Rickard and Griffin - [2010] FamCA 1199

FAMILY COURT OF AUSTRALIA

RICKARD & GRIFFIN

[2010] FamCA 1199

FAMILY LAW – PROPERTY SETTLEMENT – Argument about contributions and add backs – Adjustments under ss 79 and 75(2) because of limited pool of assets, husband not seeing the children and lack of regular child support

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bonnici (1992) FLC 92-272
Chorn and Hopkins (2004) FLC 93-204
Coghlan and Coghlan (2005) FLC 93-220
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor)(2003) FLC 93-143
In the Marriage of Clausen (1995) 18 Fam LR 693
Kowali and Kowali (1981) FLC 91-092
Mallett and Mallett (1984) 156 CLR 605
MVB and SDB (2005) FamCA 389
Norbis and Norbis (1986) 161 CLR 513
Omacini and Omacini (2005) FLC 93-218
Townsend and Townsend (1995) FLC 92-569
VAK and AK [2005] FamCA 803

APPLICANT:

Mr Rickard

RESPONDENT:

Ms Griffin

FILE NUMBER:

MLF

2650

2006

DATE DELIVERED:

24 DECEMBER 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

20 DECEMBER 2010

REPRESENTATION

THE APPLICANT:

IN PERSON

COUNSEL FOR THE RESPONDENT:

MR WEIL

SOLICITOR FOR THE RESPONDENT:

HOGG AND REID

Orders

Whenever a splittable payment is payable in respect of the superannuation interest of THE HUSBAND born … 1965 in the EMERGENCY SERVICES SUPERANNUATION SCHEME:
(a)THE WIFE is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $65,000 at the operative time being the date of this order; and
(b)there is to be a corresponding reduction in the entitlement of THE HUSBAND, being the person to whom the splittable payment would have been made but for this order.
This order binds the trustee from time to time of the superannuation fund.
The operative time for the purposes of this order is 4 business days after the day of service upon the trustee of a sealed copy of this order.
That the funds held in trust by Moores Legal on behalf of the husband and the wife including any accrued interest thereon, be divided as follows:
(a) as to the husband, 30%; and
(b) as to the wife, 70%.
That paragraph 4 of these orders is not operative until 4 pm on Friday 4 February 2011.
That should either party seek costs arising out of these orders or any extant orders for reserved costs, they may do so by written submission filed and served by 4 pm on 14 January 2011 with the original submission endorsed with the details of the service on the other party.
Any party who receives a written submission relating to costs referred to in paragraph 6 of these orders shall have until 4 pm on 21 January 2011 to file and serve any reply and the reply shall be endorsed with the details of the service on the other party.
If submission(s) are received relating to costs, they shall be determined by me in chambers.
Upon the operation of paragraph 4 and any amendment to it by virtue of any costs determination, any entitlement of the husband shall be forthwith paid to him by Moores Legal by cheque by post.
That save as to the issue of costs, all extant applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Rickard & Griffin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2650 of 2006

MR RICKARD

Applicant

And

MS GRIFFIN

Respondent

REASONS FOR JUDGMENT

Mr Rickard and Ms Griffin each seek orders for the division of modest assets comprising about $200,000 in a trust account arising from the sale of their former home and some superannuation.
Although Mr Rickard seems to find any reference to Ms Griffin as his wife objectionable, I shall refer to the parties as the husband and the wife even though they are divorced. I am not referring to his wife but rather the wife for the purposes of the proceedings. I do not intend to cause either party any more discomfort than they already experience by these proceedings; it is for my convenience and to assist anonymisation.
Throughout this proceeding, the husband has represented himself and the wife has been represented by solicitors and counsel.
The husband insisted that he not be in the same courtroom as the wife. He maintains he has legitimate concerns that to do so would potentially leave him open to prosecution for breaching an intervention order. For whatever reason, the wife chose to be present with her counsel in the courtroom and the husband left the room before the hearing began. Alternate arrangements were made for his participation by video-link in another courtroom.
At the outset, the husband said that he had not been served with the affidavit material of the wife. His only address for service is a post office box. He commented at the end of the hearing that the Court’s mail always arrived but nothing from the lawyers for the wife. Counsel for the wife said that an affidavit of service had been prepared to dispute the husband’s claim but the situation was remedied by the husband being provided with a copy of all documents relied on and referred to, by the wife. I gave him time to read and consider that material.
The husband also complained that the orders I made on 1 October about filing had not been complied with. That was odd because the court record showed the filing date for the husband was to be 1 November and the wife 22 November. The husband filed on 3 November and the wife on 22 November. I am not at all sure what the complaint was.
I explained the procedure that would be followed and the husband said he understood. When I asked whether he wanted to cross-examine the wife, he said he would not. I explained that the evidence of the wife would therefore be unchallenged.
The husband relied upon his application for orders and a minute of proposed orders that was attached to his affidavit. His affidavit was filed on 3 November 2010 along with a financial statement.
The orders he sought were that:
(a)$120,000 together with accrued interest from the monies held by Moores Legal be paid to him;
(b)33% of any death benefit the wife may receive from her mother’s estate be paid to him;
(c)The “flagging” order on his superannuation be lifted and any interest lost as a result of that order be paid from the wife’s superannuation to his fund; and
(d)The wife have 0% of his superannuation;
The husband did not pursue the “death benefit” proposal.
The wife relied on her response and a minute which was different to that which had been filed. A copy of the proposed amended orders was given to the husband by court staff. The wife otherwise relied on her affidavit filed 22 November and a financial statement.
The orders the wife initially sought were that:
(a)the trust funds from the sale of the home be paid to her;
(b)the “cash portion” of the husband’s superannuation be paid to the wife “representing lump sum child support and arrears of child support”; and
(c)otherwise, each keep what they had.
Counsel for the wife conceded there were difficulties with the order relating to the superannuation cash component proposal. That was not pursued.
The specific amended orders relating to superannuation sought by the wife were that:
(a)a base amount of $137,737.95 be allocated to the wife out of the husband’s superannuation;
(b)an injunction preventing the husband from effecting a death benefit nomination or from receiving his superannuation until the wife’s entitlements were satisfied.
At the outset, upon my remarking that much of the wife’s material was irrelevant, her counsel sensibly only relied on paragraphs 1-21, 87-92, 131-170 and 190-202. The balance, whilst said to be historical, was inflammatory and unnecessary in a property application.
There was no evidence that justified any injunctive orders of the type mentioned in paragraph 12 above. I will not make them. Further, no orders for costs were specifically sought in the written documents but counsel foreshadowed that such an application would be made. I will make provision in the orders for that possibility.
The husband too set out many paragraphs in his affidavit which were irrelevant to a property application. Whilst the wife’s material was inflammatory, that of the husband was scandalous. I have ignored all but that which was relevant to the issues in dispute.
The husband makes no secret of his disdain for the wife and the Victoria Police. In this application, I do not have to consider, or make any findings about, many of those things because they are irrelevant. The husband may not understand that but at the preliminary hearing in October, I endeavoured to explain the importance of filing material relevant to an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”). Unfortunately he saw the need to set out detail which may have been important to him but not to this application.
Before turning to the application, I mention that amongst the husband’s affidavit were statements that the Court was biased in favour of females, parties with children and parties with lawyers. He went on to say that the case had been dragged on without any input or direction from the Court. He said that compliance had been required of him but not the wife or her lawyers. He thought that the “course” of the trial had been pre-determined by the lawyers and that this Court would be guided by flawed decisions of a “lesser court” because that would be easier to do than investigate the truth. On every one of those assertions, the husband was and is wrong.
When the hearing began, the husband also complained that the Court had done nothing about reporting an issue to the Australian Federal Police about an apparent allegation that was made by the wife’s lawyers that the husband had threatened one or more of them. He said that if the Court was not going to do anything about the assertion, he would report it himself and he then proceeded to do so.
I have set out these matters for the record because it is clear from reading the husband’s affidavit that he has a very strong view about injustices that have been done to him. I have determined the matter according to the relevant provisions of the Act and not on some sort of probing inquiry. The injustices against the husband, as he would see them, stem from the breakdown of his marriage and his departure from the Victoria Police Force. It is quite disconcerting that he swore an affidavit admitting to perjury, assaults and dishonesty which he said were all part of his own cowardly behaviour as a police officer before he changed. The truth of his admissions and his assertions are for other courts and authorities to determine; they have had no impact on my determination despite the admissions of past dishonesty.
The husband is aged 45 and described himself as a self-employed handyman. He said he was currently not working because his tools were recently stolen from his car. Future work is dependent upon jobs coming to him rather than him searching out that work. He said he was currently living on the assistance provided by his parents. His capacity to work is very much restricted because he is currently a registered sex offender in Victoria and as such, council work would be unlikely to be offered to him and companies that required a “police check” would soon reject him. Although the wife’s position about his future working situation was clear from her counsel’s cross-examination, I can presume that his financial position will not be secure for the foreseeable future. In addition, the husband said that in 2011, he has to face a criminal trial in which the prosecution will apparently allege that he sent naked pictures of his wife to a variety of people in breach of an intervention order. The husband’s statement to this Court was that he was not only not guilty but that he would be found so because there was no DNA evidence on the envelope to suggest he had been involved. He said at the time the offences occurred, he was a long way away. These matters are relevant when I come to the question of s 75(2) of the Act.
The wife is 43 years of age. She is employed as a school teacher earning about $90,000 per year. Her position also enables the education of the children at a discount rate.
The parties commenced living together in about 1990. At that time, each was in employment. The husband joined the Victoria Police Force in 1988. The parties married in 1993.
There are two children of the marriage. B was born in July 1999 and T was born in June 2002. Both children live with the wife and no contact occurs between the husband and the children. There were proceedings in the Court about parenting orders but in 2010, the husband agreed not to pursue them. He commented that he had not seen the children for 1266 days.
As I pointed out earlier, the evidence of the wife was not challenged in cross-examination but it was clear from the affidavit material that there were contentious facts.
The following statements of fact are findings of fact unless I indicate otherwise. The standard of proof is set out in the Evidence Act 1995 (Cth). It is the balance of probabilities. I am satisfied therefore on the balance of probabilities that I am able to make these findings.
When the relationship began, the wife had $5,000 in savings. The husband referred to the fact that he too had some money although he did not specify what. He also had accrued superannuation during the period before cohabitation but no evidence was presented as to its value, form or extent. The wife produced a valuation letter dated November 2010 from ESSS in which it was asserted that the husband’s service commenced in January 1989. The husband did not challenge the wife’s evidence about her initial contribution other than to say that he did not know about the money although he remembered the wife’s parents offering money. He did not recall the amount from the parents because he had little to do with the parents.
In 1993, with the payment of $5,000 from the wife’s parents and the wife’s savings of $5,000, the parties bought vacant land at A and subsequently had a house built. The package cost $112,000 of which all but $10,000 was borrowed on a mortgage over the property.
That mortgage was subsequently refinanced and extensions were undertaken on the home.
The wife worked in employment positions until the birth of B and the husband continued his position as a police officer. Nothing in the evidence would enable me to find that the parties did anything other than work and contribute their respective incomes for the benefit of the family.
When T was born, the wife was injured in hospital leading her to pursue and receive about $30,000 in compensation. This was the source of controversy in the hearing and the details of the dispute are important enough to record here.
The wife said that she fell in the hospital after the birth of the parties’ second child. The husband took her to solicitors. He said the wife was “worded up” to make the claim and was told she would get more than $100,000. The husband attended the conference and participated in “the lie”. His evidence was that no injury occurred. That is hard to accept because of two things. First, there was a compensation payment made. Secondly, the wife maintained in her affidavit that she still suffered from the “accident” and that her position as a teacher did not help. The husband did not cross-examine the wife about that evidence.
I accept that the wife did suffer the injury and receive the compensation.
The controversy then continued as to what happened to the $30,000. The husband produced the mortgage statements to show the money did not go into that account. The wife’s evidence was that it went into a bank account now closed. In response to that assertion, the husband said he did not know as he had never seen anything other than the solicitors’ letter about the settlement details. His evidence was that it was incorrect to say that the money went towards household use. He claimed it was retained by the wife for “other plans”. In this case, the husband would have me draw the inference that the money was wasted. He asserted the wife lived beyond her means and pointed to the dollars coming into the account being far less than the withdrawals out of it. Without the wife being tested in cross-examination about the use to which this money was put, I find that it probably was used for household purposes. In the end, it matters little because it was one of the many and varied contributions that the parties each made. It is a question of weight to be given to this particular sum and whether it should be distinguished from other contributions.
The wife asserted, and the husband denied, that she was the primary homemaker and parent. In cross-examination, the husband said that he had been encouraged to drink in the police force and became an alcoholic. He drove home affected by alcohol and because things were not good at home, he stayed out late with companions. When it was suggested that his admission amounted to a concession that the wife did the majority of the home and parenting roles, he animatedly said that it was not always like that. He said that there were times when the house was in such a mess that it was only when he had his days off from work that it was cleaned.
Despite the jaundiced view portrayed by the husband about the period from the birth of the children until separation, I find that except for the last part of the relationship, each did contribute towards the parenting and homemaker role. In the last part of the relationship, based on the husband’s own evidence, I am satisfied that the wife undertook the greater role.
There was argument between the parties about the equity that came from the sale of the home. The wife left the home at separation and took the children. The husband remained in occupation for about 11 months. Although it was put to the husband and denied by him that he had stopped paying the mortgage, he eventually agreed that like the wife, he stopped paying the mortgage when he moved out of the home. There was no agreement as to the extent of the mortgage debt when the parties separated in January 2006.
The Wizard Home Loan statement showed a debt of $151,641 on 27 January 2006. As at 23 November 2006, the balance was $160,971. Between those dates, a variety of payments appear in the ledger with notations that the payments came from the “Police Ass Co-op”. Before January 2006, there were regular payments that appear to be marked with the name of the wife’s employer as well as the “Police Ass Co-op”. In the months between January and November 2006, there were principal redraws totalling $8,000 but no payments from the wife’s employer. The redraws presumably account for the increased debt as at November 2006.
There was agreement that the debt at the settlement of the sale of the property was $164,000. The questions are who made the redraws and why the debt increased between when the husband left the property and the settlement of the sale? In respect of both, I am unable to say for the reasons that follow.
Dealing first with the period prior to separation, the husband’s affidavit referred to the wife’s use of the mortgage facility prior to separation. It was the wife’s evidence that her wages went into the account and she used the account as a way of paying bills. The husband agreed that some of these monies were used for renovations of the home but he described the withdrawals prior to separation as the wife’s “leaving account”. I have no reason to find that the wife was not using those funds to support herself and the children. That seems to have been the way the family supported itself. Accordingly, I find there is no reason in this case to doubt the wife’s use of the funds. Even if that were not the case, insofar as the husband would have me “add back” to the pool some amount taken by the wife, the evidence does not justify that course. I shall turn to the authorities for that proposition below.

Subsequent to separation, the husband’s evidence was that the wife treated this account as “free money” and he again sought some adjustment for that which was taken by her.
This post separation period was clouded in fog by the evidence of the parties. With the husband not cross-examining the wife, it was difficult to get a sense of what happened to this redrawn money. The husband conceded that he was not paying child support because the wife cancelled the child support collection request. He said he thereafter paid her cash. None of that was examined. The wife was apparently receiving increased family tax benefits during this period on the basis of foregoing child support. It was her evidence that the husband made excuses about child support which put her in a position of needing to seek increased Social Security benefits.
In her evidence about the mortgage increase, the wife said that the husband failed to pay the mortgage payments. That would seem to be wrong if it is accepted that at least some of the payments during 2006 were coming from the “Police Ass Co-op” account. Interest charges on the account fluctuated between $800 and $950 per month. The payments into the mortgage loan account from the “Police Ass Co-op” account were slightly less than the interest payments drawn by the mortgagee. The wife knew of the husband’s assertion in his evidence because she had his affidavit when she swore hers. She said that the husband was paying in “insufficient” funds “then withdrawing much more”. The factual dispute therefore could not be resolved by looking at the mortgage statements. The only way I could get a sense of what occurred was by the evidence of the parties and again, I did not have the advantage of the husband cross-examining the wife. Because I am unable to tell which version is correct, I propose to simply treat the debt at the time of the settlement of the sale as a joint debt. To do otherwise would give rise to an argument about “add backs”.
In Chorn and Hopkins (2004) FLC 93-204, the Full Court said that whilst not seeking to place a fetter upon the exercise of discretion, the concept of adding monies reasonably disposed of back into a pool ought to be the exception rather than the rule. The Court said that parties were entitled to reasonably conduct their affairs after separation in a manner consistent with properly getting on with their lives.
Even if I could establish who took this money, the adding back could only occur if the expenditure was not reasonable in the context of the parties’ lives at that time. The logic of that approach is that s 79 of the Act requires a court to divide up property of the parties. If there is no evidence of the existence of certain property any longer, it should only be “added back” in the limited circumstances considered by the Court in Omacini and Omacini (2005) FLC 93-218. There, the Full Court referred to three clear categories justifying a notional adding of items to a pool of assets:
(a) where the parties had expended money on legal fees;
(b) where there had been a premature distribution of assets; and
(c)where the “wastage” situation arose as referred to in Kowali and Kowali (1981) FLC 91-092.
In the second of the two mentioned categories, the authority often referred to is Townsend and Townsend (1995) FLC 92-569. There the Full Court found the “premature distribution” “unjust in the extreme” where the husband had spent the proceeds of the unilateral sale of an asset which amounted to almost half the value of the total pool of remaining assets. That is not the situation here.
In Kowali (supra), Baker J said that financial losses in a marriage should be shared except where one of the parties had embarked on a course of conduct designed to reduce or minimise the effective value of the assets or where a party had acted recklessly, negligently or wantonly with assets. There is no evidence here that would enable me to make that finding.
In the circumstances, this not a case where the exception rather than the rule should apply.
The home sold for $360,000. It was the husband’s evidence that when the parties applied for the extension of the home loan, the value was $240,000. I have presumed that that amount came from the home loan application. That is not evidence of value. The husband took the view that the increase in value was solely attributable to his efforts in adding an extension, preparing the property for sale and tending the gardens. The evidence about the increase is only the husband’s opinion.
Section 76 of the Evidence Act provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. There is no admission by the wife as to the husband’s opinion. His opinion is not admissible evidence. No expert provided anything to support his view. The husband had plenty of opportunity to have his affidavit material examined by someone prior to the commencement of the hearing. It seems he did not do so.
Accordingly whilst I will give credit to the husband for the efforts he made to arrange the sale, the quantification of those efforts is difficult to assess and give weight to. The evidence also points to the fact that whilst the husband was working on the home in readiness for sale, the wife was fulfilling her role as a parent. These are all part of the various post-separation contributions of the parties.
The husband sought recognition for dismantling the contents, the payment of utilities and the cleaning. Those too must be seen as part of all of the contributions of both parties.
The husband gave evidence that he packed up the wife’s furniture which included the children’s effects and delivered them outside of the wife’s solicitors. That was explained by the husband as being reasonable because he had made requests for the removal of the items from the home in readiness for the sale. That was not an appropriate method of resolving the problem. It would seem that no damage was done other than to the wife’s pride. The husband’s actions did him no credit.
The approach to the assessment of contribution is not a mathematical exercise but rather a broad brush approach to recognising and giving weight to all of the contributions that the parties made during, and in this case after, the marriage.
Before turning to the assessments, the other issue related to the parties’ superannuation interests.
In Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143, the Full Court said that an interest of a party in superannuation was to be treated as property even though it was not. In Coghlan and Coghlan (2005) FLC 93-220, the majority in another Full Court described superannuation as “another species of asset” which was different from property as defined is s 4(1) of the Act in relation to which orders could be made in proceedings under s 79 of the Act. In the latter case, the Court said that it was a matter for the trial judge to decide whether or not to place this different species of asset in a separate pool. Even so, the same s 79 approach had to be followed.
Here, the husband and wife both have superannuation interests. The husband’s interest is apparently a defined benefit interest but some of that is unrestricted non-preserved and some is preserved. The document tendered from The Emergency Services & State Super which is run by the Emergency Services Superannuation Board said that as at September 2010, the value was $52,969 unrestricted non-preserved and $137,737 preserved. That seems not to have altered at least for 2.5 years. The husband’s financial statement put the total at an estimated $185,000. I accept the formal figures earlier mentioned.
The wife’s funds trustees ESSSuper, VicSuper, Zurich and AMP provided current balances which totalled just on $60,000.
Because each party is a long way from retirement, it is difficult to treat their superannuation interests as if they were cash. The wife urged me to treat the unrestricted non-preserved portion as cash but I have no evidence of the taxation implications for the husband. The husband seemed of the view which he expressed in cross-examination that he could only draw a limited amount. Without sworn evidence, I would only be guessing. The interests are therefore indeed a different species of asset. I will therefore put them in a separate pool.
In his affidavit, the husband said that the wife was not entitled to money from his superannuation in the fund prior to marriage. I do not know where that opinion came from but it is clearly incorrect. Section 79 of the Act empowers the Court to divide property of the parties regardless of when its value started or ended or for that matter, where it came from.
There was no reason to treat the contributions differently on the evidence other than the husband’s assertion about the pre-marriage contribution. I note his commencement date with Victoria Police was just a year before the relationship began. The commencement of the marriage is irrelevant to this determination because I am considering the whole of the relationship.
The parties each made reference to vehicles. Although the husband made an attempt to have the wife’s car valued by his methodology, it was not evidence. The wife provided no better evidence. I propose to simply ignore the parties’ vehicles and other chattels and deal only with the cash and the superannuation. The evidence does not permit me to do otherwise.
In his evidence, the husband also made reference to the wife’s interest in her late mother’s estate but in cross-examination, he conceded that he had no claim to that because the interest did not go to her. Apart from anything else, any entitlement did not arise until after the parties’ separation. The husband’s assertion about some entitlement by virtue of the length of the relationship misunderstood the law. (see for example Bonnici (1992) FLC 92-272).
The evidence in this case is therefore not particularly controversial but the approach to the task of a determination is as set out next.
The legislative framework is set out in s 79 of the Act.
Under s 79(1), the Court is directed that it may make such order as it considers appropriate. Having said that however, s 79(2) provides that a court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make that order. Section 79(4) provides that in considering what (if any) order should be made, the Court must take into account (so far as they are relevant to this case):
(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, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be 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, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be 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; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant;
The legislative provisions were all reiterated by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (supra) at 78,386 where the Full Court said:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
The first of those steps is to define the pool or pools. The first pool is the cash in the trust which I find to be $208,000. There were other assets mentioned but they are either insignificant or have values placed on them by the parties which I do not accept. The second pool is the superannuation which in total is $250,779 being $190,706 for the husband and $60,073 for the wife.
The second step is to consider the various contributions. What I am examining is the assessment of the contributions and then the weighting of them. This approach means that the qualitative assessment at some point has to be defined in quantitative terms. It is the disparity in contributions which is important.
In Norbis and Norbis (1986) 161 CLR 513, the High Court of Australia cautioned about an over-zealous attention to the ascertainment of the parties’ contributions. The evidence of both parties but particularly the husband, tended to do that. This is not a finite mathematical exercise.
The disparity is traditionally expressed in percentage terms. (See VAK and AK [2005] FamCA 803; Mallett and Mallett (1984) 156 CLR 605; and In the Marriage of Clausen (1995) 18 Fam LR 693).
The dilemma in the assessment process was recognised in MVB and SDB [2005] FamCA 389 where the Full Court highlighted the difficulty of making a “crucial comparison between fundamentally different activities”. That is the situation here for both parties. Each asserted a primary role as homemaker and parent. I consider the wife the more likely to have fulfilled that role. The husband maintained his workmanship concerning the extension on the home and his preparing the property for sale, were both significant contributions. They were but so were the roles that the wife played in the same period in caring for the children. The husband fulfilled the major breadwinner role at various times during the marriage but the wife too earned an income and contributed her money. The disparity of incomes is irrelevant if each was doing what was then expected. In this case, although the husband may have a hindsighted jaundiced view, there is no real evidence to distinguish those contributions. The longer hours claimed by the husband were offset by the wife’s role as a parent. In addition, these disparate contributions are incapable of finite comparison in dollar terms.
Having regard to all of the matters referred to, the only distinguishing feature between the parties was the original contributions of the wife, the compensation money she received and the post separation contribution the wife made of the physical and financial support of the children without significant assistance from the husband. Those early contributions were modest in the duration of this marriage and the various things that each did. I place significant emphasis on the role played by the wife after the separation. The non-financial role as a parent must be treated as significant. I assess the contributions as to 60% to the wife and 40% to the husband.
Two observations need to be made about that outcome. First, the wife is receiving 1.5 times the husband. The disparity of contribution in my view justifies that. The second point is that in real terms, the 20% gap between them is $40,000. The wife’s contribution must be seen as justifying her getting $40,000 more than the husband. Because of the contributions to which I have referred, I find that assessment is fair.
I turn then to the third step which is to make any necessary adjustment because of the factors as set out in s 75(2) of the Act. Because the husband did not have legal representation, I set out the relevant parts of the Act:
The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(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; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(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; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(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; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

My findings based on the evidence presented by the parties are as follows.
Although the husband and wife both said they had health problems, the wife by reason of the injury at the hospital and the husband as a result of an assault on him by police, there is no evidence that suggests health is a factor that would preclude either party working.
Each party is sufficiently young to be able to continue to work in the future.
The husband is a registered sex offender. I think I can take judicial notice of the restrictions that would be on him in terms of work. His attitude to working may not be universally accepted but no alternate proposition was put that he could easily obtain employment. His position seems likely to continue into the future. The wife has tertiary qualifications and apparent security in her employment. She will have to work hard to support herself and the children but at least she has some flexibility.
The wife has the care of two young children. The physical attention required for that task is obvious. Without any assistance from the husband as a result of the decision to cease all contact, the wife will have that task for years to come. I appreciate that the husband may not be happy to have had to make the decision; that was reflected in his statement in final address. The issue here is the reality namely that the wife will have the greater burden.
Each party has the usual commitments in supporting themselves. I suspect the husband’s difficulties are greater than accepted by the wife. He maintained that he would work when it came to him. He expressed concern about the prospect of confrontation with the law and the impending criminal trial. All of those make his task of finding money to support himself difficult. He commented that he was living in a tin shed.
Neither party has responsibilities to any other person and neither has apparently repartnered.
No evidence was led of any Social Security entitlement issues here which would require me to consider an adjustment to the assessment to endeavour to alleviate the public purse.
It would always be an ideal for parties to have a standard of living that in all the circumstances was reasonable but so much money has been spent on legal fees here along with losses created by the separation, endeavouring to craft orders that would assist that objective would be unrealistic. In addition, the remaining pool of assets is very modest.
On the evidence, there are no known creditors affected by the orders I propose.
The wife’s argument about adjusting property in her favour is that she has the children and little support from the husband. He maintained that he would pay when he had the capacity to do so. There is little evidence that he will either do so or be in a position to do so in the foreseeable future. That must mean that the financial burden of these children will largely, if not entirely, fall on the wife.
A very significant feature of this case is the modest amount of money to be divided. That must mean that the focus for the purposes of s 75(2) must be on the underlying value rather than the percentage. Whilst the husband said he had nothing but the clothes that he stood in, the wife did not fare much better. She too faces legal costs which have to be met.
As I earlier mentioned, much of the evidence of both parties was directed to the problems that had beset them with each blaming the other. The wife complained of the costs associated with the many hearings that have been held but on my understanding of the file of the Court, much of that related to children’s issues and the aborted hearing of the property matter before Bell J. It would be the urging of the wife to take those matters into account against the husband but in my view, they are more appropriately dealt with in any costs application that either might make because the power I am exercising here is in s 79 which is directed to the adjustment of property on the basis of what is just and equitable to both parties. As the husband would have it, he has been unjustly treated many times but from her perspective, so too has the wife.
In my view, there is a justification for an adjustment in favour of the wife because of the children and the size of the capital sum involved. In my view, it should be 10%.
A 10% adjustment on this pool is $20,000. That is a large sum when the husband has nothing but it is intended to recognise the greater economic future need of the wife as reflected in all of the matters to which I have just referred. In this case, I think it modestly does.
That assessment relates to the non-superannuation assets.
When I turn to the superannuation pool, the contributions are much the same but there is no evidence to distinguish them even though the husband would argue that his pre-marriage contribution should have some value. There is no evidence as to the quantum of that.
I would assess the contributions as equal.
The wife will have the benefit of a modest superannuation fund but she has the capacity to work and earn more than the husband. The husband is unlikely to have any more superannuation than that which is currently in his fund. It would be unjust in this case to then make another adjustment because of s 75(2) to the superannuation assessment. Accordingly, I will make no adjustment.
That then leaves the fourth step of determining what orders satisfy the test of what is a just and equitable outcome.
The wife has been assessed as being entitled to 70% of the non-superannuation assets and 50% of the superannuation assets.
The wife would urge the Court as her first preference to have all of the cash but having regard to the husband’s evidence about his accommodation, lack of any assets including the loss of all of his tools, I consider it is just and equitable that he at least have some opportunity to re-establish himself. To give the wife all of the cash leaving the husband with just his superannuation entitlement would not be just and equitable. I take into account there are costs orders still to be satisfied.
In my view, a superannuation splitting order in this case is warranted and I have been informed by counsel for the wife that the trustee of the husband’s superannuation fund was put on notice of the prospect of a splitting order being made. No objection has been taken by the trustee. There is sufficient interest in that fund to be split. I will therefore make a splitting order.
The total superannuation entitlements of the parties amount to $250,779 being $190,706 for the husband and $60,073 for the wife. An equal division of those entitlements means that the wife should have superannuation of $125,389. She already has $60,073 and therefore must receive a further $65,316. I will round that down to $65,000.
I find the division of the parties’ property in those ways by orders is just and equitable.
I will make provision for costs submissions and for the money to remain in trust pending a determination of those submissions which will be in writing.

I certify that the preceding One Hundred and One (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 December 2010.

Associate:

Date: 24 December 2010