S and W
[2008] FCWA 52
•16 MAY 2008
[2008] FCWA 52
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | S and W [2008] FCWA 52 |
| CORAM | : | CROOKS J |
| HEARD | : | 23 & 24 JANUARY 2008 |
| DELIVERED | : | 16 MAY 2008 |
| FILE NO/S | : | PT 4164 of 2006 |
| BETWEEN | : | S |
| Applicant/Husband | ||
| AND | ||
| W Respondent /Wife | ||
| Catchwords: |
PROPERTY SETTLEMENT - significance of initial contributions - s 75(2) adjustment
Legislation:
Family Law Act 1975, s 75(2), s 77A, s 79
Fatal Accidents Act 1959
Category: Not Reportable
[2008] FCWA 52
Representation:
Counsel:
| Applicant | : | Mr M Berry |
| Respondent | : | Mr M Rynne |
Solicitors:
| Applicant | : | Paynes |
| Respondent | : | G A Lacerenza |
Case(s) referred to in judgment(s):
Pierce v Pierce (1999) FLC 92-844
Williams and Williams [2007] FamCA 313
[2008] FCWA 52
1 The dispute to be determined concerns the division of property between [Mr S] (“the husband”) and [Ms W] (“the wife”).
2 The parties were able to resolve the majority of the parenting issues between
them, at least on an interim basis, and I made orders on 5 February 2008 dealing with
the interim schooling issues and day care issues which were not agreed.
Background
3 The wife is 42 years of age and the husband is 33 years of age.
4 The parties commenced living together in January 2000 and they married on
31 March 2001. On 22 July 2006 the parties finally separated when the husband left the parties’ matrimonial home at [an address in the outer suburbs] where the wife has since continued to reside. There are two children of the marriage, [C] who is aged 6 years and [J] who is aged 4 years. [C] and [J] presently reside with the parties on a week-about arrangement pursuant to interim court orders which may be reviewed after 12 months unless there is a material change of circumstances in the meantime. The parties also have equal shared parental responsibility for the children.
5 The wife has two children from an earlier marriage, [N] now aged 18 years and
[K] now aged 15 years. These children resided with the parties during their
relationship. The wife’s first husband died in [an accident in] September 1995.6 The wife works for a few hours each month [in a shop] and is otherwise
a full-time homemaker and parent. The husband works on a full-time basis as
[a salesman] and otherwise looks after [C]and [J] when they reside in his care.
The evidence and materials relied upon
7 The wife was represented by Mr Rynne of counsel. She gave evidence to
support her application and also relied upon the following documents in relation to the
property division:
(a) the wife’s trial affidavit filed 9 January 2008; (b) her Financial Statement filed 9 January 2008; and (c) affidavit of the valuer, [Mr G], filed 9 January 2008. This was objected to by the husband and ultimately not relied upon for the purposes of my decision.
8 The husband was represented by Mr Berry of counsel and gave evidence in
support of his application. The husband also relied upon the following documents in
relation to the property division:
(a) his trial affidavit filed 9 January 2008; and (b) his Financial Statement filed 9 January 2008.
[2008] FCWA 52
Parties’ positions at trial
9 In her Minute of Orders Sought dated 16 January 2008 the wife seeks 75% of the
net proceeds to be received from the sale of the [the matrimonial home] with the
husband to retain the balance of proceeds and his superannuation assets.10 In his Minute of Proposed Orders dated 15 January 2008 the husband seeks 46.5% of the assets and the wife receive 53.5% of the assets.
Property proceedings – the law
11 Property cases are governed by s 79 of the Family Law Act 1975.
12 The determination of an application pursuant to s 79 involves a four step process which can be summarised as follows:
(a) to ascertain and value the property of the parties; (b) to determine the contributions made by the parties to the property; (c)
to consider the other factors set out in s 79(4) and s 75(2) which include the parties’ future needs, income earning capacities, responsibilities and resources; and
(d)
to finally reach a decision that is just and equitable in all the circumstances.
The assets
13 The parties were able to reach agreement as to the list of superannuation and non-superannuation assets to be divided between the parties.
14 The agreed list of assets and liabilities is as follows:
| Description | Husband | Wife |
| Assets | ||
| [the matrimonial home] | $900,000 | $900,000 |
| St George Account: 1 | 47 |
| St George Account: 4 | Nil |
| St George Account: 7 | Nil |
[2008] FCWA 52
| Westpac Account: 6 | Nil |
| 1992 [motor vehicle] | 1,250 |
| Household contents | 2,500 |
| Household contents | 8,000 |
| Wife’s personal effects | 500 |
| [Motor vehicle] | 9,000 |
| Total assets | 909,297 | 912,000 |
| Liabilities |
| Tax due 30 June 2007 | 859 |
| St George Account | 24,163 | 24,163 |
| St George Account | 47,799 | 47,799 |
| Rates | 1,492 | 1,492 |
| Total liabilities | 74,313 | 73,454 |
| Total net assets | 834,984 | 838,546 |
| Superannuation | ||
| Westscheme | 23,810 |
| Australian Eligible Rollover Fund | 3,331 | ||
| Total superannuation | 27,141 | ||
| Total net assets and superannuation |
|
15 The parties entered into an option agreement with [a company] pursuant to
which the company has an option to purchase the [the matrimonial home] for $1,800,000 which is to expire [in] May 2008. Pursuant to the original option agreement, the parties received an option fee of $40,000 which is non-refundable in the event the option holder elects not to exercise the option. The parties agreed that the purchase price of $1,800,000 in the event the option is exercised should be the agreed value of the [the matrimonial property] for the purposes of my determination. It is further agreed the amounts paid by the option holder pursuant to the original
[2008] FCWA 52
option agreement and any variation to that agreement be divided equally between the
parties and not be added back to the agreed pool of assets.
Parties’ contributions
16 The parties commenced to live together in January 2000 when the wife and her
two eldest children moved into accommodation the husband was then renting. In
March 2000 they moved to a property owned by the wife at [an address in the hills].Initial financial contributions
Husband’s position
17 The husband says that he commenced cohabitation with assets worth an
estimated $13,800. Included in this estimate is a [1971 motor vehicle] which the husband values at $5,000. This vehicle was sold soon after the parties moved to [the hills] for $1,500. The husband also includes in his initial financial contribution furniture and household effects worth an estimated $5,000. The husband says he purchased a number of new electrical appliances “for less than $4,000” in early 1999 and additionally had other furniture including “wardrobes, dressers and a couch”. The husband gave away some of his contents after the parties commenced living together. Having regard to the selling price of $1,500 the husband received for his motor vehicle it is more likely that the husband commenced the relationship with assets of less value than he asserts. In any event, I am satisfied that the husband commenced the relationship with very little in assets.
Wife’s position
18 Following the death of her first husband, the wife received approximately
$300,000 from a Fatal Accidents Act 1959 claim in about November 1997. Of this amount, the sum of $55,400 was invested for the two children by the Public Trustee. From the wife’s share of the $300,000 payment, she repaid a mortgage debt against her property [in the southern suburbs]. The wife also used $50,000 from the balance remaining towards the purchase of [the hills property]. Exhibit A to the husband’s trial affidavit is a copy of the land transfer document for the [the hills property] purchase in December 1997 which shows a purchase price for $76,500 of which $1,000 is allocated to chattels. [The hills property] became the home of the wife and her two children following its purchase.
19 When the parties therefore commenced to live together in January 2000, the wife
had substantial assets. She owned the [southern suburbs] property free of debt which was sold in June 2000 for $180,000 and owned [the hills property] in which the wife had a significant equity.
20 At paragraph 13 of the husband’s trial affidavit, he gives an estimate of $85,000 for the value of [the hills property] when the parties commenced their relationship and says there was $42,000 outstanding on the mortgage relating to this property. There is no valuation evidence to support the husband’s estimation and following objection
[2008] FCWA 52
from Mr Rynne, this estimate was not relied upon. I am not satisfied there was $42,000 owing on the [the hills] mortgage as the husband asserts. Annexure C to the wife’s trial affidavit is a statement from Town and Country Bank which corroborates the wife’s evidence that she borrowed $30,000 to complete the purchase. Whilst I am unable to make any findings as to the value of [the hills property] at the commencement of cohabitation, the wife sold this property in August 2002 for $115,000 and after meeting selling costs and discharging the bank mortgage, a balance of $85,823.82 remained. Additionally the wife owned a motor vehicle and household furniture and effects. Apart from the $30,000 liability in respect of [the hills property] and outstanding rates of approximately $700 the wife had no liabilities when cohabitation commenced.
21 I am satisfied that the wife’s initial financial contributions to the parties’ relationship were overwhelmingly greater than those made by the husband.
Contributions during cohabitation
Income contributions
22 The husband says that he worked throughout cohabitation both as an employee
and as a contractor and his wages supported the family which included [N] and [K],
the children of the wife’s first marriage.23 The husband, at paragraph 23 of his trial affidavit set out the following details of his taxable income over the period of cohabitation between the parties:
Year to June 2000 $34,810 2001 13,654
2002 15,204
2003 32,390
2004 37,437
2005 40,975
2006 55,226
24 The husband says in relation to his earnings that for some of his contracting
work he was paid cash in hand and for other work he was paid not in cash but received benefits in lieu, giving the example of doing handyman jobs in exchange for maths tuition for [N]. This evidence was not challenged by the wife.
[2008] FCWA 52
25 Whilst I accept the husband used his income for the support of the family, his
income was not sufficient to meet the family’s needs. I will deal with this in more
detail later.26 When the parties commenced to live together, the wife was a full-time
homemaker and parent receiving Centrelink benefits and rental income of $250 per week from the [southern suburbs] property and $100 per week from [the hills property] until the parties moved into [the hills property] in March 2000. From this income the wife had mortgage repayments in respect of [the hills property] to meet.
Purchase of , [the matrimonial home]
27 In April 2000 the parties purchased [the matrimonial home] for $240,000
plus establishment costs which included stamp duty of $7,310. To finance the purchase of [the matrimonial home], the parties took out loans from St George Bank totalling $255,000. The husband says, and I accept, that he paid an initial deposit of $1,000 from his funds towards the purchase and the full amount borrowed from St George was used to fund the purchase of [the matrimonial home], apart from about $5,000.
28 To enable the parties to obtain finance to purchase [the matrimonial home], the
wife agreed to the bank taking security against the [southern suburbs] property. The wife says, and I accept, that as part of the financial arrangements agreed upon with St George for the purchase she would need to sell the [southern suburbs] property. In June 2000 the wife sold the [southern suburbs] property for the gross sum of $180,000 of which $170,650.80 was paid to St George to reduce the borrowings owed to the bank.
Improvements to [the hills property]
29 After the parties moved to [the hills property] in March 2000 they made various improvements to [the hills property] which included:
• the laying of tiles and new carpet; • repainting; • replacing a patio with a new timber and steel patio; • gutting the original kitchen which was replaced with a new kitchen; • remodelling the bathroom; and • installing a new concrete drive. 30 I accept that most of this work was done by the husband which is likely to have
improved the value of [the hills property]. The wife assisted the husband with this work particularly with respect to the repainting of the property and I accept that her contributions to the work were significant. The husband was able to get materials at a discount price from a firm he worked for which also benefited the parties. The husband says that “almost all of the costs of materials and the cost of the sub-contractors was paid from my wages”. The husband also says that from
[2008] FCWA 52
April 2000 when the parties borrowed the sum of $255,000 to fund the purchase of [the matrimonial home], all mortgage repayments in respect of the loan came from the parties’ joint account into which his wages were deposited and some Centrelink benefits received by the wife. Bank records show (Exhibit 11) that on 9 April 2001 the sum of $35,000 was redrawn from the joint loan account with St George at which time the parties were living at [the hills property]. When the husband was asked about this draw down he acknowledged it was likely that the parties lived off some of the funds borrowed. There is no suggestion that either party engaged in any extravagant or reckless spending during their relationship. During her evidence, the wife expressed concerns that the husband may have used this draw down of $35,000 funds for his own purposes, however, I do not accept this to be the case.
31 Whilst the husband’s financial contributions from his earnings were significantly
greater than those of the wife, I am satisfied that the husband’s income was insufficient to fully support the family particularly when the parties were incurring costs for work at [the hills property] and [the matrimonial home]. It was necessary for the parties to draw down on the joint loan account with St George to supplement the husband’s earnings and to pay for the improvements being made to [the hills property] and [the matrimonial home]. The sum of $5,000 set aside from the loan of $255,000 was also used towards the costs of home improvements.
Sale of [the hills property]
32 The wife sold [the hills property] in August 2002 and realised net sale proceeds
of $85,823.82 which was paid into the loan account with St George to reduce the parties’ outstanding debt. With the $170,650.80 paid to St George from the sale proceeds of the [in the southern suburbs] property in June 2000, amounts totalling $256,475 were therefore realised from the sale of properties brought into the relationship by the wife. I take into account however, that the value of [the hills property] was likely to have increased as a result of the work undertaken by the parties to the property.
Acquisition of kit home for [the matrimonial home]
33 After the sale of [the hills property] the parties rented for about 6 months whilst
they arranged for a pre-built kit home to be erected at [the matrimonial home site]. The parties entered into a building contract in October 2002 to acquire the home for a price of $41,427 (Exhibit 3). I accept that the establishment of the parties’ home on the [the matrimonial] property was a difficult period for the parties who lived in very trying conditions whilst the home was being finished.
34 At paragraphs 43, 44, 45 and 46 of his trial affidavit, the husband details the work he says he completed.
35 I accept the husband worked long hours in finishing off the home at
[the matrimonial home] whilst maintaining a full-time job. I am also satisfied that the wife assisted the husband as best she could in the finishing work at [the matrimonial home] at the time when she was also caring for a child about 12 months of age.
[2008] FCWA 52
36 To finance the purchase of the kit home the parties borrowed $40,000 from
St George Bank in November 2002 and in about June 2005 the original home was extended by the addition of a bedroom, an ensuite and a family living area suitable for two adults and four children. The wife says that the parties borrowed a further sum of $30,000 from St George Bank to fund the extension. The husband says the amount borrowed was $42,000 but this included the costs of a family holiday for the wife and four children. I am satisfied the costs of the extension at the [matrimonial home] property and the cost of the family holiday was funded by further borrowings from St George.
37 I accept that the parties were both involved in fitting out the rooms added to the
original home with the husband doing most of the work but the wife also assisting in a significant way. By the time the extension was completed the wife had given birth to [J] and was looking after two young children less than two years apart in age.
Contributions as a homemaker and parent
38 The husband worked full-time and he agrees the wife was the principal
homemaker and parent. I regard the wife’s parenting contributions in relation to [C]and [J] as significant. I accept the husband would assist the wife as best he could with work about the house and with the children’s care but the prime responsibility fell to the wife. It was not challenged that the husband would take [K] and [N] to school every morning when they attended [local] Primary and would also help out with the care of the wife’s elder children in other ways. I have taken this contribution into account and also the husband's financial contribution to the support and maintenance of [K] and [N] although this must be viewed in the context of the parties’ draw downs on the St George loan account to also meet their living costs and expenses.
Conclusions – contribution
39 The parties lived together for about six and a half years and had two children
together. During this period both parties worked hard and made significant contributions. The husband’s financial contributions from his earnings were greater than those of the wife whilst her contributions as a homemaker and parent were greater than his. The husband also made significant contributions by the work he carried out at [the hills property] and in finishing off the kit home acquired by the parties at [the matrimonial property] and the extensions to the home. The wife’s contributions to the work on these properties was also significant. It is also not challenged that the wife assisted the husband with his contract work as a tiler in the early period of the relationship.
40 In my opinion the parties made equal contributions during co-habitation as opposed to the contributions from capital which the wife brought to the relationship.
41 The husband claims he made a greater contribution than the wife following the
separation which calls for an adjustment of 1% in his favour. To support his claims
the husband says:
[2008] FCWA 52
• since separation the wife has remained living at [the matrimonial home] with [K] and [N] whilst the parties have shared the care of [C]and [J]; • most of the household contents were left with the wife and it was necessary for him to purchase various household goods on finance which he has repaid. He agreed to extend the loan from St George by $12,005 in February 2007 to enable the wife to purchase a replacement vehicle. This the husband says, added $100 per month to the mortgage repayments which he has been meeting and are now $300 per week; • he has met household repairs at a cost of $600 and on several occasions has done work himself at [the matrimonial home]; • he contributed $2,300 towards [J]’s dental expenses; and • in respect of the superannuation assets, he has made contributions of $8,970.84 since separation.
42 The wife does not agree that the husband’s contributions post-separation are
such as to warrant any adjustment in his favour. Since the parties separated, the wife says she has endeavoured to support herself and the children from Centrelink benefits she was eligible to receive and I accept the wife has struggled to make ends meet. When questioned about the mortgage repayments, the husband acknowledged he did not meet repayments for about four months after he left [the matrimonial home] which he says he could not afford to do. Thereafter the wife accepts the husband has been meeting mortgage repayments on [the matrimonial home]. Notwithstanding the husband’s financial contributions to the family and his contributions to superannuation since the parties’ separation, I am not satisfied that his contributions warrant the further adjustment he seeks. The husband’s income greatly exceeded the income the wife was receiving and in my opinion, the wife had no reasonable prospects of finding work herself following the separation to supplement her income. Apart from being in a disadvantaged position in terms of income, the wife was continuing to make contributions to the care of [C] and [J]. The mortgage repayments met by the husband have been taken into account in the assessment of his child support payments. The value of the motor vehicle which the wife purchased post-separation is included in the list of assets for division.
43 In my opinion the parties’ contributions in the post-separation period should also be regarded as equal.
Significance of wife’s initial contribution
44 When considering the relevance of initial contributions, the Full Court in
Williams and Williams [2007] FamCA 313 referred with approval to the decision of the Full Court in Pierce v Pierce (1999) FLC 92-844 and said this at paragraphs 27 and 28.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
[2008] FCWA 52
… respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
28. In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
45 In my opinion the wife’s initial contribution to the property of the parties
justifies being given substantial weight. From the sale of [the hills property] and the [southern suburbs] property the wife realised net amounts totalling $256,475 which approximately equalled the borrowings of $255,000 the parties made from St George to meet the full purchase price of [the matrimonial home].
46 To enable [the matrimonial property] to be purchased the wife also agreed to
mortgage the [southern suburbs] property and to place this property on the market for sale. In the absence of any evidence to the contrary, I am satisfied that [the matrimonial home] could not have been acquired without the wife’s initial capital and her commitment to sell the [southern suburbs] property which was free of debt when the parties commenced living together. I also take into account that the husband joined with the wife in borrowing the funds needed to complete the purchase and in all likelihood St George would not have granted the loan without the husband’s support. Furthermore, the husband, with the wife’s assistance, made improvements to [the hills property] before it was sold and to [the matrimonial property] after it was purchased. Whilst I have no evidence to enable me to determine what, if any, increase in the value of [the matrimonial property] can be attributed to the construction of the kit home on the property, I consider that the wife’s initial contribution must be given the substantial weight I have indicated. It is particularly significant in the context of the period of co-habitation between the parties.
47 After taking into account all of the respective contributions of the husband and
wife case and putting appropriate weight on the capital introduced by the wife, I assess the contributions to the property of the parties as being 67.5% to the wife and 32.5% to the husband.
[2008] FCWA 52
Section 75(2) and other factors
(a) the age and state of health of each of the parties
48 The husband is 33 years of age and the wife is 42 years of age. I find that
neither party has any health problems which might prevent or adversely impact on
either of them working in the future.
(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
49 The husband is employed as a salesman and earns approximately $75,000 from
his work for [a building company]. Whilst the husband has done contracting work to supplement his earnings from [the company], I accept he may not be in a position to continue the contracting work. I am satisfied that the husband can reasonably expect to continue to earn about $75,000 per annum gross from his full-time work and is able to adequately support himself in the future. The husband also has the skills and experience to work in the building industry particularly as a tiler, or perhaps in home maintenance as an alternative to work as a salesman if he desires.
50 The wife was last employed on a regular basis about 18 years ago doing
landscaping/gardening work. The wife says that she enjoys working and believes she could take on work in a sandwich bar or some other unskilled position which would not involve heavy physical work. The wife says her intention is to seek work perhaps when both girls are at school full-time. I regard it as reasonable that the wife be available for the children after school during those periods when they live with her at least for the next few years. This will give the wife time to perhaps consider undertaking a re-training programme which will give her other work options. Unlike the husband the wife does not appear to have support from extended family members to assist with the care of the children when they live with her.
51 I am satisfied that the wife has the capacity to take on unskilled work in the
future, at least on a part-time basis once both children are at school full-time. It is difficult to assess what the wife can reasonably expect to earn in the future. She is presently paid $16 per hour for working two and a half hours each month at [a shop]. I am satisfied however, that the husband has a significantly greater capacity for gainful employment than the wife and can earn a superior income. Whilst there remains uncertainty over the wife’s employment prospects, she will nonetheless receive from the division of assets sufficient capital to enable her to purchase a comfortable home for herself and the children and will be likely to have funds remaining for investment.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
52 The wife’s two children from her first marriage, [N] and [K], are now aged
18 years and 15 years. [N] wishes to seek employment. Both children continue to reside with the wife. [K] and [N] have funds invested for them with the Public Trustee which they received following the death of their father. [N] has $40,000 invested and [K] has $52,000 invested. [N], having turned 18 years, is entitled to seek access to his
[2008] FCWA 52
funds which may lessen the financial burden on the wife in terms of his support until
he finds employment.53 [C]and [J] live with the wife and the husband on a shared care arrangement.
Although the parenting orders made for [C]and [J] are expressed “until further order”, both parties should continue to play a significant role in the care, welfare and development of the children in the future.
(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
54 From her income, the wife is supporting herself, [N] and [K] and is also
supporting [C] and [J]when they reside with her. The husband is supporting himself and has an obligation to pay child support to the wife for [C]and [J] which is currently assessed at $70.00 per week taking into account the mortgage repayments he is meeting on [the matrimonial home]. I am satisfied the parties have the capacity to adequately support themselves in the future from their income and resources. Neither party has a duty to maintain any person other than the dependent children I have mentioned.
(e) the responsibilities of either party to support any other person
55 Neither party is responsible to support any person other than the abovementioned children.
(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
56 The wife is presently eligible to receive Centrelink benefits comprising
a Newstart Allowance of $237 per week and a family assistance benefit of $185 per week. The husband discloses that he is receiving a family tax benefit of $120 per week.
57 The husband has superannuation. The wife has no superannuation entitlements.
I do not propose to take that into account as the superannuation entitlements of the husband have been included in the pool of assets.
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(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
58 The parties have maintained a reasonable standard of living during their
relationship and each should have sufficient income and capital available to them to
ensure they can each maintain a reasonable standard of living in the future.
(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; (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; (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 (l) the need to protect a party who wishes to continue that party’s role as a parent
59 The wife does not seek spousal maintenance from the husband. The parties
cohabitated for about six and a half years. The home-making and parenting roles undertaken by the wife during cohabitation are likely to have impacted detrimentally on her capacity to earn. Because of her ongoing parenting role the wife will need time before she can reasonably return to the work force on any significant basis.
(m) if either party is cohabiting with another person–the financial circumstances relating to the cohabitation
60 Neither party has repartnered.
(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;
61 The agreed assets of the parties have been set out previously in these reasons
together with my assessment of the parties’ contributions to those assets. There will be a differential in the distribution of the assets between the parties which I take into account in considering the s 75(2) and other factors.
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(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
62 As previously stated the husband is assessed to pay child support at the rate of
$70 per week which takes account of the mortgage repayments currently being met by the husband for [the matrimonial home]. When the property is sold pursuant to these orders and the mortgage debt repaid, the amount of child support payable by the husband is likely to increase.
(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.
63 These paragraphs have no relevance.
Conclusion – s 75(2) and other factors
64 Provided [the matrimonial home] sells for $1,800,000, the effect of my
assessment as to contribution on the entitlements of the parties is that the wife will have assets of a net value of $1,147,953 and the husband will have assets of a net value of $552,718.
65 Notwithstanding this disparity, I consider a further adjustment of 2½% in the
wife’s favour is called for after considering the s 75(2) and other factors. Of most significance in reaching this decision is the difference in the income and earning capacities of the parties which will continue into the future.
Just and equitable
66 Subject to any adjustment to the value of [the matrimonial home] following its
sale, the effect of my decision on contribution and the other factors is that the wife shall be entitled to 70% of the assets both superannuation and non-superannuation or $1,190,470. The husband shall receive 30% of the assets or $510,201.
67 In all the circumstances, this represents a just and equitable outcome.
Effect of orders
68 The effect of the orders proposed is as follows:
[2008] FCWA 52
| Description | Husband | Wife |
| Assets | ||
| Anticipated division of sale proceeds of [the matrimonial | $548,076 | $1,251,924 |
| home] property to achieve a 70/30% division of the asset pool in the wife’s favour based on a selling price of $1,800,000 without allowance for any selling costs |
| St George Account: 1 | 47 |
| St George Account: 4 | Nil |
| St George Account: 7 | Nil |
| Westpac Account: 6 | Nil |
| 1992 [Motor vehicle] | 1,250 |
| Household contents | 2,500 |
| Household contents | 8,000 |
| Wife’s personal effects | 500 |
| [Motor vehicle] | 9,000 |
| Total assets | 557,373 | 1,263,924 |
| Liabilities |
| Tax due 30 June 2007 | 859 |
| St George Account | 24,163 | 24,163 |
| St George Account | 47,799 | 47,799 |
| Rates | 1,492 | 1,492 |
| Total liabilities | 74,313 | 73,454 |
| Total net assets | 483,060 | 1,190,470 |
[2008] FCWA 52
Superannuation
| Westscheme | 23,810 | ||
| Australian Eligible Rollover Fund | 3,331 | ||
| Total superannuation | 27,141 | ||
| Total net assets and superannuation |
|
69 The [matrimonial home] will need to be sold before final entitlements can be
determined. Because of this, I intend to provide in the orders for the amount required for the wife to receive 70% of the assets, excluding the proceeds from the sale of the [the matrimonial home] and the outstanding mortgage debt and rates relating to [the matrimonial home]. The total value of these assets less the tax debt of $859 is $47,579, of which the wife already has $12,000. The necessary adjusting amount for the wife to receive 70% of these assets is $21,305.
70 In the husband’s Minute of Proposed Orders he seeks in paragraphs 2 an order
that pending settlement the wife keep [the matrimonial home] in good and substantial condition and pay all outgoings and as when they fall due. I am not prepared to make this order. The husband does not suggest the wife has neglected [the matrimonial] property since the parties’ separation. I have no evidence as to the condition of [the matrimonial home] at the time the parties separated to enable a proper determination as to whether the wife has allowed the property to deteriorate. The husband currently pays the mortgage instalments in relation to the property and his child support is reduced as a result of those payments. The wife is endeavouring to support herself and dependent children largely from pension benefits and I am not persuaded she can reasonably afford to meet payment of the outgoings on [the matrimonial home]. I do not consider such an order to be proper. In any event any outstanding rates and taxes would in the normal course be adjusted on settlement which should resolve the issue.
71 The husband’s Minute of Orders also seeks that I make a s 77A spousal
maintenance allocation in the sum of $50,000 in respect of the wife’s entitlements. Neither counsel made submissions as to the basis for making such an allocation. Whilst in my view, an adjustment in the wife’s favour of 2.5% is called for as a result of the s 75(2) and other factors, no portion of the settlement granted the wife is being allowed for spousal maintenance and the allocation sought by the husband is not appropriate.
72 The orders I propose to make, subject to any submissions from counsel are as
follows.
1. The parties sell the property at [the address of the matrimonial home], being Lot xxx on Plan xxxx the land in Certificate of Title
[2008] FCWA 52
Volume xx Folio xxxx (“the property”) and disburse the net proceeds of sale as follows:
1.1 in discharge of mortgage xxxxxx to St George Bank (“the
Mortgage”);1.2 in payment of the costs, commission and expenses of sale; 1.3 $21,305 to the wife; 1.4 70% to the wife; and 1.5 30% to the husband. 2. The husband’s interest in any other property held in the wife’s name or possession vest in the wife absolutely.
3. The wife’s interest in any other property held in the husband’s name or possession including the husband’s superannuation entitlements vest in the husband absolutely.
4. The parties shall do all acts and things and sign all documents necessary to give effect to the provisions of these orders.
5. There be liberty to apply in relation to the sale of [the matrimonial home].
6. All applications before the Court that otherwise deal with financial issues be dismissed.
I certify that the preceding [72] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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