Pillai and Doshi (No. 3)
[2011] FamCA 165
•8 March 2011
FAMILY COURT OF AUSTRALIA
| PILLAI & DOSHI (NO. 3) | [2011] FamCA 165 |
| FAMILY LAW - PROPERTY SETTLEMENT – Division of property – Former matrimonial home sold and proceeds held on trust – Previous costs orders – Alleged loans and other liabilities – Add-backs – Minimal asset pool – Just and equitable division FAMILY LAW - PROPERTY SETTLEMENT – Superannuation – Splitting orders sought FAMILY LAW - PROPERTY SETTLEMENT – Domestic Violence – Apprehended violence order and domestic violence issues – Relevance to assessment of the parties’ contributions FAMILY LAW - CHILD SUPPORT – Child support departure order sought FAMILY LAW - SPOUSAL MAINTENANCE – Application for periodic spousal maintenance |
| Family Law Act 1975 (Cth) – s 75(2), s 75(2)(na), s 75(2)(o), s 75(3), s 79, s 79(2), s 79(4), s 117, s 117(2A) |
| Bulleen v Bulleen (2010) 43 Fam LR 489; [2010] FamCA 187, discussed C & C [1998] FamCA 143, applied Ferguson & Ferguson (1978) FLC 90-500; (1978) 4 Fam LR 312, cited Hickey & Hickey (2003) FLC 93-143; (2003) 30 Fam LR 355, applied JEL v DDF (2001) FLC 93-075; (2001) 28 Fam LR 1, applied Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21, applied Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17;(1986) FLC 91-712, applied Pierce v Pierce (1999) FLC 92-844; (1999) 24 Fam LR 377, cited AJO & GRO (2005) FLC 93-218; (2005) 33 Fam LR 134, cited |
| APPLICANT: | Mr Pillai |
| RESPONDENT: | Ms Doshi |
| FILE NUMBER: | DGC | 664 | of | 2007 |
| DATE DELIVERED: | 8 March 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Young J |
| HEARING DATE: | 7 & 8 February 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Ms McCreadie |
| SOLICITOR FOR THE RESPONDENT: | Perry Weston |
ORDERS
IT IS ORDERED:
THAT the net proceeds of sale and all interest accrued thereon (“the sale proceeds”) from the former matrimonial home at … N in the State of Victoria be applied as follows:
(i)first to pay to the wife’s solicitors, on behalf of the wife, a sum of $5,330 on account of previous costs orders pronounced in these proceedings;
(ii)secondly to repay a sum of $2,900 to the Westpac MasterCard, held in the sole name of the husband, in reduction of its liability;
(iii)thirdly to pay to the wife a sum of $5,000 to offset that like sum earlier paid to the husband pursuant to Court order as a partial settlement of property;
(iv)fourthly to divide the balance:
§as to the wife - 65 per cent
§as to the husband - 35 per cent (but subject to order 2)
THAT from the husband’s 35 per cent share of the sale proceeds, and before any distribution to him thereof, a sum of $7,000 be first paid out to the wife’s solicitors on behalf of the wife as her fixed and final entitlement to share in the husband’s superannuation entitlements in R Super and thereafter her claim or right to claim against any of the husband’s superannuation and all other work entitlements be dismissed and the husband be solely entitled to retain all such benefits.
THAT the husband be and remain solely liable for and responsible to repay the following liabilities:
§the Westpac MasterCard;
§the GE credit line;
§his parents;
§Mr K;
§his sister, Ms C; and
§S Limited (his employer).
THAT subject to orders 5 and 6 the husband and wife each retain all furniture, chattels, motor vehicles and other household items now in their respective possession.
THAT within fourteen (14) days the husband deliver or cause to be delivered to the wife’s solicitors, in good order, the wife’s engagement ring, necklace and bracelet(s).
THAT within fourteen (14) days the husband upload onto the USB stick a substantial number of photographs of the children at all ages, and of the parties’ marriage and other significant events, and provide that to the wife’s solicitors on her behalf.
THAT otherwise the husband and wife be each responsible for any other debt, liability or outgoing incurred by them and owing in their name and indemnify and keep indemnified the other in respect thereof.
THAT the legal costs and disbursements of and incidental to this hearing of both parties be reserved (and as was ordered in the children and parenting proceedings) pending application or further hearing.
THAT otherwise all extant applications of the husband and wife be dismissed inclusive of all of the orders sought by the husband in paragraphs 1 to 16 (inclusive) of the husband’s submissions for final orders as identified in the Court Index Document No. 130 now filed with the Court.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.
IT IS NOTED that publication of this judgment under the pseudonym Pillai & Doshi (No. 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 664 of 2007
| MR PILLAI |
Applicant
And
| MS DOSHI |
Respondent
REASONS FOR JUDGMENT
ISSUE
The Court was requested to determine a division of the modest cash, other assets and superannuation of the parties, balanced against an assessment and discharge of financial and alleged family liabilities.
SPLIT HEARING
I have previously heard the children and parenting proceedings between these parties. That was a five day hearing immediately prior to Christmas 2010 and concluding on 5 January 2011. I delivered reasons for judgment and pronounced orders on 3 February 2011.
I recorded in my reasons for judgment the necessity for this split hearing and this judgment is therefore concerned with the property and financial orders sought by the parties and the child support issues raised in the proceedings.
ORDERS SOUGHT
Wife
It was agreed that the wife would be the applicant in these proceedings.
By her amended amended response to the initiating application of the husband, filed 5 January 2011, the wife sought the following orders (in summary):
(a)that the proceeds of sale of the former matrimonial home, currently held on trust for the parties by the wife’s solicitors, be applied as follows:
§as to the wife – 70 per cent of the monies now remaining in that trust account;
§as to the husband – the balance of 30 per cent thereof save that, from his share, he pay to the wife all of the costs ordered to be paid or reserved and as are identified in paragraph 124 of the wife’s affidavit filed 5 November 2010;
§an equal division of the husband’s remaining superannuation entitlements;
§otherwise for each of the parties to retain all chattels, motor vehicles and other personal possessions as are each now in their respective possession.
The wife’s case was opened on the basis that a breakdown of the 70 per cent division sought was that, over and above any equal division of property the wife should receive an additional 5 per cent on the basis of her s 79(4) contributions and a loading of 15 per cent by way of her substantial s 75(2) factors.
Husband
The final orders sought by the husband were identified in his written submissions and in the “Submissions for Final Orders for Property as Sought by the Applicant Husband” document filed 5 January 2011 (Court Index Document No. 130).
The orders therein sought by the husband, in summary, were as follows:
§that all previous costs orders be discharged;
§that the wife pay all court costs and legal costs and disbursements of all proceedings in this Court incurred by the husband subsequent to the filing of his initial application for final orders;
§that the balance of monies remaining in the solicitor’s trust account be apportioned as follows:
§95 per cent in favour of the husband and to be paid to him forthwith;
§5 per cent in favour of the wife;
§that each party forego any claims they may have to any superannuation benefits belonging to the other and in default that sum of the husband’s superannuation contributed during the marriage, being $7,300, be the only amount of superannuation to be equally split between the parties;
§that the wife pay the husband $68,050 pursuant to paragraphs 11 and 12 of the husband’s affidavit dated 31 October 2010;
§that the wife pay the husband an additional sum of $40,000 pursuant to paragraph 14 of his affidavit dated 31 October 2010;
§that the wife or her solicitors pay any shortfall in the reserve price of the sale of the former matrimonial home, that is a sum of $11,000;
§that the wife pay all of the costs of and incidental to the sale of the matrimonial home;
§that the wife pay all Legal Aid costs, fees and expenses, previously deducted upon settlement of the sale of the former matrimonial home, insofar as they exceed $10,000;
§that the wife, in breach of paragraph 6 of the orders made 19 November 2010, pay to the husband forthwith all interest accrued by him on his borrowings, at a daily rate of 15 per cent for the loans taken by him to find alternate accommodation;
§that a departure order be pronounced from the Child Support Agency formula for child support payments and that all arrears, interest, costs and payments to that Agency be waived and the wife reimburse the husband for the interest and other charges that have been made by the Agency and which the husband has previously paid.
AFFIDAVITS RELIED UPON
Wife
The wife relied upon the following affidavits:
§her trial affidavit filed 5 November 2010;
§her earlier affidavit (as to superannuation interests) filed 4 January 2011;
§her Financial Statement filed 5 November 2010.
Husband
The husband relied upon the following affidavits:
§his affidavit of evidence in chief filed 13 September 2010;
§his further affidavit and evidence in chief filed 1 November 2010;
§his Financial Statement filed 12 August 2010;
§paragraph 2 of the affidavit of his father, filed 13 September 2010.
WRITTEN SUBMISSIONS
The wife’s solicitors filed on her behalf an Outline of Case, including detailed written submissions on all property and financial orders sought, that document being filed 16 December 2010.
The husband had filed various Case Outline documents and further written submissions and they are encompassed within documents numbered 128, 129 and 130 in the Court Index.
I have carefully read all written submissions filed by the parties in these proceedings.
BACKGROUND FACTS
In my earlier reasons for judgment in the children and parenting matters delivered 3 February 2011 I recorded in some detail all of the facts of and relevant to the marriage. I have relied upon and not repeated those facts in this judgment.
PREVIOUS COURT ORDERS
Property
On 24 February 2010 Cronin J ordered:
§that the husband transfer to the wife upon a trust for sale the former matrimonial home;
§that the wife forthwith arrange the sale of the property and appoint an agent for the purposes of that sale and the wife be responsible for determining the terms and conditions of such sale;
§that upon settlement of the sale of the former matrimonial home the proceeds be applied:
(a) first to pay all costs, commission and expenses of sale;
(b) secondly to discharge the mortgage to the Westpac Bank;(c)thirdly to pay Victoria Legal Aid such amount as is necessary to provide the purchaser of the real property a withdrawal of caveat;
(d)fourthly the balance thereafter to be paid into an interest bearing account in the joint names of the parties to be held by the solicitors for the wife on behalf of them both pending further order or agreement.
On 8 June 2010 I ordered as follows:
§that G Real Estate Agency of N be appointed to conduct the sale by auction of the property;
§that the auction be scheduled for 10 July 2010 or otherwise as agreed;
§that the reserve price be fixed at no less than $390,000;
§that the parties each cooperate in all ways with the appointed real estate agent to facilitate the sale of the property at the best achievable price;
§that the husband use his best endeavours to present the home and garden in a clean and tidy state and make available the home for open for inspection or organised inspections in cooperation with the real estate agent at all times.
On 1 October 2010 I further ordered:
§that the reserve auction price for the former matrimonial home be set at $379,000 for the purposes of the auction on 16 October 2010 or for any subsequent sale of the property and all previous Court orders be varied to provide for that reserve price;
§that the parties have the joint conduct of the sale save that the wife is not to be physically present within the house on the auction date but is to communicate and receive all instructions to and from the selling agent or auctioneer by telephone;
§that the parties may specifically agree to sell their home for a price less than the $379,000 reserve price, but only by informed agreement communicated to the auctioneer or real estate agent at the time of any proposed sale.
On 19 November 2010 I further ordered (in summary):
§that M Conveyancing Services be engaged to act on the sale and conveyance;
§that the wife forthwith sign all documents and do all acts and things necessary to request and obtain a release from the deposit monies in the sum of $5,000 to be paid immediately to the husband as a partial settlement of property;
§that the balance of the deposit monies are then to be held in trust pending a final property hearing;
§that the wife forthwith obtain at her cost and supply to the husband true and complete copies of all of her ANZ bank statements and her records and dealings with that bank for the period February to December (inclusive) 2007.
On 22 December 2010, and during the children and parenting hearing, I ordered that each of the husband and wife make, file and serve any amended application for division of property together with a single page balance sheet of assets and liabilities. I further directed that proper notice be immediately given by the wife to the trustee of the husband’s superannuation fund and their reply be provided to the Court as to the issue of any superannuation splitting order then sought.
Costs
There have been five previous costs orders which remain outstanding against the husband and they are:
(a)the order of 21 April 2010 where the husband was ordered to pay the wife’s costs of $470;
(b)the orders of 13 January 2010 where the husband was ordered to pay the wife’s costs of $470;
(c)the orders of 16 and 17 December 2009 where the wife’s costs were reserved;
(d)the orders of 30 July 2009 where the wife’s costs were fixed in the sum of $1,740 but the payment thereof reserved to the trial judge;
(e)the orders of 9 February 2009 where the husband was ordered to pay the wife’s costs of $1,720.
The husband has sought an order that all of the above orders for costs be rescinded. The wife has asked the Court to fix the reserve costs of 16 and 17 December 2009 and the payment of the costs ordered 30 July 2009.
As to the orders made 16 and 17 December 2009 the matter was then heard before Senior Registrar FitzGibbon. The husband was self represented and the wife was represented by her present Counsel. On 16 December 2009 the Senior Registrar reserved the costs of the wife and made orders requiring the children to be brought to the Melbourne Registry of the Court on that following day so that the hearing could resume and orders be made in the best interests of the children. On that following day the costs of the wife were again reserved.
I have carefully read both the orders of the Senior Registrar and his ex tempore reasons for judgment. It is clear from those reasons that the wife was substantially successful in her applications before the Court and orders made in her favour and it is on that basis that her costs were reserved, but not fixed.
Exhibit “WP7” was tendered by consent and it is the invoice of Counsel’s fees for her appearance on each of those two hearing days (although the invoice is wrongly dated 15 and 16 December 2009 and I accept that is a slip rule error). The amount claimed is $930. It is proper and just to allow that very reasonable amount for the disbursements on two days of hearing and I have therefore fixed the wife’s costs of those two days at $930 and have ordered that the husband pay those costs to the wife.
On 30 July 2009 the wife’s costs were fixed by Federal Magistrate Riethmuller in the sum of $1,740 but payment was reserved to the trial judge. I have read the orders of the Court made that day and again the wife was substantially successful. Her Counsel again appeared for her on that occasion and the husband was self represented.
I have carefully considered s 117 of the Family Law Act 1975 (Cth) (‘the Act’), and in particular subparagraph (2A) and I conclude that it is a just order to require the husband to pay the wife’s costs for both 16 and 17 December 2009 and 30 July 2009. I have considered the principle that each party should pay their own costs of proceedings save where it is just to order otherwise. I have concluded that a combination of financial circumstances of the wife, the husband’s conduct of the case and particularly the outcome that the husband had been wholly unsuccessful in those proceedings, all support the fixing and payment of costs for each of these past hearings. I have so ordered.
APPREHENDED VIOLENCE ORDERS
In my substantial reasons for judgment delivered 3 February 2011 in the children and parenting matter I recorded in paragraphs 68 to 75 (inclusive) the apprehended violence orders that the wife has obtained against the husband and which now continue in force pursuant to the orders made in the State Magistrates Court at Dandenong on 9 December 2010.
The husband has appealed that order and made reference in these proceedings to that appeal now being fixed for hearing in the County Court of Victoria in late March 2011.
Nevertheless the orders are current and the history of past violence and issues of and concerning the husband’s alcohol consumption have been very recently in evidence before me and are recorded in that judgment.
The wife has based her assessment of the division of property, in part, upon the effect of violence in the marriage on her and the greater difficulties that it caused her in both her role as homemaker and parent and generally in her contributions. I have further considered these matters hereafter in these reasons for judgment.
LITIGANT IN PERSON
The husband was again self represented and in my previous reasons for judgment I found that at all times the husband had a substantial factual knowledge of matters in issue. I then said that he had been accorded procedural fairness and I observed that he was firm and positive in the way in which he presented his submissions to the Court and asked questions of the wife and her witnesses. That again was the case and again the husband conducted himself very appropriately in the Court hearing and was at all times fully informed of all factual issues. I am wholly satisfied that he was given procedural fairness in the hearing and indeed his grasp of the financial detail and the factual history of all related matters was substantial.
I have incorporated within my reasoning paragraphs 78 to 84 (inclusive) of my earlier reasons for judgment where I reflected at some length upon the duties of the Court with litigants in person and the level of assistance that they reasonably require and may expect of the Court. All of those matters were wholly satisfied in this hearing.
FAMILY LAW ACT 1975 (CTH)
The proper approach to determining a section 79 application is now well established, both by the Act and by case law.[1]
[1]See In the Marriage of Steere (1985) FLC 91-626; In the Marriage of Davut & Raif (1994) FLC 92-503; In the Marriage of Clauson (1995) FLC 92-595), Mallet v Mallet (1984) 156 CLR 605; Hickey & Hickey (2003) FLC 93-143; In the Marriage of Waters & Jurek (1995) FLC 92-635 and Norbis v Norbis (1986) 161 CLR 513.
Section 79(2) requires that any order made by the Court must be just and equitable and provides that:
“[Just and equitable requirement] The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.”
Section 79(1) of the Act directs a Court to make such an order as it considers appropriate. Such an order must be just and equitable. As has recently been highlighted by Cronin J in Bulleen v Bulleen,[2] the process by which the Court determines such an order may appear arbitrary and without any particular arithmetical approach but that is the way in which the Act was drawn, proclaimed and has served our community from 1975. It is discretionary and His Honour has observed that “it is also not governed by morality but fairness”.
[2] (2010) 43 Fam LR 489 at paragraphs 34 to 45 (inclusive).
It is therefore a balanced and properly explained assessment by a trial judge having heard and carefully evaluated all of the admissible facts and evidence of what division of property and what other orders are to be made between the parties to achieve a just and equitable result. That is the process which I have carefully undertaken and explained within these reasons for judgment.
Primarily for the better understanding of the husband I have set out both the approach to s 79(4) issues of contribution and the relevant factors which I have considered within s 75(2) of the Act.
Section 79(4) involves a four step exercise which I have undertaken in this judgment, namely:
§the identification of the property of the parties, their assets and financial resources and the net of their liabilities;
§the evaluation of the “contributions” and s 79(4) issues;
§the evaluation of the matters referred to in section 75(2);
§a determination as to whether the result is just and equitable by reference to section 79(2) of the Act. In determining whether the outcome is just and equitable it is “the real impact in money terms which is ultimately the critical issue”.[3]
[3]JEL v DDF (2001) FLC 93-075 at [140] citing the Full Court In the Marriage of Clauson (1995) FLC 92-595 at 81,911.
In considering the alteration of property interests I have identified the net assets of the parties and then evaluated the very specific contributions, direct and indirect, financial and non-financial, and other contributions including that of homemaker and parent. I have throughout this judgment identified and incorporated within my consideration and evaluation all such issues and findings. The reference point for the just and equitable requirement is clearly emphasised by the decision of the Full Court in Hickey where it was said:[4]
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), (‘the other factors’) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all of the circumstances of the case.”
[4] Supra at [39], p 78,386.
I have emphasised in my approach the overriding obligation upon the Court to evaluate and properly assess all of the evidence for the purpose of pronouncing an order which is just and equitable.
There is a very significant obligation imposed upon the Court, in the exercise of its judicial discretion, to assess, balance and evaluate all contributions under the umbrella of s 79(4) and for the exclusive purpose of concluding a just and equitable order.
It is necessary for courts to assess both the “value” and “the quality with which any particular role was performed” and a very helpful assessment of this concept is developed by Warnick J in SL & EHL[5] and by Cronin J in Bulleen’s case.[6]
[5][2005] FamCA 132, in particular paragraphs 233 to 290 (inclusive).
[6] Supra.
The mandatory prescription of the Act is to evaluate contributions. In Pierce v Pierce[7] the Full Court per Ellis, Baker and O’Ryan JJ said:
“There is an obligation on the trial judge not only to identify the relevant contributions but also to assess them.”
[7] (1999) FLC 92-844 at [30], p 85,881.
It is not the purpose of the relevant provisions of the Act to “equalise the financial strengths of the parties”, per Wilson J in Mallet.[8] I have carefully safeguarded against utilising the provisions of s 79(4) of the Act as a “source of social engineering or as a means of evening up the financial positions of the parties” per Kennon v Kennon.[9]
[8] Supra.
[9] (1997) FLC 92-757 at p 84,303.
SECTION 75(2) FACTORS
The relevant factors which I have considered and evaluated throughout this judgment are (in summary):
(a)the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
(f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or divorced, a standard of living that in all circumstances is reasonable;
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person –– the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na) 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; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
FAMILY VIOLENCE – LEGAL ISSUES
The question of whether family violence is relevant in the exercise of discretion in the division of property was discussed in Kennon.[10] Fogarty and Lindenmayer JJ reasoned that where there is a course of violent conduct by one party towards the other during a marriage, and it can be established that the conduct had an adverse impact on the latter party’s contribution to the marriage, it is a factor that can be taken into account in assessing the parties’ relative contributions to the marriage pursuant to s 79 of the Act.
[10] Supra.
Similarly, Baker J, in regard to this issue, said that domestic violence is a relevant factor in assessing the contributions of parties to a marriage, as the contribution of the party subject to the violence may have been more onerous due to the violence, and hence attract additional weight.[11]
[11]Kennon v Kennon (1997) FLC 92-757 at 84,329.
The majority in Kennon’s case specifically did not adopt an approach that involved the concept of “negative contributions”, preferring an approach that took into account the adverse impact of domestic violence on the contributions of the party subject to the violence:[12]
“Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.”
[12]Kennon v Kennon (1997) FLC 92-757 at 84,294 to 84,295, and the authorities discussed therein.
However, Fogarty and Lindenmayer JJ emphasised that:[13]
“It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).”
[13]Kennon v Kennon (1997) FLC 92-757 at 84,294.
The reasoning in Kennon’s case has been applied in a number of full court and first instance judgments and in decisions of the Federal Magistrates Court.[14] In particular, the Full Court in S & S[15] agreed with the trial judge’s articulation of the relevant law and application of the principals established in Kennon.[16] The Court noted that if the test in Kennonis established it is necessary to provide evidence to substantiate “[t]he incidence of domestic violence; [t]he effect of domestic violence; and [e]vidence to enable the court to quantify the effect of that violence upon the parties capacity to “contribute” as defined by section 79(4).”[17] It is apparent that if the test in Kennon is established and the evidence is provided to substantiate the effect of domestic violence on a party’s capacity to contribute, it is relevant to the assessment of the party’s contribution under s 79 of the Act.
[14]See the Full Court decisions of Bormann & Bormann [2003] FamCA 274 at [75]; S & S [2005] FamCA 1304; (2005) FLC 93-246; Morgan & Morgan [1999] FamCA 13 per Kay, Holden and Dawe JJ at [53]; H & H [2005] FamCA 42 per Kay, Holden and Boland JJ at [71]. See also first instance authorities in which this Court found that domestic violence did impact on the contributions of the party subject to the violence: Whelan & Whelan [2010] FamCA 530 at [159], [177]; c.f. Spence & Spence [2008] FamCA 263 per Strickland J at [163]; Krugar & Krugar [2010] FamCA 17 at [3]. See also the Federal Magistrates Court decisions of Campion & Campion [2008] FMCAFam 667 at [47]; and Oliver & Gall [2008] FMCAFam 164.
[15][2003] FamCA 905.
[16]S & S [2003] FamCA 905 per Kay, May and Carter JJ at [38] to [41], [44], [45] and [46] referring to the reasoning of Fogarty and Lindenmayer JJ in Kennon v Kennon (1997) FLC 92-757 at 84,294 to 84,295.
[17]S & S [2003] FamCA 905 per Kay, May and Carter JJ at [47].
Section 75(2)(o) was also referred to by the majority in Kennon’s case in discussing the history of legislation relating to divorce and the division of property:[18]
“Section 79 replaced the previous s 86. It made no explicit reference to conduct one way or the other but it did include the rather enigmatic provision in s 75(2)(o) that the Court take into account:
“any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.”
The early decisions of this Court were quick to adopt the view that “conduct” was no longer a relevant matter under s 79.”
[18](1997) FLC 92-757 at 84,291 to 84,292.
Fogarty and Lindenmayer JJ discussed Ferguson & Ferguson[19] in which the Full Court concluded that the primary judge erred in taking into account the conduct of the husband relating to the breakdown of the marriage, relying on s 75(2)(o), in proceedings instituted pursuant to s 79 of the Act.[20] The Full Court noted that “matrimonial fault in the general sense is not to be taken into account [under s 79]”[21] but included within s 79 is conduct which has “diminished or destroyed the property… or has otherwise resulted in the diminution of the value of the property” and is a relevant matter under s 75(2)(o).[22] The majority in Kennon noted that there “is little to disagree with” in Ferguson and that the principle had been “substantially developed” in subsequent authorities.[23]
[19](1978) FLC 90-500.
[20](1997) FLC 92-757 at 84,292.
[21](1978) FLC 90-500 at 77,607.
[22](1997) FLC 92-757 at 84,292
[23](1997) FLC 92-757 at 84,292 citing Kowaliw & Kowaliw (1981) FLC 91-092; Hack & Hack (1980) FLC 90-886; Barkley & Barkley (1977) FLC 90-216; Antmann & Antmann (1980) FLC 90-908; Benson & Benson (1984) FLC 91-584; Fane-Thompson & Fane-Thompson (1981) FLC 91-053 and Townsend & Townsend (1995) FLC 92-569.
ADD-BACKS – CASE LAW
Each of the husband and wife’s case was conducted on the basis of various financial adjustments or add-backs, and the parties both sought to establish that the other had unfairly benefited from monies received, or otherwise should not be entitled to repay expenses with the monies they had received.
I have hereafter evaluated all of the evidence touching upon these financial dealings, adjustments and add-backs and have done so with the approach that a factual assessment was required of the reasonableness of all of the parties’ actions.
In M & M[24] per Baker, Kay and Chisholm JJ it was said that:
“There seems to be no appropriate basis for notionally adding back monies that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law required at parties going to a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support”.
[24] [1998] FamCA 42.
This decision of M & M[25] was favourably quoted by the Full Court in C & C[26] per Nicholson CJ, Ellis and Kay JJ where they said “whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post separation in a manner that is consistent with properly getting on with their lives.”
[25] Supra.
[26] [1998] FamCA 143.
In AJO & GRO[27] the Full Court per Holden, Warnick and Le Poer Trench JJ found that the trial judge had incorporated a number of add-backs without making any specific finding that the expenditure of the husband was wanton or reckless. They found that to justify an add-back it was required that the judge make an assessment of the reasonableness of the expenditures, and that had not occurred.
[27] (2005) FLC 93-218.
Accordingly I have concluded that it is not proper or reasonable to add-back to the net pool of assets monies that have been spent or transferred or that cannot be adequately identified. I have carefully analysed the liabilities claimed, and have disallowed many of them, and have not allowed the repayment of monies by the husband to his family and friend.
POOL OF ASSETS
The wife filed a one page balance sheet of her assets and liabilities on 5 January 2011. The husband prepared his balance sheet of assets and liabilities, and it is exhibit “HP7” in the proceedings. It was not otherwise separately filed as a document with the Court.
Assets
The assets of the marriage are modest and were finally agreed to be:
§proceeds of sale of the former matrimonial home $117,624
§husband’s motor vehicle $1,000
§bank account in wife’s name $4,500
§husband’s current superannuation entitlements $54,735
$177,859
The husband had initially sought to include furniture and chattels within the home but as the case progressed there was no dispute that each of them would keep the furniture and chattels now in their respective possession and particularly the husband would retain the lounge suite and bed purchased with the assistance of the GE line of credit. Jewellery was a separate issue and I have made certain orders for items to be returned.
It was agreed that the husband would retain his motor vehicle and I have excluded that asset from my considerations.
In his final submissions the husband did not seek to include the monies retained by the wife in her bank account that is $4,500. These monies arose from either transfers of the children’s money held in a trust account on their behalf or from further savings of the wife post separation from her family allowance payments. I have subsequently concluded that the wife should retain these monies and that is a just and equitable outcome.
The husband asserted that the wife’s past superannuation entitlement of approximately $5,000 should be included within the pool of assets. That entitlement had been surrendered many years ago and ultimately the husband did not pursue his application in that regard.
The wife’s Counsel, in submissions, sought to add-back to the pool of assets the sum of $10,000 that the husband, on the advice of his bank, had released from his superannuation on the basis of hardship. I have discussed that issue at length hereafter but my conclusion is not to add-back that sum of money to the pool of assets. It was not a financial benefit to the husband given that the monies were used to reduce mortgage liabilities and other credit card payments.
The husband did have the benefit of a $5,000 partial distribution of property pursuant to an earlier order I had made, as earlier referred to in these reasons for judgment. Those monies have been brought to account in my judgment.
The final issue that I now identify was the required repayment of $8,000 that the wife made to her sister from monies withdrawn by her from the children’s trust account fund. On balance I have determined not to add-back that sum to the pool of assets but I am wholly aware of the circumstances of that withdrawal and payment, and it is a matter that I have carefully balanced in determining the appropriate division of property and a just and equitable order.
Liabilities
The parties did not agree on various liabilities that the husband submitted should be deducted from the pool of assets. These liabilities were predominantly past loans taken out, largely to the benefit of the husband in times prior to the marriage, or more recently and after separation. A summary of these alleged loans are as follows:
§ his parents $20,000
§ Mr K $10,000
§ Mr K $6,750
§ Ms C $5,500
§ Ms C $2,000
§ S Limited (employer) $6,300
$50,550
The husband has three credit cards and sought that their liabilities be paid out of the available assets. Those liabilities were:
§ Westpac MasterCard $16,400
§ GE line of credit $3,610
§ Westpac personal loan $10,000
$30,010
That Westpac personal loan liability has been discharged and therefore has not been accepted by me in a determination of the proper pool of assets net of liabilities.
THE FORMER MATRIMONIAL HOME
The former matrimonial home had been purchased in December 2004 for $241,500. The Westpac Bank (“Westpac”) provided a registered first mortgage of $234,000 and the parties therefore contributed $7,500 in equity. The additional costs of the purchase including stamp duty were approximately $16,000.
The husband had implied that there were agreed conditions to the purchase of this home and that was the wife would immediately obtain employment and financially contribute to mortgage payments. The wife denied any such agreement and I accept her evidence. In any event with one young child at that time and with her not having worked in this country before she had very limited prospects of employment in those circumstances that existed at the time.
The parties borrowed $10,000 from the husband’s sister, Ms C for those additional costs. Thereafter the parties borrowed that sum of money from Westpac and repaid the husband’s sister in full. That Westpac personal loan was identified in exhibit “HP7” as the 2005 borrowing of $10,000 but it has been wholly repaid.
In February 2010 the husband was advised by Westpac to apply for a hardship payment from his superannuation with R. Upon application he was paid $9,186 and those monies were used as to approximately $5,286 to discharge the then accrued arrears of mortgage instalments and otherwise as to approximately $3,900 to reduce his MasterCard debt, his GE Credit line and other personal payments that were then in arrears.
The husband negotiated with Westpac to pay only 50% of the mortgage instalments in the years 2009 and 2010. It was the arrears accumulated as a result that then required the release of part of his superannuation monies to be obtained and paid out in discharge of accumulated liabilities. Exhibit “HP5” is a letter from the conveyancing firm engaged by the parties advising as to the particulars of the Westpac mortgage liability as at 11 December 2010. The loan was then a further two months in arrears, that is for the months of October and November of 2010. A default interest rate of 9.16 per cent per annum was then applicable, and that was 2 per cent greater than the home loan rate that would have applied if all payments were current.
I have found that it would not be proper to add-back that superannuation advance to the asset pool, and specifically as an asset of the husband. It was wholly expended. Likewise I have considered all of the evidence, but will not add-back to the asset pool any arrears of mortgage payments incurred by the husband, post separation, whilst he was living in the former matrimonial home. In doing so I am mindful of the husband’s income, the child support payments that were being deducted by the Agency in late 2010, and generally the earlier monies that the wife had withdrawn from the trust account and monies that she had repaid to her sister. On balance I will not recreate an amended pool of assets by making adjustments for mortgage payments in default notwithstanding that I fully understand that the husband and his parents had the benefit of living in the former matrimonial home and that the wife was required to obtain Department of Housing elsewhere at a rental cost of $127 per week.
The former matrimonial home was initially offered for sale in mid June 2010 but did not sell at auction and there were no subsequent negotiations. The parties retained the same firm of real estate agents and again offered the property for sale by auction on 16 October 2010. It failed to sell at that auction but sold in private negotiations after that auction at the Court ordered reserve price of $379,000.
Exhibit “HP1” is the settlement statement of the sale prepared by the appointed conveyancing service and the various expenses paid at settlement are detailed therein and are a matter of agreement.
The agent’s commission and GST thereon was $7,580.
Victoria Legal Aid were paid their costs of $21,279 and then withdrew their caveat lodged against the title to the former matrimonial home so as to facilitate the settlement.
Westpac were paid a total mortgage discharge sum of $225,423.
There were other fees, costs and charges as per that settlement statement all of which were agreed. That included arrears of Council Rates and interest of $1,707 and outstanding water charges in a modest sum. I have determined not to adjust these other arrears as against the husband and have treated these property expenses on the same basis of the arrears of mortgage. They are however matters that I have generally reflected upon in determining a just and equitable outcome.
The husband was paid $5,000 as the Court ordered partial settlement and those monies have been brought to account in these proceedings.
Ultimately the balance of purchase monies and the balance of the deposit monies were consolidated in the wife’s solicitor’s trust account, pursuant to that earlier Court order and the sum that now remains invested for the parties is approximately $117,624 and interest is continuing to accrue on that amount.
The wife’s final submissions before the Court highlighted that the husband was in occupation of the home, with his parents, from the date of separation until the settlement of its sale. On that basis it was argued that he should have paid all mortgage instalments and all other rates and outgoings for the home and any liability for unpaid monies or the increased mortgage debt should be his sole responsibility. On the other hand the husband argued that his income was insufficient to support himself, the home and his parents, and service all of the liabilities of the family and that there should be no other financial adjustment made as against the net proceeds of the sale of the home which would be contrary to his financial interests. I have considered all of these matters and identified my approach and outcome in the preceding paragraphs.
HUSBAND
The husband is a supervisor employed with S Limited. He has worked for that firm from September 1996. His gross salary is $66,000 per annum. From his salary there is deducted; repayments for superannuation, child support payments, and the loan that he has obtained from his employer. The husband has no overtime work available to him and this is his only job. He supports his parents, at least to the extent of providing them with accommodation and paying $100 of expenses each week on their behalf. The husband enjoys good health.
In his statement of liabilities he recorded a debt of $6,300 which remained owing to his employer. Those monies were borrowed for legal fees and some lifestyle expenses. They are being repaid from his salary. All of the borrowings were post separation and they remain the sole financial responsibility of the husband. I do not know of any interest charged thereon. I will not adjust that liability against the matrimonial pool of assets. The husband will most likely remain in this secure employment and will discharge that debt from his future income.
The husband’s evidence is that he has a longstanding liability to his parents in the sum of $20,000. It is said that these monies were advanced over the period of 1988 to 2003 to support the husband in his education and studies, and to provide ongoing support. Evidence was called from the husband’s father supporting that original advance and, in paragraph 3 of his affidavit filed 13 September 2010, the husband’s father deposed that:
“I had also lent [the husband] around $20000 since he first came to Australia in 1988 for his ongoing studies and support”.
The husband’s father said that he had the capacity to pay these monies from his income as a farmer, particularly from his sugar cane crop. In particular he supported the husband’s evidence by deposing that he had saved $10,000, sold a motor vehicle for $5,000 and borrowed from the ANZ Bank a further $5,000, a total of $20,000.
I find that there was necessary and very proper financial assistance provided by the husband’s father to his son in the years prior to marriage. That liability, if it is to be repaid, is however a responsibility of the husband and not of the wife. It is most unlikely to be repaid given the care, accommodation and financial support the husband is now providing for his parents in his home. On all of the facts and evidence surrounding this family advance of monies I find that it is not a loan and will not be required to be repaid. I have not had regard to that $20,000 as an alleged liability in these proceedings.
The husband has a very close family friend, Mr K. He originally lent the husband and wife $10,000 at or about the date of purchase of the former matrimonial home. A sum of $5,000 was repaid but subsequently re-borrowed by the husband to pay legal expenses for his lawyers in earlier Court proceedings. The wife denied that there was any relationship between the original borrowings of $10,000 and the purchase of the former matrimonial home. She asserted that the only additional family borrowings were from the husband’s sister, and the parties then obtained a loan from Westpac to repay that $10,000 debt to her. That event is a matter of agreement between the parties.
On balance and after a careful assessment of the parties in the giving of their evidence I accept the evidence of the wife and do not find that any of the original borrowings from Mr K support the purchase of the former matrimonial home and its associated costs. I therefore do not accept the further evidence of the husband that the borrowing was originally required because of the wife’s failure to obtain employment and assist with ongoing mortgage repayments and other borrowings. I do not require the wife to repay Mr K any monies. They remain the sole financial responsibility of the husband though I do have real doubts as to whether any further sum will be required to be repaid. I record that Mr K was not called to give evidence in these proceedings and therefore has not claimed any liability owing to him.
There is a further borrowing from Mr K that the husband submitted should be a liability of the marriage and paid as a primary distribution from the net proceeds of sale of the former matrimonial home. Exhibit “HP11” is a purported loan agreement dated 3 December 2010 between the husband and Mr K. It purports to evidence that on 3 December 2010 a sum of $3,000 was advanced to the husband and it records that the interest rate payable on the loan and as per agreement was to be 15 per cent daily on the principal amount. The husband calculated that a total sum of $6,750 is now owing and that is the sum claimed by him in the proceedings.
The background to this purported borrowing was that, by Court order, I directed $5,000 to be paid to the husband from the deposit monies paid on the purchase of the former matrimonial home. That sum was to be paid as a partial settlement of property.
What occurred was that the husband refused to sign a section 27 statement as a vendor of the former matrimonial home to secure the release of the deposit monies to be paid to him. Exhibits “WP4”, “WP5” and “WP6” are letters and emails tendered to the Court on this issue. I am satisfied that those documents evidence the unwarranted refusal of the husband to cooperate and obtain the immediate payment to him of $5,000. That sum would have avoided any necessity to borrow additional monies from Mr K which the husband said was required for the urgent purpose of a bond on his new rented accommodation and to facilitate removal expenses. The husband did disclose that his real reason for refusing to sign was that it may have provided a legitimacy to the sale of the former matrimonial home, which he opposed notwithstanding that he properly complied with all Court orders in preparing the home for sale and then in providing vacant possession.
The husband has, by his own actions, brought upon himself the circumstance where he would have been in funds and would not have had to borrow any monies from his friend. Again I record that Mr K did not give evidence to the Court to support his purported advance of monies to the husband.
I wholly reject the purported interest rate agreement and 15 per cent daily is an outrageous rate to be struck and agreed. I record that the interest to be charged over that fifteen day period substantially exceeded the principal sum purportedly borrowed.
I do not accept the husband’s evidence on that loan and in any event it is and must remain his sole responsibility, both as to principal and any interest payable.
The husband borrowed an additional $5,500 from his sister, Ms C after separation and in or about 2008. These monies were required for his food and lifestyle and also to pay legal fees. I conclude that this liability is the husband’s alone and I have not brought it to account in determining a just and equitable outcome in these proceedings.
The husband recently borrowed a further sum of $2,000 from his sister, in or about December of 2010. That debt is exclusively his and is not a joint debt and has not been offset in these proceedings against joint matrimonial assets. I record that the reference to a 15 per cent daily interest rate for this debt, in exhibit “HP7” is in error and that was acknowledged by the husband. The purported agreement between the husband and his sister is exhibit “HP12”. His sister did not give evidence in support of that loan. In any event the exhibited document identified a loan of $3,000, different from the $2,000 which the husband identified both in evidence and in his balance sheet of assets submitted to the Court as exhibit “HP7”. The husband will remain solely responsible for the repayment of this loan to his sister and any interest accrued thereon. It is not a matrimonial debt and I have not adjusted this sum as against the pool of assets.
The husband has a Westpac MasterCard debt currently of $16,400. It is in his sole name and the wife has never had possession of a supplementary credit card on that account. The debt was said to have been accumulated from about the date of the marriage and is ongoing. At separation it is of significance that it was only $2,900 approximately. The substantial balance on that credit card has been incurred personally by the husband post separation.
I conclude that it is proper to allow a liability of $2,900 to be accepted as a pre-separation debt properly owing on that credit card and that sum can be first paid from the invested monies before division between the parties.
The husband’s other credit card is with GE Credit. The original borrowing was $3,000 to purchase a bed and lounge suite. They are retained by the husband within his now rented home. I find that it is proper for the husband to retain financial responsibility for that debt and given the very substantial interest rate of 29.9 per cent attached to that debt it should be a priority for the husband to discharge it from the monies he has received by way of s 79 orders. That however is a matter for his good judgement.
As to his contributions made throughout the marriage, the husband emphasised his role as homemaker and a parent to their daughter. He maintained that he was responsible for the maintenance and upkeep of the outside of the former matrimonial home and that he assisted the wife within the home when he was at home and particularly on weekends.
In the children and parenting case I heard substantial evidence of the husband’s involvement with his daughter, disruption and conflict within the home and like matters all of which negate against any real level of contribution and I have balanced those matters in assessing his contribution in that regard.
The husband has made a significant financial contribution through his stable employment and his income. His management of money, his significant liabilities and various credit cards debts do raise some issues as to lifestyle and expenditure but ultimately I am not critical of the husband in that regard.
I made observations and findings upon the husband and his evidence in my recent substantial judgment delivered 3 February 2011 and many of those findings of the husband, and my observations of him, are equally applicable in these proceedings. There were matters upon which I do not accept his evidence. Generally I have a preference for the evidence of the wife over the evidence of the husband where matters are factually in dispute.
WIFE
The two young children of the marriage live with the wife and she supports them by a Centrelink parenting payment, family allowance payments A and B and child support. She lives in rented social housing in the B area for which she pays rental of $127.50 per week.
The husband was previously paying a child support assessment of $945 per calendar month but that has been increased by the Child Support Agency to a sum of $1,080 per calendar month, or approximately $250 per week, inclusive of an amount for arrears and interest. The evidence of the history of past child support assessments and the many past hearings and determinations within the Agency are not satisfactorily before this Court, notwithstanding the matters that I have hereafter considered on this issue.
The wife’s total gross income is therefore approximately $675 per week.
The wife has not worked since she migrated to Australia in 1998. She is 36 years of age and the children are 6 and 4 years of age.
The wife holds a Bachelor Degree. She endeavoured to obtain employment in the N area in or about 2005 with an aged care facility. She was unsuccessful and advised the Court that one of the given reasons was that “she was over qualified”. The wife did not have permanent residency at the time of seeking that employment but there were no restrictions imposed upon her visa so as to prevent her from working. Subsequently she has undertaken refresher courses in accounting and MYOB software. She said that the husband has possession of all of her school and university certificates and without them she could not obtain employment. The husband denied that they are in his possession though I am certainly inclined to believe the evidence of the wife. It would be very much in the husband’s financial interests for him to deliver up all documents to the wife as it will assist her hereafter in obtaining gainful employment.
The wife is now considering changing to a nursing career and that would involve many years of study and work experience.
Given the ages of the children and her domestic and financial circumstances, and the fact that she has no family or other support in Melbourne, it would likely be reasonable for the wife to remain out of the workforce for a further period of perhaps several years. That is a s 75(2) factor of significance.
The wife gave evidence under strident cross examination from the husband that she did almost all of the housework and homemaker duties within the marriage and some light gardening. I accept her evidence.
The husband was the primary breadwinner and has been in full time secure employment for over thirteen years. At the time the parties obtained the Westpac mortgage loan he was earning a net monthly wage of approximately $3,300. He committed himself to a monthly repayment of $1,568 in discharge of that mortgage liability, principal and interest, that was in December 2004.
The wife said, and it is likely there is some accuracy in her statement, that the husband had been working in Australia from 1998 but had not been able to organise his finances to purchase a house or a car and that it was her budget skills, planning and organisation that helped them structure their loan application and successfully obtain finance for the purchase of the former matrimonial home.
The equity in the former matrimonial home is overwhelmingly the basis of the current pool of assets. It appreciated approximately $140,000 in value during the marriage, notwithstanding interest arrears and other expenses incurred by the parties. That increase is largely as a result of the increase in value of property and inflation generally. It was not because of any particular work or renovation to the home and thus the importance of purchasing the home is paramount to the current net assets of these parties. I have therefore given some balanced weight to the wife’s initiative in planning for and influencing the husband to purchase a property.
The wife gave evidence upon various financial dealings late in the marriage and these were the central focus of the husband in his detailed and substantial cross examination of the wife.
The parties first separated on 13 February 2007 when the youngest child was two weeks of age. The wife moved to live in a women’s refuge. Thereafter the parties reconciled and the final separation occurred in late 2007. The wife maintained that it was 12 December and the husband’s evidence was that final separation occurred on 14 September of that year.
The parties had a joint Westpac trust account (“the trust account”) into which the family allowance payments and other Government monies for the children were paid. That was the bank account in which the parties were able to save money. Otherwise the wife opened her own Westpac bank account.
Shortly prior to the first separation the wife banked a sum of $1,191 into her account and these were monies paid by a home boarder, together with monies paid to the wife from her brother. There was a level of dispute about the income paid and received by the parties and a receipt book was produced. Whether his rental averaged $600 or $800 a calendar month I am unable to establish. It was paid irregularly, often in partial payments and by a woman on his behalf. It is not necessary for me to ascertain the quantum of that rental paid and I have had regard only to the monies transferred by the wife to her account. I accept her evidence on this matter where it may differ from that of the husband. I have balanced her retention of those monies, and the purposes for which they were required, against the other financial transactions within the marriage and the outcome of the orders that I have pronounced. The wife does not have to repay any of those monies to the husband.
On 8 February of that year the wife withdrew $11,300 and transferred that sum to her newly established bank account. It was into that account that the Federal Government Baby Bonus for their son was paid in late February 2007 in the sum of $4,321. All of those entries are recorded in exhibit “HP2”.
Subsequently the wife withdrew from her bank account, to which the trust account monies had been transferred, $10,000 on 26 February 2007. These monies supported the wife and children when in the women’s refuge and post reconciliation when she asserted that the husband then refused to financially assist her. I accept that evidence.
A further sum of $6,000 was withdrawn by the wife on 24 April 2007.
There is a real dispute between the parties as to how the wife expended these monies. In paragraph 73 of her affidavit she says that:
“Following separation I used approximately $8,000 to repay the maternal aunt and uncle monies advanced by them to me to pay for my education fees overseas. Unfortunately we had never signed any loan agreement or other like documentation to confirm the loan. I also applied monies towards the purchase of driving lessons… citizenship fees, taxi fees, child care fees, and other living expenses…”.
The wife was somewhat confused as to any particular sums repaid. It may have been either $6,000 or $8,000 and I am unable to determine what was the actual sum repaid. I have however generally accepted that the wife is a witness of truth and was doing her best to establish her expenditure over this period. I have decided that it would not be reasonable to add-back that sum of money to the asset pool. It was perhaps somewhat inappropriate for the children’s monies to have been used to pay off that debt that otherwise might never have been repaid. What I have done is to carefully balance that sum of money in determining what is a just and equitable division of the net asset pool of the parties. I have also evaluated the fact that the wife was thereby able to repay her immediate family whereas the husband’s claim to repay his parents for his past educational expenses has not been granted. My overall division of assets and the just and equitable orders that I have pronounced do balance up those issues.
Notwithstanding that the trust account on behalf of the children primarily contained Government payments of fortnightly income or the substantial one-off Baby Bonus it was monies for the benefit of the family. Ordinarily they would be monies included within the asset pool for division between the parties if they remained available.
I have carefully balanced all of the difficult financial circumstances in which the wife and children were then placed. The husband voluntarily then paid no income or child support and he remained living in the matrimonial home with all of its financial benefits and security of accommodation.
The husband’s explanation for his then failure to pay monies to his wife and children was that she had taken the sum of $11,300 from the trust account and that was more than sufficient to financially support herself and the children, together when added to other monies taken by her. There is some logic and understanding in that submission and I have heard that all of these issues have been diligently pursued in hearings before the Child Support Registrar. The husband had sought to reduce his child support on this basis and there had been a substantial investigation of all income and required expenses. The evidence on all of these transactions is somewhat incomplete and confusing and the wife has provided a lack of detail and particulars of her expenditure but, all matters carefully evaluated, I have decided not to add-back any sums of money to the pool of assets and I have generally considered all of these financial circumstances in determining a just and equitable division of property.
The husband has examined all of the bank statements produced by the wife. He has rightly complained that her subsequently opened ANZ bank account was not produced. The wife has explained that she could not obtain those documents from the bank. That is an unsatisfactory answer but it has not been further pursued following upon the order that I made for their production. The hearing had to continue and I endeavoured to properly understand the reason why monies were deposited in the ANZ bank account for the short period that it remained open. The wife explained that she used that bank as a matter of convenience because of its locality but has now returned to Westpac. I accept that evidence.
The husband meticulously examined all of the Westpac banking statements of the wife, save for one month which was not produced. He has calculated, by a document now in evidence by consent, as “HP4” that the wife spent $94,000 over a two year period between December 2007 and December 2009.
It is impossible to more closely scrutinise that document on the evidence before the Court. The wife has little or no memory of individual expenditure. An examination of her bank statements records that expenditure is always family orientated and primarily purchases from stores such as Kmart, Target and Coles. There were no significant expenses of a personal nature for the wife and there were no luxury items that were brought to the attention of the Court.
I do not find that the wife has accumulated and separately invested other monies. I cannot find that her expenditure is unreasonable or excessive and certainly there is no evidence of any acquired assets from those amounts.
The husband cross examined the wife at some length on her ability to obtain Victoria Legal Aid and their funding of her Court case until 10 February 2010. There was no dispute on the quantum of $21,279 paid on settlement to Victoria Legal Aid. That expenditure however should be contrasted to the husband’s circumstances where he did not qualify for legal aid and was self represented, thus at no cost to himself for at least many of the various Court proceedings. When he was legally represented the husband found cause to disagree with his Counsel or solicitors and that matter was substantially in evidence in the previous proceedings before me.
In his final submissions at the conclusion of the hearing the husband advised the Court, for the first time, that he would forego his claim for the monies paid on behalf of the wife to Victoria Legal Aid to be adjusted as against the wife’s financial interests. He very clearly submitted that there should be no add-back of these monies to the pool of assets. That was a substantial and somewhat surprising concession made by the husband which I have accepted.
What I have concluded is a just and proper approach to the division of property pursuant to s 79 of the Act, is generally to have regard to the fact that the wife had, for a period, such legal assistance at no expense to herself. That is a fact or circumstance which the justice of the case requires to be taken into account pursuant to s 75(2)(o). The husband had incurred past legal expenses, not just in proceedings in this Court, but in related family violence applications which he strongly defended. He has paid those legal accounts, and for the majority of the proceedings in this Court has represented himself and has therefore not incurred ongoing expenses and disbursements. I am however particularly conscious of the further substantial legal costs which the wife has incurred without legal aid assistance and which I have detailed hereafter. The payment of these current costs and disbursements of the wife totalling $54,130 will substantially impact upon the benefit of this judgment and what monies remain from the division of property made in her favour.
The husband was critical of the wife for requiring her solicitors to obtain an order from Cronin J for the sale of the matrimonial home in February 2010. His application for a stay was rejected by Cronin J and his appeal was not successful.
The husband had a belief that the property should have been valued at more than its sale price and required the wife to pay and indemnify him for any shortfall below a gross sale price of $420,000.
I reject the husband’s submission and am comfortable in the conclusion that the former matrimonial home sold at an appropriate time and for a reasonable price given the market conditions existing at the time of sale and the substantial efforts and post auction negotiations to secure the reserve price. I have not and will not adjust any alleged loss in the value of the home against the wife’s financial interests that I have determined in these proceedings.
To reinforce my rejection of the husband’s submission it is a fact in evidence that the husband had, shortly prior to the first auction of the property in mid June 2010, offered to sell the former matrimonial home to a friend of his for $360,000. That sale was on the basis that the husband would then be the tenant of the property and would have a secure and ongoing lease arrangement and would not be disrupted by the move to other accommodation. The fact that the above price was nominated by the husband reinforced that the ultimate sale price of $379,000 was fair and reasonable in the circumstances of the property market in that location as at the date of sale.
SUPERANNUATION
The husband, at the request of the Court, was asked to contact R Super to obtain an up to date statement of his superannuation entitlements. He did and advised the Court, and it is now a matter of agreement, that his present superannuation entitlements are $54,735. By way of background I accept that the husband’s superannuation balance as at 30 June 2005 was then $36,401. As at 30 June 2007 it had increased to approximately $52,400.
Annexed to the husband’s final submissions (Court Index Document No. 130) the husband has annexed his various superannuation statements covering the years 2002 to 2007 (inclusive) and therefore the contributions made by him, and his entitlements over that period, are clearly identified. I have read and evaluated those documents.
The husband has at length highlighted to the Court the more than thirteen years of his employment and contributions to superannuation when contrasted to the years of the marriage. The husband made financial contributions to his superannuation prior to marriage and has continued to make such contributions post separation. Those facts are important and I have given substantial weight to the overall period of the husband’s superannuation contributions in determining a just and equitable outcome to the property division in this case.
In paragraph 4(2) of the husband’s submissions of orders sought (Court Index Document No. 130) the husband had then identified the sum of $7,300 of his superannuation benefits being accrued between May 2003 and September 2007 as the only amount that should be equally split between the parties. Mathematically that may be correct but that simple approach would ignore the earnings on the fund and therefore its growth during that period and then the ongoing earnings and growth of the fund post separation. With that background the husband, in his final submission, again conceded that the wife could have a superannuation split of $7,300, though perhaps what the husband really intended to argue was that the wife could have 50 per cent of that sum.
The period of the relationship and marriage was less than five years and represents approximately one third of the period for which the husband has contributed to his superannuation. With that background I do not intend to apply any strict mathematical formula and in particular I conclude this is not a case to adopt any division of superannuation based upon the approach of the Full Court in West & Green.[28]
[28] (1993) FLC 92-395.
The husband strongly opposed any payment of monies to the wife from the net asset pool to cover her superannuation entitlement within the husband’s fund. The wife’s submissions remained for an equal division of the net balance currently held in the fund, however optimistic that may have been in all of the circumstances of this case.
I have rejected the submission from the wife’s Counsel that the hardship payment of $10,000 received from that superannuation should be added back to his entitlements and the wife receive a further percentage of that sum.
The issue that I have carefully considered is whether a superannuation split is appropriate or whether it is a more appropriate outcome to leave the husband with the entirety of his superannuation and adjust the wife’s proper entitlement as against the net pool of assets.
That approach raised the issue of the current value of money and whether any sum to be paid in cash should be discounted as the husband has approximately fifteen years of employment before his earliest retirement option. Likewise it is a fact that a cash sum is of far more current benefit to the wife than a modest and substantially delayed superannuation entitlement.
I am satisfied that appropriate notice and procedural fairness has been afforded to the trustee of the husband’s superannuation fund and that the fund would implement any superannuation splitting order made by the Court.
I find that a just and equitable outcome would be to order the husband pay the wife a sum of $7,000 from his share of the proceeds of sale of the former matrimonial home and for the husband to retain all of his superannuation to the exclusion of the wife. That has the benefits of certainty and simplicity and I conclude that it satisfies the best interests of both parties. I find that is a just and equitable outcome. In arriving at that cash sum I have carefully balanced the whole period of the husband’s superannuation contributions with the wife’s contributions thereto and with a balanced division of all other assets. Accordingly I have adjusted the financial orders by the immediate payment of that sum of $7,000 to the wife. I do so with the very proper understanding that it effectively leaves with the husband long term superannuation entitlements of approximately $47,000, and in the context of the assets of this case, that is a substantial sum. The husband’s financial circumstances must however be read as a whole and his cash assets and superannuation entitlements are to be balanced against his outstanding liabilities and primarily his bank and credit card debts for which he is to be solely responsible.
WIFE’S LEGAL COSTS
Aside from all monies paid to Victoria Legal Aid on settlement of the sale of the former matrimonial home the wife has additionally incurred legal costs and disbursements, to the conclusion of this hearing, totalling $54,130. Exhibit “WP2” is a letter dated 8 February 2011 confirming that liability. That letter, at the request of the Court, was provided on the final day of hearing.
The wife advised the Court that she had not received any prior monthly or other regular legal account from her solicitors from 1 December 2009 when legal aid discontinued her financial assistance. The Court was advised that both her solicitors and barristers have substantially re-negotiated their fees and are charging less than scale. I have no evidence to that effect and make no finding upon that submission.
The wife did sign a Costs Fee Agreement with her solicitors but that was not disclosed to the Court.
I accept the need for the wife to be legally represented. The husband had the organisational skill and mental ability to prepare his case and represent himself well, as I have earlier recorded in my judgment on children and parenting matters. The wife, though from what I have observed is a highly organised person, yet is quietly spoken and somewhat unsure of herself. She has had the assistance of a social worker attending Court with her on each day and has employed legal representation, as is her right.
As to the wife’s legal costs they are and must remain, subject to any future order, her responsibility. The significance of the sum is that it will substantially reduce any monies available to her from a division of property. The husband has no such liability though it is a matter of some credit to him that he discontinued his application for the legal aid payment monies to be added back to the pool of assets. That was an expense that had only benefited the wife.
An unusual aspect of this case is that the defended hearing on all matters was split and I have previously pronounced final children and parenting orders. By paragraph 26 of those orders I reserve all costs of and incidental to that hearing pending further application and submissions. No application has been, as yet, made in that regard but I have carefully assessed a just and equitable division of property subject to any future application for costs that might be made by either of the parties and for both hearings.
It is important that the Court have regard to the monetary effect of its order. I have carefully assessed the actual sum of money that will be available to the wife after she has paid her solicitors and Counsel the sum of $54,130.
The justice and equity of the case do support the overview that I have taken of the final apportionment of available monies between the parties and that is a factor relevant to the just and equitable division of property.
PERIODIC SPOUSAL MAINTENANCE
By leave the wife’s application for periodic spousal maintenance was accepted by the Court and my earlier ex tempore reasons on this issue have now been published. I have not ordered the payment of any specific sum but reserved to the wife her right to re-agitate the periodic spousal maintenance question if and when appropriate circumstances arise.
Currently the husband has an obligation to pay child support at the assessed rate including arrears and interest and otherwise to discharge his various liabilities. On the other hand I am required to disregard any entitlement of the wife, whose maintenance is under consideration, to an income tested pension, allowance or benefit by the provision of s 75(3) of the Act. I have done so.
Nevertheless, and in all of the circumstances of this case, it is not proper to order any periodic spousal maintenance at this time.
CHILD SUPPORT ASSESSMENT
The current assessed child support sum payable by the husband is $1,080 per calendar month.
There are arrears of child support owing though there was no certificate to evidence that sum tendered before the Court. The wife’s evidence, with which the husband did not disagree, was that the past arrears were $11,100 but they have now been reduced to a sum of approximately $6,000.
There was a level of confusion from the parties as to the various child support assessments that had been previously made by the Child Support Agency. The husband provided a history of those assessments increasing from $600, to $800, thereafter $945 and now $1,080. There was a suggestion that at least $135 of the current assessment is costs and arrears. The husband believed that to be a greater sum. I do not know and was not told.
Presently the assessed monthly sum of $1,080 is deducted directly from the husband’s income by his employer and recorded as such in his pay slip, which is in evidence before the Court.
The husband has a very aggressive and strongly opposed attitude to the payment and quantum of child support. He maintained that he has a very frugal lifestyle and after fixed expenses and rent has only $1,400 per calendar month available to support himself and his parents. He strongly emphasised his obligations, pursuant to the law of his country of origin, to support his parents, though that is a matter to which I have had no regard in determining a just and equitable division of property in these proceedings.
None of the earlier child support assessments, or other documents from that Agency are in evidence before me, save for exhibit “WP3” which is the decision of Senior Case Officer F delivered 19 October 2010 and to which I have hereafter referred.
In paragraph 15 of his submissions and final orders sought (Court Index Document No. 130) the husband sought the following order:
“That [he] be granted a departure order to depart from the CSA Legislative formula for child support payments pursuant to the evidence provided. That all arrears including any interests payable pertaining Child Support in relation to the children in this matter be waived pursuant to the evidence provided by the husband in paragraphs 16 and 33 of his Affidavit filed 31 October 2010, and the wife to reimburse the husband for the interest and other charges that CSA have been charging the husband to date for the so called outstanding arrears”.
The wife’s submission was that I should not hear or entertain that application and that the proper process was for the husband to seek an internal review of the decision of the Senior Case Officer by way of an objection lodged within 28 days of the initial decision, then if unsatisfied appeal that decision to the Social Security Appeals Tribunal. If unsatisfied with the decision of the SSAT the husband could then appeal on a point of law to the Federal Magistrates Court or this Court. Those avenues of further review and appeal were not taken up by the husband.
The background history of the parties and their various financial disputes and hearings within the Child Support Agency since April 2008 is carefully documented in the decision now in evidence before the Court in exhibit “WP3”. The husband has lodged various applications, objections and appeals all of which are summarised in that decision.
The reasons were recently delivered on 19 October 2010 and respond to many of the same financial issues and facts that the husband detailed in these proceedings before me. The Senior Case Officer was not satisfied of any change in financial circumstances to support the husband’s application and otherwise found no special circumstances to vary the updated assessment of child support payable. The financial circumstances of the wife were investigated and the conclusion was reached that it could not be found that the assessment was unjust or inequitable on the basis of the wife’s income, assets and financial resources.
The Financial Statements of the parties have not been prepared on the basis of a full and detailed disclosure of their household and weekly living expenses. With that qualification I have nevertheless determined that there will be no departure from the current child support assessment order.
I find that the Child Support Agency has carefully investigated all of the financial issues of the parties. I conclude that the husband does have the ability to pay the current child support assessed sum and any interest, costs and other payments included within that calendar monthly sum of $1,080. His ongoing payment of that sum is a factor which I have considered within s 75(2)(na). That ongoing payment has reduced his available income from which any periodic spousal maintenance payment could have been made and that was one of the reasons why I have reserved the wife’s rights in that regard.
I have therefore dismissed the orders sought by the husband in paragraph 15 of his final orders and there will be no departure order or variation from the current child support assessed payment which must continue to be made and deducted from the husband’s pay slip by his employer to ensure its regular and continued payment.
JEWELLERY
In the course of the hearing issues arose about jewellery previously purchased by the parties and given to each other. The husband has retained the wife’s engagement ring and he acknowledged that it was currently in his possession and that he would return that ring to her. The wife also sought return of her bracelet and a necklace but the husband denied knowledge or possession of those items. He agreed that if they were found by him he would return them to the wife. I propose to make an order evidencing the agreement on this issue.
CHILDREN’S PHOTOGRAPHS
An issue in the children and parenting proceedings had been the delivery or return by the husband to the wife of photographs of the children. They are all in his possession. The wife had delivered to the husband, in open Court, a USB data stick for the husband to download photographs of the children. He had agreed. It arose in this hearing that the husband had declined to fulfil what the wife, and the Court, had thought was a prior agreement.
The husband indicated to the Court that he now refused to provide any photographs of the children, or of the parties’ wedding, or other special occasions to the wife. He admitted to having all of the photographs and he is a person of very considerable computer skills. He said that if the wife “had have shown interest in the past she would have taken photographs of the children herself”. I reject that answer. Clearly the husband has stored the family photographs and they should be copied forthwith by him and made available by digital transmission, or on the USB facility, to the wife. I have ordered the husband to comply with that requirement within fourteen days. It is, in all of the circumstances of this case, both appropriate and relatively easy, and it is not time consuming for the husband given his level of organisational skills and capabilities.
An issue that was carried over from the earlier children and parenting proceedings was the fact that the husband has possession of a black folder containing documents and other personal possessions of the wife. The husband denied that item was left in the home. I do not have the evidence to make findings upon this issue but generally I have preferred the wife’s evidence on matters in dispute. Thus, whilst I have made no particular order the husband should locate and deliver up to the wife all of her possessions including this folder.
SECTION 79(4) CONTRIBUTIONS
The husband maintained that the division of the pool of assets should be 95 per cent in his favour with the remaining 5 per cent for the wife.
In support of that division the husband highlighted his permanent and secure work and the fact that he was the only income earner for the family throughout the marriage and post separation. He has made a very significant financial contribution and I have given significant weight to that fact. Likewise it was his income that paid mortgage instalments and repayment of family and other loans and credit card borrowings.
In any assessment of the husband’s financial contribution, significant value must be given to the income that he brought into the family without which the mortgage payments would not have been paid. I have however also given significant weight to the organisation and direction that the wife brought to the family and to the decision to purchase their home. Her contribution in that regard also brought value to the family and overwhelmingly it is the equity in the home, however now diluted, that represents the primary assets of this marriage.
The husband has made a non-financial contribution. I accept that he did perform work in the home garden and likely did some minor housework and provided some level of assistance to the wife within the home.
The husband was a very proud parent and when at home did involve himself with some of his daughter’s activities but many issues and difficulties then arose. He did not play any significant homemaker or parent role but on weekends was with the family.
I have considered within the contribution of the parties the child support provided now by the husband and that is a contribution pursuant to subparagraph (g) of s 79(4). Clearly there are concerns as to the period for which these payments may continue and the reluctance and opposition of the husband to both the Child Support Agency and the assessed sum.
On behalf of the wife her Counsel sought a division of the asset pool of 70 per cent to the wife and 30 per cent to the husband, with consequential superannuation splitting orders.
The wife’s contribution was almost entirely non-financial and as a homemaker and parent. I accept that she made a significant parental contribution and was the primary homemaker, certainly within the home, and attended to the majority of the domestic and household chores including washing, cooking, ironing, cleaning and light domestic duties.
There were some modest financial contributions from her pre-marital assets but she acknowledged the work and financial contributions through the husband’s income. I have, as discussed above, positively evaluated her influence in the family decision to purchase the home and thus enter the property market.
I have assessed the parties as having made equal contributions to the purchase, conservation and improvement of the home and generally of their assets acquired during the cohabitation and marriage. I have however excluded superannuation from that assessment and I have concluded that it is proper that I make separate orders concerning superannuation and I conclude that the wife did not equally, or in any significant manner, contribute to the superannuation entitlements of the husband.
As required I have reflected upon each of the relevant s 75(2) factors as they are applicable to issues of contribution and also to the child support that the husband has provided, however reluctantly, or may continue to provide in the future for each of the children pursuant to the ongoing child support assessment paid by way of a direct deduction from his salary.
There was violence towards the wife within the marriage. That impacted upon her contribution level and made her life and circumstances all the more difficult. I have had due and proper regard to her evidence and my past findings in the earlier decision on this matter. They were supportive of my assessment of the wife having made equal contributions to the available net pool of assets.
SECTION 75(2) FACTORS
I have carefully considered all of the evidence as to the matters to be taken into account and as are clearly identified within this subsection. These are matters of significance and relevance to the facts of this case.
The husband enjoys good health and the wife’s health is also good, notwithstanding the reference to her diabetes, which is managed by diet alone.
The husband has secure employment and both the physical and mental capacity to work for many years hereafter. The wife has educational qualifications, and subject to the children and likely in several years hereafter, and perhaps with further training, will have the ability to work and supplement her income. When she is so employed her Centrelink payments or other family allowances will likely reduce.
It is a matter of significance that the wife has care and control of the two young children of the marriage. The husband spends no time with them by his own choice and by his refusal to complete intake assessment forms with GordonCare and spend an initial period of supervised time with the children. He reinforced to me in the course of this hearing that he will not take up the opportunity provided to him by my earlier Court orders delivered 3 February 2011 in the children and parenting matter. Thus the wife has sole parental care and ongoing responsibility for the care and upbringing of the children unless and until the husband accepts the available options to commence time with each of those young children.
I do not accept the husband has any legal obligation to support his parents. They have leasehold property and other assets overseas and have six other children to support them when they return to their homeland. I have balanced that scenario with the repayment of monies by the wife to her sister and that fact is reflected within the adjustments that I have made pursuant to this section of the Act.
I have carefully considered the pension and other financial allowances paid to the wife, and the husband’s superannuation, and those matters are separately detailed in these reasons for judgment.
Both parties have a modest standard of living that is likely to continue. I have considered what is reasonable in the circumstances and balanced those matters in concluding my findings and orders pronounced.
The wife’s periodic spousal maintenance entitlements have been preserved, though no maintenance is to be paid pursuant to these orders. I therefore have had an appropriate overview of the requirements of subparagraph (h) and (j) and the wife’s evidence in these matters. I carefully do not express a view as to if and when the husband’s earning capacity and available income will support his financial capacity to pay spousal maintenance and clearly there is an onus upon the wife to improve her work skills and obtain some employment as soon as is reasonably practicable.
The wife has a wish to continue in the immediate future as a sole parent and there is no other option given the current position of the husband in that regard. Until both children are settled and in school or otherwise, there is a level of assistance available to the wife that she will need to continue her full time role with the children and I have therefore balanced the requirements of subparagraph (l) in this regard.
The relevance of the child support payments provided for in subparagraph (na) have been considered and balanced in the orders that I have pronounced.
I have reflected upon the division of property order that I have concluded is just and equitable and in particular the monetary effect of such order.
There were other facts and circumstances raised in the case and in particular I have reflected upon the past domestic violence, which I have found, and the existence of the ongoing family violence order, though it is subject to appeal.
Having regard to each and every relevant s 75(2) factor I have concluded that it is just and proper that the percentage division between the parties be adjusted by a sum of 15 per cent in the wife’s favour. That would conclude an overall 65 per cent to 35 per cent division of assets in her favour, excluding superannuation which I have separately adjusted pursuant to my detailed reasons contained within this judgment.
MONETARY EFFECT OF ORDERS
The invested monies from the sale of the former matrimonial home were agreed to be $117,624 plus interest that is continuing to accrue. I have not been advised of any charges or outgoings to be debited from those monies.
I have ordered that three payments be made directly from those invested monies before any division of the balance between the parties. There first should be a payment to the wife’s solicitors, on behalf of the wife, of a sum of $5,330 on account of previous costs orders. Secondly a sum of $2,900 should be paid directly to the Westpac credit card account, in the sole name of the husband, in reduction of its liability. Finally it is proper that an adjustment of $5,000 be made in favour of the wife to offset the earlier partial property settlement paid to the husband pursuant to Court order.
Those three adjustments, by way of a deduction from the sale proceeds of the former matrimonial home total $13,230. When those monies are deducted from the sale proceeds there remains for division between the parties a sum of $104,394.
A 65 per cent division in favour of the wife would be $67,856 to which would be added, from the husband’s share, $7,000 to offset his superannuation entitlements. Thus the wife would receive a total sum of $74,856. From those monies her primary financial obligation is to repay her solicitor’s fees and disbursements of $54,130 and I have accepted that sum as reasonable in all of the circumstances of these proceedings, the two defended hearings and various interim hearings. The balance then remaining would be $20,726.
The further variation of that sum is that the wife would have the benefit of the $5,000 adjustment for the partial property order made in favour of the husband. It may also be that the previous costs of $5,330 are inclusive within the total costs now owing of $54,130 and if so the wife has a financial adjustment in her favour of $10,330. Significantly she has no claim to the husband’s superannuation.
In contrast with the husband receiving 35 per cent of the sale proceeds of the former matrimonial home he would receive $36,537 and from that sum must pay, prior to receipt of any monies by him, the sum of $7,000 to the wife in settlement of her superannuation claims. The husband would then receive the remaining balance of $29,537 as his final just and equitable division of property but would retain absolutely his superannuation entitlements of $54,735. He has earlier been paid out $5000.00.
There are remaining liabilities and in particular the husband has credit card monies owing to Westpac and GE Credit. They are his responsibilities and they would reduce significantly the cash balance payment that he has received under these orders.
There also remains the costs reserved from the earlier defended children and parenting hearing and I will reserve the costs of this hearing pending further application. There may or may not be any future costs orders and if any such application is filed those matters will be separately heard and determined on the evidence including the then financial circumstances of both parties.
I have carefully reflected upon the monetary effect of these orders and the manner in which I have dealt with the superannuation. I conclude that the outcome is a just and equitable division of the property of the parties.
OVERVIEW OF ORDERS
Pursuant to the final step in the process by which a just and equitable division of property is evaluated and pronounced I have reviewed all of the facts and circumstances of this case in my reasons for judgment and the monetary outcome resulting from these reasons. I conclude that the orders are just and equitable, and properly divide the assets of these parties.
I certify that the preceding Two Hundred and Twelve
(212) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 8 March 2011.
Associate: ……………………………………………………………
Date: …………………………………………………………………
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