REBANE & REBANE
[2012] FamCA 970
•22 November 2012
FAMILY COURT OF AUSTRALIA
| REBANE & REBANE | [2012] FamCA 970 |
| FAMILY LAW - PROPERTY SETTLEMENT – Long marriage – Whether the Court considers the husband’s initial contributions should increase his percentage entitlement based on contributions despite the parties’ long marriage – Where the parties have no liabilities – Where concerns were raised as to the wife’s financial disclosure throughout the proceedings – Where the parties agreed to an in species division of certain items – Where the parties agreed for the wife to have the opportunity to buy out the husband’s interest in the former matrimonial home – How the Court should deal with a potential bequest under a will – Where an adjustment was made under section 75(2) in relation to the husband’s health and retirement and the wife’s current income and future earning capacity and matters globally FAMILY LAW - SUPERANNUATION – Where the parties established a self-managed superannuation fund and were in receipt of allocation pension from that fund – Whether a superannuation splitting order should be made as sought – Whether a lump sum payment in respect of superannuation entitlements would be preferable to extinguish the parties’ financial relationship |
| Family Law Act 1975 (Cth) |
| Black & Kellner (1992) FLC 92-287, 15 Fam LR 343 Tomasetti & Tomasetti (2000) FLC 93-023, 26 Fam LR 114, [2000] FamCA 314 Weir & Weir (1993) FLC 92-338, 16 Fam LR 154 |
| APPLICANT: | Mr Rebane |
| RESPONDENT: | Ms Rebane |
| FILE NUMBER: | PAC | 4877 | of | 2011 |
| DATE DELIVERED: | 22 November 2012 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 14 June, 16 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Jill McIntosh |
| SOLICITOR FOR THE APPLICANT: | Ms Michelle Collyer Peter Cornock & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr John Shaw |
| SOLICITOR FOR THE RESPONDENT: | Mr Philip Bell Hills Legal |
Orders
The wife within three months (3) of the date of these Orders shall pay to the husband the sum of $685,567. Upon payment of such sum by the wife to the husband, the parties shall do all things and execute all documents necessary to transfer the husband’s interest in the property situate at and known as O Street, K suburb, being the whole of the land comprised in Folio Identifier …(hereinafter called the “property”) to the wife.
That in the event that the amount specified in Order 1 above is not paid in its entirety by the wife to the husband within the time specified then the parties shall forthwith, upon the expiry of the period of three (3) months, do all things and execute all documents necessary to procure and complete a sale of the property by private treaty at a sale price of $1,100,000, or such other price as the parties shall agree to in writing.
That in the event that a sale by private treaty is not the subject of a binding exchange of contracts within six (6) months of the date of these Orders, the parties shall do all things and execute all documents necessary to offer the property for sale by public auction. In the event that the parties cannot agree upon an auctioneer, such auctioneer shall be appointed at the request of the parties jointly by the President for the time being of the NSW branch of the Australian Institute of Valuers.
That the reserve price for the property at auction shall be as agreed between the parties in writing, and failing agreement, as determined by the auctioneer on the day of the auction.
Upon completion of any sale of the property, the parties shall deal with and distribute the proceeds of sale then arrived at as follows:-
(a)In payment of all agents fees and commissions properly incurred in such sale, including auction expenses.
(b)In payment of all legal fees and disbursements properly incurred in such sale.
(c)In payment to the wife an amount equivalent to 37.7 per cent of the amount then arrived at. The wife shall then pay to the husband from part thereof a sum of $30,000 in respect of superannuation entitlements.
(d)In payment to the husband of the balance of the proceeds of sale then arrived at, together with the sum of $30,000 in respect of superannuation entitlement (as per Order 5(c) above).
That the husband shall give vacant possession of the property to the wife upon her payment to him of the sum specified in Order 1 above.
That each of the parties shall give vacant possession of the property to enable completion of a sale of the property to a third party following the sale of the property either by private treaty or auction as hereinbefore provided.
That contemporaneously with payment of money required to be made by the wife to the husband pursuant to Order 1 above, the wife shall pay to the husband a further sum of $30,000 in respect of superannuation entitlements.
That in the event that the wife fails to make payment to the husband of the sum of $30,000 pursuant to Order 8 above, the husband shall be granted leave to make an application for a superannuation splitting order.
That the wife, subject to the foregoing Orders, shall be entitled to retain as her sole property, both at law and in equity and to the exclusion of the husband, the following items:-
(a)Her crystal collection;
(b) Her business;
(c) Her jewellery;
(d) Her motor vehicle;
(e) Her shares;
(f) Her bank accounts; and
(g) Her superannuation entitlements.
That the husband, subject to the foregoing Orders, shall be entitled to retain as his sole property, both at law and in equity and to the exclusion of the wife, the following items:-
(a)His motor vehicle;
(b)His mower, tent and tools;
(c)His bank accounts;
(d)His jewellery; and
(e)His superannuation entitlements.
That I note the Orders made on 16 July 2012 make provision for the parties to divide between them items of personalty and contents of the former matrimonial home.
That I otherwise dismiss all outstanding applications and cross-applications.
That all issues be removed from the Active Pending Cases List.
That all material produced upon subpoena be returned not before fifty-six (56) days from the date of these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rebane & Rebane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4877 of 2011
| Mr Rebane |
Applicant Husband
And
| Ms Rebane |
Respondent Wife
REASONS FOR JUDGMENT
Introduction
This matter involves the determination of the parties’ respective entitlements in matrimonial property following the breakdown of a 20 year marriage. The parties are not young; they were in their late sixties and early seventies respectively when the matter came on for hearing. There are no children of the marriage and the parties remained separated under the one roof at the time of hearing.
The matter occupied two days of hearing before me. The matter was initially listed for reserve hearing and not reached. The issues were then narrowed and on the assurance of counsel for the parties that it could be contained within one day, a one day fixture was allocated. A further one day of hearing was later required because the evidence had not concluded within the first day.
Since the conclusion of the hearing, I have had the benefit of written submissions prepared by counsel for both of the parties.
This was clearly a long marriage. On the evidence before me, the husband appeared to make by far more significant financial contributions than the wife. This was in fact his case, in that he sought a 70/30 division of the matrimonial assets in light of his greater initial contributions. It was also the husband’s case that the wife’s evidence should be approached with caution and he should receive an adjustment because of her lack of financial disclosure, or her conduct in that regard. As for the wife, she sought that the husband’s initial contributions not be given undue weight; rather she sought the Court focus on the length of the marriage. Her case presented with some difficulty in that she could not articulate with precision where monies came from, and did not make full and frank disclosure as to certain assets, in one instance, not until the second and final day of hearing. It was further her case that the Court could not be satisfied of the extent of the husband’s contributions in light of the husband not placing before the Court documentary evidence in support of his purported contributions.
Fortunately for these parties, there are no liabilities to factor into this property settlement.
The parties were in agreement as to several matters. They agreed to each retain certain assets, and I made Orders to this effect on 16 July 2012. They agreed that the wife should be given the opportunity to buy out the husband’s interest in the former matrimonial home. Further, it was agreed that an amount the wife had placed in long term deposit accounts for two of her minor nephews be added back into the asset pool.
The parties’ documents
The husband sought to rely on the following documents:-
a)His Initiating Application filed 17 October 2011;
b)His updated Financial Statement verified by affidavit sworn 30 April 2012 and filed 2 May 2012;
c)An affidavit of himself sworn 30 April 2012 and filed 2 May 2012; and
d)A short supplementary affidavit of himself sworn 8 June 2012 and filed 13 June 2012.
The wife, for her part, sought to rely on the following documents:-
a)Her Response filed 12 January 2012;
b)Her updating Financial Statement verified by affidavit sworn 22 May 2012 and filed 22 May 2012;
c)Her affidavit sworn 11 May 2012 and filed 15 May 2012; and
d)A short supplementary affidavit of herself affirmed 29 May 2012 and filed 6 June 2012.
Orders sought by each party
The husband seeks orders as set out in his minute of order attached to a case outline prepared at the time of reserve hearing. In this regard, he seeks in summary the following:-
a)That the parties sell the K suburb property by private treaty for the best price reasonably obtainable, and in this regard the property be listed for sale with vacant possession. In the event the property is not sold within three months, he seeks that it be sold by auction.
b)On settlement of the sale, he seeks the sale proceeds be disbursed in a certain manner so as to pay all costs and expenses relating to the sale, to discharge the mortgage and pay any outstanding rates and taxes, and then the net balance be divided 70 per cent to himself and the remaining 30 per cent to the wife.
c)He seeks that the remaining property of the parties be divided 70/30 in his favour.
d)He seeks that the parties agree to divide the furniture between themselves, and failing agreement, the parties choose from two lists.
e)He seeks the wife retain the porcelain and crystal collection and jewellery in her possession and be declared sole owner of her business. He seeks he retain the gardening machines and tools and be indemnified from any liabilities arising from the wife’s business.
f)He seeks a superannuation splitting order that he be allocated 70 per cent of the total superannuation of the parties.
g)He seeks that the parties be declared sole owners of other property including motor vehicles, moneys to their credit in bank accounts and so forth, and that the parties be solely liable, and indemnify the other, against any liability in their respective names.
The wife seeks orders as set out in her minute of order attached to her counsel’s written submissions prepared following the conclusion of the evidence. In this regard, she seeks in summary the following:-
a)That the husband transfer to her within 120 days from the date of order his interest in the K suburb property upon her paying the husband a sum of $550,000.
b)In the event she cannot comply with the above order in buying out the husband’s interest in the former matrimonial home, she seeks the property be sold by private treaty and the net proceeds of the sale be divided equally between the parties. If the property is not the subject of a binding contract for sale within 3 months, she seeks the home then be sold by public auction and the net proceeds be divided equally.
c)She seeks a declaration that she be sole owner of her porcelain and crystal collection, her business, her jewellery, a motor vehicle, her shareholding in Insurance Australia Group, monies to her credit in three different banks, household items listed in Annexure C to her affidavit sworn 11 May 2012 (which were already made as per my Orders of 16 July 2012) and all other items in her possession, control and disposition.
d)She seeks a declaration that the husband be sole owner of his motor vehicle, a ride-on mower, tent and power tools, money in his ANZ bank account, household items listed in Annexure B to her affidavit sworn 11 May 2012 (as I have already said, which were made as per my Orders of 16 July 2012) and all other items in her possession, control and disposition.
e)She seeks to pay to or receive a payment from the husband to ensure the parties each receive 50 per cent of the net pool of assets.
f)As to superannuation, she seeks the husband be declared sole owner of funds to his credit in Colonial First State Allocated Pension Fund and that a splitting order be made to allocate a base amount of $35,325 out of her interest in her Colonial First State Allocated Pension Fund to the husband.
Brief background
The husband was born in 1940 and as at the time of hearing, he was 71 years of age.
The wife was born in 1944 and as at the time of the hearing, she was 67 years of age.
The parties commenced cohabitation in about 1989 or 1990. There was dispute as to the date of cohabitation, with the wife producing notes made several years after when she says cohabitation commenced, suggesting it was sometime in July 1989. On the husband’s evidence, the parties did not commence cohabitation until about early 1990. It appears that it is agreed that the parties commenced cohabitation in the husband’s property in B suburb.
At the time of cohabitation, the husband worked in the business Pty Ltd.
The husband divorced his first wife in March 1990. He has two children from that marriage.
The parties then married in 1991. At this time, the parties were in their late forties to early fifties and there were no children of their marriage.
In about October 1992, the husband sold his B suburb property and the parties then rented for the following two years.
In about November 1992, the parties purchased a vacant block of land at K suburb and then proceeded to build the former matrimonial home. There was much evidence as to the contributions of each party to the construction of the home and landscaping of its surrounds on that property.
The parties moved into the property in about 1993 or 1994 once the construction of the home was complete.
In about 1994 or 1995, the husband allocated superannuation funds to the wife.
In about 1999 or 2000, the husband sold his interest (then a third share) in A Pty Ltd, and thereafter worked as a sales representative until about 2005. He says he received about $300,000 from the sale and placed the funds in a joint account.
In about 2001, the wife received an inheritance from her mother’s estate in the sum of $21,000.
In about 2004 or 2005, the husband says he sold his G property and then purchased F property in his sole name.
In about July 2005, the husband says he sold his F property and placed the sale proceeds in the parties’ joint account held with ANZ Bank.
Between 2005 and 2007/2008, the husband says he did some subcontract work about three days per week.
In about 2006, the wife commenced her business, M business, in the garage of the matrimonial home. Around this same time the husband transferred $215,000 into her superannuation fund on advice from his accountant.
In about 2007 or 2008, the husband retired.
In about 2008, the husband says his superannuation fund with Colonial First State was set up to allocate a pension to himself ($84,000) and to the wife ($153,000).
On 1 October 2010, the husband had surgery for prostate cancer.
In about mid November 2010, the parties separated on a final basis under the one roof. The wife says it was on the 15th of the month, whereas the husband says it was on the 16th of the month.
In about May 2011, the wife took over the main bedroom and moved the husband into the spare room when he was away from the home.
In about September 2011, the husband sold shares he had with Telstra and placed the monies in his ANZ bank account.
On 17 October 2011, the husband filed an Application for Final Orders.
On 14 December 2011, the parties attended upon Registrar Bartlett for a financial conference. The matter remained unresolved.
On 12 January 2012, the wife filed a Response to the husband’s application.
On 21 February 2011, the parties attended upon Registrar Bartlett for a further conference. The matter still remained unresolved and was then set down for hearing.
On 22 May 2012, the matter was before myself for a reserve hearing of two days but was not reached. At that time valuations were incomplete but the parties narrowed the issues in dispute and sought only a one day fixture.
On 14 June 2012, the matter was before me for the one day allocated hearing. I heard evidence from the husband and then some evidence from the wife. The matter did not conclude within the timeframe counsel for both parties had assured the Court it would and so the matter was stood over part-heard for a further day to be allocated and directions were made as to further discovery by each party.
On 25 June 2012, the husband’s application for divorce was granted in the Federal Magistrates Court and became absolute on 26 July 2012.
On 16 July 2012, the matter was again before me and the evidence of the wife was concluded. There was insufficient time on the day for counsel for both parties to make oral submissions and so I ordered counsel to forward written submissions to me in chambers.
On that date, I also made the following final property Orders:-
1. That the wife is declared to be the sole and absolute owner of the items set out and detailed in the document Annexure C of her affidavit sworn 11 May 2012 and filed 15 May 2012.
2.That the husband is declared to be the sole and absolute owner of the items set out and detailed in the document Annexure D of the wife’s affidavit sworn 11 May 2012 and filed 15 May 2012.
3. That the parties shall make such arrangements as are necessary for each party to obtain possession of those items within seven (7) days of the dates ordered for either the wife to purchase the husband’s interest in the former matrimonial home or an order for sale of the property to a third party as the case may be.
The husband’s case
The husband’s counsel delivered written submissions for my assistance on 27 July 2012.
It is the husband’s case that there has been a lack of proper disclosure of her financial affairs by the wife. It is further submitted that her credibility was damaged to the extent that her evidence should be approached with caution. His counsel makes reference to settled case law in this area such as the Full Court decisions of Black & Kellner[1] and Weir and Weir[2], and a more recent Full Court decision of Chang & Su[3] that discusses the relevant authorities.
[1] (1992) FLC 92-287, 15 Fam LR 343
[2] (1993) FLC 92-338, 16 Fam LR 154
[3] (2002) FLC 93-117, (2002) 29 Fam LR 406, [2002] FamCA 156
The husband seeks that I include in the pool of assets the monies held in two trust accounts set up by the wife in the names of her two minor nephews, totalling a sum of $19,588, which were only disclosed on the second and final day of hearing. He also seeks I add back monies the wife has paid to date in legal fees, being a sum of some $29,786.
It is his case that the wife has attempted to conceal her true financial circumstances throughout the hearing and has been evasive, for example, in proving bank statements with blacked out portions. It is his case that the wife’s conduct has led to added hearing costs.
Prior to the hearing, the husband agreed to a valuation of the wife’s business at $2,080. However, in his written submissions, his counsel indicates the husband no longer agrees with that valuation given the wife’s evidence that she obtained funds from an undisclosed source.
Given what he says has been non-disclosure by the wife, he seeks an adjustment in his favour under section 75(2) of the Family Law Act 1975 (Cth), in particular pursuant to subparagraphs (b) and (o).
As to contributions, it is the husband’s case that his initial contributions were significant and vastly superior to that of the wife. It is submitted on his behalf that his contributions can be traced throughout the marriage. He owned several properties during the parties’ marriage and it is his case that he unilaterally paid all expenses, including mortgage repayments, for those properties. He concedes the wife made a small financial contribution in relation to the K suburb property and some of its fittings. It is his case that the wife only came into the parties’ relationship with furniture and porcelain and did not have $40,000 in savings as she has recently asserted.
It is his case that throughout the marriage up until his retirement, he earned “double” that of the wife, and he contributed his income to the benefit of the parties and their home. Further, it is his case that all of the parties’ retirement funds is attributable to him, and he is almost solely responsible for the parties having no liabilities. It is submitted that his direct and indirect financial contributions to the marriage “dwarf” that of the wife’s, even with her case at its highest. He says the wife’s direct financial contributions were limited by the low income earned by her, a WorkCover entitlement and a small inheritance.
It is his case that he equally contributed as a homemaker and partner. He submits he supported the wife in her business. He acknowledged the wife’s domestic contributions but submitted they be balanced against his contributions in that regard and that their comfortable lifestyle was brought about by his significant financial contributions.
The husband opposes the adjustment sought by the wife for what she says is a loss of pension entitlement.
As to evidence in relation to the wife’s friend, Ms C, the husband seeks a Jones v Dunkel[4] inference be drawn against the wife for not having put an affidavit on in support of her case by Ms C. He seeks the Court draw an inference in relation to (a) representations he says the wife made in relation to Ms C bequeathing to her a certain amount of money under a will, and (b) the wife’s evidence that Ms C had offered to loan her monies to assist her purchase the husband’s share of the former matrimonial home.
[4] (1959) 101 CLR 298
As to section 75(2) factors, the husband has been treated for prostate cancer, is retired and is several years older than the wife. He is reliant on his Centrelink income tested pension and his superannuation funds. On the other hand, he submits the wife has no health issues and continues to earn an income through her business. As noted above, he seeks the wife’s non-disclosure be taken into account and an adjustment be made in his favour in this regard.
The wife’s case
The wife’s counsel delivered written submissions for my assistance on 17 September 2012.
It is the wife’s case that the parties’ marriage was a long marriage, of over 21 years in duration on her version of events, and in light of this and the Court’s “extraordinarily wide” discretion in proceedings such as these, significant weight should be placed on the length of marriage and the non-financial contributions, as opposed to placing emphasis on their respective financial contributions. Her counsel urges me to arrive at a decision which is just and equitable to the parties, which I am of course obliged to do.
I am referred to a line of authority, and the very recent decision of Murphy J in Smith & Fields[5], as to ‘special contributions’, and the removing of the requirement (as per the 1983 amendments to section 79 of the Act) for there to be a nexus or causal link between a spouse’s contribution and specific property.
[5] [2012] FamCA 510
The wife endeavoured to satisfy the Court that the parties commenced cohabitation in mid 1989, rather than in early 1990 on the husband’s case. I am of the view that little turns upon this disputed fact, and am satisfied there can be no doubt the parties were in a long marriage.
Part of the wife’s case is that the husband has not been able to satisfy the Court (by way of any supporting evidence) as to what he says were the parties’ initial contributions. She submits her assertion she had $40,000 in savings at the commencement of cohabitation is not a recent invention; rather, she did not communicate the fact she had such savings directly to the husband at the time and as such, it is not unsurprising he does not have knowledge of such savings of hers.
The wife challenges the husband’s recollection of events and discredits his evidence, submitting he has a “very poor lack of recollection”. Her counsel submits that the wife has been prudent in conducting historical title searches to test the husband’s evidence, and has been able to discredit the husband’s version of events, for example, as to the husband’s alleged equity in his property at the time of cohabitation; the husband failing to put before the Court mortgage liabilities of some $70,000 at that time.
It is submitted that the husband has failed to place before the Court evidence in support of his contributions, both financial and non-financial. For example, her counsel makes reference to the husband failing to produce any documentary evidence in support of his alleged $100,000 in savings at the commencement of cohabitation, his financial contributions to the improvement of the K suburb property and his receipt of $300,000 from the sale of his one-third interest in the business A Pty Ltd.
The wife says the husband has also failed to provide any documentary evidence in support of his taxable income over the period of the marriage, and his broadbrush approach that he earned twice as much as the wife overlooks his downscaling of work and then retirement in the later years of the marriage.
It is submitted that the wife has been able to establish by corroborative evidence and/or concessions by the husband that she made certain contributions to the marriage.
As to credit, the wife’s counsel conceded the wife may have conducted herself in a “foolish” manner on a mistaken assumption that her financial affairs were private post-separation. Despite this concession, it is submitted on her behalf that she should not be stigmatised to the extent of the Court making a finding that she deliberately fabricated evidence in the proceedings. Her counsel submits that whilst the wife did not bring the two trust accounts totalling $19,588, which she had established for the benefit of her nephews, to the Court’s attention earlier in the proceedings (such evidence coming into evidence only on the final day of hearing), the wife concedes that such amounts be included in the balance sheet as an add-back.
It is her case that as to the husband’s credit, he was “either someone who was careless with the truth or inclined to exaggerate his contribution”. Her counsel detailed an example in his written submissions as to the husband miscalculating a contribution to a home improvement in the vicinity of $5,000. It is submitted on her behalf that the husband had a tendency to “pluck a figure from the air” and swear to its truth.
It is the wife’s case that the parties’ legal fees should not be added back into the balance sheet. It is also her case that there should be an addback of the monies received by her from Colonial First State in respect of superannuation to the extent that they exceed distributions the husband.
As to the wife’s potential expectation under the will of her friend Ms C, it is submitted that there was no probative evidence that would support that this is a financial resource of the wife, or that this could be a consideration the husband could rely upon generally under section 75(2)(o) of the Act. It is also her case that she may be able to receive a personal loan from her friend Ms C to assist her in purchasing the husband’s share in the K suburb property.
As to the Jones & Dunkel (supra) inference the husband’s counsel seeks be drawn from the wife not putting on an affidavit from Ms C, her counsel submits that such a submission is something of a two-edged sword. Her counsel says an alternate inference that could be drawn is that Ms C was not prepared to commit herself to assisting the wife with a loan.
It is submitted that the wife was “a more meticulous keeper of records than the husband” and therefore greater credence should be given to her claims as to contributions. She submits the husband has no solid ground for asserting his contributions represent 70 per cent of the net asset pool in light of his failures to satisfy the Court with documentary evidence in support of his initial contributions. She submits that her home-making contributions, carried out whilst she was earning an income to support the parties, should be given weight.
The crux of her case is that the parties’ contributions should be regarded as equal given their long marriage. If the Court is not minded to make a finding that the overall contributions of the parties should be on an equal basis, it is strongly submitted by the wife’s counsel that the differential should be no more than 2.5 per cent.
As to section 75(2) factors, the wife is some four years younger than the husband and does not have any serious health issues at present. She receives a modest income of uncertain duration. She seeks any disparity regarding the parties’ respective earning capacities be dealt with by adjusting the parties’ superannuation entitlements. She also receives a Centrelink pension, which is income-tested, and will be affected by the sale of the former matrimonial home. Her current allocated pension exceeds the husband’s by $163 per week.
The wife seeks a two month period in which to acquire the husband’s interest in the former matrimonial home. Her default position is that the home be sold and the net sale proceeds be divided equally between the parties.
The hearing before me
As I have said, the matter was initially before me for reserve hearing for two days but was not reached. The parties were, however, able to narrow the issues in dispute and then sought a one day fixture be allocated.
The one day hearing took place on 14 June 2012. The husband’s evidence was concluded but the wife’s evidence was only completed in part. The matter was then, as I have said, allocated a further day of hearing.
The further day of hearing was allocated within a relatively short period of time, one month later, on 16 July 2012. On that day, the wife’s evidence was concluded but there was insufficient time for either counsel to give oral submissions.
Counsel for each party was then ordered to forward written submissions to chambers and I reserved written Judgment.
What do i make of the evidence of the parties
Counsel for each of the parties put to me that their client is to be believed and the other party not believed. It is asserted by counsel for the wife that the husband’s recollection was far from perfect and that the wife was a meticulous record keeper and maker, and that her evidence was to be preferred. The husband’s counsel asserts that the wife was dilatory in producing material and in fact was deliberately withholding material and continues to do so. The husband’s counsel also submitted that the wife, in effect, continued to expand her evidence in order to meet the needs of the case.
I formed the view that the husband was endeavouring to be truthful in the evidence he gave the Court. He asserts that records that might have assisted him were removed by the wife. I was not able to reach a concluded view in this regard, but I am satisfied that records that might have assisted the husband were not able to be put before me. I am satisfied the husband’s recollection is by no means perfect, especially when dealing with matters that occurred a considerable time in the past.
I accept there were some shortcomings in the husband’s evidence. He did not indicate that at the commencement of cohabitation a property that he owned was subject to a mortgage. He was uncertain as to his actual contributions to improvements made in and around the property.
However, I am satisfied that these errors were not deliberate, but rather the result of lapses of memory over a period of time.
The wife’s evidence caused me considerable concern. I found that she was determined to be selective as to the information that she made available and the timing with which this was done. The wife’s case, indeed, seemed to expand so as to explain matters that required explanation as the case developed. In my view, much of the material that was put before the Court in this fashion could, and should, have been made available at a much earlier stage in the proceedings.
There was considerable argument as to the amount of money the wife had at the commencement of cohabitation. In correspondence forming part of Court’s Exhibit 1, the wife appears to agree with the proposition that at the commencement of cohabitation she had the beginnings of her porcelain and crystal collections and her contents.
In her affidavit sworn 11 May 2012 at paragraph 16, she asserts that she had $40,000 but the husband was not aware of this. Further, she did not provide information when it was sought as to the monies dealt with by her. She established trust funds for her two nephews. I note from the balance sheet that it is now agreed these amounts should be added back. Further, the wife was slow to indicate that she had received monies by way of an inheritance from her mother and a WorkCover claim, which she says she used to make payments for the benefit of the household.
The evidence concerning her mother’s estate is somewhat indirect. She relies upon a cheque she made available to her brother in the amount of $20,667.90, referred to in an affidavit affirmed by her on 29 May 2012. She asserts that she and her brother were to share equally in their mother’s estate; an identical amount was received by her.
The wife indicated that she had blacked out parts of documents that she produced because others had done this to her. She certainly was not in a position to say that she had provided material in a timely and appropriate fashion.
She is asserted to be a meticulous record keeper. If this be so, her omission of amounts that she received and dealt with is even more unsatisfactory. Her determination to keep documents back for as long as possible, to obfuscate and her redacting of material in documents indicate to me that her evidence is unreliable.
Where there is genuine conflict between the parties, I accept the husband’s evidence, and even where the husband does not specifically contradict the evidence of the wife, I believe that her evidence must be examined with care.
The law to be applied
Both parties have been at pains in their written submissions to direct me to the proper manner in which a property matter should be heard and determined.
The Court is obliged by the provisions of s 79(4) of the Family Law Act 1975 (Cth) to take into account the following matters:-
a)The financial and non financial contributions made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation and improvement of any of the property to the parties to the marriage or either of them (subparagraphs (a) and (b)).
b)The contribution made by a party to the marriage to the welfare of the family including any contribution made in the capacity of homemaker or parent (subparagraph (c)).
c)The effect of any proposed orders upon the earning capacity of either party to the marriage (subparagraph (d)).
d)The matters referred to in s 75(2) of the Act so far as they are relevant (subparagraph (e)).
e)Any other order made under the Act affecting a party to a marriage or a child of the marriage (subparagraph (f)).
f)Any child support payable (subparagraph (g)).
Accordingly, in assessing the entitlement of each of the parties to property settlement, there is both a retrospective element relating to contributions of each of the parties and a prospective element relating to matters referred to in s 75(2).
According to the guidelines established through a series of leading decisions, the Court should determine the following matters on the evidence:-
a)Firstly, the Court must determine the assets, liabilities and financial resources of the parties to the marriage as at the date of the final hearing.
b)Secondly, the Court must consider all relevant contributions of each of the parties and, where possible, assign an entitlement, expressed in percentage terms of each of the parties as earlier assessed on account of contribution as is deemed necessary having regard to those s 75(2) factors.
c)Thirdly, the Court should then consider the prospective components of the claim of each of the parties arising as a result of the provisions of s 75(2). The Court should then identify what alterations, if any, should be made to the entitlement to each of the parties as earlier assessed on account of contribution as is deemed necessary having regard to those s75(2) factors.
d)Fourthly, having regard to the entitlement of each of the parties then arrived at, it is necessary to stand back and look at the result thus achieved to ensure that it is in all the circumstances fair and equitable to each of the parties.
The pool of assets
The parties prepared a final Balance Sheet following the conclusion of the hearing. To their credit, they have very largely agreed upon the identification and valuation of items to be included.
There is dispute as to the value of the wife’s business, M business. The only evidence that I have that provides any acceptable basis for a figure is the sum of $2,080. I intend to include the business at that value.
In addition, the wife contends for an addback relating to the manner in which the parties chose to use superannuation funds. I am not persuaded in this case that it would be appropriate for me to do that and accordingly, I will make no attempt to add back any value attributed to what the parties themselves have chosen to do.
Similarly, the wife contends that I should addback the proceeds of IAG shares sold by the husband post-separation. The wife attributes to this an amount of $3,400. There was no cross-examination of any significance concerning this amount. In the circumstances, I am prepared to assume that the husband utilised those monies for expenses properly incurred by him.
The final matter in respect of the pool of assets is the issue of legal fees. The wife asserts that she has paid $29,786 for legal fees. I have no equivalent figure for the husband.
I am of the view that the parties’ legal fees in relation to this matter would be approximately equal and accordingly, I do not intend to make any adjustment, nor addback any figure or figures in this regard.
I note that the wife in the most recent (and final) Balance Sheet concedes that an amount of $19,588 should be included, representing the monies that she allocated to her nephews. Accordingly, this amount will be included.
Thus, the pool of assets of a non-superannuation nature is as follows:-
Non-superannuation assets
Former matrimonial home at K suburb (Joint) $1,100,000
Porcelain & Crystal collection (Wife) $5,355
M business (Wife) $2,080
Motor vehicle (Husband) $10,000
Jewellery (Wife) $6,710
Mower, tent and tools (Husband) $2,745
Motor Vehicle (Wife) $4,000
IAG shares (Wife) $2,852
ANZ Bank savings (two accounts) (Wife) $14,319
Bendigo Bank savings (Wife) $2,424
ANZ Bank savings (Husband) $8,000
Jewellery (Husband) $1,330
ANZ Bank accounts (ending ‘052 and ‘191) (Wife) $19,588
Total $1,179,403
As for the superannuation assets, I accept the figures attributed to the parties’ superannuation entitlements set out in the Balance Sheet. Accordingly, I am satisfied the value of the wife’s superannuation fund is $86,120 and the husband’s $40,867. Thus, the total value of superannuation entitlements of the parties is $126,987.
There are no liabilities asserted by either of the parties.
I am not satisfied that the parties have any financial resources of significance that I should take into account at this point. The husband asserts that the wife has a resource in the form of an anticipated inheritance, or expectation, from her friend Ms C. I am not satisfied that I should take this into account as a resource at this stage. I will revisit this aspect of the matter when dealing with the question of resources as forming a matter for consideration pursuant to section 75(2) of the Act later in these reasons for Judgment.
Thus, I am concerned with only the non-superannuation assets I have determined in the sum of $1,179,403 and the superannuation assets I have determined in the sum of $126,987. There are no liabilities and no resources that I need take into account so as to in any way interfere with or alter this sum.
Contributions
I turn then to the issue of contributions.
As noted above, I must consider all relevant contributions of each of the parties, and, where possible, assign an entitlement expressed in percentage terms to each of the parties as earlier assessed on account of contribution as is deemed necessary having regard to the factors set out under s 75(2).
Putting the wife’s evidence at its highest, she had some $40,000, the beginnings of her porcelain and crystal collections and household contents at the time cohabitation commenced. There is no doubt that the husband had two parcels of real estate valued at $250,000 and $190,000 respectively. I accept that there was a mortgage encumbering his B suburb property to the extent of $70,000.
Thus, the net value of those two properties in the husband’s hands was approximately $370,000. I accept the husband’s evidence that he had approximately $100,000 in savings at that point in time.
That would mean that at the commencement of cohabitation the husband had some $470,000 and the wife, making an allowance of $20,000 for the commencement of her collections and for her household contents and for the sum of $40,000 which she says she had and of which the husband was not aware, had in total $60,000. This means that the wife, at that stage, had slightly more than 10 per cent of the parties’ assets. These calculations do not include the value of a car and boat that I accept the husband subsequently sold to obtain funds for a watering system and carpeting of the home that the parties subsequently constructed.
During the marriage, the husband worked outside the home for a period of time. Also during the marriage, the husband, I am satisfied, sold his share in a business for approximately $300,000.
The husband had been involved with that business, had sold out of it and subsequently re-entered the business. Eventually, he sold what was then his one-third share, as I have said, for approximately $300,000. That sale occurred in about 1999. It is the husband’s case, and I accept, that the money was placed in a joint bank account.
The husband had sold his property at B suburb in late 1992. The sale price was approximately $251,000 and that property, as I have said, was subject to a mortgage. It is the wife’s case that she worked on that property – removing wallpaper, painting and redecorating for the property to be placed on the market.
Thereafter, following the sale, the parties lived in rented premises for approximately two years. I accept the husband paid the rent.
In late 1992, the parties purchased a block of land situate at K suburb for $189,000. I am satisfied that monies were borrowed on that occasion. The balance of approximately $49,000 was paid by the husband. The wife asserts that she had paid stamp duty of $5,000.
Thereafter, the parties borrowed a $150,000 from the ANZ Bank and contracted to have a home built on their land. The eventual cost of house and outer buildings was $36,000. It is the husband’s case that the cost thereof was met from the sale proceeds of the B suburb property and from savings. It is his case that the wife paid for one awning at a cost of approximately $11,000. It is common ground that the wife paid for curtaining and tiling, and the wife further claims that she contributed $20,000 for paving, awnings, pest control and weed spraying.
It is the husband’s case that between 1993 and 1997 he paid for improvements in the sum of approximately $100,000. As I have said, it is his case that he sold items to pay for a watering system and carpeting, and I accept that this was the case.
The wife asserts that the husband sold his G property in about 1994/1995. I accept that that sale did not occur until approximately 10 years later when the property was sold for approximately $190,000 and the husband purchased F property with the sale proceeds and without requiring a mortgage. Shortly thereafter, the property was sold and net proceeds of approximately $175,000 were placed in the parties’ ANZ joint account.
Those monies were then allocated to a personal superannuation fund in the wife’s name.
Subsequently in 2008, monies were used to establish an allocated pension for each of the parties. Both were with Colonial First State. An amount of $153,000 was placed into the wife’s name and an amount of $84,000 into the husband’s name.
During the marriage, the husband worked with A Pty Ltd. Following the sale of that business, he worked as a sales representative for approximately four years.
The wife worked spasmodically during the marriage, and late in the marriage, she established a small business which she conducts from the parties’ property. I am satisfied that throughout the marriage, the husband’s income significantly outweighed that of the wife. I am satisfied that the husband contributed his income for the benefit of the family. I am not satisfied that the same can be said of monies received by the wife by way of income during the marriage.
It is clear that the marriage in this case could be categorised as a long marriage. I am mindful of the decision of their Honours of the Full Court in cases such as Pierce & Pierce[6] and Cabbell & Cabbell[7]. In Pierce (supra), their Honours said at paragraph 28:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
Their Honours in Cabbell (supra) do not appear to have significantly altered that general proposition.
[6] (1999) FLC 92-844, 24 Fam LR 377, [1998] FamCA 74
[7] [2009] FamCAFC 205
I have also been referred in some detail to the decision of Murphy J in Smith & Fields (supra). Particularly, I was taken to paragraphs 18 and 19 of that Judgment, which I set out hereunder:-
18.There have been no relevant amendments to section 79(4) since 1983; the Court’s discretion is marked out by reference to the same mandatory legislative considerations that have applied for nearly 30 years. Thus, the assessment of contributions continues to be by reference to mandatory statutory considerations which:
· Make no mention of “special” or “extraordinary” contributions;
· Do not distinguish between the relative importance of financial or non-financial contributions or between direct and indirect contributions;
· Do not mark out any starting point – whether as to equality or otherwise;
· Offer no guidance as to how entirely different types of contributions are to be compared one against the other in arriving at a just and equitable result.
19. Thus, while expressions such as “special skills” or “special contributions” might be convenient enough as descriptors designed to compare the contributions in one case with those in another, s 79 makes no such reference, nor embraces any such concept, save that it mandatorily requires an evaluation of the matters set out in s 79 in arriving at a settlement of property between the particular parties to the particular marriage in all of its particular circumstances.
I have no argument with what His Honour says in those paragraphs. This is not a case where any claim for “special” or “extraordinary” contributions is endeavoured to be made out by the husband such as were referred to in the cases of, for example, Ferraro & Ferraro[8], Whiteley & Whiteley[9] and Stay & Stay[10]. With respect, I am in agreement with His Honour when he says that reference to statutory considerations do not assist in determining how to distinguish between the relative importance of financial or non-financial contributions, or between direct and indirect contributions, and further no guidance is offered as to how difference types of contribution are to be compared one against the other. No starting point is established. Similarly, I accept what His Honour said in paragraph 21 as to “marriage partnership”.
[8] (1993) FLC 92-335, 16 Fam LR 1
[9] (1992) FLC 92-304
[10] (1997) FLC 92-751, 21 Fam LR 626
In this case, I am satisfied that it was the real property, in particular, that the husband held at the commencement of cohabitation, together with the savings, which I have found I am satisfied he held, that enabled the subsequent acquisitions that the parties made. I am satisfied that in addition to non-superannuation assets, it was the monies provided by the husband from the sale of the Queensland property that made the two current allocated pension funds available. In this respect, the wife’s claim that because she asserted that monies she received were indeed made available to the husband but she suffered the consequential loss in benefits is, as I understand it, sought to be made out. I am not satisfied that there is anything to this argument. I am satisfied that what was done was done as a tax avoidance measure. I am not satisfied that the husband gained any advantage as his monies were used for the benefit of the household. Accordingly, I am not satisfied the wife suffered any loss in this regard.
I am satisfied that, notwithstanding the length of the marriage, the husband’s initial contributions, together with the contributions made by him during the course of the marriage, for example, outweigh those of the wife to a very significant degree so far as financial contributions are concerned. Making every allowance that I can, having regard to both Pierce (supra) and Smith & Fields (supra), and acknowledging that in a marriage, particularly a long marriage, the parties for themselves decide what is to be done by each of them for the benefit of each other, and giving such weight, as I can, to the wife’s evidence, I am satisfied that I must still recognise the husband’s contributions as outweighing those of the wife to a significant degree. In reaching this decision, I have taken into account the fact that the marriage was a long one, in excess of 20 years, and that during that time, as I have said, the parties made contributions within the “marriage partnership”.
Overall, however, I am satisfied that the husband must be recognised as having made a greater contribution than that of the wife, taking into account, as best I can, all of these matters. I am satisfied that that should be recognised by the husband being entitled to 57.5 per cent of the parties’ non-superannuation assets available for distribution. The wife is therefore entitled, based on contribution, to receive 42.5 per cent of those available, non-superannuation assets. The difference between those two percentage figures is 15 per cent, which in turn is represented by a figure of $176,910.45 of the non-superannuation asset pool.
I turn then to the section 75(2) factors to which I must have regard.
Section 75(2) Factors
The first of the matters I must take into account is the age and state of health of each of the parties (subparagraph (a)). The husband is now 72 years of age. His health is problematic and the evidence clearly establishes that he has had surgery for prostate cancer. The wife is 67 years of age and in good health commensurate with that age.
The next of the matters I must consider is subparagraph (b) as to the income, property and financial resources of the parties, and their physical and mental capacity for appropriate and gainful employment. Each of the parties has filed a statement of financial circumstances. In his document verified by affidavit sworn on 30 April 2012, the husband discloses an income of $542 per week, comprising both government benefits and superannuation income. The wife, for her part, in her document verified by affidavit sworn on 22 May 2012, discloses an income of $763 per week made up of income from her business, a government benefit and payment from Colonial First State (as to superannuation income). Thus, purely on income, the wife is in a superior position to that of the husband.
I have indicated earlier in these reasons for Judgment what I find the property of the parties to be and how I propose to deal with it based on contribution. On that basis, it is clear that the husband’s position is superior to that of the wife. I am satisfied that the husband is of an age and state of health that he is not in a position, nor will he ever be again, to be actively engaged in the workforce.
The wife has a small income attributable to her business and given this, she is in an superior position to the husband for the foreseeable future.
So far as resources are concerned, the husband has sought to make a good deal of a potential significant bequest to the wife contained in the will of Ms C.
The decision of White & Tulloch & White[11] makes it clear that the possibility of being a beneficiary under a will is, at best, a mere expectation. It is trite to say that a will might be altered at any stage prior to the death of the testator, and even following a testator’s death, there may be claims made against an estate which would oust or diminish the entitlement of a named beneficiary.
[11] (1995) FLC 92-640, (1995) 19 Fam LR 696
Further, I am asked to make a finding pursuant to the authority of Jones & Dunkel (supra) that the evidence of Ms C would not have assisted the wife. It is put in response that the husband himself could have sought to secure the attendance of Ms C had he thought that would assist his case.
Having regard to the matters that I have sought to set out, arising from the decision of White (supra) as to the capacity of a testator to alter a will up to the time of his or her death, I do not propose to draw any inference as sought by the husband. In those circumstances, I am not prepared to find that in this case the wife has, as a resource in her hands, any benefit she might obtain from Ms C’s will upon Ms C’s death.
Both parties, of course, have the resource of allocated pensions, and I will return to that later in these reasons for Judgment.
Neither party has control of a child of the marriage (subparagraph (c)), and indeed, there were no children of the marriage.
I then come to the commitments of either party necessary to enable them to support themselves (subparagraph (d)(i)). At the present moment, both parties are living under the same roof. That property, however, is the subject of a number of orders sought. Whatever happens, the parties will not continue to reside together in the former matrimonial home, and arrangements will have to be made either for the wife to acquire the husband’s interest, as she seeks, or if that cannot be achieved, then the property will need be sold and the proceeds will be divided in proportions that I determine.
Neither party has a responsibility to support any other person (subparagraph (e)).
I note that each of the parties receive a benefit from the Commonwealth and from a superannuation scheme (subparagraph (f)).
So far as their standard of living is concerned (subparagraph (g)), I am satisfied that the parties enjoyed a high standard of living during the period of their cohabitation. Unfortunately, on the material I have before me, and whatever the outcome of these proceedings, their respective ongoing standards of living will not be as high.
I am not satisfied that this is a matter where I need consider the effect of payment of maintenance (subparagraph (h)), which indeed is not sought.
I do not understand that any proposed order that I make will have effect on a creditor of either of the parties (subparagraph (ha)).
Under subparagraph (k), I take into account that the marriage was a lengthy one, but I am not satisfied that that has had any effect upon the earning capacity of either of the parties.
Subparagraph (l) is not applicable.
As to subparagraph (m), I am satisfied that neither party is cohabiting with any other person.
I propose to have regard to the findings I have already made as to the distribution of the parties’ assets based on contribution, and what that would mean to the parties.
Under subparagraph (o), I am to take into account any other matter that the justice of the case requires to be taken into account. In this case, the wife has throughout these proceedings been less than frank in relation to her financial affairs. She has been slow to put on material, and in some cases, has not provided material at all. Her evidence indicated to me that she was clearly trying to put her position as to what she had actually done in the best possible light, whilst seeking to obfuscate or conceal what it was that she actually had at any stage during the marriage, and particularly, the source from which she had received monies.
This is a matter that, in my view, following the line of authority in Black & Kellner (supra) and Weir & Weir (supra) enables me to say that I am not satisfied that the wife has made a proper and complete disclosure of her financial position so as to enable the Court to be fully appraised of her present situation. The authorities, to which I have referred, make it clear that in such a situation the Court should not be unduly cautious in accepting the evidence of the other party. In any event, I am satisfied that the wife’s method of conducting her case is such that it has unnecessarily prolonged the hearing, and as I have already stated, it leaves me with the uncomfortable impression that she has not satisfactorily made a proper disclosure of her financial situation. This is a matter that I believe I am required to take into account in the husband’s favour.
It is apparent the husband will receive a greater proportion of the parties’ assets based on contribution. However, the wife is in a superior position as to age, albeit, not to a very great degree. She has an ability to earn income, which the husband does not. The wife, as I have found, discloses a greater income from all sources than does the husband.
These matters are to be considered globally (see Tomasetti & Tomasetti[12]). Balancing them, as best I can, I have come to the conclusion that the husband should receive a further two and a half per cent of the asset pool, an adjustment of five per cent. Thus, the entitlements of the parties would be seen to be – as to the husband 60 per cent, and to the wife 40 per cent. This will mean that the husband will be entitled to receive some 20 per cent more than the wife of non-superannuation assets, or an amount in money terms of $235,880.60.
[12] (2000) FLC 93-023, 26 Fam LR 114, [2000] FamCA 314
I turn then to the superannuation assets.
Superannuation assets
So far as the superannuation entitlements are concerned, the figures produced are, by comparison to the other figures in this matter, modest. The wife has a superannuation entitlement, agreed between the parties, of $86,120. The husband has an amount of $40,867. It must be remembered, however, that the entirety of these funds were provided by the husband from monies he received, as referred to earlier in these reasons for Judgment.
In her minute of order, the wife proposes that a splitting order be made pursuant to section 90MT(1)(a) of the Act with a base amount of $35,325. This is certainly an appropriate manner in which to deal with the issue of superannuation. However, it is not, to my mind, the only way in which this can be done.
I am of the view that I should endeavour to bring all these parties financial dealings and entanglements to an end. To do so would, to my mind, enable these parties to enjoy their future without there being any interdependence one upon the other once a distribution of property has been made pursuant to my orders. To that end, I have determined that the manner in which I will approach the issue of superannuation is as follows.
The wife has included her superannuation at a figure of $86,120. That figure is not the subject of any challenge. The husband has included his superannuation in an amount of $40,867, also not the subject of challenge. A total of those amounts is therefore $126,987. I am conscious that the husband made the totality of those funds available. The wife has sought to receive some form of adjustment because she drew down monies which she asserted were in someway such that they inhibited the amount of pension she drew. I am not persuaded that this argument holds any weight.
In the circumstances, I am of the view that it would not be inappropriate to allocate within the superannuation fund an entitlement to the husband in the same percentage as I have reached on contribution within the non-superannuation asset pool (being 57.5 per cent to the husband and 42.5 per cent to the wife). This, to my mind, is, if anything, generous to the wife having regard to the manner in which the funds were created.
The figures then would be these:-
Superannuation assets
Wife’s superannuation $86,120
Husband’s superannuation $40,867
Total $126,987
If 57.5 per cent of that total fund is attributed to the husband, the amount produced is $73,017.50. The husband’s current funds are $40,867 and therefore the difference is $32,150.50. To my mind, it would be appropriate that the wife pay a slightly lesser amount, which I fix at $30,000, to the husband to deal with their superannuation entitlements. I specify a lesser amount because payment is to be made in the immediate future and will be a once and for all time payment which will bring to an end any interdependence of the parties in matters financial.
For the sake of completeness, the wife’s superannuation entitlement, being 42.5 per cent of the parties’ total funds, will be $53,969.50. The difference between her current funds and that amount is of course $32,150.50, and as I have set out above, I will order her to pay the discounted sum of $30,000 to the husband as to superannuation entitlements.
In the event that the wife does not make such payment, I will grant leave to the husband to make an application for a splitting order. I will grant such leave in the event of the wife buying out the husband’s interest in the former matrimonial home. However, in the event of the home being sold, I will make a specific order for her to pay such an amount from her proceeds of sale thereby removing the need for the husband to be granted such leave in that event.
I stand back then and look at the orders that I propose both as to superannuation and non-superannuation assets.
How this is then to be achieved?
I have calculated that the non-superannuation assets of the parties are $1,179,403. I have further determined that the wife is to receive 40 per cent of the value of those assets. That is a figure of $471,761.20.
The wife has in her possession the following:-
a)Her crystal collection $5,355
b)Her business $2,080
c)Her jewellery $6,710
d)Her motor vehicle $4,000
e)Her shares $2,852
f)Her ANZ bank account $14,319
g)Her Bendigo bank account $2,424
h)Her ANZ accounts (ending ‘052 and ‘191) $19,588
Subtotal $57,328
That amount must then be deducted from her entitlement of $471,761.20. The figures then are these:-
Wife’s non-superannuation asset entitlement $471,761.20
Less Wife’s current assets $57,328
Total$414,433.20
This then is the actual amount the wife must receive to realise her entitlement of the non-superannuation assets.
The wife has indicated that she wishes to endeavour to acquire the former matrimonial home. The husband does not oppose that course. The home has an agreed value of $1,100,000. Accordingly, the wife would have to pay to the husband the difference between the amount of $414,433.20 and the value of the home. The figures then are these:-
Former matrimonial home value $1,100,000
Less Wife’s entitlement to receive monies $414,433.20
Total $685,566.80
That is the amount that the wife would need to find to acquire the husband’s interest in the former matrimonial home. If that were the case, the wife’s position in respect of non-superannuation assets would be as follows:-
a)Former matrimonial home $1,100,000
b)Her current assets $57,328
Subtotal$1,157,328
Less amount required to be paid to the husband to acquire his interest
$685,566.80
Total$471,761.20
That figure is the wife’s entitlement as previously determined.
Additionally, I would require her simultaneous with that payment to pay an amount of $30,000 as previously arrived at to the husband to adjust the parties’ respective superannuation entitlements. That would mean she would be required to pay to the husband a total amount of $715,566.80.
I propose to give the wife three months in which to pay that amount. In the event that the wife is unable to arrange finance to acquire the husband’s interest then, of necessity, the former matrimonial home will have to be sold. In that case, the figures appear to be these:- The wife’s entitlement to receive monies as to non-superannuation assets is $414,433.20. She is to pay the husband a sum of $30,000 in respect of his superannuation entitlement.
However, rather than ordering a fixed sum be paid, I propose to order that the parties share by way of percentages in the sale price, in the event of a sale. This is clearly the preferred way to deal with proceeds of sale in a case such as this (see Docters Van Leeuwen & Docters Van Leeuwen[13]). If the sale price is approximately $1,100,000 (the figure on which the parties agree) and the wife is to receive a sum of $414,433 of the non-superannuation assets, she would then receive as a percentage of such sale price some 37.68 per cent. For convenience and ease, I will round this to 37.7 per cent.
[13] (1990) FLC 92-148, 14 Fam LR 130
Thus, in the event of a sale, I would propose to order that upon completion of the sale, the wife is to receive 37.7 per cent of the proceeds, and to pay to the husband there from the amount of $30,000 in respect of superannuation entitlements.
The end result for the husband is that, in the event that the wife pays him out, he will receive the amount I have previously determined of $685,566.80. I will round that for all practical purposes at $685,567. In addition, he is to receive the following items:-
a) His motor vehicle $10,000
b) His mower, tent and tools $2,745
c) His ANZ bank account $8,000
d) His jewellery $1,330
Subtotal $22,075
That amount added to the sum he is to be paid produces a figure of $707,642. This is the amount calculated to be 60 per cent of the non-superannuation assets of the parties available for distribution. The wife, according to my orders, will have to pay a further $30,000 to the husband in respect of superannuation entitlements. If she does not do so then there will be leave, as I have said, to the husband to relist the matter to seek a superannuation splitting order.
In the event that the property needs be sold then the husband will receive 62.3 per cent of those net proceeds of sale together with the sum of $30,000. In this case, I require the sum of $30,000 to be paid from the wife’s share of the proceeds of sale of the property. Thus, no leave for a splitting order would be required in the event of a sale.
I must turn then to determine if the result, to which I have come to at this point, is in all the circumstances just and equitable.
Just and Equitable
I have endeavoured to set out with some precision the figures that I believe are applicable in this matter.
I am satisfied that the percentage entitlements I have arrived at based on both contribution and section 75(2) factors are proper in all the circumstances and properly recognise the matters to be taken into account.
The amount the wife is to receive is in all the circumstances proper. It recognises the length of the parties’ marriage, the husband’s overwhelming contributions at the commencement of the marriage, but thereafter, I am satisfied, makes appropriate allowances for the contributions of each of the parties of a financial and non-financial kind to the marriage.
The wife is given the opportunity to acquire the husband’s interest in the former matrimonial home as she has sought. I have made orders to enable her to do this upon payment of what I find to be an appropriate sum of money to the husband, with provision for a sale of the property in the event that she is not able to acquire it. In all the circumstances, I am satisfied that three months is an appropriate time to endeavour to make arrangements for finance such as to enable her (if she can) to acquire the interest of the husband. The husband will receive, either by payment or upon sale of the property, a significant proportion of the monies that will either be paid or realised on a sale.
To my mind, a method of dealing with superannuation such as I have suggested with the wife paying a lump sum is just. It does require the wife to pay a lump sum, however, it will relieve her upon such payment of any further obligation towards the husband or leave her tied to him financially, or enmeshed with him financially, in any fashion. Thus, the parties will be able to go their own ways with their financial interdependence entirely severed.
I am therefore satisfied that the resolution that I have reached and the orders that I will make consequently are in all the circumstances just, proper and equitable.
Orders
The orders that I make are therefore set out at the commencement of these reasons for Judgment.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 22 November 2012.
Legal Associate:
Date: 22 November 2012
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