Rowlinson & Bradford (No 2)
[2024] FedCFamC2F 1241
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rowlinson & Bradford (No 2) [2024] FedCFamC2F 1241
File number(s): NCC 4623 of 2020 Judgment of: JUDGE BETTS Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – De facto property settlement proceedings – ten-year relationship – two children – modest property – financial proceedings re-opened due to inheritance – who retains the family dog – hearing conducted on the papers – just and equitable outcome. Legislation: Family Law Act 1975 (“the Act”), Pt VIIIAB Cases cited: Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Rowlinson & Bradford [2023] FedCFamC2F 1484
Mallet & Mallet (1984) FLC 91-507
Stanford & Stanford (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 66 Date of last submission/s: 6 September 2024 Date of hearing: 27, 28 & 29 September 2022, 16 & 17 February 2023, 3 & 4 April 2023, 3 July 2023, 6 September 2024 Place: Newcastle Solicitors for the Applicant: Rossi Simicic Lawyers Counsel for the Respondent: Mr Mooney Solicitors for the Respondent: Access Family Law Pty Ltd ORDERS
NCC 4623 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROWLINSON
Applicant
AND: MS BRADFORD
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
PROPERTY SETTLEMENT:
1.That within 14 days of the date of the Orders, the parties do all acts and things and sign all necessary documents to affect a sale of Motor Vehicle 2 located at the former matrimonial home and upon the sale of Motor Vehicle 2 the parties shall cause the proceeds of sale to be divided equally between them.
2.That within forty-two (42) days from the date of these Orders (“the due date”) the Wife shall cause to be paid to the Husband the sum of $80,137 (“the settlement sum”).
3.That simultaneous with the Wife’s compliance with Order 2 above, the parties do all acts and things and sign all necessary documents to cause the following to occur:-
(a)the transfer to the Wife of the Husband’s right, title and interest in the property known as and situate at EE Street, Suburb Q (“the former matrimonial home”); and
(b)the discharge/refinance by the Wife of the mortgage secured over the former matrimonial home so as to discharge the Husband’s liability for the said mortgage.
4.That upon the Wife’s compliance with Orders 2 and 3 above, the Wife shall indemnify the Husband with respect to any and all liabilities and outgoings associated with the former matrimonial home however and whenever arising.
5.That in the event that the Wife is unable and/or unwilling to comply with Orders 2 and 3 above, then the Husband may elect to retain the former matrimonial home upon providing the Wife with not less than fourteen (14) days written notice of his intention to do so after the due date has expired as provided for in Order 2 above.
6.That in the event that the Husband makes the election as provided for in Order 5 above, then within twenty-eight (28) days thereafter, the parties do all acts and things and sign all necessary documents to cause the following to occur:-
(a)the transfer to the Husband of the Wife’s right, title and interest in the former matrimonial home;
(b)the payment by the Husband to the Wife of the sum of $139,167 to be made to the Law Practice Trust Account of Access Family Law on behalf of the Wife; and
(c)the discharge/refinance by the Husband of the mortgage secured over the former matrimonial home so as to discharge the Wife’s liability for the said mortgage.
7.That upon the Husband’s compliance with Order 6 above, the Husband shall indemnify the Wife with respect to any and all liabilities and outgoings associated with the former matrimonial home however and whenever arising.
8.That simultaneous with the Husband’s compliance with Order 6 above, the Wife shall vacate the former matrimonial home leaving the home in a tidy and proper state of repair, free of damage.
9.That in the event that the Husband does not make the election as provided for in Order 5, then within fifteen (15) days of the date of the Wife’s non-compliance with Orders 2 and/or 3 above, the parties shall do all acts and things and sign all documents necessary to cause the sale of the former matrimonial home for the best price reasonably obtainable in the method recommended by the listing agent and for the purpose of this Order the following shall apply:-
(a)the Husband shall provide three real estate agents he proposes be appointed in relation to the sale of the former matrimonial home to the Wife and within a further seven (7) days the Wife shall select one of the real estate agents which agent the parties shall appoint within a further seven (7) days (“the agent”), however should the Wife fail or refuse to select an agent in the time provided, then the Husband shall select the agent;
(b)the Wife shall nominate three (3) lawyers or conveyancers she proposes be appointed in relation to the sale of the former matrimonial home and within a further seven (7) days the Husband shall select one of the lawyers which lawyer the parties shall appoint within a further seven (7) days (“the lawyer”), however should the Husband fail or refuse to select a lawyer in the time provided, then the Wife shall select the lawyer;
(c)in the event of an auction, the auctioneer shall be agreed upon between the parties and if there is no agreement then the auctioneer shall be as nominated by the agent;
(d)in the event of an auction, the first auction shall take place within six (6) weeks from the date of listing of the property (“first auction”);
(e)in the event the parties do not agree in relation to the reserve price for the first auction within fourteen (14) days of the date of Order, the reserve price shall be nominated by the agent;
(f)the parties shall cooperate in every way with the agent until the settlement of sale of the former matrimonial home, including, without limiting the generality of the foregoing:-
(i)making the key and any other devices required to access the property available to the agent and codes required to deactivate any security alarms to facilitate him/her entering the property;
(ii)allowing inspection of the former matrimonial home at all reasonable times requested by the agent;
(iii)not doing or saying nothing to hinder or prevent a sale being affected;
(g)the parties shall sign all documents requested by the agent and the lawyer in relation to the listing of the former matrimonial home, except any contract agreement for sale which has not been authorised by the lawyer, within seven (7) days of receipt of the document;
(h)in the event the bidding at an auction does not reach the reserve price the parties may negotiate with the highest bidder or any other interested person and effect a sale of the former matrimonial home at a price which is no more than five percent (5%) below the reserve price, or at such other price as the parties agree upon in writing.
(i)in the event the former matrimonial home is not sold by auction or by way of private treaty within fourteen (14) days after the first auction, then both parties shall do all acts and things, and sign all necessary documents and pay all monies necessary to procure a second auction within a further five (5) weeks of the first auction (“the second auction”) upon the same terms and conditions as applied to the first auction save that the reserve price shall be five percent (5%) less.
10.That on completion of the sale of the former matrimonial home pursuant to Order 9 above, the parties do all acts and things necessary to cause the proceeds of sale to be distributed as follows:-
(a)to pay all costs, commission and expenses of sale including but not limited to the auctioneers fees;
(b)to pay any adjustment for council and water rates and any outstanding strata fees;
(c)to pay the mortgage secured over the property;
(d)the payment of an amount to the Husband which results in him receiving a forty percent (40%) share of the net non-superannuation assets as provided for in the Reasons for judgment, plus an agreed adjustment of $4,776 in the Husband’s favour, plus interest calculated in accordance with the Federal Circuit & Family Court Rules 2021 NOTING THAT the ultimate figure payable to the Husband will depend upon the net sale proceeds of the home;
(e)the payment of the balance then remaining to the Wife to be made to the Law Practice Trust Account of Access Family Law on behalf of the Wife.
11.That pending the completion of sale of the former matrimonial home, the Wife shall pay all outgoings for the former matrimonial home as and when they fall due, and shall indemnify the Husband and keep him indemnified with respect to such outgoings, including but not limited to:-
(a)mortgage repayments in relation to the mortgage secured over the former matrimonial home;
(b)council, water and any other rates;
(c)electricity, gas and other utility and service accounts;
(d)maintenance and repair expenses to maintain the property in its state of repair and condition at the date of these orders; and
(e)all home insurance premiums.
12.That except as otherwise provided for by these Orders, the Wife shall retain, to the exclusion of the Husband, the following:-
(a)Motor Vehicle 3 in her possession;
(b)the funds standing to her credit in any bank account in her name or to which she has an interest including any inheritance moneys from her late mother;
(c)her superannuation entitlements; and
(d)all other items of personalty including but not limited to money, proceeds of bank accounts, jewellery, and personal effects presently in her possession and control.
13.That except as otherwise provided for by these Orders, the Husband shall retain, to the exclusion of the Wife, the following:-
(a)the following items located within the former matrimonial home, and that the Wife make the same available for collection by the Husband’s nominee within seventy (70) days:
(i)Husband’s sports equipment;
(ii)Husband’s tools;
(iii)Husband’s Motor Vehicle 4;
(iv)Husband’s Motor Vehicle 5;
(v)Husband’s Motor Vehicle 1;
(vi)Husband’s Motor Vehicle 6;
(vii)Husband’s personal belongings as contained in the outbuilding, and books and furniture.
(b)Motor Vehicle 7 in his possession;
(c)Motor Vehicle 8 in his possession;
(d)the funds standing to his credit in any bank account in his name or to which he has an interest;
(e)his superannuation entitlements; and
(f)all other items of personalty including but not limited to money, proceeds of bank accounts, shares, jewellery, and personal effects presently in his possession and control.
14.That in the event that the Wife receives a formal demand for the repayment of the Centrelink debt in her name, such that the payment is to be made as a lump sum payment as opposed to a periodic payment, then upon the Wife providing other written confirmation, and corroborating evidence, that she has made payment of one half of the said debt, the Husband shall meet the remaining half of the debt within twenty-eight (28) days of receiving the said notice from the Wife.
15.That except as otherwise provided for by these Orders, each of the parties shall remain liable for any debts in his or her sole name at the date of the orders and shall indemnify and hold harmless the other from any liability in relation thereto.
16.The Court will hear the parties as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
INTRODUCTION:
These are property settlement proceedings arising out of the breakdown of the de facto relationship between Mr Rowlinson (“the Husband”) and Ms Bradford (“the Wife”).
The parties commenced their relationship in 2010 and finally separated on 23 September 2020. They have two (2) children: X born in 2014 and Y born in 2015.
This matter proceeded to a lengthy hearing and was conducted in a number of tranches. Overwhelmingly, the dispute related to the parenting issues. Though important, the property settlement proceedings were something of a ‘sideshow’ in that they involved modest assets, the issues were narrow, and it was agreed that the dispute could be determined on the papers without cross-examination of the parties. Helpfully, the parties also tendered an agreed form of order, leaving just a few contentious issues. [1]The primary dispute relates to the overall percentage division (and corresponding cash adjustment); whether there should be a superannuation splitting order in respect of the Husband’s superannuation; and which party should retain a family dog.
On 20 November 2023 the matter was listed for the handing down of Reasons and orders in both the parenting and the property dispute. However, the Husband objected that day to the property decision being handed down as, during the period when judgment was reserved, the Wife’s mother had passed away and the Wife was anticipated to be receiving an inheritance from her estate. She was accused of having failed to make full and frank disclosure about the anticipated inheritance despite repeated requests.
In the circumstances I handed down Reasons and orders for the parenting dispute only: Rowlinson & Bradford [2023] FedCFamC2F 1484. Essentially the parenting orders provided that the children live with the Wife and that they spend supervised time with the Husband, graduating to the current regime of alternate Sundays from 10am to 7pm. During the Term 1, Term 2 and Term 3 school holidays that time is extended to 5pm Friday until 7pm Sunday. In the Term 4 school holidays, the children spend two (2) such weekends with the Husband. In practical terms, the Husband’s time with the children is, and remains, limited.
The property dispute was adjourned for further hearing and, ultimately, it was concluded today by way of short oral submissions against the background of some updated evidence and agreed facts.
As these proceedings are being determined on the papers and without cross-examination, there are obvious constraints on my fact-finding capacity but I have nonetheless been able to make what I consider to be the relevant factual determinations.
These Reasons should be read with my earlier Reasons handed down on 20 November 2023.
THE HEARING & MATERIAL RELIED UPON:
Rowlinson & Bradford [2023] FedCFamC2F 1484 sets out the detail of the hearing, and the documents relied upon, up to 20 November 2023.
In addition to their earlier material:
(a)the parties have tendered an agreed updated statement of facts (exhibit 30);
(b)the parties have filed an affidavit by Mr GG, the single expert valuer who has provided an updated valuation of the former matrimonial home. His affidavit was filed on 5 September 2024 and he values the home at $750,000 instead of the original figure of $710,000;
(c)Mr Mooney has read the Wife’s updated Costs Disclosure revealing that she has spent just over $120,000 in legal costs which has been paid from her inheritance funds. She has unbilled fees of $1,678 and her anticipated further costs to finalise the matter are up top another $14,500 or so.
(d)Ms Kuemmel for the Husband advises that his total fees are approximately $157,000.
For the purposes of today’s hearing, Mr Mooney of counsel has again appeared for the Wife. The Husband has been represented by his solicitor, Ms Kuemmel.
THE LAW:
De facto property settlement proceedings are governed by the provisions of Part VIIIAB of the Family Law Act 1975 (“the Act”).
A Court cannot make a property settlement order unless it is ‘just and equitable’: s 90SM(3). In arriving at a ‘just and equitable’ order, I will:
(a)identify and value the assets, liabilities, and financial resources of the parties (the Balance Sheet);
(b)consider whether it is ‘just and equitable’ to make any property settlement Order adjusting the parties’ respective interests therein;
(c)if so, I will then identify and assess the respective contributions made by each of the parties towards their net assets: s90SM(4)(a), (b) & (c);
(d)I will identify and assess the matters set out in s 90SM(4)(d), (e), (f) & (g) together with the matters set out in s 90SF(3) – all of which I will colloquially refer to as the “Future factors” - and determine whether such matters warrant an adjustment to the parties’ respective contributions-based entitlements;
(e)lastly, I will consider the effect of my findings and proposed Orders so as to satisfy myself that any property settlement Order I am contemplating is ‘just and equitable.’
This pathway is drawn from the decisions in Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 and Stanford & Stanford (2012) FLC 93-518.
THE BALANCE SHEET:
The parties tendered a joint Balance Sheet (exhibit 24). Most of the values were either agreed, or deliberately left ‘blank’ by the parties on the basis that they were either being retained by one of the parties (essentially at a $ nil value for the purposes of the calculations) or being sold and the proceeds divided equally (eg. Motor Vehicle 2).
The updated valuation by Mr GG has been taken into account in the Balance Sheet which follows.
Assets:
Description
Wife’s value
Husband’s value
Value adopted
1
Suburb Q home (joint)
$750,000
$750,000
$750,000
2
Motor Vehicle 3 (W)
$9,350
$9,350
$9,350
3
Sports equipment (H)
4
Tools (H)
5
Motor Vehicle 7 (H)
$23,500
$23,500
$23,500
6
Motor Vehicle 4 (H)
7
Motor Vehicle 2
8
Motor Vehicle 5 (H)
9
Motor Vehicle 1 (H)
10
Motor Vehicle 6 (H)
$4,000
$4,000
$4,000
11
Sports equipment (joint)
12
Shares (W)
$998
$998
$998
13
Funds in bank (W)
14
Funds in bank (H)
15
Motor Vehicle 8 (H)
16
Financial Resource (H)
Assets subtotal:
$787,848
Liabilities:
Description
Wife’s value
Husband’s value
Value adopted
17
Mortgage (joint)
$530,696
$530,696
$530,696
18
ANZ credit card (W)
$3,000
Disregard
19
Lease Agreement (H)
20
Centrelink debt (W)
$67,017
Disregard
Liabilities subtotal:
$530,696
Net non-superannuation assets:
$257,152
Superannuation
Description
Wife’s value
Husband’s value
Value adopted
21
Super Fund 1 (W)
$100,208
$100,208
$100,208
22
Super Fund 2 (H)
$136,333
$125,448
$136,333
Superannuation subtotal:
$236,541
In relation to the Balance Sheet:
(a)The Wife’s credit card debt (Item 18) has been excluded as the Husband was left with a similar credit card debt at separation which he paid off. In closing submissions the Wife conceded that in the circumstances her credit card debt should not be included as a liability;
(b)The Wife’s Centrelink debt (Item 20) was accrued by her over many years during the relationship. The Husband complains about the Wife’s disclosure in relation to the debt[2] and the exact amount she currently owes is unclear on the evidence. For instance, the bundle of Centrelink documents (exhibit 26) does not correlate with the amount of the debt deposed to in the Wife’s Financial Statement.
It may be that some (or even all) of the debt could have been waived, although I accept the Wife’s evidence that she believes the debt to be still owing.
The Husband initially opposed the inclusion of the debt in the Balance Sheet, contending that it was incurred by the Wife fraudulently, ie. that she claimed and/or received it when she knew, or ought to have known, that she was not entitled to. The Wife denies any fraud, suggesting that the debt arose due to the on again/off again nature of the relationship and that she always kept Centrelink informed about the relationship status.
In the end I am excluding the debt from the Balance Sheet as, by agreement, it is expressly dealt with in order 25 of the parties’ joint minute. [3]
(c)In relation to the Husband’s superannuation (Item 22) I have adopted his figure as it is more up-to-date.
The Wife’s post-separation inheritance was $313,000 of which she has since spent just over $120,000 on legal costs. I have not included the inheritance in the Balance Sheet per se because it is her inheritance and it is common ground that the Husband has no contributions-based entitlement to it. Including it in the Balance Sheet as though it was an ‘ordinary’ asset in my view makes the contributions-based assessment more difficult; it distorts rather than assists.
The inheritance will be taken into account as a relevant s 90SF(3) factors, which in my view is the best way to deal with it.
IS IT JUST & EQUITABLE TO MAKE A PROPERTY SETTLEMENT ORDER?
The parties cannot mutually continue to use and enjoy their various items of non‑superannuation property, most significantly the jointly-owned matrimonial home. Each of them contends that it would be just and equitable to make a property settlement order in this respect and I agree.
The Husband does not however concede that it would be just and equitable to make a superannuation splitting Order. At no stage during the hearing had the Wife ever sought such an Order; accordingly neither counsel had made any submissions about it as it had not been a “live issue.” From my perspective, it only became a “live” issue at the final mention of the matter on 3 July 2023, when the Wife tendered a proposed superannuation splitting Order (with a blank figure).
Ultimately I do not consider that there is a principled reason to disturb the parties’ superannuation interests in this case; doing so is not ‘just and equitable’ as I will explain later.
ASSESSMENT OF CONTRIBUTIONS:
When the parties commenced their relationship in 2010 the Husband was working as a tradesperson and living with the paternal grandparents in Region K. The Wife was working as a customer service officer and living in a rental property in Sydney; she also had the primary care of Mr L.
The Husband came into the relationship with three (3) motor vehicles, namely Motor Vehicle 9, Motor Vehicle 10 and Motor Vehicle 1 which is included in the Balance Sheet. He also had Motor Vehicle 4 which is included in the Balance Sheet, a large amount of sports gear, some savings and some superannuation.
The Wife owned a motor vehicle and had some superannuation. Inferentially she also had some furniture items of nominal value and some nominal savings.
The parties started formally living together in 2012 when they rented a unit at Suburb FF. They shared the rent in an agreed manner, while continuing to keep their bank accounts separate.
I accept that the Wife deliberately scratched the Husband’s Motor Vehicle 1 in 2010 or 2011 as set out in Rowlinson & Bradford [2023] FedCFamC2F 1484 at [31].
The Wife was involved in an accident in 2012 as set out in Rowlinson & Bradford [2023] FedCFamC2F 1484 at [32]. I accept that the Husband purchased her a vehicle, taking out a personal loan to do so. In 2014 this was traded in on the Wife’s Motor Vehicle 3. The Wife made the associated car loan repayments.
In 2015 the parties jointly purchased the Suburb Q property for $470,000. To fund the deposit, the Husband contributed some savings together with the sale proceeds of a motor vehicle, and each party’s parents contributed $12,000.
In 2017 the Husband took out a loan to purchase Motor Vehicle 7. He made the loan repayments up to the point when the loan was discharged.
In 2018 the parties refinanced the mortgage and paid out the Motor Vehicle 7 loan ($48,000) together with the remainder of the Motor Vehicle 3 loan ($10,000). That same year, the maternal grandmother loaned the Wife the sum of $5,000 to finance a small business venture; it was not successful.
In late 2019 the Wife received a promotion at work, increasing her work hours to five (5) days per week. This coincided with the Husband deciding to quit full-time work and drop back to working on a casual basis. The parties agreed at that time for the Husband to take on the role of primary carer – although she still insisted on transporting the children to school herself at times when she considered that the Husband was under the influence of illicit substances: see Rowlinson & Bradford [2023] FedCFamC2F 1484.
Up until that point, the Wife had always been the primary carer of the children. Thereafter and until final separation, the Husband took on the primary care role.
In 2019 the Husband undertook some renovations of the Suburb Q home, including some repairs to the home and some repainting inside and out. He saved the parties money by enlisting a friend to help him at ‘mates rates’.
Post-separation:
At separation the Husband assaulted the Wife and broke her mobile phone, as a result of which he was charged and later fined. Police took out an Apprehended Violence Order (“AVO”) to protect the Wife and children.
The Husband moved in with his parents in Region K, about 2 hours’ drive away. They provided him with rent-free accommodation to help him to get back on his feet financially.
The practical effect of the AVO, and subsequent interim orders of this Court, is that after separation the Husband did not spend any time with the children again until 11 March 2023, when he started seeing them for supervised visits.
Following separation, the Wife had full-time care of the children. She also had sole use and occupation of the Suburb Q home.
From September 2020 onwards, the Husband made irregular mortgage payments. The mortgage repayments were on hold for a few months as relating to the Covid pandemic. The Wife otherwise paid the mortgage, save for the period between January and April 2022 when, due to some financial distress, she put the payments on hold during which time the repayments came out of the redraw. She then resumed the normal mortgage repayments and has continued them ever since.
From separation until July 2021, the Husband did not pay any formal child support. The Wife had made the requisite application to the Child Support Agency and the Husband says that his non-payment was not deliberate, but rather arose from some form of administrative error on their part. From July 2021, the Husband consistently paid child support as assessed, including some ‘catch-up’ payments.
In December 2021 the Husband ceased making mortgage repayments; his total post-separation repayments came to $13,318.
In 2023 the Wife’s Mother passed away and the following year she received her inheritance moneys.
The Husband’s father also passed away but it is common ground that his estate went entirely to the Husband’s mother.
The Wife alleged that in the course of disclosure she found an undisclosed $40,000 bank account balance of the Husband as at the separation date. He denied it and, as no documentary proof of that balance was ever produced by the Wife, I reject her allegation.
Overall assessment of contributions:
In respect of the non-superannuation property, each party made significant contributions. The Husband made the greater initial contribution; the Wife the greater homemaking and parenting contribution. Both parties worked throughout and each of them was able to pursue their chosen career path.
By their very nature, the respective superannuation interests of each party were always individually owned and were never ‘pooled’ or in any way jointly shared. Their current balances reflect their respective employer-funded contributions. Both parties likely have a somewhat reduced superannuation balance as a result of caring for the children, ie. the Wife inferentially taking some time off work for maternity leave and the Husband dropping back to casual hours in the last year or so of the relationship. The limited evidence does not permit me to draw any meaningful distinction between the parents in this respect. Importantly, the Wife is still able to work normal hours despite having the children’s care.
In respect of the non-superannuation property, I would assess the contributions as being equal given the Wife’s overwhelmingly greater post-separation parenting role.
In respect of the superannuation interests of the parties, I consider that the current balances reflect the contributions that each of them (through their employer) has made; any contribution made by either party towards the other’s superannuation is de minimis. In so deciding I am mindful of the need to properly value and weigh homemaking and parenting contributions: see Mallet & Mallet (1984) FLC 91-507.
OTHER SECTION 90SM CONSIDERATIONS, INCLUDING ‘FUTURE FACTORS’:
The Husband, a tradesperson, was born in 1974. He is 49 years old and in good health. The Wife, a professional, was born in 1982 is 42 years old. She has a medical condition which is managed.
At the end of their ten (10) year relationship – excluding their periods of separation – the property of the parties is modest. To put it into perspective, the Wife’s inheritance on its own exceeds the combined net value of the non-superannuation property that the parties themselves accumulated.
Both parties were gainfully employed during the relationship and they remain so, with each earning a healthy income. Each party can support themselves (and the children) adequately. The Husband works as a tradesperson; excluding overtime he earns $2,800 per week which comfortably exceeds his weekly expenses. The Wife earns $2,900 per week which comfortably exceeds her weekly expenses. Though neither party completed Part N of their Financial Statements, I infer that the Husband’s surplus income is greater than the Wife’s even after payment of child support. But that is somewhat artificial; it is only the case because he presently lives rent-free in his parents’ home. At some stage he is likely to re-house himself.
The Wife will have the overwhelming care of the children going forward and I am particularly mindful of the need to protect her continuing role as primary carer.
The Husband will pay child support to the Wife as assessed; he is presently assessed to pay her $178 per week which no doubt will fluctuate over time commensurate with his income. In addition to her income and the Husband’s child support, the Wife may have a future entitlement to means-tested Centrelink benefits in respect of her care of the children.
Neither party has re-partnered. Neither of them seeks (or needs) spousal maintenance from the other. Each has a reasonable a standard of living.
I am mindful of the creditors, namely the mortgagee and Centrelink.
I am mindful of the form of orders to which the parties have agreed, and to their effect. Neither party’s earning capacity will be impacted by the orders.
I also note that the Husband cared for, and financially provided for, the Wife’s son Mr L: see s 90SF(3)(r) of the Act.
An adjustment is warranted:
Weighing all of the above matters collectively, I consider that the Wife’s overwhelming primary care of the children warrants a ten percent (10%) uplift to her contributions-based entitlement in respect of the parties’ net non-superannuation property. The net property for this purpose is $257,152 – of which ten percent (10%) amounts to $25,715. The adjustment would have been higher but for the Wife’s inheritance.
There is no principled basis for making any adjustment to the parties’ respective superannuation interests.
‘JUST & EQUITABLE’ OUTCOME:
On the basis of these Reasons, I consider that a ‘just and equitable’ outcome would be that the net non-superannuation property of the parties be divided as to sixty percent (60%) to the Wife and forty percent (40%) to the Husband. The other Balance Sheet items (including the Centrelink debt), are being dealt by way of an agreed order. The parties will retain their own superannuation interests; the Wife will retain her inheritance moneys.
In relation to the dog, the parties dispute their respective involvement in the dog’s care. The Wife even suggests that the Husband was abusive to the dog. But what is not in dispute is that:
(a)The dog is registered in the name of the Wife, so that at law and particularly for regulatory purposes she is regarded as the owner;
(b)The dog is in fact one (1) of two (2) family dogs;
(c)both dogs have always lived together; and
(d)both have stayed living with the Wife and children since separation in September 2020.
In my view, there is no principled basis to transfer the dog into the Husband’s name at this stage.
Though not strictly necessary, I would also add that transferring the dog to the Husband seems somewhat cruel to the children and to the dog, who would be thereby forced it to ‘lose’ its canine companion. The dog may be property at law but it is not a piece of furniture. It is a living being and should be treated with compassion: s 90SF(3)(r).
CONCLUSION & ORDERS:
By way of overview, I am making Orders in accordance with the agreed template (exhibit 28).
I reject the Wife’s superannuation splitting Order; I reject the Husband’s proposed Order that the dog be transferred to him.
(a)the “settlement sum” payable to the Husband in Order 2 has been calculated as:
·Husband’s 40% share of net assets of $257,152 = $102,861.
·Less Motor Vehicle 7 & Motor Vehicle 6 ($27,500) = $75,360.
·Plus agreed adjustment of $4,776 in Husband’s favour = $80,137
(b)the amount payable to the Wife in order 6(b) has been calculated as:
·Wife’s 60% share of net assets of $257,152 = $154,291.
·Less Motor Vehicle 3 & shares ($10,348) = $143,943.
·Less agreed adjustment of $4,776 in Husband’s favour = $139,167
(c)Order 10(d) has been drafted with the intention that, if the home is sold, the parties will still receive the same respective percentage shares as provided for in these Reasons. It was agreed that the Wife should pay interest to the Husband in this event.
I will hear the parties as to costs.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 6 September 2024
[1] Exhibit 28
[2] See the Husband’s trial affidavit, annexure “V”.
[3] Exhibit 28
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