ interests should be made. The Court is first required to identify the parties’ existing legal and equitable property interests and to consider whether it is just and equitable to make any order altering them.
In this case, leaving aside relatively limited chattels, the relevant property interests are the former matrimonial home, which is owned in equal shares, and the parties’ superannuation.
The High Court did, however, make it clear in Stanford, that in most cases, this would not be a difficult test to satisfy. In Erdem v Ozsoy [2012] FMCAfam 1323, Walters FM (as his Honour then was) pointed out at [116] that:
“In most cases — relevantly, where the parties have separated and are no longer living in a marital relationship — the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the court that it is just and equitable to make orders altering the parties’ interests in their property.”
Here, of course, it is immediately apparent that the Court should, given the circumstances I have described, make an order altering the property interests of the parties.
The pool
Because of the inadequate way in which the materials have been presented and the arguments put, it is not altogether easy to identify the pool. Doing the best I can, it seems to me that the assets of the relationship are:
·Valuation of matrimonial home (as asserted by (omitted)) - $550,000
·Husband's Honda (omitted) motor vehicle - $20,000
·Wife's Honda ( motor vehicle - $9000
Matrimonial liabilities:
·Mortgage to (omitted) Bank - $295,000
·Wife’s credit card debt - $7000
·Husband’s credit card debt - $40,000
·(omitted) City Council fees (estimate $3,000 reduced) - $2,000
·School fees - $18,572
·(omitted) Services - $7,100 (rounded off).
It should also be noted that the husband’s former solicitors, Harwood Andrews, have filed a caveat to secure $8,000 worth of fees owed by the husband, and as earlier indicated, the Commonwealth has filed a caveat to protect some $50,000 worth of Child Support arrears. The wife’s Child Support debt is $2,500.
These Child Support debts, in my view, should not be included in the pool. There are statutory obligations that each party must meet. As I have earlier indicated, it would appear that there is an ongoing controversy about the husband’s alleged arrears and this will need to be sorted out by the competent authorities. I will of course bear in mind that these obligations are extant when considering the future needs and circumstances of the parties.
The wife’s superannuation is $25,104, and the husband’s is $68,000. I adopt this latter figure doing the best I can in the light of the husband’s non-disclosure.
Contribution issues
Contrary to the husband’s position, it is quite clear that the parties contributed equally over the course of this very long relationship.
True it is that the husband had an initial sum of approximately $50,000 which enabled the parties to buy their first home. That does not appear to have engendered a major springboard effect towards the purchase subsequently of the matrimonial home, because the maximum figure derived by way of equity upon the sale of the first home was only $75,000.
The matrimonial home was bought for about $300,000, and is now worth very substantially more. It is clear that the vast bulk of the equity in the matrimonial home derives from the parties’ joint efforts.
As I find and have no doubt the wife was the primary carer to the four children, and the person who did the majority of the housework.
Additionally, the wife worked for very substantial tranches of time during the period when the children were relatively young, and moreover would have been from about 2005 to 2007 onwards, at times, the only financial contributor. Against this, of course, the husband’s wages have always been substantially greater than those of the wife.
I note that the husband’s mother advanced funds to the parties. There was a dispute as to whether it was $5,000 or $15,000. These funds were advanced, it would appear, in the 1990s. Once again they would have been of assistance, but in the circumstances they do not in my view require any adjustment to the overall conclusion.
This was a relationship that essentially lasted from 1987 until 2011, a period of almost a quarter of a century.
In the circumstances described, it is quite clear to me that the parties’ contributions should be taken to be equal.
In reaching this conclusion, I note that the husband has to an extent made a negative contribution by failing to pay the mortgage as he originally was ordered by consent to do. The husband’s evidence about this aspect of the matter was entirely unconvincing. At best, his conduct has been feckless. It has led to a situation where a mortgage taken out for some $220,000 many years ago is now almost $300,000. He clearly did not contribute to this by any means entirely on his own. The majority of the increase took place during the period the parties lived together. However, this extra element, so to speak, is all part of the picture that leads me to the conclusion that the contributions of the parties should be assessed as equal.
Section 75(2) factors
Both parties appear to be in unremarkable health. Although the wife has deposed to the difficulties that she says the husband inflicted upon her during the marriage, the materials go nowhere near far enough to contemplate any sort of Kennon argument.
Furthermore, there is no medical evidence to support the wife’s assertion as to her difficulties. While I accept that the wife must have suffered a measure of stress and difficulty, and may even have been depressed at times, there is no suggestion that her ongoing mental health is at risk. She is apparently in full time employment and does not seem to me to be in any way inhibited.
The husband, it would appear, albeit very much as a matter of his own choice, will have the primary responsibility for the children of the marriage for at least some period of time to come. He will earn, in all probability, substantially more than the wife whatever happens.
The husband has asserted in earlier affidavit material that the wife was likely to get a promotion and obtain a substantially greater income than she has presently. I note that the wife was retrenched from a position she originally occupied when the proceedings started and there is nothing to suggest that her current income will substantially increase.
Against this, however, the wife has not elected to tell me anything at all about the partner she now has. I have to do the best I can. I would infer, as it is conformable with common sense and experience, that the new partner is of some assistance to her financially.
The wife is younger and will have a longer (although perhaps not so very much longer) period in which to earn and amass assets.
In all the circumstances (and not forgetting the substantial Child Support debt potentially payable by the husband), it seems to me reasonable to assess the parties’ future needs as equal.
The practical disposition of the matter
In my view, a division of the parties’ property on a 50/50 basis is entirely appropriate.
The question is how is this to be achieved?
The husband has always sought that the matrimonial home not be sold. The wife seeks that it should be sold and the various debts discharged. She also seeks that there be an audit of the husband’s superannuation funds.
In my view, the matrimonial home should be sold. I agree that this matter has to come to an end. The husband’s past conduct has been such that I can have no confidence that if I order him to pay a particular sum to the wife, he will do so.
The husband asserts that he would be able to pay the wife out are vague and imprecise and I have no confidence in them.
Rather than embarking upon a time consuming assessment of the husband’s superannuation, a just and equitable way to proceed in my view is that the husband’s superannuation be assessed at the figure he himself asserts. The superannuation assets of the parties should be included in the pool and divided equally between them. The former matrimonial home should be sold at auction and the husband will be in a position to bid for it.
It is clear that the caveats will have to be removed, and appropriate arrangements will need to be entered into by, (in the circumstances), the solicitors for the wife to ensure that the proceeds of sale are applied to discharge the debts secured by the caveats.
There are ancillary orders sought in relation to the motor vehicles of the parties (including one that has no value). The parties will obviously retain the chattels in their possession. I have not made any adjustment in relation to the chattels retained by the husband. They were all applied to the children and would be of minimal value in any event.
I have prepared draft orders which go some way to give effect to these conclusions, and will give the parties an opportunity to study them and receive any further submissions they may think appropriate.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 10 July 2013
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
-
Equity & Trusts
Legal Concepts
-
Costs
-
Remedies
-
Injunction
-
Constructive Trust
-
Jurisdiction
0
2
2