MUNTON and MUNTON

[2017] FCWA 60

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MUNTON and MUNTON [2017] FCWA 60

CORAM: DUNCANSON J

HEARD: 2 - 3 MARCH 2017

DELIVERED : 30 MAY 2017

FILE NO/S: PTW 5578 of 2015

BETWEEN: MS MUNTON

Applicant

AND

MR MUNTON
Respondent

Catchwords:

PROPERTY - where it is just and equitable to make a property settlement order - long marriage - where husband's contributions outweigh those of the wife primarily by reason of an inheritance - where the husband is in receipt of a pension for life which cannot be commuted to a lump sum - where the value ascribed to the husband's pension is not included in the asset and liability schedule - adjustment to the wife for s 75(2) factors

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 79
Family Law (Superannuation) Regulations 2001 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Ms T Farmer

Respondent: Mr N Marsh

Solicitors:

Applicant: Lewis Blyth & Hooper

Respondent: Swan River Law

Case(s) referred to in judgment(s):

Clives v Clives (2008) FLC 93-385

Dickons v Dickons (2012) 50 Fam LR 244

Semperton v Semperton (2012) 47 Fam LR 626

Stanford v Stanford (2012) 247 CLR 108

Surridge & Surridge (2017) FLC 93-757

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Munton] (“the wife”) and [Mr Munton] (“the husband”) are unable to agree about the division of their property. A significant issue for determination is the parties’ contributions. The wife says the parties’ contributions overall are equal. The husband disagrees, primarily because he inherited funds and shares shortly before and after separation. He says he made other contributions which were not matched by those of the wife.

2A further issue for determination is the treatment of the husband’s superannuation which is in its payment phase. The husband will receive a pension for life. The wife says she made significant contributions to his entitlement to this pension. She seeks an adjustment in her favour by reason of his receipt of the pension.

The orders sought by the wife

3The orders sought by the wife are contained within her Papers for the Judge filed 24 February 2017. The wife proposes that the husband transfer his interest in the property at [Sunny Drive, Suburb W] (“[the Sunny Drive property]”) to her and contemporaneously she transfer her interest in the property at [Cloudy Drive, Suburb W] (“[the Cloudy Drive property]”) to him.

4The wife proposes that the property at [Greenfield Drive, Suburb M] (“[the Greenfield Drive property]”) be sold and the net proceeds be paid to her.

5The wife proposes to transfer to the husband her interest in the properties at [Cranberry Grove, Suburb D] (“[the Cranberry Grove property]”) and [Darley Dale, Suburb W] (“[the Darley Dale property]”). The husband should refinance the mortgages over these properties.

6The wife seeks a splitting order of the husband’s GESB superannuation in the accumulation phase, such that she receives 100% thereof.

7In the alternative, the wife proposes the Darley Dale property be listed for sale and the net proceeds be divided between the parties so as to effect a division of the parties’ property in the percentages sought. Otherwise the parties should retain the assets and liabilities in their respective names.

8In closing counsel for the wife said she sought a percentage division in her favour of between 55% to 60% of the parties’ property. On her case the property to be divided included the husband’s inheritance, and other property which he sought to exclude, but excluded the capitalised value of the husband’s pension.

The orders sought by the husband

9The orders sought by the husband are contained within his Papers for the Judge filed 23 February 2017. The husband proposes to transfer the Sunny Drive property to the wife and contemporaneously she should transfer the Cloudy Drive property to him. He too proposes that the Greenfield Drive property be sold and the net proceeds be paid to the wife.

10The husband also proposes that the wife transfer to him the Cranberry Grove property.

11The husband proposes that contemporaneously with the transfer of the Sunny Drive property to the wife, she pay him a sum from her “undisclosed money” to represent an equal division of the property of the parties. Alternatively the wife should transfer the Darley Dale property to him, or the Darley Dale property be listed for sale and the net proceeds be divided between the parties so as to achieve an equal division.

12The husband proposes that each party retain their superannuation entitlements and he retains his pension. The husband proposes that each party retain their own bank accounts, and that the wife transfer to him her interest in jointly held bank accounts.

13In closing counsel for the husband said the husband sought an equal division of the parties’ property. On his case that property excluded his inheritance, his camper trailer and the capitalised value of his pension.

BACKGROUND

14The wife was born [in] 1953. She is 63 years of age. The husband was born [in] 1952. He is 64 years of age. The parties were married [in] 1973. They have three children, [Child A] born [in] 1976, [Child B] born [in] 1978 and [Child C] born [in] 1980.

15The parties separated in October 2011. They are not divorced.

SHORT HISTORY

16The parties commenced cohabitation upon their marriage. At that time both parties were employed. At the time of the birth of the parties’ first child in 1976, the wife ceased full-time employment to care for that child and subsequent children.

17During the marriage the wife continued to care for the children. The husband remained in full-time employment and he was also involved in [sporting interests].

18In 1986 the wife recommenced employment.

19During cohabitation the parties purchased several properties including those they currently retain in Suburb W, Suburb M and Suburb D.

20In early 2011 the husband received Wesfarmers shares then worth about $91,000 and the sum of $94,000 in cash by way of an inheritance from his mother’s estate.

21At separation in October 2011 the wife moved out of the Cloudy Drive property which was the family home and in to the Sunny Drive property.

22In October 2012 the husband retired from employment and began receiving fortnightly payments from his GESB superannuation defined benefit pension fund. In December 2012 he received long service leave entitlements of $31,806.

23Subsequently the husband moved out of the family home and leased it, and the rent is applied to the mortgage repayments. He received final payments from his mother’s estate between July 2011 and December 2014 totalling $24,760.

24In December 2016 the parties listed the Greenfield Drive property for sale.

THE PARTIES AND THE EVIDENCE

The wife

25The wife answered questions in a careful and thoughtful way.

26The husband asserts the wife has undisclosed funds or cash reserves which she transferred, or paid to her father to keep for her. The husband noted there were frequent and sometimes substantial withdrawals from the wife’s bank account, which he said were unexplained. The wife explained that she deals in cash and does not do electronic banking; she does not have a computer. To pay bills, or her share of expenses relating to investment properties or the property she occupies, and also her living expenses, she withdraws cash from her bank account. Ordinarily she provides the cash to her father who will attend to her banking for her. Alternatively she pays her own accounts at the post office using cash.

27If an account is to be paid in a significant amount the wife makes a number of cash withdrawals over consecutive days as she has a withdrawal limit of $500.

28The wife does not drive and her father assists her in paying accounts. She leaves cash for him with instructions as to which account the funds are to be paid and he attends to the transaction for her.

29I found the wife’s explanation to be plausible. I have no reason to suspect she is hiding money. She readily transfers one half of her salary to the parties’ joint account to meet expenses associated with the investment properties. Upon request, she pays her share of the repairs. There was no suggestion that she was reluctant or resistant to doing so. She appeared to accept that her responsibility is to meet one half of these costs and mostly does so, promptly on request.

30In cross-examination the wife was referred to her financial statement. Counsel for the husband isolated those expenses which pertained solely to her and were unrelated to joint property. He submitted the amount of her expenses was relatively small and he questioned what happened to the balance of her income, the inference being that these funds were being held by her father. The wife explained that she incurred other expenses associated with the children and the occupancy of her home, none of which were detailed on her financial statement.

31I found the wife to be a truthful witness. I accept her explanations. I reject the assertion that there are undisclosed funds, possibly being held by her father. The wife’s evidence was supported by her father.

Mr B

32[Mr B] is the wife’s father. He is 89 years of age. I found him to be a truthful witness and I accept his evidence in its entirety. He confirmed the wife’s evidence that he assists her in paying accounts. He does not hold any money for her. He does not hold gold bars for her.

33Mr B has paid legal costs for the wife. Occasionally he pays a bill for her as a gift.

34Consistent with the wife’s evidence Mr B said, if the wife goes on holiday with her parents, she gives him money towards the cost of her holiday.

35Mr B said and I accept, if the wife had money to spare he would not be paying for her legal costs.

The husband

36The husband answered questions in a careful and considered way.

37Regarding the parties’ financial dealings post separation, the husband acknowledged that the wife paid regular amounts of $1,500 into the joint account. He said when he requested additional money to meet costs associated with investment properties, she had paid what he asked for on almost every occasion, even if his requests were occasionally unsubstantiated by tax invoices.

38In cross-examination counsel for the wife directed the husband to the wife’s trial affidavit and he accepted her evidence that between May 2012 and May 2016 the wife contributed $194,885 to the joint account for investment property expenses. Counsel for the wife challenged the accuracy of the husband’s evidence pertaining to similar payments made by him between January 2012 and November 2016. The husband said the amounts in question had been compiled by his counsel’s assistant, and to the best of his knowledge were correct. Counsel for the wife demonstrated that there was an error in the month of January 2014 which was put to the husband by way of an example of the inaccuracy of his evidence. Each party’s schedules spanned a period of approximately four years. I am cautious about making a finding from an isolated period of one month out of a number of years. Upon the evidence I am unable to say precisely what, if any, the difference between the parties’ respective contributions to the joint account was.

39Since separation the husband has retired and he has travelled extensively. In March 2013 he purchased a camper trailer for approximately $14,500 using funds from the joint account and has used that to travel around Australia. The husband has also travelled overseas. The husband disagreed with the wife’s proposition that his travel had been subsidised by joint funds, explaining that moving in to the camper trailer enabled him to rent out the Cloudy Drive property and apply the rental income to mortgage repayments. The husband said he travels frugally and stays with friends. I found the husband’s explanations to be plausible. While the decision to live in the camper trailer is a matter of personal choice and enables the husband to travel, it has also assisted the parties in meeting investment property expenses.

40I found the husband to be a truthful witness.

THE LAW

41These proceedings are governed by s 79 of the Family Law Act 1975 (Cth) (“the Act”). Following the High Court decision of Stanford v Stanford (2012) 247 CLR 108, to determine this matter I shall:

•identify the existing legal and equitable interests of the parties in their property;

•ascertain whether it is just and equitable to make a property settlement order and, if so;

•identify and assess the contributions of the parties;

•consider ss 79(4)(d), (e), (f) and (g) of the Act which include the relevant matters in s 75(2) and determine whether an adjustment should be made;

•make such orders as are just and equitable.

THE APPROACH

42Counsel for the parties provided a joint schedule of assets and liabilities which became Exhibit 5. In the schedule, the parties’ property is divided into two parts. The first part includes the assets and liabilities of the parties, together with their superannuation interests other than the husband’s pension.

43The husband is in receipt of a GESB superannuation defined benefit pension and has received fortnightly payments from the fund since retiring from work on 24 October 2012. At the time of trial the husband’s fortnightly pension was $2,163.93.

44The second part of the schedule contains the husband’s pension at its capitalised value of $807,132.

45The husband’s pension was valued by S Bourke SMSF specialist advisor, of Super Splitting applying the valuation provisions in accordance with the Act and the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”). The value ascribed to the husband’s pension (defined benefit payment) is $807,132.

46The requirement to value the pension in accordance with the Act and the Regulations applies only where a splitting order is to be made (Surridge& Surridge (2017) FLC 93-757 at [30]).

47It is important to note however that the wife did not seek, nor did the husband propose a splitting order in respect of the husband’s pension. The value of the property available for distribution is reasonably significant. It is agreed each party will retain a home. There are sufficient other assets to enable a party to pay a lump sum or transfer property to the other, should that be necessary following a determination of the parties’ entitlements. In the circumstances, I do not intend to make a splitting order.

48Having determined that a splitting order is not to be made, a number of considerations apply to the value ascribed to the pension by reference to the Act and the Regulations, and the treatment of that value is a matter for the exercise of discretion.

49The Full Court in Sempertonv Semperton (2012) 47 Fam LR 626 emphasised that the discretion as to how superannuation interests are treated in a particular case must be guided by statements of principle by the Full Court; including that the nature, form and characteristics of the interest must be considered whether or not a splitting order is made.

50Upon the evidence, the known information regarding the pension is that the pension is payable for life. It is indexed and payments are adjusted twice yearly in line with the percentage movement in the “Consumer Price Index – All Groups, Perth” published by the Australian Bureau of Statistics. The husband’s pension is taxed at source amounting to a net entitlement of $2,163.93 per fortnight.

51The husband’s pension is an income stream received as a fortnightly payment. It can never be commuted to a lump sum.

52I do not intend to treat the value ascribed to the husband’s pension of $807,132 as an asset in that amount. Rather, the pension will be considered pursuant to s 79(4)(e) as an income stream of $2,163.93 per fortnight in the hands of the husband. Consequently, I do not consider it necessary to divide the parties’ property into two parts.

53At the commencement of the trial, I referred both parties’ counsel to the Full Court’s decision in Surridge & Surridge (supra) and both agreed with this approach.

THE EXISTING PROPERTY INTERESTS OF THE PARTIES

54At the conclusion of the evidence certain items in the joint schedule of assets and liabilities remained in dispute. They were as follows.

The husband’s inheritance

55As set out above, the husband received Wesfarmers shares and $94,000 in cash by way of an inheritance from his mother’s estate shortly prior to the parties’ separation. The husband purchased the camper trailer with funds from the parties’ joint account into which the husband had paid his long service leave payment.

56The current values of these items are shown in the schedule as:

·the joint Commonwealth bank account (“[Cranberry Grove] offset account”) holding $94,000;

·3000 Wesfarmers shares worth $129,450; and

·a 2013 camper trailer valued at $2,500.

57The husband submitted these items should be excluded from the property to be divided between the parties on the basis that they represent his inheritance received shortly before separation and the wife made no contribution to them.

58I am required to identify the existing legal and equitable interests of the parties in their property.

59I do not intend to exclude the said Commonwealth bank account, the Wesfarmers shares and the camper trailer from the schedule. These items are property in which the husband has an existing interest. I will take account of the source of the funds in the bank account, the shares and the acquisition of the camper trailer when considering the parties’ contributions.

Legal costs

60The wife has paid legal costs of $38,668. The source of funds has been her own personal resources acquired by her prior to and subsequent to separation. The sum of $6,543 is outstanding and the sum of $5,988 is held in trust.

61The husband has paid legal costs of $3,393 and has legal costs owing of $29,336.

62Neither counsel suggested that I should include paid legal costs in the schedule of assets by way of add back and I do not intend to do so.

SCHEDULE OF ASSETS AND LIABILITIES

63The schedule below has been drawn from Exhibit 5.

64I find the property of the parties to be as follows:

ASSETS	Owner	Assets
[Sunny Drive, Suburb W]	J	$430,000
[Darley Dale, Suburb W]	J	$600,000
[Cloudy Drive, Suburb W]	J	$650,000
[Greenfield Drive, Suburb M]	J	$395,000
[Cranberry Grove, Suburb D]	J	$425,000
Commonwealth Bank Saving Account [xxx-xxx-xxxxxxxx]	W	$4,032
Commonwealth Bank Account [xxx-xxx-xxxxxxxxxx]	J	$3,100
Commonwealth Bank Account ([Cranberry Grove] offset account) [xxx-xxx-xxxxxxxxx]	J	$94,000
2010 [Holden Commodore]	H	$2,500
2013 Camper Trailer	H	$2,500
Household contents	H	$2,500
3000 Wesfarmers Shares	H	$129,450
Household contents	W	$2,500
Total Assets	$2,740,582
Liabilities
Commonwealth Bank Investment Home Loan ([Cranberry Grove])	J	$316,961
Commonwealth Bank SVR Investment Home Loan [xxx-xxx-xxxxxxxxx]	J	$92,343
Commonwealth Bank SVR Investment Home Loan ([Greenfield Drive])	J	$362,926
Commonwealth Bank Platinum Awards Credit Card ending [xxxx]	H	Nil
ANZ Frequent Flyer Platinum Credit Card ending [xxxx]	H	$200
Total Liabilities	$772,430
Net Assets (excluding Superannuation)	$1,968,152
Superannuation
GESB West State (accumulation benefit) [xxxxxxx]	H	$106,464
GESB Gold State (defined benefit) [xxxxxxx]	W	$372,992
GESB West State (accumulation benefit) [xxxxxxx]	W	$96,839
Total Superannuation	$576,295
Total Net Assets and Superannuation	$2,544,447

IS IT JUST AND EQUITABLE TO MAKE A PROPERTY SETTLEMENT ORDER?

65The parties separated over five years ago. Among other assets, they own five items of real estate in their joint names with associated liabilities. Following the irretrievable breakdown of their marriage and in circumstances where there is no longer common use of property, both parties seek to alter their property interests. With the ending of their relationship, the express or implicit assumptions held by the parties regarding their property interests have been brought to an end. In these circumstances I find it is just and equitable to make a property settlement order.

CONTRIBUTIONS

66At the commencement of the marriage neither party had any significant assets. At that time both parties were in employment.

67After the parties’ first child was born the wife ceased employment. During the marriage the husband was the primary income earner and the wife primarily cared for the children. The wife returned to work when all three children were at school.

68In addition to his primary earnings, the husband earned some income from his sporting interests.

69Both parties worked hard in their respective spheres. Shortly prior to the parties’ separation in October 2011 the husband received Wesfarmers shares which at that time were worth $91,000 and are currently worth $129,450. He also received $94,000 in cash from his mother’s estate around that time. He subsequently received further payments from the estate between 2011 and 2014 totalling $24,760.

70The husband proposes that the shares and the $94,000 be excluded from the schedule of assets available for division on the basis that the wife has made no contribution to them and they were received by him shortly before or shortly after the parties separated. I have included these items in the schedule for the reasons set out above. The husband submitted I should deal with these and other contributions differently to others. The husband refers specifically to dividends received from the Wesfarmers shares, which were between $2,000 and $3,000 twice a year, his long service leave which he received in December 2012 of $31,806 and his tax refunds. These dividends, tax returns and the long service leave were paid by the husband into the offset or joint account and applied to joint purposes.

71The wife also received long service leave entitlements of which about $7,000 was applied to the wedding of the parties’ daughter and some to the payment of legal costs.

72The parties’ respective long service leave entitlements were accumulated by each of them by reason of their employment including during their marriage. Similarly the tax refunds apply to income earned during that employment.

73This was a long marriage. I do not agree that I should look at some contributions differently to others as submitted by the husband’s counsel. I will take into account the dividends, long service leave and tax refunds of the husband when considering the myriad of contributions made by both parties of different kinds during the relationship.

74Post separation both parties contributed financially to the maintenance and preservation of their property. The cooperative way in which they have together preserved their property, is to their credit. All funds received by the husband have been paid into the joint account. The wife has received her salary, of which, an agreed amount of approximately $1,500 per fortnight has been paid into the joint account. The funds in the joint account have then been applied to meet the expenses and mortgages pertaining to the properties owned by the parties. The surplus funds have been accessed by the husband for his personal use. The wife has retained part of her salary for her personal use.

75The wife endeavoured to show that the payments made by her from her salary to the joint account and the additional payments made by her, upon request by the husband to meet her one half of the expenses pertaining to the properties, have in total exceeded those paid by the husband. On the other hand, the husband endeavoured to show that all of his available funds were paid into the joint account, and the amount used by him for personal purposes was not dissimilar to that retained by the wife from her earnings for her personal use.

76There may be some disparity between the amounts each party has contributed to the joint account. The evidence did not enable me to readily identify such disparity if it exists or make any finding as to quantum. I am satisfied that both parties have applied their income and earnings to joint purposes since separation.

77Almost immediately upon request by the husband the wife paid a one half share of any unexpected expenses pertaining to the investment properties. She paid this without complaint, often without question and at times without a supporting invoice.

78I do not consider that the husband has misled the wife in any way as to amounts due, nor do I consider that he has misapplied their joint funds, he being the only person who operates the joint account. In evidence the husband said when unexpected expenses pertaining to the properties arise, which are less than $200, he does not bother to ask the wife for her share. If the expenses are greater than $200 he then rounds them down and requests a one half share.

79It was put to the husband that he has travelled extensively since separation. He has done so but I am satisfied he has not used funds from the joint account extravagantly and I am not persuaded, as submitted by the wife, that she has subsidised his lifestyle since separation. The husband bought a camper trailer with funds in the joint account, noting that his long service leave had been paid into that account. He paid about $14,500 for the camper trailer and used that to travel around Australia. His expenses while doing so were modest, being primarily petrol. While “grey nomading” around Australia he also had some employment. The husband went overseas, but purchased inexpensive flights and his accommodation was subsidised by staying with friends.

80The husband vacated the Cloudy Drive property. Although this meant he put furniture into storage and has to pay the land tax on the property, it has enabled the parties to lease the property, and the rent is applied to meet the mortgage repayments. The husband currently lives in his camper trailer in a caravan park and pays minimal rent. The husband noted he moved in to his camper trailer to generate additional rental income while the wife lives in the Sunny Drive property and does not pay rent.

81The husband says that by reason of his “extra skills” he made a greater financial contribution both during the relationship and post separation. During the relationship, in addition to his salary, the husband earned some income [using his sporting skills], and he submitted his financial contributions are greater than those of the wife. It was also argued on the husband’s behalf that his contributions since separation are greater by reason of his special skill as the “money manager” and “primary driver” of the ongoing management and investment of joint assets.

82The wife said the husband’s additional sports earnings amounted to no more than $20 per week and that these earnings were invariably spent by him and not applied to family purposes. The wife acknowledged that the husband’s decision to move in to the camper trailer has generated additional rental income to be applied to mortgage repayments, however submitted that his doing so was a personal choice in order to subsidise his travel.

83I am not persuaded that the husband’s management of the parties’ rental properties is anything out of the ordinary. In my view, he has done what any prudent and careful businessman would do in relation to these properties, which have been managed by real estate agents. While living in the camper trailer is a matter of personal choice, and one which no doubt facilitates the husband’s travels, this is a contribution by the husband in that it enables the parties to rent out a further property while the wife occupies a property rent free.

84The wife asserts that she has contributed to the husband’s pension. I refer to that contribution when considering the s 75(2) factors below.

ASSESSMENT OF CONTRIBUTIONS

85I am satisfied that both parties have made relevant contributions to their property. I do not find any material distinction between them.

86The assessment of contributions is not a mathematical exercise and I have not approached it as such.

87The Full Court in Clives v Clives (2008) FLC 93-385 stated at [44] that:

We accept that the task to be undertaken by a trial judge in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise.

88The court must assess contributions holistically. In Dickons v Dickons (2012) 50 Fam LR 244 where the Full Court said at [24]:

…However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

89I have considered the parties’ differing contributions in the particular circumstances of their relationship from the commencement of cohabitation to the date of trial. In my assessment by reason of contribution, the percentage division should be 55% to the husband and 45% to the wife. The differential arises largely because I have included in the schedule of assets and liabilities the Commonwealth Bank account (Cranberry Grove offset account) of $94,000 and the Wesfarmers shares of $129,450, the source of which was the husband’s inheritance. I have not however overlooked his other contributions and the contributions of the wife.

90The effect of this finding as to contribution is that the husband is entitled to receive property to a value of $1,399,446 and the wife is entitled to receive property to a value of $1,145,001.

RELEVANT S 75(2) FACTORS

91I refer to the s 75(2) factors insofar as they are relevant.

(a)the age and state of health of each of the parties

92The wife is 63 years of age and is in good health. The husband is 64 years of age and is also in good health.

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

93The wife is in full-time employment earning $2,231 gross per week. When the outcome of these proceedings are known she will make a decision as to whether she intends to retire based on the funds that she will have available in her retirement, although she hopes to “retire as soon as possible”.

94The wife submitted an adjustment should be made in her favour by virtue of the fact that the husband receives an income in the form of his fortnightly pension in circumstances where she does not have a similar pension entitlement. The husband receives the pension of $2,163 net per fortnight and he will continue to receive that for life. I accept the wife’s submission.

95The parties otherwise receive the income from the rental properties and pay their share of the outgoings.

96The parties’ property is as set out above.

(d)commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain

97The parties’ commitments are as set out in their financial statements. Their commitments include the expenses pertaining to the properties they occupy and also their investment properties.

(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)any law of the Commonwealth, of a State or Territory or of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party

98The parties have the superannuation interests referred to in the schedule above.

99The husband is in receipt of the pension to which I have referred above and taken account of.

(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

100The standard of living of both parties is comfortable. Both parties seek a reasonable standard of living.

(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party

101The wife supported the husband in his career. The husband’s pension came about as a consequence of a 5% salary input to accumulating that pension. Counsel for the wife submitted that the wife contributed to the husband’s pension in either of two ways. It was argued the wife had contributed to the pension by the household being short the 5% of the husband’s salary that went towards the accumulation of the pension. It was argued in the alternative that the wife contributed to the pension merely by virtue of the marriage and that the husband was able to carry out his employment because of the way the parties arranged their household. I accept that the wife contributed to the husband’s pension.

(n)the terms of any orders made or proposed to be made under section 79 in relation to:

(i)the property of the parties; or

(ii)vested bankruptcy property in relation to a bankrupt party

102The parties agree the wife will receive the Sunny Drive property and the husband will receive the Cloudy Drive property. The parties agree the Greenfield Drive property should be sold. The wife proposes to transfer her interest in the Cranberry Grove and Darley Dale properties to the husband, although upon the proposals of both parties the Darley Dale property may have to be sold and the proceeds paid or divided to meet the percentage division ordered.

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

103It was submitted on behalf of the husband that his inheritance was less than $250,000 and I should find that the wife is likely to receive an inheritance of at least that amount.

104Upon the evidence, the known information regarding the wife’s parents is that they are 89 years of age. The wife’s father remains relatively active while the wife said that her mother is in the process of being diagnosed with dementia and cannot be left alone. If the wife’s father predeceases her mother, the wife’s mother inherits his estate. The wife’s mother is not able to care for herself and would need to go into a care facility. The wife is one of four siblings, all of whom would receive an equal share of their parents’ estate.

105There is no evidence of the wealth of the wife’s parents or of the value of their home. There is no medical evidence as to their states of health and no evidence as to the cost of aged care. To take into account any prospective inheritance that the wife might have would be to speculate and I decline to do so.

106Regarding the husband’s allegation of financial misconduct on the part of the wife, for reasons stated previously I reject the assertion that she has undisclosed funds.

ASSESSMENT OF S 75(2) FACTORS

107In my assessment, having regard to the s 75(2) factors as a whole, I consider an adjustment in favour of the wife of 7% is appropriate. 7% of the parties’ property is $178,111. The most significant factor warranting the adjustment is the husband’s receipt of an income stream for life in the form of his fortnightly pension, to which the wife has contributed.

JUST AND EQUITABLE

108The overall distribution of property will be 52% to the wife and 48% to the husband. There is a disparity of 4% or $101,778.

109The total of the property of the parties is $2,544,447. The wife’s entitlement of 52% is $1,323,112 and the husband’s entitlement of 48% is $1,221,335.

110The husband retains the following:

ASSETS

Assets

[Darley Dale, Suburb W]

$600,000

[Cloudy Drive, Suburb W]

$650,000

[Cranberry Grove, Suburb D]

$425,000

Commonwealth Bank Account [xxx-xxx-xxxxxxxx]

$3,100

Commonwealth Bank Account ([Cranberry Grove] offset account)

$94,000

2010 [Holden Commodore]

$2,500

2013 Camper Trailer

$2,500

Household contents

$2,500

3000 Wesfarmers Shares

$129,450

Total Assets

$1,909,050

Liabilities

Commonwealth Bank Investment Home Loan ([Cranberry Grove])

$316,961

Commonwealth Bank SVR Investment Home Loan

[xxx-xxx-xxxxxxxxx]

$92,343

ANZ Frequent Flyer Platinum Credit Card ending [xxxx]

$200

Total Liabilities

$409,504

Net Assets (excluding Superannuation)

$1,499,546

Superannuation

GESB West State [xxxxxxx] (accumulation benefit)

$106,464

Total Superannuation

$106,464

Total Net Assets and Superannuation

$1,606,010

111The wife retains the following:

ASSETS	Assets
[Sunny Drive, Suburb W]	$430,000
Commonwealth Bank Saving Account [xxx-xxx-xxxxxxxx]	$4,032
Household contents	$2,500
Net proceeds of [Greenfield Drive] ($395,000 less $362,926)	E $32,074
Total Assets	$468,606
Superannuation
GESB Gold State [xxxxxxx] (defined benefit)	$372,992
GESB West State [xxxxxxx] (accumulation benefit)	$96,839
Total Superannuation	$469,831
Total Net Assets and Superannuation	$938,437

112If each party retains the property as set out above, the husband has property of $1,606,010 and the wife has property of $938,437. To achieve the percentage division ordered the husband will have to pay to the wife the sum of $384,675. It is likely the Darley Dale property will have to be sold and most of the proceeds paid to the wife. There may be capital gains tax payable as a consequence. The actual amount to be paid to the wife will be that which gives effect to the percentage division which I have determined is just and equitable. The amount will be calculated by reference to the schedule above together with the actual sale proceeds of the Greenfield Drive and Darley Dale properties and the tax liability.

113Both parties will own a home. The husband will have superannuation entitlements and an investment property with an associated liability. The husband will also have an income stream for life. The wife will have her superannuation entitlements and she will have a lump sum which she is able to invest if she chooses to do so to derive an income.

114In the context of a long marriage producing three children, where both parties worked hard in their respective spheres, and, having regard to the nature, form and characteristics of the property of the parties to be divided, I am satisfied that the orders I propose to make are just and equitable.

115It will be necessary for both parties, to consider their options. If there is a shortfall in the sum payable to the wife after the sale of the Darley Dale property, there may be a superannuation split in respect of the husband’s GESB West State Superannuation to achieve the overall percentage division to be ordered.

THE PROPOSED PROPERTY ORDERS

116I propose to make orders which can be summarised as follows:

1Within 30 days of orders the husband transfer his interest in [Sunny Drive, Suburb W] (“the [Sunny Drive] property”) to the wife, and the wife indemnify the husband against any liability in respect of the [Sunny Drive] property.

2Contemporaneously with the transfer at paragraph 1 above, the wife transfer to the husband her interest in [Cloudy Drive, Suburb W] (“the [Cloudy Drive] property”), and the husband indemnify the wife against any liability in respect of the [Cloudy Drive] property.

3The property at [Greenfield Drive, Suburb M] (“the [Greenfield Drive] property”) be sold and the net proceeds of sale be paid to the wife.

4Contemporaneously with the transfer at paragraph 1 above, the wife transfer to the husband her interest in the property at [Cranberry Grove, Suburb D] (“the [Cranberry Grove] property”), and the husband refinance the mortgage over the [Cranberry Grove] property and indemnify the wife against any liability with respect to the property.

5Contemporaneously with the transfer at paragraph 1 above, the wife transfer to the husband her interest in the property at [Darley Dale, Suburb W] (“the [Darley Dale] property”), and the husband refinance the mortgage over the [Darley Dale] property and indemnify the wife against any liability with respect to the property.

6In the alternative, the [Darley Dale] property be listed for sale and the net proceeds be divided between the parties so as to effect a percentage division of property overall 52% to the wife and 48% to the husband.

7The parties each retain the assets and superannuation in their respective names.

8The parties indemnify the other against any liability in their respective names.

9In the event of a shortfall after the sale of the [Darley Dale] property, the husband pay to the wife such sum as may be necessary to effect the said percentage division of property. If necessary this may be achieved by a superannuation split of the husband’s GESB West State superannuation account.

117I propose to give both parties an opportunity to consider the findings as set out above and the summary of the orders with a view to submitting a joint minute of proposed orders to give effect to these reasons.

I certify that the preceding [117] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate