Rupnar and Rupnar
[2013] FamCA 449
FAMILY COURT OF AUSTRALIA
| RUPNAR & RUPNAR | [2013] FamCA 449 |
| FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where initial contributions are in dispute – Where the interests of the husband in a property with a former partner are in dispute – Determination of the parties’ existing legal and equitable interests in property |
| Family Law Act 1975 (Cth) – s 75(2), s 79(1), s 79(2), s 79(4) |
| Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 Stanford v Stanford (2012) FLC 93-518 |
| APPLICANT: | Ms Rupnar |
| RESPONDENT: | Mr Rupnar |
| FILE NUMBER: | PAC | 4161 | of | 2011 |
| DATE DELIVERED: | 13 June 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 17 & 18 April 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom |
| SOLICITOR FOR THE APPLICANT: | Turner Freeman Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Boys of MPB Lawyers |
Orders
That the husband and wife forthwith do all things and sign all documents necessary to effect the sale of the former matrimonial home at B Street, Suburb H, NSW (“the former matrimonial home”) being the whole of the land and all its improvements contained in Certificate of Title Folio Identifier … by private treaty and shall place the property in the hands of an agent agreed upon between the parties for sale at an agreed price or at a price determined by an independent valuer agreed upon between the parties, and failing such agreement at a price determined as the fair market price by the President for the time being of the New South Wales Division of the Australian Property Institute.
Upon completion of the sale of the former matrimonial home the proceeds of sale shall be distributed in the following manner and priority:
(a)In discharge of the mortgage presently encumbering the former matrimonial home with the St George Bank;
(b)In discharge of any outstanding Council and Water Rates;
(c)In payment of Real Estate Agent’s property commission arising from the sale;
(d)In payment of proper legal costs and expenses arising from the sale;
(e)In payment of any other expenses which may have been reasonably incurred in respect of such sale, including valuer’s fees if appropriate;
(f)In payment of 66.58 per cent of the balance to the wife; and
(g)In payment of the balance to the husband.
That in the event that a purchaser for the former matrimonial home is not found within six months of the date the property is listed for sale or as otherwise agreed, the parties shall do all things and sign all documents necessary to list the property for sale by public auction at an agreed price.
That in the event that the parties are unable to agree upon an auctioneer, the auctioneer shall be nominated by the Real Estate Agent marketing the property.
That upon completion of the sale by auction the proceeds of sale are to be distributed in accordance with Order 2(a)-(g) above.
That for the purposes of Order 3 herein, the parties shall do all things necessary to cause the property to be sold by way of public auction on the following terms:
(a)That such an auction take place within six weeks from the date of placing the property for sale by public auction or as soon as practicable thereafter;
(b)That the agent be as agreed between the parties or failing agreement for more than seven days, as appointed by the President for the time being of the New South Wales Division of the Australian Property Institute.
(c)That the reserve price for such auction be as agreed between the parties or failing agreement for more than seven days, as determined by the selling agent;
(d)That the parties pay all auction expenses as requested by the selling agent as and when they fall due;
(e)That the parties shall do all things necessary or recommended by the selling agent to properly present the property for sale and to make the property available for inspection by prospective purchasers;
(f)That either party be at liberty to bid for the purchase of the property at the auction;
(g)That the parties shall attend the auction and, if necessary, negotiate with the highest bidder at the auction if the reserve price is not reached.
That in the event that the property does not reach the reserve price and the parties are unable to negotiate an agreed sale price with the highest bidder at the auction then the parties shall do all things and sign all documents necessary to cause the property to be sold by way of subsequent auction on the following terms.
(a)That the auction take place within six weeks of the date of the last auction;
(b)That the agent be as agreed between the parties or failing agreement for more than seven days, as appointed by the President for the time being of the New South Wales Division of the Australian Property Institute.
(c)That the reserve price for such subsequent auction be an amount that is 5 per cent lower than the previous reserve price;
(d)That the parties pay equally all auction expenses as requested by the selling agent as and when they fall due;
(e)That the wife shall do all things necessary or recommended by the selling agent to properly present the property for sale and to make the property available for inspection by prospective purchasers;
(f)That either party be at liberty to bid for the purchase of the property at the auction;
(g)That the parties shall attend the auction and, if necessary, negotiate with the highest bidder at auction if the reserve price is not reached.
That upon completion of the sale by auction the proceeds of sale are to be distributed in accordance with Order 2(a)-(g) above.
That each party is declared the sole owner of all other property and the superannuation in their possession and/or control respectively.
That the husband indemnify the wife in relation to all liability pursuant to the portfolio loan.
That if either party refuses or neglects to sign a document necessary to give effect to these orders within five days of notice in writing being given by the other party or his or her solicitor, then the Registrar of the Family Court is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 to sign such document and do all things necessary to give validity and operation to the document.
That all exhibits be released.
That both parties have leave to relist these proceedings by arrangements with my Associate [[email protected]] in relation to the implementation of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rupnar & Rupnar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4161 of 2011
| Ms Rupnar |
Applicant
And
| Mr Rupnar |
Respondent
REASONS FOR JUDGMENT
The parties in these proceedings are Ms Rupnar and Mr Rupnar. For convenience I shall refer to them as “the wife” and “the husband” respectively.
The parties have been unable to arrive at a settlement of their property and have asked the Court to determine their dispute.
Applications
The wife seeks orders to the following effect:
·The former matrimonial home at B Street, Suburb H, New South Wales be sold and after discharging the mortgage, paying outstanding council and water rates, agent’s costs, and legal costs and expenses arising from the sale, the proceeds be paid 70 per cent to the wife and the balance to the husband;
·A superannuation splitting order in relation to the husband’s superannuation in the ASGARD Employee Super Account using a base amount for the wife of $30 000;
·The parties be declared the sole owners of all other property and superannuation in their possession and/or control respectively; and
·An enforcement order.
On the other hand the husband seeks orders to the following effect:
·The former matrimonial home be sold and after paying agent’s commission, advertising expenses and legal costs on the sale, and discharging the mortgage, the balance be paid 25 per cent to the wife and the balance to the husband;
·Similar orders to those sought by the wife in relation to their other property and enforcement.
Issues
It was agreed that the following are the issues for determination in the proceedings.
1.What were the initial financial contributions by each of the parties;
2.The current interest of the husband in the Suburb C property including the nature and extent of borrowings secured against the property over time and whether most of the current liabilities secured against the property have resulted as a consequence of the husband’s personal expenditure;
3.Whether the Suburb C property ought to be included in the pool of property available for division between the parties;
4.The history of contributions made to the former matrimonial home at Suburb H;
5.Whether any money is outstanding in respect of the loan from the husband’s son Mr D; and
6.Section 75(2) issues.
Background
The husband, 52 years of age and the wife, 44 years of age met in Fiji in January 1999. They married in April 1999 in Fiji.
The husband paid for the airfares and most of the other expenses involved in the wife’s migration to Australia in 1999.
At the commencement of the parties’ cohabitation the husband was working in the construction industry earning between $800 and $900 per week. In October 1999, a few weeks after the parties commenced cohabiting, the husband suffered a workplace injury. He received Workers Compensation payments until January 2001. Over the period of his invalidity he did not suffer much loss of income. This was because in addition to his workers compensation payments, he received construction industry “top up” insurance payments which brought his income up close to the level of his previous wages.
Shortly after her arrival in Australia the wife commenced working in the hospitality industry at Company E earning approximately $650 per week gross.
In October 2000 the parties purchased a property at B Street, Suburb H for $150 000. This was funded by a bank loan of $104 000 as well as draw downs on a portfolio loan in the names of the husband and his former de facto spouse Ms A, to a total of $50 000. The home was in poor condition and the parties undertook some modest renovations, including installation of a second-hand kitchen, to make it more habitable.
In August 2001 the parties’ child, F, was born. She is currently 11 years of age. The wife took 6 months maternity leave then resumed her employment with Company E from Tuesday to Saturday each week.
In March 2002 the husband received $45 000 for his Workers Compensation claim. The Suburb H property had been purchased in the expectation that the husband would be receiving a workers compensation payment. When received, this money was applied to repay the portfolio loan.
Between 2002 and 2003 the parties demolished the property at B Street, Suburb H and built a new home on the land. They had a contract with the builder for $164 000. They obtained a home loan for $100 000. The balance came from the portfolio loan. These funds were insufficient to complete the new home and the husband asked his son Mr D to lend the parties $19 000 which he did. There is a dispute about this and I shall refer to this again below.
In November 2005 the husband sold an investment property at I Street, Town G, Queensland for $220 000. He had owned this at the time of the parties’ marriage subject to a small mortgage. The husband applied the net proceeds of sale to reduce the amount owing on the home loan secured over the Suburb H property and he paid $56 415 off the portfolio loan.
In 2006 the husband drew down a further $30 000 from the portfolio loan to build a fence, pergola and entertainment area.
Also in 2006, the family went on a holiday to Fiji. This was funded by both parties.
In 2008 the wife had another holiday in Fiji but this time only with F. The wife paid the costs of the holiday.
In December 2008 the husband accepted a job offer in Town J. The wife supported him in his application for the position. The parties rented their Suburb H home for $450 per week. The rental income was applied to pay the repayments of the mortgage with St George Bank and the portfolio loan.
In 2009 the parties purchased a hospitality business for $3000 and they spent a further $1000 to upgrade the business.
The parties separated in March 2010. The wife sold the hospitality business for $2500 and had the use of these funds.
Since March 2010 the husband has paid $400 per month in child support to the wife. He travels to Sydney to spend time with F once per month, at significant cost.
In February 2011 the wife withdrew $18 000 from the Suburb H property mortgage and purchased a new motor vehicle.
In September 2011 the wife filed her Initiating Application.
Credit
The wife
The wife was generally responsive in her answers to questions in cross-examination.
She said that she and the husband had different bank accounts and that she did not have much idea about the husband’s operation of his portfolio account.
Generally, I regarded the wife’s evidence to be reliable, although I have not accepted her assertion about bringing a superannuation cheque from Fiji when she came to Australia initially. I shall refer to this again below.
The husband
The husband appeared to have considerable difficulty with the process of cross-examination. He tended to be somewhat unresponsive in his answers to questions. On many occasions he had to be drawn back to the question and questions had to be asked a second time. Even then there were difficulties. On some occasions after questions had been repeated I found myself asking him for clarification.
He did however, make concessions and I accept the truth of much of his evidence.
The Wife’s Fiji Superannuation
The wife said that when she came to Australia originally from Fiji she had been paid approximately $10 000 in the form of a cheque from her accumulated superannuation benefits. She said she gave the cheque to her husband upon her arrival in Australia.
The husband denied this. The wife said that just before she married the husband she had been working in Fiji in the hospitality industry earning approximately $40 per week. She said that prior to commencing work in this capacity she had worked over quite some years in the education industry and it was in that capacity that she had accumulated her superannuation. She said that she had been earning approximately $10 000 per year from her employment in the education industry. The wife was unable to tender any documents in support of her assertions in this regard.
I find myself unable to accept the wife’s assertion that she made this initial financial contribution.
Mr D’s Loan
It is common ground that the husband’s son Mr D advanced a sum of money to assist renovation of the former matrimonial home. The wife said that this amount was $17 000 and that it was received in October 2000. She said that the money was used to purchase a second-hand kitchen for $1000, second-hand carpets and wardrobes for approximately $500 and some paint.
The husband said that the amount was $19 000 and that it was a loan.
The wife said that at no time prior to separation did the husband suggest to her that the advance was a loan. She said that at the time the husband received the money, he informed her that Mr D had given him the money in exchange for living rent free at the husband’s Suburb C home. The husband denied this. The wife also said that Mr D continued to live at the Suburb C property until April 2012 and that Mr D’s wife also lived there following their marriage in November 2011.
The wife also said that the first time that the husband informed her that the advance was a loan was after they separated.
I must say that I prefer the wife’s account of this matter. I am not persuaded that this money should be taken into account against the wife’s interests. In my view the husband could have obtained an affidavit from his son to support his assertions. The husband said that he raised with his son the possibility of him giving evidence and that Mr D said that he did not wish to be involved. In these circumstances I draw the inference against the husband. In any event the alleged liability would not be enforceable because it would be statute barred.
Interests in Property at K Street, Suburb C
This property had been purchased by the husband and Ms A as joint tenants in approximately September 1997. The husband paid $10 000 towards the deposit and I infer that the balance of the required funds was borrowed by the husband and Ms A. Ms A made no initial financial contribution to the purchase of the property.
The property now has an agreed value between the husband and the wife of $360 000.
The husband said that at the time the relationship between him and Ms A broke up in 1997, they agreed that she would retain the Suburb C property and he would retain the Suburb L property. He said that they agreed to distribute their assets in such a manner, which I infer was considerably more advantageous to Ms A than to the husband, because she was six years older than him, she was taking medication for mental illness, and because Ms A had been the primary carer of his son Mr D over many years.
The husband said that he and Ms A also agreed that he would transfer his interest in the Suburb C property to her and close the portfolio loan.
The husband said that he and Ms A never documented this agreement or involved solicitors because of the costs involved.
In approximately September 2012 the husband obtained a Form of Transfer from the relevant Department and took it to Ms A for her signature which she entered thereon. The purpose of this was to facilitate a transfer of the husband’s interest from the husband to Ms A.
The husband had previously instructed his solicitor Mr Phillip Boys to prepare a binding financial agreement between himself and Ms A. The agreement purported to record the parties’ acknowledgement that at the time they separated they agreed that the husband retain the Suburb L property and Ms A would retain the Suburb C property. The agreement went on to provide that the husband would transfer his interest in the Suburb C property to Ms A.
This agreement was prepared by the solicitor notwithstanding the fact that these proceedings had commenced and that the husband was a joint registered proprietor of the Suburb C property which would bring this asset within the pool of assets for consideration by the Court in these proceedings. The husband said that Ms A was well aware of these proceedings and that she has refused to become involved in the proceedings let alone become a party in the proceedings.
In my view, the signed form of transfer and what purports to be a binding financial agreement between the husband and Ms A have no more significance in these proceedings than being historical. In my view the binding financial agreement could not be enforceable in circumstances where the only proper interpretation can be, that it was brought into existence to ensure that the husband’s interest in the Suburb C property would not be included in the pool of property available for division between the husband and the wife. Even if this was not the intention, in any event, that would be the effect. The fact that the wife was never notified at the time of the preparation of the agreement, that the husband proposed to adopt this course reinforces the inappropriateness of the agreement. In any event, there was no certificate pursuant to s 90UJ(1) of the Family Law Act 1975 from which the Court could make a finding that Ms A had received independent legal advice about the effect of the agreement. In my view this must be fatal to any finding that the agreement was binding.
In addition to this it was submitted by learned counsel for the wife, that while the husband asserts that he had an agreement with Ms A, he has acted quite inconsistently with the agreement. This was because it was a fundamental part of the agreement that the portfolio loan in both their names would be closed. Clearly this has not occurred and the husband conceded that he has used the portfolio loan account as his “everyday” account. I note that the statements for the account have been sent to various current addresses of the husband from time to time and that there was no evidence that any of the statements had been sent to Ms A’s address.
It was submitted on behalf of the husband that the wife had conceded that the husband had no beneficial interest in the Suburb C property. This was because there had been correspondence in mid-2012 from the wife’s solicitor to the effect that the wife was not asserting that the husband had a beneficial interest in the Suburb C property. In my view, however, this correspondence has to be considered in the context in which it occurred. The husband had filed an Application in a Case seeking an order to the effect that in the event that the wife asserted that he had an equitable interest in the Suburb C property he file an application naming Ms A as an applicant and file and serve verified points of claim particularising the interest. The wife’s solicitor took the view that it was unnecessary for the wife to do so because she did not need to seek any orders directly against the Suburb C property because there was other property which would be sufficient to fulfil a property order in her favour. I am satisfied that this was the context in which that assertion on behalf of the wife was made. That is, that it went to process rather than to substance.
In all these circumstances, in my view, it is appropriate for this Court to find that the husband has a joint interest in the Suburb C property, unaffected by the financial agreement, the signed form of transfer or the said correspondence from the wife’s solicitor.
Portfolio Loan
This was a joint account of the husband and Ms A. This loan originated in 1995 when the husband and Ms A borrowed $100 000 secured against their Suburb C property to fund the construction of a home on the husband’s land at Town G, Qld which became the investment property.
At the time the parties commenced cohabitating the balance in this account was a credit of approximately $3000. The husband said that when they borrowed the funds to purchase the Suburb H former matrimonial home the account was in credit in the amount $3650. He said that the reason for this was that his income had been deposited to this account. I accept this evidence.
The wife said that the husband always referred to this loan account as his account. The husband denied this. I think the wife is more likely to be correct because the husband conceded that he used the account as his “everyday account”. As I have indicated above, not only was his address the address at which the account statements were sent but there was no evidence of any statement having been sent to Ms A.
In my view, in reality, the portfolio loan account was the husband’s account.
The Applicable Law
Sub-section 79(1) of the Family Law Act 1975 (Cth) (“the Act”) provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.
Sub-section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise, by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).
The operation of s 79 was the subject of consideration by the High Court in the recent case of Stanford v Stanford (2012) FLC 93-518.
In Stanford the majority said (at page 86,640) in referring to ss 79(2) and 79(4) as follows:
35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
The High Court said that the first of these propositions is for the court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The second is that although s 79 confers a broad power on the court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.
The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.
And the High Court majority went on to say (at page 86,642) as follows:
41.… The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
The Parties’ Existing Legal and Equitable Interests in Property
The parties’ interests in property and superannuation are as follows:
$
1. Former matrimonial home at B Street, Suburb H
520,0002. Husband’s interest in K Street, Suburb C
180,000
3. Husband’s IAG shares
2,289
4. Husband’s household contents
2,000
5. Wife’s household contents
2,500
6. Wife’s motor vehicle
15,000
_____________
$721,789
The liabilities are as follows:-
$
1. Mortgage on Suburb H
50,149
2. Portfolio loan
80,000
_____________
$130,149
Surplus
$591,640
In relation to liabilities, each of the parties has a liability to their respective solicitors. I have seen the costs letters from each of the solicitors and I propose to leave these liabilities where they lie.
The husband has a superannuation benefit in ASGARD Superannuation valued at $99 000. The wife has a superannuation benefit in Matrix Superannuation valued at $30 000.
The total net assets including superannuation have a value of $720 640.
Contributions
At the commencement of the parties’ cohabitation the wife’s property consisted of her jewellery and personal effects.
At this time the husband’s property consisted of his investment property at I Street, Town G, Queensland subject to a mortgage, his interest as joint tenant with Ms A in the property at K Street, Suburb C, a Ford motor vehicle, some furniture and effects, some superannuation and his interest in the joint portfolio account with a credit balance of approximately $3000. He had also paid the airfares and the major part of the costs of the wife migrating to Australia.
The husband did a lot of work on the renovation of the original Suburb H home and also in relation to the new building project on the land. But the wife also assisted in these projects.
Both parties worked hard consistently in their respective areas of employment. The husband received the workers’ compensation payment and I note that this was for loss of movement due to his injury.
Both parties have also made sound contributions as homemakers and parents although I am satisfied that the wife’s parenting contribution has been greater than that of the husband even to the point of separation.
It was submitted on behalf of the wife that it is true that the finding which the court would make about contributions to the time of separation would favour the husband. I accept this because the husband owned the property referred to above at the commencement of the parties’ cohabitation. This was a significant disparity in the parties’ initial contributions. It was further submitted that for two reasons there would be somewhat of a movement in favour of the wife about contributions. The first of these was the considerably greater parenting contribution which the wife has made in relation to the parties’ child F since separation. It was said that she has undertaken almost the entirety of the physical care with little assistance from the husband. The second reason was the fact that the husband has received the net rent from the former matrimonial home without the wife having been able to enjoy any of such funds. It was submitted that this has been between $9000 and $10 000 net per annum since separation. In all the circumstances it was submitted that the court should find the contributions overall to have been 55 per cent by the husband and 45 per cent by the wife.
As I say, I accept that the husband’s contributions overall have been higher than those of the wife. But because the husband’s initial contribution was so substantial, a finding that his contributions overall were 55 per cent would be too low in my view. Accordingly, in my view, the contributions overall have been 60 per cent by the husband and 40 per cent by the wife.
Sub-section 75(2) Matters
As indicated above the wife is 44 years of age and in good health. She works part time in a clerical role with Company M. She is currently working 30 hours per week and earns approximately $35 700 per year. The wife does not wish to work more than 30 hours per week because she takes F to Sport N. She said that the child is very gifted in Sport N.
I am satisfied that her level of personal expenditure including that on the child is well beyond her income even including child support paid by the husband. This is being funded by her credit card.
On the other hand the husband is 52 years of age and there is some limitation in terms of his health as a consequence of the workplace injury which he suffered referred to above. He is employed on contract as a supervisor with Company O. His income is approximately $70 000 per year. The husband also receives a travel and meal allowance. In addition to this he has been receiving the rent from the former matrimonial home at Suburb H.
Like the wife, the husband’s level of expenditure is also in excess of his income. However, having perused his financial statement, in my view, this is not nearly the problem for him as it is for the wife.
In my view, it is appropriate for the court to note that the amount of property which the husband would be entitled to on a contributions basis is greater than that of the wife by a margin of 20 per cent.
But there are more significant matters. The first is the fact that the wife, on indications to date, will continue to have the major care of the child for many years yet. Because of the geographic distance between the parties the husband is only able to spend time with the child for half of the school holidays and one or two nights per month during term. He pays child support currently at the rate of approximately $137 per week, although the wife says that this is in arrears.
In my view, it is also the case that the wife has a lower income earning capacity than the husband. In considering this matter however, I accept the submission by the learned solicitor for the husband that the court must take a cautious approach when comparing the earning capacities of the parties. This is for the reason that the husband has limitation in his movement following his workplace injury as well as the fact that he works on contract and virtually has no security of tenure. It is submitted that at 52 years of age he might not be able to work many years into the future as a supervisor. On the other hand it was conceded by the husband that his workplace duties do not involve him in undertaking any heavy work. The wife is considerably younger than the husband at 44 years of age and ought to be able to continue in her present line of employment for the foreseeable future.
Taking account of these relevant matters, in my view it is clear that to arrive at a just and equitable order the court would make an adjustment in favour of the wife.
I note that in the case of Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 the Full Court of this Court indicated trial judges need to consider the value of the adjustment in real terms. The Full Court said at FLC page 81,911 as follows:
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.
It was submitted on behalf of the wife that in order to do this it would be appropriate to make an adjustment of 15 per cent in favour of the wife. In my view such an adjustment in all the circumstances of this case would be too high. In my view the appropriate adjustment is 10 per cent. This would be a differential of $144 128, being 20 per cent of the available property and superannuation.
Sub-Section 79(2)
In Stanford the High Court majority also said the following (at page 86,642):
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order.
In my view, this is the situation in the present case. It is clear that the former matrimonial home at Suburb H was purchased as a home for themselves and obviously for their common use. Clearly they are no longer living in their marital relationship and are now unable to enjoy the common use of this property and various other items of joint property.
In these circumstances, in my view, it is just and equitable that their interests in property be altered by appropriate order.
Conclusion
The wife is to have 50 per cent of the available property and superannuation. This is property and superannuation with a value of $360 320 (50 per cent of $720 640 = $360 320).
The wife has the following property and superannuation.
$
1. Motor vehicle
15,000
2. Household contents
2,500
3. Matrix superannuation
30,000
_________
$47,500
To achieve property and superannuation with a value of $360 320 the wife would require additional property with a value of $312 820 ($360 320 - $47 500 = $312 820). This could only come from a sale of the former matrimonial home.
As indicated above, this property has a value of $520 000 and is subject to a mortgage of $50 149. Not taking account of sale costs including legal costs of sale, or the usual adjustments on sale, the equity is $469 851 ($520 000 - $50 149 = $469 851). The amount of $312 820 is 66.58 per cent of $469 851.
On the other hand, the husband is also to have 50 per cent of the available property and superannuation, namely $360 320.
The husband has the following property and superannuation:
$
1. Interest in K Street, Suburb C
180,000
2. IAG shares
2,289
3. Household contents
2,000
4. ASGARD superannuation
99,000
_____________
$283,289
But the husband also has liability for the portfolio loan which is $80 000. Accordingly, the husband has net property and superannuation with a value of $203 289 ($283 289 - $80 000 = $203 289).
To achieve property and superannuation with a value of $360 320 the husband would require additional property with a value of $157 031 ($360 320 - $203 289 = $157 031).
The amount of $157 031 is 33.42 per cent of the equity in the former matrimonial home ($469 851).
As each of the parties has sought, the former matrimonial home will have to be sold. From the proceeds of sale after paying sale costs including legal costs on sale and discharging the mortgage, the wife will be paid 66.58 per cent of the balance and the husband will be paid 33.42 per cent thereof.
The wife will have approximately $310 000 (taking account of some approximation of costs of sale of the home) to put towards the purchase of a home for herself and F, or to assist with their accommodation and living costs. The wife will also have her modest superannuation. At 44 years of age she still has many years to contribute to superannuation.
On the other hand, the husband will receive approximately $155 000 (also taking account of approximate costs of sale of the home). This could be used as the deposit on a home, to retire debt or to assist with payment of his living costs. The husband will also retain his interest in the Suburb C property. Whatever portion of this is represented in Ms A’s interest, the husband will now be able to negotiate with her without any involvement of the wife. In addition, the husband has his ASGARD superannuation which he will be able to build on for his retirement. The husband asked the Court not to split his superannuation and I am pleased that it has not been necessary to do so.
This will be reflected in appropriate orders.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 13 June 2013.
Associate:
Date: 13 June 2013
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Jurisdiction
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Remedies
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Costs
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Statutory Construction
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