Placido and Placido

FAMILY COURT OF AUSTRALIA

PLACIDO & PLACIDO

[2007] FamCA 120

FAMILY LAW - CHILDREN – With whom a child lives - competing applications for parenting orders
FAMILY LAW - PROPERTY – Alteration of property interests; superannuation splitting

Family Law Act 1975 (Cth)

APPLICANT:

Mrs Placido

RESPONDENT:

Mr Placido

FILE NUMBER:

SYF

7896

1996

DATE DELIVERED:

1 March 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

20-21 March 2006;
25-27 July 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Foster

SOLICITOR FOR THE APPLICANT:

Redmond Hale Simpson

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Johnston Vaughan

Orders

Previous orders relating to financial matters be discharged.
Pursuant to Section 79, orders be made in accordance with paragraphs 3 to 10.
Within a period of six (6) weeks from the date of these orders, the husband pay to the wife the sum of $255,949.
In the event that the husband fails to make that payment on or before a period of six (6) weeks from the date of these orders the husband and the wife do all things and execute all necessary documents and to take all steps to effect the sale of the property situate at P NSW (“the property”) forthwith and for that purpose the following specific provisions apply:
4.1.The property shall be placed on the market for sale by private treaty at a price to be agreed between the husband and the wife or such amount as may thereafter from time to time be agreed and in the event that the husband and wife do not agree, either at the time the property is first placed in the hands of agents for sale or at a later time, as to the price at which the property should be offered for sale by private treaty the parties shall to retain a valuer to be nominated by the President of the Australian Institute of Valuers to specify the price at which the property should be offered for sale.
4.2.In the event that an offer is made to purchase the property at a price lower than the price at which the property is offered for sale and the parties do not agree as to whether or not the offer should be accepted then the parties shall accept the advice from the Listing Agent in this regard.
4.3.In the event that the property is not sold by private treaty pursuant to the last preceding sub-clauses within 3 months from the date of these orders the husband and the wife shall forthwith take all necessary steps to sell the property by public auction pursuant to the following sub-clauses and the property shall be resubmitted for sale by public auction at 2 monthly intervals until sold.
4.4.The property shall be placed in the hands of a reputable real estate agent practising as an auctioneer within the area of the property and in the event that the parties do not agree on the auctioneer to be employed the husband shall nominate three such auctioneers and the wife shall select one of the auctioneers nominated by the husband to be the auctioneer employed by the parties.
4.5.The husband and the wife shall execute all such documents as may be necessary to authorise the auctioneer to sell the property by auction.
4.6.In the event that the parties do not agree as to the reserve price to be placed on the property at the auction the husband and the wife agree to accept the recommendation of the auctioneer.
4.7.The parties agree to pay equally to the auctioneer any sums reasonably required for advertising expenses in relation to the auction.
4.8.The husband and the wife shall attend at the auction sale and in the event that the property is not sold shall negotiate with the highest bidder in the event that an offer is made below the agreed reserve price and the parties do not agree as to whether or not it should be accepted then the terms of paragraph 4.2 above shall be applied.
4.9.On either a sale by private treaty or a sale by auction both parties shall execute the contact for sale, the transfer of land and any other necessary documents in relation to the sale and the discharge of any mortgages.
4.10.Both parties shall co-operate in every way with the agent in relation to the sale by private treaty or by auction including allowing inspection of the property at times reasonably requested by the agent.
The husband and wife shall authorize and direct that the proceeds of sale be applied in the following manner:
5.1.to pay all costs, commissions and expenses of the sale;
5.2.in discharge of the mortgage secured thereon;
5.3.as to 82% of the balance then remaining to the wife and the balance then remaining to the husband.
5.4.the husband pay to the wife from his share of the proceeds an occupancy fee of $304 per week to commence six weeks after the date of these orders.
That pending the payment or completion of the sale:
6.1.the husband shall pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the property as they fall due and maintain insurance cover on the property;
6.2.the parties hold their respective interests in the property upon trust pursuant to these orders;
6.3.neither party encumber the real property without the consent in writing of the other party;
6.4.that liberty be reserved to either party to apply with respect to the terms and conditions of and implementation of the sale.
7.1 Pursuant to s.90MT(4) the husband, the wife and the trustees of the family Superannuation Fund do all things and sign all necessary documents to ensure that an amount of $132,859 be allocated to the wife by way of a splitting order as the “base amount”.
7.2.That the base amount be allocated, as required by s.90MT(4) of the Family Law Act 1975, to the wife out of the husband’s interest in the family Superannuation Fund (“the fund”).
7.3.That, in accordance with paragraph 90MT(1)(a) of the Act:
7.3.1.the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation Regulations 2001; and
7.3.2.the husband’s entitlement in the fund, is correspondingly reduced.
7.4.That the husband as trustee do all things necessary to:
7.4.1.calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife by these orders and
7.4.2.pay the entitlement whenever the fund makes a splittable payment out of the husband’s interest in the fund.
7.5.That this order has effect from the operative time and the operative time for this order is the date of the order.
7.6.That the husband and the wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising the request pursuant to r.7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the fund to a fund of the wife’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
7.7.That the Court notes:
7.7.1.the value of the transferable benefits from husband’s interest to wife’s interest are calculated in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994;
7.7.2.pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interest in the fund made after the trustee has rolled over or transferred the interest in favour of the wife out of the fund, as contemplated by these orders, are not splittable payments; and
7.7.3.the husband as trustee will be relieved of his obligations to calculate and split payments under these orders in the event that the transferable benefits are transferred to a superannuation fund of the wife’s choosing in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.
The parties do all things to pay to the wife the sum of $45,197 from funds held in trust (item 2) and the husband receive the balance of those funds up to $50,000 and any balance including interest earned on invested funds divided 67.5 to wife and 32.5 to husband.
The husband pay any income tax liability of the husband arising from the assessment of capital gains income in the financial year ended 30^th June 2006 with such additional income tax liability to be calculated after all other income and deductions available to the husband are taken into account and:
9.1.in the event that any such additional income tax assessed is less than $50,000 the balance after payment shall be divided between the parties as to 67.5% to the wife and 32.5% to the husband;
9.2.in the event that any such additional income tax exceeds $50,000 any excess shall be paid by the parties as to 67.5% by the wife and 32.5% by the husband,
and for the purposes of this order the husband shall do all things necessary to file his personal taxation return by the due date for filing of same and forthwith provide to the wife’s solicitors a copy of the taxation return as filed and a copy of the assessment issued in regard thereto, and in the event that no assessment has issued by 30.6.07 the wife shall not be responsible for any further payment.
The Court otherwise declares that the parties have divided between themselves in specie all their other property including their furniture and furnishings, their jewellery and other personal effects, chattels, cash on hand and including their cash at bank and building society and that they have no right title or interest in or to any such items presently in the possession of or under the control of the other.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party
Either party have liberty to restore this matter on 7 days notice in respect of implementation of any order.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 7896 of 1996

Mrs Placido

Applicant

And

Mr Placido

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This case is about competing applications for parenting orders and orders relating to an alteration of property. Issues about parenting were settled and I made final orders, by consent, on 27 July 2006.

CHRONOLOGY

The husband was born in June 1950 and is currently 56 years of age.
The wife was born in July 1960 and is currently 46 years of age.
The husband’s daughter J was born in November 1973 and is currently 32 years of age.
The husband migrated to Australia in July 1985.
The husband says that a relationship between the parties commenced in February 1986. At that time the husband moved to Melbourne to take up a position with a religious group.
In 1987 the wife purchased land at T, Queensland for $10,000 with the price fully funded from borrowings.
The wife asserts that in September 1987 the parties commenced living together in rented premises in Melbourne. The wife at that time obtained full time employment at East Melbourne as an accounts clerk. The husband obtained employment with a life insurance company and later a computer firm and then an educational organisation until 1994.
At the commencement of cohabitation the husband had land in the Philippines. The wife asserts that she had savings of about $11,000 and the land at T, which had little equity in it.
The parties were married in February 1988.
In 1988 the husband purchased vacant land at P.
In September 1988 the husband’s daughter J (who was then aged 14) commenced residing with the parties.
In 1989 the parties purchased land at M. The purchase price was $35,000. An amount of $100,000 was borrowed. The parties constructed a home on the property.
In mid 1990 the parties moved into the home which had not then been completed.
In November 1991 J moved out of the home just before she turned 18.
In April 1993 the eldest child of the marriage C was born. C is now 13 years of age. She attends B College in Sydney.
The wife took maternity leave upon the birth of C and returned to work in December 1993.
In September 1994 the husband obtained a position with the CBA Bank and moved to Sydney to stay at the wife’s mother’s home. The wife and child remained in Melbourne. The construction of the house was completed. The wife says she was given $15,000 as a gift from her mother. A further amount of $15,000 was borrowed from the CBA Bank.
In November 1994 the wife gave birth to still born twins.
In April 1995 tenants were found for the property at M and the wife moved to Sydney where the parties and C resided in her mother’s home.
In November 1995 the parties travelled to the Philippines. The husband returned after six weeks and the wife remained. The husband subsequently went back to the Philippines. He sold the land in the Philippines for $60,000. The sale monies were partly used for a fish farming venture in the Philippines involving the husband family, which was unsuccessful. A balance of about $16,000 remained.
In January 1996 the husband returned to Sydney leaving his wife and C in the Philippines.
In August 1996 the wife returned to Sydney with C. The parties continued to live at the wife’s mother’s home.
In October 1996 the parties purchased a house and land package at P, NSW. The purchase price of the package was $216,000. A mortgage was obtained from the Commonwealth Bank. The parties contributed towards the cost of the purchase of the house and land package as to $16,000 being the balance of the proceeds of the sale of the land in the Philippines and an $8,000 gift from the wife’s mother.
In June 1997 I and M were born 12 weeks prematurely. The twins are now aged 9 years. Both children now attend C School and at the time of the hearing were in year 4. M suffers from spastic quadriplegia cerebral palsy. M requires full time care.
In 1997 the parties moved into the former matrimonial home at P. This home is suitable for M’s wheelchair needs.
In February 1999 or 2002 (the correct date is not material) the husband commenced employment with E Pty Ltd. At the same time the family Superannuation Fund was established by the parties.
In December 1999 the husband purchased in his own name an investment property at F1. The purchase price was $109,000. The purchase price was entirely borrowed from Westpac.
In 2002 the husband rolled his accumulation superannuation fund of about $152,000 into the family Superannuation Fund (which is a self managed fund).
In August 2002 the husband purchased an investment property at F2. The purchase price was $170,000. The funds for the acquisition of the F2 property were entirely borrowed.
On 19 December 2003 the parties separated. The wife and the children left the home at P NSW. The wife and children later returned to the home for a period but have lived most of the time since separation at the wife’s mother’s home.
After the separation the husband received rental income from the Victorian properties.
On 29 January 2004 interim parenting orders were made by consent at the Sydney suburban Local Court. The effect of those orders were for the children to reside with the wife. Contact to the husband was to be by telephone and each Sunday for two hours on a supervised basis.
There were at the same time proceedings for apprehended violence orders which were subsequently dismissed after a defended hearing.
In March 2004 the wife and children returned to the wife’s mother’s home. The wife asserts that the husband redirected rental monies from the Victorian properties to his account.
The wife asserts in May 2004 the husband effected withdrawals from the F2 mortgage of $18,000 and retained the funds.
The wife asserts in June 2004 the husband refinanced the F2 property and borrowed a further $22,000 and retains those funds.
On 21 June 2004 the wife withdrew $5,500 from the Westpac savings account.
On 9 March 2005 the wife received default notices from Westpac in relation to the mortgages on the Victorian properties. The husband asserts that as at 11 May the arrears on the Victorian mortgages stand at $7,600. The husband says he withdrew funds from the family Superannuation Fund to pay the arrears with the wife’s consent.
On 18 May 2005 interim property orders were made requiring the sale of the properties at M, F (x 2) and T.
In July 2005 the husband’s child support reduced to $1,787 per month (from $1,945 per month) when the husband filed his 2003 tax return.
On 15 August 2005 contracts for the sale of F1 were exchanged and settlement is subsequently effected. The proceeds of the sale of the property ($84,440.28) were received by the wife’s solicitor on 15 November 2005.
On 23 August 2005 contracts for the sale of M were exchanged and settlement was effected. On 25 November 2005 the proceeds of the sale of this property ($1,592.97) were received by the wife’s solicitors.
On 2 September 2005 contracts for the sale of F2 were exchanged and settlement was subsequently effected. The proceeds of the sale of the property ($9,470.11) were received by the wife’s solicitors on 16 November 2005.
On 20 September 2005 the wife says that she transferred funds from the normal superannuation account to St George Bank to prevent the husband dissipating the funds.
On 15 November 2005 there was a preliminary distribution of $35,000 to each party.
On 23 November 2005 orders were made requiring the parties to do the following things:
47.1.For the husband within seven days to repay $46,000 to the family Superannuation Fund, such funds to be deposited in solicitor’s controlled monies account.
47.2.That the wife within seven days pay St George Bank superannuation account monies to the solicitor’s controlled monies account.
47.3.Other orders were made that primarily went to the husband disclosing his financial circumstances for the purposes of these proceedings and for satisfying the wife that the family Superannuation Fund was now compliant.
On 29 November 205 there was a further distribution of $15,000 to each party.
On 15 December 2005 a payment of the Virgin Credit Card in the sum of $27,605 was made from the solicitor’s trust fund.
The wife asserts that on 22 December 2005 the husband repaid only $36,000 of the family Superannuation Fund monies to the solicitor’s controlled monies account. The wife paid the St George Bank funds of $74,655 to the solicitor’s controlled monies account.
On 11 January 2006 there was an agreement that $15,000 be released to each party.
On 25 January 2006 an order was made appointing B & Co, accountants, to prepare tax returns and financial documents for the family Superannuation Fund.
On 27 January 2006 the husband received $10,000 (in lieu of the $15,000 that he was owed under the agreement of 11 January) and the balance of $5,000 was put towards monies needed to restore the monies taken from family Superannuation Fund. Paragraph 16(e) of the wife’s primary affidavit asserted that the husband had paid $10,000 back but it was agreed at the hearing that there was still a $5,000 shortfall in respect of monies owed to the superannuation fund in respect of the $46,000 that the husband had been ordered to repay to the fund on 23 November 2005 (46 – 36 – 5 = 5).
At the end of January 2006 the wife’s solicitors received notice of an offer to purchase the land at T, Queensland, for $25,000.
By February that offer had fallen through and the land remained on the market at the time of the hearing.

On 13 February 2006 outstanding NAB dividends of $5,810 were paid to the solicitor’s controlled monies account.
On 20 February 2006 further outstanding Westpac and Macquarie Bank dividends of $5,295 were paid to the solicitor’s controlled monies account.

ORDERS ABOUT THE CHILDREN

In the parenting matter, orders were made on 27 July 2006 by consent in the following terms:-
1.That the parties attend at and participate in the first available Unifam “Keeping in Contact” programme to be arranged by the solicitors for the parties and do all acts and things and follow all directions of the programme supervisor with a view to the husband spending time with the children of the marriage, [C] born [in] April 1993, [M] and [I] both born [in] June 1997.
2.That Justice Watts be the Judge manager of the case.
3.That Sylvia Martin of the Family Court Mediation Service be appointed as co-ordinator between Unifam and the parties.
4.That the parties and/or Sylvia Martin have liberty to apply on 7 days written notice to be arranged with the Associate to Justice Watts.
5.That the Court authorises the release of the Family Reports to Unifam.

APPLICATIONS

Wife

The wife seeks orders in the following terms:-
1.That the husband and the wife do all things and execute all necessary documents and to take all steps to effect the sale of the property situate at [P] (“the property”) forthwith and for that purpose the following specific provisions apply:
(a)     The property shall be placed on the market for sale by private treaty at a price to be agreed between the husband and the wife or such amount as may thereafter from time to time be agreed and in the event that the husband and wife do not agree, either at the time the property is first placed in the hands of agents for sale or at a later time, as to the price at which the property should be offered for sale by private treaty the parties shall to retain a valuer to be nominated by the President of the Australian Institute of Valuers to specify the price at which the property should be offered for sale.
(b)     In the event that an offer is made to purchase the property at a price lower than the price at which the property is offered for sale and the parties do not agree as to whether or not the offer should be accepted then the parties shall accept the advice from the Listing Agent in this regard.
(c)     In the event that the property is not sold by private treaty pursuant to the last preceding sub-clauses within 3 months from the date of these orders the husband and the wife shall forthwith take all necessary steps to sell the property by public auction pursuant to the following sub-clauses and the property shall be resubmitted for sale by public auction at 2 monthly intervals until sold.
(d)     The property shall be placed in the hands of a reputable real estate agent practising as an auctioneer within the area of the property and in the event that the parties do not agree on the auctioneer to be employed the husband shall nominate three such auctioneers and the wife shall select one of the auctioneers nominated by the husband to be the auctioneer employed by the parties.
(e)     The husband and the wife shall execute all such documents as may be necessary to authorise the auctioneer to sell the property by auction.
(f)      In the event that the parties do not agree as to the reserve price to be placed on the property at the auction the husband and the wife agree to accept the recommendation of the auctioneer.
(g)     The parties agree to pay equally to the auctioneer any sums reasonably required for advertising expenses in relation to the auction.
(h)     The husband and the wife shall attend at the auction sale and in the event that the property is not sold shall negotiate with the highest bidder in the event that an offer is made below the agreed reserve price and the parties do not agree as to whether or not it should be accepted then the terms of paragraph (b) above shall be applied.
(i)      On either a sale by private treaty or a sale by auction both parties shall execute the contact for sale, the transfer of land and any other necessary documents in relation to the sale and the discharge of any mortgages.
(j)      Both parties shall co-operate in every way with the agent in relation to the sale by private treaty or by auction including allowing inspection of the property at times reasonably requested by the agent.
2.The husband and wife shall authorize and direct that the proceeds of sale be applied in the following manner:
(a)to pay all costs, commissions and expenses of the sale;
(b)in discharge of the mortgage secured thereon;
(c)as to the sum of $50,000 to be paid to a solicitors controlled monies account on interest bearing deposit to be held by the solicitors for the parties jointly on trust for the parties and such funds to applied to payment of any additional income tax liability of the husband arising from the assessment of capital gains income in the financial year ended 30^th June 2006 with such additional income tax liability to be calculated after all other income and deductions available to the husband are taken into account and:
(i)in the event that any such additional income tax assessed is less than $50,000 the balance after payment shall be divided between the parties in the percentages provided for in (d) herein;
(ii)in the event that any such additional income tax exceeds $50,000 any excess shall be paid by the parties equally,
and for the purposes of this order the husband shall do all things necessary to file his personal taxation return by the due date for filing of same and forthwith provide to the wife’s solicitors a copy of the taxation return as filed and a copy of the assessment issued in regard thereto, and in the event that no assessment has issued by 30.6.07 the fund shall divide as provided in (d);
(d)as to 80% of the balance then remaining to the wife and the balance then remaining to the husband.
3.That pending the payment or completion of the sale:
(a)     the husband shall pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the property as they fall due and maintain insurance cover on the property;
(b)     the parties hold their respective interests in the property upon trust pursuant to these orders;
(c)     neither party encumber the real property without the consent in writing of the other party;
(d)     that liberty be reserved to either party to apply with respect to the terms and conditions of and implementation of the sale.
4.That the husband pay to the wife the sum of $325,295 within 7 days from this date and that sum be paid to the wife from the following:-
(a)     funds held on trust by Redmond Hale Simpson solicitors on behalf of the parties and then,
(b)     the husband’s proportion of the net proceeds of sale of the home at [P] (and in this regard the wife shall have a charge over such proceeds) and then,
(c)     as to the balance then due (“the base amount”) by way of a splitting order as follows:-
1.That the base amount be allocated, as required by s.90MT(4) of the Family Law Act 1975, to the wife out of the husband’s interest in the [family] Superannuation Fund (“the fund”).
1.1That, in accordance with paragraph 90MT(1)(a) of the Act:
a.the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation Regulations 2001; and
b.the husband’s entitlement in the fund, is correspondingly reduced.
1.2That the husband as trustee do all things necessary to:
a.calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife by these orders and
b.pay the entitlement whenever the fund makes a splittable payment out of the husband’s interest in the fund.
1.3That this order have effect from the operative time and the operative time for this order is the date of the order.
1.4That the husband and the wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising the request pursuant to r.7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the fund to a fund of the wife’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
1.5That the Court notes:
a.the value of the transferable benefits from husband’s interest to wife’s interest are calculated in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994;
b.pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interest in the fund made after the trustee has rolled over or transferred the interest in favour of the wife out of the fund, as contemplated by these orders, are not splittable payments and
c.the husband as trustee will be relieved of his obligations to calculate and split payments under these orders in the event that the transferable benefits are transferred to a superannuation fund of the wife’s choosing in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.
5.The Court otherwise declares that the parties have divided between themselves in specie all their other property including their furniture and furnishings, their jewellery and other personal effects, chattels, cash on hand and including their cash at bank and building society and that they have no right title or interest in or to any such items presently in the possession of or under the control of the other.
The wife suggested that the net assets of the parties should be divided 55/45 in the wife’s favour based on contributions that each party has made to their acquisition, conservation and improvement. Counsel for the wife submitted that there should be a further adjustment for s.79(4)(d) to (g) factors of 25% so that the overall division of net assets between the parties was 80% to the wife and 20% to the husband.
Counsel for the wife said that I should maximise the realisable and liquid assets in the hands of the wife (as opposed to giving her superannuation) having regard to the problems that the wife had with accommodation, particularly in relation to M.

Husband

The husband seeks orders in the following terms:
1.That the parties forthwith do all acts and things and execute all documents necessary to cause the monies held by Messrs. Redmond Hale Simpson being the net proceeds of sale of the Victorian properties presently in the amount of $95,197 to be dealt with as follows:-
1.1    as to the sum of $50,000 to be paid to a solicitors controlled monies account on interest bearing deposit to be held by the solicitors for the parties jointly on trust for the parties and such funds to applied to payment of any additional income tax liability of the husband arising from the assessment of capital gains income in the financial year ended 30^th June 2006 with such additional income tax liability to be calculated after all other income and deductions available to the husband are taken into account and:
(i)in the event that any such additional income tax assessed is less than $50,000 the balance after payment shall be divided between the parties in the percentages provided for in (d) [sic] herein;
(ii)in the event that any such additional income tax exceeds $50,000 any excess shall be paid by the parties equally, and for the purposes of this order the husband shall do all things necessary to file his personal taxation return by the due date for filing of same and forthwith provide to the wife’s solicitors a copy of the taxation return as filed and a copy of the assessment issued in regard thereto.
1.2    as to the sum of $38,792 to be transferred to the family Superannuation Fund.
1.3    as to the balance to the wife for partial [sic] property settlement.
2.That within 6 weeks of the date of this order the husband pay to the wife the sum of $110,000 (“the capital sum”).
3.That upon payment of the capital sum by the husband that the wife shall do all acts and things and execute all documents necessary to transfer to the husband the whole of her right title and interest in the property situate at [P] (“the home”) (Folio Identifier […]).
4.That in default of payment of the capital sum by the husband to the wife that the parties forthwith upon default do all acts and things and execute all documents necessary to sell the home on such terms and with an agent agreed upon by the parties within 14 days of the date of this order and failing agreement then with such agent as the President of the Real Estate Institute of New South Wales shall nominate and such agent shall determine the method and terms of sale including sale price.
5.That the proceeds of sale of the home pursuant to order 4 shall be distributed in the following order and priority:
i.      in payment of all legal costs and agents fees and commissions;
ii.     in discharge of the mortgage;
iii.     in payment of the capital sum to the wife together with interest calculated in accordance with the rates prescribed by the Rules from default to payment;
iv.      in payment of the remainder to the husband.
6.That pursuant to s90MT(4) the amount equal to $100,000.00 of the husband’s superannuation interest in the [family] Superannuation Fund (“the fund”) be allocated to the wife (“the base amount”) by way of a splitting order as follows:
6.1    That, in accordance with paragraph 90MT(1)(a) of the Act:
a.the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Regulations) 2001; and
b.the husband’s entitlement in the fund, is correspondingly reduced.
6.2    That the husband as trustee do all things necessary to:
a.calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife by these orders; and
b.pay the entitlement whenever the fund makes a splittable payment out of the husband’s interest in the fund.
6.3    That this order have effect from the operative time and the operative time for this order is the date of the order.
6.4    That the husband and the wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising the request pursuant to r.7A.06(2) of the Superannuation Industry (Superannuation) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the fund to a fund of the wife’s choosing in accordance with r.7A.12 of the Superannuation Industry (Superannuation) Regulations 1994.
6.5    That the Court notes:
a.The value of the transferable benefits from husband’s interest to wife’s interest are calculated in accordance with r.7A.12 of the Superannuation Industry (Superannuation) Regulations 1994;
b.pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interest in the fund made after the trustee has rolled over or transferred the interest in favour of the wife out of the fund, as contemplated by these orders, are not splittable payments; and
c.the husband as trustee will be relieved of his obligations to calculate and split payments under these orders in the event that the transferable benefits are transferred to a superannuation fund of the wife’s choosing in accordance with the requirements under the Superannuation Industry (Superannuation) Regulations 1994.
7.Declare that otherwise each party is the sole and beneficial owner of all other items of property in their respective possession custody or control including but not limited to superannuation entitlements.
8.That in the event that either party shall fail, neglect or refuse to execute any deed, instrument or document to give validity and effect to these orders then upon the other party filing an affidavit setting out such failure, neglect or refusal then a Registrar or a Deputy Registrar of the Sydney Registry of the Court is hereby appointed pursuant to section 106A of the Family Law Act to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.
9.That the parties have liberty to apply on 7 days notice in respect of the implementation of these orders.
10.That the wife pay the husband’s costs of and incidental to these proceedings.
In final submissions Counsel for the husband suggested that an appropriate division of the net assets of the parties would be 50/50 based on the contributions that both parties had made with a further adjustment in favour of the wife of 10-15% so the overall adjustment of the net assets between the parties was somewhere between 60% and 65%. That submission was based on their being a splitting order in the wife’s favour of a reasonable proportion so that the husband is not left with virtually no current realisable assets. Counsel for the husband submitted that a splitting order should be made in relation to the superannuation fund which would give the wife more than the husband from the superannuation fund.

CREDIT

Counsel for the wife submitted that having heard the evidence of both parties, particularly in cross examination, where there was a conflict in the evidence between the husband and wife in relation to matters of a financial nature that is unsupported by documents I would have no hesitation in accepting the evidence of the wife.
Counsel for the wife submitted that during the course of cross examination the husband was evasive, vague, avoided giving direct responses and gave false responses which he corrected once shown documents. I agree with those submissions.
The husband is clearly an intelligent man who I found was fairly well aware of what his financial affairs were. He however presented as somebody who had been physically ill and who had suffered from depression as a result of his physical illness, the breakdown of his marriage and the cessation of a relationship with his children. Whilst I accept that these matters in some way may have affected the husband’s ability and motivation to prepare his case I formed the overall view that on many occasions he was simply conveniently not remembering what had happened with particular funds.
The evidence in relation to his interest in his late aunty’s estate is particularly unsatisfactory. It was conceded that he has a one sixth interest in one third of her estate (there being 3 sets of siblings and he being one of 6 of one of those sets of siblings). There is in the late mother’s estate two pieces of real estate in the Philippines. The husband sought to bring no evidence in relation to those pieces of real estate. He contented himself with initially asserting that his interest in the estate was “not sure but this is in the Philippines; $1,000. Not included??? In item 52 of his financial statement sworn 1.3.04 (exhibit E)”. He then said that he had given his interest in that estate away to his mother to provide for any future debts that might arise as a result of medical treatment or other attendance to her health needs.
Counsel for the husband on the other hand said that I should find that the wife hardly ever gave a responsive answer and reminded me that there was one occasion where I cautioned the wife to answer a question. Counsel for the wife relied upon the wife’s evidence that at the time she left the matrimonial home she took a number of items (one of which was a computer that had been broken). Counsel for the husband showed me a document during argument for the purpose of me ruling on its admissibility. It was not admitted into evidence. It nonetheless submitted that I could rely upon my reading of that document to accept that that document itself must have been received on a computer at the home, a computer that was not broken. I am unable to rely upon a document which is not in evidence. The wife gave oral evidence that her home computer had been broken when she received it but had subsequently been fixed.

I don’t agree with Counsel for the husband’s characterisation that the wife hardly ever gave a responsive answer.
Counsel for the husband also submitted in relation to the children’s matter, which was settled, that the only explanation in the difference of the girls’ behaviour between the first report and the second report must be the mother’s influence on the girls in respect of their father. He said that that should be taken into account in relation to the issue of credit. Given the settlement of the children’s matter no evidence was lead in relation to those issues and I am certainly not able to reach the conclusion which Counsel for the husband invites.
During the course of cross examination the husband was not an impressive witness. On occasions he was very vague and was unable to give meaningful answers. On a general assessment of credibility of the parties I would accept, where there is a conflict, the evidence of the wife.

POOL OF ASSETS

There has been substantial agreement in relation to the values to be attributed to those assets and liabilities contained in the pool of assets, which are set out in the table below. “Determined” in the agreed/determined column in that table indicates items for which no value has been agreed. A determination has been made in relation to contentious items for the reasons set out after the table:

Assets

Item no. Title Description H value W value Agreed/ Determined Value

1 J P $490,000 $490,000 Agreed $490,000

2 H Sale proceeds of M, F1, F2 held on trust by wife's solicitors after payment out of Virgin Credit card ($27,605) $95,197 $95,197 Agreed $95,197

3 H Preliminary distribution (15.11.05) $35,000 $35,000 Agreed $35,000

4 H Further distribution 29.11.05 $15,040 $15,040 Agreed $15,000

5 H Further distribution 11.1.06 $15,000 $15,000 Agreed $15,000

6 H Hyundai car $5,000 $5,000 Agreed $5,000

7 H Household contents $5,000 $5,000 Agreed $5,000

8 H Gateway Credit Union savings account $4,040 $4,040 Agreed $4,040

9 H Westpac savings account $336 $336 Agreed $336

10 H Tax refunds years 2003, 2004 and 2005 (add backs) Nil $29,434 Determined $29,434

11 H Comm Super (…) $34,602 $34,602 Agreed $34,602

12 H Family Superannuation Fund, including funds held in investment account by wife's solicitors $132,859 $132,859 Agreed $132,859

13 H Funds withdrawn by husband from CBA account and from CDIA account $38,442 $38,442 Agreed $38,442

14 H Funds short paid by husband (orders 23.11.05) $5,000 $5,000 Agreed $5,000

15 H Mortgage redraws F2 property ($10,878 on 23.2.04) and home loan ($3,945 on 20.1.04) (add backs) Nil $14,823 Determined $14,823

16 W Land at T, Queensland $30,000 no evidence Determined $30,000

17 W Preliminary distribution (15.11.05) $35,000 $35,000 Agreed $35,000

18 W Further distribution 29.11.05 $15,040 $15,040 Agreed $15,000

19 W Further distribution 11.1.06 $15,000 $15,000 Agreed $15,000

20 W AMP Superannuation (as at 15.11.05) $8,159 $8,159 Agreed $8,159

21 W NAB account not contested $4 Determined $4

22 W Toyota Tarago (1992 Gli) not contested $9,350 Determined $9,350

23 W Household contents not contested $10,000 Determined $10,000

Total assets $1,042,246

Liabilities

Item No. Title Description H value W value Agreed/ Determined Value

24 J Mortgage P $168,978 $168,978 Agreed $168,978

25 J Capital gains tax $50,000 $50,000 Agreed $50,000

26 H Westpac visa card $9,000 nil Determined $0

27 W NAB visa card nil $4,000 Determined $2,000

28 W NAB bankcard nil $500 Determined $500

29 W Personal loans D & G nil $6,000 Determined $0

30 W Distribution funds reasonably expended by wife nil $3,925 Determined $0

31 W Outstanding household and other expenses nil $3,138 Determined $0

Total liabilities $221,478

Total net assets $820,768

TAX REFUNDS RECEIVED BY THE HUSBAND (Item 10)

The husband conceded that he received tax refunds for the 2003 tax year (on 7 June 2005) in a sum of $12,253. He received a tax refund for the 2004 tax year (on 22 July 2005) in the sum of $8,165.
He received a tax refund for the 2005 tax year (on 21 April 2006) in the sum of $9,016.
The husband was given an opportunity to provide further details as to what he had done with these funds. These three amounts add to $29,434 which is the figure on the balance sheet for tax refunds the husband received. The husband’s gut feeling was that these monies had been put into his savings account or paid on credit cards.
The total tax refunds received by the husband are therefore in the sum of $29,434.00. There was an issue between the parties as to whether or not the money received by the husband from these tax refunds should be added back. There was no issue that the husband received the funds. The husband however failed to explain what happened to the tax refunds. He produced no documentary evidence. His evidence is that he thinks he might have given one, two or perhaps all three of the tax refund cheques to his daughter by way of gift or loan. His evidence in relation to the use of the tax refunds was entirely unsatisfactory and the husband failed to inform the court as to what had actually happened to them.
Counsel for the husband argued that these amounts should not be added back in their entirety because some of the money was referable to tax on post separation income. The parties separated in December 2003 so it is reasonable to infer that one half of the first tax refund cheque and the whole of the second and third tax refund cheque did relate to post separation income that was earned by the husband.
Given that the husband has provided no adequate explanation as to what happened to the tax refunds, I will add them back. I will refer to the tax refunds further when I deal with the issue of the contributions the parties have made towards assets.

MORTGAGE REDRAWS – F2 PROPERTY (Item 15)

It is common ground that the husband withdrew amounts from the mortgage redraws F2 property totalling $14,823. Counsel for the husband argued that these amounts should not be added back against the husband because they were used to pay out the liability on the husband’s Honda motor vehicle. That motor vehicle is included in the list of the husband’s assets (at the sum of $5,000). There is however a lack of evidence from the husband as to what happened with the amounts that he took by way of redraw on the mortgage. It was put to the husband in cross examination that the amount paid off on the lease was $3,250. The husband did not adopt that figure. I accept that some of the $14,823 went on lease payments on the Hyundai motor vehicle but I cannot on the evidence say how much it was and based on what the husband said it wasn’t the whole of it. Again I think the safest course is to add that amount back against the husband given that he has provided no adequate explanation as to what he has done with these funds. In a general way I will take into account when assessing contributions the fact that he has used some of these funds to make some payment on the lease on his motor vehicle.

HUSBAND’S PERSONAL LIABILITIES (Item 26)

The debt in relation to the husband’s Westpac visa card was not a debt that existed at the date of separation. I have insufficient evidence to conclude that this debt relates to necessary post separation expenditures. I do not intend to add it back.

WIFE’S LAND AT T (Item 16)

The husband allowed in evidence as to the listing price the wife’s land on sale at T. Other evidence of the highest offer so far received was not admitted. There is no real valuation evidence of the land at T. The only evidence I have is the wife’s evidence as to the price in which the land is listed. Given that that is the only evidence and there is an onus on the wife to provide proper valuation evidence I will adopt the figure of $30,000.

WIFE’S PERSONAL LIABILITIES (Items 27-31)

The wife gave some evidence about her current level of personal debt. In paragraphs 11 and 12 of her affidavit sworn on 17 March 2006 the wife says that her Visa card at separation was $2,000 and her Bankcard at separation was $500.
The wife gave evidence that an application for public housing that she made was declined in August 2005 because of her property ownership in the former matrimonial home.
The wife also led evidence that she currently has a debt to Centrelink in the sum of $2,440 for payments they made to her which were in excess of her entitlements.
The wife also tendered evidence from B College indicating that part of her personal liabilities related to school fees in the sum of $2,518.50.
The husband points out that since separation and up until just before the commencement of the hearing the husband was paying child support at the assessed rate (an amount of about $54,000 since separation).
The wife’s personal liabilities were acquired by her after the separation. I do not intend to add those liabilities into the net assets and liabilities of the parties.

GLOBAL v ASSET BY ASSET APPROACH

The parties commenced a relationship in February 1986 and commenced living together in rented premises in Melbourne in September 1987. They were married on 14 February 1988. The parties separated in December 2003, having had three children. The parties were therefore together for at least 16 years. It was not suggested by either Counsel that an asset by asset approach would be appropriate in this matter and I adopt a global approach.
Whilst I have been invited to make a general assumption that the wife has expended sums in a reasonable way since the separation, the wife has not led specific evidence to satisfy me that her personal debts should be included as reasonably expended post separation personal living expenses.

CONTRIBUTIONS

At the commencement of the hearing Counsel for the wife indicated that it was the wife’s position that contributions to the date of separation should be seen as equal. The wife sought a 5% adjustment in her favour for contributions made by her in the role of parent since the separation. She points to the fact that not only has she been the person primarily responsible for attending to the needs of the children (and exclusively so since April 2005), those contributions have been made more difficult than they normally would be because of M’s medical condition.
The husband from his point of view says that the contributions of the parties should be looked at on the basis that the husband made more significant contributions to the date of separation than did the wife and any imbalance in contributions since separation would be offset by that fact leading to a position where contributions on an overall basis should be seen as equal.
I have already referred to the fact that this is not a short marriage. Both parties on the material I have before me have made significant contributions over a long period of time.

Initial contributions

It is agreed that at the commencement of the cohabitation in 1986 the husband had land in the Philippines. There is no evidence about what it was worth at the date of cohabitation. That land was sold in November 1995 for $60,000 but the parties did not receive the whole of the benefit of those sale monies. It is agreed that the parties ended up with about $16,000. The remainder of the monies were put into a fish farming venture in the Philippines involving the husband’s family. That venture did not go well. It appears to be agreed that the balance of the funds from the sale of the property were lost in that business venture.
The wife does not assert that these monies were lost deliberately or that there was any wanton recklessness by the husband in investing these monies in this venture. Consequently the whole of the $60,000 that came from the sale of the husband’s property in the Philippines in 1995 should be seen as a contribution by the husband.
The wife asserts that she had $11,000 in savings at the date of the marriage.
In paragraph 20 of her affidavit sworn 9 June 2005 the wife says that she borrowed from the Commonwealth Bank approximately $100,000 in total in respect of the purchase of a property at M, in about 1989. The wife said in her affidavit “and I used my savings of $11,000 and I recall my mother sending my bank books down to me from Sydney so that I could withdraw these funds”. She gave oral evidence that one of the amounts were deposited in a St George account and there was only one St George branch in Melbourne and she had difficulty withdrawing the funds.
The wife was cross examined about whether or not she had any documentary evidence to support that contention. She was asked about the source of her accumulating $11,000 whilst she was living in a commune. She indicated that her mother and her grandmother had given her money and that she had also received a payout from Telecom. Subsequent questions in relation to her income with Telecom did not however lead to any inference that any significant amount of the $11,000 could have come from the payout from Telecom. The wife said that the bank books might still be in the home at P including bank books with St George and the State where she said these monies were deposited.
Counsel for the husband said that there was controversy about the wife’s alleged contributions. He pointed to the fact that the wife did not assert in her original affidavit that the source of the $11,000 in savings at the date of the marriage was money from her mother and grandmother.
He said that I should be suspicious of the fact that the wife could not find bank books from 1988 and asserted that I should conclude that the wife could have been able to have obtained copy records from the bank in relation to these deposits by her. I reject both of those submissions.
Counsel for the husband submitted that the wife clearly chose that her mother should not give evidence (and he made a Jones and Dunkel submission in relation to that choice).
On balance the wife on her oath has said that her recollection is that she had $11,000. Although she has not produced any documentary evidence and some doubt has been cast in cross examination over whether or not her allegation should be accepted, on balance I accept what she says on her oath.
The wife says she was gifted $15,000 from her mother in 1994 for the purposes of completing the property at M. Again the husband did not in evidence deny that that had happened.
The wife says that her mother in 1996 made $8,000 available to her at the time that the parties purchased the P property. The husband simply says that he was unaware of any gift that the wife’s mother made at that time. He does not deny that such a gift was possible.
Counsel for the husband submitted there were no bank records produced evidencing receipt of these monies. Again he submitted that it would have been a simple matter to obtain those records from the bank. Again he made a Jones and Dunkel submission in relation to failing to call the wife’s mother to give evidence about these matters.
Again on balance, and notwithstanding the Jones and Dunkel submission, given that I found the wife a witness of credit I accept on balance her evidence in relation to the two contributions of $15,000 and $8,000.

Contributions during the marriage

There was no detailed cross examination of either party of their contributions during the marriage. I accept the wife’s submission that overall both parties during the marriage did the best that they could towards contributing towards their mutual wealth and the wellbeing of the family. I find that the wife was the primary parent involved with M’s care and that that care was at a level that was higher than normal given M’s medical condition. She stayed alone with C for six months to complete the M property.
Counsel for the wife submitted at the opening that I should on an overall basis assess contributions to the date of separation as equal and I find it is appropriate for me to do so.

Contributions after separation

At the date of the hearing the parties have been separated two and a half years. Apart for a short period, the wife has not lived in the matrimonial home since March 2004. The wife’s mother has provided accommodation to the wife and the children after separation.
The wife in her affidavit (at paragraphs 28 through to 45) sets out a great deal of detail in respect of the constant care she is required to provide M. The wife was not tested on any of that evidence.
Counsel for the husband submits that I should find that the mother has chosen to exclude the father from M’s care and as a result she should not be entitled to make a submission relying upon her contribution in that area.
I am unable to make a finding that the mother has excluded the father from M’s care. Whilst I am prepared to accept from the cross examination of the husband and the wife’s evidence in re-examination that she did nothing proactive to restore the relationship between the father and the children, I have no evidence at all that the father did anything to offer assistance.
I take into account that one half of the first tax refunds and all of the second and third tax refunds arise from tax taken on the husband’s post separation earnings.
After separation the husband supported negatively geared property from income earned by him and capital drawn by him (which has been added back against him).
I conclude there should be some adjustment in favour of the wife for post separation contributions.

Conclusion in relation to contributions

Taking all the matters that I have discussed into account I conclude that based on contributions the net assets of the parties should be divided between them as to 52.5% to the wife and 47.5% to the husband.

SECTION 79(4)(d) – (g) FACTORS

The wife is presently aged 46 and is in fair health.
The husband is aged 56 and has had corrective coronary surgery. The wife asserts that the husband’s health is such that he is able to return to work but he has not done so.
By the commencement of the trial the only medical evidence that the husband had filed was an affidavit by Dr D, a consultant physician and cardiologist. Dr D had been seeing the husband since 2000 and in 2005 had recommended to the husband that he have surgery. As at 7 October 2005 the doctor anticipated that cardiac surgery would be carried out within the next three months. The doctor said that the husband was able to continue with his job which was sedentary in the meantime. The doctor anticipated a three month convalescent period following cardiac surgery and that assuming there were no complications he would be hospitalised for ten days after the operation. The husband had surgery in December 2005. There were complications which required the husband to be re-hospitalised in January.
The husband gave oral evidence that prior to the operation he sought a second opinion from another cardiologist, Dr A. Dr A is the husband’s treating cardiologist whom the husband has been consulting since his second operation. Dr A was not called to give evidence in the husband’s case.
The husband was on full benefits with his company for a period of five months after the initial operation.
In February 2006 the husband spent four days on a self drive holiday through and around Tasmania. It is clear from the evidence that the husband gave that the husband felt depressed at that time. It is notable however that he was physically able to look after himself on 28 February 2006 notwithstanding the fact that his second operation had only taken place on 13 January 2006. The husband said he felt depressed and wanted to be alone. The husband also travelled up north to Queensland to the Gold Coast and Cairns on separate trips in about April 2006. He said he stayed in a caravan park on that occasion. Again this is evidence of the husband’s ability to look after himself physically. The husband indicated that he felt depressed about his medical condition and his inability to see his children and he even contemplated relocating to warmer weather in circumstances where he wasn’t going to be able to see his children.

The husband gave evidence that he attended his place of employment on 1 and 2 May to have discussions with the company about his future. The husband has given some contradictory evidence as to what precisely this status was with the company.
In his affidavit sworn on 18 May 2006 at paragraph 5 he says this:-
“I commenced sick leave from my employer […] on 28 December 2005. I continued to be on sick leave and from 1 June 2006 I have elected to be placed on trauma leave which will last for one year. On sick leave my pay was $90,000 pa gross or $60,000 pa net. Until 1 June 2006 I was receiving the sum of $4,615.38 per month. From those I paid child support of $1,950 per month and the mortgage on the former matrimonial home at [P]. The mortgage is $1,350 per month. From the balance of those monies from sick pay I paid on medical bills, heart medicine, the gas, utilities, gas and petrol, groceries and outstanding expenses related to the Victorian investment properties.”
The husband said that he had incorrectly described in paragraph 5 of his affidavit that he had been placed on trauma leave for one year. He said the discussions he had with the company were to the effect that he should access the benefits of the sickness insurance taken out by the company superannuation fund. The husband’s oral evidence was that he was advised by an officer of the company to seek social security payments as a way of grounding a claim for sickness entitlements under an insurance policy.
The husband says that for that reason he made an application to Centrelink for the payment to him of a sickness benefit. An updated financial statement (exhibit E) indicates that the husband’s social security income is $205 per week. The husband in evidence described this as a “sickness allowance”.
The evidence given by the husband is somewhat contradicted by documents produced under subpoena by the husband’s employer. Exhibit 11 is a leave form from the husband’s employer which indicates that the company believes that the husband is on leave without pay for three months between 1 June 2006 and 1 September 2006.
The husband originally said that he is going to have to go back and see Dr A for another medical certificate for the month of August.
The husband asserts that he is keen to resume full time employment and that once he gets medical clearance to do so his employer would have no problem with him doing that.
The husband’s June 2006 remuneration totals $104,633 per annum. That package includes the compulsory 9% superannuation and another amount of $8,259 per annum that the husband contributes to superannuation voluntarily by way of a salary sacrifice arrangement. The figures that he gives in paragraph 5 of his most recent affidavit are figures after those superannuation contributions have been made. His net pay received for the months of February, March, April and May of 2006 was $5,153 per calendar month or $61,636 net per annum.
Since 7 June 2006 the husband’s child support has been adjusted back to a little over $20 per month. The husband acknowledges that that creates a burden on the wife and I am satisfied that he is genuine in his wish to return to work.
It was suggested by Counsel for the wife that what had happened in the last month or two was a construct by the husband for the purposes of these proceedings. That submission is inconsistent with the husband’s oral expression that he wishes to return to work as soon as his health permits him to do so. The husband isn’t currently seeking any medical treatment in relation to any mental problem but he says he is seeing his pastor.
The evidence in relation to the husband’s future medical prognosis is vague.
Exhibit G is a hearsay document from Centrelink tendered as a business record. It came in the form of a hearsay document tendered as a business record from Centrelink (exhibit G). In that document Dr A, the husband’s current treating cardiologist, indicated that he had examined the husband on 20 June 2006 and provided an opinion that the husband was temporarily unfit for work/study from 29/12/05 to 31/12/06 inclusive. The box was ticked that the husband couldn’t currently do his usual work or study or any other work for eight hours or more per week. This certificate was inconsistent with the husband’s previous oral evidence that the certificate given by Dr A had only been for one month and he had to get an updated one.
I find that notwithstanding the physical and psychological problems that the husband has suffered in the second part of 2005 and the first part of 2006, that the husband will go back to work sooner rather than later. I do find that the husband, once these proceedings are over, will probably be able to refocus on his future and will go back to his former employment. That employment provides him with an earning capacity in excess of $100,000 per annum.
If I am wrong in relation to my finding in respect of the husband’s earning capacity it seems clear that he will in any event be entitled to an insurance benefit which will provide him with two thirds of his salary (about $67,000 per annum).
The husband does not appear to have any annual leave or long service leave available to him.
The wife is dependent on Centrelink benefits. Shortly prior to the commencement of the hearing child support payments were reduced to a minimal level. That will improve once the husband returns to full time employment. The wife’s earning capacity is severely compromised by the history of her work experience during the marriage but more particularly her need to care for the children. As previously mentioned, M suffers from spastic quadriplegia cerebral palsy. C was born in 1993 and the twins in 1997. The husband’s daughter J commenced to reside with the parties in September 1988 at the age of 14 and stayed until she was nearly 18. Throughout the marriage the wife assumed the primary care of the children and the husband assumed the role of providing the income for the household. He has been in his present employment since 1999. The wife currently has no capacity to obtain any meaningful paid employment and that is likely to continue into the future.
I take into account the assets that both parties would be entitled to from the net assets based on findings I have made in respect of the contributions they have made to those assets.
The wife is the primary carer of the three children of the marriage. C is aged 13 and the twins are aged 9. She will continue to be their primary carer.
The husband is a member of his self managed superannuation fund “Family Superannuation Fund”. On the evidence before me the amount in that fund is $171,301 ($132,859 + $38,442). I would propose that the wife would receive a base amount from the fund of $132,859. The evidence is that a further payment of $5,000 will mean that the fund is a complying fund. The husband has not fully complied with the order that was previously made and I will make a new order to reflect the current circumstances as they have been presented to me.
Both parties have interests in accumulation funds, the husband in his employer-funded Superannuation ($34,602) and the wife in AMP ($8,159).
I take into account that the amount that the wife will need to expend on accommodation for herself and the three children will exceed the amount that the husband would need to accommodate himself.
I take into account my finding that the husband will soon return to the paid workforce and as a consequence the child support that will be paid by him will significantly increase.

Conclusions in respect of Section 79(4)(d) – (g) factors

Given the matters referred to in the previous discussion, I conclude that the adjustment that should be made in favour of the wife for s.79(4)(d) – (g) factors is 15%.

JUST AND EQUITABLE

Considering the division based on contributions and adjustments for s.79(4)(d) – (g) matters, an overall adjustment of 67.5% to the wife and 32.5% to the husband is indicated.
I would propose that the husband receive an amount of $50,000 from joint funds and that he be responsible for the payment of the outstanding capital gains tax.
Counsel for the wife submitted that the husband should take the majority of the superannuation to maximise the amount that the wife would have available to her by way of capital to re-accommodate herself and the children.
In order to achieve a distribution which would give the husband some reasonable capital in the short term, the wife will need to take a significant amount of the superannuation. When discussing s.79(4)(d) – (g) matters I propose an order that would provide a splitting order in favour of the wife of a base amount in the sum of $132,859.
The table below sets out the distribution of the assets and liabilities between the parties which would be as follows:-
Husband: $266,750 (32.5%)
Wife: $554,018 (67.5%)
$820,768

DISTRIBUTION

H gets - 32.5%

ASSETS

Item No. Description Percentage Value

1 P Property 100% $490,000

3 Preliminary distribution (15.11.05) 100% $35,000

4 as above 100% $15,000

5 Further distributions (29.11.05; 11.1.06) 100% $15,000

6 Hyundai car 100% $5,000

7 Household contents 100% $5,000

8 Gateway Credit Union savings account 100% $4,040

9 Westpac savings account 100% $336

10 Tax refunds years 2003, 2004 and 2005 (add backs) 100% $29,434

11 Comm Super (husband’s Employer) 100% $34,602

13 Funds withdrawn by husband from CBA account and from CDIA account 100% $38,442

14 Funds short paid by husband (orders 23.11.05) 100% $5,000

15 Mortgage redraws F2 property ($10,878 on 23.2.04) and home loan ($3,945 on 20.1.04) (add backs) 100% $14,823

2 Sale proceeds of M, F1, F2 held on trust by wife's solicitors after payment out of Virgin Credit card ($27,605) 53% $50,000

LIABILITIES

Item No. Description Percentage Value

24 Mortgage P Property 100% $168,978

25 Capital gains tax 100% $50,000

H pays W

$255,919

H Net Assets

$266,750

W gets - 67.5%

ASSETS

Item No. Description Percentage Value

2 Sale proceeds of M, F1, F2 held on trust by wife's solicitors after payment out of Virgin Credit card ($27,605) 47% $45,197

12 Family Superannuation Fund, including funds held in investment account by wife's solicitors 100% $132,859

16 Land at T, Queensland 100% $30,000

17 Preliminary distribution (15.11.05) 100% $35,000

18 Further distribution 29.11.05 100% $15,000

19 Further distribution 11.1.06 100% $15,000

20 AMP Superannuation (as at 15.11.05) 100% $8,159

21 NAB account 100% $4

22 Toyota Tarago (1992 Gli) 100% $9,350

23 Household contents 100% $10,000

LIABILITIES

Item No. Description Percentage Value

26 Westpac visa card 0% $2,000

27 NAB bankcard 0% $500

W receives

$255,949

Net Assets

$554,018

As can be seen by the above table the husband will be given an opportunity to retain the P property, refinance the current mortgage on the property and pay the wife out. If he is not able to do that within a period of six weeks then the property should be listed for sale.
The amount the husband would have paid the wife had there been a sale is in the sum of $255,949.
Notionally allowing $10,000 for the cost of agents fees and the costs associated with the sale, the amount that the parties would receive on a sale of the property after payment of the mortgage would be $311,022 (490,000 – 168,978 - 10,000).
A payment to the wife of $255,949 is 82% of the net proceeds of the sale after payment of sale costs and discharge of the mortgage (255,949/311,022). If there is to be a sale, then that is the percentage of the equity in the matrimonial home after sale costs that the wife will receive.
The wife will also receive the balance of funds held in trust (which after $50,000 are taken from it for capital gains tax is, on the evidence before me, the sum of $45,197).
Otherwise the parties will retain the assets and liabilities that are currently in their respective names.
Standing back and looking at that distribution on an overall basis, I consider that this is a distribution of assets and liabilities which is just and equitable.

PROPOSED ORDERS

The parties have agreed that an amount of $50,000 should be put aside in trust for the purposes of paying outstanding capital gains tax liabilities arising from the sale of properties. In final submissions there was a debate as to the source from which those funds should come. Given the delay in the delivery of this judgment, that debate has become academic. The time for the filing of the tax return is March 2007. In argument it seemed agreed that the tax would be payable at that time. The payment of that debt from the Australian Tax Office should come from available funds (the source of which were the sale of the properties upon which the tax debt arose) and I have set out above how that would be achieved.
In the event that the husband fails to raise the necessary funds to take the opportunity to retain the home and it has to be sold, there may be some delay before the wife receives funds pursuant to a sale. In those circumstances she should be paid some amount to acknowledge an occupancy fee by the husband. Given the value of the property I set an occupancy fee at $450 per week and the wife would be entitled to receive 67.5% of that amount, namely $304 per week, between six weeks from the date of these orders and the date of final payment to her. This will also provide some encouragement to the husband to cooperate in a sale of the home in circumstances where he is unable to raise funds.
The orders that I have made only give the husband a limited window of time to purchase the property. Once that time has expired then the wife has the right to insist upon a sale.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date: 1 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PLACIDO & PLACIDO

[2007] FamCA 120

1 March 2007

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Appeal

Costs

Damages

Jurisdiction

Remedies

Statutory Construction

Assets
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
1	J	P	$490,000	$490,000	Agreed	$490,000
2	H	Sale proceeds of M, F1, F2 held on trust by wife's solicitors after payment out of Virgin Credit card ($27,605)	$95,197	$95,197	Agreed	$95,197
3	H	Preliminary distribution (15.11.05)	$35,000	$35,000	Agreed	$35,000
4	H	Further distribution 29.11.05	$15,040	$15,040	Agreed	$15,000
5	H	Further distribution 11.1.06	$15,000	$15,000	Agreed	$15,000
6	H	Hyundai car	$5,000	$5,000	Agreed	$5,000
7	H	Household contents	$5,000	$5,000	Agreed	$5,000
8	H	Gateway Credit Union savings account	$4,040	$4,040	Agreed	$4,040
9	H	Westpac savings account	$336	$336	Agreed	$336
10	H	Tax refunds years 2003, 2004 and 2005 (add backs)	Nil	$29,434	Determined	$29,434
11	H	Comm Super (…)	$34,602	$34,602	Agreed	$34,602
12	H	Family Superannuation Fund, including funds held in investment account by wife's solicitors	$132,859	$132,859	Agreed	$132,859
13	H	Funds withdrawn by husband from CBA account and from CDIA account	$38,442	$38,442	Agreed	$38,442
14	H	Funds short paid by husband (orders 23.11.05)	$5,000	$5,000	Agreed	$5,000
15	H	Mortgage redraws F2 property ($10,878 on 23.2.04) and home loan ($3,945 on 20.1.04) (add backs)	Nil	$14,823	Determined	$14,823
16	W	Land at T, Queensland	$30,000	no evidence	Determined	$30,000
17	W	Preliminary distribution (15.11.05)	$35,000	$35,000	Agreed	$35,000
18	W	Further distribution 29.11.05	$15,040	$15,040	Agreed	$15,000
19	W	Further distribution 11.1.06	$15,000	$15,000	Agreed	$15,000
20	W	AMP Superannuation (as at 15.11.05)	$8,159	$8,159	Agreed	$8,159
21	W	NAB account	not contested	$4	Determined	$4
22	W	Toyota Tarago (1992 Gli)	not contested	$9,350	Determined	$9,350
23	W	Household contents	not contested	$10,000	Determined	$10,000
Total assets			$1,042,246
Liabilities
Item No.	Title	Description	H value	W value	Agreed/ Determined	Value
24	J	Mortgage P	$168,978	$168,978	Agreed	$168,978
25	J	Capital gains tax	$50,000	$50,000	Agreed	$50,000
26	H	Westpac visa card	$9,000	nil	Determined	$0
27	W	NAB visa card	nil	$4,000	Determined	$2,000
28	W	NAB bankcard	nil	$500	Determined	$500
29	W	Personal loans D & G	nil	$6,000	Determined	$0
30	W	Distribution funds reasonably expended by wife	nil	$3,925	Determined	$0
31	W	Outstanding household and other expenses	nil	$3,138	Determined	$0
Total liabilities			$221,478
Total net assets			$820,768

DISTRIBUTION
H gets - 32.5%
ASSETS
Item No.	Description	Percentage	Value
1	P Property	100%	$490,000
3	Preliminary distribution (15.11.05)	100%	$35,000
4	as above	100%	$15,000
5	Further distributions (29.11.05; 11.1.06)	100%	$15,000
6	Hyundai car	100%	$5,000
7	Household contents	100%	$5,000
8	Gateway Credit Union savings account	100%	$4,040
9	Westpac savings account	100%	$336
10	Tax refunds years 2003, 2004 and 2005 (add backs)	100%	$29,434
11	Comm Super (husband’s Employer)	100%	$34,602
13	Funds withdrawn by husband from CBA account and from CDIA account	100%	$38,442
14	Funds short paid by husband (orders 23.11.05)	100%	$5,000
15	Mortgage redraws F2 property ($10,878 on 23.2.04) and home loan ($3,945 on 20.1.04) (add backs)	100%	$14,823
2	Sale proceeds of M, F1, F2 held on trust by wife's solicitors after payment out of Virgin Credit card ($27,605)	53%	$50,000
LIABILITIES
Item No.	Description	Percentage	Value
24	Mortgage P Property	100%	$168,978
25	Capital gains tax	100%	$50,000
H pays W		$255,919
H Net Assets		$266,750
W gets - 67.5%
ASSETS
Item No.	Description	Percentage	Value
2	Sale proceeds of M, F1, F2 held on trust by wife's solicitors after payment out of Virgin Credit card ($27,605)	47%	$45,197
12	Family Superannuation Fund, including funds held in investment account by wife's solicitors	100%	$132,859
16	Land at T, Queensland	100%	$30,000
17	Preliminary distribution (15.11.05)	100%	$35,000
18	Further distribution 29.11.05	100%	$15,000
19	Further distribution 11.1.06	100%	$15,000
20	AMP Superannuation (as at 15.11.05)	100%	$8,159
21	NAB account	100%	$4
22	Toyota Tarago (1992 Gli)	100%	$9,350
23	Household contents	100%	$10,000
LIABILITIES
Item No.	Description	Percentage	Value
26	Westpac visa card	0%	$2,000
27	NAB bankcard	0%	$500
W receives		$255,949
Net Assets		$554,018