Manson and Samuel - [2012] FMCAfam 372

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANSON & SAMUEL

[2012] FMCAfam 372

FAMILY LAW – Property – contributions – contribution by wife to welfare of the family after separation under Family Law Act 1975 (Cth), s.79(4)(c) – adjustments taking into consideration relevant factors to be considered under Family Law Act 1975, s.75(2) – just and equitable – where wife wishes to retain former matrimonial home to house herself and child of the marriage.

Family Law Act 1975 (Cth), ss.75, 79

In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143
In the Marriage of W (1980) 6 Fam LR 538; FLC 90-872
In the Marriage of Williams (1984) 9 Fam LR 789; FLC 91-541

Applicant:

MR MANSON

Respondent:

MS SAMUEL

File Number:

SYC 6728 of 2008

Judgment of:

Scarlett FM

Hearing dates:

23 & 24 June 2011

Date of Last Submission:

24 June 2011

Delivered at:

Sydney

Delivered on:

24 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Bell

Solicitors for the Applicant:

Haylen McKenzie

Counsel for the Respondent:

Mr Foster

Solicitors for the Respondent:

Swaab Attorneys

ORDERS

The Applicant husband must do all acts and things and sign all documents and instruments necessary to transfer to the Respondent wife all of his right title and interest in the property situate at and known as Property M in the State of New South Wales, being the whole of the land comprised in Folio Identifier 4/6296.
Simultaneously with compliance with Order 1 above the Respondent wife shall cause the mortgage to the St George Bank registered over the said property at Property M to be discharged.
The Respondent wife is to pay to the Applicant husband the sum of $481,388.00 as follows:
(a)as to the amount of $250,000.00 within six (6) weeks from the date of these Orders; and
(b)as to the balance of $231,388.00 within a further period of three (3) months.
The Respondent wife is declared the sole legal and equitable owner of the property known as Property W, and shall indemnify and keep the Applicant husband indemnified with respect to the mortgage to the St George Bank registered over the said property at Property W which mortgage is in the sole name of the Respondent wife.
The Applicant and the Respondent are to be solely responsible for all liabilities not otherwise dealt with in these Orders and remaining in their own names including any credit card debts and personal loans and shall indemnify and keep indemnified the other party in relation to those liabilities.
The Respondent is to remain the Trustee of the St George Bank Account No. 107996864 held in trust for the child of the marriage X born (omitted) 2002 and the funds in that bank account are to be used for the child’s educational expenses including but not limited to school fees, university fees, books and any other related expenses.
The Respondent shall be solely entitled as against the Applicant to the following:
(a)any funds in her bank or other financial institution accounts;
(b)any motor vehicle in her possession and registered in her name; and
(c)all other assets, real and personal, financial resources and superannuation entitlement in her possession or ownership.
The Applicant shall be solely entitled as against the Respondent to the following:
(a)any funds in his bank or other financial institution accounts;
(b)any motor vehicle in his possession and registered in his name; and
(c)all other assets, real and personal, financial resources and superannuation entitlement in his possession or ownership.
In the event that either the Applicant or the Respondent refuses or neglects to execute a Deed or instrument in compliance with the provisions of these Orders the Registrar or a Deputy Registrar of the Court is hereby appointed under the provisions of section 106A of the Family Law Act 1975 to execute all such deeds or instruments.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6728 of 2008

MR MANSON

Applicant

And

MS SAMUEL

Respondent

REASONS FOR JUDGMENT

Application

This is an application for property orders. The Applicant is the husband.
The Husband seeks orders that would effectively divide the matrimonial assets in approximately equal shares, being 52% to him and 48% to the wife. For her part, the wife seeks a greater share of the asset pool, so that 68% of the assets go to her and 32% go to the husband.

Issues

The husband seeks an approximately equal division of the asset pool, but the wife seeks to retain the former matrimonial home as part of a proposed 68-70% order in her favour.
Post separation contributions are an issue between the parties.

Parenting Proceedings

The parties resolved the parenting issues between them on the morning of the first day of the hearing. By a Minute of Consent Orders, the parties agreed that:
a)the child of the marriage X born on (omitted) 2002 (now aged 10) would reside with the wife;
b)the parties would have equal shared parental responsibility for X;
c)the child would spend time with the father during school terms from after school Wednesday until Sunday evening each alternate week and on the Wednesday evening in the off week;
d)the child would spend the second week of the mid-year school holidays with his father;
e)the child would spend time at Christmas time with his father;
f)the child will commence to spend the second half of the Christmas/January school holidays with his father commencing in December 2013;
g)the child will spend time with each parent on his birthday;
h)the child will spend Mother’s Day with his mother and Father’s Day with his father;
i)the parties will keep each other informed about occasions when X receives medical treatment;
j)no major medical procedures or any operations are to be undertaken in respect of the child without joint parental consent except in case of an emergency;
k)neither party would seek to obtain a passport for the child without the written consent of the other party;
l)the parties would keep each other informed of their residential addresses, mobile and landline telephone numbers and email addresses;
m)the parties would provide the most appropriate educational opportunities;
n)the parties would consult a medical practitioner and seek a referral to a treating family and child psychologist to address issues raised in the Family Report; and
o)the parent with whom the child was not living or spending time with would have reasonable telephone contact with the child.

Background

The husband was born on (omitted) 1957.
The wife was born on (omitted) 1959.
In October 1997 the wife purchased a home unit in Property W for $111,000.00, subject to a mortgage. The home unit provided a rental income to the wife.
Also in 1997 the husband purchased a property in Property M and the wife purchased a property at Property V.
On 10 June 1999 the parties purchased a house at Property M at auction for $566.000.00. The wife redrew the deposit from the mortgage on her home unit and borrowed the sum of $40,000.00 from her sister to help finance the purchase of the property.
On 30 July 1999 the husband borrowed the sum of $40,000.00 to complete the purchase the property at Property M.
That same day the wife borrowed the sum of $20,000.00 from her parents for the same purpose.
The parties were married on (omitted) 1999 and commenced living together.
On 23 December 1999 the wife sold her property at Property V for $273,000.00, from which she received net proceeds of $205,831.00.
At the same time, the husband sold his property at Property M for $336,000.00. The net proceeds amounted to $250,372.00.
The wife repaid the sum of $45,000.00 to her sister on 21 December 2000, being the principal of $40,000.00 and interest of $5,000.00.
The child of the marriage X was born on (omitted) 2002.
The parties borrowed the sum of $30,000.00 from the wife’s parents on 31 July 2003.
In October 2005 the parties purchased an investment unit in Property G from the wife’s brother for $269,000.00. They borrowed $70,000.00 from the wife’s parents for the deposit and obtained mortgage finance from St. George Bank in the amount of $210,000.00.
On 30 August 2006 the parties repaid to the wife’s parents the sum of $30,000.00 which they had borrowed in 2003.
The parties repaid a further $30,000.00 to the wife’s parents on 4 January 2007 off the loan of $70,000.00 they had received in October 2005.
The parties paid the remaining sum of $40,000.00 to the wife’s parents on 28 March 2007.
On 30 August 2007 the parties sold the investment unit in Property G for $280,000.00. After repayment of the mortgage of $206,000.00 and other expenses, they received a net amount of about $74,000.00.
The parties separated under the one roof on 27 November 2007.
The wife attended (omitted) Police Station on 17 and February 2008 to complain about the husband’s behaviour.
On 18 March 2008 an Apprehended Violence Order was made in (omitted) Local Court against the husband with the wife named as the protected person. The husband consented on a “without admissions” basis. The Apprehended Violence Order remained in force for 12 months.
The husband commenced proceedings in this Court by filing an Application on 14 November 2008.
The wife filed her Response on 15 December 2008.
On 19 December 2008 Kemp FM made interim orders by consent. Those orders provided inter alia that the wife would be granted exclusive occupation of the matrimonial home at Property M with effect from 19 February 2009 and would reside there with the child X.
The Consent Orders also provided that the wife would be solely responsible for:
a)the mortgage repayments to St. George Bank at a minimum of $500.00 per month; and
b)the council rates and utilities in relation to the property at Property M.
The interim consent Orders also contained parenting orders that are no longer relevant.
On 30 January 2009 the husband filed his Amended Application in which he sought parenting and property Orders.
On 6 February 2009 the husband moved out of the former matrimonial home into a rented property, for which he paid the sum of $650.00 per week.
The wife filed her Amended Response on 20 February 2009.
The parties were divorced by Order of the Court made on 21 April 2009. The divorce became effective on 22 May 2009.
The wife filed her Seconded Amended Response on 19 January 2010.

Orders Sought

The husband seeks these property orders in his Amended Application filed on 30 January 2009:
18. (a) That the matrimonial home at Property M be placed on the market for sale by private treaty at a price agreed between the parties or failing agreement at the marker value, such value to be established by a valuer appointed by the President of the Australian Property Institute Inc, NSW Division. Each party may retain their own solicitors to act for them on the sale (while allowing and facilitating the solicitor for the Father to be the initial point for communication in regard thereto) and the gross proceeds of such sale are to be paid as follows:
(i)     to pay all costs and charges on and incidental to the sale, including, without limit to the generality thereof, real estate agents/auctioneers commission, charges and expenses and legal costs;
(ii)    to discharge any mortgage, charge and/or debt on the former matrimonial home; and then
(iii)   to divide the net proceeds of sale as follows:-
A. Fifty percent (50%) to the Mother; and
B. Fifty percent (50%) to the Father.
(b)    If the said property is not sold within three months of being listed for sale, it is to be listed for Auction to take place within one further month, at a reserve price to be agreed between the parties or failing agreement, at a price nominated by the real estate agent engaged to sell the property. The gross proceeds of any sale are to be distributed as in sub-paragraph 18(a) above.
19.    That the Father be declared the sole owner of the motor vehicle in his possession at the date of these Orders.
20.    That the Mother be declared the sole owner of the motor vehicle in her possession at the date of these Orders.
21.    That the Father and Mother be declared absolute owners of all interests in superannuation, chattels, goods, furnishings and other movables which are, at the date hereof, in the possession or name of that party.
22.    That the Father and the Mother be declared joint owners of all real and personal property beneficially owned by either or both of them and which are not dealt with in the preceding paragraphs of these Orders, including but not limited to other real properties, all moneys, all shares, all debentures, all investments, all interests in Trusts and all bank accounts. Such assets are to be realised and/or disposed of at their market value within 56 days of the date of these Orders and the net proceeds, after deduction of all reasonable disposal and valuation costs, are to be divided equally between the parties. If the parties cannot agree on a market value of any asset, the value is to be established by a valuer appointed by the President of the Australian Property Institute, NSW Division. If the parties agree, one of them may buy out the other’s interest in one or more such items of property.
23.    That the Father and the Mother do all acts and things, give all consents and execute all documents and writings necessary to give effect to the orders, notations and declarations herein.
24. That in the event that either party refuses or neglects to execute any deed or instrument necessary to effect anything herein contained or referred to, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument AND in which case the party so refusing or neglecting shall pay the costs of the other party arising thereout.
The wife seeks these property orders in her Second Amended Response filed on 19 January 2010:
26.    That the Father shall forthwith do all acts and things and sign all documents necessary to transfer to the Mother all of his right title and interest in the property known as Property M, being the whole of the land comprised in Folio Identifier 4/6296 (“the Property M property”).
27.    That simultaneously with compliance with Order 26 above the Mother shall cause the mortgage registered over the Property M property to the St George Bank to be discharged.
28.    That simultaneously with compliance with Orders 26 and 27 above the Mother shall pay to the Father the sum of $370,000.00.
29.    That the Mother shall be declared the sole legal and equitable owner of the property known as Property W (“the Property W property”) and the Mother shall indemnify and keep the Father indemnified with respect to the mortgage registered over the Property W property to the St George Bank which is in the Mother’s sole name.
30.    That the parties shall be solely responsible for all liabilities not otherwise dealt with in these Orders and remaining in their own names including any credit card debts and personal loans and shall indemnify and keep indemnified the other in relation to those liabilities.
31.    That the Mother shall remain the Trustee of the St George Bank Account No 107996864 held in trust for X and the funds in that bank account are to be used for X’s educational expenses including but not limited to school fees, university fees, books and any other related expenses.
32.[1]   That the Mother shall be solely entitled as against the Father to the following:
[1] Errors in the numbering of proposed orders in the document have been corrected for the sake of clarity.
32.1 Any funds in her bank or financial institution account;
32.2 All other assets, real and personal, motor vehicles, financial resources and superannuation entitlement in her possession or ownership as outlined to the Court.
33.    The Father shall be solely entitled against the Mother to the following:
33.1 Any funds in his bank or financial institution account;
33.2 All other assets, real and personal, motor vehicles, financial resources and superannuation entitlement in his possession or ownership as outlined to the Court.
34.    That in the event that the Applicant Father or Respondent Mother refuses or neglects to execute a Deed and/or instrument in compliance with the provisions of this Order, the Registrar or Deputy Registrar of the Family Court of Australia or Federal Magistrates Court of Australia is hereby appointed to execute all such deeds and/or instruments.

Evidence

The husband relied on the following documents:
a)Amended Application filed on 30 January 2009;
b)His affidavit sworn 30 May 2010; and
c)His Financial Statement dated 30 May 2010.
The wife relied on the following documents:
a)Her Second Amended Response filed on 19 January 2010;
b)Her Financial Statement filed on 19 January 2010;
c)Her affidavit sworn 18 January 2010;
d)Her affidavit sworn 28 May 2010;
e)The affidavit of Mr T., a registered valuer, sworn 14 January 2010; and
f)The affidavit of Mr M., a chartered accountant, sworn 22 January 2010
Both parties gave oral evidence.
In cross-examination by Mr Foster of counsel, who appeared for the wife, the husband said that he sought an order that the matrimonial home be sold. He also said that he would give the wife a reasonable time to buy him out of the house and a reasonable time to arrange the finance.
In his affidavit of 30 May 2010, the father deposed that he and the wife separated under one roof on 27 November 2007. On 6 February 2009 he moved out of the former matrimonial home at Property M. The wife remained living in the home with the child, subject to an Interim Order for exclusive occupation made by consent on 19 December 2008.
The husband deposed that he was currently earning about $92,000.00 per year plus superannuation. He received a bonus of $1,500.00 in 2009.[2]
[2] Affidavit of Mr Manson 30.5.2010 at paragraph [23]
The husband stated that the parties purchased the former matrimonial home together in July 1999 and contributed almost equally to the purchase price.[3]
[3] Ibid at [24]
The husband also contended that he had worked full time throughout the marriage and had earned considerably more than the wife. He also stated that she was not in paid work between January 2002 and late 2003 “and since then worked half time only until after the date of separation”.[4]
[4] Affidavit of Mr Manson 30.5.2010 at [25]
It was the husband’s claim that during the marriage he performed the majority of the household renovations.[5]
[5] Ibid at [26]
The husband deposed that the wife had bought a home unit in her name at Property W, prior to the marriage. He stated:
That property was bought in October 1997 for $111,000.00 and at the date of our marriage two years later approximately $79,000.00 was owing on the loan secured by a mortgage over that property.[6]
[6] Ibid at [27]
The husband received an inheritance of $75,654.46 from the estate of his late mother. He received $6,131.52 in November 2006 and $69,522.94 in March 2007. He claimed:
That legacy formed the basis of the funds from which the Respondent withdrew $38,500.00 from our joint savings account the day after we separated, leaving $21,000.00 only, for me.[7]
[7] Ibid at [28]
The husband also claimed that during the marriage the wife’s salary was banked into a bank account in her name and not into the parties’ joint accounts. “Her salary was not generally used for our household expenses”. [8]
[8] Ibid at [29]

The husband claimed that he made greater financial contributions than the Respondent throughout the relationship.
The wife deposed in her affidavit of 18 January 2010 that she was in good health apart from suffering from Type 1 Diabetes. She is employed as a (omitted) with the (omitted) on a part-time basis, four days a week, earning a salary of about $70,000.00 plus superannuation. She also deposed that:
I receive an amount of $112.00 per week child maintenance from the Applicant Husband.[9]
[9] Affidavit of Ms Samuel 18.1.2010 at paragraph [6]
The wife deposed that at the commencement of the marriage she owned a home unit in Property V, and another in Property W, both of which were subject to mortgage with the St. George Bank. She owned a Toyota motor car and had savings of $7,684.00. She also had three superannuation policies with a total value of $37,892.00.
The wife stated that she was employed by the (omitted) at the time of the marriage on a salary of $56,171.00. She claimed to be earning more than the husband at the date of the marriage:
The Applicant Husband was employed with (omitted) and earned an amount of approximately $42,000.00 per annum.[10]
[10] Ibid at [10]
The wife conceded that her income had dropped from July 2002 as a result of her spending time at home with the child X when he was born and then returning to work on a part time basis.
It was the wife’s evidence that she found and inspected the property at Property M, which was to become the former matrimonial home, in May 1999 and persuaded the husband that it would be a good property to purchase. She, too, was the one who arranged to obtain the deposit to purchase the property at auction, by redrawing money from the mortgage over her unit in Property V and obtaining a temporary loan of $40,000.00 from her sister, Ms R.
The wife deposed that the husband obtained a loan of $40,000.00 from his brother Mr I to assist with the purchase of the home. This was a short term loan, to be repaid once the husband had completed the sale of his home unit:
On 31 December 1999 the amount (of) $40,000.00 was repaid plus market interest of $1,085.00 by the Applicant to his brother directly from the proceeds of the sale of his home unit. This interest rate was calculated at 30 December 1999 when the market rate was about 7% per annum. The total amount of $41,085 was withdrawn from the St George Joint Account on 31 December 1999.[11]
[11] Affidavit of Ms Samuel 18.1.2010 at [25]
The wife’s parents lent the parties the sum of $20,000.00 on 31 July 1999 to complete the purchase of the property at Property M. This amount, plus interest of $2,2000.00, was repaid on about 1 December 2005. The wife claimed in her affidavit:
This was a significant saving to us given if calculated at the market interest rate over the period the interest would have been about $11,717.00.[12]
[12] Ibid at [27]
The husband’s home unit at Property M was sold on 23 December 1999 for $336,000.00:
There was a mortgage outstanding on the property for the sum of $68,370. An amount of $200,000 was paid into the Property M Home Loan Account. A further $50,372 was paid into the St George Joint Account. Following this an amount of $41,085.00 was withdrawn from the St George Joint Account and paid to the Applicant Husband’s brother to repay his loan.[13]
[13] Ibid at [30]
The wife sold her home unit at Property V on 23 December 1999 for $273,000.00. She deposed:
At the time of this sale there was a mortgage outstanding on the property for the sum of $60,690. I deposited an amount of $105,756 of the proceeds into the St George Joint Account…The resultant balance of the Property M Home Loan Account was $141,781.82 on 23 December 1999. I also deposited $100,000 into my St George Savings Account and an amount of $8,707 into the St George Account.[14]
[14] Ibid at [31]
The wife retained her home unit at Property W. She received a rental income of $165.00 per week which was paid into her savings account. She paid all of the outgoings and expenses for the unit out of that account. Her salary was paid into that account, also. The husband’s salary was paid into the parties’ joint account.
The wife states that she paid various amounts into the joint account over the course of the marriage.
The parties purchased an investment unit at Property G in October 2005 for $269,000.00. The wife’s parents lent them $70,000.00 for the deposit and they borrowed $210,000.00 from the St George Bank to provide finance for the balance of purchase money. This unit was sold for $280,000.00 in August 2007. After repayment of the amount owing on the mortgage, $206,014.24, the balance of the sale price was paid into the parties’ joint account.
The wife also deposed that over the course of the marriage the parties borrowed various amounts from her parents:
a)$30,000.00 on 31 July 2003;
b)$70,000.00 on 14 October 2005.
The wife stated that from about February 2003, after she suffered a miscarriage and returned to work, the husband’s behaviour worsened towards her and he commenced to drink heavily. She complained that he became verbally abusive towards her.
The parties separated under the one roof on 27 November 2007. The wife claims in her affidavit that the husband’s “anger and aggression” towards her increased.[15]
[15] Affidavit of Ms Samuel 18.1.2010 at [104]
The husband moved out of the former matrimonial home on 6 February 2009.
Mr T.’s affidavit annexed his valuation of the former matrimonial home at Property M. He estimated the value of the property at $1,100,000 as at 28 October 2009.
Mr T. was not required for cross-examination.
The affidavit of Mr M. annexed his report of 19 January 2010, in which he calculated that the total income tax and Medicare levy that would be payable on the capital gain resulting on the sale of the wife’s home unit at Property W if a contract of sale were to be entered into on or prior to 30 June 2010 at $15,145.42.
Mr M. was not required for cross-examination.

Agreed Matters

Counsel for the parties submitted a Joint Counsel’s Memorandum on the first day of the hearing which states:
It is to be noted by the Court
a.     that at the commencement of cohabitation the wife contends that the parties’ net assets (were) as follows:
Wife          $395,000 (53%)
Husband   $351,130 (47%)
and that the husband contends that the parties’ contributions were substantially equal.
Counsel for the parties have agreed:
a.     That during cohabitation the parties’ contributions being financial, non financial and homemaker and parenting can be regarded when taken overall as equal save for the Court giving appropriate weight in its discretion to:
-       the retention by the Wife of her investment unit and the parties’ contribution thereto,
-       the wife’s return to work following the birth of the child,
-       the receipt by the husband of the inheritance from his late mother’s estate.
b.     That post separation contributions of the parties are agreed as equal.
c.      That the pool of assets for division is as set out in the Schedule hereunder with the disputed issues being set out therein in bold.
On the second day of the hearing counsel for the parties submitted an updated schedule showing the asset pool, most of the details of which were agreed between the parties.

Submissions

Counsel for the husband, Mr Bell, submitted that, whilst the parties were too far apart on the property issue to resolve the matter, neither one wished to have an inefficient structure by way of property orders. Thus, the parties would agree to a structure whereby the wife would pay a sum of money to the husband:
a)As to $250,000.00 within 6 weeks; and
b)A further sum after another 3 months.
Mr Bell told the Court that the parties only sought the necessary findings. The parties were marginally apart as to their assets at the time of o]cohabitation. As to their contributions, he said that the husband had earned more but the wife had taken time off work to have the parties’ child X. However, the inheritance by the husband from his mother’s estate late in the marriage would have the effect of adding somewhere between 2% and 4% to the value of the husband’s contribution.
As to the question of add-backs into the asset pool, Mr Bell submitted that “late in the day” the wife had contended that the husband had had the benefit of a sum of $30,000.00. Within weeks that same amount was withdrawn from the parties’ joint account. The firm evidence, he submitted, is that the money was in the possession of the wife. The wife had said in her evidence that she took the amount in $100 notes, the only time that she had “pointed the finger” at the husband as being involved in a significant cash transaction. The transaction was so “contrary to the run of play” between the parties that it would have been remembered. It was submitted that the wife has a memory of handing over bundles of notes to her parents and that the wife’s memory is at fault in this regard.
The inference is that the wife retained the sum of $30,000.00 and her suggestion that the husband had received the money is unconvincing.
Turning to the moneys held in the X Education Trust Account it was submitted that it would be unrealistic to treat the money in any other way than to bring it back into the pool.
As the subsection 75(2) features, counsel for the husband submitted that the husband was “a bit in front” at the parties’ separation. The wife had flagged an intention to resume full time work shortly. There was little difference in the parties’ future income position. The husband would have an ongoing responsibility for child support for X. He will also have to re-house himself.
Finally, neither party had advocated the case for a superannuation splitting order.
In short, counsel for the husband submitted that the appropriate order to be made was very close to equality.
Mr Foster of counsel, who appeared for the wife, submitted that the only evidence of the parties’ assets at the start of cohabitation was in the wife’s affidavit. Further, there was an agreed position for a “myriad” of other contributions, so the Court should be satisfied that the parties were in an equal position. In addition, although the wife was the primary caregiver for X, she had returned to work to supplement the family income.
Mr Foster also submitted that the wife had brought the home unit at Property W into the relationship and she continued to retain it. It was worth $125,000.00, but was worth $260,000.00 at the time of the hearing.
On contributions, Mr Foster submitted that the wife would be significantly ahead of the husband.
Turning subsection 75(2) factors, it was submitted that the wife was in fair health but suffered from diabetes.
She has the care of the parties’ child and is his primary caregiver. Whilst the parties will share the school holidays in school term time the wife will have the child living with her for 70% of the time.
The husband is paying child support in the sum of $112.00 per week which, it was submitted, is not a significant contribution to the child’s care.
It was submitted that the subsection 75(2) factors would allow a comfortable adjustment of 10% to be made in favour of the wife.
Turning to the disputed question of the sum of $30,000.00, counsel for the wife submitted that both parties had acknowledged that they had discussions about buying a motor vehicle. The wife said unequivocally that she had gone to the bank and had given the husband the money in an envelope. There is a divergence between the parties as to who had that money. Mr Foster submitted that the husband knew very well where the funds were – in his possession.
As to the funds in the child’s education account, it was submitted that the Court should find that it was a transaction of the wife unilaterally undertaken to provide support for the child in the future. The money is being held in trust for the child’s education and should be treated as a financial resource.

The Relevant Law

The way a court approaches property matters has been authoritatively set out by the Full Court of the Family Court in its decision In the Marriage of Hickey[16] at paragraph [39]:
The case law reveals that there is a preferred approach to the determination brought pursuant to the provisions of s. 79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and values of the property, liabilities and financial resources of the parties. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a),(b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the properties. Thirdly, the Court should identify and assess the relevant matters referred to in ss. 79(4)(d),(e),(f) and (g), (“the other factors”) including, because of s. 79(4)(e), the matters referred to in s. 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…[17]
[16] [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143
[17] [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143 per Nicholson CJ, Ellis and O’Ryan JJ at [39]

The Parties’ Property

The parties have agreed on the value of a number of assets in the asset pool. I am not satisfied that the evidence is sufficient to make a definitive finding about the sum of $30,000.00 said to have been handed over in cash for the husband to purchase a car. Certainly, there is no evidence of any car approaching that value.
Similarly, the add-back of $80,000.00 asserted by the husband and the $15,000.00 asserted by the wife are not to my mind sufficiently proved.
However, I am of the view that the amount of $25,155.00 in the X Education Trust is indeed held on trust for the child’s education and should be regarded as a financial resource of the wife.
Accordingly, I find the non-superannuation asset pool to consist of:
a)The former matrimonial home at Property M      $1,265,000.00[18]
[18] Agreed value
b)The wife’s home unit at Property W  $260.000.00[19]
c)The wife’s car  $500.00[20]
d)The wife’s shares   $13,346.00[21]
e)The husband’s rental bond   $2,600.00[22]
f)The husband’s shares   $1,345.00[23]

g)The husband’s car $3,250.00[24]

TOTAL $1,546,041.00
[19] Agreed value
[20] Agreed value
[21] Agreed value
[22] Agreed
[23] Agreed
[24] Agreed value

The parties’ liabilities are agreed as totalling $74,406.00.
Thus, the net value of the non-superannuation asset pool stands at $1,471,635.00.
Both parties have superannuation.
The wife has an interest in First State Superannuation agreed by the parties at $107,927.00.
The value of the husband’s interest in the Mercer Super Trust is agreed at $166,005.00.
The total value of the parties’ superannuation is agreed at $273,932.00.
The net total, combining the non-superannuation asset pool and the superannuation asset pool, amounts to $1,745,567.00.
The amount of $25,155.00 held by the wife in X Education Trust Account is to be regarded as a financial resource.

The Parties’ Contributions

Both parties made contributions to the marriage by bringing into the marriage real estate purchased before the marriage. They both worked and brought their salaries into the marriage. The wife in particular contributed by being the primary caregiver for the parties’ child X.
The parties were able to borrow money from their family to assist in the purchase of the former matrimonial home. The wife borrowed money from her parents and her sister, and the husband borrowed money from her brother.
Late in the marriage, in late 2006 and early 2007, the husband received a sizeable inheritance from the estate of his late mother. The husband’s counsel submitted that this contribution would add about 2% to 4% to the husband’s contribution, which would have the effect of putting him slightly ahead of the wife on contributions.
However, the wife had had the care of the parties’ child from separation onwards, even though the husband was paying child support, and this is a factor falling within s. 79(4)(c) of the Act (see In the Marriage of Williams[25]). In my view, these factors should be set off against each other.
[25] (1984) 9 Fam LR 789; FLC 91-541
I find the parties’ contributions within the meanings of subsections 79(4)(a)(b) and (c) to be equal.

Other Factors to be taken into Account under s. 79(4)(d) – (g)

The proposed orders will have no direct effect on the earning capacity of either party to the marriage.
Subsection 79(4)(e) requires the Court to consider the matters referred to in subsection 75(2) so far as they are relevant.
The husband was born on (omitted) 1957. He is 54 years old. He is in good health.
The wife was born on (omitted) 1959. She is 52 years of age. She suffers from type 1 Diabetes but deposed in her affidavit of 18 January 2010 that she was “in reasonable health”.[26] The wife also stated about her Diabetes:
I also suffer from Type 1 Diabetes Mellitus and have continuing medical expenses associated with this disorder. It is necessary for me to attend on an Endocrinologist regularly and I have been advised that I may well require insulin in the future. I also an eye specialist regularly and also wear glasses.[27]
[26] Affidavit of Ms Samuel 18.1.2010 at [1]
[27] Ibid at [131]
Both parties are working. The husband works on a full-time basis as (omitted). The wife has returned to work, originally on a part-time basis, which she later increased to four days a week. The amount held by the wife in the X Education Trust Account is a financial resource available to the wife.
The child of the marriage resides with the wife as provided by the Consent Orders made in these proceedings on 23 June 2010. The child X was born on (omitted) 2002, so he is now ten years old. The wife will have the responsibility for being the child’s primary carer for another eight years, or slightly less.
Neither party has re-partnered. The wife has the responsibility for providing a home for the parties’ child X.
Each party has superannuation interests. It is not proposed by either party that there should be a superannuation splitting order, so the parties will retain their respective superannuation interests.
It is submitted on behalf of the wife that because she has been the primary carer of the parties’ child she has facilitated the husband remaining in full time employment, which has permitted him to accruing his superannuation entitlement. The husband’s superannuation entitlement exceeds that of the wife.
The husband seeks orders that would result in the sale of the former matrimonial home at Property M, with the proceeds being divided equally between the parties. In effect, he seeks an even division of the parties’ property.
The wife, for her part, wishes to retain the former matrimonial home as a home for herself and X. It is her contention that the property should be divided as to 67.5% to her and 32.5% to the husband.
The husband is paying child support to the wife. The evidence at the hearing was that he was paying the sum of $112.00 per week.
The justice of the case requires the Court to take into account that the husband will need to re-house himself. He is living in rented accommodation. If the wife retains the former matrimonial home, the husband will then be without a house.
In my view, taking all these matters into account, there should be an adjustment of 12.5% in the wife’s favour, so that the assets should be divided as to 62.5% to her and 37.5% to the husband. The persuasive factors are the wife’s need to house herself and the child X and, to a lesser extent, her health issues arising out of her Diabetes.

Just and Equitable

Subsection 79(2) of the Family Law Act 1975 provides that the Court shall not make an order under s. 79 unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order. It has been held that subsection 79(2) should be read in conjunction with subsection 79(4) and it is not a condition precedent to a consideration of s. 79(4):
What is just and equitable depends on a proper consideration of the factors set out in s. 79(4).[28]
[28] In the Marriage of W (1980) 6 Fam LR 538; FLC 90-872 per Nygh J at 549

I have considered those matters. It would be regrettable if the house at Property M had to be sold. It has been the home of the child X all his life. It would provide the child with stability during his childhood if he and his mother were able to continue to live in the home.
Accordingly, I consider it to be just and equitable to make orders that would permit the wife to obtain the necessary finance to buy out the husband’s share of the former matrimonial home so that she and X could continue to live there. The parties would retain their superannuation interests intact and would retain the items of personal property that they currently hold.
The net total of the assets amounts to $1,745,567.00.
The husband would be entitled to the sum of $654,588.00. He would retain:
a)His superannuation                 $166,005.00
b)His rental bond  $2,600.00
c)His car  $3,250.00

d)His shares $1,345.00

$173,200.00

Therefore, the wife will need to pay him an amount of $481,388.00, of which $250,000.00 should be paid within six weeks from the date of these Orders, and the balance, amounting to $231,388.00, after a further period of three months.
The parties should otherwise retain the assets they currently hold.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 24 April 2012