MOLLER & MOLLER

[2018] FamCA 830

FAMILY COURT OF AUSTRALIA

MOLLER & MOLLER [2018] FamCA 830

FAMILY LAW – PROPERTY ADJUSTMENT – Where consideration of parties’ contributions in context of longer marriage – Where consideration of relevant s 75(2) factors – Where the husband was the main income earner during the marriage – Where the wife has been out of the workforce substantially during the marriage – Where the husband able to pursue his medical career – Where the wife was the primary carer for the parties’ children – Consideration of applicable principles – Where property pool to be apportioned 70 per cent to wife and 30 per cent to the husband – Orders made accordingly.

FAMILY LAW – SPOUSAL MAINTENANCE – Where application for spouse maintenance for closed period – Where wife unable to support herself adequately – Where consideration of her reasonable needs – Where consideration as to the husband’s capacity to pay – Spousal maintenance order made for a period of three years.

Family Law Act 1975 (Cth) ss 72, 75(2), 79, 79(1), 79(2), 79(4), 90MT

Best & Best [1993] FamCA 107
Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688
Dickons v Dickons (2012) 50 Fam LR 244
Figgins and Figgins [2002] FamCA 688
In the Marriage of Harris (1991) 104 FLR 458; (1991) FLC 92-254
Hurst & Hurst [2018] FamCAFC 146
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT: Ms Moller

RESPONDENT: Mr Moller

FILE NUMBER: PAC 1244 of 2017

DATE DELIVERED: 24 August 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 29 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Picker

SOLICITOR FOR THE APPLICANT: Peter Dawson & Associates

COUNSEL FOR THE RESPONDENT: Ms Judge

SOLICITOR FOR THE RESPONDENT: Bricknell Legal Solicitors

Orders

1. That the husband and wife do all things necessary and sign all necessary documents so as to sell the former matrimonial home at C Street, Suburb B New South Wales for the best price reasonably obtainable by such method as is agreed between the husband and wife within 14 days from this date and in the absence of agreement within that time by public auction within three months from this date with a reserve price to be agreed by the parties not less than 14 days prior to the date appointed for auction and in default of agreement with the reserve price to be nominated by the selling agent.

2. That the husband and wife do all things necessary and sign all necessary documents to procure that  upon sale of the property at Suburb B the proceeds of sale be applied:

   (a)in payment of agent’s commission and advertising expenses;

   (b)necessary contract adjustments;

   (c)legal costs on sale, discharge of the Westpac home loan mortgage secured over the home and discharge of the Westpac equity loan secured over the home;

   (d)with the then net proceeds of sale to be paid as to 70 per cent to the wife and as to a further sum of $149,315.00 to the wife;

   (e)and as to the balance then remaining to the husband.

3. That pending sale of the said property the husband shall pay as they fall due and payable all payments of principle and interest payable in respect to the Westpac mortgages secured over the said property.

4. That the husband and wife within 14 days from this date shall do all things necessary to cause D Pty Ltd as trustee of the Moller Family Superannuation Fund (ABN …) to comply with the following:

   (a)That a base amount sum as is necessary to cause the wife to have a total superannuation entitlement equal to 100 per cent of the net value of the Moller Family Superannuation Fund is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”), to the wife out of the husband’s interest in the Moller Family Superannuation Fund.

   (b)That, in accordance with s 90MT(1)(c) of the Act:

   (i)the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Superannuation Regulations”); and

   (ii)the husband’s entitlement in the Fund is correspondingly reduced.

   (c)That D Pty Ltd as trustee of the Moller Family Superannuation Fund (ABN …) shall do all acts and things and sign all such documents as may be necessary to:

   (i)calculate, in accordance with the requirements of the Act and the Superannuation Regulations, the entitlement created for the wife in Order 4(a); and

   (ii)transfer the entitlement to the wife’s member benefit entitlement in the Fund and correspondingly reduce the entitlement of the husband.

   (d)That this order have effect from the operative time being the date of this order.

5. That the husband pay to the wife by way of spousal maintenance the sum of $1,000.00 per week first payment seven (7) days from the date of this order with such payment to be paid to a bank account nominated by the wife by way of periodic bank transfer for a period of 156 weeks.

6. Liberty to apply as to implementation or enforcement of the previous orders.

7. That, otherwise, all Applications be dismissed and proceedings removed from the pending cases list.

8. That in the event of any Application for costs, such be made by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days and thereafter judgment reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moller & Moller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1244 of 2017

Ms Moller

Applicant

And

Mr Moller

Respondent

REASONS FOR JUDGMENT

1. The matters for determination relate to financial proceedings between the applicant wife and the respondent husband.

2. Both parties seek orders for property adjustment in relation to their matrimonial assets in addition to which the wife seeks an order for ongoing spousal maintenance for a closed period.

3. At the commencement of the proceedings there was substantial agreement between the parties as to their relevant assets and liabilities at the time of trial.  The assets and liabilities of the parties as agreed comprise:

   Assets:

   Husband        Property at C Street, Suburb B  $ 5,150,000.00

   Husband        Boat 1  $     567,500.00

   Husband        Sports motor vehicle  $     110,000.00

   Husband        Sedan motor vehicle  $        7,500.00

   Husband        Prestige motor vehicle  $     123,000.00

   Husband        Boat 2  $      15,000.00

   $ 5,973,000.00

   Liabilities:

   Husband        Westpac home loan  $ 2,925,000.00

   Husband        Westpac equity loan  $     450,000.00

   Husband        Esanda boat loan  $     330,174.00

   Husband        Bank loan Country E Apt  $      91,500.00

   Husband        Boat loan Westpac  $      38,583.00

   Husband        Boat loan Commonwealth Bank  $      39,223.00

   Husband        K Finance personal loan  $     100,000.00

   Husband        Sports car finance loan  $     143,519.00

   Husband        Prestige car finance loan  $      87,873.00

   Wife              Westpac MasterCard  $      41,706.00

   $ 4,247,578.00

4. The net non-superannuation pool is thus $1,725,422.00.

5. Otherwise, the parties agreed that their respective superannuation entitlements were as follows:

   Husband        Moller Family Superfund  $     319,800.00

   Wife              Moller Family Superfund  $      70,200.00

   Husband        S Super  $     370,448.00

   $     760,448.00

6. The overall pool has a value of $2,485,870.00.

7. The parties chose to exclude from consideration various credit card debts mostly accrued after separation.

8. At the conclusion of evidence it was contended by counsel for the wife that the Court would ultimately find that the parties’ respective contributions would be regarded as equal with a subsequent adjustment of 15 per cent to 20 per cent in favour of the wife having regard to various considerations in s 75(2) of the Act. It was otherwise contended by counsel for the husband that the Court would ultimately find contributions favouring the husband as to 55 per cent and the wife 45 per cent with an adjustment to the wife having regard to considerations in s 75(2) of the Act of not greater than 10 per cent.

Context

1. The wife at the time of trial was 43 years of age and the husband 54.

2. The parties commenced cohabitation in early 2000 and married subsequently in 2004.  The parties separated on 14 October 2016.

3. There are two children of the parties’ relationship at the time of trial aged 14 and seven.  Those children reside with the wife with the husband spending somewhat limited time with the children.  Both children are at private school with school fees and associated school expenses being paid by the husband who works as a medical professional. 

4. The parties’ separation has impacted upon the children such that they attend ongoing counselling.  Otherwise, the eldest child has been diagnosed with ADHD, learning difficulties and has speech pathology difficulties.  The youngest child has been diagnosed with ADHD, learning difficulties and anxiety.  These issues impact upon the wife’s day-to-day care of the children and require her to be more available to the children than would otherwise be the case.

5. At the commencement of cohabitation the wife was working earning about $120,000.00 per annum.  The husband was a salaried medical professional earning about $180,000.00 per annum.

6. At this time the wife had a German motor vehicle, money in the bank, some superannuation, some household and personal possessions and an outstanding car loan of about $20,000.00. 

7. The husband had at this time an apartment in Country E, a sedan motor vehicle, some money in the bank, some superannuation, some household furniture and personal possessions, with his apartment in Country E subject to an outstanding mortgage of about €280,000 and his motor vehicle subject to an outstanding car loan equal to the value of the car.  The Country E apartment was later sold at a loss and the remaining loan liability is included in the assets and liabilities of the parties set out above.

The relationship

1. In the early years of the parties’ relationship they resided in rental premises.

2. In 2004 the parties purchased an apartment at Suburb S in Sydney for about $780,000.00.  The whole of the purchase price and associated purchase expenses was provided by way of mortgage borrowing secured over the property. This property was later sold in 2007 with the parties then renting for about 12 months.

3. In 2005 the wife received an inheritance from her late mother’s estate that comprised her mother’s diamond ring, some antique furniture, a motor vehicle that was later sold and a third share of her mother’s superannuation. The wife asserts that cash funds were used towards the purchase of the Suburb H property that year.

4. In 2005 the parties purchased a property in Suburb H, Queensland funded by a mortgage and in part income paid in advance to the husband.  This property was later sold at a small capital loss in about 2006.   

5. In 2008 the parties purchased property at J Street, Suburb B for $1.05 million. The purchase was funded by way of a mortgage advance and a supplementary K Finance loan of $100,000.00 to cover purchase costs. This property was renovated with expenses met from the husband’s income.

6. The Suburb B property was sold in 2012 for $1.275 million with net funds of about $127,000.00 applied to the purchase of the present matrimonial home at C Street, Suburb B. On sale the K Finance loan of $100,000.00 was not paid out and remains in the balance sheet above.

7. Otherwise the purchase price of $3.5 million for the present home was funded by way of a mortgage of $2.925 million, savings of about $130,000.00, a K Finance loan of $162,500.00 and a loan from the wife’s brother of $80,000.00 that was paid back shortly thereafter from the sale of the parties’ then boat. The K Finance loan was paid out within about 12 months also from the proceeds of sale of the parties’ boat.

8. The present home was renovated in late 2014 with $450,000.00 borrowed from Westpac Bank.

9. The parties’ self-managed super fund, the Moller Superfund, was established in 2012.  The fund later acquired an investment property at Suburb L in Sydney that is tenanted.  In October 2016 the fund also contracted for the off the plan purchase of an apartment at Suburb M in Brisbane for $677,225.00 with a deposit being paid of $67,225.00 from cash monies in the fund. The contract for purchase has now been rescinded and the fund has lost the deposit paid.

10. The wife remained in employment until shortly before the birth of the parties’ first child in 2007.  The wife remained out of employment subsequent to the birth of the first child and assumed the role of primary homemaker and primary caregiver for the parties’ children.  The wife was assisted from time to time by paid domestic help.

11. The wife did conduct a small business through her company N Pty Ltd. The business no longer trades but the wife has some residual stock.

12. The wife has been out of her profession for more than 10 years and says it would be difficult for her to resume employment by reason of such absence that would require her to undertake some years of study and retraining. 

13. The wife at the time of trial was in casual employment as a retail assistant during school hours earning on average about $200.00 to $300.00 per week.

14. The wife is presently studying for a degree on a part-time basis.  She expects to be able to complete the course on a part-time basis within the next two years and that the degree will allow her to be a qualified professional.  Once qualified she expects to be able to earn about $60,000.00 per annum to start.

15. Otherwise, she has completed by coursework in January a certificate course to enable her to regaining her professional licence. She asserts that work in the future for her is limited to school hours and school holidays. In the event that she could work full time her income would be about $50,000.00 per annum. She was reluctant to work on sales where income is mostly on a commission basis.

16. Her available time is otherwise applied to her care of the children in respect of which she receives little assistance on a day-to-day basis from the husband.

17. The husband remains in employment as a medical professional with his income derived from a number of sources.  The husband estimates in an email to the wife dated 9 September 2016 that his gross taxable income for the 2016 financial year would be approximately $1.571 million: about $20,000.00 per week after tax. There is no issue that he was the primary income earner from various sources during the relationship. He asserts that by reason of a historical back injury his income levels may well only be sustained for about five years. 

18. It is readily apparent from the parties’ present assets and liabilities that over a period of cohabitation of some 16 years with the income that was otherwise available they have lived to a high standard of living with luxury trappings of boats and cars and holidays including overseas holidays. 

19. The wife makes complaint as to her belief that the husband has assets overseas including a property in South America and a vineyard in Europe.  No cogent evidence is adduced in support of her assertions.

Post Separation

1. The wife complains that post separation the husband transferred certain matrimonial money for his own purposes.  This notwithstanding that the husband has maintained the house and children in the matrimonial home post separation, paid private school fees for the children and until February 2017 paid to the wife $3,750.00 per week with that sum reducing thereafter to $2,275.00 per week until October 2017.  From October 2017 the husband has paid to the wife spousal maintenance of $700.00 per week together with child support of $649.00 per week from which the wife complains she has difficulty meeting the day-to-day expenses of herself and the children.

2. The wife has borrowed from family about $30,000.00 to assist in meeting expenses for herself and the children since October 2017.  She asserts various outstanding debts including $1,650.00 to the Australian Taxation Office.

Spouse maintenance

1. The wife asserts that any order for spouse maintenance should be for a period of three years.

2. As at the date of her updated financial statement in late June 2018 the wife had modest monies at bank totalling about $2,000.00.  She estimated that her reasonable weekly expenses for herself alone totalled $1,410.00.  However, such estimate does not include household utilities save for telephone and indeed the cost of providing accommodation for herself and the children in the event that the matrimonial home is sold with such sale being sought by both parties.

3. The husband’s expectation is that the wife will from the sale of the home purchase accommodation for herself and the children. He does not expect her to rent.

4. The husband is critical of the wife’s level of discretionary expenditure on luxury items.

5. The husband has income at present of about $20,000.00 per week after tax. He meets core expenses of the children’s school fees and associated expenses, some medical expenses, mortgage and equity loan payments on the home at present of about $3,000.00 per week, child support and health insurance, phone and some utilities. He otherwise pays spouse maintenance of $700.00 per week. He otherwise has lifestyle expenses for his boats and the parties’ cars and he rents accommodation at a cost of $2,000.00 per week in which he and his partner live. It appears that his partner makes no contribution to such expense.

The Law

1. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.

2. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. 

3. Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.

4. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.

5. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship. Such is the case in this matter.

6. In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to amount. Here the wife seeks an order for adjustment of property as does the husband.

1. It would in some circumstances be unjust or unfair to leave property rights intact where there is common ownership and discrete assets are sought by each. Otherwise a consideration of s 79(4) factors as discussed below reveals it would be unjust or unfair to leave the parties’ property rights as they are.

2. Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g), in particular, the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).

3. The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.

Contributions

1. Recently in  Hurst& Hurst [2018] FamCAFC 146 the Full Court said:

   19.      In Shaw and Shaw the Full Court held:

   ...a spouse’s contribution to the welfare of the family or in the capacity of homemaker or parent may be recognised by an order under sec. 79 in relation to some property even though such contribution has no connection whatsoever with that property, or any other property of the parties or either of them (whether in relation to its acquisition, conservation or improvement or otherwise)...

2. The Full Court said in Dickons v Dickons (2012) 50 Fam LR 244:

   14.As is plain from earlier decisions of this court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce ... (1998) FLC 92-844 ...) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.

   15.The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4) (a) which refers to financial contributions made “directly or indirectly” “to the acquisition, conservation or improvement of any of the property” and goes on to also refer to the financial contribution made “otherwise in relation to any of that last-mentioned property”. The terms of that subparagraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4) (c).

   16.While that apparent “causal connection” might be seen in s 79(4) (a) (and (b)), no such connection is apparent from the terms of s 79(4) (c); contributions of that latter type are not linked by the words of the subparagraph to the “acquisition, conservation or improvement of any of the property” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the current s 79(4) (c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The explanatory memorandum to the Family Law Act Amendment Bill 1983 provides, at cl 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:

   ... revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings...

3. The husband’s contention as to his contribution based entitlements rests upon the premise that he was by far the significant income-earner during the relationship. Such a contention pays little regard to the wife’s non-financial contributions as primary homemaker and carer for the children throughout the cohabitation and up to hearing over a period of about 18 years and her financial contribution limited as it was.

4. In Figgins and Figgins [2002] FamCA 688; (2002) FLC 93-122 (Full Court) Nicholson CJ and Buckley J observed:

   “134 ... Marriage is and should be regarded as a genuine partnership to which each brings different gifts. ...”

5. In assessing contributions “the task of the court in proceedings under section 79 (and thus s 90SM(4)) is not akin to an accounting exercise.” To borrow a phrase used by McClelland  J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to s 20 of the De Facto Relationships Act 1984 (NSW) ''the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind”.' (In the marriage ofHarris (1991) 104 FLR 458)

6. The financial history is set out above. Both parties had little at the commencement of their relationship. The husband has been able to pursue his to a high level with the wife maintaining the household and the primary care of the children by reason of his long working hours.

7. There is little to differentiate their overall contributions. They shall be regarded as equal.

The relevant s 75 (2) factors

1. The wife is aged 43 and in good health. The husband is aged 54 and in good health subject to his long term back issue that he asserts may impact on his earning ability in about five years or so.

2. The income earning capacity, property and financial resources of the parties are referred to above. The wife is, subject to her need to care for the children, capable of some employment pending her obtaining further qualifications. The husband’s income is a significant consideration and his own evidence is that he expects it to continue unabated into the foreseeable future.

3. The wife will have the primary care of the two children in circumstances where the husband’s day-to-day engagement with them is limited.

4. The wife will have a commitment to support herself and indeed provide the primary accommodation for the children subject to the husband’s child support and other expenses at present paid by him for the children.

5. Both parties have superannuation entitlements as referred to above. The parties agree that the wife will retain the self-managed superannuation fund. The husband will into the foreseeable future accrue superannuation by reason of his PAYE salaries and such contributions he may make from his personal practice income.  The wife will accrue little, if any, in the short term and modest superannuation once she obtains more full time employment.

6. The parties enjoyed a lavish lifestyle with the trappings of significant income of expensive cars, boats, holidays and personal expenditure. Consequently the asset pool is modest at best having regard to the income that flowed into the household. Their standard of living must now be more modest. 

7. The wife is studying with a view to obtaining meaningful employment. The provision of spouse maintenance will allow her to complete her studies in reasonable financial circumstances.

8. The wife by reason of her primary role within the household and as primary carer of the children has facilitated the husband pursuing his career such that he finds himself now in a most senior position and, as he asserts, well regarded by his peers. His income earning capacity has grown commensurately.

9. The wife has been out of the work force in any significant capacity for over 10 years. She previously had an established career that stopped in 2007 with the birth of the first child. She has now sought to study to enhance her prospects of gainful employment but her prospects are such that she will be able to earn about five per cent of the husband’s present income.

10. The husband pays child support as assessed and pays educational and other expenses for the children. It is the expectation of both parents that the children will continue at private school.

11. The husband is in a de facto relationship and he asserts that he pays the expenses of that relationship including $2,000.00 per week rent.

12. As to property, the s 75(2) factors weigh most significantly in favour of the wife in terms of an adjustment to the equal contribution determination above. The remarks of the Full Court in Best & Best [1993] FamCA 107 more than 25 years ago are to some extent apposite:

    121.This was an unusual, almost unique, case as the facts already set out demonstrate. The wife has significant responsibilities in the support of herself and four children but has limited financial means. Although the husband has earned a very substantial income over a number of years, and although the parties have been involved in property transactions for a significant period of time, the reality was that at the hearing there was a very small margin between their assets and liabilities. The most striking feature in this case is the husband's very high and continuing earning capacity. Even allowing for the husband's maintenance commitments referred to hereafter, his profession gives him a continuing capacity to steadily earn his way out of the financial position in which he now is. On the other hand, the wife has no such capacity. This is even more significant here because of the husband's acquisition and development of his professional skills during the marriage and the loss by the wife of the professional skills which she had at the time of the marriage. It is a particularly striking example of the "feminization of poverty" which has been widely discussed both here and overseas over the last decade, including Weitzman, The Divorce Revolution; The Unexpected Social and Economic Consequences on Women and Children in America (1985); Weitzman and Maclean, Economic Consequences of Divorce; The International Perspective (1992); The Australian Institute of Family Studies; Property and Income Distribution on Divorce in Australia (1986) and the recent, detailed, discussion by the Supreme Court of Canada in Moge v Moge (1992) 43 RFL (3d) 5345.

13. The net asset pool is $2,485,870.00. A 20 per cent adjustment in favour of the wife is proper in all the circumstances and would create a disparity of about $995,000.00 between the parties. In the circumstances of this matter such disparity is called for.

14. Overall it is just and equitable that the asset pool as agreed for division be apportioned as to 70 per cent to the wife and 30 per cent to the husband. That would see the wife entitled to about $1,740,109.00 and the husband about $745,761.00.

15. Where the real estate property is to be sold it is appropriate that such apportionment be applied discreetly to the net proceeds of sale with the remaining pool being adjusted similarly.

16. As to the remaining assets and liabilities otherwise the wife will retain the Moller Superfund of $390,000.00 and her Westpac MasterCard debt of $41,706.00 being a net figure of $348,294.00.

17. The husband will retain:

    S Super  $     370,448.00

    Boat 1  $     567,500.00

    Sports motor vehicle  $     110,000.00

    Sedan motor vehicle  $        7,500.00

    Prestige motor vehicle  $     123,000.00

    Boat 2  $      15,000.00

    $ 1,193,448.00

    Liabilities:

    Esanda boat loan  $     330,174.00

    Bank loan Country E Apt  $      91,500.00

    Boat loan Westpac  $      38,583.00

    Boat loan Commonwealth Bank   $      39,223.00

    K Finance personal loan  $     100,000.00

    Sports motor vehicle finance loan  $     143,519.00

    Prestige motor vehicle finance loan  $      87,873.00

    $     830,872.00

    leaving him with the remaining net assets $362,576.00. 

18. These other assets and liabilities total net $710,870.00 ($348,294.00 plus $362,576.00). The wife is entitled to 70 per cent thereof or $497,609.00. This will require the husband to pay to the wife from his share of the proceeds of sale of the home $149,315.00 ($497,609.00 less $348,294.00).

19. Orders will be made accordingly.

Spousal maintenance

1. The wife seeks an order for spousal maintenance for a closed period of three years.  

2. Section 72 of the Act sets out the relevant provisions in relation to the right to spouse maintenance. Section 72 provides that a party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   a)By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   b)By reason of age or a physical or mental incapacity for appropriate gainful employment; or

   c)For any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2) of the Act.

3. The questions for determination are:

   a)Is the mother unable to support herself adequately for one of the reasons set out in s 72, having regard to the matters set out in s 75(2)?; and

   b)If so, what are the mother’s reasonable needs?

   c)The capacity of the father to make a contribution towards those needs is not in issue.

4. Section 75(2) considerations have been discussed above. Otherwise, the wife will receive significant cash funds from the sale of the home. It is trite to say that she is not expected to live off her capital and it is the husband’s expectation that she will purchase a home for her and the children. It will no doubt be more modest than the present matrimonial home.

5. The wife has the primary care of the children with little support as to their physical care from the husband. She has, as is set out above, at present limited earning capacity whilst undertaking studies to equip her for more gainful employment. She has satisfied the Court that she is unable to support herself adequately.

6. The wife asserts her reasonable weekly needs at $1,410.00 in Part N of her Financial Statement filed 27 June 2018 plus fixed expenses of $48.00 for life insurance and some $100.00 per week of credit card payments although some credit card payments are included in Part N of her Financial Statement.

7. The husband complains as to the wife’s extravagance but took little issue with her expenses as asserted at trial.

8. Doing the best with limited evidence the wife’s reasonable weekly expenses are assessed at $1,250.00 per week. The wife has an income earning ability in part time retail averaging about $250.00 per week. Thus her net financial needs are $1,000.00 per week.

9. The husband’s capacity to pay periodic spouse maintenance is not in issue when his lifestyle expenses particularly boats and cars are ignored. His own evidence is that his income net of tax is about $20,000.00 per week.

10. The wife seeks periodic support for three years. In all the circumstances such is a reasonable period for her to complete her studies and engage in the work force with the husband able to apply to discharge or vary the order if circumstances change.

11. In all the circumstances and doing the best on the little evidence adduced it is appropriate that there be an order for spousal maintenance of $1,000.00 per week for a period of three years.

12. An order will be made accordingly.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 24 August 2018.

Associate: 

Date:  24 August 2018