Mottram and Fielding

[2017] FCCA 3127

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOTTRAM & FIELDING [2017] FCCA 3127

Catchwords:
FAMILY LAW – Defacto property settlement – where the major asset is a real property which has been modified to suit the needs of the defacto husband who is a quadriplegic and without which he will be unable to live independently.

Legislation:

Family Law Act 1975, ss.90ME, 90MT, 90SF, 90SM, 106A

Family Law (Superannuation) Regulations, Part 6

Applicant: MS MOTTRAM

Respondent: MR FIELDING

File Number: CAC 1085 of 2014

Judgment of: Judge Hughes

Hearing dates: 16 & 17 October & 13 November 2017

Date of Last Submission: 20 November 2017

Delivered at: Canberra

Delivered on: 13 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Reeves

Solicitors for the Applicant: Strong Law

Counsel for the Respondent: Ms Haughton

Solicitors for the Respondent: Mazengarb Family Lawyers

ORDERS

1. In accordance with section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Ms Mottram from her interest in the (omitted) Super Plan, Mr Fielding is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $130,000.00 and there is a corresponding reduction in the entitlement Ms Mottram would have had but for these orders.

2. The operative time for order 1 above is four business days after the service of these orders on the Trustee.

3. Unless otherwise agreed, within 12 weeks of the respondent reaching the age of 57 years, or of him being able to access the superannuation paid in accordance with order (1), whichever is the sooner (“the due date”), the respondent shall pay to the applicant the sum of $130,000 less any tax payable by him in relation to his receipt of the superannuation split.

4. Unless otherwise agreed the property at Property A, ACT (“the Property A property”) shall be sold as soon as practicable in the event of any of the following:

   (a)the respondent fails to comply with order (3) above;

   (b)the respondent ceases to permanently reside in the Property A property;

   (c)the respondent fails to maintain adequate building insurance over the Property A property, at least to the extent of the applicant’s interest; or

   (d)the respondent dies.

5. For the purpose of order (4) above, unless otherwise agreed, the property shall be listed for sale as follows:

   (a)with an auctioneer as agreed or nominated by the President of the Real Estate Institute of the ACT;

   (b)with a conveyancing solicitor as agreed or nominated by the President of the ACT Law Society;

   (c)at a reserve price as agreed or recommended by the auctioneer;

6. Unless otherwise agreed the proceeds of sale of the Property A property shall be distributed as follows:

   (a)first, to pay the agent’s commission and other costs of sale;

   (b)secondly, to discharge any mortgage registered over the property, noting that the mortgage balance is agreed to be $1 at the date of these orders.  If the mortgage balance is greater than $1, the balance remaining for the purpose of (c) below is to be calculated as if the balance was only $1;

   (c)thirdly, to pay to the applicant an amount equal to 30% of the balance;

   (d)fourthly, in the event the respondent has not complied with order (3) above, to pay to the applicant a further sum of $130,000 plus interest at the rate of 6 percent per annum calculated from the due date; and

   (e)fifthly, the balance to the respondent or his estate.

7. The respondent may at any time elect to complete his obligations under these orders by paying to the applicant:

   (a)$130,000, plus interest at the rate of 6 percent per annum calculated from the due date if he has not complied with order (3) by that time; and

   (b)30 percent of the gross value of the Property A property at that time.  For the purpose of this order:

   (i)the gross value is to be taken to be $590,000 until 13 November 2018; and

   (ii)if the payment is made after 13 November 2018, the gross value is to be as agreed in writing between the parties or obtained from a registered property valuer to be agreed or failing agreement, a valuer nominated by the President of the Real Estate Institute of the Australian Capital Territory, with the cost of such nomination and/or the cost of the valuation to be paid equally by the parties.

8. Immediately upon the respondent’s full compliance with orders (3) and (6) or (7) above, he shall be declared to be the sole legal and beneficial owner of the Property A property.

9. The respondent is restrained from doing any act or thing to prevent the applicant from lodging and maintaining a caveat over the Property A property to protect her interests.

10. Immediately upon the respondent being declared to be the sole legal and beneficial owner of the Property A property in accordance with order (8) above, the applicant will withdraw any caveat she has lodged over the title to the Property A property.

11. Until compliance with orders (3) and (7) or until the sale in order (6),:

    (a)the respondent is entitled to occupy the property, to the exclusion of the applicant;

    (b)the respondent is solely responsible for meeting all outgoings in relation to the property as and when they fall due;

    (c)the respondent is solely responsible for maintaining building insurance which covers the replacement cost of the building and shall provide the applicant with copies of Certificates of Currency as the insurance is renewed;

    (d)the respondent must provide the applicant with copies of receipts for payment of land and water rates as they are paid; and

    (e)the respondent is restrained from selling, mortgaging, assigning, alienating or otherwise encumbering the Property A property without an order of the Court or the written consent of the applicant which shall not be unreasonably withheld.

12. Within 28 days of the date of these orders, the applicant shall do all things necessary to transfer to the respondent all of her right, title and interest in the Kia (omitted) motor vehicle registration number (omitted).

13. Within 28 days of the date of these orders, the respondent shall make available for collection the following household contents and personal effects to the extent they are available, at a time to be agreed by the parties and failing agreement on the 28th day at 5:00pm:

    (a)the (omitted) buffet;

    (b)all photographs, prints and negatives that were owned by the applicant prior to the relationship;

    (c)any framed objects or ornaments that were owned by the applicant prior to the relationship;

    (d)all bike accessories and items belonging to the applicant noting that these were previously located in the laundry and the garage;

    (e)the timber piano stool;

    (f)the timber, furniture restoration and picture framing equipment noting that these were previously located in the garage and under the house;

    (g)the children’s books belonging to the applicant noting that these were previously located in the wardrobe in X’s bedroom;

    (h)the small blue painted cupboard and the door noting that the cupboard was previously located in X’s bedroom and the door was located in the garage;

    (i)all x-ray films pertaining to the applicant;

    (j)the square “granny” blanket (omitted); and

    (k)an electronic copy of all digital family photographs taken between the year 2000 and 31 January 2013.  For the purpose of this order the applicant shall provide to the respondent an external hard drive to enable copying.

14. Except as provided in these orders, each party is declared to be the sole owner of all other property and choses in action in their respective name or possession as at the date of these orders.

15. In the event that either party refuses or neglects to comply with the provisions of these orders seven days after a written request to do so:

    (a)the Registrar of the Federal Circuit Court of Australia at Canberra is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to those documents; and

    (b)the defaulting party shall pay the reasonable costs incurred by the non-defaulting party.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1085 of 2014

MS MOTTRAM

Applicant

And

MR FIELDING

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are property settlement proceedings after a defacto relationship of 13 years.  Although the parties never married, for ease of reference, I will refer to the applicant as the wife and the respondent as the husband. 

2. The major asset is an unencumbered house in Property A, ACT, in which the husband continues to live.  The wife has a modest amount of superannuation.  Although the husband owned the house prior to the parties’ relationship, he had only a small amount of equity at that time and both parties paid the mortgage during the relationship.  The complicating factor in the case is that the husband is a quadriplegic and the house has been modified to suit his needs.  A sale of the property would require the husband to enter some form of supported residential care or a nursing home which the parties agree would significantly reduce his quality of life and is likely to reduce his life expectancy.

3. The parties have a 13 year old daughter, X, who was born on (omitted) 2004 and lives primarily with the wife.

4. The parties are both decent people.  Each attempted to find a way to resolve the proceedings but none of the limited options were palatable to both parties and the matter proceeded to trial.

Background

1. The applicant wife is aged 51.  She is a (occupation omitted) and works 32.5 hours a week.  She chooses not to work fulltime as she wants to be available for X each afternoon after school.

2. The respondent husband is aged 55.  He was employed as an (occupation omitted) before a catastrophic (omitted) accident early in the parties’ relationship which rendered him a quadriplegic.  He now has his own business which generates a very low net income.

3. The parties began their relationship in about (omitted) 1999 but did not live together at that time.  In (omitted) 2000 the husband was living in (omitted) and the wife in Canberra.  They holidayed together that month during which the husband’s accident occurred.

4. The husband was hospitalised, underwent a range of operations and significant therapy and rehabilitation. During the husband’s hospitalisation and rehabilitation, the wife stayed at or near the hospital to provide care and companionship for him.  She took leave from her employment and learned how to care for him.

5. In (omitted) 2001 the husband was released from hospital and rehabilitation and the parties moved together into his home in Property A in the ACT.

6. The parties separated on 14 February 2013. They entered into final parenting orders by consent on 5 April 2016.  Those orders provide for their daughter, X, to live with the wife and spend six nights a fortnight and half of all school holidays with the husband.  In June 2016, two months after the consent orders, X began living fulltime with the wife.  Both parties have supported her decision to do so.  At the time of the trial, X was spending time with the husband regularly but was not staying overnight with him.

7. The husband pays very little in child support as he earns very little income.

8. There was some debate about whether the defacto relationship should be seen as commencing in (omitted) 2000 when the wife began staying at the hospital with the husband or (omitted) 2001 when they moved together into the husband’s house.  I am satisfied the earlier date is more appropriate for the purpose of these proceedings because the wife began making financial contributions to the relationship at that time.

9. From the time the husband had his accident the wife managed his finances, paid his mortgage and car payments and any other bills he had.  She had access to his bank account and used it to pay those expenses.  The wife was in the habit of recording in her diary each month the balances of her own accounts and began doing so for the husband.  The diary entries corroborated significant parts of her evidence.  On the basis of that evidence I am satisfied the wife kept a contemporaneous note of the parties’ expenses and the balances of their accounts each month during their relationship.  For the first few years they were written in her diary.  From then on she prepared spreadsheets. I am also satisfied on that evidence that, although the husband’s account was used to pay the mortgage and car payments, the wife deposited money into his account to assist with those payments from very soon after the husband’s accident.

10. Since his accident the husband has received a disability support pension.  He conceded during cross-examination that, in June 2001, the amount of the pension was $399.90 per fortnight and the payments of his mortgage, rates and his car lease at that time exceeded that amount.  The wife contributed funds including $300 per fortnight to help make up the short fall from very early on in their relationship and while the husband was still hospitalised.

11. The wife returned to work in (omitted) 2001 working 25 hours a week rather than the full time hours she had worked immediately prior to the husband’s accident.  In (omitted) 2002 she took a voluntary redundancy from the (employer omitted) and began receiving a means tested carer’s allowance.  She continued to receive that allowance until the end of the parties’ relationship.

12. From January to October 2003 the wife worked part time. After the parties’ daughter was born in (omitted) 2004, the wife did some occasional casual work but did not resume regular part time employment until 2009.  She then gradually increased her working hours over the next few years until she was working 65 hours a fortnight in December 2014.  She was still working those hours at the time of the trial.

13. The wife accumulated savings of $50,000 during the relationship.  The husband accumulated savings of approximately $23,000.

Expert evidence

1. The husband called evidence from Dr S, a specialist rehabilitation physician.  She treated the husband at (omitted) Hospital following his medical evacuation from (omitted) Hospital in (omitted) 2000.  She has continued to see the husband from time to time since that date.

2. For the purpose of these proceedings, Dr S prepared a report dated 3 September 2017 after interviewing and examining the husband.  She described the husband’s spinal cord injury (SCI) as an incomplete C3 tetraplegia (quadriplegia), American Spinal Injury Association (ASIA) Impairment Scale C.[1] She said that to enable the husband to live in his home, significant modifications to the home, specialised mobility and access equipment and significant personal care were required.  She summarised the husband’s needs as follows:

   Mr Fielding remains totally dependent on a chin controlled motorised wheelchair for mobility and requires attendant carers to assist with all activities of daily living including hoist transfers from bed to chair or commode chair, catheter and urinary drainage management, bowel management including colostomy bag and per-rectal enemas.  He is totally dependent on care for showering, drying, dressing, grooming, mouth and dental care plus feeding.  Of course, under his direction all domestic chores are required to be performed by attendants.  Seated in his motorised wheelchair he needs to be driven in his vehicle or be transported in accessible taxis.[2]

   [1] Report of Dr S dated 3 September 2017 at page 2.

   [2] Ibid.

3. Dr S described the husband as having the advantage of being able to be in his wheelchair from 10am until 10pm each day.  His wheelchair is electric, has Bluetooth connectivity and a mouse function mounted on the chin control, which give him a lot of independence.  Dr S made particular reference to modifications made to the kitchen which allowed the husband to direct his carers in relation to cooking which is a passion of his.

4. Dr S has been involved in researching the life expectancy of patients surviving spinal cord injury. Based on this research she estimated the husband could be expected to live to 65 percent of the life expectancy of the general Australian population which means he could be expected to live to just under 75 years of age.  She said however his life expectancy is very much dependent on him retaining his independence.  She said “survival and quality of life for a person with SCI is strongly associated with control over one’s living situation and having access to specialist SCI care whilst living in the community with care adequate to their daily living needs”.[3]

   [3] Ibid at page 7.

5. Dr S said if the husband were to go into a hospital, nursing home or shared supported accommodation, his life expectancy would be reduced because he would not retain his current level of independence.  In a nursing home he would not be able to have his own equipment and would be forced to share equipment, much of which is designed for geriatric patients. He would not have personalised individual care around the clock and would be susceptible to infection which, given his immune system is suppressed, would present a serious health hazard and could result in his premature death.

6. Dr S was not required for cross-examination and I accept her evidence.

7. Mr R, clinical psychologist, also gave evidence for the husband.  He prepared a report dated 19 September 2017.  He assessed the husband as “an intelligent, stable and psychologically well balanced person”.[4]

   [4] Report of Mr R dated 19 September 2017 at page 1.

8. Mr R said the husband was able to enjoy a diverse range of activities because of his stable mental state.  He said that a move to a nursing home would likely result in a severe restriction of the husband’s freedom and movement, a significant reduction in contact with his daughter and a general lack of stimulation.  He concluded that such a move would impact on the husband’s quality of life and his mental state.  He said the husband could become severely depressed.  He said the husband has had experiences of living in institutions when he was first injured and for periods of respite care.  He said the husband’s experience of that had negative impacts on his mental health, life expectancy, morbidity and quality of life.

9. Mr R was not required for cross-examination and I accept his evidence.

The law in relation to defacto property settlement

1. Section 90SM(1) of the Family Law Act 1975 empowers the Court to make orders altering the property interests of the parties to a defacto relationship but only if satisfied that, in the circumstances of the case, it is just and equitable to do so.[5]  The first step in such a process is to identify the parties’ legal and equitable property interests.  The major items are the Property A property (which is in the husband’s name) and the superannuation interests in the individual names of the parties.

   [5] S.90SM(3) Family Law Act 1975.

2. Both parties made financial contributions to the Property A property throughout their relationship by paying the mortgage down to a balance of $1.  The parties no longer enjoy the common use of that property and each seeks a property settlement.  I am satisfied in the circumstances that it is just and equitable that such a settlement occur.

3. Any alteration in the property interests must be determined by reference to the following factors:

   a)First, the contributions of the parties to the acquisition, conservation or improvement of the property and to the welfare of the family as provided in subsections 90SM(4)(a),(b) and (c) of the Family Law Act; and

   b)Secondly, the matters set out in the remaining subsections of 90SM(4) which incorporate section 90SF(3) of the Act. Those matters broadly require consideration of the financial position and resources of the parties; their age and state of health; their necessary commitments in supporting themselves or any other person; the duration of their relationship and the extent to which it has affected the earning capacity of either party; the effect of any proposed order on the earning capacity of either party and any other fact or circumstance which the justice of the case requires to be taken into account.

The property available for distribution

1. An amended balance sheet prepared by the respondent husband was formally received into evidence (although technically an aide memoir).  It set out the agreed value of the property available for distribution.  The parties agreed that minor items of property such as furniture and bicycles should not be included in the calculation of the value of the property to be divided.  They also agreed that the Kia (omitted) vehicle modified for the husband’s use should be taken by him and not included in an assessment of the value of the property available for distribution.

2. Both parties accumulated some savings during the relationship.  The wife had $19,000 left in savings in round terms at the time of the trial.  The husband had less than $3,000.  I intend to include those balances in the calculation of the property available for distribution.

3. The parties did not agree on whether or not an amount of $33,214 spent by the wife on legal fees post separation from what would otherwise be joint assets should be notionally added back to the property “pool”.  I am not persuaded it should be.

4. Both parties required legal representation.  The husband has been assessed as eligible for Legal Aid and significant portions of his legal fees have been covered by the tax payer.  The wife has had to engage lawyers and is not on a grant of legal aid.  Resolution of the issues in this case is very difficult and it is not surprising the parties have been unable to resolve the matter by consent despite their best efforts.  The wife is the sole provider for the parties’ child given the husband pays only nominal child support.  She is required to pay for a private rental property while the husband is accommodated in an unencumbered property to which the wife contributed throughout the relationship.  To add the sum back to the property pool or treat it as a notional advance distribution to the wife is unreasonable in those circumstances and I decline to do so.  The property therefore available for distribution is set out in the following table:

Item	Ownership	Value
Property A property	Husband	$ 590,000
Camera equipment	Husband	2,750
Business – (omitted)	Husband	690
(omitted) shares	Husband	4,074
Savings	Husband	2,877
Jewellery	Wife	500
Savings	Wife	19,211
Total non-super assets	620,102
Superannuation	Husband	4,700
Superannuation	Wife	177,457
Total superannuation	182,157
Combined assets and superannuation	$802,259

Contributions

1. When the parties commenced their relationship in (omitted) 1999, the husband was a joint owner of the Property A property with his former partner.  They had purchased it in (omitted) 1997 for $125,000.  In (omitted) 2000, the husband refinanced the property as part of a property settlement with his former partner, and it was transferred into his sole name.  The house at that time was valued at $148,000 and the mortgage was $112,000 leaving equity of $36,000.  The parties began cohabitation two months later.

2. At the time of the trial the property had an agreed value of $590,000.  The mortgage was paid in full during the parties’ relationship.  The house had been modified significantly to meet the husband’s needs.  This included the installation of ramps, accessible bathroom facilities, widened doorways and particular wheelchair compatible floor coverings.  These modifications were paid for using funds available through the National Disability Insurance Scheme (NDIS).

3. The wife deposed to having in (omitted) 2001 savings of $12,000, furniture of nominal value and superannuation of $55,500.  At the same time the husband had savings of $4,400, household furniture and superannuation of $33,267.  He was also leasing a vehicle.  Although this is almost a year after the commencement of cohabitation, it is indicative.

4. By the time of the trial the wife’s superannuation interests had a value of $177,457 and the husband’s interests were $4,700.

5. From the time of the accident the husband was reliant on a disability pension.  He accessed his superannuation interests and made lump sum payments on the mortgage.  The wife also made lump sum payments on the mortgage.  I am satisfied on the evidence that the lump sum payments set out in the wife’s affidavit filed on 26 September 2017 between 2001 and 2003 are accurate.  They are as follows:

   a)In (omitted) 2001 the wife paid $11,000 from savings held by her at the commencement of cohabitation.

   b)In (omitted) 2001 the husband paid $32,900 from amounts received by him for invalidity payments from his various superannuation funds.

   c)In (omitted) 2002 the husband paid $3,000 and the wife paid $2,000 from savings accumulated by each during the relationship.

   d)In (omitted) 2002 the wife paid $35,000 she received from a voluntary redundancy combined with leave entitlements relating to the period 1992 to July 2002.

   e)In mid-2002 the husband paid $1,300 from his savings and the wife paid $1,700 from her savings which both parties accumulated during the relationship.

   f)In (omitted) 2002 the husband paid $1,000 from his savings and the wife paid $9,000 from a superannuation payout from an interest which had accumulated between 1992 and 2002.

   g)In 2003 the husband made two payments totalling $6,000 from tax refunds related to the 1998 to 2002 financial years.

6. Disregarding the amounts which were paid from savings accumulated during the relationship, the wife paid an additional amount of $55,000 from her own resources and the husband paid $38,900.

7. As a result of these lump sum payments in addition to the regular mortgage payments, the mortgage was reduced to less than $10,000 by August 2002 and since December 2008 it has been maintained at the level of $1 owing.

8. From the time of the husband’s accident in (omitted) 2000 the wife was on carer’s leave and received some income from her employer.  She took a voluntary redundancy in (omitted) 2002.  For the next six months she received only a carers allowance from Centrelink.  In (omitted) 2003 the wife returned to part time work which she continued until (omitted) 2003.  She was not then in paid employment apart from occasional casual work until 2009 when she resumed part time employment.  She gradually increased her working hours to its current level by December 2014.

9. I am satisfied that throughout the relationship both parties contributed financially to the full extent of their capacity.

10. The wife argued she made significant contributions to the welfare of the family through her care of the husband and their daughter.  Although the husband freely acknowledged many positive attributes of the wife, he took issue with the nature and weight of those contributions.  He said for instance that his funding through the NDIS allowed him to engage staff to assist with his care.  He said those staff were engaged to look after his personal care needs and to carry out functions in the household which he was unable to carry out.  This included shopping, cleaning and cooking.  The husband said the wife expected the carers to make her a cup of tea in the morning, do her washing and prepare meals for her in addition to what they did for him.  The husband produced a copy of written instructions prepared by the wife to the carers about how items such as lingerie or stockings were to be washed.  His evidence at least implied the wife had exploited the workers employed for his care.  However that was not established on the evidence.  It was agreed that the carers would let themselves into the house early in the morning and wake the husband.  Often the wife was still sleeping, sometimes having had a very disturbed night’s sleep.  The carer would make a cup of tea for both parties before attending to the husband’s personal care needs.

11. Ms H, a friend and former carer of the husband who gave evidence on his behalf, corroborated the wife’s evidence that the carers did only one load of washing each day at the direction of the husband.  The family had one laundry basket and, rather than the carer washing only the husband’s items, they would wash everything in the basket together.  The wife said she gave specific instructions for lingerie or other delicate items to be placed in a lingerie bag so they were not ruined and need to be replaced.

12. The husband conceded the kitchen was modified so that he could participate in the preparation of meals by way of supervising and directing the carers to make an evening meal.  He said this helped him feel he was providing for his family.  That meal of course was for the whole family.  By the end of the evidence I was persuaded that the sorts of benefits the wife and child derived from the husband’s carers were incidental to his care and were carried out on his instructions.

13. The husband minimised the value of the wife’s contribution to his personal care when paid carers were not present.  The wife carried out all of the husband’s care needs overnight.  He said this saved no significant money as the additional cost of a carer staying overnight was minimal compared to the rate payable during waking hours.  Even if that is so, the wife’s care of him is still a contribution to the welfare of the family.  The parties slept in separate beds in the same room for the whole of their relationship.  The wife put an oxygen mask over the husband’s face to assist him to breathe each night when he was put to bed.  She frequently had disturbed sleep as the husband suffers sleep apnoea and often snores.  Occasionally in the night the husband needed attention for something simple such as moving the doona up or down as he is unable to regulate his own body temperature.  Sometimes there were more significant matters which required the wife to be fully awake.  For instance, because the husband does not feel any sensations in his body, there are alarms which go off if his blood pressure or temperature spikes.  The husband said this sometimes occurs because his bladder is full and the tap on his catheter needs to be released.  The wife sometimes had to attend to that in the night.  Occasionally there were more significant health issues requiring the attendance of an ambulance or hospitalisation.

14. It was put to the husband in cross-examination that the wife slept lightly, keeping an ear out for any needs he might have and consequently did not have a solid, peaceful night’s sleep throughout the relationship.  The husband responded that, although initially the situation was hard for everyone, the whole family eventually got used to the conditions and were able to sleep.  I am more persuaded by the wife’s evidence that she felt she needed to remain vigilant and able to be easily roused, even when she was very tired.

15. The husband said the wife “demanded” that the family have some family time twice each week which meant the carers left early so the family had time without third parties being present.  On those days the wife attended to the husband and put him to bed without the assistance of carers.  The husband said it was ultimately not something he looked forward to because the dishes from the evening meal remained stacked up on the sink and had to be cleaned by the carer the next day which created some tension for him.  He said from time to time the wife insisted on going on a family holiday without carers which was more difficult without the structure and arrangements that were easily available at home.  Clearly these were attempts by the wife to retain some intimate family time.

16. I accept the wife’s non-financial contributions to the welfare of the family are significant and weighty.

17. I am satisfied on the evidence as a whole that throughout the relationship both parties made financial contributions for the benefit of the family.  The husband brought into the relationship the property which remains the major asset at the end of the relationship.  The wife derived a benefit from the husband’s ownership of the property.  Without it there would be very little apart from superannuation to divide between the parties.  However, at the commencement of the relationship the property had only a small equity and the husband would not have been able to meet the mortgage payments and his other expenses without the financial assistance of the wife from very early in their relationship.

18. Both parties contributed to parenting and homemaking.  The wife necessarily took on the greater share of those duties.  The husband contributed through his employment of carers through his NDIS package. At his direction those carers did household chores and prepared meals for the family.  The wife however had a significant role in caring for the husband overnight, on two evenings a week when the carers went home early at the parties’ request, and during holidays when the parties went away without carers.

19. The husband brought into the relationship assets of greater value than those of the wife but the weight of that additional contribution is fully offset by the financial and non-financial contributions made by the wife over their 13 year relationship and her greater contributions to the care of the child post separation.

20. Overall I assess the different contributions made by each party as having equal weight.  This would warrant an equal distribution of the assets on contributions alone.

Section 90SF(3) factors

1. The applicant wife is aged 51. She works as an (occupation omitted) for an (employer omitted). She currently works 65 hours a fortnight earning an income of $72,592 a year.  Her hours are slightly more than 80 percent of full time hours.  She could presumably earn more than $90,000 if she were to work full time.  The wife’s evidence is that she chooses not to work full time as she wants to be available for X. I accept that she wishes to do so and that is her choice. However X will be 18 in less than five years and the wife has the opportunity now and in the future to increase her hours and her income.  She will also be able to continue to contribute to her superannuation interests over that period.

2. The wife remains virtually the sole carer of the child.  X spends time with her father but not overnight.  The husband’s contribution to child support at the time of the hearing was approximately $8 a week which would mean almost the entire burden of the financial support of the child falls on the wife.  At the time of the hearing the wife was receiving Family Tax Benefit and rent assistance from Centrelink which increased her overall income to approximately $83,000 a year.

3. At the time of the hearing the wife was renting private accommodation for herself and the child at a cost of $380 a week, although she receives rent assistance of $47 a week.

4. The husband is aged 55.  He is self-employed in a business which generates a nominal net income for him.  He is likely to be dependent on a disability support pension for the rest of his life.  The husband has had the benefit of living in an unencumbered property since separation.  He is in receipt of an NDIS package which enables him to employ his own carers and pay for therapy.

5. The unchallenged expert evidence established the husband’s quality of life and his longevity is dependent upon him being able to continue living independently in his own home.  His quadriplegia renders him vulnerable to medical problems which can rapidly escalate into life threatening situations.  Any hospitalisation exposes him to a risk of infection which can also be life threatening.

6. Given the wife’s responsibility for the care of the parties’ child with little financial or practical care provided by the husband, there would normally be a significant property adjustment in her favour. In this case however the husband’s needs are overwhelming. His quality of life and life expectancy depends on him being able to live independently and having autonomy in relation to his personal care and lifestyle. In these circumstances, the adjustment required by the section 90SF(3) factors is difficult to assess. Without the factors favouring the wife, the adjustment to the husband would be greater and vice versa. Ultimately however, in my view, the circumstances warrant an adjustment to the husband in the order of 25 percent. This means the husband would take 75 percent of the value of the parties’ combined property.

7. As it happens, the value of the property as set out in the table earlier currently held by the husband and the wife respectively is broadly a

   
   

   75 / 25 percent division in favour of the husband.  However the 25 percent held by the wife is comprised primarily of superannuation interests, which she will not be able to access until her retirement.  If there is no adjustment in these interests, the wife will suffer an ongoing disadvantage because of the inaccessibility of her share of the property.  For instance, she would have to continue to rent privately and will not have sufficient resources to purchase a house whereas the husband’s property will continue to appreciate in value over time.

8. To her credit, the wife recognised that the husband needs to effectively have a life interest in the former matrimonial home and have sole use and occupation of it, either for life or until he can no longer live independently and is forced to be permanently accommodated in supported residential care or a nursing home.  If the best prognosis for the husband is borne out, he may live well into his seventies in his own home which means the wife’s access to a share of that property is postponed for approximately 20 years.

9. Working out what particular orders would represent a just and equitable outcome in the circumstances is challenging.  The parties attempted to come up with creative solutions.  The husband proposed a payment split of the wife’s superannuation to him in an amount which he would immediately transfer back to the wife in cash which, in turn, would enable her to buy a home for herself and the child.  He is likely to be able to access any superannuation transferred to him immediately because he is regarded as no longer permanently in the work force.  Even if his assumption is wrong, it is agreed he is likely to be able to access the fund in a little over a year when he turns 57.  At that time the full amount of the cash value of the superannuation (less any tax payable) can be transferred to the wife.

10. The wife was initially reluctant to adopt such a proposal as she wants to retain as much superannuation as possible for her retirement.  However the husband also needs to retain occupation of the former matrimonial home.  The wife ultimately sought a superannuation split of $120,000 to the husband (with the equivalent amount of cash back to her).  However, it was agreed that the wife would need $130,000 to be able to borrow enough to purchase a home without the additional financial burden of mortgage insurance.  Accordingly I intend to make an order for a superannuation split of $130,000.  If the wife wishes to deposit $10,000 back into her superannuation fund she can do so.  

11. Such an order depends on the wife having superannuation interests of $130,000. Although it was agreed the wife had total superannuation interests valued at $177,457, that figure was comprised of two separate interests.  In her financial statement filed on 26 September 2017 the wife deposed that the value of her (omitted) Superannuation interests was $129,282 and the value her (omitted) Super interests was $46,201.  The combined value of those interests is $175,483.  By the time of submissions, the parties had by agreement updated the combined value to $177,457 but the individual funds were not specified.  I assume that means the wife now has at least $130,000 in her (omitted) Superannuation fund but I cannot be sure.  Procedural fairness was accorded to the Trustees of the fund but, at the time, the amount sought to be split was to be calculated using a base amount of $120,000 rather than $130,000.  If the total amount in the account is close to that figure, the wife may decide it would be better for the entire fund to be split to the husband with the equivalent cash transfer back to her rather than leaving a nominal amount in the account.  Given the pragmatic approach adopted by both parties, I am confident they will be able to agree on any variation to the wording of the particular order if necessary.

1. If the superannuation split occurs and the wife ultimately receives the cash equivalent, she will be able to put a deposit on a home but will need to pay stamp duty and other costs of purchase and will be required to make loan repayments, none of which the husband has to do as the home in which he lives is unencumbered.  He will have to pay rates and insurance but so too will the wife.

2. The wife also sought a share of the value of the Property A property but, in recognition of the husband’s need to continue living in it, she sought a particular percentage share which would increase by 1 percent each year until it reached a maximum of 65 percent of the value of the property.  The rationale for such an order was that the incremental increase was a form of compensation for the delay in payment, and the maximum would not be reached unless the husband lived into his eighties.

3. The husband’s primary position was that he should take the former matrimonial home outright and the wife take the superannuation interests.  However he recognised the Court may wish to provide for the wife to take a share of the value of the Property A property at a point when he is no longer able to live in it.  I am satisfied that the wife taking a share of the value of the Property A property is necessary to achieve justice and equity in this case.  In that event the husband sought a fixed percentage which would not change over time.  He argued that a fixed percentage would deliver both parties the benefit of an expected appreciation in the value of the house over time.

4. During submissions there was discussion about how the ongoing costs related to the former matrimonial home should be borne if both parties effectively take a share of it.  In my view the husband having sole occupancy of the property warrants him paying the expenses associated with the property, including rates and insurance.  If any capital works have to be carried out the parties can discuss sharing that cost, perhaps proportional to their interest in the property, and, if no agreement is reached and the house deteriorates in value, that deterioration would be borne by both parties in proportion to their interests.

5. The fact that the wife will have to wait for the balance of her share of the property settlement for possibly 20 years must be taken into account in some manner. In my view it is an appropriate matter to be taken into account in accordance with section 90SF(3)(r) which is “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.  The undefined and unknowable period for which the wife will have to wait to receive her share of the property warrants a further adjustment to her and a discounting in the share taken by the husband who will have the benefit of the wife’s share of the property for as long as he needs it.

6. In my view these matters would warrant an overall distribution of

   
   

   55 / 45 percent in favour of the husband.

7. For the husband to take 55 percent of the combined assets and superannuation he would take property to the value of $441,242.  The parties agreed the husband should take all items of property in his name, his superannuation and the car and the wife should take the items in her name or possession.  They also agreed she would take a selection of chattels which remain in the Property A property.  The total value of the property to be taken by the husband is $605,091.  This means he is required to pay the wife the sum of $163,849.  That sum equates to 27.8 percent of the value of the former matrimonial home. In my view it would be appropriate for the wife to ultimately receive a 30 percent share of the former matrimonial home, to be paid to her when the husband ceases to live permanently in the property.  The rounding up of the figure to 30 percent represents an increase to the wife of approximately $12,980 and hopefully that figure will accommodate any tax payable by the husband on the superannuation split and ensure the wife ultimately receives the full amount due to her.  The wife will also take her superannuation of $177,457, a significant portion of which will be converted to cash in the manner discussed.  The cash payment of 30 percent will not be paid to her until the husband ceases to live in the former matrimonial home.

8. The wife prepared a minute of orders sought which was filed in Court on 13 November 2017.  During submissions the parties discussed various aspects of those orders and I will use them as a base for my orders.

9. The parties agreed the husband should be given an opportunity to pay out the wife’s interest in the Property A property at any stage if he is able.  If that occurred more than six months after the trial, the wife sought orders for the property to be valued given the agreed value was already eight months old by the time of the trial.  The husband sought that the value remain as agreed at trial for a period of up to two years to avoid the cost of a valuation.  In my view it would be appropriate for the value to remain as agreed at $590,000 for a period of twelve months from the date of the trial which means the value will have been static for a total period of 20 months.  After that period the parties will need to agree on the value or obtain a valuation.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date:  13 December 2017