Palen and Palen

[2020] FCCA 1228

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALEN & PALEN [2020] FCCA 1228

Catchwords:
FAMILY LAW – Undefended hearing – property adjustment – assessment of contributions – orders made – parenting – best interests of child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA,65DA(2),75, 75(2),79,79(2),90XT(1)(a),106A

Federal Circuit Court Rules 2001 (Cth), r.16.05

Cases cited:

Lotta & Lotta [2017] FamCA 50

Applicant: MS PALEN

Respondent: MR PALEN

File Number: PAC 1719 of 2019

Judgment of: Judge Newbrun

Hearing date: 17 March 2020

Date of Last Submission: 17 March 2020

Delivered at: Parramatta

Delivered on: 22 May 2020

REPRESENTATION

Solicitor for the Applicant Ms Khalil - Bell Lawyers

No appearance by the Respondent

ORDERS

Property Aspect

1. That within 120 days from the date of these Orders, the Applicant Wife shall pay the Respondent Husband in the amount of $93,618.

2. That within 28 days of being served with a copy of these Orders by email, the Respondent Husband shall vacate the A Street, Suburb B property and shall be permitted to retain his personal effects. In the event that Respondent Husband fails to vacate the A Street, Suburb B property after the expiry of this Order, then the Applicant Wife shall be permitted to change the locks of such property and obtain sole occupation of same.

3. That simultaneous with Order 1 above, the parties shall do all acts and things so as to cause the refinance or discharge of the mortgage registered on Title against the property situated at and known as A Street, Suburb B in the State of New South Wales (“the A Street, Suburb B property”) at the Applicant Wife’s cost, such that the Respondent Husband shall sign all documents presented to him by the Applicant Wife and the Applicant Wife shall do all things necessary to cause such discharge and upon such refinance into the sole name of the Applicant Wife, she will indemnify and keep indemnified the Respondent Husband in relation to any or all liabilities arising from the following date after that.

4. That in the event that the Applicant Wife fails to pay the Respondent Husband pursuant to Order 1 above, then within seven (7) days from the expiry of Order 1, the Applicant Wife shall do all acts and things and sign all instruments and documents necessary to list the property situated at and known as A Street, Suburb B in the State of New South Wales being the whole of land contained in Lot ... in Deposited Plan ... (“the former matrimonial home”) for sale by private treaty at a listing price as nominated by the Applicant Wife, with a Real Estate Agent nominated by the Applicant Wife and shall proceed to a sale of the property at a sale price nominated by the Applicant Wife and following such sale the proceeds of sale shall be applied as follows:

   (a)In adjustment of rates upon settlement;

   (b)In payment of agents commission (if any) upon sale;

   (c)In payment of all legal and other proper costs of sale;

   (d)In payment of sum sufficient to discharge the registered mortgage over the property;

   (e)The balance to be divided as follows:

   (i)In payment to the Applicant Wife of 65% of the nett sale proceeds to be paid into the Trust Account of Bell Lawyers; and

   (ii)In payment to the Respondent Husband 35% of the nett sale proceeds.

5. That for the purpose of Order 4 above and prior to the implementation of such Order, the parties shall agree for the Applicant Wife to attend the former matrimonial home on mutually agreed dates for the purpose of attending to maintenance of the property in preparation for listing the former matrimonial home for sale and any costs associated with such maintenance shall be beared equally between the parties.

6. That if a sale is not achieved within three (3) months of the property being placed on the market for sale by way of private treaty, then the parties do all acts and things and sign all documents necessary so as to effect a sale of the former matrimonial home in the following manner and priority:

   (a)List the former matrimonial home for sale by public auction with such agent as the parties may agree to appoint and in default of such agreement with such agent as nominated by the Real Estate Institute of New South Wales or his or her nominee, the costs of such appointment to be borne equally by the parties as and when they fall due;

   (b)The reserve price at which the former matrimonial home shall be listed shall be as mutually agreed between the parties, or in the absence of agreement, shall be the price nominated by a valuer by the Real Estate Institute of New South Wales or his or her nominee, the costs of such appointment to be borne equally by the parties as and when they fall due;

   (c)Disbursement proceeds of the said sale in the following manner and priority:

   (i)In payment of sum sufficient to discharge the registered mortgage over the property;

   (ii)Payment of agents commission and advertising expenses and legal expenses of the sale;

   (iii)Payment of costs incurred, if any, in relation to determination of value or selling price by the Real Estate Institute of New South Wales or his or her nominee;

   (iv)Payment of any costs associated with the said sale;

   (v)The balance to be divided as follows:

   1.In payment to the Applicant Wife of 65% of the nett sale proceeds to be paid into the Trust Account of Bell Lawyers;

   2.In payment to the Respondent Husband of 35% of the nett sale proceeds.

7. In the event that the former matrimonial home is not sold:

   (a)By private treaty pursuant to Order 4 or;

   (b)Within seven (7) days of the auction referred to in Order 6 or by negotiation of the highest bidder at such auction;

   (c)Then the Applicant Wife shall do all acts and things and sign all necessary documents to cause a further auction of the former matrimonial home to be held within a further 3 months after the date of the first auction without a reserve price.

8. That in the event that the parties are unable to reach agreement for more than seven (7) days, in relation to an agent or auctioneer, whether a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of NSW or his or her nominee acting as an expert not as an Arbitrator to nominate and/or appoint such agent or auctioneer and the parties shall thereafter act in accordance with that nomination and appointment and the parties shall be equally responsible for the costs and expenses of the President of his nominee making such determination.

9. That in the event that the parties are unable to reach agreement for more than seven (7) days in relation to listing price, reserve price or selling price whether by public auction or private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of NSW or his/her nominee acting as an expert not as an arbitrator to make such determination and the parties shall be equally responsible for the costs and expenses of the President or his nominee making such determination.

10. That pursuant to section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the Respondent Husband Mr Palen in the Super Fund C, Member Number ...:

    (a)The Applicant Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $55,926 (provided such amount shall not exceed the value of the interest determined under Section 90MT(2); and

    (b)There be a corresponding reduction in the superannuation interest of the Respondent Husband to whom the splittable payment would have been made but these Orders.

11. That each party and the Trustee has liberty to apply on not less than three (3) business days notice, in respect to the implementation of the super splitting orders.

12. The operative time for the purposes of Order 10 shall be calculated from four (4) business days after the date that a sealed copy of these Orders is served upon the Trustee of the Fund.

13. That having been accorded procedural fairness, these Orders bind the Trustee of the Fund to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulation 2001.

14. That the Applicant Wife is declared the sole owner in law and in equity as between herself and the Respondent Husband of all items of personal property including but not limited to property situated at A Street, Suburb B NSW, financial assets and financial resources currently in her power, possession or control other than as specifically dealt with elsewhere in these Orders, including any bank or credit union accounts, entitlement in shares and any superannuation entitlements held in her name.

15. That the Respondent Husband is declared the sole owner in law and in equity as between himself and the Applicant Wife of all items of personal property, financial assets and financial resources currently in his power, possession or control other than as specifically dealt with in these Orders, including any bank or credit union accounts, entitlement in shares and any superannuation entitlements held in his name.

16. That the Applicant Wife is declared solely responsible for all liabilities in her sole name and the Applicant Wife shall indemnify and forever keep the Respondent Husband indemnified with respect to any and all of the Applicant Wife’s personal liabilities.

17. That the Respondent Husband is declared solely responsible for all liabilities in his sole name and the Respondent Husband shall indemnify and forever keep the Applicant Wife indemnified with respect to any and all of the Respondent Husband’s personal liabilities.

18. If the Respondent Husband does not do all acts and things and sign all documents necessary to discharge the mortgage and vacate the former matrimonial home in accordance with Orders 2 – 9 inclusive, then the Applicant Wife is to sign all documents necessary with respect to such discharge of mortgage without the need or consent of the Respondent Husband, or is to cause the former matrimonial home to be listed for sale by private treaty or by way of public auction and is to appoint a selling agent or auctioneer at her discretion and shall be permitted to change the locks of the former matrimonial home after the expiry of Order 2 above, noting the Applicant Wife is to have sole right of appointments and sole right to sign all such documents and do all such things in connection with the appointment.

19. If the Applicant Wife obtains the sole right of appointment as per Order 18 above, then the Respondent Husband is not to:

    (a)Interfere with the discharge of mortgage registered against the former matrimonial home;

    (b)Interfere with the sale of the former matrimonial home in any way;

    (c)Damage the former matrimonial home or its content in any way.

20. That within 14 days the parties shall do all things and acts and give all consents and authorities necessary so as to sever the joint account Bank D BSB ... 9 Account No. ... 30 and the Applicant Wife shall transfer her rights and interests in such bank account into the sole name of the Respondent Husband.

21. That in the event that either party refuses or neglects to comply with any of these Orders in relation to the execution of any deed, instrument or document, the Court appoints and authorises pursuant to section 106A of the Family Law Act the Registrar of the Federal Circuit Court of Australia to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints that Registrar to do all acts and things necessary to give validity and operation to the deed, instrument or document.

PARENTING ASPECT

1. That the child X born in 2005 (hereinafter referred to as “the child”) shall live with the Mother.

2. That the Mother shall have Sole Parental Responsibility for the child.

3. That the child shall spend time with the Father in accordance with his wishes.

4. That the Mother shall have Sole Parental Responsibility to apply for a passport for the child X born in 2005.

5. That the child shall be permitted to travel internationally, without the need for the consent of the Father to be provided.

6. That the Mother shall be the only person with parental responsibility of the child for the purposes of applying for, and being issued with, an Australian passport for the child.

7. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

NOTATION:

A.Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001, the Court or a Registrar may set aside or vary an Order if it was made in the absence of a party. Any application by the husband pursuant to Rule 16.05 to vary or set aside the above final property adjustment Orders shall be made within 7 days of being notified of such Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1719 of 2019

MS PALEN

Applicant

And

MR PALEN

Respondent

REASONS FOR JUDGMENT

1. These are Reasons for Judgement relating to an undefended hearing held before the Court on 17 March 2020, relating to property and parenting proceedings. 

2. The wife appeared, legally represented.  The husband failed to appear in person.  In fact, the husband has failed to engage at all in these proceedings.  He is not filed any Court documents.  The court is satisfied that he is aware of the proceedings having been served personally with the wife’s court documents on 17 May 2019; see the affidavit of service filed 11 June 2019.

3. In the above circumstances, and observing that these proceedings were set down for undefended hearing on 19 December 2019, it is in the interests of justice that the court proceed to determine on a final basis these property and parenting proceedings.

4. In relation to the property and parenting proceedings, the wife sought final orders as set out in her proposed minute of orders filed 12 March 2020. 

5. The Court has had regard to all of the wife’s material filed in the proceedings. 

Evidence

Parenting

1. The parties cohabitation commenced in about 2001.  They separated in late December 2014.

2. There is one child of the relationship, namely X born in 2005.  He is now aged 14 years.

3. The child was diagnosed with ADD/ADHD in early 2012.  In about September 2016 the child was diagnosed with ADD/ADHD autism spectrum level 2.  In January 2017 the mother obtained NDIS approval for the child and he studied psychology, social skills and speech therapy.

4. Post separation, the child has lived with the mother.

5. Post separation the father has only had two overnight periods with the child.  Since July 2017, the mother has had no contact with the father and the father has made no efforts in wanting to spend time with the child.

6. At the undefended hearing, the solicitor for the mother informed the court that the child had not spent time with the father since June 2019.

Legal principles: parenting

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

2. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

3. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

4. When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).

5. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

6. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

7. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

1. Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

2. The mother has been the primary carer of the child from birth.  She has at all times acted protectively towards the child and has met his needs satisfactorily to date.

3. The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship.

4. The court would infer from the material before the court that the child has a relationship with the father but it would appear not to be a strong one.  The child has not spent time with the father consistently since December 2018. The child has spent no time with the father since about June 2019. 

5. The child may benefit from having a meaningful relationship with the father in the future provided it is emotionally safe for the child to do so.

6. Should the court make the mother’s proposed order that the child spend time with the father in accordance with his wishes, the court is satisfied that it is likely that the child may well seek to spend time with the father if the child believes that the father is likely to be reliable in spending arranged time with him and believes that he will likely enjoy spending time with the father.

7. Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8. It would appear that the only present issue under this primary consideration is the issue of whether or not the father is likely to be reliable in spending arranged time with the child.  If time is arranged to be spent between the child and the father and the father does not reliably attend for such time, emotional harm can be caused to the child by reason of his expectations of the visitation.  Again, it is likely that the child will only choose to spend time with the father if he believes, inter alia, that the father is likely to be reliable in spending arranged time with him.

Section 60CC(3) - Relevant Additional Considerations

1. The father has been significantly inconsistent in spending time with the child since separation and this has detrimentally affected his relationship with the child.

Parental responsibility:

1. The mother has been the primary carer of the child from birth to date.  The mother has no co-parenting relationship with the father and has not communicated with him for a significant period.  The father has spent only intermittent time with the child post separation to about June 2019.  It is unlikely that the parties could reach agreement in a timely fashion in relation to major decisions affecting the child.  It will be in the best interests of the child that the mother have sole parental responsibility for him.

1. Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the child to make the mothers proposed parenting orders set out in her minute of orders, exhibit A.

Property

Evidence

1. The court refers to its factual findings under the headings “Contributions” and “Section 75(2)”.

Legal principles: property

1. In Lotta & Lotta [2017] FamCA 50 Foster J stated:

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

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

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

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

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

   In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.

   It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.

   In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.

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

   The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.

2. The wife’s balance sheet was as follows:

Ownership		Description	Applicants value	Respondents value
ASSETS
1.	W	A Street, Suburb B, NSW	$        500,000	$
2.	W	Bank D Account ending ...49	$       1,271.75	$
3.	J	Bank D Account ending ... 30 (total value $1,806.16)	$          903.08	$          903.08
4.	W	Bank D Account ending ...43	$          469.36	$
5.	W	Bank D Account ending ...91	$       4,618.66	$
6.	W	Bank D Account ending ...98	$     1,940.32
7.	W	Motor Vehicle 1	$            4,000	$
8.	W	House Contents	$            5,000
9.	H	Bank Account – Bank D	Unknown
10.	H	Motor Vehicle 2	$	$     4,000.00
Total		$     518,203.17	$       4,903.08
ADDBACKS
11.	$	$
12.	$	$

Total		$                  0	$                  0
LIABILITIES
13.	J	A Street, Suburb B, NSW – Bank E	$        E90,000	$        E90,000
14.	W	Vertigo Credit Card	$            3,500	$
15.	W	Mastercard Wife	$            7,000	$
16.	H	Mastercard	$	$          E4,000

Total $        100,500 $          94,000

SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicants value	Respondents value
17.	W	Super Fund F	$     16,598.96	$
18.	H	Super Fund G	$     13,138.37
19.	H	Super Fund C	$ 115,312.04

Total $     16,598.96 $     128,450.41

FINANCIAL RESOURCES
Ownership		Description	Applicants value	Respondents value
20.	$	$
21.	$	$

Total $                  0 $                  0

1. The Court will delete from the balance sheet the bank accounts in the name of the wife because it is likely that these bank account balances accumulated post separation.  Similarly, the court will delete the parties’ credit card liabilities from the balance sheet.

2. The adjusted balance sheet accordingly will be as follows:

Ownership		Description	Applicants value	Respondents value
ASSETS
1.	W	A Street, Suburb B, NSW	$        500,000	$
2.	J	Bank D Account ending ...30	$            1,806
3.	W	Motor Vehicle 1	$            4,000	$
4.	W	House Contents	$            5,000
5.	H	Bank Account – Bank D	Unknown
6.	H	Motor Vehicle 2	$	$     4,000.00
Total		$514,806
LIABILITIES
7.	J	A Street, Suburb B, NSW – Bank E	$        180,000	$        180,000

Total $        180,000

SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicants value	Respondents value
8.	W	Super Fund F	$          16,598	$
9.	H	Super Fund G	$          13,138
10.	H	Super Fund C	$ 115,312

Total $          16,598 $        128,450

1. From the above, it can be seen that the parties’ net non-superannuation assets are $334,806, the wife’s superannuation entitlement is $16,598, and the husband’s superannuations are $128,450.  The total asset pool is accordingly $479,854.

Section 79(2) of the Act

1. The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity. 

Contributions

1. The wife brought into the relationship the former matrimonial home at A Street, Suburb B.  At cohabitation that property was worth about $250,000 with a mortgage of around $130,000, leaving about $120,000 in equity.  This was a significant contribution by the wife.

2. At cohabitation, the husband had a car and certain items of personalty.

3. Both parties worked in employment during the relationship the various times as set out in the mother’s affidavit.  Both parties income were used to repay the mortgage loan and utilities.  The wife had some time off work after the child was born in return to work part-time.

4. Post separation, about two years, the wife paid half the land and water rates attached to the A Street, Suburb B property.  The husband has been residing in that residence since separation has paid the mortgage since then. The mortgage loan is now about $180,000.

5. The husband received a redundancy payout when his employment was terminated in about 2016.  He received about $20,000 and used it for his own benefit.

6. The wife has been the primary carer of the child from birth to date.  This has been a significant contribution by the wife.  The husband has spent inconsistent time with the child since December 2018 and has not spent time with him since June 2019.

7. The wife now works part-time hours in paid employment.  Her occupation is customer service officer.

8. The wife made indirect contributions towards the husband’s superannuation entitlements, through her primary care of the child and own employments, thus enabling the husband to continue in his own employments and thus acquire superannuation entitlements.  The wife’s own superannuation entitlement is quite small in comparison to the husband’s superannuation entitlements.

9. Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to non-superannuation and superannuation assets as at the present time to be 65% to the wife and 35% to the husband.  That results in a disparity of about $143,957 in favour of the wife, in relation to the total assets.

Section 75(2)

1. The wife will remain the primary carer of the youngest child aged 14 years. 

2. The husband has not assisted the mother with the care of the child post separation.  The husband owes the wife about $3,000 in child support. He pays $$195 per week to the wife for child support.

3. The wife is presently in paid casual employment. 

4. There is no evidence in relation to the parties’ health.

5. The husband is 47 years, and the wife 42 years; both parties have significant years ahead of income earning potential before retirement.  

6. The wife did not seek an adjustment under s75(2); the Court will not make any adjustment.

Justice and equity

1. Pursuant to the Court’s contribution findings, the wife should receive 65% of the non-superannuation assets ($334,806) amounting to $217,623. She should receive 65% of the superannuation assets ($145,048) amounting to $94,281.

2. Pursuant to those findings, the husband should receive 35% of the non-superannuation assets ($334,806) amounting to $117,182. He should receive 35% of the superannuation assets ($145,048) amounting to $50,766.

3. However, the wife seeks to retain the property at A Street, Suburb B so as to house herself and the child, and, with limited finance approval, would seek an equalisation of the parties’ total superannuation entitlements, together with the wife transferring her interest in the joint Bank D account, resulting in a reduced cash payout to the husband by the wife.

4. Accordingly, this approach of the wife results in the following:

   -Wife receives:

   -Share of net equity in former matrimonial home: $239,380

   -Her superannuation entitlement: $16,598

   -Superannuation split from husband’s Super Fund C entitlement: $55,926

   The total of the above sums is $311,904 representing 65% of the total assets, including superannuation assets. 

   -Husband receives:

   -His superannuation entitlements (noting the split to the wife of $55,926): $72,524

   -The balance of funds in the joint Bank D account: $1,806

   -Cash payment from the wife: $93,618.

   The total of the above sums is $167,948 representing 35% of the total assets, including superannuation assets. 

   Under the above approach the wife will retain the A Street, Suburb B property.

5. The court is of the view that the above approach will result in a just and equitable property settlement between the parties.  The wife will be able to stay in the former matrimonial home with the child, and continue to pay the (refinanced) mortgage loan. The husband will retain superannuation, and have cash assets of $95,424. The Court is not aware of other assets held by the husband as he did not engage in these proceedings and file material and nor did he make financial disclosure to the wife.

6. The Court makes orders accordingly.

I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 22 May 2020