Neely & Neely
[2022] FedCFamC2F 1590
Federal Circuit and Family Court of Australia
(DIVISION 2)
Neely & Neely [2022] FedCFamC2F 1590
File number(s): BRC 15780 of 2021 Judgment of: JUDGE COPE Date of judgment: 22 November 2022 Catchwords: FAMILY LAW – matrimonial property division – relationship of 14 years – husband 78 years – wife 61 years – where husband had the far greater initial contributions – global approach – where parties are of an age to access super – where from 2015 there was an equal financial contribution – wife made greater contribution as homemaker – husband’s ability to work is likely limited not only because of his age but his health – husband unilaterally gifted $20,000 to his daughter – split of 70:30 in the husband’s favour. Legislation: Family Law Act 1975 (Cth) Part VIII, ss 75, 79 Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Cahill & Cahill (2006) FLC 93-253; [2003] FamCA 172
Dickons v Dickons (2012) 50 FamLR 244; [2012] FamCAFC 154
Hickey & Hickey (2003) FLC 93-143; [2003] FamCA 395
Jabour& Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Stanford v Stanford (2012) FLC 93-518; [2012] HCA 52
Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14
Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 27 October 2022 Place: Cairns Counsel for the Applicant: Mr Eylander of Counsel Solicitor for the Applicant: Hadley Family Law Counsel for the Respondent: Mr Taylor of Counsel Solicitor for the Respondent: Hartley Whitla Lawyers ORDERS
BRC 15780 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NEELY
Applicant
AND: MS NEELY
Respondent
order made by:
JUDGE COPE
DATE OF ORDER:
22 November 2022
THE COURT ORDERS THAT:
1.Within 30 days of the date of these Orders, the Respondent do all acts and things and sign all documents required to transfer to the Applicant, at the expense of the Applicant, all her right title and interest in the property situated at B Street, Suburb C (“the home”) and being the whole of the property more particularly described as Lot … on SP ….
2.On transfer of the Respondent’s interest in the home:-
(a)The Applicant shall indemnify and discharge the Respondent absolutely against all payments and liabilities of any encumbrances over the home together with all rates, taxes and outgoings of or with respect of the home of whatsoever nature and kind;
(b)The Respondent and the Applicant shall do all such acts and things and sign all such documents as may be necessary to close the Bank D Cash Management account # …59 and divide the proceeds in the following manner:-
(i)To the Respondent the sum of $150,779.80; and
(ii)To the Applicant the balance then remaining.
3.Unless otherwise specified in these Orders, each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each party as at the date of these Orders and that for this purpose:-
(a)Bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof;
(b)Insurance policies are deemed to be in the possession of the beneficiary thereof;
(c)Superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(d)The chattels in the home are deemed to be in the possession of the Applicant.
4.Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
5.Each party is to sign all documents and do all things necessary to give effect to these Orders within seven (7) days of a request being given by one party to the other.
6.In the event that either party does not sign such necessary documents, a Registrar of the Federal Circuit and Family Court of Australia is hereby authorised to sign such documents on behalf of the defaulting party and the defaulting party is to pay the solicitor/client costs of the other party in bringing any necessary applications pursuant to this Order.
7.All outstanding applications are dismissed and the matter is removed from the pending cases list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Neely & Neely has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
PART 1: INTRODUCTION
These matrimonial property proceedings are between Mr Neely, currently 78 years of age (“the husband”) and Ms Neely (“the wife”) who is 61 years of age.
The parties met in 2007, commenced living together in mid-2007 and married in 2007. Final separation occurred on 16 March 2021. That was a relationship of about 14 years.
Post separation, the parties continued to reside, in the main, under the one roof until Orders were made by consent that the husband have sole use and occupancy on 27 April 2022.
The parties now seek the court’s assistance as to the matrimonial property distribution.
Orders Sought
Each party has helpfully provided specific and detailed Orders sought, though I do not intend to repeat those here.
In general terms the husband seeks a 78.5% split in his favour. During closing submissions, I was urged to accept that the husband brought in 85- 90% of the initial contributions and should overall be seen to have made 70% by way of contributions with at least a 5% adjustment in the husband’s favour.
The wife proposes that she receive 37.5% of the pool with the husband receiving 62.5%. I was urged to consider that overall contributions were 60:40 in the husband’s favour and a more modest adjust in terms of future needs.
PART 2: LEGAL PRINCIPLES
These proceedings are governed by provisions of Part VIII of the Family Law Act 1975 (Cth) (“The Act”) and will be determined in accordance with an approach laid down by the Full Court in Hickey & Hickey (2003) FLC 93-143.
The relevant principles were considered by the High Court in Stanford v Stanford (2012) FLC 93-518 (“Stanford”), noting subsequent Full Court decisions. In particular, the “just and equitable” requirement in s 79(2) is not to be read as part of s 79(4), or s 75(2) and the provisions of the legislation are to be reviewed separately. Separated parties are not entitled to a property settlement as of right.
Once the Court is satisfied that it is just and equitable to make an Order under s 79(1) and (2) of the Act, the court has what has been described as “a very wide discretion to make such Order as it thinks fit”: see Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ.
Whilst there has been debate as to the appropriate approach to be taken since Stanford’s case, it has been the practice of the court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property. The pathway to be followed is therefore:
·To consider whether it is just and equitable to make a property settlement order as referred to in Stanford;
·To identify and value the asset pool being the property, liabilities and financial resources of the parties;
·To identify and assess the respective contributions by each party towards the assets pursuant to s 79;
·To identify and assess the relevant future factors set out in section 75(2) as well as any other matters arising pursuant to s 79(4)(d), s 79(4)(f) and s 79(4)(g). Having done so, to then determine what, if any, adjustment ought to be made to each party’s contributions-based entitlement; and
·Lastly, to consider the effect of any findings and proposed Orders so as to be satisfied that the proposed property Order (if any) is just and equitable.
In that process, however, the just and equitable requirement is also “one permeating the entire process”; Bevan & Bevan (2013) FLC 93-545 at [86].
In Wallis & Manning (2017) FLC 93-759, the Full Court referred to and approved the Court in Dickons v Dickons (2012) 50 FamLR 244 at [21] where the Full Court said:
…the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applied, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79.
I have had regard to the decisions debating the varying approaches to dividing an asset pool in terms of an asset by asset approach or global approach as referred in Norbis v Norbis (1986) 161 CLR 513; Cahill & Cahill (2006) FLC 93-253.
The global approach is generally adopted and involves examining the assets on a global view and determining an overall contribution of each party, as opposed to the asset-by-asset approach which involves determining the interests of each party in each asset or group of assets.
Counsel relied upon the case of Jabour& Jabour (2019) FLC 93-898 where the Full Court warned against quarantining an initial contribution, such as the husband has made in this case, and affirmed the view that such an asset should rather be viewed with the myriad of other contributions made rather than against them (my emphasis). The Full Court also expressed that the initial contribution of real property in that case was properly viewed as a “springboard” for its later value.
PART 3: THE EVIDENCE
Documents
Each party filed an Outline of Case document which they relied on, together with the documents listed therein.
A number of documents were tendered as follows:
·Exhibit W1 - Bank Statement of Bank D account ending in …59 dated 31/12/2014 (3 pages)
·Exhibit W2 - Bank statement of ANZ account ending in …49 dated 23/11/2012 (6 pages)
·Exhibit W3 - Bank Statement of Bank D account ending in …59 dated 30/06/2021 (1 page)
·Exhibit W4 - Bank statement of ANZ account ending in …49 dated 22/01/2021 (1 page)
·Exhibit W5 - Bank Statement of ANZ account ending in …96 dated 9/03/2021 (7 pages)
·Exhibit W6 - Bank Statement of ANZ account ending in …49 dated 24/05/2013 (1 page)
·Exhibit W7 - Bank Statement of ANZ account ending in …49 dated 24/09/2013 (1 page)
·Exhibit W8 - Agreed property pool
The Witnesses
The husband
I formed the view that the husband did his best to give a good and honest account of himself. He made concessions easily and appropriately with no signs of reluctance. The concessions made included:
(a)Prior to obtaining full time work in 2014, the wife made some financial contributions by way of Austudy, educator income and homestays – noting that the extent of homestay guests was in dispute;
(b)The wife was the primary homemaker;
(c)The wife provided care for him when he had his knee reconstructions;
(d)He did not work for about a year while he was building their home at B Street, Suburb C, and was in receipt of an age pension at that time. He conceded that there would have been a shortfall between his income and their joint living expenses;
(e)In relation to the Suburb E property he conceded that there would have been net proceeds of sale of about $325,000 after expenses and mortgage payout. He was unable to advise into what account those funds were placed however his evidence, which I accept, was that those funds were used to build the property at B Street, Suburb C. The parties had no other resources to meet the expense of the build which he estimated at approximately $300,000; and
(f)He conceded the shortfall of about $25,000 between sale proceeds and build costs of the B Street, Suburb C home.
Further, when challenged about the change to his estimate of the mortgage liability at the time of cohabitation it was suggested to the husband that he might have applied for more money than was needed to pay out his former wife. The husband did not grasp at that excuse. As a consequence, I am satisfied he gave as good account of himself as he could and was not deliberately evading questions.
The husband’s evidence was calm and considered. I had no impression that he was feeling under pressure or attempting to fabricate any evidence.
For those reasons, I accept his evidence.
A number of documents were put to the husband. Many of these relate to transfers between accounts or payments that were made in 2012, 2013 and 2014. I make no criticism of the husband for not recalling transfers or amounts or indeed bank accounts from eight to 10 years ago, particularly where those events occurred during the course of the relationship and well prior to separation.
Much was made of transfers between accounts during the course of the relationship. I am uncertain whether there was some attempt to suggest that the husband had a hidden bank account. Certainly, this seems unlikely given their income and the joint savings accrued during the relationship in excess of $200,000 and was not pressed in submissions.
The husband accepted that there were joint expenses of about $3,000 per month. Once the wife had been working for a few years, the parties were on a similar income of about $100,000 per annum. At the end of the relationship they were in a comfortable position, being mortgage free and had savings and good cars.
The transfers from the joint account to the separate bank accounts of the parties at or about the time of separation were satisfactorily explained. The wife later conceded that those transfers had been discussed and agreed.
The husband conceded that he gifted $20,000 to his adult daughter at about the time of separation, and that this was done despite the wife’s objections and was a significant reason for the separation.
The wife
The wife was a less persuasive witness. For example, her evidence about the opening of the joint account was that she simply signed documents presented by the husband, apparently without providing identification documents to the bank. I found that unbelievable. Further, I formed the view that she avoided answering questions about that issue.
While she conceded possession of an ATM card for the joint account, her evidence was that in the 14 years of the relationship she never activated a pin for the joint account, that she never obtained online banking access and that she never made any withdrawals from or deposits into that joint account - aside from her salary being paid into it. Further, whenever she was asked about cash income, she gave evidence that she passed that cash income to the husband.
This means that her evidence is to the effect that for the entire relationship she never had cash funds other than what she brought into the relationship. That is simply unbelievable and I do not accept that evidence.
She conceded in cross examination that she is an educated woman. She has two tertiary qualifications. She has been through a divorce with her first husband. She works for Employer F earning over $100,000 a year and has done so for a number of years. Post separation she has arranged finance and purchased a block of land in Suburb G where she plans to build her own home.
All of that tells me that she is not a stupid woman. The wife is not financially naive. For those reasons I cannot accept that she would not have shown any interest in the finances of the relationship, nor accepted a situation where she had virtually no access to cash funds aside from her initial contribution.
The very fact that the wife held a significant lump sum at the beginning of the relationship and retained that in a separate account confirms my view. This is a woman who likes her independence. I am of the view that she would have maintained her independence throughout the relationship.
Therefore, I prefer the evidence of the husband in relation to these events for those reasons.
Findings of fact
Initial contributions
Neither party has any evidence as to the quantum of their initial contributions, however each makes sensible concessions.
The husband conceded that the wife had some funds, as she paid her own University fees. His evidence was that she told him that she had $60,000 from the property settlement with her former partner. Ultimately he did not seem to challenge that the wife had some money, simply that he wasn’t aware of the exact amount other than what she told him, as it was not contributed to the joint account.
I accept the wife’s evidence as to the value of her initial contributions because on the evidence of both parties she has been consistent about that evidence and the husband concedes that she had sufficient to at least meet her university fees.
The wife concedes that the husband had the far greater initial contributions. Whilst he places the value at about $535,750, the wife is more conservative, and estimates the value at $400,000 to $450,000.
I accept the husband’s estimate as to the value of his initial contributions due to the findings I have made about his evidence generally and in particular for the following reasons:
(a)The husband made sensible concessions during the Trial; and
(b)He reduced the estimated value of the joint investment held with his former wife, even though that reduced his own initial contributions to this relationship.
Based on those figures, the husband had almost 90% of the initial contributions, of which the significant asset was the home that the parties lived until 2011, after which the proceeds of sale were used to build the current home where the husband now lives.
The husband’s health and related capacity to work
The husband’s appearance in the witness box was consistent with a man in his late 70s who has suffered a stroke. He drank water with care - using both hands to hold the cup.
I have reviewed the medical evidence and accept that he needed lengthy rehabilitation and it is apparent from his speech and his movements in court that there are some lingering impacts.
Whilst he describes himself as a consultant and at the time of his stroke had plans to return to work, his affidavit evidence is that he has closed his business. This is confirmed by a letter from his accountant.
I accept that his ability to work is likely limited because of his age and because of his health.
The wife’s affidavit evidence was that after he had the stroke she saw the husband working. That was clarified under cross examination and she conceded that she had seen him in the home office on the phone. I do not accept that as evidence that the husband is currently working. I prefer the evidence of the husband which is supported by the medical evidence as to the serious nature of the stroke. It left him in hospital for six weeks with a plan for a lengthy transition to home, requiring support from professionals and his daughter.
I am of the view that the husband has little, if any, capacity to work. He is 78 years old and well past retirement age. Further, there have been long-term consequences of that stroke. He reports concerns about impacts on his memory. It may well be that part of his difficulty in remembering exact details under cross examination may be due not only to the passage of time but also to the stroke. I make no findings about that I just note it as a possibility.
Family Violence
Each party has made allegations of conduct by the other which amounts to family violence. Some limited cross examination occurred. Each denies the allegations made by the other.
Neither party has sought an adjustment based on a Kennon argument. It is therefore unnecessary for me to make findings about the allegations of family violence.
The husband’s attitude towards the wife
It was suggested during the course of submissions, that the husband’s conduct at the end of the relationship, in paying to the wife from the joint account only her earnings rather than divide it equally, spoke to the husband’s attitude about the wife. In effect I was asked to consider that the husband did not respect or believe that the wife had any entitlement over and above what she financially contributed.
The following agreed or non-controversial facts are at odds with that suggestion:
(a)The wife’s own evidence that her initial contribution was not paid into the joint account but retained by her in a separate account and used at her discretion;
(b)The husband opened a joint account very early in the relationship and the wife had an ATM card through which she was able to access that joint account, though she says she did not;
(c)He provided the wife with a credit card early in the relationship;
(d)The husband met the majority of household expenses pending the wife obtaining full time employment in 2013;
(e)When his home was sold in 2011, the property at B Street, Suburb C was purchased in joint names;
(f)Good quality vehicles were purchased for both parties from joint funds, with the wife driving a Motor Vehicle 1;
(g)Whilst the parties agreed that they were frugal in their spending, they went on what was referred to as nice holidays; and
(h)The parties discussed and agreed various financial matters during the relationship including the distribution of the joint account at separation (save for the payment to the husband’s daughter which was discussed but not agreed).
Further the unequal division of that joint account was explained by its use as the husband’s business account. That means funds deposited by the husband were subject to business expenses including tax to be paid, whereas the wife’s income was clear of any such obligations.
There is nothing about those actions which suggest that the husband had a “this is mine” (my words) attitude.
As a consequence of those matters the suggestion that the husband disrespected the wife’s contributions and did not consult the wife is not accepted. It is at odds with the other evidence as to his inclusiveness from the very beginning of the relationship.
The very fact that the husband’s decision to gift $20,000 to his daughter led to the relationship breakdown suggests that the wife was not accustomed to having her views disregarded. Certainly, there was no evidence that the husband had previously acted in such a way, with concessions made by the wife that she was consulted about financial matters including holidays, the joint account and even this gift to the daughter even though the husband ultimately acted against her wishes.
Rental income
The husband’s evidence was that this money was divided equally between the parties. The wife’s evidence was that the husband kept it and that she only started receiving half of that money post separation.
The wife also gave evidence of significant but unspecified funds in the wardrobe at the time of separation. I am not satisfied that I need to make findings about those funds. It was income received during the relationship. If I am to accept the wife’s evidence then all of her pay went into a joint account which she never accessed and she received no cash money.
This would mean that every single cent of expenditure by the wife was always done by credit card. I find it difficult if not impossible to believe that she managed to operate during a relationship of some 14 years without using any cash money other than her initial contribution. So far as that is concerned I prefer the husband’s evidence to that of the wife.
What is clear from the evidence is that there was a joint account in operation and, certainly at the very least from the time the wife started working with Employer F, both parties income was contributed to that joint account. I do not accept the wife suggestion that in addition every cent of cash money that she received was paid to the husband, simply because of the unrealistic nature of that suggestion as noted earlier.
I accept the husband’s evidence that the $290 per week received by way of cash rental income for the downstairs part of the property was divided between the parties and used by each of them for day to day living expenses in addition to using credit card. The reasons for that are as follows:
(a)My earlier finding that I do not accept the wife’s evidence that she operated without any cash for the 14 years of the relationship aside from her initial contribution which was used to pay her University fees; and
(b)My findings as regards the husband’s attitude towards the wife.
The very fact of the husband’s inclusiveness in relation to all other matters leads me to the finding that he would have also shared those funds with her.
Payment to the husband’s former wife
Based on my findings as to the husband’s veracity overall, and his concessions as to the amount of this investment, which were not in his interests as regards initial contributions, I am satisfied that the payment of $16,000 on 28 February 2018 out of the joint account was to his former wife being her share of investment funds due under the property settlement. This was slightly less than her entitlement, however I accept his evidence that this was the amount she requested.
The husband was unable to provide information as to when the investment matured and whether those funds were paid into the joint account or some other account. His evidence was that he operated in the main from one account and I have no reason to doubt that.
This payment was made well prior to separation and has not been figured into his calculation as to his initial contribution. In effect it was never part of the property pool. The fact that the parties may have had the use of those funds for a period of time does not change that.
Gift to the husband’s daughter
At or about the time of separation the husband gifted $20,000 to his daughter from joint funds. This was done against the express wishes of the wife.
I do not say it was done without regard to the wife, as she concedes the husband consulted her about it and their disagreement about this appears to have been the main reason for their separation.
This is a factor that I will take into account in relation to contributions as it was a unilateral decision which reduced the pool.
Homestay Guests
The wife’s evidence was that homestay guests were fairly non-stop for a period of about a year prior to the renovations underneath the B Street, Suburb C property which allowed the creation of a separate apartment. This is not conceded by the husband.
She gave evidence of websites and referring guests to other people when she did not have room for them. I accept that evidence. The wife’s evidence was that the income from the homestay visitors was consistent for that period of about 12 months but that any cash was paid to the husband.
I have already made findings that I do not accept the wife paid all cash money to the husband and retained none for herself. It would be, in my view, out of character for her to do so.
PART 4: DETERMINATION
Determining the assets and liabilities
The agreed asset pool is as follows:
Description
Ownership
Valuer
ASSETS
B Street, Suburb C
Joint
$675,000
H Street, Suburb G
Wife
$286,000
Bank D Accnt ###...59
Joint
$210,994
ANZ Savings Accnt ###...44
Wife
$5,916
ANZ Savings Accnt ###...61
Wife
$14,037
ANZ Savings Accnt ###...96
Husband
$31,619
Motor Vehicle 1
Wife
$25,000
Motor Vehicle 2
Husband
$31,250
Subtotal of Assets:
$1,279,816
LIABILITIES
Mortgage (ANZ)
Wife
$259,579
Mastercard
Wife
$600
Subtotal of Liabilities:
$260,179
SUPERANNUATION
Super Fund J - Accumulation
Wife
$136,426
Super Fund J – Accumulation
Husband
$37,203
Subtotal of Superannuation:
$173,629
Total:
$1,193,266
Determining the Approach
There was no suggestion other than that the global approach was appropriate.
Whilst I was asked to consider a two pool approach, given the ages of the parties I do not intend to take that step. The parties are of an age where access to the super is possible either now or in the foreseeable future.
Determining whether it is just and equitable to make Orders
This case falls within that category of cases referred to in Stanford where the just and equitable requirement is readily satisfied for the following reasons:
(a)The parties were in a 14 year relationship;
(b)They were married;
(c)They had a joint bank account and consulted about financial matters;
(d)They purchased land in joint names on which they built the former matrimonial home; and
(e)They planned and went on holidays together.
Evaluation of s 79(4) - Contribution Issues
The husband put contributions at 75:25 in his favour. The wife argues 60:40, also in the husband’s favour.
I have made findings as to the extent of each party’s initial contributions and other relevant issues in dispute.
I accept that the wife made significant contributions during the relationship. From the time that she commenced full time work the husband concedes that her financial contributions were reasonably similar to his own. He also concedes that she was the primary homemaker. She also made contributions of gardening and helped with establishing the garden.
I have formed the view that the parties contributions are to be assessed as 65:35 for the following reasons:
(a)This is a medium to long term relationship of 14 years;
(b)The husband made the initial contribution of almost 90% of assets valued overall at about $535,750;
(c)Of the husband’s initial contributions, one asset was real property then valued at about $665,000 and sold in 2011 for $800,000, noting the mortgage of $200,000. In considering this asset I also took into account that the parties lived together in this property and the wife therefore made contributions in that time. I also considered that the increase in value appears to be due to market forces as no evidence was led of any improvements having been made to that property prior to sale;
(d)The wife’s initial contribution of cash together with the husband’s support allowed her to re-train and to attain her current level of income;
(e)The proceeds of sale of the husband’s property were used to buy land in joint names and to build a home on that land;
(f)The husband did not work for a period of about a year whilst he built the former matrimonial home. In that time he did however contribute the age pension and the excess funds from the sale of his home;
(g)The husband made the greater financial contributions by way of income until the wife started working at a professional level in or about 2015. Whilst she commenced work for Employer F in 2013 this was for two years at a professional level;
(h)The wife made some financial contributions prior to commencing full time work through Austudy, educator and homestay arrangements, noting the extent and use of those contributions is in dispute;
(i)From about 2015 the parties made roughly equal financial contributions by way of income. As the husband was self-employed he had to pay tax and expenses from his gross income;
(j)It is non-controversial that the parties lived frugally aside from nice holidays;
(k)The parties both contributed to the savings in the Bank D investment account as funds were transferred from the joint account where the income for both parties was deposited;
(l)The wife made the greater contributions as a home maker;
(m)The husband’s gift to his daughter from a joint account of funds in the sum of $20,000 which was made contrary to the wife’s wishes; and
(n)The distribution of funds from the joint account into the parties’ individual accounts reflecting their contributions and which take into account the husband’s obligation to pay tax and other business expenses.
Withdrawals were made from and deposits placed into the joint account during the relationship which neither party was able to account for. Noting that these were well prior to the relationship breakdown (being in 2012, 2013 and 2014), and that the husband used the account as his business account, I did not take those payments into consideration when assessing contributions.
The husband continued to make financial contributions long past retirement age. I have not considered that when formulating the percentage for contributions as this is a decision he chose to make in the context of a second marriage for both parties.
I was asked to consider that the fact that the husband’s super is a spouse super somehow makes that a contribution by the wife. I do not share that view. So far as I am aware, there was nothing to stop the husband opening a super account or setting up a SMSF at any time.
Evaluation of Section 75(2) factors - Future Needs
The wife sought a 2.5% adjustment in the husband’s favour. The husband sought at least a 5% but ideally an 8.5% adjustment.
I have assessed a 5% uplift in the husband’s favour based on the following factors:
(a)The husband’s age – he is 78 years of age, as compared to the wife who is 61 years of age. This means the wife has a longer time in the work force at a not insignificant salary and on a professional super plan;
(b)It was submitted that the husband’s age was a double edged sword in that whatever the wife receives must last longer. I am not so persuaded because she has the far greater opportunity to add to her share of the property settlement;
(c)Whilst he describes himself as a consultant and at the time of his stroke had plans to return to work, the husband’s ability to work is likely limited not only because of his age but also his health. His evidence is that he has ceased work and sold his contact list. He provides a letter for his accountant confirming the business closure. This was unchallenged evidence and in the context of my findings about his evidence, his age and his health I have no reason to doubt and in fact I do accept that evidence;
(d)The parties agree that the husband is to retain the former matrimonial home which is mortgage free and which is an income producing asset, garnering rental income in the sum of $290 per week;
(e)The wife is in secure employment with a good income. The wife has an ongoing capacity to earn and to increase the value of her super;
(f)Although she is 61 years of age no evidence was led that the wife would be required to retire or intended to retire any time in the near future. The very fact that she has obtained a mortgage in order to purchase land with an intent to build a home argues against that; and
(g)The husband has had a stroke and is 78 years of age. There will likely be medical expenses in the foreseeable future.
The wife sought an adjustment under s 75(2)(o) in effect based on the submission that the husband had distributed funds from the joint account in a way which disregarded her contributions and entitlement – referring to the unequal division of the funds and the payment to the husband’s daughter. I have already made findings about those matters and considered it in relation to contributions.
Just and Equitable
The proposed split is overall 70:30 in the husband’s favour.
That is each party retains the assets in their possession, the B Street, Suburb C home is to be transferred to the husband and the Bank D investment account is split, with the wife to receive $150,779.80.
Having considered all the matters outlined in these reasons, I am satisfied that the proposed division and the Orders set out at the commencement of these reasons are just and equitable.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 22 November 2022
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