PESARO and VERVERS

[2017] FCWA 140

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

CITATION: PESARO and VERVERS [2017] FCWA 140

CORAM: DUNCANSON J

HEARD: 17, 18 OCTOBER 2017

DELIVERED : 20 OCTOBER 2017

FILE NO/S: PTW 1122 of 2015

BETWEEN: MS PESARO

Applicant

AND

MR VERVERS
Respondent

Catchwords:

PROPERTY - Where it is just and equitable to make a property settlement order - Where the parties have few assets and significant debt - Where the property comprises largely of superannuation - Where the husband has disposed of assets - Allocation of responsibility for payment of debts - Where the orders are just and equitable

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 79, s 90MT
Family Law (Superannuation) Regulations 2001 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

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

Khademollah v Khademollah (2000) FLC 93-050

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

1[Ms Pesaro], the wife and [Mr Ververs], the husband are unable to agree about the division of their property.

The orders sought by the wife

2The orders sought by the wife are contained in her amended initiating application filed 4 July 2017. The wife seeks payment of a sum equivalent to 80% of the net asset pool. She seeks an order that the husband indemnify her as to debts arising from the shortfall upon the sale of properties.

3Upon the wife's case various sums of money received by the husband should be included in the schedule of assets and liabilities by way of add-back. The percentage division sought by her would result in a cash payment from the husband to her and also a superannuation split.

4In an earlier minute of orders sought at trial the wife also sought orders for spousal maintenance and child support, or adult child maintenance however, no such orders are sought in her said amended initiating application.

The orders sought by the husband

5The orders sought by the husband are contained within a minute of orders sought filed 3 January 2017. The husband proposes that the combined superannuation benefits of both parties be split such that the wife receives 70% thereof.

BACKGROUND

6The wife was born [in] 1979. She is 38 years of age. The husband was born [in] 1978. He is 39 years of age.

7The wife is [a nurse]. The husband is [a technician].

8The parties commenced cohabitation in 1997. They married [in] 2007. The parties separated in June 2012 and were divorced [in] 2015.

9The parties have two children, [Child A] born [in] 1999 and [Child B] born [in] 2002. The children live with the wife.

SHORT FINANCIAL HISTORY

10At the commencement of cohabitation both parties were in employment. After the birth of their first child the wife was a full-time homemaker and parent.

11In 2001 the parties moved to [Coastal Town C] where the husband was employed.

12In June 2002 the parties returned to Perth.

13In July 2004 the parties purchased the property at [Suburb D] ("the [Suburb D] property"). At this time the husband was in employment at [Workplace E].

14In 2004 the wife commenced work around her child care commitments.

15In 2006 the wife commenced studying for qualification as a nurse.

16The husband subsequently began employment at [Workplace F] in [Suburb G]. In 2008 the husband and his father purchased a beach shack in [Suburb H] for approximately $60,000. The parties' share of the price was paid by the husband's father and they repaid him at the rate of $100 per week, a total of $30,000 in all. The husband occupied the shack while working at Suburb G.

17The husband sought a separation. In 2010 the parties purchased a house at [Coastal Town I] ("the [Coastal Town I] property") intending that the husband occupy it. The property was purchased in the husband's sole name. The parties refinanced the Suburb D property. The mortgage was in joint names.

18The parties renovated the Coastal Town I property. They reconciled in 2010. In February 2010 the parties borrowed $20,000 from the National Australia Bank as a student loan for the wife and applied it to the renovations of the Coastal Town I property.

19In 2011 the wife commenced employment as [a nurse].

20The parties purchased a three acre block at [Coastal Town J] ("the [Coastal Town J] property") intending to build a home on it. The parties separated in June 2012. The husband remained in the Suburb D property and the wife rented a unit in [Coastal Town K], which she occupied with the children.

21In late 2012 the renovations at the Coastal Town I property were completed. The husband says he borrowed funds from his father to complete the renovations. The husband rented out the property and said he applied the rent to the loan repayments.

22After separation the husband made payments to the National Australia Bank loan, but subsequently allowed it to go into default. He says he paid the loans to the extent he was able.

23In December 2012 the husband broke into the wife's home and damaged property. The wife obtained a Violence Restraining Order. The husband was convicted of criminal offences and sentenced to 18 months imprisonment, suspended for 12 months with conditions.

24The parties attended mediation. The wife wanted to sell all of the properties and pay out the loans. She says the husband refused.

25In 2013 the wife commenced cohabitation with her partner. She borrowed funds to refinance the National Australia Bank loan of $23,235.

26The husband occupied the Suburb D property for a period of 18 months after separation. He subsequently rented it out for $1,200 increasing to $1,400 per month. The husband says he applied the rent to family debts apart from about two months in which he did not do so. The tenants subsequently stopped paying rent.

27The husband says his financial position worsened along with his mental state. He ceased making loan repayments in about April 2014. He said he started the process of going bankrupt.

28The bank took possession of the Suburb D property in early 2015 and it was sold with a deficit of $57,422.

29In October 2013 the husband sold the Coastal Town I property and he received funds at settlement totalling $46,929. He retained those funds and said he applied them to loan and credit card repayments.

30Between 2013 and 2014 the husband purchased a high performance motor bike. In January 2014 the wife began paying the husband $250 a fortnight by way of a contribution to the loan over the Coastal Town J property. That property was sold and settlement took place on 10 June 2014. There was a deficit of around $67,000.

31The husband was made redundant and on 6 March 2015 received a redundancy payment of $135,467. On 13 March 2015 orders were made restraining the husband from accessing his superannuation and his redundancy payment and he was ordered to provide details of the disbursement of funds received from the Coastal Town I property. By that time the husband had disposed of most of the redundancy payment as set out below.

32The wife asserts the husband received several large sums of money between 2012 and 2015 in addition to his earnings. These amounts are set out at paragraph 75 of the wife's affidavit affirmed 21 September 2017 as follows:

•August 2012 tax refund $11,235

•September 2013 tax refund $6,135

•October 2013 sale proceeds of [Coastal Town I] property $46,929

•2013 to 2014 rent from [Suburb D] property $18,000

•2012 to 2013 rent from [Coastal Town I] property -

•September 2014 tax refund $2,252

•March 2015 redundancy payment $135,467

33The husband says he used funds he received to pay joint debts which at the time of separation were significant.

THE LAW

34These proceedings are governed by s 79 of the Family Law Act 1975 (Cth) ("the Act"). To determine this matter I shall:

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

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

•identify and assess the contributions of the parties;

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

•make such orders as are just and equitable.

THE EXISTING PROPERTY INTERESTS OF THE PARTIES

The wife's Bankwest personal loan

35The wife has a personal loan to Bankwest of $27,572 as at the date of trial. Of that $23,235 was a joint debt at the time of separation. The debt was subsequently refinanced by the wife. The wife conceded that the difference, namely $4,337 was her debt incurred after separation.

Toyota motor vehicle

36The husband owned a [Toyota] motor vehicle which he sold after separation for $7,000. He paid off the associated debt with the funds. The wife says the sale proceeds should be included in the schedule of assets and liabilities. The funds no longer exist and I do not intend to include them in the schedule as a notional asset.

The husband's musical instruments and tools and the parties' household contents

37The parties agree they have household contents to a value of $5,000 each. The wife asserts that the husband also owns tools worth $10,000 and musical equipment worth $10,000. The husband agrees he owns tools and musical equipment, but he says together their value would be about $5,000.

38Neither party provided a valuation of the husband's musical instruments and tools. It is usually incumbent upon the person asserting the value of chattels to provide evidence to support the assertion: Khademollah v Khademollah (2000) FLC 93-050. The husband states in his financial statement that he sold musical instruments worth $2,000. He also says that tools and a trailer were stolen from him.

39Upon the evidence I am not persuaded the husband's musical equipment and tools are worth the amounts asserted by the wife.

The ANZ credit card and the husband's loan from Mr Ververs (Snr)

40The husband said he uses his father's credit card and although in his father's name the debt of $8,550 is his. The husband has a personal loan from his father of $5,000.

41These sums were advanced to the husband by his father to meet his expenses in connection with his employment [overseas]. They are soon to be reimbursed to the husband by his employer and he will be able to clear the debts. I shall not therefore include these debts in the schedule.

Macquarie Leasing

42The husband has a debt to Macquarie Leasing of $15,022. He entered into an agreement for a lease of a car, but when he was made redundant the car was repossessed and he was left with the debt. He did not pay it out with funds available to him at the time.

The husband's tax refunds

Rent from the Suburb D and Coastal Town I properties

Sale proceeds of the Coastal Town I property

43The husband received various sums of money as asserted by the wife which are set out at paragraph 32 above. Her case is that the husband has not accounted for the expenditure of these sums. She does not accept that he applied them to payment of matrimonial debt. She believes most of the funds still exist and that the husband retains these funds which he has not disclosed. The wife seeks to have these amounts included in the schedule as assets of the husband.

44The husband did not deny receiving the funds referred to above. In evidence he said that at the time the parties separated they had significant debt as follows:

•ANZ Mastercard $15,000

•ANZ Bank card $7,500

•[Suburb D] property loan and credit card $340,000

•Loan in respect of [Coastal Town J] property $360,000

•ANZ personal loan $10,000

•Members Equity personal loan $22,000 - $23,000

•Funds owed to husband's father $35,000 - $40,000

•Westpac credit card $14,000

45In relation to the rent received by the husband in respect of the Suburb D and Coastal Town I properties he said he applied most of it (apart from about two months) to loan repayments.

46The husband said the parties were "bad money managers" and his financial and mental state declined. He said he stopped repaying loans in April 2014 and intended to apply for bankruptcy, although ultimately did not do so.

47As to the disbursement of the Coastal Town I proceeds the husband said he felt the wife was not entitled to any of those proceeds because he was meeting the repayments on the loans and credit cards which were the parties' joint debts. Text messages between the parties established that the wife asked the husband to apply these funds to the shortfall in respect of the other properties. He did not do so.

48The husband provided a number of schedules containing a list of dates and amounts which he said he paid towards the parties' joint debt. These schedules became Exhibit 9. The wife questioned the veracity of these documents. She said she had not been provided with the source documents by way of appropriate disclosure. She questioned these payments, particularly as the husband said he stopped making all repayments in April 2014, yet these schedules contain some payments made after that time. I accept the payments referred to in these schedules were probably made by the husband. What he did however was to meet ongoing repayments of various debts instead of applying the Coastal Town I proceeds to the joint loss arising upon the sale of the other two properties.

49In late 2013 the husband bought a motor cycle for $14,000. He said he borrowed that money from his father who gave him cash. By this time he had received the Coastal Town I proceeds. His evidence regarding the purchase of the motor cycle was not convincing. The motor cycle was subsequently written-off and he received an insurance payment of between $8,700 and $9,000. The husband said the insurance payout was applied to loan repayments.

50I am not persuaded that the husband has hidden funds. The parties had significant debt at the time of separation. Part of the funds received by the husband has been applied to loan repayments and joint expenses, but otherwise they have been applied to his own purposes. At this time the husband was in employment earning up to $200,000 per annum.

The husband's redundancy payment

51On 6 March 2015 the sum of $141,133 was credited to the husband's Westpac account. This included his redundancy payment of $135,467. On 6 March 2015 the balance at credit of the husband's account was $142,276.

52By the time the wife's application came before the court on 13 March 2015, just a week later, the balance of the husband's account was $2,000. Therefore by the time the orders were made restraining him from accessing his redundancy payment, he had already done so.

53The husband provided a schedule of his expenditure of the redundancy payment. It appears from that schedule that he repaid a number of debts in his name, including those which were outstanding at the date of separation. What he did not do however, was to pay the shortfall on the sale of the Suburb D and Coastal Town J properties which were joint debts.

54In relation to the Coastal Town J property he negotiated a settlement in respect of one half of that debt with the creditor and paid the sum of $10,000. As a consequence of that he is no longer pursued for the balance, but $33,955 remains outstanding, a debt which although joint, he attributes to the wife.

55Both the wife and the husband are responsible for the shortfall on the Suburb D property, currently at $57,422.

56The wife's point is that the husband paid out debt in his name, leaving joint debt outstanding when he had the funds available to him to meet these debts.

57Some, but not all, of the husband's expenditure of the redundancy payment was reasonable. He paid out loans and credit cards, debts which had been outstanding since separation, together with other credit card and loans obtained by him since separation, including a loan from his father. Of his redundancy payment $79,584 was applied to such debt as follows:

•ANZ personal loan $3,894

•Father – personal loan $12,152

•ANZ credit cards $21,102

•Bank of Melbourne credit card $4,058

•Genworth financial ([Coastal Town J] shortfall –

negotiated reduction on 50% share) $10,000

•Members Equity personal loan $15,508

•Westpac credit card $11,415

•Commonwealth credit card $1,455

58Apart from a payment of child support of $2,844 the balance of the funds of about $53,039 were applied to the husband's use including his own living expenses.

59The husband said with respect to a number of cash withdrawals from his Westpac account that his father held about $48,000 in cash on his behalf. Of that, $12,000 was in repayment of a loan to the father, with the balance of approximately $36,000 held for him and provided to him on a need basis. The husband said he was unemployed for a period of six months after receiving his redundancy payment and his father gave him money as and when required.

60The wife questioned the husband about [an overseas] holiday, but he said it had been partially paid for and only about $2,000 came from his redundancy.

61There is no doubt that the husband withdrew most of the redundancy payment prior to the court hearing. I accept he paid off a number of matrimonial debts, but largely he paid those which were in his sole name and not those for which he and the wife were jointly liable. In doing so, the wife was denied the opportunity to seek orders from the court as to the disbursement of these funds and the priority in which they were to be applied.

62I am required to identify the existing interests of the parties in their property. I cannot be certain that these funds still exist and I doubt whether they do. In the circumstances I do not intend to include these amounts or any of them, in the schedule as assets of the husband. I will take the husband's redundancy payment into account when I consider the parties' post-separation contributions. To the extent that the payment was applied to the husband's personal expenses and not joint purposes, or has not been accounted for, I will take that into account when considering matters relevant to s 75(2) of the Act.

63I find the property of the parties to be as set out in the schedule below.

ASSETS	Owner	Value
[Ford] motor vehicle	W	$3,000
Household contents	W	$5,000
Westpac Bank	H	$525
ME Bank	H	$620
Household contents	H	$5,000
Tools and musical equipment	H	$5,000
Bankwest account	W	$105
Bankwest account savings	W	$250
Total Assets	$19,500

LIABILITIES
Bankwest personal loan	W	$27,572
St George Visa credit card	W	$2,000
Bankwest Mastercard	W	$2,000
GE credit card	W	$4,000
Genworth - shortfall [Coastal Town J property]	J	$33,955
Bluebay Financial	J	$19,995
Macquarie Leasing	H	$15,022
Genworth - shortfall [Suburb D property]	J	$57,422
HELP Debt	W	$15,052
Student Financial Supplement Scheme	W	$7,643
Total Liabilities	$184,661
Total Net Assets	-$165,161
Superannuation
GESB superannuation	W	$39,061
GESB superannuation	H	$247,311
Media super	H	$9,251
Total Superannuation	$295,623
Total Net Assets and Superannuation	$130,462

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

64The parties separated over five years ago. The parties no longer own real estate, but are jointly responsible for debts arising from the sale thereof.

65The parties' liabilities exceed their assets although the husband has significant superannuation entitlements of which the wife seeks a share. Both parties propose a superannuation splitting order. It would be unfair to the wife for the husband to retain his entire superannuation interests without division.

66In these circumstances I find it is just and equitable to make a property settlement order.

CONTRIBUTIONS

67The parties agree that their contributions in their different spheres to date of separation were equal. Having considered the evidence, I agree with that assessment.

68After separation the wife continued to have the primary care of the children. She lived in rented accommodation. The wife made the repayments on the personal loan. For a number of months she made contributions to the Coastal Town J property home loan. She was earning approximately $50,000 per annum. She was in a de facto relationship between 2013 and 2015.

69After separation the husband paid child support, although not always the amount due. Initially he lived in the Suburb D property, but subsequently rented it out and moved in with his parents.

70The husband was in employment earning up to $200,000 per annum. He worked hard. He made some loan repayments. The husband received a redundancy payment, to which the wife contributed indirectly. Part of that redundancy payment was applied to matrimonial debt and to the extent that it was not, I will consider it under s 75(2)(o).

71The wife continues to be the primary carer of the children. The husband pays child support.

Assessment of contributions

72In assessing contributions I have not taken into account any financial misconduct on the part of either party and I deal with that when considering matters relevant to s 75(2).

73The parties' contributions to date of separation were equal. Since separation I consider the husband has made greater contributions primarily by reason of his receipt of the redundancy payment. Having considered the parties' differing contributions from the commencement of cohabitation to date of trial, I find contributions should be assessed 55% to the husband and 45% to the wife. The effect of this finding is that the husband is entitled to receive property to a value of $71,754 and the wife is entitled to receive property to a value of $58,708.

RELEVANT S 75(2) FACTORS

74The husband is 39 years of age. He is [a technician]. The wife is 38 years of age. She is [a nurse].

75Neither party deposes as to their respective states of health, although they address this in their Papers for the Judge. The wife suffers chronic regional pain syndrome from a workplace injury and has developed depression. She is only able to work three half days per week due to severe pain and her permanent position [of employment] is uncertain.

76The husband suffers depression which he manages on a day to day basis. This does not appear to impact upon his earning capacity.

77The husband is in receipt of a total average weekly income of $1,250. Currently the husband works overseas and said he earns $65,000 for the part of the year that he works. He receives allowances. During the marriage he earned up to $200,000 per annum. He has a significant earning capacity. The wife is in receipt of weekly earnings of $993. She receives family tax benefit of $274 per week and child support from the husband of $224 per week.

78The standard of living of both parties is modest. I accept the wife struggles financially.

79The parties' property is as set out in the schedule above.

80The wife has the care of the children aged 15 and 18 years. Both parties rent accommodation. The husband pays rent of $200 per week and at times lives at the home of his parents. The wife pays rent of $360 per week.

81The wife is in receipt of Centrelink benefits. The parties have the superannuation interests referred to above.

82During the relationship the parties lived beyond their means. They incurred significant debt which remains and in respect of which neither party has the means to pay. The wife has yet to complete her [Bachelor of Nursing] degree and hopes to do so and qualify as a nurse, which in turn would enable her to increase her income.

83The parties' relationship lasted 15 years. During that time the wife was the primary carer of the children enabling the husband to remain in employment, including working away from home to increase the parties' income. Neither party cohabits with any other person.

84The husband pays child support in respect of the two children, the elder of whom turned 18 in 2017.

85I now turn to consider any fact or circumstance which in the opinion of the court, the justice of the case requires to be taken into account.

86This requires an assessment of the husband's use of funds available to him after separation. He had at his disposal the sale proceeds of the Coastal Town I property, his significant earnings and subsequently his redundancy payment. These were funds to which the wife had contributed. Up to a point the husband met the repayments on the significant debts at separation. Within a week of receiving the redundancy payment the husband disposed of the funds and in doing so deliberately placed them beyond the reach of the wife. Subsequently with part of the redundancy payment he repaid a number of debts, including joint debts such as credit cards and loans, mostly those in his sole name. What the husband did not do was to pay the shortfall on the sale of the Coastal Town I and Suburb D properties when he had funds available to do so. The consequence of that is both parties are left with the joint debt. Not all of the husband's expenditure was reasonable. Having received funds he was able to live comfortably, when the wife was not. In many respects his expenditure was reckless and wasteful and in evidence he acknowledged as much.

87The husband's financial dealings with his father are not straightforward and cannot be verified. Understandably the wife is left questioning the borrowings from and repayments to the husband's father.

88The husband's unilateral expenditure of joint funds, in particular the Coastal Town I property proceeds and the redundancy payment deprived the wife of an opportunity of having those funds applied to the debts which now remain. The parties are now left with debt which each says they are unable to pay.

89This is a circumstance which warrants an adjustment in favour of the wife.

Assessment of s 75(2) factors

90I consider the most relevant s 75(2) factors to be:

• the wife's care and control of the children;

• the husband's superior earning capacity; and

• the husband's financial misconduct.

91Taking into account the s 75(2) factors as a whole, in my discretion I consider an adjustment of 35% in favour of the wife is appropriate. The overall distribution of property will be 80% to the wife and 20% to the husband. There is a disparity of 60% or $78,277.

JUST AND EQUITABLE

92I now consider the practical effect of the orders.

93The wife is entitled to 80% of the parties' property, which is property to a value of $104,370. The husband is entitled to 20% of the parties' property, which is property to a value of $26,092. The circumstances of this case concern the allocation of responsibility for payment of debt as much as it relates to the division of property.

94The wife's financial circumstances are parlous. She is in receipt of a low income and her future working life is uncertain. She has the care of the two children of the marriage for whom she must provide accommodation and financial support. She has little hope of repaying her own debts in the near future, let alone contributing to the joint debts. This is particularly galling for her in circumstances when the husband has had funds available to him to do so. In her closing submissions, the wife said she would like to be free from debt and the stress that comes with the debt.

95The husband currently works overseas for about three quarters of the year. His accommodation and subsistence are reimbursed to him while overseas. He has a significant earning capacity having earned up to $200,000 per annum in the past. He pays child support, but other than that has no dependants.

96The husband was able to negotiate a significant reduction on what he considered to be his 50% share of the shortfall on the Coastal Town J property. It may be that he will be able to do the same again and negotiate a reduction in the sum due in respect of that and the Suburb D property. Having regard to the husband's superior financial position, it is more likely he will be in a position to manage the outstanding debts than the wife. Having regard to his expenditure of funds, it is just and equitable that he bear the responsibility for doing so.

97I therefore intend to order that the husband be responsible for payment of and indemnify the wife against any liability for the remaining joint debts, namely the shortfall on the Coastal Town J and Suburb D properties and the Bluebay financial debt.

98In so ordering the wife will receive less of the husband's superannuation than she might otherwise have done, had she retained a greater part of the debt.

99In the difficult circumstances of this case, where there are few assets, significant debt and the parties' property comprises superannuation which they cannot access, I am satisfied the orders I propose to make are those which are just and equitable.

100Neither party is able to access superannuation at this time. It would not be just and equitable to order the wife to receive a greater sum by way of superannuation and to retain debts in respect of which she has no hope of paying.

101In terms of liabilities the husband will be left with responsibility for payment of joint liabilities in the sum of $111,372 as referred to in paragraph 97 above. The wife's share of joint liabilities will be $23,235. The husband therefore retains $88,137 more of the joint debt than the wife. Funds available to the husband from the Coastal Town I property and the redundancy payment (to the extent it was not applied to debt repayment) well exceeded this amount. I have not overlooked that the husband applied some funds to his reasonable living expenses however his financial irresponsibility renders it appropriate that he meet the greater share of the parties' debt.

102The wife retains the following:

[Ford] motor vehicle	$3,000
Household contents	$5,000
Bankwest account	$105
Bankwest account	$250
GESB Superannuation	$39,061
Total	$47,416
Less
Bankwest personal loan	$27,572
St George Visa	$2,000
Bankwest Mastercard	$2,000
GE credit card	$4,000
HELP debt	$15,052
Student Financial Supplement Scheme	$7,643
Total	$58,267
TOTAL NET ASSETS AND SUPERANNUATION	-$10,851

103The husband retains the following:

ME Bank	$620
Westpac Bank	$525
Household contents	$5,000
Tools, musical instruments	$5,000
Media Superannuation	$9,251
GESB Superannuation	$247,311
Total	$267,707
Less
Genworth – shortfall [ Coastal Town J property]	$33,955
Bluebay Financial	$19,995
Macquarie Leasing	$15,022
Genworth – shortfall [Suburb D property]	$57,422
Total	$126,394
TOTAL NET ASSETS AND SUPERANNUATION	$141,313

104If each party retains the property as set out above, the wife has property of -$10,851 and the husband has property of $141,313. To achieve the percentage division ordered the husband will have to pay to the wife the sum of $115,221. There will have to be a superannuation splitting order in respect of the husband's GESB Superannuation such that the wife receives superannuation to that value.

105In the all the circumstances I am satisfied that orders giving effect to the adjustment of the parties property in this way are those which are just and equitable.

THE PROPOSED ORDERS

1Pursuant to s 90MT(4) of the Family Law Act 1975 (Cth) ("the Act") the base amount of $115,221 be allocated to the wife in respect of the husband's superannuation interest in the GESB Superannuation Fund ("the Fund") and pursuant to s 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest, the wife is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) ("the Regulations") in respect of that base amount and there is a corresponding reduction in the entitlements of the husband.

2That the Trustee of the Fund ("the Trustee") do all such acts and things and sign all such documents as may be necessary to:

(a) calculate, in accordance with the requirements of the Act and the Regulations the entitlement awarded to the wife in the preceding order; and

(b) pay the entitlement whenever the Trustee makes a splittable payment from the husband's interest in the Fund.

3The wife shall cause a sealed copy of these orders to be served upon the Trustee of the Fund within 7 days.

4These superannuation orders have effect from the operative date.

5The operative date for the purpose of the superannuation orders is the fourth business day after the date of service of a sealed copy of the orders upon the Trustee.

6The Trustee have liberty to apply in relation to the implementation of these orders on short notice to the parties.

7Unless otherwise specified in these orders each party be solely entitled to the exclusion of the other to all property in the possession of such party as at this date.

8The husband be responsible for payment of the debts being collected by Genworth Financial Mortgage Insurance Pty Ltd, case numbers [XXXXX ] and [XXXXX ], being the shortfall in the sale of the [Coastal Town J] and the [Suburb D] properties and indemnify the wife and keep the wife indemnified from all liability for said debts.

9Each party be solely liable for and indemnify the other against any liability in their respective names.

10The parties do all acts and things necessary to give effect to the orders made herein.

11The parties have liberty to apply with respect to the implementation of the orders made herein.

12The application and response be and is hereby dismissed.

13In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;

(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

14In the event of an appeal being lodged prior to the expiration period of 42 days, order 13 above does not apply.

15The contravention application filed 28 June 2017 be and is hereby dismissed.

I certify that the preceding [105] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate