Libbert and Libbert
[2017] FamCA 271
•28 April 2017
FAMILY COURT OF AUSTRALIA
| LIBBERT & LIBBERT | [2017] FamCA 271 |
| FAMILY LAW – PROPERTY –Where parties married for approximately fifteen years and have two children –Where the Court finds the parties’ contributions as equal –Where the Court finds section 75(2) factors favour an adjustment of 20 per cent in favour of the wife due to the significant disparity in the future income-earning potential of the parties –Orders made for the parties to cause payment to the husband and wife respectively of sums $196,606 and $1,770, 159 from a controlled monies account –Orders made for $200,000 to be held in the controlled monies account |
| Family Law Act 1975 (Cth) ss 75(2), 79(4), |
| Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Libbert |
| RESPONDENT: | Mr Libbert |
| FILE NUMBER: | SYC | 14 | of | 2014 |
| DATE DELIVERED: | 28 April 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 16-17 August 2016, 29-30 November 2016 and 1 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies |
| SOLICITOR FOR THE APPLICANT: | Dimocks Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson, SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
The parties will do all things necessary to cause payment to the husband and the wife respectively of sums of $196,606 and $1,770,159 from the controlled monies account, with an amount of $200,000 to remain in that account pending compliance with the last of Orders 2.1 to 2.5 hereof.
2.1 Forthwith following completion of the financial year ending
30 June 2017 (FYE17), the husband do all things necessary to cause his accountant to prepare and lodge his tax return and the tax return for the B Trust.
2.2Upon the assessments for tax for the FYE17 issuing, the parties do all things necessary to cause the husband's accountant to calculate that portion of the tax payable that is referrable to:
2.2.1the RSU's sold by the husband (whether in his personal capacity or in respect of the B Trust) to facilitate the payment of the $330,988.35 to the Australian Tax Office in 2016;
2.2.2any RSU's sold by the husband (whether in his personal capacity or in respect of the B Trust) following this hearing but within the FYE17 (being all or part of those presently estimated to be valued at $381,514);
2.2.3the 420 shares in D Ltd sold by the B Trust in or about October 2016 for the sum of $125,568.92;
2.2.4any of the International Employee Common Stock in D Ltd, held by the B Trust (being all or part of those presently estimated to be valued at $230,101) sold by the husband (whether in his personal capacity or in respect of the B Trust) following this hearing but within the FYE17,
with such calculation treating the income giving rise to that tax as being the first income so earned by the husband (and shall include income arising from those transactions and distributed to the husband by the Trust) ["the Referable Tax"].
2.3Should the wife take issue with the calculation of the Referable Tax, calculated pursuant to Order 2.2 above, the parties forthwith do all things necessary to cause that calculation to be verified within 14 days by an independent registered accountant as agreed between them, and in the absence of agreement, as appointed by the president from time to time (or his/her nominee) of the Institute of Chartered Accountants Australia ("the Verified Tax"), with the costs thereof to be paid by the parties equally.
2.4The parties be bound by the calculation of the Referable Tax (or the Verified Tax if applicable), and then forthwith do all acts and things to cause the $200,000 held in controlled monies to be paid, in the following order and priority:
2.4.1to discharge in full the Referable Tax (or the Verified Tax if applicable);
2.4.2to pay 40 per cent of the balance to the husband; and
2.4.3the balance to the wife.
2.5Should the sum of $200,000 be insufficient to meet the Referable Tax (or the Verified Tax if applicable), the parties each forthwith pay that shortfall as to 40 per cent by the husband and 60 per cent by the wife.
The parties do all things necessary to cause the B Trust and/or C Pty Ltd to, in the following manner and priority:
3.1transfer any loan account balance in C Pty Ltd, in the wife's name, to the husband (if any);
3.2transfer to the wife's entire right, interest and shareholding in C Pty Ltd (if any) to the husband; and
3.3do all things necessary to remove the wife from being a director of C Pty Ltd (in so far as the wife may be a director).
The wife forthwith do all things necessary to:
4.1transfer any balance accruing that is payable to her as a beneficiary of the B Trust, into the name of the husband in the trust; and
4.2disclaim all right and interest she has, if any, in the B Trust, including any right to future distributions from the B Trust.
The wife, upon receipt of written request by the husband, do all things necessary to join the husband in winding up the B Trust, with the costs of doing so being borne by the B Trust at first instance (and otherwise by the husband, if any shortfall).
Simultaneously with compliance by the parties with Orders 3 and 5 (and 5 if applicable) above, the husband indemnify and keep indemnified the wife against any liability of any nature which the wife may otherwise have at any time arising in any way in respect of the B Trust, and C Pty Ltd whether:
6.1by reason of the wife having been an employee, director, officer and/or shareholder of C Pty Ltd;
6.2by reason of the wife having been involved in the business/es conducted by C Pty Ltd;
6.3for any other reason
and the husband will retain all right, title to and interest in C Pty Ltd, D Ltd shares and trust accounts held by the B Trust.
Otherwise each of the parties is declared to be solely entitled to all property and superannuation, of whatever nature, which is currently in his and her respective possession and control as at the date of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Libbert & Libbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 14 of 2014
| Ms Libbert |
Applicant
And
| Mr Libbert |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern financial issues between the applicant wife, Ms Libbert, and the respondent husband, Mr Libbert. Initially the wife sought orders for alteration of property interests, spouse maintenance and child support departure. She withdrew her applications for spouse maintenance and child support departure on 16 August 2016.
When the trial recommenced on 29 November 2016 each of the parties sought only orders for alteration of property interests. The applicant wife sought the following orders:
1.THAT within seven (7) days of the date of making of this Order, the parties do all such acts and things and give all such authorities as may be necessary to direct Dimocks Family Lawyers to disburse all monies held in a Controlled Monies Account by that firm to the wife.
2.THAT within twenty-eight (28) days of the date of making of this Order, the husband shall:
2.1.pay to the wife by way of property settlement the sum of $250,000; and
2.2.do all such acts and things and sign all such documents as may be necessary to transfer 500,000 of his Frequent Flyer points into the sole name of the wife.
3.THAT within twenty-eight (28) days of making of this Order, the wife shall do all such acts and things and sign all such documents as may be necessary to relinquish her interest in The B Trust ("the Family Trust").
4.THAT the husband shall hereinafter indemnify and keep indemnified the wife in respect of all actions, suits, claims or demands that may be made against her in respect of the Family Trust and/or [C Pty Ltd] ("the Company"), including any claims by the Deputy Commissioner of Taxation and/or in respect of any loan account in the wife's name and/or debts of any nature, whatsoever and howsoever existing or arising.
5.THAT the husband shall be entitled to retain as sole beneficial owner:
5.1.his interest in the Family Trust and the Company;
5.2.his superannuation entitlements with the D Ltd & Company P and AA Superannuation Funds;
5.3.the Motor vehicle 1 and Motor vehicle 2 vehicles in his possession;
5.4.his stock units in D Ltd Limited;
5.5.all funds in bank accounts held in his sole name; and
5.6.all shares currently held in his sole name.
6.THAT the wife shall be entitled to retain as sole beneficial owner:
6.1. the funds held in the Controlled Monies Account;
6.2. her jewellery items currently in her possession;
6.3. all shares in public listed companies;
6.4. all funds in bank accounts held in her sole name; and
6.5. her superannuation entitlements with ANZ Super.
7.THAT other than as hereinbefore provided, the parties shall each be entitled to retain as sole beneficial owner all personalty and financial resources currently in his or her name, possession or control, including life insurance policies and leave entitlements.
8.THAT the parties shall each otherwise be and remain liable for any debts in their own names as at the date of these Orders, and in this respect, shall indemnify and keep indemnified the other from any liability in relation thereto."
At the commencement of the trial counsel for the wife abandoned her purported application for transfer of Qantas Frequent Flyer points between the parties.
Also at the commencement of the trial, I asked counsel for the wife to identify the source of the payment to her by the husband of $250,000 in accordance with her proposed order 2.1. Counsel said that these funds would come from the husband’s reserved stock units in D Ltd. That proposal conflicted with the wife’s proposed order or declaration, as set out in paragraph 5.4 of her Minute, that the husband “retain his stock units in D Ltd Limited”.
At the commencement of the trial the respondent husband sought the following orders:
"THAT THE COURT NOTES THE FOLLOWING DEFINITIONS APPLY:
A.1."children" means the children of the marriage, [E] and [F];
A.2."parties" means the Husband and the Wife;
A.3."the Act" means the Family Law Act 1975;
A.4."the [Motor vehicle 2]" means the scooter registered in the Husband's name;
A.5."the [Motor vehicle 3]" means the [German] motor vehicle;
A.6."the Children's Shares" means the shares held by the Husband ATF each of the children;
A.7."the [B Trust]" means the [B Trust], in respect of which the Husband is the appointor, and the Parties are beneficiaries;
A.8."the Husband's Bank Accounts" means all bank accounts in the Husband's name including but not limited to NAB account
no. …29 and Company P accounts no's. …22 / …9A and …07 / …9Y;A.9."The Husband's [D Ltd] Group RSU's" means the vested Restricted Stock Units of the Husband as at the date of these Orders in the [D Ltd] Group Inc.
A.10."The Husband's [D Ltd] Group RSU's (Future)" the Restricted Stock Units not yet delivered, of the Husband as at the date of these Orders in the [D Ltd] Group Inc.
A.11."the Husband's [G Super Fund]" means the Husband's entire interest and entitlement in the [D Ltd] and J B Were Superannuation Fund;
A.12."the Trust D Ltd Group Shares" means the shares in the [D Ltd] Group Inc, owned by [C Pty Ltd] ATF the [B Trust] as at the date of these Orders;
A.13."the Trust Accounts" means the USD account and account (…53) held by the Trust with National Australia Bank (including any unrepresented cheques payable into that account, if any)
A.14."the Qantas Frequent Flyer Points" means the frequent flyer points held in the name of the Husband, with Qantas;
A.15."the [Motor vehicle 1]" means the Husband's [German] vehicle registered in the name of the Husband;
A.16."the Wife's Bank Accounts" means all bank accounts in the Wife's name;
A.17."the Wife's ANZ Superannuation Fund" means the Wife's entire interest and entitlement in the ANZ Smart Choice Superannuation Fund;
A.18."[C Pty Ltd]" means the company known as [C Pty Ltd], ACN … of which the Husband is the sole director and shareholder, and which is the trustee of the [B Trust].
THAT THE COURT ORDERS THAT:
The Payment to Each Party
1.The parties forthwith do all acts and things to cause the monies held in controlled monies by Dimocks Lawyers ATF the parties ("the Controlled Monies") to be paid to the parties so as to facilitate an overall division of the net property pool (predicated upon the Husband's Column in the balance sheet identified in this Case Outline Document (accounting for the liabilities and contingent liabilities identified on behalf of the Husband in the balance sheet above), and allowing for the partial property settlement of $488,883 already advanced to each party to date by way of partial property settlement*) as to:
1.1 57.5 per cent to the Husband; and
1.2 the balance of 42.5 per cent to the Wife.
The [B Trust]
2.The parties do all acts and things and sign all documents necessary to cause the [B Trust] and/or [C Pty Ltd] to, in the following manner and priority:
2.1transfer any loan account balance in [C Pty Ltd], in the Wife's name, to the Husband (if any);
2.2transfer the Wife's entire right, interest and shareholding in [C Pty Ltd] (if any) to the Husband; and
2.3do all acts and things to remove the Wife from being a director of [C Pty Ltd] (in so far as the Wife may be a director.)
3.The Wife forthwith do all acts and things and sign all documents necessary to:
3.1transfer any balance accruing that is payable to her as a beneficiary of the [B Trust], into the name of the Husband in the trust; and
3.2disclaim all right and interest she has, if any, in the [B Trust], including any right to future distributions from the [B Trust].
4.The Wife, upon receipt of written request by the Husband, do all acts and things and sign all documents necessary to join the Husband in winding up the [B Trust], with the costs of doing so being borne by the [B Trust] at first instance (and otherwise by the Husband, if any shortfall).
5.Simultaneously with compliance by the Parties with Orders 2 and 3 (and 4 if applicable) above, the Husband indemnify and keep indemnified the Wife against any liability of any nature which the Wife may otherwise have at any time arising in any way in respect of the [B Trust], and [C Pty Ltd] whether:
5.1by reason of the Wife having been an employee, director, officer and/or shareholder of [C Pty Ltd];
5.2by reason of the Wife having been involved in the business/es conducted by [C Pty Ltd];
5.3by reason of the receipt by the Wife of any money from [C Pty Ltd] and/or distributions from the [B Trust];
5.4by reason of Orders 2, 3, 4 and/or 5; or
5.5otherwise,
and as between the Husband and the Wife, the Husband retain all right, title and interest in [C Pty Ltd], the Trust [D Ltd] Group Shares held by the [B Trust], and in the Trust Accounts.
The Motor Vehicles and Scooter
6.The Wife, by this Order, indemnify the Husband and keep him so indemnified in respect of all actions, claims, suits, demands, taxes and/or liabilities in relation to the [Motor vehicle 3].
7.The Husband, by this Order, indemnify the Wife and keep her so indemnified in respect of all actions, claims, suits, demands, taxes and/or liabilities in relation to the [Motor vehicle 1] and the [Motor vehicle 2].
The Husband's D Ltd Group RSU's and The Husband's D Ltd Group RSU's (Future)
8.The Husband retain all right, interest and shareholding in the Husband's [D Ltd] Group RSU's and the Husband's [D Ltd] Group RSU's (Future), to the Wife's exclusion.
General Issues
9.Save as specifically provided for by any Order to the contrary, as against the Husband, the Wife be declared the sole owner of, and the Husband then have no interest in, all other personal property (including choses in action) of whatsoever nature and kind in the possession of the Wife at the date of the making of this Order, including but not limited to jewellery, furniture and effects, the funds in the Wife's Bank Accounts, and the Wife's ANZ Superannuation Fund.
10.Save as specifically provided for by any Order to the contrary, as against the Wife, the Husband be declared the sole owner of, and the Wife then have no interest in, all other personal property (including choses in action) of whatsoever nature and kind in the possession of the Husband at the date of the making of this Order, including but not limited to jewellery, furniture and effects, the funds in the Husband's Bank Accounts, the Husband's [G Super Fund], and the Qantas Frequent Flyer Points.
11.The Parties each do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these Orders.
12.Save as specifically provided for in these Orders to the contrary, each of the Husband and the Wife release the other from all debts owing from one to the other.
Costs
13.The Wife pay the Husband's costs of, and incidental to, these proceedings."
At the commencement of the trial, I asked senior counsel for the husband to quantify the quantum of the payment which he sought from the controlled monies account. Senior counsel informed me that the husband sought a sum of $861,000.
Background
The husband and the wife, who are both aged 47, began to live together in October 1998 and married in 1999. They separated under one roof on 18 August 2013 and the husband moved out of the former matrimonial home in November 2013. The parties were divorced on 20 November 2014, after having cohabited for almost 15 years.
The parties have two children:
·E born in 2001 (15); and
·F born in 2003 (14).
The children live with the wife and, regrettably, spend no time with the husband.
After the separation the wife and the children continued to live in the former matrimonial home at H Street, Suburb I, until the property was sold in September 2014. They then moved into rented accommodation in the vicinity of the children's private schools.
The husband lives in rented accommodation with his de facto partner, Ms J. Her three children, who are aged 15, 10 and 9, spend approximately equal time with each of their parents.
At the commencement of cohabitation the husband had qualifications as a chartered accountant. He was employed in research at K Ltd. The wife worked for the same company as a research assistant.
In 1999 the husband took on a position with L Bank as vice president in the US. The parties moved to City M and lived initially in a rented apartment.
Neither of the parties had any significant assets or liabilities at the commencement of cohabitation. In October 2001 they purchased an apartment in City M for US$660,000. The husband's parents gifted to him a sum of A$50,000 and the balance of the purchase money came from a mortgage advance from L Bank and savings.
In October 2003 the parties sold the City M apartment for a price of US$690,000 and purchased a house for US$1,450,000. The purchase money came from the sale proceeds of the apartment, a small amount of savings and a loan from Wells Fargo Bank. The parties carried out renovations to this property, using borrowed funds.
The parties sold the City M house when they returned to Sydney with the children in 2006. The sale price was A$2,600,000, with the net proceeds being approximately $2,000,000. In December 2006 they purchased the former matrimonial home at H Street, Suburb I for $2,925,000. This purchase was funded by the sale proceeds of the City M house, savings and a mortgage advance of approximately $1,100,000 from the National Australia Bank.
The parties carried out extensive renovations to the Suburb I property. The builder, Mr N, quoted $1,550,000 for the work but the total cost far exceeded that amount. The husband deposed that the renovations cost at least $2,278,000. During the course of the renovations, the parties dismissed the original architect and engaged Mr O in her place.
The husband deposed that the blowout in the renovation costs necessitated an increase in the NAB mortgage and sale of shares. He deposed further that the parties were practically debt-free in 2011 but had an overdraft in excess of $2,200,000 as a result of the renovations. Additionally, these costs necessitated the sale of shares for about $470,000.
The Suburb I property was sold for $4,725,000 in September 2014. Each of the parties received a sum of $200,000 from the proceeds as a partial property distribution. The balance of approximately $2,081,000 was lodged in a controlled monies account.
Between the date of separation on 18 August 2013 and the sale of the Suburb I property in September 2014, the husband met the mortgage instalments of approximately $10,000 per month. As noted the wife and the parties' children occupied the property during that period, while the husband lived in rented premises.
The husband joined the firm Company P in 2002. In 2003 D Ltd acquired a 45 per cent interest in Company P and the business became known as D Ltd Company P.
In 2008 the husband purchased a 0.03 per cent stake in D Ltd Company P for $172,375, using a National Australia Bank margin facility. He increased his stake to 0.016 per cent in 2009, at a cost of $801,463. In 2010 he acquired an additional 0.15 per cent interest at a price of $1,134,211.
In 2008 the parties established the B Trust (“the Trust”) for financial planning purposes. The trustee is C Pty Ltd. Senior counsel for the husband conceded that the Trust is his alter ego. The Trust holds the husband’s stake in D Ltd.
In July 2011 the equity partners of D Ltd Company P sold the entirety of their interest to D Ltd. The Trust received cash and 4,300 shares in D Ltd as a result of this sale.
In addition to the shares held by the Trust, the husband has been awarded restricted stock unites (“RSUs”) as part of a bonus structure within D Ltd. The husband explained that RSUs are "in effect an unfunded promise to deliver shares in D Ltd."
In 2011 D Ltd acquired the remaining 55 per cent of the firm D Ltd Company P. The husband sold his shareholding for $3,083,000, which comprised cash of $2,569,352 and stock in D Ltd to the value of $513,859. The Trust held these shares and cash.
Late in 2013 the husband caused a distribution from the Trust of a sum of US$254,480. These funds were part of the proceeds of sale of the husband's shares in D Ltd. The husband deposed that this sum was applied as follows:
·$176,485 paid to the builder Mr N;
·$40,000 held on trust for Mr N, to be released upon provision of an Occupancy Certificate;
·$4,053 paid to an electrician;
·$20,877 for discharge of credit card debt;
·$15,351 for outstanding legal fees;
·$6,531 for accounting costs; and
·$3,430 paid to a landscaper.
It is noted that the total of the above amounts is $266,727.
After the separation the husband paid a total of $138,524 on account of the children's private school fees and $10,717 for family health insurance. He also paid child support at the rate assessed from time to time.
On 3 March 2014 the husband paid to the wife a sum of $10,900 pursuant to an order of the court. The order did not categorise this payment.
In April 2014 the husband sold RSUs for $146,805 pursuant to an order made on 27 March 2014. Each of the parties received approximately $68,883 from the net proceeds of sale. These payments were not categorised in the order. On 23 July 2015 the husband sold RSUs for $134,140.
This money was used to pay the builder Mr N and to meet a tax liability arising from an earlier sale of RSUs in April 2014.
In November 2015 the husband sold RSUs for $49,877, which he used to assist with payment of child support. In January 2016 the husband sold RSUs for $65,689 and again used this money to assist in meeting child support and other expenses.
In December 2015 each of the parties received a sum of $20,000 from the proceeds of sale of the Suburb I property. Pursuant to orders made on 24 February 2016 each of the parties received a sum of $200,000 from the controlled monies account. The orders categorised these payments as "partial property settlement".
In late February 2016 the husband received verbal notification that D Ltd intended to terminate his employment. On 29 June 2016 he received a net redundancy payment of $307,705. The husband's future employment and remuneration prospects were in issue in the proceedings.
In May 2016 the husband hosted a trip to the United States for two clients of the firm Q Limited. The husband received a gross fee of $25,000 for this venture.
In September 2016 the husband was requested to give expert evidence in civil litigation in the Supreme Court of Victoria. His total fee was $88,403 including GST and disbursements which he invoiced to a registered business name "Company R".
Essentially, the wife did not work outside the home during the marriage. She had limited periods of employment while the parties lived in City M. She ceased paid employment before the birth of the parties' son E in 2001.
In September 2014 the wife registered with an employment agency and gained two assignments. In May 2015 she worked casually in administration. In February 2016 the wife commenced a course, which she completed in May 2016. In July 2016 the wife took on a four-week contract position. Between 5 September 2016 and 22 December 2016 she was employed in administration.
In May 2015 the wife underwent knee replacement surgery. She was engaged in rehabilitation and unable to drive until September 2015. The wife's physical health and its impact on her income-earning potential was in issue in these proceedings.
On 14 November 2016 the wife sold a motor vehicle 3 for $28,250. She deposited the sale proceeds into her NAB account.
Approach to these proceedings
In Stanford v Stanford (2012) 247 CLR 108 the majority of the High Court of Australia held as follows:(paragraph 35)
35.It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under this section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
Their Honours further observed as follows:
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
The parties separated under one roof on 18 August 2013 and have occupied different premises since November 2013. They were divorced on 20 November 2014. The husband has entered into a new relationship and cohabits with his de facto partner. The parties have not pooled their resources and pursued joint financial goals for a period in excess of three years. The remaining proceeds of sale of their former matrimonial home are held in a controlled monies account, which cannot be accessed without orders of the court. In these circumstances, I am comfortably satisfied that it is just and equitable that there be orders for alteration of property interests.
That process firstly necessitates a determination of the identity, value, quantum and ownership of assets, liabilities and financial resources of the parties. All relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) of the Family Law Act 1975 (Cth) ("the Act") must be identified and weighed against each other. The matters set out in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2), must be considered and a determination made as to what if any alteration should be made to the entitlements of the parties as earlier assessed on account of contribution.
The evidence and witnesses
The applicant wife relied upon the following affidavits:
1.Ms Libbert (the wife) sworn on 18 January 2016
2.Ms Libbert (the wife) sworn 10 May 2016
3.Ms Libbert (the wife) sworn on 11 August 2016
4.Ms Libbert (the wife) sworn on 23 November 2016
5.Mr J (ex-husband of Ms J) sworn on 21 June 2016
6.Mr O (architect engaged in renovations to the Suburb I property) sworn on 9 May 2016
7.Financial Statement of Ms Libbert sworn on 10 May 2016.
Only the wife was required for cross-examination.
The respondent husband relied on the following affidavits:
1.Mr Libbert (the husband) sworn on 10 May 2016
2.Mr Libbert (the husband) sworn on 4 August 2016
3.Mr Libbert (the husband) sworn on 14 November 2016
4.Ms J (the husband's partner) sworn on 9 May 2016
5.Mr S (business associate of the husband) sworn on 10 May 2016
6.Mr T (former neighbour of the parties in Suburb I) sworn on 9 May 2016
7.Mr U (acquaintance of the husband) sworn on 17 May 2016
8.Financial Statement of Mr Libbert sworn on 10 May 2016.
Only the husband was required for cross-examination.
Two single expert reports were prepared in the proceedings. The first was that of Mr V (a rehabilitation consultant) who prepared reports as to "the employability and potential income of both [Mr and Ms Libbert]". The second single expert was Dr W, an orthopaedic surgeon who reported on the wife's physical condition and capacity for employment. Dr W was not required for cross-examination.
On 17 August 2016, during the first tranche of the trial, counsel for the wife objected to various passages in the report of Mr V concerning the husband. In Reasons for Judgment dated 11 November 2016 I ruled on these objections. As appears in those reasons, I admitted these passages on condition that Mr X, the chief financial officer of Macquarie Securities Group, would be available to give evidence on the resumption of the trial. As appears in my reasons dated 11 November 2016, Mr V conferred with Mr X in relation to his report concerning the husband. In November 2016 both Mr V and Mr X gave oral evidence.
The assets, superannuation, liabilities and financial resources
Both counsel made submissions in relation to the parties' assets, superannuation, liabilities and financial resources based on a Balance Sheet set out in the Outline of Case on behalf of the husband. This document set out the contentions of each of the parties in relation to the Balance Sheet.
On 2 December 2016 the husband's solicitor submitted a Balance Sheet which was amended to reflect the sale of the Motor vehicle 3 by the wife and to update the balance of the Fidelity USD Cash Account. This Balance Sheet read as follows:
Ownership Description
Wife/de facto partner's value Husband/
de facto partner's valueASSETS 1 H Motor vehicle 1 $15,000 $15,000 2 H Motor vehicle 3 NA NA* 3 J Controlled monies re: Suburb I sale
$2,167,772
$2,167,7724 H Motor vehicle 2 $4,800 $4,800 5 H RSU's in D Ltd $381,514 $381,514 6 H Rental bond $6,800 $6,800 7 W Rental bond $6,400 $6,400* 8 H NAB Savings [no. …29] $60,328 NA
[$9,811]9 HFT NAB US$ Account $8,500 NIL 10 H Fidelity USD cash account $1,210 $1,210 11 H Company P Accounts $3,413 $72 12 HFT International Employee Common Stock
$230,101
$230,10113 W Furniture and effects, artwork $20,000 $20,000* 14 H Furniture and effects, artwork $5,000 $5,000 15 J Interest in C Pty Ltd
$10
$1016 W NAB Savings $10,981 NA*
[NK}17 W Interim property distributions $488,883 NA*
[$488,883]
18
H Interim property distributions $488,883 NA
[$488,883]19 W Personal jewellery, clothing $12,000 $12,000* 20 HFT NAB account …53 $9,129 $409
[See 39 below]21 H Net redundancy payment NA NA 22 H Funds due by Y Lawyers
$88,404NA [see 47 below] 23 H Funds held in Solicitors Trust Account
$74,347
$74,34723.1 W Funds held in Solicitors Trust Account
$25,590
$25,590*Total $4,109,065 $2,951,025
[or $3,928,791 if incl. 17 and 18]
ADDBACKS 24 W Paid legal fees/expert's fees $112,490 NA* 25 H Paid legal fees NK NA Total NK NA LIABILITIES 26 W Amex debt NA NA* 27 H Visa/Amex debt NA NA 28 HFT Contingent Tax liability on sale of Common Stock
NK
NA29 H Tax on sale of RSU's NA NA 30 W Owed to Dentist (for F/E) $1,007 NA* 31 H Personal Tax FYE16 NK NA 32 W Tax NA NK* 33 H Professional Fees [Z Accountants]
NA
NA/Nil34 H Debt under Third Party Debt Notice
$6,524
NATotal $7,531 NA
SUPERANNUATION Member
Name of Fund
Type of Interest
Wife/
de facto partner's valueHusband/
de facto partner's value35 W ANZ Smartchoice Accumulation $77,510 $77,510* 36 H D Ltd & Company P Accumulation $351,286 $351,286 Total $428,796 $702,572.00
FINANCIAL RESOURCES Ownership
Description
Wife/de facto partner's value Husband/
de facto partner's value
37 H 16 RSU's not yet delivered (net)
$4,545
E $4,54538 H Contingent tax payable on unvested RSU's (above)
(E$1,848)
(E 1,848)39 J Interest in the B Trust [Stock] NA
[See 12 above]NA
[See 12 above]J Interest in the B Trust [USD Account]
NANA
[See 9 above]J Interest in the B Trust [Account #...53] E$409 NA
[See 20 above]40 J Shares held atf E and F Libbert
$15,200
$15,20041 H Redundancy Payment (Husband)
NA
NA42 H Tax on Husband's Redundancy Payment
NA
NA43 H Long Service leave and unused leave
NA
NA44 H Monies in trust with Barkus Doolan NA NA 45 W Monies in trust with Dimocks Lawyers
NANA*
[See 23.1 above]
46 H Frequent Flier (sic) Points NA NA 47 H Funds due by Y Lawyers NA $88,404
[See 22 above]Total $18,306 E $106,301 $4,710,645 E $3,486,122
[or $4,463,888 [if incl. 17 and 18]
Husband *Items to be received/retained by Wife = $ 141,500 (using the figures in the Husband's column). To affect a split of 57.5 per cent (H) and 42.5 per cent (W), the Wife would receive $1,255,102 (after $200,000 being quarantined for tax) from the controlled monies account, making the total property received/retained by her $1,396,602, calculated as follows: $3,286,122 (being the total after quarantining $200,000) x 42.5 per cent = $1,396,602
$1,396,602 - $141,500 = $1,255,102.
The Husband would receive $712,670 from the controlled monies account (after $200,000 being quarantined for tax), the Husband then receiving/retaining total property of $1,889,520.
This does not account for any interest accruing on the controlled monies account after the above balance was provide (sic) by the Wife's Lawyers, which interest the Husband contends should also be divided in that share between the husband and wife.
This also does not account for a greater portion of the Husband's property of $1,889,520 not being liquid (superannuation of $351,286).
Assets
The wife deposed that she sold the Motor vehicle 3 for $28,250 in November 2016 and deposited the proceeds into her National Australia Bank account. This account appears in the list of assets, thus there should be no separate entry to reflect the proceeds of sale of the Motor vehicle 3.
The husband annexed to his affidavit of 14 November 2016 a copy of a NAB statement which showed that the balance of that account was $9,811. The husband's NAB account will appear in the list of assets with that balance.
The wife sought to include in the list of assets US$8,500 as the balance of an account held by the Trust. The husband gave uncontradicted evidence to the effect that C Pty Ltd Pty Limited had a US dollar account until a few weeks prior to the trial. The husband's evidence, which I accept, was that this money was then lodged into an Australian account. Accordingly, I will not include in the list of assets a US dollar account with a balance of $8,500 in the name of the Trust.
The wife sought to attribute a value of $3,413 to the husband's Company P accounts, whereas he contended that the correct figure was $72. The husband relied on pages 37 and 38 of the annexures to his affidavit of 14 November 2016, which were statements issued by Company P for the period 1 July 2016 to 14 November 2016. These statements showed closing balances for the two accounts in the total sum of $72. This figure will thus appear in the Balance Sheet.
The wife gave uncontradicted evidence that the balance of her NAB account was $10,981 as at 23 November 2016. Senior Counsel for the husband pointed out that this amount came from interim property distributions. It was submitted further on behalf of the husband that the interim property distributions to each of the parties "no longer exist and would distort the outcome" and thus should not appear in the Balance Sheet. This submission made an exception of the funds currently held in the trust accounts of the solicitors for the parties. These amounts were $74,347 and $25,590 for the husband and wife respectively. On the same basis, the husband did not seek to "add back" a sum of $112,490 which the wife has paid on account of legal costs and expert fees.
Each of the parties has received a total of $488,833 by way of interim or partial property distributions. I accept the submissions on behalf of the husband in relation to these partial property distributions. These funds no longer exist, with the exception of the sums held in the trust accounts of the parties’ respective solicitors. Accordingly, the balance of the wife's NAB account will not appear in the Balance Sheet.
There was a dispute as to the balance of NAB account …53, which was operated by the Trust. The wife contended for a balance of $9,129 and the husband submitted that the correct figure is $409. The husband relied on page 36 of the annexures to his affidavit of 14 November 2016. This statement showed that his personal account had a balance of $9,811 on 14 November 2016 and that the "business account" contained $409. The figure of $9,811 already appears in the list of assets as the balance of the husband's NAB account. Accordingly, a sum of $409 should appear as the property of the Trust in the list of assets.
The wife sought to include as an asset of the husband a sum of $88,404 which is payable to him by Y Lawyers as his fee and expenses incurred as an expert witness in the Supreme Court of Victoria. This amount included a disbursement of $403 for accommodation and $8,000 on account of GST. Obviously it would be entirely inappropriate for the sum of $8,000 to be included as an asset of the husband, when he is required to pay these funds on account of GST. The amount of $403 presumably was paid by the husband and is being reclaimed as a disbursement. In any event, it seems to me that this money was post separation income earned by the husband and should not be included as an asset.
Liabilities
There was no evidence as to the quantum of "contingent tax liability on sale of common stock", hence no finding is available in relation to this alleged debt. Similarly, there was no evidence as to tax liabilities of either party for the 2016 year. I will disregard the entry "professional fees" (Z Accountants) in relation to the husband, with balance sheet entries "NA" and "NA/Nil".
The wife sought to include as a liability of the husband "debt under Third Party Notice" $6,524. The Third Party Notice has been dismissed and most of the evidence in relation thereto was struck out of the wife's affidavit. Accordingly, this purported liability should not appear in the balance sheet.
Ultimately, the husband accepted as a liability of the wife a sum of $1,007 for dental treatment received by the parties' children. This sum will appear in the list of liabilities.
The wife maintained that shares to the value of $15,200 are not held on trust for the parties' children and, presumably, should be considered an asset of the husband. As submitted by senior counsel for the husband, however, that proposition was not put to him. I will treat these shares as trust property held by the husband for the benefit of the children. These shares will not appear in the list of assets.
Items 41 to 45 on the husband's balance sheet contained values “NA” and, accordingly, cannot be the subject of findings. Item 46 was “frequent flyer points” which are not “property”. Nothing more need be said in relation to these entries. I thus find that the assets, superannuation, liabilities and financial resources of the parties are as follows:
ASSETS Ownership Description Value ($) 1. Joint Controlled monies account 2,167,772 2. Husband Motor vehicle 1 15,000 3. Husband Motor vehicle 2 4,800 4. Husband D Ltd RSUs 381,514 5. Husband Rental bond 6,800 6. Wife Rental bond 6,400 7. Trust Fidelity USD cash account 8,500 8. Husband Company P accounts 72 9. Trust International Employee Common Stock 230,101 10. Wife Furniture and effects 20,000 11. Husband Furniture and effects 5,000 12. Joint Interest in C Pty Ltd 10 13. Wife Jewellery and personal effects 12,000 14. Trust NAB account …09 409 15. Husband Funds in solicitor's trust account 74,347 16. Wife Funds in solicitor's trust account 25,590 Total $2,958,315 SUPERANNUATION
17. Wife
ANZ Smart Choice Super
77,510
18. Husband
D Ltd & Company P
351,280
Total
$428,790
LIABILITIES
19. Wife
Dental treatment for children
1,007
FINANCIAL RESOURCES
20. Husband
16 Undelivered RSU's
4545 (gross)
As noted, senior counsel for the husband conceded that the trust is his alter ego. Accordingly, I will treat the assets held by the trust as the property of the husband.
Contributions
The husband's parents made a gift to him of $50,000 when the parties purchased their first piece of real estate in October 2001. No doubt this gift was of real assistance to the parties but $50,000 was a relatively modest component of the purchase price.
The husband earned a substantial income during the marriage and also received stock units by way of bonuses. In his affidavit of 10 May 2016 the husband set out his taxable income for the years 1998 to 2015 as follows:
Year
Taxable Income
Note
1998 (AU)
AU$78,007
1999 (USA)
US$35,461
(approx AU$54,255)
1999 (AU)
AU$164,565
2000 (USA)
US$267,943
(approx AU$593,177)
2000 (AU)
AU$69,020
2001 (USA)
US$355,483
(approx AU$722,086)
2001 (AU)
AU$1,372
2002 (USA)
US$330,460
(approx AU$608,022)
2003 (USA)
US$585,263
(approx AU$860,554)
2004 (USA)
US$680,045
(approx AU$951,511)
2006
NK
2007
AU$576,202
2008
AU$1,147,579
of which is expected a portion is attributable to Capital Gains
2009
AU$652,713
2010
AU$1,453,006
of which $53,242 was from Capital Gains on the sale of shares
2011
AU$969,249
of which $48,001 was from Capital Gains on the sale of shares
2012
AU$633,276
of which $19,266 was from Capital Gains on the sale of shares
2013
AU$547,440
of which $80,511 was from Capital Gains on the sale of shares
2014
AU$694,334
2015
AU$693,074
(including capital losses of $19,635)
Total:
E AU$11,234,485
(excluding any amount for the 2006 Financial Year)
The husband’s substantial income, by way of salary and the proceeds of sale of bonus stock units, was applied inter alia to meet mortgage instalments, large renovation costs, private school fees and living expenses for the family. It was evident that the parties and their children enjoyed a comfortable lifestyle.
The husband continued to provide financial support for the wife and the children after the parties’ separation. He paid the mortgage instalments on the Suburb I property until its sale in 2014. He paid the children’s private school fees and contributed to their financial support. The husband gave uncontradicted evidence that he made the following post-separation payments:
($)
· private school fees
138,524
· private health insurance for wife and children
10,717
· child support
67,646
· mortgage interest
87,587
A submission was made on behalf of the wife to the effect that the husband deprived her of funds after the separation. It was said that the husband, inter alia, “cut off her credit cards and took steps to remove $59,000”.
In response to that submission the husband relied on paragraphs 17, 18, 19, 21 and 22 of his affidavit of 9 February 2016. This evidence read as follows:
17.In the Initiating Application filed by [Ms Libbert] on 2 January 2014, interim orders were sought as follows:
(a) Spouse maintenance in the sum of $5,500 per month and medical benefits cover at the existing level;
(b) A sum of $125,000 as an by way of interim property settlement; and
(c) Child support departure Orders, such that I pay $1,500 per month per child by way of periodic support in addition to meeting certain educational and medical expenses for the children.
[Ms Libbert] also sought orders for the payment of outgoings and expenses relevant to the Suburb I property.
18.I made an open offer of settlement on 5 March 2014 to resolve the interim proceedings. A copy of the letter from BD to Dimocks is attached and marked “F”. That offer, inter alia, provided for a $500,000 partial property settlement to each of [Ms Libbert] and me from the sale proceeds of the [Suburb I] property. [Ms Libbert] refused and required a lesser (but still equal) amount be provided to [Ms Libbert] and me.
19.The 2014 Orders ultimately resolved the interim proceedings. In accordance with the 2014 Orders:
(a) upon settlement of the sale of the former matrimonial home, [Ms Libbert] and I each received a partial property settlement of $200,000 in September 2014;
(b) I sold [D Ltd] Restricted Stock units and the net proceeds were divided equally between [Ms Libbert] and me. We each received an amount of approximately $68,883 in May 2014;
(c) I pay child support as assessed from time to time, and additionally I meet certain specified educational and medical expenses relevant to the children.
…
21.[Ms Libbert] is seeking in this Application now before the Court, interim Orders such that she will receive the following:
(a) periodic spouse maintenance in the sum of $7,500 per month;
(b) an Order described as “urgent spousal maintenance interim property settlement” comprising a payment of $25,000;
(c) a distribution of $75,000 from the controlled moneys account to meet her additional legal costs;
(d) the transfer of the [Motor vehicle 3] in [Ms Libbert’s] possession, although registered in my name;
(e) costs.
22.On 28 January 2016, an open offer of settlement was made in a letter from BD to Dimocks to resolve these proceedings, a copy of which is attached and marked “G”. (“the open offer of settlement”). I proposed that [Ms Libbert] and I each receive an amount of $500,000 from the sale proceeds of the former matrimonial home (held in a controlled moneys account) as and by way of partial property settlement.” (original emphasis)
Having regard to this evidence, I do not accept that the husband attempted to deprive the wife of money after the separation. He made a proposal which would have placed both of the parties in funds.
Senior counsel for the husband submitted that the parties undertook different roles during the marriage. He indicated that the husband made no suggestion of any disparity in terms of the quality of their fulfilment of those roles. Logically, it is evident that the husband devoted considerable time and effort to his employment and that the role of homemaker and parent thus fell substantially to the wife. I accept that the husband was a devoted father, who was an involved parent to the extent permitted by the demands of his employment. I accept also that the wife supported the husband in his career and assumed the primary role as homemaker and parent.
Senior counsel for the husband submitted that his contributions outweighed those of the wife, such that the appropriate finding would be 60 per cent to 62.5 per cent in his favour. Counsel for the wife contended that the contributions of the parties should be found to be equal as at the date of separation. It was submitted that the wife’s post separation contributions warranted an adjustment of 5 per cent of the net pool in her favour.
Senior counsel for the husband relied upon his income-earning potential, capital contributions and post-separation payments for the benefit of the wife and children in support of the submission for a finding of 60 per cent to 62.5 per cent as at the date of trial. It is true that the husband earned a substantial income throughout the marriage, utilising qualifications which he gained prior to the relationship. It is also the case that the husband's parents gift to him of $50,000 probably was a factor in the parties' ability to purchase their first piece of real estate. I accept also that the husband made real and substantial post-separation contributions as identified above.
On the other hand, it appears that the parties made a joint election that they would adopt traditional and complementary roles of breadwinner and primary homemaker and parent. The husband was at pains to offer no criticism of the wife in her fulfilment of her role as primary carer of the parties' children and principal homemaker.
Counsel for the wife proffered in her final submissions an "aide memoir" entitled "Schedule of Benefits Received By The Husband From 30.6.13 To Date". This document appeared to be a list of all funds which came into the hands of the husband during that period.
As pointed out by senior counsel for the husband, the wife did not conduct her case on the basis that he "wasted wealth". Further, there were no submissions on behalf of the wife to the effect that any of these sums should be added back to the list of assets nor be the subject of an adjustment pursuant to section 75(2)(o). In these circumstances, I do not attach significance to the contents of the wife's "aide memoir".
In summary, the parties commenced their relationship with no significant assets or liabilities. The husband brought into the relationship his qualifications and skills but the parties' wealth was built up in circumstances where they adopted traditional roles by their own election. In the post-separation period the husband continued to make financial provision for the wife and the parties' children. I am conscious that the husband's parents injected $50,000 into the purchase of the parties' first piece of real estate. In all of the circumstances, I find that the contributions of the parties were equal as at the date of trial.
Section 75(2) factors
There is no doubt that the husband’s income earning capacity exceeds that of the wife to a substantial extent. In terms of section 75(2) factors, senior counsel for the husband said:
the standout item is the parties' respective earning capacities and there is no doubt that the husband's is more rosy than that of the wife.
Dr W examined the wife on 13 May 2016 and prepared a report dated 15 June 2016. There was no challenge to the expertise or opinions of Dr W, who reported as follows:
4.Your opinion as to the effect of [Ms Libbert’s] condition (specifically, that of her feet and knees) upon her capacity for obtaining and/or maintaining paid employment:
4.1 at the current time
4.2 in the near future.
Based on my examination on 13 May 2015, I believe it is reasonable to conclude that [Ms Libbert’s] ongoing knee and foot symptoms do and will continue to have an impact on her ability to obtain and maintain employment. As I have indicated previously, her knees are likely to remain a source of ongoing symptoms and will represent a source of permanent impairment. She will never regain normal function in the knees. Consequently she is not well suited to employment that involves periods of prolonged standing and walking, or repetitive bending, kneeling, squatting, stair or ladder climbing. She should have the opportunity to alternate her tasks where possible and have regular breaks. She is not totally unfit for work and clearly has the capacity to return to the workforce on suitable duties within the restrictions outlined above.
The outlook for both the current time and the near future are similar and along the lines outlined above.”
In my view, the wife in recent times has made reasonable and commendable efforts to re-enter the paid workforce. She has worked in clerical positions and undertaken a course. I accept that she may well have found it difficult to re-enter the paid workforce after a gap of some fourteen years and a period of over a decade of concentration on the roles of homemaker and primary carer for the parties' children.
I accept the expert evidence of Dr W, to the effect that the wife's earning capacity is compromised by physical problems with her knees and feet. She does not have the skills and experience in the workplace of the husband.
As noted the husband was made redundant on 29 June 2016 and, as at the date of trial, he had not secured alternate full time employment. He has earned income from escorting a trip to the United States for the firm Q Limited and for his role as an expert witness in the Supreme Court of Victoria.
The husband gave the following evidence of his view of his employment prospects:
Of course I do not say it is impossible for me to obtain any employment in [my old form of employment. Yes, I am capable of full time employment in [that area].
No doubt I have heaps of skills but it is not easy for me to identify a role I could step into. ….
Mr V summarised his opinion of the husband’s employability as follows:
13.1 Summary
It should be noted that a man, such as [Mr. Libbert], with an extensive career both in Australia and overseas, as well as the business connection this brings, may well have contacts, employment leads and employment opportunities available to him which this report is unable to comment on. ….
At the time of his interview [Mr. Libbert] advised that he did not know what employment opportunities awaited him only that he understood that the changes in the global market place would undoubtedly mean he would need to head in a new career direction. [Mr. Libbert] reported that in his opinion he would not be able to return to a role similar to his pre-redundancy and that fundamentally he believed his earning capacity and potential earning capacity had significantly decreased.
[Mr. Libbert’s] opinion with regards to his earning potential and employment opportunities, …were validated through the limited labour market research which was available, with a representative of … Macquarie Bank ….
The availability of higher earning roles such as … or managing director in the longer term may depend on the performance of … markets. That is beyond my expertise to comment on. If such opportunities were to become available to [Mr. Libbert] again the only available guide to the potential remuneration Mr. Libbert might earn is Mr. Libbert’s prior earning history in similar roles.
[Mr. Libbert] does however retain considerable transferable skills which have been explored in this report. The labour research determined that realistically [Mr. Libbert] would be able to compete for employment in the work option identified within this report, which would provide him with an earning potential in the general range of $200K.”
Mr X said, inter alia:
He (Mr V) asked about remuneration levels. For an …, high $200s plus bonuses that are very much linked to performance. A bonus can be zero. For an … entry level [payment] would be $100,000 to $130,000. It is quite competitive, a lot of people want that job. A top ranked …could earn $500,000 but you would have to be at the top of your game”.
I don’t believe a research … background would be an advantage, maybe a disadvantage.
If the husband’s role since 2011 in part has been [research], … so I agree you would have connections.
There has definitely been a dropping off in [Mr Libbert’s line of work}. I definitely do not suggest that the roles he fulfilled no longer exist, the market is constricting.
The bulge bracket is the top four, of which [D Ltd] is one. It is very hard to move down the ladder. It is quite a complex arrangement in a declining market.”
I accept that the husband is most unlikely to secure employment of a nature and pay scale which he held prior to the retrenchment. In my view, the husband summarised his employment prospects accurately in his interview with Mr V. He said that he "would need to head in a new career direction." Commendably, the husband has diversified his work in recent times. He is 47 years old and appeared to be an intelligent, resourceful and motivated person.
In these circumstances, I have no difficulty in concluding that the husband's income-earning potential exceeds that of the wife to a significant degree.
The children are currently aged 15 and 13 and, as noted, unfortunately spend no time with the husband. They continue to live with the wife and I am satisfied that the husband will pay child support as assessed from time to time. I reject the suggestion put on behalf of the wife to the effect that the husband has an irresponsible attitude to payment of child support. His post-separation payments for their benefit demonstrated the opposite attitude on his part.
I do not accept that the wife's responsibility to provide care for the parties' children impedes her capacity to engage in paid employment to the extent which she suggested in her evidence. E is 15 and F is 14 years of age. In my view, the children might reasonably be expected to be moving toward a level of independence and autonomy.
The husband’s partner, Ms J, is a consultant who has earned approximately $8,800 since 2015. She said that she has no plans to change her current pattern of employment. The husband gave evidence that Ms J's income was approximately $100,000 when they began to live together. An inference is thus open, to the effect that a greater level of income could be available to the husband's household.
On the proposals of each of the parties, the husband will retain superannuation of $351,280 and the wife a benefit of $77,510. It is reasonable to assume that neither party will be able to access these funds for a considerable period, given that they are both 47 years of age. Consequently, the husband will be locked out of a greater portion of his entitlement to the net pool than will the wife for the foreseeable future.
It seems to me that section 75(2) factors clearly favour the wife. I find that an adjustment of 10 per cent of the net pool of assets and superannuation in favour of the wife is warranted in all of the circumstances.
Result
The result is that I find that the net pool of assets and superannuation should be divided as to 40 per cent to the husband and 60 per cent to the wife. I do not consider this differential of 20 per cent to be excessive, in the context of a net pool with a value of approximately $3,386,000, where there exists a significant disparity in the future income-earning potential of the parties.
The Minute of Orders sought by the husband included provision for payment of tax incurred due to the sale of SRUs, D Ltd shares and stock held by him personally and/or the Trust. These tax liabilities are or will become a reality and provision should be made for payment of these amounts. I will make orders in accordance with the scheme outlined in the husband's Minute.
The net pool of assets and superannuation is valued at $3,386,098. If $200,000 is quarantined for payment of tax as proposed by the husband, a pool of $3,186,098 is available for division between the parties. Forty per cent and sixty per cent thereof equals $1,274,439 and $1,911,659 respectively.
The husband will receive or retain the following assets and superannuation:
($)
1. Motor vehicle 1
15,000
2. Motor vehicle 2
4,800
3. D Ltd RSUs
381,514
4. Rental bond
6,800
5. Fidelity USD cash account
8,500
6. Company P accounts
72
7. International Employee Common Stock
230,101
8. Furniture and effects
5,000
9. C Pty Ltd
10
10. NAB account …09
409
11. Funds in Solicitor's Trust Account
74,347
12. D Ltd and Company P Superannuation
351,280
Total
$1,077,833
This sum falls short of the husband's entitlement of $1,274,439, after the quarantining of $200,000, by $196,606. The husband should receive this amount from the controlled monies account.
The wife will retain the following assets and superannuation:
($)
1. Rental bond
6,400
2. Furniture and effects
20,000
3. Jewellery and personal effects
12,000
4. Funds in Solicitor's Trust Account
25,590
5. ANZ Smart Choice Superannuation
77,510
Total
$141,500
This figure falls short of the wife's entitlement of $1,911,659, after the quarantining of $200,000, by $1,770,159. She should receive that sum from the controlled monies account.
I will make orders as proposed by the husband in respect of the B Trust. The result will be to constitute the husband the holder of its assets and to provide him with an opportunity to wind up the Trust.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on
28 April 2017.
Associate:
Date: 28 April 2017
Key Legal Topics
Areas of Law
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Family Law
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Tax Law
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Equity & Trusts
Legal Concepts
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Remedies
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Costs
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Statutory Construction
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Fiduciary Duty
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Res Judicata
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