RICHARDSON & RICHARDSON
[2010] FMCAfam 829
•17 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RICHARDSON & RICHARDSON | [2010] FMCAfam 829 |
| FAMILY LAW – Property – litigation guardian appointed for disabled husband – wife’s special contributions as homemaker and parent and weight to be attached – consideration of s.75(2) factors on percentage at “monies worth basis”. |
| Family Law Act 1975, ss.75(2), 79 |
| Clauson and Clauson (1995) FLC ¶92-595 In the Marriage of Lee Steere and Lee Steere (1985) FLC ¶91-626 Russell v Russell (1999) FLC ¶92-877 Mallet v Mallet (1984) FLC ¶91-507 JEL and DDF (2001) FLC ¶93-075 Waters and Jurek (1995) FLC ¶92-635 Reed & Reed [2008] FMCAfam 663 JYC & DAC & Anor [2004] FMCAfam 363 |
| Applicant: | Mr Richardson |
| Respondent: | Mrs Richardson |
| File Number: | MLC 6489 of 2009 |
| Judgment of: | McGuire FM |
| Hearing date: | 1 June 2010 |
| Date of Last Submission: | 1 June 2010 |
| Delivered at: | Dandenong |
| Delivered on: | 17 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pavone |
| Solicitors for the Applicant: | Septimus Jones & Lee |
| Counsel for the Respondent: | Mr Sweeney |
| Solicitors for the Respondent: | Fogarty Lawyers |
ORDERS
That the husband shall within 60 days of the date of these orders:
(a)Transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(i)The [Property L] in the State of Victoria.
(ii)The [Property C] in the State of Victoria.
(iii)The motor vehicle in the possession of the wife.
(iv)The balance of any bank account or like investment in the name of or to the benefit of the wife as at the date of these orders.
(v)All personalty and chattels in the possession or under the control of the wife as at the date of these orders.
(vi)The wife’s superannuation policy and entitlement.
(b)Be solely responsible for and indemnify the wife in respect of the following:
(i)Any and all liabilities incurred by the husband since separation in either joint names or in his name alone.
(ii)Any and all liabilities attaching to any of the assets to be retained by the husband pursuant to these orders.
That the wife shall contemporaneously with the transfers referred to in paragraph (1)(a) hereof:
(a)Pay to the husband a lump sum of $78,711.00.
(b)Transfer and/or vest all her right, title and interest in the following to the husband absolutely:
(i)All personalty and chattels in the possession of or under the control of the husband as at the date of these orders.
(ii)Any motor vehicle under in the possession of or under the control of the husband as at the date of these orders.
(iii)The balance of any bank account or like investment in the name of or to the benefit of the husband as at the date of these orders.
(iv)The husband’s superannuation policy and entitlement.
(c)Be solely responsible for and indemnify the husband in respect of the following liabilities:
(i)The mortgage secured by [Property L] and/or [Property C] both in [omitted] the State of Victoria and that the wife shall use her best endeavours to obtain a release for the husband by the bank from his liability under that mortgage.
(ii)Any and all liabilities incurred by the wife since separation in either joint names or in her name alone.
(iii)Any and all liabilities attaching to any of the assets to be retained by the wife pursuant to these orders.
BY CONSENT IT IS ORDERED
That pursuant to Section 117 of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable by Mr Richardson to Mrs Richardson for the children [X] born [in] 1994 and [Y] born [in] 1996 as follows:
(a)From the date of this order the annual rate of child support be set at $5,640.00.
The child support referred to in paragraph (3) shall continue until
[omitted] July 2014.
The annual rate of child support fixed by paragraph (3) will increase annually from the date of the order in accordance with variations in the Consumer Price Index published by the Australian Government Statistician under the heading “all groups” for Melbourne.
That the husband pay to the wife further child support for the period
27 March 2009 to 11 September 2009 a further amount in the sum of $2,350.00, such amount to be paid within 21 days.
Within 21 days the husband pay to the wife the sum of $2,812.50 being 50 per cent of orthodontic expenses with respect to the child [X].
That both the husband and the wife pay 50 per cent of all reasonable orthodontic expenses with respect to the children [X] and [Y].
THE COURT DECLARES
A.That these orders are intended to finally determine the financial relationships between the parties with respect to Part VIII of the Family Law Act 1975.
IT IS NOTED that the publication of this judgment under the pseudonym Richardson & Richardson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Warrnambool |
MLC 6489 of 2009
| Mr Richardson |
Applicant
And
| Mrs Richardson |
Respondent
REASONS FOR JUDGMENT
These are proceedings for property settlement. The applicant is the husband, Mr Richardson. Sadly, his application is prosecuted by a litigation guardian given that [in] 1995 Mr Richardson was involved in a motor vehicle accident and sustained a brain injury and other significant injuries leaving him a non-verbal quadriplegic. Following some earlier interlocutory argument as to the status of the Administrator of Mr Richardson’s affairs, Mr W, Managing Director or [Business F], administrators of Mr Richardson’s estate, was appointed as litigation guardian for Mr Richardson by my order of 1 June 2010.
The parties’ proposals
The husband’s case is for a division of 60 per cent of the net property of the parties in favour of the wife. He argues that there is equality of contribution by the parties to the date of hearing and concedes a 10 per cent loading to the wife on account of the considerations under s.75(2) of the Family Law Act 1975 (“the Act”).
The wife’s case is argued on what her counsel calls “monies worth principles” rather than a fundamental percentage division of the property pool based on the considerations of contributions and s.75(2) factors. Counsel bases this argument on the relatively small property pool of the parties and an often-quoted statement of principle by the Full Court of the Family Court of Australia in Clauson and Clauson[1] (Clauson) at [81,911]:
There is, we think, at times a tendency to assess s. 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s. 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.
[1] (1995) FLC ¶92-595.
The wife then argues her case on the basis of what she says are her superior and “special” contributions to the family because of the husband’s complete incapacity since 1995. Secondly, the wife argues, in the sense of the principle from Clauson set out above, that a simple percentage loading on account of relevant s.75(2) factors would not provide realistic justice in this matter because of the small property pool.
The pool of property is agreed by the parties as follows:
Assets
[Property L]
$200,000.00
[Property C],
$230,000.00
Husband’s pre-paid legal fees
$10,595.00
Husband’s savings
$15,000.00
Wife’s [omitted] motor vehicle
$15,000.00
Husband’s superannuation
$1,539.00
Wife’s superannuation
$2,682.00
Total assets
$474,816.00
Liabilities
Mortgage
$122,000.00
Net assets
$352,816.00
The wife’s proposal is that the husband retain his savings ($15,000.00) and his pre-paid legal fees ($10,595.00) and that she retain the remainder of the assets whilst assuming responsibility for the mortgage and retaining her own superannuation.
Background
The parties commenced cohabitation in 1987 and were married [in] November 1993.
There are three children of the marriage being [Z] born [in] 1989 (aged 20 years), [X] born [in] 1994 (aged 15 years) and [Y] born [in] 1996 (aged 14 years). The wife was pregnant with [Y] at the time of the husband’s accident.
In 1994 the parties purchased the former matrimonial home
[Property L].
[In] 1995 the husband was involved in a single vehicle accident suffering an acquired brain injury and rendering him quadriplegic. After initial hospitalisation, the husband was in full-time care in a nursing home until July 2000 from which time he has been
in the care of his parents.
In 1996 the wife was appointed as administrator of the husband’s estate and financial affairs.
In October 1997 the wife, on behalf of the parties, purchased
an investment property, [Property C]. The purchase price was $87,000.00. The wife as administrator received a lump sum payment at that time from the Transport Accident Commission (“TAC”) in a sum of $64,000.00. Thirty thousand dollars was put to the mortgage on [Property C]. Twenty-two thousand dollars of these monies was required to be repaid to Centrelink.
In 2002 the mortgage was extended to complete renovations on [Property L] and [Property C]. The mortgage extension was approved by the guardianship board.
In 2006 the wife, in her role as administrator, received a further lump sum payment from TAC of $32,000.00. Those monies were put towards the motor vehicle in the wife’s possession and to the benefit
of the children of the relationship.
In 2007 the wife commenced retraining [in the healthcare industry] and now has employment in that field.
[In] 2009 the wife was removed as administrator of the husband’s financial affairs and replaced by a professional administrator. No issue was taken at the hearing as to anything untoward in the wife’s role as administrator of the husband’s affairs over a period of some 13 years.
The parties’ oldest daughter [Z] is a tenant of [Property L] and pays rent of $130.00 per week to the wife who in turn meets the mortgage commitments.
At the commencement of the hearing I was informed by counsel that agreement had been reached in respect of a child support departure application. Consequently and incorporated into my orders will
be those consent orders which provide that Mr Richardson will pay $5,640.00 per annum indexed as child support for the remaining dependent children, [X] and [Y] from [omitted] 2009 together with a further lump sum of $2,812.50 being one half of orthodontic expenses for [X].
On 1 June 2010 I also made the formal order appointing the litigation guardian for Mr Richardson.
The evidence
The applicant husband’s case relied on an affidavit of his mother, Ms M, filed 2 February 2010 and an affidavit of Carole Ann Ainio, solicitor for the current administrator, filed 18 May 2010. A financial statement sworn by Ms Ainio on behalf of the husband was filed in court on 1 June 2010. Ms Ainio was cross-examined. Ms M was not cross-examined.
The wife relied on her two affidavits filed 11 September 2009 and
2 March 2010. The wife also filed a financial statement on
11 September 2009.
Tendered into evidence was a document entitled “Analysis of Financial Returns filed at Guardianship Board from 1 May 1997 to 30 June 2008”.
The issues
The issues in this matter are narrow. The wife concedes the husband’s direct financial contribution. She argues a “special” contribution
by way of her total care of the children from 1995. Secondly, the wife argues for consideration of the s.75(2) factors in “real monetary terms” given a limited asset pool and the consequence that a percentage loading, if appropriate, would have minimal effect in addressing the needs of the wife.
The law
Section 79 of the Act makes provision for applications for property settlement. My determination is based on a multi-step process.[2] Firstly, I am to identify the property of the parties including assets, liabilities and financial resources and then attribute value to each.
For these purposes superannuation is now to be “treated as property”.
[2] In the Marriage of Lee Steere and Lee Steere (1985) FLC ¶91-626.
Secondly, the court is to identify and assess the contributions made by each of the parties as defined in s.79(4) of the Act. Those contribution factors to be considered include:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them…; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them…; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent…
The third step for the court is to identify and evaluate the matters contained in s.75(2) of the Act insofar as they are relevant. Those matters include the following:
(a)the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary
to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty
to maintain;
(e)the responsibilities of either party to support any other person;
…
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
…
(m)if either party is cohabiting with another person–the financial circumstances relating to the cohabitation;
…
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account…
Section 79(2) of the Act provides that the court shall not make an order unless it is satisfied in all the circumstances that it is just and equitable to do so. As the Full Court of the Family Court of Australia said
in Russell v Russell[3] (Russell) at [86,439]:[3] (1999) FLC ¶92-877.
… Furthermore, it must be remembered in this regard that under
s 79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed we take the opportunity to emphasise that in what his Honour has termed “the fourth stage”, that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.
Obviously, counsel for the wife would have me pay some regard to the principle set out in Russell together with the abovementioned statement of the Full Court in Clauson.
Contributions
Certainly since 1995 the husband’s contribution has been limited to
a financial one. It has, however, been the primary financial contribution. The husband has received weekly benefits together with various lump sum payments as a result of his accident. The wife was the administrator of his estate. Those monies came to her and were used for the support of herself and the children as well as being put
to the needs of the husband. According to paragraph 10 of Ms Ainio’s affidavit the wife received $417,420.50 between April 1998 and April 2009 being TAC instalment “loss of earning” payments and inclusive of the lump sum referred to above. It seems that there was also some small allowance paid for the children and the wife. The wife concedes the husband’s financial contribution. It is clear that these monies supported the wife, the children, provided the deposit on the investment property, and also financed the renovations.
Prior to his motor vehicle accident the husband sustained a back injury at work. His mother’s affidavit says that in about 1994 Mr Richardson received $30,000.00 on account of that injury and those monies were used to assist in the purchase of [Property L]. Ms M was not cross-examined as to this evidence. The wife is silent as to this point in her trial affidavit but refers to the issue at paragraph 11 of her affidavit filed 11 September 2009 and says:
…I am unaware and dispute that Mr Richardson received approximately $30,000.00 in or about 1994. The purchase of [Property L] was purchased for $67,000.00 with an initial mortgage of either $53,000.00 or $55,000.00. The balance was paid by way of gift from my grandmother.
The wife was challenged in cross-examination as to the $10,000.00 from her grandmother being a loan rather than a gift. She maintained that it was a gift.
In many ways the evidence in respect of this issue is unsatisfactory. However, on balance and based on the unchallenged evidence
of Ms M, I prefer her evidence and find that the husband did receive a damages payment of $30,000.00 prior to his more serious accident.
Nevertheless, the wife withstood challenges to her evidence in respect of her grandmother’s gift and I find that there was such a gift made
on behalf of the wife of some $10,000.00. There is no evidence
to suggest that either amount was used other than for the general benefit of the family.
Whilst conceding the financial contribution by the husband except for the $30,000.00 in 1994, counsel for the wife argues that this “does not equate to the extraordinary level of non-financial contribution in all aspects by the wife”. There is no doubt that the husband by reason
of his injuries could not partake in the normal responsibilities and enjoyment of parenthood. This role fell solely on the wife. Counsel for the husband, however, argues that the wife’s contribution in this regard was made “safe in the knowledge that she had financial security and her financial needs and those of the children were met by the husband’s financial contributions”.
There were two young children at the time of the husband’s accident. The wife was pregnant with [Y]. The wife had to deal with the immediate aftermath of the husband’s accident and she has been
the sole carer of the children since. In this respect the wife claims that this matter has special features and that she in turn has made special, extra or exceptional contributions. This was not a matter where there was a financial windfall or an increase in the parties’ property pool
by way of special skills or acumen. In this matter it is argued that one of the parties, by reason of necessity, made a special or extraordinary effort.
The Act itself does not make reference to the concepts of “special effort” or “special skills”. Nevertheless, the authorities have historically made such considerations within the power to “alter the interests of parties in property” pursuant to s.79 of the Act. In this sense it is notable that the provisions of the Act do not “divide” property of the parties but rather “alter” the property rights of the parties after an analysis of contributions. There is a broad discretion in the court to make orders “as it considers appropriate” but provided such orders are “just and equitable”[4] and after a mandatory consideration of firstly a number of contribution issues and then the factors under s.75(2) of the Act. The Act specifically references contributions as homemaker and parent. The task of the court then
is not only to identify the various contributions but also to assess their extent and quality and impact. As Wilson J stated as long ago as 1984 in Mallet v Mallet[5] at [79,126]:
The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as home maker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree.
[4] See s.79(2) of the Act.
[5] (1984) FLC ¶91-507.
It is clear that historically the authorities show an acceptance by the court that some contributions, often financial but not necessarily so, might be of such quality, effect and impact that additional weight
is attributed in the balancing process under s.79 of the Act.
The process is in fact a qualitative one and as much in respect of effort as result, particularly when assessing the quality of the homemaker and parent contributions. As the majority of the Full Court said in JEL and DDF[6] (Holden and Guest JJ) at [88,331]:
One can imagine a number of examples where a “special” contribution may not necessarily result in assets to a value of millions of dollars but which ought nevertheless to be recognised. We emphasise that “special”, “extra” or “extraordinary” contributions made in the role as homemaker and parent or to the welfare of the family ought to be accorded the same recognition.
And also as Fogarty J stated in Waters and Jurek[7] at [82,379]:
In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests — as individuals and as a partnership. The parties make different contributions to the marriage, which the law recognizes cannot simply be assessed in monetary terms or to the extent that they have financial consequences. Homemaker contributions are to be given as much weight as those of the primary breadwinner.
[6] (2001) FLC ¶93-075.
[7] (1995) FLC ¶92-635.
Holden and Guest JJ in JEL and DDF (supra) at [88,334] provided
a list of general principles in respect of this issue being:
(a) There is no presumption of equality of contribution or “partnership”.
(b) There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife.
(c) Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case.
(d) In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them.
(e) The Court will recognise any such special factors as taking the contribution outside the “normal range” in the sense that the Full Court in McLay [(1996) FLC ¶92-667] understood that phrase.
(f) The determination of an issue of whether or not a “special” or “extra” contribution is made by a party to a marriage is not necessarily dependant upon the size of the asset pool or the “financial product”. When considering such an issue, care must be taken to recognise and distinguish a “windfall” gain.
(g) Whilst decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles.
(h) It is ultimately the exercise of the trial Judge’s own discretion on the particular facts of the case that will regulate the outcome.
(i) In the exercise of that discretion, the trial Judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.
Whilst the courts are more regularly required to consider “special” contributions by way of financial input or business acumen directly
to the property pool, some consideration has been given over the years to “special” contributions by way of homemaker and parent as for instance where a child is disabled and has required special care[8] or where there has been an absent parent thereby placing greater responsibility on the remaining parent[9].
[8] Reed & Reed [2008] FMCAfam 663.
[9] JYC & DAC & Anor [2004] FMCAfam 363.
In the matter now before me the wife’s contribution as homemaker and parent has been overwhelming and, in fact, total since 1995. At the time of the husband’s accident the children were young, and the wife was pregnant with their youngest child. The wife’s capacity for employment was limited accordingly. The husband has made the financial contributions to the family by way of his weekly and lump sum damages payments. The wife has had the use of the parties’ assets and managed the finances so as to purchase an investment property since the husband’s accident and I consider her financial management to be a contribution to the property pool.
However, I am of the view that the wife’s contribution as a parent over the years of these three young children’s minority has been the
most significant contribution. She has received little or no respite
in this role. Parties to a marriage, even in its traditional form of one party being the breadwinner, would normally expect some assistance and input by both parents to the care of the children by way of parent
and homemaker. The wife has not had this benefit. This contribution should be attributed real weight and acknowledged for the benefit
and impact it has had for the family. In summary, this is not a situation where the husband’s total financial contribution is balanced by the wife’s homemaker and parent contribution. The wife’s efforts have been total and onerous. I am of the view that an adjustment of 10 per cent to the wife after consideration and balance of contributions
is appropriate.
Section 75(2) factors
The wife, to her credit, has retrained [in the healthcare industry]. Her income is a little more than $37,000.00 per annum and supplemented
by a family tax benefit from Centrelink. The duration and history
of the marriage has affected the wife’s financial position in that
her responsibilities to the children have denied her earlier access into the workforce and hence her superannuation entitlement is minimal. She is 44 years of age and will now be receiving employer superannuation contributions but not likely to total a significant amount by her retirement. There was a suggestion that the wife may have entered a new relationship but there is no evidence of financial dependency.
The husband receives $749.00 per week net. Whilst the wife receives
a similar gross amount, her net income from her employment
is approximately $610.00 per week. Furthermore, it is an unfortunate reality that the husband’s needs are few and do not extend from the most basic. He is cared for by his parents. The insurer has financed appropriate renovations to their home. His parents are provided supporting respite and holiday care. The husband’s medical expenses associated with his accident continue to be met. A motor vehicle
has been provided. The undisputed fact is that the husband has been able to accrue savings to the extent of approximately $6,000.00 over
a matter of only a few months. The husband’s financial statement discloses a total personal expenditure of $373.00 per week from his net income of $749.00.
There are two children who remain dependent. They are 15 and
14 years of age and do not now prohibit the wife entering
the workforce. Nevertheless, she will still retain the total responsibility
for their care for some time. Although I will be making consent
orders providing for child support for [X] and [Y] in a total
sum of just over $100.00 per week, a major financial responsibility
for their support will remain with the wife.
In summary, therefore, as to the relevant s.75(2) factors I must consider that the husband has a slightly greater disposable income than the
wife together with the fact that the wife retains responsibility for
the care and primary financial support for the children. In reality, however, I also take into account the disparity in the parties’ day-to-day needs. The husband’s needs are relatively few and simple. He is able to save from his income. The needs of the wife and children are broader. Her sworn financial statement discloses a weekly deficit
from expenditure over income. This might be alleviated a little
by the child support order but on my calculations remains a deficit.
The husband will lose his weekly payments upon attaining 65 years and will then be dependent upon a pension. There is no evidence that he holds title or has any beneficial interest in his parent’s home.
The assets being primarily the two pieces of real estate are in the possession of the wife although she also meets the mortgage.
Taking all of these matters into account I am of the view that a further adjustment of 10 per cent in favour of the wife would be appropriate.
Section 79(2) – justice and equity
After consideration of contribution and s.75(2) factors, there would
be an award to the wife of 70 per cent of the net pool of property.
The net total of that pool is $352,816.00 giving the wife an entitlement
to $246,971.00. The wife would retain the following:
[Property L]
$200,000.00
[Property C],
$230,000.00
[omitted] motor vehicle
$15,000.00
Superannuation
$2,682.00
less mortgage $122,000.00
Net assets to be retained by wife
$325,682.00
Consequently, the wife would be required to pay to the husband a sum of $78,711.00. As well as that cash adjustment, the husband would retain his pre-paid legal fees ($10,595.00), savings ($15,000.00) and superannuation ($1,539.00) giving him a $105,845.00 or 30 per cent
of the net property.
The remaining question for the court is as to whether such
a distribution or alteration of property is just and equitable. The wife’s counsel argues that the husband should retain only the pre-paid legal fees ($10,595.00), savings ($15,000.00) and superannuation ($1,539.00), totalling $27,134.00.
This amounts to only 7.69 per cent of the property pool. The argument is that such an order would be appropriate in all of the circumstances rather than a simple percentage adjustment after consideration of the s.75(2) factors. It is clear that s.79(1) of the Act empowers the court
to make “such order as it considers appropriate” when making
a property adjustment. The wife through her counsel argues that
a relatively small asset pool is relevant in that a percentage adjustment has little effect in real terms and may not then give proper credence
to the relevant s.75(2) factors mentioned above. Indeed, the Full Court has emphasised that the s.75(2) factors should be given “real rather than token weight”[10]. Nevertheless, it would be a mistake to look only at the circumstances of the wife. It is true that she has the sole responsibility for the care of the two dependent children. They are, however, 15 and 14 years of age. They do not inhibit the wife being employed. Consideration has already been given to the wife’s greater contribution to the children when they were younger. Orders in the terms sought by the wife would effectively leave the husband with minimal assets being only his savings. He needs to be accommodated into the future and when his weekly payments cease in favour
[10] Waters and Jurek (supra) at [82,376].
of a pension. I have no evidence in respect of the husband’s
life expectancy. He currently has a capacity to save but has no superannuation of significance. In my view to make orders in the terms sought by the wife would be to neglect the husband’s needs
and his need to re-establish himself into the future. Consequently, I am of the view that a distribution of property as to 70 per cent to the wife and 30 per cent to the husband would be just and equitable and takes into account considerations of contributions and all of the s.75(2) factors.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate:
Date: 12 August 2010
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