NEAVES & NEAVES

[2015] FamCA 502

FAMILY COURT OF AUSTRALIA

NEAVES & NEAVES [2015] FamCA 502

FAMILY LAW – PROPERTY - Settlement in relation to marriage – Where the husband and wife were married for approximately 21 years and have six children – Where overall contributions are found to be 40 percent to the wife and 60 percent to the husband – Where the care of the children under 18 is divided between the parties on an equal time basis –Where the husband has a significantly higher earning capacity than the wife – Where a 16 percent s 75(2) adjustment is appropriate in favour of the wife – Where an order is made for the wife to receive 56 percent and the husband to receive 44 percent of the available property and superannuation.

Family Law Act 1975 (Cth) – ss 75(2), 79, 79(1), 79(2), 79(4)

Bevan & Bevan (2013) FLC 93-545
Clauson and Clauson (1995) FLC 92-595
Stanford v Stanford (2012) FLC 93-518

APPLICANT: Mr Neaves

RESPONDENT: Ms Neaves

FILE NUMBER: SYC 6174 of 2012

DATE DELIVERED: 30 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 22 and 23 June 2015

REPRESENTATION

FOR THE APPLICANT: Mr Neaves in person

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. That the husband and wife sign all documents and do all things to cause the proceeds held in the controlled monies account to be paid to the parties as follows:

   a.In payment to the wife of $69 485 on account of debts held in the wife’s name;

   b.In payment to the husband of $18 800 on account of debts in the husband’s name;

   c.The balance to be paid:

   i.        75 percent thereof to the wife; and

   ii        25 percent thereof to the husband.

2. That the husband be declared the sole legal owner of the Motor vehicle 1 registered in his sole name and the wife be declared the sole legal owner of the Motor vehicle 2 registered in her sole name.

3. That other than as herein provided, the husband and the wife each be declared the owner at law and in equity of all items of superannuation and personalty, including but not limited to, money, proceeds of bank accounts, jewellery and other items of personal property presently in their respective possession and control.

4. That other than as herein provided each of the husband and the wife remain solely liable for any debts in his or her sole name as at the date of these orders and in this respect shall indemnify and keep indemnified the other from any liability in relation thereto.

5. That all exhibits be released.

6. That both parties have leave to relist these proceedings by arrangement with the Associate to Johnston J in relation to implementation of these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6174 of 2012

Mr Neaves

Applicant

And

Ms Neaves

Respondent

REASONS FOR JUDGMENT

1. The parties in these proceedings are Mr Neaves and Ms Neaves.  For convenience I shall refer to them as “the husband” and “the wife”.

2. The parties have been unable to resolve their property dispute and have asked the Court to determine a property settlement for them.  To their credit, on the first day of the hearing, the parties resolved their dispute in relation to the parenting issues.  The wife also sought an application for child support departure.  However on the second day of the hearing I granted leave to the wife to withdraw this application.

3. The parties were married in 1990 and there are six children of the marriage.  Two of the children were not the subject of these proceedings as they are over the age of 18.  The parties married in 1990 and separated on 14 January 2012.

4. The husband is self-represented and the wife is represented by Hamish Cumming Family Lawyers.  Legal Aid NSW acted for the ICL.

Applications

1. Annexed at Annexure “A” to these Reasons are the detailed orders sought by each of the parties.  But in summary, the husband seeks orders to the following effect:

   ·The Citibank credit card balance of $20 000 be paid to the husband from the controlled monies account;

   ·Each party retain sole ownership of their respective motor vehicles (subject to any finance) and contents of their homes;

   ·Each party indemnify the other in respect of any debts in their name;

   ·The balance of the controlled monies of approximately $485 000 be paid to the parties in equal shares;

   ·A superannuation splitting order be made to split the husband’s superannuation benefit equally between the parties;

   ·There be no departure from assessment of child support;

2. On the other hand, the wife seeks orders to the following effect:

   ·The monies held in the controlled monies account be paid to the parties as follows:

   (a)      $69 485 to the wife on account of debts held in her name;

   (b)$18 800 in payment to the husband on account of debts in his name; and

   (c)payment to the wife of 75 percent of the balance and the remaining balance to the husband;

   ·The husband and the wife each be declared the owner of all other property including motor vehicles and superannuation in their possession and/or control respectively; and

   ·That each party remain solely liable for any debts in his/her name and they shall indemnify the other from any liability thereto.

3. The wife also sought orders departing from child support assessment.  But, as indicated above, she withdrew this application. 

Background

1. The husband was born in 1969 and is currently 46 years of age.  The wife was born in 1971 and is currently 43 years of age.

2. The parties were married in 1990.  At the commencement of the relationship neither party had any asset or liability of significant value.  The wife was studying and working on a casual basis.  The husband worked in the hospitality industry.

3. The parties lived in a two bedroom unit in Suburb B until moving into the husband’s parent’s property at C Street, Suburb D (“the Suburb D property”) in 1992.  The wife said that the parties paid rent to the paternal grandparents while living in the property.  The husband disputes this.

4. Mr E was born in 1992.

5. Ms F was born in 1994.

6. In 1995 the wife worked from home.  She continued this work for six months.

7. In 1996 the parties renovated the Suburb D property.  The wife and the husband took out a loan with the husband’s parents as guarantors in the sum of $100 000 to pay for the renovations.  The wife and the husband made almost all repayments in relation to the loan in addition to paying rent to the husband’s parents.

8. G was born in 1997.

9. H and J were born in 2001.

10. K was born in 2004.

11. In 2006 the husband’s parents sold the Suburb D property for $695 000.  $250 000 was paid to the husband as an advance against future inheritance.  I shall refer to this again below.

12. The parties subsequently purchased the former matrimonial home at L Street, Suburb D (“the former matrimonial home”) for $540 000 subject to a mortgage to the Commonwealth Bank.  The house was demolished and the parents built a new home on the property.

13. In October 2011 the wife received an inheritance from her grandmother in the sum of $70,000.  $10,000 of the inheritance was spent on a family holiday to Fiji and the balance of the inheritance was put towards the mortgage and spent on general living expenses.

14. The parents separated on a final basis on 14 January 2012.  They divorced in February 2014.

15. Following separation, the husband lived with his parents.  The children and wife remained living in the former matrimonial home.  The husband spent time with the children on weekends.

16. In March 2012 the husband moved into rental accommodation in Suburb M.  He spent time with the children each alternate weekend and each Wednesday night.

17. In early July 2012 the husband moved back into the former matrimonial home with the wife and children.  On 21 July 2012 the wife and children moved out of the property to a four bedroom townhouse in Suburb N.  The wife paid $810 per week in rent.  The children were enrolled in new schools in the area.

18. In July 2012 the husband’s child support payments were reduced from $1738 to $1216 per month.

19. In August 2012 the former matrimonial home was listed for sale by auction. The property did not sell at auction.  The home was sold for $1 275 000 in late 2012.  The parties each received an advance of $50 000 from the sale of the home and the remainder of the proceeds of sale are held in the controlled monies account.

20. On 7 September 2012 the husband’s child support liability was reduced to $868 per month.

21. On 29 September 2012 the husband moved to a rented property in Suburb O where he was paying $660 a week in rent.  The children spent time with the husband each Tuesday and Wednesday night and on alternate weekends.

22. Interim parenting orders were made in the Federal Circuit Court by consent in November 2012.  The orders provided for a two week routine where the children would spend five nights with the husband and nine with the wife in the first week and six nights with the husband and eight nights with the wife in the second week. 

23. On 13 December 2013 the matter was transferred to this Court.

24. The wife continues to work in the service industry.  The husband works full time for P Pty Ltd.  The wife and children continue to live at the rented property in Suburb N for which the wife pays $820 rent per week.

Credit

1. Each of the husband and the wife were responsive in their answers to questions during cross-examination.  Each was courteous and cooperative with the court process.  I regard each of them as being truthful witnesses. 

Citibank Visa Credit Card Liability $20 000

1. There was an issue about how the Court ought to treat payment by the husband of a $20 000 Citibank Visa credit card liability in 2012.  When the proceedings came before his Honour, then Federal Magistrate Monahan on 21 November 2012 amongst the orders made was the following:

   2.That the Applicant and the Respondent shall do all things and sign all necessary documents and provide all necessary authorities to cause the proceeds of sale of the former matrimonial home to be distributed in the following manner:

   c.All and any balance owing on the balance from the Citibank Visa credit card number 4265 3401 8092 1043 as at 14 January 2012.

2. The husband said that at the time this order was made it was overlooked that some weeks before he had paid out the balance on the Citibank credit card which was approximately $20 000.  He said that this was overlooked at the time of making the orders. As indicated above, amongst the orders made on 21 November 2012 was the following:

   2.g.The sum of $50,000 be advanced to each party towards their costs and expenses, which will be brought into account by the Court as a partial property settlement upon the final resolution of these proceedings.

3. I am uncertain of the timing of this $20 000 liability, but in any event the husband said that he used part of his preliminary property settlement to pay this $20 000 liability.  He submitted that because he used his property distribution to fund this liability he should now be reimbursed from the controlled monies representing what is left of the net proceeds of sale of the matrimonial home.

4. On the other hand it was submitted on behalf of the wife that in fact what this payment by the husband satisfied was ordinary household liabilities.  The husband agreed that the liabilities included rent which he had paid in respect of his own rented home, a gymnasium subscription, the cost of mediation at Relationships Australia, some sand and soil for the garden to assist in preparation of the former matrimonial home for sale, money spent on Ms F’s accident, other renovation costs to prepare the home for sale, a family concert, costs of a removalist van hire for his use, house insurance premiums, some school fees, a fridge for the wife, $2500 in respect of his own legal costs and various joint expenses. 

5. It is also clear that the wife used her preliminary property settlement of $50 000 to pay the shortfall between her income and her expenditure.

6. I can understand the husband thinking that because his $50 000 was paid as property, this amount of $20 000 ought to be reimbursed to him from what remains of the parties’ property.  But the difficulty is that, the demands of providing for their children, added to by the fact that each of the parties has been paying a considerable amount in rent to operate their now separate households, has consumed most of the preliminary payments received by each of them.  The balance appears to have been spent on legal costs or other quite ordinary expenditure.

7. In all the circumstances, in my view it would not be appropriate to reimburse the husband the $20 000 or any part thereof as sought by him.

C Street, Suburb D

1. This property was purchased by the husband’s parents Mr and Ms Neaves Snr in 1992 for approximately $230 000.  It was purchased as an investment property.

2. The parties went into occupation of this property in 1992 and paid rent of $190 per week.  The rent increased over time and was approximately $225 per week in 2006.

3. In 1997 the property was renovated at the request of the parties, as I have said, to better accommodate their expanding family.  The husband and wife borrowed $100 000 to fund the renovations.  This loan was guaranteed by the husband’s parents and they were parties to the loan.  The husband and wife made all repayments on the loan.

4. The renovations were substantial.  They involved construction of two additional bedrooms, an extra living area, an extended and remodelled kitchen and an additional bathroom.  After the renovations were completed the home became a five bedroom home with two bathrooms and other amenities. 

5. In 2006 the property was sold for $682 500.  From the net proceeds of sale the husband’s parents’ mortgage of approximately $230 000 was paid, as was the parties’ $100 000 renovation loan.  Capital gains tax of approximately $60 000 was also paid.  The net proceeds of sale, therefore, were approximately $305 000.  Eighty percent of this ($244 000) was paid to the husband’s parents and 20 percent ($61 000) was paid to the parties.  This reflected an agreement between the husband and the wife and the husband’s parents, that the parties’ interest in the property attributable to the renovations would be 20 percent.

6. After the sale the husband’s parents gave approximately $250 000 to the husband.  The husband’s father considered this to be a preliminary distribution of the husband’s inheritance and made a notation in his will that it was to be taken into account in the distribution of his estate.

The Applicable Law

1. Sub-section 79(1) of the Family Law Act 1975 (Cth) (“the Act”) provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.

2. Sub-section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. Sub-section 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).

4. The operation of s 79 was the subject of consideration by the High Court in the case of Stanford v Stanford (2012) FLC 93-518. In this case the majority said (at page 86,640) in referring to ss 79(2) and 79(4) as follows:

   35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

   36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.

5. The High Court said that the first of these propositions is for the court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.

6. The second is that although s 79 confers a broad power on the court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.

7. The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.

8. And the High Court majority went on to say (at page 86,642) as follows:

   41.…  The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The Parties’ Existing Legal and Equitable Interests in Property

1. The parties’ interests in property and superannuation are as follows:

$
1.         Proceeds of sale from former matrimonial home	505,689
2.         Husband’s Motor vehicle 1	15,000
3.         Husband’s yacht	7,000
4.         Husband’s bank accounts	0
5.         Wife’s bank accounts	0
6.         Wife’s Motor vehicle 2	13,000
_____________
$540,689

1. The liabilities are as follows:-

$
1.         Husbands fleet novated car lease	12,000
2.         Husband’s ANZ Credit Card 8662	3,800
3.         Husband’s Armstrong Legal	1,500
4.         Husband’s NAB Credit Card 9015	1,500
5.         Wife’s legal fees	30,000
6.         Wife’s loan from Ms Q	25,000
7.         Wife’s loan from Ms R	3,200
8.         Wife’s outstanding school fees	7,500
9.         Wife’s orthodontic bill for J	3,785
__________
$88,285
Surplus property	$452,404

Superannuation	$
1.         Husband’s AMP Super	113,419
_____________
$113,419
Net property and superannuation	$565,823

Sub-Section 79(2)

1. Sub-section 79(2) of the Act provides:

   The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

2. In their recent decision in the case of Bevan & Bevan (2013) FLC 93-545 the Full Court (Bryant CJ and Thackray J) said as follows at page 87,234:

   In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.

1. In the present case, the parties were married for more than 21 years and raised six children to their current ages. 

2. If the Court did not make orders, the various unresolved issues between them would not be resolved.  The result would be unfair to both the husband and the wife. 

3. In these circumstances, in my view it would be just and equitable to make an order under s 79 of the Act.

Contributions

1. As indicated above, at the time of marriage neither party had any property of significant value.  The wife was studying for her associate diploma in nursing and working as a casual music teacher.  The husband was working in the hospitality industry at S Hotel in Sydney. 

2. A few months after marriage the wife, who was then 19 years of age, became pregnant with the parties’ first child.  She ceased her studies.  She has not had full time employment at any time during the marriage.  She has devoted almost all of her available time to the care of the children as their primary parent. 

3. The husband has been the major breadwinner for the family.  He has had continuity of full time employment throughout the marriage.  This was the way the parties arranged their responsibilities as parents. 

4. Both parties undertook maintenance of the C Street property including internal painting several times, taking up carpets and sanding the floors.  The husband undertook a lot of the work involved in the renovations himself.

5. In relation to designing and building their new home both parties were involved in dealing with tradespersons and architects.  The husband did a lot of landscaping work himself. 

6. The wife undertook the majority of the domestic work around the home including all the washing and the ironing as well as most of the internal cleaning.  The wife also did almost all of the food shopping and most of the cooking, although in the last few years of the marriage the husband shared the cooking. 

7. It is clear that the husband has made the major part of the financial contributions over the duration of the marriage.  But the wife has earned money as she has been able, given that her primary focus was caring for the children and the limitations imposed by her lack of formal training. 

8. On the other hand the major contribution to the welfare of the family constituted by the parties and their children, and as homemaker and parent, has been made by the wife. 

9. As indicated above, the husband’s father gave the parties approximately $250 000 in 1996.  In addition, I accept that he provided further direct financial support to a total of approximately $65 000.  This was by way of approximately $37 000 for unpaid rent in respect of the C Street property, payment of some instalments in respect of the parties’ $100 000 loan and approximately $28 000 in repayment of various debts of the husband and the wife.  These are significant contributions and come in on the husband’s side of the ledger, as it were.  A major issue in the proceedings has been how the Court would take account of these advances made by the husband’s father in the overall assessment of the parties’ contributions.  This was a total of $315 000. 

10. But it is important also to take into account that the wife inherited $70 000 as I have said.  It is clear that the totality of these funds has been expended on household expenditure. 

11. This Court does not take an arithmetical approach to the assessment of contributions by the parties.  It was submitted by the husband that by his parents making the C Street home available to the parties and particularly by advancing them the approximately $250 000 and the other monies referred to, being a total of $315 000, this became the springboard for the parties’ acquisition of the former matrimonial home which now represents their most significant asset.  I accept that the difference in gifts from relatives that is, the total of $315 000 from the husband’s side compared with the $70 000 which came in on the wife’s side, ought to reflect a finding of something other than equality of contributions overall.  As I have said one does not take an arithmetical approach to this responsibility.  And it is also the case that these gifts have to be seen in a context in which the Court takes account of the totality of contributions by the parties. 

12. In my view, weighing the difference of advances from relatives with all the other contributions by the parties over this long marriage the appropriate assessment of contributions overall is that they have been 60 percent by the husband and 40 percent by the wife. 

Sub-section 75(2) matters

1. The husband is 46 years of age and in good health.  He works full time as customer development manager in a sales role with P Pty Ltd Australia.  His income is $2730 per week.  During some financial years he has received a bonus in addition to his salary.  He received a $20 000 bonus in April 2015 but did not receive a bonus in 2013 or 2014.  In addition he receives petrol at a 25 percent discount and is provided with a mobile phone paid for by P Pty Ltd for both his work and personal calls.  He says that circumstances are somewhat volatile in his industry.  However, in my view it is more probable than not that he will continue to have the capacity to earn income at approximately his current level for the foreseeable future. 

2. On the other hand the wife is 43 years of age and works part time as on a casual basis.  This work is not available to her outside school terms, her clientele being school students.  Her income from this occupation is approximately $620 per week.  She also receives government benefits to a total of approximately $717 per week.  In addition, she receives weekly child support paid for by the husband of $257.  This might be expected to change given that final parenting orders have now been made.  The wife has no formal qualifications. 

3. The wife is generally in good health although she has two herniated discs, in respect of which she undertakes some treatment, and an iron deficiency. 

4. It was submitted by the husband that the wife ought to have some capacity to be able to improve her earnings by increasing her hours of employment.  I must say it is difficult to see that this would be available given her chosen field of employment.  It might be that the wife might be able to undertake some form of part time employment during the day prior to close of school when her normal employment commences.  But the wife indicated that she has tried to obtain further employment by sending her resume to more than 200 schools.  In addition, she has applied for approximately 20 advertised jobs including administrative positions.  She received three formal interviews but with no success.  She recently enrolled in an unpaid internship in the hope that it might lead to something of a paid nature.  But this has not occurred.

5. I must say it is difficult to be optimistic that the wife would be able to significantly improve her income earning position given her lack of formal training.  I accept that she might be able to do some further work, albeit of a low-income nature, assuming that she was able to find such work which has not occurred to date.  It would appear that the duration of the marriage and the fact that the wife has undertaken primary responsibility for the care of six children has resulted in the wife having had limited opportunity to be able to improve her employment status.  In all the circumstances, therefore, it is more probable than not that the wife’s income-earning capacity will not improve significantly in the future. 

6. Each of the parties now has the responsibility to care for and provide for the children on an equal time basis following the parenting orders made in these proceedings.  In addition, the parties’ daughter Ms F has been living with the wife and attending university.  The wife has been assisting her in meeting her needs.  It is the case that Ms F will be undertaking study overseas in the near future.

7. In my view, the most significant s 75(2) matter is the difference between the parties in terms of their income earning capacities.  It was submitted by the husband that when one takes account of all the government benefits which the wife is entitled to and taking account of the child support which he pays then in net terms their income positions are really not all that different.  In my respectful view, that seriously understates the difference between them.  The husband has developed many years of experience in his employment and as indicated above works in a management position.  He is paid well by community standards for this work and he has the advantage of superannuation benefits which under the law will be expected to continue to aggregate. 

8. On the other hand the wife has no real continuity of employment.  She has a very modest business providing casual musical tuition to students which provides her with her very modest remuneration.  It is difficult to see that she would be able to find the time, energy and other means to embark on some course of tertiary study or other training to improve her income earning prospects.  On this basis, in my view there is a considerable difference between the parties in terms of their income earning capacity and potential. 

9. This requires a set off of available property in a significant amount in order to arrive at a just and equitable order. 

10. In the case of Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 the Full Court of this Court indicated trial judges need to consider the value of the adjustment in real terms. The Full Court said at FLC page 81,911 as follows:

    There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.  

11. In my view, the appropriate adjustment would be 16 percent in favour of the wife.  This would be a difference between the parties of $181 063 (32 percent).

Conclusion and fourth step

1. At this point I note that the husband asked the Court to make a superannuation splitting order the effect of which would be to split his superannuation entitlement so that each of the parties would enjoy one half thereof.  The problem with this part of his application, however, is that firstly, he did not seek such an order in a form which would enable it to be made.  But even more significantly, the husband did not serve a copy of an appropriate order on the trustee of his superannuation fund to enable the trustee opportunity to be heard.  In these circumstances I informed the husband during the hearing that it would not be appropriate for the Court to make a superannuation splitting order.  Even if he had attended to these matters, in my view, it would not be appropriate in this case to make a superannuation splitting order because of the significant difference between the parties’ income earning positions.

2. The consequence of this is that the husband’s superannuation entitlement will remain intact and be taken into account as his sole asset.

3. The husband is to have 44 percent of the property and superannuation available for division between the parties.  This is property and superannuation with a value of $248 962 (44 percent of $565 823 = $248 962).

4. The husband has the following property and superannuation:

$
1.         Motor vehicle 1	15,000
2.         Yacht	7,000
3.         AMP Super superannuation	113,419
___________
$135,419

1. But the husband has the following liabilities:

$
1.         Fleet Novated car lease	12,000
2.         ANZ Credit card 8662	3,800
3.         Armstrong Legal costs	1,500
4.         NAB Credit card 9015	1,500
__________
$18,800

1. Accordingly, the husband has property and superannuation with a net value of $116 619 ($135 419 - $18 800 = $116 619).  To achieve property and superannuation with a value of $248 962 he will require additional property with a value of $132 343 ($248 962 - $116 619 = $132 343). 

2. On the other hand the wife is to have 56 percent of the available property and superannuation.  This would have a value of $316 861 (56 percent of $565 823 = $316 861).

3. The wife has the following property and superannuation:

$
1.         Motor vehicle 2	13,000
__________
$13,000

1. But the wife has the following liabilities:

$
1.         Legal fees	30,000
2.         Ms Q loan	25,000
3.         Ms R loan	3,200
4.         Outstanding school fees	7,500
5.         J’s orthodontic bill	3,785
_____________
$69,485

1. Accordingly, the wife has a deficiency of $56 485 ($13 000 - $69 485 =

   
   

   -$56 485).  To achieve property with a value of $316 861 the wife will require an additional payment of $373 346 ($316 861 + $56 485 = $373 346).  This would be paid from the controlled monies account.  After payment of her liabilities this would leave the wife with $316 861 ($373 346 + $13 000 - $69 485 = $316 861).

2. The orders sought by the wife would involve a payment to her of $313 053.  This would involve the parties’ liabilities, a total of $88 285 being paid from the controlled monies ($505 689) which would leave $417 404.  From this the wife would receive 75 percent ($313 053) and the husband would receive the balance ($104 351).

3. My judgment arrives at the point where I propose the wife receives a payment of $316 861, a difference of $3808 ($316 861 - $313 053 = $3808) from that sought. 

4. In all the circumstances, in my view, it will be a just and equitable order for orders to be made as sought by the wife.  That is, I shall round down my $316 861 to $313 053 as sought by the wife.

5. Accordingly, the husband will have his motor vehicle, his yacht and his superannuation.  But he will have an amount for his liabilities to be paid from the controlled monies.  In addition, he will receive a payment of $132 343.  This is a modest amount but unfortunately the parties’ circumstances are modest.

6. On the other hand the wife will have her motor vehicle and like the husband, an amount to pay her liabilities will be paid from the controlled monies.  She will receive a payment of $313 053 from the controlled monies as sought by her.  Like the husband, it is difficult to see that the wife would be able to use this as a deposit on a home so that this money will likely be spent in assisting payment of the household expenses of herself and the children.

7. The orders I propose will not affect the earning capacity of either party.

8. In all the circumstances, in my view, the orders I propose will reflect a just and equitable result.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 30 June 2015.

Associate:     

Date:              30 June 2015

ANNEXURE A

Minutes of Orders Sought by the Parties

HUSBAND

1. The Citibank Credit Card amount of E$20 000 be reimbursed to the applicant from the pool of funds.

2. That each party hold and retain ownership of their respective car and car finance if any.

3. That each party hold and retain ownership of their home contents.

4. That each party be held liable and indemnify the other party for any debt in their name.

5. That the remaining pool of funds of E$485,000 be split on a 50/50 basis.

6. That superannuation held by the parties be split to effect an overall split of 50/50 between the parties.

7. That child support be paid as assessed by the Child Support Agency.

8. That the parties agree to jointly contribute 50 percent each to the costs related to the following items:

   ·Up to 2 x organised team sport activities such as soccer, netball

   ·Medical and dental costs that would be deemed as eligible items within a health fund such as orthodontist, medical specialist, physio, etc.

   ·Participation in a school band program and the associated costs of tutors and one musical instrument per child.

WIFE

1. That the proceeds held in the controlled money account be distributed to the parties as follows:

   a.In payment to the wife of $69 485 on account of debts held in the wife’s name;

   b.In the payment to the husband of $18 800 on account of debts in the husband’s name;

   c.Of that remaining, in payment as follows:

   i.        As to 75 percent to the wife;

   ii        As to 25 percent to the husband.

2. That the husband be declared the sole legal owner of the Motor vehicle 1 motor vehicle registered in his sole name and the wife be declared the sole legal owner of the Motor vehicle 2 registered in her sole name.

3. That other than as herein provided, the husband and wife each be declared the owner at law and in equity of all items of personalty including but not limited to money, proceeds of bank accounts, jewellery and other items of personal property presently in their respective possession and control.

4. That the parties be declared the owners of such superannuation entitlements to which they are each is or may become entitled in his or her own right.

5. That other than as herein provided each of the husband and wife remain solely liable for any debts in his or her sole name as at the date of these orders and in this respect shall indemnify and keep indemnified the other from any liability in relation thereto.

Child Support

1. That in addition to the administrative assessment or child support issued by the Child Support Agency from time to time and pursuant to section 116 and 117 of the Child Support (Assessment) Act 1989, the child support assessment be varied such that the applicant pay an additional amount of $65 per week per child.

2. That as and from the making of these orders, the father pay to the mother in addition to order 6 above, for the support of the said children as follows:

   a.[deleted]

   b.One half share of all medical and dental expenses;

   c.The full cost of the fees for the children’s orthodontic work from time to time, less any applicable health fund rebate;

   d.[deleted]

3. That such rates in order 6 above be adjusted as of the date of these orders and thereafter on 1 April each year in accordance with any change in the consumer price index for Sydney as published by the Commonwealth of Australia Statistician.