Lindsay and Lindsay

Case •

[2015] FCCA 3016

•

18 December 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINDSAY & LINDSAY [2015] FCCA 3016
Catchwords:
FAMILY LAW – Property proceedings – long marriage – modest pool – need for proper caution in making mathematical assessment of contributions – Calderbank offers by both parties – just and equitable considerations.

Legislation:

Family Law Act 1975, ss.75(2), 79(2) & (4), 117(1)

Family Law (Superannuation) Regulations 2001
Family Law (Superannuation) Regulations 2010
Brandt v Brandt (1997) 22 Fam LR 97
Calderbank v Calderbank [1976] Fam 93
Chapman & Chapman (2014) FLC 93-592
Garrett & Garrett (1984) FLC 91-539
Pierce v Pierce (1999) FLC 92-844
Polonius & York [2010] FamCAFC 228
Applicant: MS LINDSAY
Respondent: MR LINDSAY
File Number: CAC 1076 of 2014
Judgment of: Judge Neville
Hearing date: 23 October 2015
Date of Last Submission: 13 November 2015
Delivered at: Canberra
Delivered on: 18 December 2015

REPRESENTATION

Solicitor/Advocate for the Applicant: Mr C Hill
Solicitors for the Applicant: Longman Hill Solicitors, Orange, NSW
Counsel for the Respondent: Self represented

THE COURT ORDERS THAT

  1. The parties do all things and execute all documents necessary to distribute the proceeds of sale from the parties’ real estate in the following manner and priority :

    (a)(omitted) School fees.

    (b)60% of balance to Wife.

    (c)40% of balance to Husband.

  2. The Husband account to the Wife for the proceeds of the insurance claim in relation to (omitted) Truck and pay to the Wife 60% of total amount received.

  3. With regard to the Husband’s Superannuation with (omitted) Super:-

    (a)That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Super Fund.

    (b)That a base amount, calculated in accordance with the following formula:    
    60% of A :-

    A  =   The Husband’s superannuation entitlements less taxation payable thereon.

    is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Super Fund.

    (c)That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975;

    (i)The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

    (ii)The Husband’s entitlement to payments out of his interest in the (omitted) Super Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

    (d)That the Trustee of the (omitted) Super Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

    (i)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order;  and

    (ii)pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Super Fund.

    (e)That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

    (f)That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

  4. With regard to the Husband’s Superannuation with (omitted) Superannuation :-

    (a)That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Superannuation Fund.

    (b)That a base amount, calculated in accordance with the following formula:    
    50% of A :-

    A  =   The Husband’s superannuation entitlements less taxation payable thereon.

    Is allocated, as required by s.90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Superannuation Fund.

    (c)That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975;

    (i)The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

    (ii)The Husband’s entitlement to payments out of his interest in the (omitted) Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

    (d)That the Trustee of the (omitted) Superannuation Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

    (i)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order;  and

    (ii)pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Superannuation Fund.

    (e)That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

    (f)That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

  5. With regard to the Husband’s Superannuation with (omitted) Superannuation :-

    (a)That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Superannuation Fund.

    (b)That a base amount, calculated in accordance with the following formula:    
    60% of A :-

    A  =   The Husband’s superannuation entitlements less taxation payable thereon.

    is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Superannuation Fund.

    (c)That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975;

    (i)The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

    (ii)The Husband’s entitlement to payments out of his interest in the (omitted) Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

    (d)That the Trustee of the (omitted) Superannuation Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

    (i)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order;  and

    (ii)pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Superannuation Fund.

    (e)That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

    (f)That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

  6. With regard to the Husband’s Superannuation with (omitted) Superannuation :-

    (a)That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Superannuation Fund.

    (b)That a base amount, calculated in accordance with the following formula:    
    50% of A :-

    A  =   The Husband’s superannuation entitlements less taxation payable thereon.

    is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Superannuation Fund.

    (c)That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975;

    (i)The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

    (ii)The Husband’s entitlement to payments out of his interest in the (omitted) Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

    (d)That the Trustee of the (omitted) Superannuation Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

    (i)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order;  and

    (ii)pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Superannuation Fund.

    (e)That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

    (f)That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

  7. The outstanding debts to Telstra, Bigpond and for electricity, shall be borne 60% by the Husband, and 40% by the Wife.

  8. Each party is to pay their own costs.

THE COURT NOTES THAT

A.The parties have equal shared parental responsibility of the children X born (omitted) 2001 and Y born (omitted) 2001 (“the children”).

B.The children live with the Mother.

C.The Father spend time with the children at such times as agreed between the parties.

IT IS NOTED that publication of this judgment under the pseudonym Lindsay & Lindsay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1076 of 2014

MS LINDSAY

Applicant

And

MR LINDSAY

Respondent

REASONS FOR JUDGMENT

Introduction & Background

  1. Although the Wife included a small number of parenting orders in her Orders Sought (which were never addressed during the trial), these are property proceedings that arise out of a marital relationship between the parties of some 24 years, or thereabouts.  There are four children of the relationship.  The two older children are now aged 22 and 18, while the twins are aged 14.  The twins live with their Mother in Canberra and spend somewhat limited and infrequent, if not irregular, time with their Father, who continues to reside and work in (omitted).  The Husband is aged 48 years, and the Wife, 46 years.

  2. The Applicant Wife is not currently in paid employment but is taking significant steps in re-education, and otherwise, to return to the paid workforce.  I have already mentioned that the Husband is in paid employment in (omitted).  His income details are before the Court and are found, amongst other places, in exhibits E and F. 

  3. The asset pool is very modest.  Indeed, it is largely accepted by the self-represented Husband to be as set out in the Wife’s case outline filed on 22nd October 2015.  It is set out later in these reasons. 

  4. On the evidence before the Court, I also accept that the asset pool, as set out in that case outline, properly represents both the asset pool as to its value, and as to the “ownership” or responsibility (to speak somewhat generally) of assets and liabilities as it represents them.

  5. The issues now in dispute are quite small given that the general percentage division as sought by each party is really not so very different, one from the other.  Other than the three accounts in question, the difference between the parties, in percentage terms, is 10%.  Because the pool is so modest, and because the differences between the parties generally are equally limited, the matter should have settled.  But such is the emotional investment in family law matters that such common sense a course, in commercial terms, regularly gets lost along the way.

  6. As discussed at the recent trial, the primary areas of contention (and hence for determination) relate to the responsibility for three particular accounts: (a) a Telstra telephone account that attaches to the former marital residence in (omitted), (b) a BigPond account, and (c) an electricity account. 

  7. In general terms, the Wife highlights the main considerations for the Court as follows: (a) she has the primary and ongoing care of the remaining [minor] children; (b) she says that she receives limited payment by way of child support; (c) she questions the value of a (omitted) truck that was taken by the Husband (she says) at settlement, and (d) she questions the proceeds of an insurance claim regarding that (omitted) truck that was kept by the Husband.

  8. The Wife contends that the Husband has deliberately taken a pay cut from his employer to deal with anxiety and depression, but that once the Court proceedings are over he will likely recover his higher earning capacity, one that is decidedly higher than the income earning capacity of the Wife.  The Wife further says that the Husband’s earnings are lower because of his 2 year suspension (or disqualification) from (employment omitted). 

  9. For the Husband’s part, he too questions the few accounts earlier referred to that are outstanding.  That said, in his case outline he initially questioned, for example, outstanding school fees, but in the course of the trial he ultimately accepted what was proposed by the Wife in relation to the payment of those fees and how much was outstanding. 

Orders Sought

  1. The orders sought by each of the parties are as follows:

Wife’s Orders Sought

Children:

  1. That the parties have equal shared parental responsibility of the children X born (omitted) 2001 and Y born (omitted) 2001.

  2. That the said children live with the Mother.

  3. That the Father spend time with the said children as such times as agreed between the parties.

Property:

  1. The parties do all things and execute all documents necessary to distribute the proceeds of sale in the following manner and priority :

    a.   (omitted) School fees.

    b.   60% of balance to Wife.

    c.    40% of balance to Husband.

  2. The Husband account to the Wife for the proceeds of the insurance claim in relation to (omitted) Truck and pay to the Wife 60% of total amount received.

  3. With regard to the Husband’s Superannuation with (omitted) Super:-

    a.   That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Super Fund.

    b.   That a base amount, calculated in accordance with the following formula:  
    60% of A :-

    A  =     The Husband’s superannuation entitlements less taxation payable thereon.

    is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Super Fund.

    c. That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975;

    (i)    The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

    (ii)  The Husband’s entitlement to payments out of his interest in the (omitted) Super Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

    (d)     That the Trustee of the (omitted) Super Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

    (i) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order; and

    (ii)  pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Super Fund.

    (e)     That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

    (f) That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

    7.  With regard to the Husband’s Superannuation with (omitted) Superannuation :-

    (a)     That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Superannuation Fund.

    (b)     That a base amount, calculated in accordance with the following formula:  
    60% of A :-

    A  =   The Husband’s superannuation entitlements less taxation payable thereon.

    is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Superannuation Fund.

    (c) That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975;

    (i) The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

    (ii)     The Husband’s entitlement to payments out of his interest in the (omitted) Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

    (d)     That the Trustee of the (omitted) Superannuation Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

    (i) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order; and

    (ii)     pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Superannuation Fund.

    (e)     That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

    (f) That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

    8.  With regard to the Husband’s Superannuation with (omitted) Superannuation :-

    (a)     That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Superannuation Fund.

    (b)     That a base amount, calculated in accordance with the following formula:  
    60% of A :-

    A  =  The Husband’s superannuation entitlements less taxation payable thereon.

    is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Superannuation Fund.

    (c) That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975;

    (i)    The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

    (ii)  The Husband’s entitlement to payments out of his interest in the (omitted) Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

    (d)     That the Trustee of the (omitted) Superannuation Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

    (i) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order; and

    (ii)  pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Superannuation Fund.

    (e)     That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

    (f) That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

    9.  With regard to the Husband’s Superannuation with (omitted) Superannuation :-

    (a)     That Orders 12(a) to 12(f) inclusive are binding on the Trustees of the (omitted) Superannuation Fund.

    (b)     That a base amount, calculated in accordance with the following formula:  
    50% of A :-

    A  =  The Husband’s superannuation entitlements less taxation payable thereon.

    is allocated, as required by s90MT(4) of the Family Law Act 1975, to the Wife out of the Husband’s interest in the (omitted) Superannuation Fund.

    (c) That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975;

    (i) The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2010; and

    (ii)     The Husband’s entitlement to payments out of his interest in the (omitted) Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.

    (d)     That the Trustee of the (omitted) Superannuation Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

    (i) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by clauses (a) and/or (b) of this Order; and

    (ii)     pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the (omitted) Superannuation Fund.

    (e)     That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after the date of service of these Orders upon the Trustee of the Funds.

    (f) That liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.

Husband’s Orders Sought

  1. In his original case outline, the Husband proposed the following orders:

    1)     That the remaining proceeds [of sale] be divided 60% to Ms Lindsay and 40% to Mr Lindsay.

    2)     That Mr Lindsay make a payment of approximately $9574.97 in favour of the Wife by way of the total of the (omitted) Superannuation Account.

  2. In material filed after the hearing, the Husband set out in more detail the following proposal(s)/orders sought:

    1)[The Husband] be reimbursed $15,060, being sum of mortgage payments made by myself on Property A from the point of separation up until the Heads of Agreement.

    2)After reimbursement, a 50/50 split of net proceeds from both properties.

    3)A 50/50 split of combined superannuation.

    4)A percentage of [the Wife’s] redundancy.

    5)Responsibility for the Telstra and Electricity bills to remain with [the Wife].

    6)[The Husband] to retain insurance proceeds for the truck ($17,881.82)

    7)Costs

The Evidence

  1. The following chronology provides both background to, and context for, the orders that the Court ultimately makes that are considered to be just and equitable in all the circumstances, pursuant to s.79(2) of the Family Law Act 1975 (“the Act”). 

  2. The parties commenced cohabitation in 1989 and ultimately married in 1990.  Between 1990 and 2014 (thus a relationship of 24 years) the Applicant Wife had various general positions of employment, culminating, whilst she still resided in (omitted), in working in the (employment omitted) field.

  3. In 1991, the parties purchased a property at Property R.  In 2000, that property was sold, and in the same year they purchased a property at Property A.  In (omitted) 2007 the parties purchased an investment property in Property K in Queensland.  In January 2012 the Respondent Husband moved from the marital residence and, for a short period, her resided in Canberra.  In December 2013 the parties separated.  At that time the Applicant Wife remained in the former marital residence with three of the four children.

  4. In January 2014 the Applicant Wife sold a Mitsubishi Lancer in order to pay various debts.  In March 2014 the Respondent Husband was the subject of a stewards’ inquiry which led to his (omitted) licence being suspended.  Formally, the Husband was disqualified from (occupation omitted) for two years.  He claimed that the Wife reported him to the stewards.  Not surprisingly, because it was canvassed at trial and in his submissions, this obviously remains a point of rancour for the Husband.  He appealed that decision but was unsuccessful. 

  5. In April 2015 the Applicant and three of the four children left the former marital residence and moved into rental accommodation.  On 1st May 2015 the former marital residence was sold and the proceeds of sale were used by the mortgagee to pay out the mortgage over that residence and to reduce the mortgage over the Queensland investment property.

  6. At the end of July 2015, the Applicant Wife was made redundant from her position in (omitted) with the (omitted) Community Services, and she received a redundancy payment which totalled $24,685.  She then moved to Canberra and has since that time drawn down on her redundancy to provide for herself and the children.  The balance of her bank account into which that redundancy was paid became exhibit A, which shows that she currently has a balance of $8,166.54.  At the end of August 2015, the Queensland investment property owned by the parties was sold, and the net proceeds of $52,255 were deposited into a joint account at the (omitted) Bank.  I understand that it is essentially this sum that is referred to in the orders sought as “the proceeds of sale”.

  7. For my part, the evidence of the parties was quite straightforward.   Notwithstanding contentions made in the case outline against the Husband, I did not, and do not, find that there was either malevolence or otherwise anything untoward in his evidence in any relevant respect.

  8. Likewise, I do not (and did not during the trial) have anything untoward to say regarding the Wife’s evidence.  She gave it as clearly as she could.  Like the Husband, but in a different way, she clearly is struggling to cope with her situation in life following a long marriage, but she has the added concern of caring on a daily basis for the younger children of the relationship.  I accept her evidence that she is doing her best to further her education and thereby to increase her prospects for gainful employment.

  9. As a general observation, there were and remain unresolved evidentiary issues for both parties, and for the Court.  The state and nature of the evidence – and the lack of it – make it impossible for the Court to make many formal rulings (even more so than usual) regarding a number of the contested claims made by both parties.

Written Submissions

  1. Pursuant to Orders at the conclusion of the hearing, both parties filed written submissions in relation to the few specific issues that arose during the trial and which were identified earlier in these reasons (e.g. various telephone accounts and the like).

  2. In the Husband’s case, he later filed (on 12th November 2015) significant documentary evidence which, he said, bolstered his claims not least in relation to his contention that he was unable during the hearing to put his case properly. 

  3. Summarily stated, the written submissions provided as follows.

Summary of Wife’s Submissions

  1. For the Wife’s part, she said that both the Telstra and Bigpond accounts were business accounts in the Husband’s name; regarding the electricity account, the Wife said that she paid the household account and that there was a separate account for the (occupation omitted), which was also in the Husband’s name.  She sought that there should be no orders in relation to any of these accounts, absent “strong evidence to the contrary.”

  2. In relation to the insurance proceeds regarding the (omitted) truck, the Wife contended that when the Husband took the truck he took the risk with it, and that otherwise, the insurance payout of $20,000 should be treated as paid to and part of the distribution to the Husband.

  3. The Wife further submitted that the Husband’s complaints about his state of health are not such as to warrant any relevant consideration under s.75(2) of the Act. She also said that the Husband has had the benefit of “loans” from his Father, but which loans she said were “soft”, by which I take the Wife to suggest that they are not required to be repaid, contrary to the Husband’s evidence.

  4. I certainly accept the Wife’s contention that she has the day to day care of the party’s 14 year old twins, and that until recently, she also had the care of another child of the relationship, Z, who turned 18 years shortly before the trial.  This was not challenged by the Husband.

  5. I need not traverse other parts of the Wife’s written submissions except in relation to costs.  Among other things, the Wife complained about the lack of full disclosure by the Husband, which made resolution of the matter problematic.  Further, the Wife contended that there were Calderbank offers made to the Husband, and which have now been provided to the Court.

Summary of Husband’s Submissions

  1. Among other things, the Husband said that his drop in income was, in large measure, due to the Wife’s actions in reporting him to the (omitted) authorities.  As already noted, the Husband lost his (omitted) licence for two years.  This had led, he says, in him losing the business he had built up around that (omitted), and in consequence, a source of extra income.

  2. He contends that while his employment has been somewhat undercut, that of the Wife has not.  This is so notwithstanding her evidence, which I accept, that the Wife is not currently employed.

  3. The Husband said that he left the marriage with few possessions, while the Wife sold much of what was left behind – such as quad bikes, ride-on mowers, (omitted) and equipment.  He also said that he maintained the mortgage repayments (which totalled $15,060) over the Property A property from the date of separation up until the ‘heads of agreement’, dated 24th September 2014 (which was marked for identification [MFI 1] during the hearing).  The Husband said that after September 2014, the mortgage payments fell into arrears because of the Wife’s failure to pay them, arrears which totalled $9620.00.

  4. The Husband also said that he paid an outstanding credit card bill for which (he said) the Wife was responsible.  That bill totalled $9,718.00.

  5. The Husband also complained about the conduct of the litigation on the Wife’s behalf, and also contended that she had either withheld or provided false information, such as in relation to child support matters.  He said that the late filing of material on behalf of the Wife made the conduct of the case more difficult than it should have been.  The allegations regarding the Wife providing misleading information are set out in more detail at pars.54 – 69 of the Husband’s written submissions, filed 12th November 2015.  I need not repeat or summarise them.

  6. In aid of his case, the Husband again referred to character evidence given in his favour in the course of the disqualification proceedings.  It may simply be remarked that his appeal against disqualification was not successful, notwithstanding the character references.  In any event, such matters are not relevant to the current property proceedings.  It may in fact be argued that, in the light of his character references, the Court may assume that the Husband’s standing or reputation in the (omitted) community is not tarnished, so that he might be able, in time and once his disqualification period is served, to resurrect his (omitted) career.  However, because such an argument was not run, the Court will not have regard to it.

The Asset Pool

  1. I have already indicated that I accept as the asset pool the schedule of assets and liabilities set out in the Wife’s case outline.  I also note that, in terms of orders sought, in large measure the Respondent Husband accepts the superannuation split that is proposed (with only very slight variation), and otherwise accepts in general terms the orders sought by the Wife, subject to the issues to which I have earlier referred, namely, the various accounts and the proceeds of the (omitted) truck insurance.  Accordingly, the asset pool should be taken to be as follows:

    ASSETS

    2015 Holden (omitted)  (Ms L)  $  26,000

    (omitted) Account   (joint)   $  52,255

    (omitted) Bank of (omitted) Savings Account (Ms L)  $    7,000

    (omitted) Credit Union Account (Ms L)  $         1

    (omitted) Bank Account (Ms L)  $       24

    Household contents (Ms L)  $    1,000

    (omitted) Bank of (omitted) Savings Account (Mr L)  $       96

    Mazda (omitted)  (Mr L)  $  22,590

    ASSETS  (excl. Superannuation)   $108,966

    SUPERANNUATION

    (omitted) Superannuation (Ms L)  $  15,721

    (omitted) Superannuation (Ms L)  $  10,107

    (omitted) Superannuation (Mr L)  $  71,922

    (omitted) Superannuation (Mr L)  $    7,218

    (omitted) Superannuation (Mr L)  $    9,574

    $114,542

    LIABILITIES

    Holden Finance   (Ms L)  $   29,000

    (omitted) School Fees (joint)  $   12,077

    (omitted) Bank Visa (Ms L)  $     3,120

    Legal Fees – Longman Hill Solicitors  (Ms L)  $   18,000

    (omitted) Hire Purchase/Lease  (Mr L)  $   19,704

    TOTAL LIABILITIES   $   81,901

    NET ASSETS  $ 141,607

Contributions

  1. In accordance with authorities such as Pierce, and having regard to (a) the length of the relationship (approximately 24 years) and (b) the very limited factual disputes and controversies now before the Court, in my view, it is appropriate to consider the contributions during the relationship as essentially being equal.[1]

    [1] Pierce v Pierce (1999) FLC ¶92-844. See also the general discussion in Polonius & York [2010] FamCAFC 228.

  2. I am conscious of the Husband’s argument that he paid the mortgage for a period of time, post separation, and his further claim regarding the payment of a credit card debt.  Some allowance might relevantly be given to the Husband in this regard, although in the larger scheme of things, it might well be cancelled out by other matter noted below, including his retention of insurance proceeds in relation to the truck.

Factors Under s.75(2)

  1. There is significant authority to the effect that in property proceedings, it is impossible, and inappropriate, for the Court to seek to engage in a detailed, fine-tooth accounting exercise. This is especially so in relation to s.75(2) factors but it has wider application.[2]  Such a course is impossible.  In a number of respects, particularly in relation to the contest in the current matter over very specific accounts, this accounting exercise is exactly what the parties are seeking to have the Court do. 

    [2] See, for example, Garrett & Garrett (1984) FLC ¶91-539; Brandt v Brandt (1997) 22 Fam LR 97 at p.107.

  2. Unsurprisingly, as a self-represented litigant, the Husband took, and sought, a very precise accounting of sums which, in the larger scheme of things, were extremely modest.  Such an approach seemed as much driven by the grief of the parties over the failure of their marriage, and the on-going effects it has had on their lives and the lives of their children, as it did to bring some formal – but in my view, somewhat unrealistic - accounting for financial losses sustained by both parties.

  3. Further, in relation to factors under s.75(2) that are relevant in this matter, the following should be noted (most of which I have already recorded) (a) both parties (whose ages were earlier noted) are generally in reasonable health; (b) the Wife has the day to day care of the 14 year old twins, and until recently also had the care of a third child of the marriage; (c) the Husband’s income earning capacity is higher than the Wife’s, the latter currently not being employed; and (d) the standard of living of both parties are taken to be modest (accepting that such matters were not formally addressed or put in issue).

Consideration & Disposition

  1. I note that in Chapman & Chapman, the joint judgment of Strickland and Murphy JJ confirmed (a) the broad discretion open to the Court in making property orders that are just and equitable, and (b) the impossibility of charting “the metes and bounds” in determining what is just and equitable.[3]

    [3] Chapman & Chapman (2014) FLC ¶93-592 at [36] and [46].

  2. Having regard to all the evidence, somewhat limited as it was, and the areas of contest between the parties, for my part, I do not genuinely understand there to be any relevant evidence that can support anything other than the following findings:

    (a)both parties are, generally speaking, in good health;

    (b)the Husband’s earning capacity, again in general terms, is significantly greater than that of the Wife;  and the Wife is not currently in paid employment, although she is in receipt of certain Centrelink benefits (which the Husband, in my view, incorrectly sought to equate with remuneration);

    (c)it is indisputable that the Wife has the day-to-day care and responsibility of caring for the two youngest children of the relationship (and until recently, a third child of the relationship);

    (d)in all of the circumstances, and accepting that in general terms I also find that, given the length of the relationship, the contributions of the parties should be taken generally to be equal, and that but for one aspect, the orders in relation to property as sought by the Wife should otherwise be made;

    (e)in relation to order 4 as sought by the Wife, in my view, the base amount for the superannuation split regarding the (omitted) superannuation should be taken to be 50 per cent, not 60 per cent. 

  3. In relation to each of the three accounts, in my view there should also be a percentage division of those accounts reflected in the orders, so that in relation to the Telstra phone account, the BigPond account and the electricity account, the Husband should be responsible for 60 per cent of those accounts and the Wife responsible for the balance of them. 

  4. Otherwise, I should be taken to make orders in relation to property as sought by the Wife. In my view, the orders as sought by the Wife are just and equitable in all of the circumstances pursuant to s.79(2) of the Act.

  5. The overwhelming factors, as already indicated in these reasons, for this result are (a) the Wife having the on-going care of the remaining under-age children, (b) the Wife’s significantly lesser income-earning capacity compared to the Husband’s capacity, and (c) the Wife is not currently in paid employment.  True it is that the Husband does not now earn as much as he once did.  However, he still earns more than the Wife, and is likely to improve his position in the not too distant future because the Court may reasonably assume that his (omitted) licence will be regained, and the stress and difficulty in being engaged in litigation will be over.

  6. There is two final matters to consider.

  7. First, both parties seek orders for costs.  They do so, among other things, because there were different offers of settlement put by both parties.  It is clear that the Wife’s two offers were couched formally in terms of so-called Calderbank offers.[4] The offers from both sides were provided to the Court. In my view, having regard to the terms of each of the offers, and noting how relatively close each of them is to the ultimate result – with the exception of the telephone and electricity debts – in my view, the usual order, pursuant to s.117(1) of the Act should apply, whereby each party is to pay their won costs. The Court so orders.

    [4] Calderbank v Calderbank [1976] Fam 93.

  8. Secondly, because there was no formal ventilation at trial of parenting matters per se, there will only be a notation that reflects what is understood to be the current situation.  It is inapposite to include parenting orders in a property Application, particularly in circumstances where such matters were never addressed in the course of the hearing.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:       18 December 2015


Key Legal Topics

Areas of Law

  • Family Law

  • Property Law

Legal Concepts

  • Costs

  • Remedies

  • Statutory Construction

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

4

Polonius & York [2010] FamCAFC 228