Lindsay & Lindsay
[2023] FedCFamC2F 122
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lindsay & Lindsay [2023] FedCFamC2F 122
File number(s): ROC 31 of 2020 Judgment of: JUDGE DEMACK Date of judgment: 10 February 2023 Catchwords: FAMILY LAW – Property adjustment – post-separation contributions – respective future needs.
PRACTICE AND PROCEDURE – Family Law Rules 6.36 – release of subpoenaed documents - leave given
Legislation: Family Law Act 1975 (Cth), ss. S79 (2), 79(4) (a) - (c), 79(4) (d) – (g), 75(2), Rule 6.36 of the Family Law Rules Division: Division 2 Family Law Number of paragraphs: 72 Date of last submission/s: 31 May 2021 Date of hearing: 1 April 2021 and 31 May 2021 Place: City Q and City S For the Applicant: Self-Represented Litigant For the Respondent: Self-Represented Litigant ORDERS
ROC 31 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LINDSAY
Applicant
AND: MR LINDSAY
Respondent
order made by:
JUDGE DEMACK
DATE OF ORDER:
10 February 2023
THE COURT ORDERS ON A FINAL BASIS:
Transfer and Refinance of Real Property
B Street, Suburb C
1.That within ninety (90) days from the date of these Orders the Respondent is to sign all documents necessary to transfer to the Applicant all his right, title and interest in the property situated at B Street, Suburb C in the State of Queensland, being more particularly described as Lot … Plan … and being the whole of the land described in Certificate of Title Volume … Folio … ("the B Street, Suburb C property").
2.That contemporaneous with the transfer referred to in Order one (1) herein the Applicant will cause to be refinanced into her sole name the existing Bank D joint Mortgage account …37 and Bank D joint Mortgage account …27.
3.That in the event that the Applicant is unable to refinance the properties in accordance with Order one (1) herein, within 21 days, the property situated at B Street, Suburb C in the State of Queensland, being more particularly described as Lot … Plan … and being the whole of the land described in Certificate of Title Volume … Folio … ("the B Street, Suburb C property") be placed on the market to be sold.
4.That pending settlement of the sale of the B Street, Suburb C Street property the parties shall
(a)meet the following payments, equally:
(b)Continue to allocate the rental income to the mortgage registered to the Title of the B Street, Suburb C Street property;
(c)Pay as and when they fall due, any shortfalls of the mortgage pursuant to the monthly mortgage repayments registered on the Title of the B Street, Suburb C property, and
(d)Pay all other outgoings in relation to the B Street, Suburb C Property as and when they fall due.
5.That within 21 days, the parties appoint an agent for the sale of the B Street, Suburb C.
(a)If the parties cannot agree on a single agent, then the Chairperson/President of the Real Estate Institute of Queensland will appoint a Real Estate Agent.
6.That at the expiration of the 90 days on the market to be sold, and if the B Street, Suburb C Property has not been sold, the parties comply and follow the recommendations of the appointed Real Estate Agent as to reducing the listing price, home opens and any other recommendations.
7.That the parties shall each cooperate in every way with the Real Estate Agent including but not limited to:
(a)Making key or keys, remotes, or security codes available to the Real Estate Agent;
(b)Allowing inspection of the B Street, Suburb C property at all reasonable times requested by the Real Estate Agent; and
(c)Signing all documents requested by the Real Estate Agent, within 7 days relating to the listing and/or sale of the B Street, Suburb C property.
8.That all communications with the Real Estate Agent must include all parties, in writing.
9.That on the sale of the B Street, Suburb C Property, the proceeds of sale be applied in the following manner and priority:
(a)In discharging all monies owed to the Bank D secured by mortgages;
(b)In payment of the costs, expenses and commission associated with the sale of the B Street, Suburb C property including any council and water rates;
(c)In discharging all monies owed to the Bank D secured by mortgages against Title for property situated at B Street, Suburb C ("the B Street, Suburb C property");
(d)Upon sale and settlement of the B Street, Suburb C Property, the balance of the mortgage monies be reflected in the total asset pool;
(e)At that point in time the Respondent resign for all time his position as guardian/appointor/trustee of the E Family Trust and undertake not to accept any benefit or exercise any power relating thereto; and
(f)The Applicant indemnify the Respondent from any liabilities connected to the E Family Trust.
F Street, Suburb C and G Street, Suburb C
10.That within 21 days of the publication of these orders to the parties, the Respondent shall transfer to the Applicant all his right, title, estate, and interest in and to the properties situated at F Street, Suburb C, more particularly described as Lot … on Plan … and being the whole of the land in Certificate of Title Volume … Folio … (“F Street, Suburb C property”) and G Street, Suburb C more particularly described as Lot … on Plan … and being the whole of the land in Certificate of Title Volume … Folio … ("G Street, Suburb C property") with the costs liable by the Applicant.
11.That as and from the date of these orders and until the transfer of the properties pursuant to preceding paragraph, the Applicant make and be responsible for the payment of all money due and owing pursuant and indemnify and keep indemnified the Respondent Under the terms of any personal covenant for the repayment of the moneys secured.
Personal property
12.That the Applicant's interest (if any) in the following vest in the Respondent:
(a)Any account in the name of the Applicant in any Bank or Financial Institution;
(b)Any motor vehicle registered in the Applicant's name;
(c)The Applicant's membership entitlements in superannuation funds;
(d)The boat trailer and boat registered in the Respondent's name;
(e)The Respondent's jewellery; and
(f)Any other property of any description in the name of or in the possession of the Applicant and not specifically dealt with in these orders.
13.That the Respondent's interest (if any) in the following vest in the Applicant:
(a)Any account in the name of the Respondent in any Bank or Financial Institution;
(b)Any motor vehicle registered in the Respondent's name;
(c)The Respondent's membership entitlements in superannuation funds; and
(d)Any other property of any description in the name of or in the possession of the Applicant and not specifically dealt with in these orders.
Catch-All Transfer Clause
14.That unless otherwise specified herein, the interest of the Applicant or the Respondent in property or chattels of whatsoever nature or kind in the possession, power or control of the other of them at the date of the making of the Orders herein be transferred an assigned absolutely to the party having the power, possession or control thereof and, for the purpose of this Order, including:
(a)Bank accounts, (being in the possession of the person whose name appears on the record of the bank);
(b)Insurance policies (which are to be deemed to be the possession of the named beneficiary); and
(c)Superannuation entitlements (which are to be deemed to be in the power of the person who is named as the worker whose age or working future provides the conditions for payment of such entitlement).
15.That save as provided herein, each party be solely liable for and indemnify the other against any liability encumbering any item of property to which the party is entitled pursuant to these orders.
Superannuation
16.That, pursuant to Section 90XT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the superannuation interest of Mr Lindsay in Super Fund H (of which J Pty Ltd is trustee), membership number …38 and account number …96, Ms Lindsay shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation using a base amount in the sum of $81,343 (eighty one thousand, three hundred and forty-three dollars) and that there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
17.That order sixteen (16) above shall take effect from the operative time and shall bind the Trustee.
18.That the operative time for the purpose of orders sixteen (16) and seventeen (17) above shall be the beginning of the fourth business day after the day on which a sealed copy of these orders is served on the Trustee.
19.That the Trustee of Super Fund H in accordance with the obligations set out in the Family Law Act1975 and the Family Law (Superannuation) Regulations2001 shall do all acts and things and sign all such documents as may be necessary to calculate the entitlement of MS LINDSAY and make payment in accordance with order 17 of these orders.
20.That each party do all such things as are necessary and sign all such documents as are necessary to give effect to the orders made herein.
21.That in the event that either party refuses or neglects to sign any documents or do any act necessary to give effect to the terms of these Orders (within seven (7) days of a written request to do so), the Registrar of the Federal Circuit and Family Court of Australia at City Q, is hereby appointed pursuant to section 106A of the Family Law Act 1975, to execute all such documents on behalf of the defaulting party and to do all such acts and things as are necessary to give validity and operation to the said Orders.
THE COURT FURTHER ORDERS:
22.That leave is granted for the wife to produce documents subpoenaed and disclosed by the husband in these proceedings to the relevant statutory authority (currently Services Australia) for the purposes of determining Child Support obligations of the husband.
23.That all outstanding applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lindsay & Lindsay has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DEMACK
The parties agree that they should adjust their property between them, and that their contributions during their relationship should be considered as equal. They do not agree on one issue with respect to the pool – whether a house that they purchased was an investment property, or bought on trust for their oldest daughter who has autism and needs special assistance from her parents as a result. They also do not agree on how their respective future needs should be reflected in any property adjustment. The wife’s final contention was for a 70/30 split in her favour. The husband contends for a 60/40 split in the wife’s favour.
The wife also seeks that documents that were produced under subpoena in these proceedings be able to be used by her in a matter before the Child Support Agency.
Both parties represented themselves at final hearing, and for some time prior to that.
The Evidence
Neither party was legally represented for final hearing. They were each a witness in their own case and each was required and made themselves available for cross-examination. The husband’s father had deposed to an affidavit, but he was not required for cross-examination. Both parties relied upon their filed documents in the trial.
Background Facts
The husband was born in 1968 and the wife was born in 1970. They met in 1988 and married in 1990, just before the wife was aged 20. The husband was 22 years old.
They had five children together: Ms K born in 1991, Mr L born in 1993, Mr M born in 2002, Mr N born in 2004, and X born in 2007.
Ms K and X both have genetic disorders. Ms K is on a disability support pension and works only about 10 hours per week. X is still in school, and has had extensive speech therapy for a severe impediment. In Year 8, she was working at the level of a student in Year 4.
They separated on a final basis in May 2017.
Just prior to their marriage the husband’s parents and grandparents built them a home on land next door to his grandparents’ home in O Street, Suburb P. The young couple paid for fit out items in the home and landscaping. They lived there until 1995 when the home was repossessed. Two of their children were born while they were living in that home.
They lived in other houses in Brisbane until mid-2007, during which time their other children were born. They then moved to Suburb C, inland from City Q. In 2011, they moved to Town R, a small town inland from City S, where they stayed for 18 months before returning to Suburb C in 2015. At final separation, they were living in Suburb C. The husband moved out of their home in G Street, Suburb C in May 2017 and went to live with the parties’ oldest son for a couple of months before moving to Town T, a small community to the Region U of Suburb C. The wife later left the property in July 2017 and moved to another house in Suburb C.
At trial, the wife had continued to live in Suburb C, and the husband was in Town T.
During the last part of their marriage, the wife was providing care to her father. He gifted her some money, which she then used as her primary source of support in the early period of the parties’ separation. She then received money from his estate upon his passing.
The Law
The law with respect to property adjustment
These proceedings are determined pursuant to s.79 of the Family Law Act 1975. Section 79(2) requires that an order only be made if it is just and equitable to make an order. As the parties to this proceeding have separated on a final basis and they both ask the Court for a property adjustment order, I am prima facie satisfied that it is just and equitable to make an order adjusting their property.
The steps the Court is required to undertake to resolve such applications are as follows:
(a)To identify and value assets and liabilities of the parties;
(b)To assess the contributions of the parties under ss.79(4)(a) - (c);
(c)To consider the matters set out in ss.79(4)(d) – (g), which include the matters in s.75(2) so far as they are relevant, and to determine whether any adjustment should be made as a result to the contribution-based entitlements;
(d)To make such an order as the court considers appropriate.
The Pool
The following assets and liabilities are not in dispute.
The parties have a real property at G Street, Suburb C that was purchased as a home and subsequently became a rental property. The rent does not cover the mortgage. Its value is agreed at $270,000 with a mortgage at around $97,000. The wife seeks to keep that property, and the husband agrees to transfer it to her.
The parties have another real property at B Street, Suburb C, with a value of around $310,000 with two mortgages which amount to a total of just under $350,000. The wife seeks to keep that property and for it only to be sold in the event that she cannot refinance it. The husband seeks that it simply be sold. He says that sale costs would be around $8,000.
The husband has money at bank of $3,464, a boat and trailer at $11,500 and a caravan at $2,500.
The wife has jewellery at $2,000 and a Motor Vehicle 1 at $2,000.
The husband has superannuation with Super Fund H of $333,552, and a smaller superannuation with Super Fund V of $52,389. The wife has Super Fund W of $84,834 and with Super Fund Y of $27,939.
Assets and Liabilities in dispute
The home that the wife is living in is F Street, Suburb C. It was purchased at the end of July 2016 for $136,000, the year before the parties separated. The title indicates that it was purchased as Tenants In Common, with the wife have a 9/10th interest and the husband having the remaining 1/10th interest. The borrowed amount was a little over $124,000. It has an agreed value of $260,000 and is unencumbered after the wife, post separation, paid it off using moneys from her inheritance from her father.
The wife says that the property was purchased as a home for Ms K, as the property market at that time was such that buying made more economic sense than renting and as a home for Ms K. The husband says that the home was bought as an investment for the parties and for their children to live in, not just Ms K.
In 2016, Ms K, their oldest daughter, turned 25. Ms K is their oldest child. She was diagnosed with autism when she was in Year 6, and attended a special education unit for her high schooling. She has an extensive speech impediment.
Since leaving school, her only employment has been as a labourer, which is only 1 ¼ hours work a day. She has continued to live with her mother who provides for her and has been working towards Ms K being able to live independently, hopefully with some NDIS funding. Ms K does not drive, and has minimal social interactions outside those with her mother.
Prior to the purchase of the F Street, Suburb C property, Ms K lived in a rental property, which she struggled to keep clean. The wife plainly took the view that Ms K was not managing to live independently, and needed to live back with her.
It is the wife’s recollection that there was a conversation about the property being put into a Trust for Ms K, but that was rejected due to the possible costs of maintaining the Trust. She says that the conversations were about a concern that Ms K could be taken advantage of if she owned a home, because of her disability.
The house at F Street, Suburb C was purchased using a deposit of $24,000 from a redundancy package of the husband’s. Thereafter the mortgage was paid for by the wife, with only four contributions of $126 each by the husband (a total of $504). All other payments have been attended to by the wife and Ms K.
Ms K wrote[1] a To Whom it May Concern letter dated 27 November 2019 about the property and her understanding or beliefs surrounding ownership, prior to litigation commencing. In it, she says that her mum asked her to write the letter. She says that the property was “brought [sic] for me and for the future of the other Lindsay children ... [b]ut mainly for me…”. She says that she had lived in youth housing which was not available once she turned 25 and because the property market was “at a down low”. She says that she paid $180 per week for a time that was to cover the mortgage, rates and some insurances, either by cash or by banking transfer. Ms K did not always live in the house after it was purchased. She has had some period of living independently, which have not been successful.
[1] Found at page 473 of the wife’s trial affidavit
It seems clear that when the property was purchased no deed, agreement, or documents reflected that the property was purchased by a Trust or in trust for any other person. It was purchased as tenants in common with the overwhelming majority ownership being with the wife. It is difficult to make sense of that situation, save as to consider that the parties were going through some difficulties at that time. Even Ms K seems to understand that the house was not just for her, but was for all of the children. There is not much, in that point, which is inconsistent with the husband’s view that it was bought as an investment – if one adds in the notion that the investment was for the future benefit of their children.
Further, there is no evidence that it has been subsequently gifted to Ms K or the children as a whole, by both parties.
In simple terms, it seems to me that the property is matrimonial property. There is no constructive trust for Ms K or for the sibling group as a whole. They do not make that application. The house at F Street, Suburb C must be included in the pool.
In her case outline document as amended in time for the second hearing date, the wife had continued to include other amounts of cash injections all post-separation, either by the wife or by the husband: her inheritance from her father’s estate in July/August 2017 ($287,000), the husband’s termination payment in October 2017 ($90,000), tax refunds to the husband in 2016, 2017 and 2018 ($8,876 and $10,496 and $8,898) and alleged underpayment of child support by the husband to the wife ($25,223) and alleged underpayment of mortgages by the husband ($18,735). It seems to me that none of these matters should be included in the pool of assets less liabilities of the parties. Rather, if proper, they should be included when considering the parties’ contributions, or if relevant, their future needs.
The net pool
Equity in G Street, Suburb C $180,000
Negative equity in B Street, Suburb C ($40,000)
Unencumbered F Street, Suburb C $260,000
Husband cash, boat, trailer, van $17,464
Wife jewellery and car $4,000
Subtotal
$421,464Husband’s superannuation $385,941
Wife’s superannuation $112,773
Subtotal $498,714TOTAL POOL $920,178
Contributions
The parties agree that there contributions during the marriage should be considered equal. It was a long relationship and the parties were young when it commenced, and it seems reasonable to consider that any initial contributions should also be considered equal. Neither party argues to the contrary.
After final separation, the wife relied upon some money that her father had given her before his death in the absence of the husband paying any spousal maintenance. Upon his death, using money she then inherited, she paid off the mortgage of F Street, Suburb C. This is a significant contribution by her. The husband’s contribution to that property was the deposit, and around $500 in mortgage payments.
Since final separation, the wife has continued to take the primary burden of parenting. Their oldest child, although aged 25 years, requires significant assistance and support for her daily needs. The second child was aged 23, and living independently. However at separation, the youngest three were aged 15, nearly 13 and nearly 10. In addition, the youngest child has a level of impairment that required support, namely speech therapy. The two daughters will require assistance and support from their parents throughout their lives.
As set out when the pool was being discussed, there have been other monies that have come to the parties after they separated. The husband received a termination payment from an employer and a number of tax refunds. There is no evidence to suggest that any of those payments have made their way into the property pool through paying down debt, neither do they remain to form part of the pool. The wife received a substantial inheritance from her father’s estate, and used some of it to pay off the debt for F Street, Suburb C. The money otherwise seems to have gone on general living expenses, and does not remain in the pool.
The wife considers that she is still owed child support, but that is not a matter to be determined in this litigation.
The parties agreed that their contributions up to the point of separation should be considered equal. I accept that submission.
In terms of their respective contributions since separation, it seems to me that there should be an adjustment in favour of the wife. Despite the husband’s greater earnings, he has not contributed financially in a way that has provided any notable benefit. In contrast, the wife has made a significant financial contribution through the paying off the F Street, Suburb C mortgage, along with providing the support to Ms K that she plainly needs. She has otherwise taking on a greater parenting role than the husband does.
I assess that there should be an adjustment to the wife for her post-separation contributions in the order of 8%.
Section 75(2) Factors
(a) the age and state of health of each of the parties; (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The husband works as a tradesman for the primary industry. He has had a significant earning capacity throughout his adulthood.
During his work life, he has had a number of employment-based injuries. He was involved in a motor vehicle accident in the course of his employment in 1992. He says that he experienced depression after that event and received a $90,000 payment. He was involved in a work place incident in primary industry in November 2016 were there was an uncontrolled release of pressurised emissions. He experienced anxiety after this event. No compensation was paid. In 2018, there was an incident at his then employment whilst he was in charge. He suffered depression and anxiety after that event.
The husband has some issues with carpal tunnel syndrome. He provided[2] a report from a radiologist to another medical practitioner dated October 2020 which advises
“There are some degenerative cysts within the carpi and there is lipping arising from the trapezium on each side. Overall there are no other significant features. Specific imaging of the carpal tunnels shows no bony encroachment.”
It seems to me that I can understand that to mean that there are potentially some limitations although I cannot be clear as to their extent.
[2] Attached to his case outline filed 17 May 2021
The husband is otherwise concerned that he only has about five years of working life ahead of him, arising from his medical conditions and the level of physicality in his employment in primary industry.
In the past, the husband has worked in areas that he considers less strenuous on the body, including transport work. It seems reasonable to consider that even if manual work becomes unsustainable, the husband has the capacity to do other work in or allied to primary industry, or industry in general.
The husband has also had the benefit of his parents’ support. Unknown to him, at a time that he was struggling with health and money issues, his parents transferred shares in their company to him. The shares have subsequently been transferred back. However, it is an indication of his parents’ willingness to support their adult son financially, if required.
The wife works as a community worker for a non-government organisation and has qualifications in community work, earning about $900 per week before tax. Her work is on a contract basis. She also receives Family Tax Benefits and the husband pays child support. The wife’s earning capacity is markedly weaker than the husband’s.
The wife has a medical condition which she hopes will not dramatically affect her work and which is monitored regularly. It is mentioned only for the sake of completeness.
It seems to me that notwithstanding the concerns the husband expresses about his health, there is little evidence to help me understand how it may affect his earning capacity into the future. He has always earned more than the wife, who was the primary stay-at-home parent. It is more probable than not that he will continue to have a greater income earning capacity than the wife. An adjustment should be made accordingly in the wife’s favour.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
At the time of trial, the oldest two sons had moved out of their parents’ homes and were living independently. The oldest child, Ms K, with her particular needs was living with the mother. Mr N, the third son, was living with the mother and spending time with his father on alternate weekends. In addition, the youngest child, X, was living with her parent’s week about.
Child support payments by the husband have been an ongoing area of conflict and dispute between the parties.
(d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain
The needs of Ms K and X will be ongoing, arising from their genetic abnormalities. It seems to me, on the evidence, that the mother will be the one who continues to shoulder that burden into the future. She has done so with Ms K, and it seems likely that when X is an adult, it will be the mother who does more of the monitoring and supporting and ensuring that Ms K is living her fullest life possible. The mother’s attitude to the ownership of F Street, Suburb C is a testament to her level of support for her children: with her firm belief that the house should be considered to be the children’s, particularly Ms K’s, and not the parents’ property.
(e) the responsibilities of either party to support any other person; (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation
The husband has repartnered with Ms Z who has two children to a previous marriage, born in 2005 and 2007. Although they are not his responsibility to maintain, they live in his household. Ms Z has a modest income of around $650 per week that she contributes to the family’s finances.
The wife has not repartnered.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The parties were married for 28 years. The husband’s employment appears to have been the determining factor in where the family lived, as they moved from time to time for the purposes of his employment. The mother was the primary parent during these years.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The quantum of child support has been a long running dispute between the parties as the wife steadfastly considers that the husband has a greater earning capacity than he is exercising. The parties have long ago separated, and the husband has re-partnered, to a woman with children from an earlier marriage. I am not satisfied that he is deliberately earning less so as to minimise his child support in circumstances where that would plainly have a direct negative effect on the finances in his own home. Save for that comment, I am not determining any child support liability within this property adjustment application.
Future Needs
Although the husband is concerned that he has a limited working life in his current employment, there is no evidence to suggest that he will not be able to properly support himself into the future. He has other skills that he can use in the event that his current work becomes too strenuous for him. He will, I assess, always have a higher income earning capacity than the wife.
I also assess that the burden of providing care and oversight to Ms K and X will fall more on the wife than the husband into the future. Further, their particular disabilities mean that their needs will vary from time to time, and will be ongoing throughout their lives. I assess that will have some impact on the wife’s availability for work, and for the style of work that she may be able to manage, in terms of the needs for flexibility from her employer, for example. This all impacts upon the wife’s overall earning capacity.
I assess that the wife should have an adjustment in her favour for her future needs, in the order of a 7% adjustment in her favour.
Apportionment
Having assessed that there should be an adjustment to the wife for her post-separation contributions in the order of 8% and another adjustment to the wife for her future needs in the order of 7%, the percentage adjustment I consider to be proper between the parties is 65% to the wife and 35% to the husband.
The pool of both non-superannuant assets and superannuation is $920,178.
If the wife keeps all the real property, including the one that appears to be in negative equity, then she would have then she would have net assets in the order of $516,773, including her superannuation.
The husband would have net assets in the order of $403,405, made up almost entirely of his superannuation.
The wife would be entitled to net assets in the order of $598,115. To make up the percentage adjustment overall, there would need to be a superannuation split in favour of the wife for $81,343.
Procedural fairness has been attended to (Super Fund H, 27 April 2021), although there is no evidence of the amount of the then proposed split. I note that the overall adjustment is less than that sought by the wife, and for that reason, I take comfort in my ordered split being probably less than that sought by the wife of the superannuation trustee.
In circumstances where the husband sought that the real property predominantly go to the wife, and where the only difference is these orders give the wife the option to refinance the property in negative equity, I am satisfied that although the proposed split is an overall percentage split of the entire pool, it is just and equitable and appropriate in the circumstances of this case.
Justice and Equity
I am satisfied that these Orders are just and equitable between the parties and I make the orders set out at the commencement of these reasons.
Release of Subpoenaed Documents to an agency assessing child support
Rule 6.36 of the Family Law Rules relevantly provides:
6.36 Use of documents produced in compliance with subpoena for production
(1) This Division:
(a) applies to a subpoena for production; and
(b) does not apply to a subpoena for production and to give evidence.
(2) A person who inspects or copies a document under these Rules or an order:
(a) must use the document only for the purpose of the proceedings; and
(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
(3) However:
(a) a solicitor may disclose the contents or give a copy of the document to the solicitor’s client or counsel; and
(b) a client may disclose the contents or give a copy of the document to the client’s solicitor or counsel; and
(c) nothing in this rule prevents a client or a client’s solicitor from providing a document to an expert for the purpose of the proceeding as permitted by Chapter 7.
The court’s permission is required for the wife to provide documents produced under subpoena to the relevant agency assessing child support, now Services Australia. The wife seeks that permission.
In this case, the parties’ financial positions have been the subject of the enquiry. That is also the case in the assessing of child support. The provision of financial documents produced pursuant to any subpoena may be relevant in establishing the quantum of proper child support. The parties have many areas of conflict surrounding the quantum of child support. Although the issue of a party’s earning capacity is a matter for the agency assessing child support, there may be some utility in source documents being before them.
It seems to me in the circumstances where there is significant overlap between the issues (property adjustment and child support) both going, as they do, to the parties’ financial positions, and where there are no other parties involved in that issue or this litigation, it is reasonable that I give leave for the parties to provide documents produced pursuant to subpoenas in this litigation to Services Australia for the purposes of assessment (in a broad sense, whether by way of application or review or otherwise) of child support.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Demack. Dated: 10 February 2023
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