MENDEZ & MENDEZ
[2019] FCCA 721
•22 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MENDEZ & MENDEZ | [2019] FCCA 721 |
| Catchwords: FAMILY LAW –Property dispute – parties separated under one roof in 2006 or 2008 – parties separated their finances in 2010 – assessment of contributions – dispute as to treatment of assets acquired post separation. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 75(2)(o), 79, 79(2), 79(4), 90XT(1)(a), 123, 124. Family Law (Superannuation) Regulations 2001 (Cth), Pt 6 Child Support (Assessment) Act 1989 (“CSAA”) |
| Cases cited: Stanford & Stanford (2012) 247 CLR 108 |
| Applicant: | MS MENDEZ |
| Respondent: | MR MENDEZ |
| File Number: | MLC 3461 of 2017 |
| Judgment of: | Judge Harland |
| Hearing date: | 4 March 2019 |
| Date of Last Submission: | 4 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 22 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Marshall |
| Solicitors for the Applicant: | Altona Legal |
| Counsel for the Respondent: | Mr Arnold |
| Solicitors for the Respondent: | Rochelle Belcher |
ORDERS
That within 7 days of the date of these Orders the parties do all acts and things to cause the funds held on trust, being the proceeds of sale, be divided as to 65% to the wife and 35% to the husband.
Paragraphs 2 to 6 of these Orders are binding upon Mr Mendez Super Pty Ltd (“the Trustee”), being the Trustee of the Mr Mendez Superfund (“the Fund”).
The base amount to be allocated to the Wife out of the interest of the Husband in the Fund is $22,936.
In accordance with s.90XT(1)(a) of the Family Law Act1975 (Cth):
(a)The Wife is entitled to be paid from the Husband's interest in the Fund, using the base amount, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001;
(b)The Husband's entitlement in the Fund is correspondingly reduced.
Paragraph 4 has effect from the operative time and the operative time is four business days from the date of service of a copy of these Orders on the Trustee.
The Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlements whenever a splittable payment becomes payable from the Husband's interest.
Upon giving effect to the payment split in paragraph 3, the Trustee, as soon as practicable, shall thereafter do all acts and things and sign all documents to transfer its right, title and interest in the Wife's post-split entitlements, as a cash amount, to an alternate complying fund nominated by the Wife.
IT IS NOTED that publication of this judgment under the pseudonym Mendez & Mendez is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3461 of 2017
| MS MENDEZ |
Applicant
And
| MR MENDEZ |
Respondent
REASONS FOR JUDGMENT
The applicant wife commenced the proceedings on 10 April 2017. In her initiating application the wife sought property orders including that the proceeds of sale of the former matrimonial home be divided as to 70% in her favour and other un-particularised orders with respect to property and spousal maintenance. She also sought an interim order for non-periodic child support pursuant to s.124 of the Child Support (Assessment) Act 1989 (“CSAA”).
The respondent filed his response on 20 April 2017 seeking that there be ‘just and equitable property settlement’. On the first return date the parties agreed to interim orders providing for the wife to receive the sum of $20,000 by way of interim property settlement from the funds held on trust being the proceeds of sale of the former matrimonial home.
The wife’s child support application
At the commencement of the trial the husband’s Counsel sought that the wife’s child support application be summarily dismissed for lack of jurisdiction as it is clear from the wording of s.123 and s.124 of the CSAA that in order for the Court to exercise jurisdiction there must be an existing assessment of child support. The wife’s Counsel conceded that as there is no assessment the application had to be dismissed. It was somewhat surprising that this was overlooked given the fact that this order was sought back in the wife’s initiating application in April 2017.
Background
The parties started living together in 1988 and married on … 1998, making it an 18 or 20 year relationship. The period of separation is significant being some 9 years.
Their only child [X] was born on … 2002. She is in year 11 and will turn 17 in … 2019.
On the wife’s case the parties separated under the one roof in 2008. On the husband’s case they separated in 2006. They agree that the husband moved out of the former matrimonial home in October 2009. Nothing turns on the difference in the date the parties lived separately under the one roof.
From the time the husband moved out in October 2009 until the former matrimonial home was sold on 21 December 2015 the mother and [X] remained living in the house. The husband paid the mortgage.
Procedural history
The parties attended a conciliation conference on 14 June 2017. The Registrar noted that it did not resolve and that there was a disagreement as to the value of an investment property in Property A and that the husband’s business also needed to be valued as the husband asserted that the business had a nil value and the wife asserted that it’s value was substantial. These issues were discussed at the next court appearance before me on 24 July 2017 when I listed the matter for trial.
The trial was not reached when originally listed on 7 November 2018. The trial ran for half a day on 4 March 2019.
Despite the matter not being reached in November 2018, the wife did not file an affidavit of a valuer until 3:50 PM on Friday, 1 March 2019. She filed a financial statement at the same time. The husband objected to the wife relying on those documents. With respect to the financial statement it is no excuse to simply say that it is an update. Documents filed on the Friday afternoon before a Monday trial effectively gives the other party and their advisers no notice of the material. The position with respect to the valuation is even worse. The husband had no effective opportunity to consider that the valuation. It is no answer to say that he was on notice that the wife was going to obtain a valuation. The fact is that if the court had been able to hear the trial in November 2018 it would have been run without a valuation of that property.
The wife also did not obtain a valuation of the business. The wife’s Counsel said that the wife could not afford it. There was ample opportunity for the wife to bring an application in a case with respect to valuation issues if there was an issue about funding those valuations. In circumstances where the material was objected to I did not allow the wife to rely on the affidavit of the valuer or the financial statement.
Issues in dispute
The primary dispute between the parties is the assessment of post separation contributions and what should be included in the asset pool. The written and oral evidence of the parties was brief which did not assist the Court in its task.
The issues in dispute in this case are:
a)the value of the husband’s franchise business;
b)whether or not the husband’s franking credits should be notionally added back to the parties’ legal and equitable interests to be divided;
c)the treatment of the husband’s long service leave;
d)how the parties’ post separation assets and liabilities should be treated;
e)assessing the parties’ contributions pre-separation, particularly with respect to the gift from the husband’s mother;
f)the assessment of the parties’ post separation contributions and consideration of the long period of separation;
g)how the husband’s superannuation should be split;
h)the assessment of s.75(2) factors.
Legal principles
Until the High Court decision in Stanford & Stanford (2012) 247 CLR 108, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Act in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
35. “It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
36. The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
1. Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
2. Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3. Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
The principles with respect to addbacks are well-known. The Court has a discretion as to whether or not to addback items to the pool and take them into account under s.75(2)(o).[1]
[1] See Bevan v Bevan [2013] FamCAFC 116
I am satisfied that it is just and equitable to make property adjustment orders.
The parties’ legal and equitable interests
Net proceeds of sale of the former matrimonial home
There is no dispute that the net proceeds of sale of the former matrimonial home of $273,602 form part of the pool. The wife received $20,000 by way of interim property settlement pursuant to interim consent Orders dated 24 April 2017. Neither party have sought that this amount be notionally added back. However, given its characterisation as interim property settlement, it should be added back.
Superannuation
There is also no dispute that the husband’s superannuation should also be included in the pool. I will address superannuation later in these reasons.
The husband has superannuation in a self-managed superfund worth $91,745 and has superannuation with Super Fund C worth $716.91 as at 30 June 2018.
The value of the husband’s business
The husband owns a business called Business E Pty Ltd trading as Business E. The husband does not have any employees. It is a franchise business. The husband says the business has no value. He says the plant and equipment is outdated as he purchased them when he purchased the business.
The husband purchased the franchise business in 2007 for $80,000. The husband says that half of the purchase price was for the plant and equipment. The parties funded the purchase of the business by increasing the mortgage on the former matrimonial home.
The husband agreed that the business pays for his car, telephone and some of his living expenses. He said his business does not pay his personal credit card or his personal loan which are paid from his wages.
There is a dispute between the parties as to the value of the husband’s business. The wife says it should be attributed a value of $89,261. She derives this figure from the balance sheet for Business E as at 30 June 2018 which was tendered and marked as Exhibit A. This is the equity figure on the balance sheet. The husband said he prepared the balance sheet using an accounting program. He was not able to explain some of the numbers on the balance sheet saying that they are generated from the accounting package. The balance sheet is not a substitute for a valuation. The husband deposes this and says the business has no value other than the income stream it provides him.
The husband does not intend to sell the business. It is his main source of income. He intends to remain in the business for the foreseeable future.
It is clear the business is an income stream for the husband. I accept his evidence that he has no intention of selling it. In the absence of admissible evidence as to the business, whilst presumably the plant and equipment may have some value, I am unable to attribute a value to the business.
The husband’s franking credits
The husband agreed that there are retained earnings in the business. The balance sheet for the year ending 30 June 2018 shows franking credits of $26,571. There is no evidence to as to what period the franking credits relate to and whether or not they have been carried over from previous years. There is also no evidence as to what the franking credits relate to. The husband agreed that his taxable income would be higher if he paid the franking credits. In the absence of evidence of what the franking credits relate to and over what period they have accrued I am not satisfied that it would be just and equitable to add back the franking credits to the pool.
The husband’s long service leave
The wife also sought that the husband’s long service leave with an estimated value of $24,000 be included in the pool. In the Marriage of Burke (1992) 112 FLR 250 Fogarty J described long-service leave as part of an employee’s indirect remuneration arising out of his or her remuneration. Where a person is entitled to take long service leave as a capital sum upon leaving his or her employment it could be an asset for the purposes of s.79 of the Family Law Act. Fogarty J also said that there could be circumstances where a party is entitled to and intends to take his or her long service leave but has not yet done so. That could be treated as a vested right which is property. The husband’s evidence is that he intends to remain working until age 65 or 70. The wife’s Counsel was unable to point to any authority or supporting proposition that it should be included in the asset pool in circumstances where the evidence is that the husband does not intend to take his long service leave as a lump sum until he retires in several years’ time. I will not include this in the pool.
The parties’ post separation assets
The husband purchased an investment property with his current partner. He says his share of the equity in that property is $75,000.
He also has a share portfolio which is currently worth $47,000.
In his financial statement the husband refers to owning a Motor Vehicle F worth $2,000 and an old boat worth $5,000.
The husband says that his brother injected $100,000 into the family business and he feels that he may be obliged to pay half of that sum to his brother. He does not seek that sum to be included in the asset pool and his brother has not filed an affidavit.
The husband also says he has borrowed $20,000 from his mother for legal fees. Again, he does not seek that this debt be included in the asset pool.
The wife also says she has borrowed funds from family and friends totalling $23,910. None of those individuals have sworn an affidavit. There is no evidence as to any terms of any loan and when they are required to be repaid. I am unable to make a finding that the wife has loans owing to family and friends. It is in the same category as the money the husband’s brother injected into the family business.
The wife has a Motor Vehicle G. In her financial statement she attributes a nil value to it but says it is under finance owing $22,572.65. The nil value cannot be correct. It may be that the car is not worth more than the finance owing on the car but that is different to the car having no value and there being a significant debt associated with it.
The wife does not attribute any value to her business. She was not challenged on this.
The husband has a personal loan of $6,723 and a credit card debt with Westpac for $16,533.
The wife has credit card debts of $19,000.
There is no evidence as to what the personal loan and the parties’ credit card debts relate to. The parties separated many years ago.
The parties disagree as to how the post-separation assets with liabilities should be treated. The wife seeks that they all be in the one pool. The husband submits that either the post separation assets with liabilities should be considered under s.75(2)(o) or they should be considered in a separate pool. The court has a discretion as to whether it uses a global approach or an asset by asset approach.[2]
[2] See Norbis v Norbis (1986) 161 CLR 513. The court also has a discretion to use a 2 pool approach. See C & C (2005) FLC 93–220.
As is made clear in Stanford & Stanford, the Court is required to consider the parties’ existing legal and equitable interests as at the date of trial. In the circumstances of this case it is appropriate to deal with the parties legal and equitable interests in three separate pools.
Pool 1
Pool 1 consists of the following:
| Assets | ownership | $ |
| Net proceeds of sale of former matrimonial home | Joint | 273,602 |
| Interim property settlement | Joint (received by wife) | 20,000 |
| Total Assets | 293,602 |
As indicated above, I cannot attribute a value to either party’s business.
Pool 2
Pool 2 consists of the parties post separation property interests:
| Assets | ownership | $ |
| Equity in Property A property | Husband 50% share | 75,000 |
| Share portfolio | Husband | 47,000 |
| Motor Vehicle F | Husband | 2,000 |
| Boat | Husband | 5,000 |
| Motor Vehicle G (equity after finance) | Wife | Nil |
| Total Assets | 129,000 | |
| Liabilities | ||
| Credit card debt | Wife | 19,000 |
| Personal loan | Husband | 6,723 |
| Westpac credit card | Husband | 16,533 |
| Total Liabilities | 42,256 | |
| Net assets | 86,744 |
Pool 3
Pool 3 consists of the parties’ superannuation entitlements:
| Assets | ownership | $ |
| Superannuation | ||
| Self-managed super fund | Husband | 91,745.56 |
| Super Fund C | Husband | 716.91 |
| Wife’s superannuation | Wife | Minimal |
| Total Superannuation | 92,462.44 |
Contributions during the relationship
The husband and wife met in Town H and started living together in a rented home there in 1988. The wife was studying at Town A University. In 1989 the husband’s father became terminally ill and they moved to Melbourne to help run the family business. They moved into a property owned by the husband’s parents. They worked in the family business for 10 years.
When cross-examined the wife said that they received a wage but immediately repaid it to the husband’s mother. She did not refer to this in her affidavit but denied that it was a recent invention. The husband denied this arrangement and said that the first time he heard of it was when the wife gave evidence in the witness box. I do not accept the wife’s evidence on this point. It is significant that she made no reference to this in her affidavit.
In 1998 the parties bought the former matrimonial home at Property B. The husband’s mother sold her home in 1997 and provided the proceeds to help the parties purchase the home. In her trial affidavit the wife said that the husband’s mother assisted them purchase her home because of the help they gave her to keep the family business going whilst she cared for her husband when he was dying and while in mourning. The wife says it was a gift to both of them to thank them for their help in running the family business through the times her husband was terminally ill and afterwards.
The husband says that his mother funded the whole of the purchase of the former matrimonial home of $140,000 and also paid the stamp duty.
When the husband’s Counsel suggested to the mother that the contribution by the husband’s mother to purchase the property was a contribution on the husband’s behalf she emphasised several times that it was a gift to both of them. When cross-examined, the husband agreed stating that they were in a relationship at the time. The issue to be determined in these circumstances is whether the husband’s mother intended the gift to be for her son or to both parties.[3]
[3] See Gosper & Gosper (1987) FLC 92, 789 and Pellergrino v Pellergrino (1997) FLC 92, 789.
Given the circumstances where the husband and wife moved to Melbourne to help in the family business and did so for the next 10 years it would be reasonable for the husband’s mother to intend the gift for both of them. I find on the balance of probabilities that the husband’s mother intended this as a gift to both of them.
The parties sold the former matrimonial home on 21 December 2015. The home sold for $501,000. The husband says that the home loan of $100,000 was taken out to enable the parties to purchase a car, go on holiday and to supplement the parties living expenses. The mortgage was extended by another $80,000 to enable the husband to purchase his business.
Post separation contributions and financial support
The wife and [X] remained living in the former matrimonial home after the husband moved out in October 2009 until it was sold on 21 December 2015. The husband continued to pay the mortgage. It should be noted that half the mortgage was for the business. The wife paid the rates.
The husband says that when the parties separated their finances in 2010 he did his own research in to what his child support obligations would be and started paying the wife $200 a week in child support. He says he conducted regular checks on his obligations using the child support calculator on the child support agency’s website and when he did so assumed that the wife has no income. He says he is paying more than he would be obliged to pay pursuant to a child support assessment. He currently pays $300 a week. The wife agrees in her affidavit that initially the husband paid her $200 a week in child support and now pays $300 a week in child support.
The husband says his taxable income is approximately $80,000 a year. He says that in the financial year ending 30 June 2016 his taxable income from the business was unusually high at $157,600. He says this increase in income was because a long-term debtor repaid unpaid debts totalling $100,000 which had accrued over the past 10 years.
The husband rejected the suggestion that since the wife commenced proceedings in April 2017 he has ensured that his business income for the year ending 30 June 2017 and 30 June 2018 has been $80,000 rather than the higher amount earnt in 2016. He said the business reverted to his previous income. I am satisfied that the husband earns approximately $80,000 a year.
The husband’s Counsel challenged the wife about the appropriateness and viability of sending [X] to private school given her income. The wife rejected this criticism in stating that [X] had been attending that school prior to the parties separating and that the husband had signed the necessary forms her to attend that school at the time. She says her family assist her with [X]’s school expenses because they share her view of the importance of [X] remaining at that school where she is doing well and which has provided her with stability. [X] is now in year 11.
In her trial affidavit the wife refers to various medical expenses for [X]. [X] has severe scoliosis and complex regional pain syndrome causing nerve pain. [X] sees various medical specialists including a neurologist and a pain management specialist and also has chiropractic and other expenses.
The wife has never sought a child support assessment. The husband’s Counsel suggested to the wife that this was because she was aware that if she applied for an assessment it would not be as generous as what she is currently receiving from the husband voluntarily. The wife denied this and said the husband juggles the books and that she does not know that she would not get as much is $300 a week under an assessment and said she approached child support when they first separated. Given her desire to keep [X] at a private school it is surprising that she did not seek a child support assessment much earlier and still has not.
The husband does not see [X] and has not been involved in her care post separation. The parties dispute the reasons for this but that is not an issue I am asked to resolve.
How the husband’s superannuation should be split
The husband says he had superannuation of approximately $20,000 at separation. The superannuation statement he annexes only dates back to 2014 and not the separation date. However, the wife’s Counsel did not challenge him on this. He says his superannuation has recently increased because of his partner’s contributions. What is clear however from the superannuation statement annexed to his trial affidavit is that the figure of $91,745.56 is for his member account only. The assets of the superannuation fund consist primarily of an investment property worth $130,000 and shares. There is a minimal amount of cash.
Despite the fact that both now seek a superannuation splitting order, neither counsel had a splitting order prepared. Procedural fairness is not an issue as the husband is the director of the self-managed superannuation fund. I directed the parties email a superannuation form of order to chambers within seven days. The husband’s legal representative has now provided that form of order.
The husband says that the investment property the superannuation fund owns is a farm where he grows … for his business.
The wife says she has nominal superannuation. She does not refer to any superannuation fund in her financial statement and simply says nil. This is unlikely to be correct, particularly given that she is currently working as an employee, though it may well be that her superannuation entitlements are minimal. It is appropriate to address the superannuation in a separate pool.[4]
[4] See C & C (2005) FLC 93–220.
It is appropriate that there be a split of the husband’s superannuation. I do not find that it is just and equitable for there to be an equal split of the husband’s superannuation as the parties have been separated for many years and much of the husband’s superannuation has been accumulated post separation. This does not mean that the wife has not made any contribution post separation. She has had full time care of the child whilst the husband has been able to continue to work in his business. In the circumstances of this case I find that it is just and equitable for there to be a split of $22,936 from the husband’s self-managed superannuation fund to the wife. This represents 25% of his superannuation entitlement.
Wife’s work history
The wife worked in the family business for 10 years.
The wife did some childcare work and then began doing some part-time clerical work in 2000 and continued to do this after the parties separated, as well as caring for [X].
From 2009 to 2012 she also did some work in the Employer J and continued to do contract clerical work.
The wife is currently working in a business in administration. Her probation is this month and she said that when her probation period ends she will be working more hours of about 30 hours a week. She said currently her wages are like an apprentice wage that will increase to $35 an hour including superannuation once her probationary period ends. This would give her an income of about $54,000 a year gross.
Section 75(2) factors
The parties are of similar ages and do not have any health issues.
The wife has not repartnered. The husband has.
Her financial statement filed on 17 October 2018 discloses an average weekly income including $485 a week from her business, child support of $300 a week from the husband, a Newstart of $240 a week and the family tax benefit of $55 a week. Presumably once she completes her probation she will no longer receive a Newstart benefit.
The financial statement of the wife says her weekly expenses are over $2014 a week leaving her with a weekly shortfall of $934 a week. A significant portion of the expenses are for [X] including education fees of $250 a week.
The husband earns approximately $80,000 a year. Once the wife finishes her probation period, if she has not already, the wife will earn approximately $54,000.
The wife will continue to have sole care of [X] who is due to finish high school next year.
Closing submissions
By closing submissions the wife sought an order that the assets be divided 60%/40% in the wife’s favour and that the pool include the items I have referred to above. She also sought a superannuation splitting order that will equalise the parties’ superannuation entitlements.
By closing submissions the husband sought that the net proceeds of sale be divided 60%/40% in the wife’s favour and that there be a small splitting order from the husband’s superannuation to the wife.
The husband’s Counsel urged the Court to either consider the post separation assets in a separate pool or consider them as a financial resource for the husband. He further submitted that to adopt the wife’s approach would be unjust to the husband as it would punish him for working hard post separation to build up assets and reward the wife who in contrast has depleted funds on a private school for [X] that neither of them can afford. He submitted that the wife has not clearly set out her income and reasonable expenses. He further submitted that it was inappropriate for the wife to incur all this debt, particularly with respect to the private school fees and seek the whole of the assets they built up together during their relationship years after they separated.
The husband’s Counsel submitted that the wife’s dispute about the husband’s mother’s intention with respect to the former matrimonial home and her claim that they repaid their wages from the family business to his mother were a recent invention.
Whilst he acknowledged that there is a mortgage on the house, half of which was for his business, the wife has had the benefit of occupying the home from 2009 to 2015.
The wife’s Counsel submitted that whilst the shares and investment property were acquired by the husband post separation, the husband was able to purchase his business by mortgaging the house and has had the ability to earn income because the wife had the sole care of [X].
She relied on Trask & Westlake [2015] FamCAFC 160 submitting that it supports the proposition that the husband has the capacity to earn a high income post separation due to the mother’s parenting contribution and that post separation contributions continue until trial. The husband’s Counsel submitted that Trask & Westlake concerned different circumstances.
The authorities are clear that where one party continues the parenting and home maker role post separation and the other continues earning an income, it is not correct to say that the home making and parenting contributions cease at separation.[5] This does not mean that the contributions remain the same. It is not necessary to attribute different percentages to pre and post separation contributions[6] which is contrary to assessing contributions holistically.[7]
[5] See Marsh & Marsh [2014] FamCAFC 24.
[6] See Fields & Smith (2015) FLC 93-638.
[7] See Dickons & Dickons [2012] FamCAFC 154.
In this case the post-separation period is lengthy. Parties are entitled to move on with their lives. The husband has done this, repartnering and buying a property with his partner. He has also built up shares. It is significant that throughout the period of separation the husband has paid child support and paid the mortgage, only half of which is for the husband’s business. The husband says in contrast the wife has chosen to live beyond her means and the wife had the benefit of remaining in the home with [X] for six years.
Conclusion with respect to the property issues
Both parties worked hard during the relationship. I find that the parties’ contributions up until separation were equal.
Both parties have made contributions post separation but not in the same proportions as when their relationship was intact. The wife has made the parenting contributions post separation. She has made indirect contributions to the husband’s business and superannuation entitlements because of her ongoing role as parent and homemaker for [X].
The husband has made significant post separation contributions. The wife and [X] lived in the former matrimonial home from October 2009 until 21 December 2015. The husband paid the mortgage throughout this period, only part of which was for his business. The husband has also paid significant child support and continues to do so. The husband has applied his income to building assets post separation. The wife, whilst earning less, has not.
I find it is just and equitable for pool 1 for the wife to receive 65% of the remaining net proceeds of sale, noting that she also has the benefit of $20,000 she already received from the remains of the $177,841.30 subject to any adjustment for interest earned.
I am satisfied that the parties should retain their respective assets and liabilities set in pool 2. The wife will retain her car and the liability associated with it and her credit card debt of $19,000.
The husband will retain his 50% interest in the Property A property and his shares totalling $122,000 and his debts totalling $23,256, leaving a net position of $98,744.
I have already addressed the division of the superannuation entitlements in pool 3.
I am satisfied that in all of the circumstances that the Orders I set out at the beginning of these reasons are just and equitable.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 22 March 2019
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