PEREZ and PEREZ
[2023] FCWA 14
•30 JANUARY 2023
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: PEREZ and PEREZ [2023] FCWA 14
CORAM: BERRY J
HEARD: 25 - 27 OCTOBER 2022
DELIVERED : 30 JANUARY 2023
FILE NO/S: 4058 of 2020
BETWEEN: MR PEREZ
Applicant
AND
MS PEREZ
Respondent
Catchwords:
FINANCIAL PROCEEDINGS - Application for the alteration of property interests
Legislation:
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
Applicant : [Ms A] Respondent : [Ms G] Solicitors:
Applicant : [Law Firm A] Respondent : [Law Firm B] Case(s) referred to in decision(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Perez and Perez has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
BERRY J:
Introduction
1 The applicant husband, [Mr Perez] (the husband), and the respondent wife, [Mrs Perez] (the wife), cannot agree about the terms of just and equitable orders regarding their property and superannuation interests.
2 The parties have reached agreement about the composition and value of the asset pool and the form of final orders to be made by the Court. The only variables which are required to be included in the final orders are:
1. The base amount to be allocated to the husband out of the interest held by the wife in the [Mr and Mrs Perez] Superannuation Fund (the Fund).
2. The sum or proportion of the net proceeds of sale of [the former matrimonial home] to be retained by each party and, as an incident of such determination, the percentage of the asset pool to be retained by each party.
3. The timing of the sale and the identity and appointment of a real estate agent to sell the former matrimonial home.
3 In their Papers for the Judicial Officer, each party indicated that the s 79(4) dispute only turned on a dispute about their respective contributions pursuant to ss 79(4)(a), (b) and (c) of the Family Law Act 1975 (the Act). The wife asserted that her contributions should be assessed at 62.5 per cent of the agreed asset pool, with the remaining 37.5 per cent to the husband. Whereas the husband asserted that his contributions should be assessed at 47.5 per cent of the agreed asset pool. In practical terms, this equated to an effective assertion by the wife that she should retain the first 25 per cent of the agreed asset pool with the balance being divided equally, while the husband effectively asserted that the wife should retain the first 5 per cent of the agreed asset pool with the balance being divided equally.
4 Each party indicated in their Papers for the Judicial Officer that there should be no adjustment for the matters identified in ss 79(4)(d), (e), (f) and (g) (the further adjustment factors). However, in closing submissions, the wife’s Senior Counsel, in response to a question from the Court, confirmed that if the Court assessed the wife’s contributions to be less than 62.5 per cent, the wife asks the Court to consider the further adjustment factors with a view to increasing her entitlement.
Composition of the evidence
5 The husband relied upon his affidavits filed on 14 July 2022 and 28 September 2022. He also relied upon his financial statement filed 14 July 2022. Affidavits were filed on 13 September 2022 by the husband’s treating practitioners, [Dr A] ([Medical Professional A]) and [Dr B] ([Medical Professional B]).
6 The wife relied upon her trial affidavit and financial statement, each filed on 5 August 2022. Further, she relied upon the affidavit of [Ms C] filed 5 August 2022 and the affidavit [Mr D] ([Professional A]) filed 19 and 25 October 2022.
Orders sought by each party
7 The parties filed a Joint Minute of Agreed Final Orders (JMAFO) on 25 October 2022, in the following terms:
AND UPON the Court noting that:
A. The Wife is a member of and has an interest in the Fund and her interest is not a percentage only interest;
B. The value of the Wife’s interest as at 30 June 2022 is $1,647,081;
C. The Husband is a member of and has an interest in the Fund and his interest is not a percentage only interest;
D. The value of the Husband’s interest as at 30 June 2022 is $710,195;
E. The parties are directors of the Trustee.
F. The parties, in their capacity as Directors agree that the Trustee has been accorded procedural fairness in relation to the making of these orders;
G. The parties acknowledge that the Husband and/or the Wife are indebted to:
D.1 [Child A] in relation to [Child A]’s Bond;
D.2 [Child B] in relation to [Child B]’s Bond;
AND on the basis that:
H. the parties will each pay and sign all documents necessary to ensure that they each pay half of the School Fees as and when they fall due, in addition to any administrative assessment of child support;
the following Orders be made:
Payment Split 1
1. In accordance with section 90XT(1)(b) of the Act:
1.1 the Wife is entitled to be paid the specified percentage of each splittable payment out of the Husband 's interest in the Fund; and
1.2 there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
2. The specified percentage for the purposes of paragraph 1.1 of this order is 100 per cent.
3. Orders 1 and 2 have effect from Operative Time 1.
4. The Trustee shall do all such acts and things and sign all such documents as may be necessary to:
4.1 calculate, in accordance with the requirements of the Act, the entitlement created by paragraph 1 of this order; and
4.2 pay the entitlement whenever a splittable payment becomes payable out of Husband’s interest in the Fund.
Payment Split 2
5. Pursuant to Section 90XT(4) of the Act, the base amount allocated to the Husband out of the interest held by the Wife in the Fund is $[the overall division of superannuation between the parties is in dispute].
6. Pursuant to Section 90XT(1)(a) of the Act, whenever the Trustee makes a splittable payment from the interest, held by the Wife:
6.1 the Trustee shall pay to the Husband or his legal personal representative the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
6.2 there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
7. Orders 5 and 6 have effect from Operative Time 2.
8. Paragraphs 1, 2, 5 and 6 of this Order binds the Trustee.
9. The Trustee, in accordance with the obligations set out under the Act and Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to, the Husband in accordance with these orders.
10. Upon the Trustee calculating the entitlement of the Husband in accordance with these orders, the parties as the Trustee cause the Husband’s entitlements to be paid in a separate bank account.
11. Within 28 days of the Trustee putting into effect the payment split pursuant to Orders 5 and 6, the Wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer the transferable benefits of the Wife’s interest in the Fund to a fund of the Wife’s choosing.
12. Subject to these orders, the parties each are declared to enjoy the entire beneficial interest in their respective superannuation entitlements.
13. The parties each pay half of any fees charged by the Trustee in providing information or implementing the provisions of these orders.
14. The parties and the Trustee have liberty to apply in relation to the implementation of the splitting orders.
15. Upon the Trustee having rolled out the Wife’s entitlements in the Fund, the Wife:
15.1 resign as a member of the Fund;
15.2 resign as a director of the Trustee;
15.3 transfer her shareholding in the Trustee to the Husband.
16. Upon the Wife resigning as a director of the Trustee, the Husband thereafter indemnify the Wife and keep her indemnified in relation to all liabilities of whatsoever nature arising from, or in relation to, the Trustee and the Fund, including but not limited to taxation liabilities.
The Property
17. The parties be appointed joint trustees for the sale of the Property
18. Within [The timeframe for the sale of the Property is not agreed], the parties each nominate in writing which the real estate agent be appointed to sell the Property and on what terms and conditions.
19. Within [The timeframe for the sale of the Property is not agreed], the parties agree on and appoint a real estate agent to act on the sale of the Property.
20. If the parties are unable to agree on and appoint a real estate agent to act on the sale of the Property, the parties appoint the real estate agent nominated by the President for the time being of the Council of REIWA, within seven days of the nomination being made:
20.1 to market the Property:
20.2 to sell the Property;
20.3 to pay agent’s commission;
in accordance with the recommendations of this agent
21. The Wife to arrange for any work recommended by the Agent and agreed by the parties, to bring the Property up to a marketable condition, to be carried out (unless the work has already been covered by an insurance payment received by the Wife).
22. The Wife comply with all reasonable requests of the Agent as to marketing the Property for sale, including making the Property readily available, allowing inspection of the Property at all times reasonably requested by the Agent and ensuring that the Property is clean, neat and in good order at the time of inspection by any prospective buyer.
23. There be liberty to apply in relation to the sale of the Property on urgent notice.
24. By [The timeframe for the sale of the Property is not agreed], the parties place the Property on the market for sale.
25. The parties each pay half of:
25.1 any marketing costs to sell the Property;
25.2 the costs of any work recommended by the Agent, and agreed by the parties, to bring the Property up to a marketable condition; as and when they fall due.
26. The parties sell the Property and disburse the net proceeds of sale as follows:
26.1 in payment of the costs of sale;
26.2 the balance of the proceeds of sale be divided to effect an overall division of the net asset pool [to be determined by the Trial Judge] per cent to the Wife and [to be determined by the Trial Judge] per cent to the Husband.
27. The listing price for the Property shall be at such price as is agreed by the parties or failing agreement as shall be recommended by the Agent.
28. Pending settlement of the sale of the Property, the Wife
28.1 pay the rates, taxes and other outgoings as and when they fall due;
28.2 keep the Property fully insured for its replacement value;
Motor Vehicles
29. Within 14 days of Publication:
29.1 the Husband transfer to the Wife all his interest in [Vehicle A];
29.2 the Wife transfer to the Husband all her interest in [Vehicle B].
Bank Accounts
30. Any interest the Husband has in any joint bank accounts with the Wife vest in the Wife.
Other Assets
31. Within 21 days of Publication, the Wife make the following available for collection by an agent of the Husband:
31.1 the Husband’s three watches;
31.2 the 5oz gold nugget (given to the Husband by [redacted]), if the Wife is able to locate it; and
31.3 the Husband’s bicycle and associated cycling apparel.
32. Save as provided in these orders:
32.1 The entire interest of the Wife in any property in the name or possession of, or under the control of, the Husband hereby vests in the Husband, including:
32.1.1 [Property B];
32.1.2 Furniture, chattels & personal effects (including artworks) in the Husband’s possession;
32.1.3 All insurance policies in the Husband’s name;
32.1.4 All funds standing in the Husband’s name or to his credit with any bank or other financial institution;
32.2 the entire interest of the Husband in any property in the name or possession of, or under the control of, the Wife hereby vests in the Wife, including:
32.2.5 Furniture, chattels & personal effects (including artworks and jewelry) in the Wife’s possession;
32.2.6 All insurance policies in the Wife’s name;
32.2.7 All funds standing in the Wife’s name or to her credit with any bank or other financial institution;
32.3 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.
Children’s Bonds
33. The Wife indemnify and keep the Husband indemnified against any liability he may have to:
33.1 [Child A] in relation to [Child A]’s Bond;
33.2 [Child B] in relation to [Child B]’s Bond.
Orders 29 September 2020
34. Paragraphs 1 - 3 of the Minute attached to the orders made 29 September 2020 be discharged as from the settlement of the sale of the Property.
Health Insurance Premiums
35. Until the Husband attains the age of 65 years, within 7 days of written request, the Husband reimburse the Wife for half of all premiums for private health insurance family cover at its current level, and if possible, the Wife do all things necessary to allow the Husband to make a claim under the policy and receive a refund for any payments made by him that are covered by the policy.
General
36. Each party shall do and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions of these Orders.
37. All Applications and Responses before the Court otherwise be dismissed.
8 The husband had earlier filed a minute of orders sought at trial on 14 July 2022. In this document, the husband confirmed that he was seeking 47.5 per cent of the asset pool, the allocation of a base amount of $450,000 from the wife’s interest in the Fund in his favour, and an immediate sale of the former matrimonial home.
9 The wife had earlier filed a minute of final orders sought on 5 August 2022. In this document, the wife confirmed that she was seeking 62.5 per cent of the asset pool, the allocation, in effect, of a base amount of approximately $175,000 from her interest in the Fund in favour of the husband, and a deferred date to put the former matrimonial home on the market for sale - not later than 30 June 2023.
Observations of the parties and their witnesses
10 The wife presented as a truthful witness who did her best to provide accurate evidence. The Court also observed the wife to be emotionally upset for significant periods in the trial. The marriage breakdown of the parties appears to be having an ongoing negative impact on the wife.
11 [Ms C] presented as a truthful witness who did her best to provide accurate evidence.
12 In or around October 2013, the husband was diagnosed with [Neuromuscular Condition]. Pre-trial directions permitted the husband to give evidence remotely from his residence, with the assistance of his carers. Additionally, such directions permitted the husband to give evidence by Microsoft Teams.
13 The husband, who retains full cognitive capacity, answered oral questions during examination in chief and cross-examination by using eye gaze technology. The technology enabled his answers to be converted to text, which were then converted into audio sound. While there was some in-built delay between the use of the eye gaze technology and the conversion into audio sound, the Court was satisfied that the husband presented as a truthful witness who did his best to provide accurate evidence. The Court formed this view without the benefit of hearing the husband’s natural voice, but with the benefit of observing the speed of his answers and assessing the content of those answers when they were converted into audio sound.
14 The Court is satisfied that [Dr A] and [Dr B] each gave their evidence in a candid, impartial and professional manner, intended to assist the Court.
Outline of relevant legal principles
15 The Court must identify the parties’ existing legal and equitable interests in the property which each own individually and jointly, pursuant to s 79(1) of the Act. The parties are not entitled to assume that their respective property interests are or should be different from those that exist at law and equity. The Court is not permitted to simply consider the statutory considerations set out in s 79(4) and make orders altering property interests. Prior to embarking on this exercise, the Court must consider whether it is just and equitable to make any order altering property interests, pursuant to s 79(2).
16 After satisfying itself of the matters referred to in ss 79(1) and 79(2), the Court is required to consider the matters set out in s 79(4). These matters fall into two broad categories. First, the identification and evaluation of relevant contributions to property (including property which is no longer presently owned by the parties or either of them), pursuant to ss 79(4)(a) and (b), and to the welfare of the family (including as homemaker and parent), pursuant to s 79(4)(c), from commencement of cohabitation until trial. Second, the identification and evaluation of other adjustment factors, pursuant to ss 79(4)(d), (e), (f) and (g).
17 While it is common for the Court to evaluate s 79(4) in percentage terms, this is not a statutory requirement. The Court may identify and evaluate contributions using a global or asset-by-asset approach. Neither approach should yield a more just and equitable outcome than the other.
18 Lastly, the Court must revisit s 79(2), ensuring that the form and content of any orders which it makes are just and equitable. In this respect, s 79(2) has a dual aspect, both in determining whether it is appropriate, just and equitable to make any order at all and also in ensuring that any order actually made is appropriate, just and equitable both in form and content.
Existing legal and equitable interests in property – s 79(1)
19 At the end of the trial, the parties provided the Court with an agreed asset schedule. Omitting reference to the comments of each party on the items, the schedule provides as follows:
| ASSET | Wife’s Value $ | Husband’s Value $ |
| [The former matrimonial home] | 5,600,000 | 5,600,000 |
| Likely costs of sale | -84,000 | -84,000 |
| Marketing & other sale costs | -10,000 | -10,000 |
| 5,506,000 | 5,506,000 | |
| Joint | ||
| [Bank A] a/c [redacted] | 337 | 337 |
| Husband | ||
| [Bank A] a/c [redacted] | 0 | 0 |
| [Bank A] a/c [redacted] | 161,861 | 161,861 |
| [Vehicle A] | 12,000 | 12,000 |
| [Property B] | 3,500,000 | 3,500,000 |
| Transfer duty, Landgate fees & other fees | Nil | Nil |
| Furniture and contents | 15,000 | 15,000 |
| Artwork | 15,000 | 15,000 |
| [Law Firm A] Trust | Nil | Nil |
| Paid Legal fees | 175,989 | 175,989 |
| Wife | ||
| [Bank B] a/c [redacted] | 1,024 | 1,024 |
| National Savings Certificate # [redacted] | 135,957 | 135,957 |
| National Savings Certificate # [redacted] | 72,041 | 72,041 |
| National Savings Certificate # [redacted] | 55,371 | 55,371 |
| National Savings Certificate # [redacted] | 43,691 | 43,691 |
| [Bank A] a/c [redacted] | 0 | 0 |
| [Bank A] a/c [redacted] | 3,299 | 3,299 |
| [Bank A] a/c [redacted] | 6,015 | 6,015 |
| [Vehicle B] | 35,000 | 35,000 |
| [Vehicle C] | ||
| furniture | 22,500 | 22,500 |
| Artwork | 15,000 | 15,000 |
| jewellery | 12,500 | 12,500 |
| Paid legal fees | 206,252.48 | 206,252.48 |
| Tax refunds | 7,852 | 7,852 |
| TOTAL NON-SUPER ASSETS | 10,002,690 | 10,002,690 |
| LIABILITIES | ||
| Joint | ||
| Owed to [Child A] for insurance bond from the Wife's father | 156,294 | 156,294 |
| Owed to [Child B] for insurance bond from the Wife's father | 151,952 | 151,952 |
| Husband | ||
| [Bank A] cc [redacted] | 2,722 | 2,722 |
| owed by Husband for [Insurance Company] payments, child support & health insurance | Nil | Nil |
| 2022 tax debt | 28,296 | 28,296 |
| Tax instalment payable by 281022 | 29,042 | 29,042 |
| Wife | ||
| [Bank A] cc [redacted] | 17,381 | 17,381 |
| Borrowings from [Child A] | 31,000 | 31,000 |
| TOTAL LIABILITIES | 416,687 | 416,687 |
| NET NON-SUPER ASSETS | 9,586,004 | 9,586,002 |
| SUPERANNUATION | ||
| [Perez] SMSF | 2,357,276 | 2,357,276 |
| Wife | 1,647,081 | 1,647,081 |
| Husband | 710,195 | 710,195 |
| current account [Bank A] a/c [redacted] | 3,538 | 3,538 |
| term deposit A/C [redacted] | 2,359,506 | 2,359,506 |
| [redacted] invoice | -3,355 | -3,355 |
| Quarterly BAS | -1,043 | -1,043 |
| 2,358,646 | 2,358,646 | |
| Wife’s | 1,648,039 | 1,648,039 |
| Husband | 710,608 | 710,608 |
| TOTAL SUPERANNUATION | 2,358,646 | 2,358,646 |
| NET ASSETS | 11,944,650 | 11,944,648 |
20 Given the Court’s obligation to identify the parties’ existing legal and equitable interests in property, the Court makes the following observations about the agreed asset schedule:
(a) The former matrimonial home is registered in the sole name of the wife. This occurred on 14 February 2022, at which time the parties, as joint registered proprietors, transferred their interests in the property to the wife. At trial, both counsel acknowledged that the wife was not the sole beneficial owner and the husband retained an equitable interest in the former matrimonial home. Given the manner in which the trial was conducted by each party, the Court was not required to make findings about the nature or extent of the husband’s equitable interest.
(b) A number of items in the schedule are not existing property interests – namely contingent or estimated liabilities, paid legal fees, and tax refunds already received and spent.
(c) For the purpose of s 90XT(2)(b) of the Act, the Court finds, based upon the agreement of the parties, that the amount allocated to the existing interest of the husband in the Fund as at 27 October 2022 is $710,608 and the amount allocated to the existing interest of wife in the Fund as at 27 October 2022 is $1,648,039.
Background facts – overview
21 The husband was born [in] 1960 and was formerly a [Medical Professional C] until he ceased work in October 2013, upon his diagnosis with [Neuromuscular Condition]. The wife was born [in] 1969 and was formerly a [Medical Professional D]. She is currently employed as a part-time [Professional B] at [School].
22 The parties commenced cohabitation in November 1995 and were married in April 1996.
23 There are three children of the marriage. [Child A] was born [in] 1999, [Child B] was born [in] 2002 and [Child C] was born [in] 2005. All of the children presently live with the wife in the former matrimonial home. [Child A] and [Child B] are engaged in tertiary study and [Child C] completed grade 12 in 2022.
24 Since his diagnosis in or around October 2013, the husband has received income protection insurance payments of $350,823 per annum, paid quarterly, pursuant to an [Insurance Company] policy. According to the wife’s evidence in cross-examination, the premiums in respect of this policy were tax-deductible against the husband’s income. The husband is entitled to receive these payments until he turns 65 years old [in] 2025.
25 Since his diagnosis in or around October 2013, the husband has required progressively greater levels of care. As will be discussed in further detail later, the wife provided exclusive 'care of the highest standard' to the husband until mid-2017. Since mid-2017, the wife was assisted by external carers, pursuant to a plan for the husband prepared under the National Disability Insurance Scheme (NDIS). The parties separated under one roof in April 2020. The wife continued providing ‘care of the highest standard’ to the husband after mid-2017, in conjunction with external carers, until July 2020. The husband moved into his current residence in October 2020.
26 On 29 September 2020, the parties entered into consent orders whereby, until further order, the husband causes the quarterly [Insurance Company] income protection payments to be paid equally to himself and the wife, net of tax. In addition, pursuant to those orders, the parties agreed to pay half of the school fees. By these orders, the wife enabled the husband to complete the purchase of [Property B].
27 Further factual matters will be discussed in the evaluation of the s 79(4) factors.
Whether it is just and equitable to make an order altering property interests – s 79(2)
28 Both parties agreed that the Court must alter property interests, given their separation. In these circumstances, the Court is satisfied that it is appropriate, just and equitable to make orders under s 79.
Contributions – s 79(4)(a), (b) & (c)
Contributions to property – ss 79(4)(a) & (b)
29 At the commencement of cohabitation, the husband controlled net property and financial resources worth around $560,000 and the wife controlled net property and financial resources worth around $1,164,000.
30 The parties commenced purchasing real estate jointly in 1997 and thereafter continued to acquire real estate together. The parties purchased the former matrimonial home in March 2006.
31 Between 2006 and 2011, the wife transferred approximately $4,003,765 to Australia, which derived from property owned at cohabitation or otherwise inherited by her from family members. These funds were used for the benefit of the parties and the family.
32 In 2006 and 2007, the wife transferred $1,901,388 in reduction of the mortgage registered over the former matrimonial home. The source of these funds from the wife was inheritance from family members.
33 Following the husband being diagnosed with [Neuromuscular Condition] in or around October 2013, he received a payment for total and permanent disability (TPD) of $1,670,565 in February 2014, from [Insurance Company]. This lump sum payout was in addition to the ongoing income insurance protection payments, to which reference has already been made.
34 In September 2020, settlement on the purchase of [Property B] occurred. The husband funded the purchase by accessing his superannuation entitlements with the Government Employees Superannuation Board together with some of his funds from the self-managed superannuation fund and funds provided by the wife totalling $750,000. The purchase price was $3,275,000. The husband is the sole registered proprietor.
35 [In] February 2022, the parties transferred their respective interests in the former matrimonial home to the wife, pursuant orders made by consent on 29 November 2021. The wife requested the husband to transfer his interest in the home to her, due to his purchase of a residence in [Property B].
36 The parties made additional contributions to their respective superannuation member interests during the course of the marriage. The wife quantified these contributions as deriving from her inheritance and from the husband’s TPD payout (received in February 2014). These contributions were roughly equal, albeit contributed at different times, totalling around $1,080,000.
37 According to the wife’s evidence, the husband’s taxable income from 2002 until 2014 (inclusive) amounted to $7,100,071. According to the husband’s evidence, his taxable income over the same time period was $7,635,351. There was no evidence given about this disparity. The Court is satisfied that the husband’s taxable income from 2002 until 2014 (inclusive) was not less than $7,100,071.
38 The wife did not give evidence about her taxable income over the corresponding period. However, the husband’s evidence was the wife’s total taxable income from 2002 until 2014 (inclusive) was $723,085. The Court accepts this evidence, which was unchallenged.
39 Since October 2013, the husband has been paid around $350,000 per annum, in quarterly instalments, pursuant to the [Insurance Company] income protection insurance policy. These payments will be paid until the husband turns 65 years old [in] 2025. The wife has enjoyed the benefit of half of these payments since consent orders in September 2020 and such payments will continue until the settlement of the sale of the former matrimonial home.
40 The wife’s taxable income for the financial year ended 30 June 2022 was $50,398.
41 The Court finds that the parties have applied their respective incomes to the acquisition, conservation or improvement of their property or otherwise to the welfare of the family.
42 The Court is satisfied that the wife has depleted capital of around $240,000 since separation by reductions in her [Bank A] account balances. However, this has arisen due to the wife maintaining a high standard of living for herself and the children.
Contributions to the welfare of the family – s 79(4)(c)
43 The wife was primarily responsible for the washing, shopping, cooking and ironing within the household both before and after the children were born. Before the birth of the children, the parties shared the remaining homemaking duties, including cleaning, as both parties worked full time.
44 During the marriage, the wife managed the household finances, maintenance and repairs and paid the bills.
45 The husband was actively involved in family life prior to his diagnosis in or around October 2013, followed by symptoms, but was also heavily committed with his employment as a [Medical Professional C] from 2000 until 2013.
46 Following the husband’s diagnosis, when he ceased work, the wife continued to be the primary homemaker and parent and became the husband’s carer.
47 From January 2015, when the husband lost the use of his arms, the wife provided for all of the husband’s daily living needs until mid-2017. The husband has been confined to a wheelchair since 2017. The wife continued attending to the husband’s daily living needs, including showering, toileting, feeding, nail care, teeth and gum cleaning, ear cleaning, inserting suppositories and moving from bed to chair and back again. Further, the wife arranged and facilitated medical appointments and hospital visits.
48 The wife organised the husband’s healthcare, [much of which involved overseas travel and a high level of administration.]
49 From mid-2017, support workers attended the former matrimonial home and this level of care progressively increased up to 22 hours a week by March 2018 and 50 hours per week by March 2020. The wife attended to the husband’s care when external carers were not available.
50 The wife arranged [Medical Procedure A] for the husband, commencing in 2018-2019, using a [redacted] at night to [redacted]. The wife would sleep next to the husband while the [redacted] was operating and she would move the [redacted] placed over his face or [redacted] when required.
51 The wife arranged for the setting up and maintenance of the husband’s electric powered wheelchair. She also arranged for the husband’s eye gaze technology. After a computer was obtained which could accommodate this technology, the husband could email texts, play chess, send emails, control the television, and effect other actions simply by using his eyes.
52 In 2019, the husband had a radiologically inserted gastronomy (RIG), which is a small feeding tube inserted through the skin directly into the stomach to enable receipt of liquid food, fluid and medication without needing to swallow. The tube requires changing every 6 months and the wife would arrange for this to occur at [hospital]. The wife would also arrange to feed the husband using this feeding tube and was required to clean the equipment after each use.
53 In April 2020, when the husband told the wife he was commencing proceedings in the Family Court, the wife advised the husband she would cease her carer role, which she was providing when the carers were absent, of approximately 84 hours per week.
54 The wife’s care of the husband ceased in July 2020.
55 In his evidence, the husband acknowledged that the wife’s care of him was at a very high level.
56 The wife continues to be primarily responsible for the day-to-day parenting of [Child C].
Conclusions on contributions
57 The Court is satisfied that the contributions which each party has made should be assessed globally having regard to the duration of the marriage and all of the direct and indirect contributions both to the family and to property (including property which has ceased to be property of the parties).
58 Taking into account the contributions of the parties, in all forms, from commencement of cohabitation in November 1995 until the date of trial, the Court finds that the agreed asset pool, inclusive of notional property, should be adjusted such that the wife receives 55 per cent and the husband receives 45 per cent.
Further adjustment factors – ss 79(4)(d), (e), (f) & (g)
59 The matters covered by ss 79(4)(d), (f) and (g) are addressed below in respect of the s 79(4)(e) factors.
Each parties’ age and state of health
60 The husband is 62 years old and the wife is 53 years old.
61 The wife is in reasonable health. There was no evidence nor any submissions about the wife’s life expectancy. The husband is in poor health. The focus of the cross-examination of his treating medical practitioners was his life expectancy. The case was conducted by the wife on the assumption that her life expectancy was greater than the life expectancy of the husband. Even without his poor health, the husband is nine years older than the wife.
62 [Dr A] was not prepared to accept the proposition that the husband will probably lose his life in the next ten years as a consequence of [Neuromuscular Condition]. She stated that the husband’s life expectancy depends upon his level of care and whether he is ventilated. The process of [Medical Procedure A], she said, would definitely extend his life, but it was impossible to say for how long. However, if the husband was not [redacted], he would likely pass away in the next ten years. According to the research (in respect of which [Dr A] was cross-examined about two articles she had co-authored), [Dr A] accepted that the husband fell into a minority of patients with [Neuromuscular Condition] who had survived for almost ten years.
63 [Dr B] said that 30 per cent of patients survive for five years and 10 to 20 per cent of patients survive more than ten years. [Dr B] pointed out that the husband’s current survival for almost ten years post-diagnosis makes his current life expectancy more difficult to predict. [Dr B] accepted that the husband will die prematurely from [Neuromuscular Condition] or its associated complications, but could not say when this would happen.
64 The husband’s evidence was that he would seek an invasive [Medical Procedure B] if his cognitive function remained intact and [Medical Procedure A] was no longer effective. The husband seeks to extend his life for as long as practicable, provided financial means are available to do so, on the condition that his cognitive function remains intact.
Each parties’ income, property and financial resources
65 The wife is currently working part-time at 0.85 FTE, earning around $72,500 per annum. The wife has the capacity to continue in her current employment in the foreseeable future. The wife also receives one half of the net quarterly payments from the [Insurance Company] income protection insurance policy for the husband. This will cease on the earlier of:
•the husband’s death;
•when he attains 65 years of age ([in] 2025); or
•the settlement of the sale of the former matrimonial home.
66 The husband’s income comprises one half of the net quarterly payments from his [Insurance Company] income protection insurance policy. These payments will cease on the earlier to occur of the husband’s death or when he attains 65 years of age ([in] 2025). Upon the settlement of the sale of the former matrimonial home, the husband will receive 100 per cent of these payments until either he passes away or attains 65 years of age.
67 The property and superannuation interests to be retained by the parties, on a contributions basis, are 45 per cent to the husband and 55 per cent to the wife.
Each parties’ physical and mental capacity for appropriate gainful employment
68 The husband does not have capacity for appropriate gainful employment.
69 The wife has previously worked as a [Medical Professional D], however, has not worked in this capacity for many years. The Court accepts her evidence that she would require extensive retraining to bring her skills and knowledge to a current standard. The Court also accepts her evidence that she does not intend to re-enter her former profession as a [Medical Professional D]. The Court finds that the wife is currently working as a [Professional B] with the capacity to modestly increase her income by transitioning to a [Professional C] role at [School]. The Court accepts the wife’s evidence that she does not intend to work full time.
Whether either party has the care and control of a child who has not attained 18 years of age
70 The youngest child of the marriage, [Child C], turns 18 years of age in June 2023. [Child C] is under the sole care and control of the wife.
Each parties’ commitments that are necessary to enable the party to support himself or herself and the child or another person that a party has a duty to maintain
71 The wife is currently maintaining herself and the children to a high standard, deposing to weekly expenses of around $6,007 (for herself and all three children) against weekly income of only $3,911. The Court accepts that after the settlement of the sale of the former matrimonial home, the wife’s income will fall significantly as a result of the cessation of half of the net [Insurance Company] personal income protection insurance payments currently being paid to her by the husband.
72 The Court finds that the wife has the capacity, if she wishes, to reduce her expenditure to a level more commensurate, but still exceeding, her income. However, she will not be able to maintain her current level of spending for herself and the children without further accessing her capital.
73 The husband currently deposes to weekly income of $6,770 per week against weekly expenses of $7,123 per week. Upon settlement of the sale of the former matrimonial home, cessation of contributions to school fees, and assessed child support for [Child C], the husband’s weekly expenses will fall to around $4,552 per week.
The responsibilities of either party to support any person
74 All three of the parties’ children live with the wife and are likely to do so for the foreseeable future. After [Child C] turns 18 years of age in June 2023, neither party has any legal responsibility to provide support for the children. However, the Court finds that the wife will continue to provide support for all three children for the foreseeable future.
The eligibility of either party for a pension, allowance or benefit
75 The husband said he was not aware of his entitlement to receive any income tested pension, allowance or benefit after he reached 65 years old. Neither party is in receipt of an income tested pension, allowance or benefit (save that the husband receives a direct payment of around $34 per week from NDIS). The husband is receiving the benefit of NDIS funding for his full-time care needs, including for carers, social interaction, feeding, equipment and technology aids (24 hours per day, 7 days per week) worth over $560,000 per annum.
Whether the parties have separated or divorced, a standard of living that in all circumstances is reasonable
76 The parties will be able to each have a standard of living that in all the circumstances is reasonable, having regard to the vicissitudes of life.
The extent to which a party has contributed to the income, earning capacity, property and financial resources of the other party
77 The parties have made contributions to property and superannuation interests which have been identified and evaluated earlier in these reasons. The Court does not consider that either party has materially contributed to the income, earning capacity and financial resources of the other party.
The duration of the marriage and the extent to which it has affected the earning capacity of either party
78 The Court finds that the wife’s earning capacity has been affected by the duration of the marriage. In particular, the time required for the care of the children as they grew up and the choices made by the parties in this respect meant that the wife could not continue in her profession as a [Medical Professional D].
If either party is cohabiting with another person – the financial circumstances relating to the cohabitation
79 This is not a relevant consideration.
The terms of any order made or proposed to be made under s 79
80 The parties have agreed on the form of final orders, save for the limited matters identified earlier. On contributions alone, the husband will receive 45 per cent and the wife will receive 55 per cent of the asset pool.
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
81 The husband has paid child support as assessed or as agreed. The Court accepts that he will continue to do so until his child support liability ceases.
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
82 In relation to the form of orders, the wife requires a much greater proportion of the net sale proceeds of the former matrimonial home to rehouse herself and the adult children. She will be required to pay the purchase price and the associated purchase costs for another home. The husband has the benefit of living in a residence purchased by consent after separation in his sole name, in which the associated purchase costs amounted to somewhere in the range of $159,778 (on the wife’s case) to $164,666 (on the husband’s case).
83 The Court takes into account, on the assessment of contributions only, that the wife is retaining notional property worth $214,104 and the husband is retaining notional property worth $175,000.
84 The Court is unable to make a finding as to whether the husband’s wish for [Medical Procedure B] , should his cognitive function remain intact and if [Medical Procedure A] is no longer effective, will be publicly funded.
Conclusion on other adjustment factors
85 After taking into account these other adjustment factors, the Court proposes to make a 1 per cent adjustment (which represents around an additional $119,446) in favour of the wife. This will result in the wife retaining 56 per cent and the husband retaining 44 per cent of the asset pool.
Consideration as to what orders are just and equitable – s 79(2)
86 Given the parties’ agreement pursuant to s 79(2) that making orders adjusting property interests under s 79 is just and equitable, and given the Court’s findings about the s 79(4) factors, the Court finds that the agreed asset pool of the parties must be adjusted to enable just and equitable orders to be made, such that the wife retains 56 per cent and the husband retains 44 per cent of the agreed asset pool.
87 As earlier indicated, the three issues requiring resolution are:
1. The timing of the sale of the former matrimonial home and appointment of real estate agent.
2. The base amount to be allocated to the husband out of the interest held by the wife in Fund.
3. The proportions or sums to be received by each of the parties from the proceeds of sale of the former matrimonial home.
Timing of sale of the former matrimonial home and appointment of real estate agent
88 The wife argued that the former matrimonial home should not be placed on the market for sale until June 2023 to enable [Child B] to have his 21st birthday party and [Child C] to have her 18th birthday party at the property. The wife considers that it would be beneficial for the children to be able to leave the property with good memories. The husband argues that the property should be placed on the market for sale immediately and does not accept that there is any legitimate reason to defer the timing of the sale.
89 Given that the parties agree that the property must be sold, the Court is not persuaded that the timing of the sale should be deferred until June 2023. The husband is entitled to receive the benefit of the sale proceeds as soon as reasonably practicable.
90 In light of this finding:
(a) Each party must nominate in writing which real estate agent each party proposes to sell the former matrimonial home, within 14 days of orders being made or such later time as agreed in writing.
(b) Within 28 days of orders being made or such later time as agreed in writing, the parties must agree and appoint a real estate agent to act on the sale of the former matrimonial home.
Base amount
91 The husband seeks to be allocated a base amount $450,000 from the wife’s member interest in the Fund. The wife seeks that a superannuation splitting order be made that 100 per cent of the husband’s member balance be allocated to her and then a further superannuation splitting order that a base amount of $885,695 then be allocated from her member balance to the husband. The husband’s existing member balance is $710,608. The effect of these proposed orders is that the wife is effectively seeking a base amount of around $175,000 be allocated from her member interest to the husband’s member interest.
92 The allocation of a base amount from the wife’s member interest to the husband’s member interest is the agreed form of order to be made by the Court, with the only variable being the quantum.
93 In the papers filed by each party for trial and oral submissions, neither party advanced arguments in favour of the base amounts respectively sought. The Court accepts that these base amounts were sought in the context of the wife seeking 62.5 per cent and the husband seeking 47.5 per cent of the asset pool, not in the context of the wife being ordered to receive 56 per cent and the husband being ordered to receive 44 per cent of the asset pool. The Court does not consider itself fettered or bound by the base amounts sought by the parties being the upper and lower limits on the allocation of the base amount ultimately ordered by the Court.
94 However, taking into account the proposed orders, in combination with the s 79(4) factors previously assessed, the Court considers that the allocation of a base amount of $175,000 from the wife’s member interest in favour of the husband’s member interest is a just and equitable order. This means that the wife’s member balance will be worth approximately $1,473,039 and the husband’s member balance will be worth approximately $885,608.
Proceeds of sale
95 To give effect to an alteration of property interests as to 56 per cent to the wife and 44 per cent to the husband, it is proposed that a formula be inserted into the orders, which takes into account the actual net proceeds of sale of former matrimonial home. This form of order is just and equitable.
96 The formula is based on the Court’s finding that, excluding the portion of the net proceeds of sale of the property to be retained by each party, the effect of the final orders agreed between the parties together with the Court’s finding about the base amount to be allocated in favour of the husband from the wife’s member interest in the Fund, is that the wife otherwise retains property and superannuation interests worth $1,710,251 (as set out in the following section of these reasons) and the husband otherwise retains property and superannuation interests worth $4,728,398 (as set out in the following section of these reasons).
Effect of the proposed orders
97 The wife will retain a much greater proportion of the proceeds of sale than the husband. By way of illustration (with reference to paragraph 19 above), if the net sale proceeds of the property are worth $5,516,000 (the parties agree to share marketing costs equally by agreed final order 25.1), then the wife will receive $4,984,352 and the husband will receive $531,648.
98 The parties agree that the wife will retain the joint funds of $337, [Vehicle A] currently in the husband’s name valued at $12,000 and the debts on the insurance bonds owed to [Child A] and [Child B], in the total sum of $308,246. Further, the parties agree that husband will retain [Vehicle B] currently in the wife’s name valued at $35,000. The parties will otherwise retain their own personal property and liabilities.
99 Excluding the former matrimonial home’s net sale proceeds to be retained by the wife, the wife otherwise retains property and superannuation interests worth $1,710,251, as follows:
| ASSET | Wife’s Value $ | Husband’s Value $ |
| [Bank A] a/c [redacted] | 337 | 337 |
| [Vehicle A] | 12,000 | 12,000 |
| [Bank B] a/c [redacted] | 1,024 | 1,024 |
| National Savings Certificate [redacted] | 135,957 | 135,957 |
| National Savings Certificate [redacted] | 72,041 | 72,041 |
| National Savings Certificate [redacted] | 55,371 | 55,371 |
| National Savings Certificate [redacted] | 43,691 | 43,691 |
| [Bank A] a/c [redacted] | 0 | 0 |
| [Bank A] a/c [redacted] | 3,299 | 3,299 |
| [Bank A] a/c [redacted] | 6,015 | 6,015 |
| [Vehicle C] | ||
| furniture | 22,500 | 22,500 |
| Artwork | 15,000 | 15,000 |
| jewellery | 12,500 | 12,500 |
| Paid legal fees | 206,252.48 | 206,252.48 |
| Tax refunds | 7,852 | 7,852 |
| Owed to [Child A] for insurance bond from the Wife's father | 156,294 | 156,294 |
| Owed to [Child B] for insurance bond from the Wife's father | 151,952 | 151,952 |
| [Bank A] cc [redacted] | 17,381 | 17,381 |
| Borrowings from [Child A] | 31,000 | 31,000 |
100 The Court takes into account that $214,104 of the $1,710,251 to be retained by the wife is "notional property", comprising paid legal fees and tax refunds already received.
101 Excluding the net sale proceeds of former matrimonial home to be retained by the husband, the husband otherwise retains property and superannuation interests worth $4,728,398, as follows:
| ASSET | Wife’s Value $ | Husband’s Value $ |
| [Bank A] a/c [redacted] | 161,861 | 161,861 |
| [Property B] | 3,500,000 | 3,500,000 |
| Furniture and contents | 15,000 | 15,000 |
| Artwork | 15,000 | 15,000 |
| Paid Legal fees | 175,989 | 175,989 |
| [Vehicle B] | 35,000 | 35,000 |
| [Bank A] cc [redacted] | 2,722 | 2,722 |
| 2022 tax debt | 28,296 | 28,296 |
| Tax instalment payable by 281022 | 29,042 | 29,042 |
102 The Court takes into account that $175,000 of the $4,728,398 to be retained by the husband is "notional property", comprising paid legal fees.
Proposed orders
103 For these reasons, subject to hearing from the parties, the Court proposes to make orders in terms of the Joint Minute of Agreed Final Orders filed on 25 October 2022 (JMAFO), save that:
1. In paragraph 5 of the JMAFO, the sum of $885,608 is inserted.
2. In paragraph 18 of the JMAFO, "14 days" is inserted.
3. In paragraph 19 of the JMAFO, "28 days" is inserted.
4. In lieu of paragraph 24 of the JMAFO, the following order is inserted:
Subject to paragraphs 18 and 19 of these orders, after the appointment of a real estate agent, the parties do all acts and things necessary to promptly place the Property on the market for sale, unless otherwise agreed in writing as to timing.
5. In the definitions of the JMAFO, the following be inserted:
"Net proceeds of sale ($N)" means, in relation to the Property [the former matrimonial home], the sale price less the real estate agent’s commission less any other costs agreed in writing by the parties to form part of this definition
6. In lieu of paragraph 26 of the JMAFO, the following order is inserted:
The parties sell the Property [the former matrimonial home] and do all acts and things necessary to disburse the Net proceeds of sale ($N) in favour of each party, according to the following formulas:
Payment to the Wife of $W: $W = [($N + $6,438,649) x 56 per cent] - $1,710,251
Payment to the Husband of $H: $H = [($N + $6,438,649) x 44 per cent] - $4,728,398
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
AP
Associate to the Judge
30 JANUARY 2023
0
0
0