Sawyer and Sawyer

[2016] FCCA 1007

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAWYER & SAWYER [2016] FCCA 1007

Catchwords:
FAMILY LAW – Alteration of property interests – assessment of contribution and future needs factors.

Legislation:

Family Law Act 1975, ss.75,79

Cases cited:
Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395
Stanford & Stanford [2012] HCA 52

Applicant: MR SAWYER

Respondent: MS SAWYER

File Number: SYC 2547 of 2014

Judgment of: Judge Altobelli

Hearing date: 24 March 2016

Date of Last Submission: 24 March 2016

Delivered at: Wollongong

Delivered on: 23 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Schroder

Solicitors for the Applicant: Johnson Horsley Lawyers

Counsel for the Respondent: Ms Eldershaw

Solicitors for the Respondent: DGB Lawyers

ORDERS

1. Within 14 days of the date of these Orders, the parties forward an agreed Minute of Order reflecting the Court’s intention as set out in these Reasons, but failing agreement, each party forward a Minute of Order they propose.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 2547 of 2014

MR SAWYER

Applicant

And

MS SAWYER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an unfortunate case (heard 24 March 2016) where two intelligent and articulate people have allowed emotion to get in the way of clear thinking about their property settlement.

2. After hearing evidence from both parties on 24 March 2016, assisted by two experienced family law barristers, the dispute between the parties came down to a mere 5 per cent of their property pool. The Husband proposed a 50/50 split, albeit with the superannuation pool being treated distinctly from the non-superannuation pool. The Wife proposed a 55/45 split across both superannuation and non-superannuation assets, with the difference explained by reference to a 5 per cent adjustment to her under s.75(2) of the Family Law Act 1975 (‘the Act’).

3. Both Counsel conceded in the final moments of closing submissions, in response to a comment I made from the Bench, that the difference in the parties’ closing positions was probably less than the combined total fees expended in this litigation. Moreover, both Counsel quite frankly, and appropriately, conceded that if the Court merely chose a figure somewhere between 50 per cent and 55 per cent, it would probably not fall into appellable error.

4. Courts are established by Parliament to hear disputes between parties. At a time when Court resources are so thinly stretched, indeed when the Registry of this Court is under such enormous pressure, one wonders why it was necessary for this litigation to be played out in a public forum. A costs application may well follow the outcome of this case.

Background

1. By way of the background, the Wife is 53 years old and is a (occupation omitted) employed by (employer omitted). The Husband is 49 years old and is a (occupation omitted) employed by (employer omitted) and (employer omitted). They married in 1991. The Wife commenced employment with (employer omitted) the next year. In 1993 they purchased land at Property M on which their home was subsequently built. In fact the building commenced in 1993. The Husband commenced his present employment in 1994. The parties’ first child, X, was born in 1994 and is currently 21. The youngest child Y, who is 13 years old was born in 2002. He is currently in year 8 at high school. The parties separated in December 2012. Unfortunately, the next year, the Wife was diagnosed with thyroid cancer and underwent surgery. The surgery was followed by radiation treatment. The parties were divorced in October 2014.

2. The Husband currently pays child support for Y at the rate of $93 per week.

3. Counsel for both parties provided very helpful Case Outline documents. Both of those documents are reproduced in the first and second scheduled to these reasons, respectively. The Orders sought by each party are set out in the Case Outline documents.

4. In the Wife’s Case Outline document there is a balance sheet, which became the agreed balance sheet for the purposes of the hearing. That balance sheet is reproduced below:

Item	Non-superannuation assets	Ownership	Value
1	Property M	J	860,000
2	Renault car	W	2,150
3	Nissan X-Trail car	H	6,500
4	Cash at bank	H	800
5	Cash at bank	W	2,000
Value of non-super assets		871,450

Superannuation	Value
6	(omitted) Superannuation (Accumulation Fund)	H	9,931
7	(omitted) Superannuation Scheme (DBF in growth phase)	H	360,805
8	(employer omitted) Superannuation Plan (Partial DBF in growth phase and partial Accumulation Fund)	W	175,055
Value of superannuation	545,791

Joint liabilities
9	Mortgage in favour of (omitted) Bank over FMH	J	(97,898)

Post separation liabilities
10	Personal loan from (omitted) Bank	W	(10,539)
11	Mastercard	W	(2,237)
12	Legal fees	W	(25,262)
13	Personal loan from (omitted) Bank	H	(25,000)
14	Visa card	H	(76)

Balance sheet summary

Nett non-super assets ($871,450 - $97,898 )	$773,552
Superannuation	$545,791
Total nett assets	$1,319,343

1. Counsel both agreed in closing submissions that the last 5 items in the balance sheet should not be taken into account for adjustment purposes, but not ignored for s.75(2) purposes. This is entirely appropriate.

2. The Case Outline documents also sets out the evidence relied upon by each party.

3. Notwithstanding what is contained in the Case Outline Documents, it is important to record that the parties’ positions changed, quite appropriately, as the evidence evolved. Hence, as previously stated, it was clear by the end of the case that both parties agreed that contribution to the date of the hearing should be assessed equally. The focal point of the dispute and thus the focal point of these Reasons for Judgement, is whether there should be an assessment under s.75(2) and if so, in what amount. Moreover, whereas the Wife was proposing that the final percentage be adjusted across the entirety of the asset pool, the Husband contended that the adjustment should be 50 per cent of superannuation assets and then 50 per cent of non-superannuation assets.

The applicable law

1. This is an application under s.79 of the Act which relevantly provides:

   (1)  In property settlement proceedings, the court may make such order as it considers appropriate:

   (a)  in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or

   (b)  in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;

   including:

   (c)  an order for a settlement of property in substitution for any interest in the property; and

   (d)  an order requiring:

   (i)  either or both of the parties to the marriage; or

   (ii)  the relevant bankruptcy trustee (if any);

   to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

   (2)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.

   (4)  In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a)  the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)  the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)  the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e)  the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)  any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g)  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.

2. Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:

   (2)  The matters to be so taken into account are:

   (a)  the age and state of health of each of the parties; and

   (b)  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)  whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)  commitments of each of the parties that are necessary to enable the party to support:

   (i)  himself or herself; and

   (ii)  a child or another person that the party has a duty to maintain; and

   (e)  the responsibilities of either party to support any other person; and

   (f)  subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)  any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)  where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)  the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

   (j)  the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)  the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)  the need to protect a party who wishes to continue that party's role as a parent; and

   (m)  if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

   (n)  the terms of any order made or proposed to be made under section 79 in relation to:

   (i)  the property of the parties; or

   (ii)  vested bankruptcy property in relation to a bankrupt party; and

   (naa)  the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)  a party to the marriage; or

   (ii)  a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)   the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)  the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

3. In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:

   a)Identify and value the property, liabilities and financial resources of the parties; and

   b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and

   c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and

   d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.

4. The decisions in Stanford and Bevan also emphasise the importance of making findings that any Order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an Order.

5. Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.  This is not inconsistent with step 1 in Hickey.

The balance sheet

1. The agreed balance sheet was that which the Mother proposed and is incorporated into these Reasons at paragraph 8.

The evidence given by the parties

1. Both the Husband and the Wife gave evidence, and were cross-examined. Apart from the partisan nature of their evidence, that is to say, they provided their own subjective perspective of the events, there is no reason at all to question their credibility. Both parties are obviously highly intelligent and articulate people. They both care deeply for their son. The breakdown of the relationship was clearly unpleasant. Some of that unpleasantness lingers. The Wife, and her son, who currently occupy the former matrimonial home would like to remain living there. By the end of the hearing it became apparent that, provided the Husband could be paid out his entitlement in a timely fashion, he had no objection to the Wife retaining the home. However, if she could not afford to pay him out, the Husband asked that he have the first option to buy her out – she had no objection in principle to this. It was agreed, however, that in default of both of the above options, the property would be sold by auction and there be no obstacle to either of them bidding at the auction.

Global distribution or asset-by-asset approach?

1. It is clear from the authorities that the Court could adopt either approach. On the facts of this case, the difference is unlikely to be significant. Nonetheless, obviously this is a case where the Wife seeks to maximise her opportunities to retain the former matrimonial home.

2. The Husband has substantially more superannuation than the Wife.

3. When one looks at the Orders proposed by each of them, and their case outlines, they both seek a splitting order out of the Husband’s superannuation fund. It looks, implicitly, as if neither was seeking to trade super for cash. They both wanted an outcome in relation to super so that each retained an equal amount of super but it is equally clear from the manner in which the Wife’s case was run, that she was not suggesting that the outcome to her overall should be 50/50. In other words, if the Court gave her more than 50 per cent across both pools, she wanted that made up of half the combined super, with the balance as a cash entitlement, no doubt to be applied in buying out the Husband’s interest in the home. It is hard to see how the Husband would be surprised by such an approach by her.

4. When one has regard to the evidence and, particularly, the chronology of the acquisition of the assets including the superannuation, there is no reason why the Court would not adopt a global approach to assessment of contribution and s.75(2) factors.

Section 75(2) adjustment?

1. The starting point in any discussion about whether to make a s.75(2) adjustment is, in effect, the threshold issue of whether one is called for on the facts of the case. That in itself, however, requires a consideration of the various matters referred to in s.75(2)

2. Before doing so however, it is important to review the evidence of both the Husband and the Wife, particularly in relation to medical issues, which figured prominently in submissions.

3. In the Husband’s case, the medical evidence was by way of an Affidavit provided by Dr M filed 11 March 2016. Dr M was not required for cross-examination. His Report refers to the back problems the Father experiences. His current symptoms include constant low level pain and stiffness, and increasing pain with varying levels of activities. However, his only work restriction in his current position would be to minimise use of stairs and avoid prolonged sitting or standing. He is permanently unfit for heavy manual labour. The osteoarthritis that he suffers in his hip is a progressive condition and he is likely to develop more intrusive symptoms of pain and stiffness over time. He is likely to need a total hip replacement in the next 10 years. The rate of progression of the arthritis is entirely unpredictable.

4. There is no question, however, that the Husband continues to work full-time and there is no evidence to suggest that that will change in the future.

5. The evidence in the Wife’s case about her medical condition comprises a number of reports annexed to her Affidavit which merely tend to confirm her diagnosis of thyroid cancer and the surgery undertaken, as well is the subsequent radiation treatment and nuclear scans. Her treatment is ongoing. She has cancer of the thyroid. She needs ongoing active surveillance due to the real possibility of residual disease. It is possible that this condition will cause her to take time off work.

6. There is no question, however, that the Wife continues to work full-time and that there is no suggestion in any definitive sense that this will change in the future. An uncertainty about health is not, per se, productive of an adjustment. The presence of cancer cells does not, per se, result in an adjustment. The issue is the consequence of these matters – in respect of which the evidence was quite insufficient.

1. A contentious issue in final submissions by Counsel was whether the evidence led in the Mothers case supports a submission, or even the drawing of an inference, that whatever medical condition the Wife unfortunately suffers, it has an impact on her earning capacity. The court accepts Counsel for the Husband’s submission in this regard – there is no evidence in the Wife’s case that suggests that her health conditions, as unfortunate as they are, will impact on her earning capacity.

2. Of course, the reverse proposition is equally true. There is no evidence in the Husband’s case to suggest that whatever health problems he experiences have either effected, or are likely to affect, his earning capacity.

3. The health of each party does not ipso facto result in a s.75(2) adjustment.

4. There is no evidence to find that the health issues both parties suffer have an adverse impact on their capacity of gainful employment.

5. Indeed, on the evidence, the only real differentiating factors between the parties is that the Wife has greater responsibility for the care of their son (but even this is not significant given the shared care arrangement and the child support paid) and the slightly greater income of the Husband over the Wife, but even this is not significant.

6. Doing the best the Court can and recognizing that the Court’s discretion is a wide one, the Court assesses the s.75(2) considerations to favour the Wife by 2 per cent, producing a 4 per cent differential in outcome.

Just and equitable

1. This is an outcome the Court believes to be just and equitable in the circumstances. This means the final Order will reflect a 52/48 split in favour of the Wife. The settlement may be summarised as follows:

Non-superannuation assets

$871,450

Liabilities

$97,898

TOTAL NETT

NON-SUPERANNUATION ASSETS

$773,552

Superannuation

$545,791

TOTAL NETT ASSETS

$1,319,343

Wife’s entitlement (52 per cent)	Husband’s entitlement (48 per cent)
$686,058.36	$633,284.64
Superannuation (split 50/50 as agreed)	$272,895.50	$272,895.50
Non-superannuation	$413,162.86	$360,389.14

1. The Wife would retain the following assets:

Item	Description	Value
1	Property M	860,000
2	Renault car	2,150
5	Cash at bank	2,000
9	Mortgage in favour of (omitted) Bank over FMH	(97,898)
SUB-TOTAL (less notional non-superannuation entitlement)		$766,752.00 ($413,162.86)
SURPLUS		$353,589.14

1. The Husband would retain the following assets:

Item	Description	Value
3	Nissan X-Trail car	6,500
4	Cash at bank	800
SUB-TOTAL (plus surplus payment from Wife)		$7,300 $353,589.14
TOTAL		$360,889.14

1. In effect, if the Wife pays the Husband the amount of $353,589.14 and refinances the mortgage, she may retain the home. This is significantly more than she sought in her Orders but it was agreed between the parties that she should at least have the opportunity to raise those funds. She will have two months in which to do so. If she cannot pay the Husband in that period, the Husband will have two months to pay the Wife out. Obviously the amount will need to be calculated having regard to these Reasons.

2. At any time, either party may indicate to the other that they cannot buy the other out, thus accelerating the move to the final stage which is a sale of the home by auction. After the net sale proceeds have been established, once again these Reasons for Judgment will enable the parties and their lawyers to work out how, precisely, the net sale proceeds should be distributed.

3. Neither set of Orders proposed reflect the intention of the parties by the close of the evidence, or that which the Court intends as reflected in these Reasons. The Order will be that within 14 days a Minute of Order is submitted by forwarding the same to Chambers reflecting the Court’s intention as set out in these reasons, preferably an agreed minute, but failing this, the Minute each party proposes which reflects these Reasons for Judgment.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:     23 May 2016

Schedule 1

Case Outline Document of Applicant Husband

A.    Nature of Proceedings

These property proceedings relate to competing applications between the Applicant  husband  and the Respondent wife .
The husband  seeks orders to the effect that there be a two pool approach to property:

·    The net non-superannuation asset pool as defined in the Balance Sheet attached be divided as to 55% to the  Husband  and  45% to the Wife .

·    The husband has formulated the Orders he seeks in relation to the former matrimonial home  so that, if he can obtain a  capacity to borrow sufficient funds, he will purchase the wife’s interest. If he cannot obtain that capacity then the Orders he seeks facilitate a sale of the former matrimonial home and a division of the net  proceeds of sale 55% to the husband /45% to the wife.

·    The husband asserts that the wife does not have the capacity to purchase the husband’s interest in the former matrimonial home and has tailored the percentage distribution of assets she seeks in an unrealistic manner to facilitate a retention of the former matrimonial home.

·    The superannuation assets of the parties be divided equally. This seems to be an agreed approach

B.     Documents Relied On By The Husband

1. Initiating Application                 filed 24 January 2015

2. Affidavit  of Mr Sawyer           affirmed 9 March 2016

3. Affidavit of Dr M          sworn  9 March 2016

4. Financial Statement of Mr Sawyer    affirmed 9 March 2016

C.    Orders Sought at Hearing by The Husband

1. That within 6 weeks from the date of these Orders, the Husband shall pay to the Wife the sum of $343,035.00 by way of alteration of property interests.

2. Simultaneously with the payment referred to in Order 1, the Wife shall transfer to the Husband all of her right, title and interest in the property situate at and known as Property M in the state of New South Wales being all that land comprised in Folio Identifier (omitted) (“the home”).

3. That following the transfer referred to in Order 2, the Husband shall indemnify and keep indemnified the Wife in relation to all sums payable in respect of the home, including (without limitation) all liability in respect of the mortgage, water and Council rates, insurances and other sums payable by the Husband in respect of that property.

4. That within 14 days from the date of these Orders, in order to facilitate the discharge of the current mortgage secured against the home, the parties shall do all things to apply for a discharge authority from (omitted) Bank.

5. That in the event that the Husband does not comply with Order 1 or provides notice in writing to the Wife within 14 days from the date of these Orders that the Husband does not seek to retain the home, the parties shall do all things to cause the home to be sold by private treaty and that gross sale proceeds shall be disbursed as follows:

   a.   In payment of agent’s commission, legal costs associated with the sale and adjustments pursuant to the Contract for Sale;

   b.   Discharge of the mortgage to (omitted) Bank;

   c.   In payment to the Husband of a sum equal to 55%; and

   d.   In payment of the balance to the Wife.

6. In the event that the parties cannot agree on a listing price for the sale of the home, they shall accept the written advice and recommendations made by the listing agent, as well as any recommendation made by the agent to reduce the sale price in the event that the property has not been sold within 6 weeks from the date the home was initially marketed for sale.

7. That if the parties cannot agree on the choice of an agent to market the home, the Wife shall nominate three real estate agents located within the (omitted) Local Government Area, and the Husband shall nominate one of those agents to market the property and the parties shall do all things to facilitate the sale of the home, including (without limitation):

   a.   Signing an Agency Agreement which provides an exclusive agency agreement to the agent for a period of at least 3 months;

   b.   Comply with any recommendation made by the agent as to what maintenance or repairs are necessary to improve the marketability of the home; if this Order applies, then the Husband shall pay for those repairs or maintenance at first instance and the Wife shall reimburse the Husband of those sums out of the share due to her pursuant to Order 5.d above.

1. That the Court allocate as required by section 90 MT (4) of the Family Law Act 1975 a base amount of $82,075.50 to the Wife out of the Husband’s interest in the (omitted) Superannuation Scheme (“the fund”).

2. That in accordance with paragraph 90 MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable, the Trustee of the fund:

   a)pay to the Wife or the Wife’s legal personal representatives the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   b)make a corresponding reduction in the entitlement the Husband would have had in the fund but for this order.

3. That the Trustee of the fund (“The Trustee”) do all such acts and things and sign all documents as may be necessary to:

   a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the amount to be paid to the Wife pursuant to clause 9 of this order;

   b)pay the amount whenever the Trustee makes a splittable payment out of the Husband’s interest in the fund.

4. That this Order have effect from the operative time and the operative time is 4 business days after the service of a sealed copy of these Orders upon the Trustee.

5. That the Trustee do all such acts and things and sign all documents as may be necessary so that in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation)Regulations 2001, the Trustee can calculate the amount due and make payment to the Wife in accordance with 9 and 10 of these Orders.

6. That the Wife do all things necessary, including but not limited to, exercising her request pursuant to r.7A o6(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the amount due to her out of the Husband’s interest in the fund to a fund of the Wife’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

7. That pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the Husband’s superannuation interests made after the Trustee has rolled over or transferred the amount due to the Wife to a fund of the Wife’s choosing are not splittable payments.

8. Having been accorded procedural fairness, these Orders require the Trustee to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

9. That these Orders bind the Trustee of the (omitted) Superannuation Scheme.

10. That subject to the above, each party shall retain, free from any claim, all other property, including motor vehicles, furniture, furnishings, savings and personal property currently in that party’s possession or control as at the date of these Orders and each party shall indemnify the other party in relation to any liability of that party as at the date of these Orders.

11. That the Wife pay the Husband’s costs of and incidental to this Application.

D.    Short Chronology

Date             Event

(omitted) 1962            wife born [53]
(omitted) 1966            husband born [49]

1. parties commence relationship

   ·Husband is an employed (occupation omitted)

   ·Wife is an employed (occupation omitted)

Early 1991         wife  granted fiancé visa and they move to Australia
(omitted) 1991            date of marriage

1. parties purchase land at Property M in joint tenancy with a  deposit and with a mortgage

(omitted) 1994  construction Orders home on Property M commences

(omitted) 1994  parties move into Property M

(omitted) 1994            child X born [21]

1. husband cares for X whilst the wife relocates to Melbourne for twelve months for work

2. approximate date wife commences work for (employer omitted) as a (occupation omitted)

(omitted) 2002            child Y born [13]
27 Dec 2012           date of separation
8 May 2014            Orders By Consent in relation to Y

·Equal Shared Parental Responsibility

·Substantial and significant time to the father 5 nights per fortnight and half holidays plus special days

27 Oct 2014            date of divorce
12 May 2015          Orders

·FDR

·Disclosure

·Balance sheet

·Adjourn for mention only

3 Aug. 2015           Orders

·Trial directions

E.     Summary of Argument

It is argued the approach to the determination of an application under s 79 of the Family Law Act 1975  is set out in Stanford v Stanford (2012) 247CLR 108 and that decision was the subject of detailed consideration by the Full Court in Bevan & Bevan [2013] FamCAFC 116.

It is argued

• The Court should firstly identify the present assets, financial resources and

liabilities of the parties.

• The Court should then consider whether, having regard to the circumstances

before it, whether it would be unjust and unfair not to make orders for

alteration of the property interests of the parties having regard to the provisions

of section 79(2) of the Act. The Court can then proceed to consider the contributions by each of the parties as contemplated by section 79(4)(a) – (c) of the Act.

• Having determined the contribution-based entitlements of the parties the Court

can then consider the various factors set out in section 75(2) of the Act and
whether any further adjustment to the parties’ contribution-based entitlements
is appropriate.

• The Court is required to consider the justice and equity of the proposed

orders and whether, in all the circumstances, the orders to be made are

appropriate.

It is argued that the Court would alter the interests in property in this matter as

• Consequent upon the breakdown of the relationship there will not be the common use of property by the husband and the wife that previously existed

• The express and implicit assumptions that underpinned the pre-separation property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship

• There would be an unjust enrichment of the wife  in the event that there was no alteration of property interests

• It would be unconscionable to leave the legal and equitable title intact by reason of the way  that the parties had in practice treated their property and finances during the course of the relationship.

Contributions

1. Initial Contributions

The husband assets that there were no significant initial contributions

2. Contributions During The Relationship to the date of separation  –

The Husband made contributions of:

·    Financial though employment.

·    Direct contributions through construction of home, from 1994, at Property M including

o   Owner builder licence

o   Designing the home

o   Arranging tradesmen

o   Arranging Development Application and Building Application

o   Assisting in construction work approximately 20 hours per week

o   Assistance provided by the husband’s father and brother

·    Direct contributions through renovations, maintenance and improvements  to Property M between 1995 to 2012

o   Gardens and landscaping [the wife maintained the vegetable patch]

o   Driveway

o   Painting

o   Kitchen and pantry

o   Redesigning sewer

o   Plumbing maintenance

o   Electrical maintenance

o   Feature climbing wall

o   ironbark floor boards

o   carpentry work including building furniture

o   drum rehearsal room

o   insulation batts

o   steps

·    Sharing in duties of homemaker and parent

o   It is argued that each party supported the other in relation to career advancement and employment opportunity by being responsible caring for the children whilst the other party was working.

·    Sharing in domestic chores and domestic support each for the other

3. Post Separation Contributions to the date of hearing  – 

Husband’s Contributions:

·maintenance to Property M during the wife’s occupation including clearing sewer system and repairs. It is argued that this was necessary as the wife has failed to adequately and properly maintain the jointly owned property since the date of separation, despite having use and occupation of that property.

·domestic and financial  support for the wife in relation to medical treatment for thyroid growth in 2013.

·direct financial support by the payment since July 2014 of recurrent  council rates and home insurance draw by the wife  from the parties joint account, whilst the wife has had the use and occupation of the home. This is in circumstances where the husband is paying market rental of $310 per week  for his accommodation

·parenting contributions of shared care and Equal Shared Parental Responsibility together with meeting assessed Child Support Agency payments.

4. Conclusion as to contributions- Subject to the composition of the assets and value to be determined it is argued that a contribution finding of 55% to the Husband  and 45 % to the wife  is appropriate.

Section 75(2) Factors

1. the age and state of health of each of the parties;

   The Husband:

   ·The husband is 49 years of age.

   ·He has suffered

   otwo operations to his lumbar spine one in May 2007 and one [re-do operation] in June 2007.

   oTorn rotor cuff repair in 2014 

   oHe suffers from degeneration of the left hip diagnosed in 2013 which will require further surgery.

   It is argued that it is axiomatic, and in accordance with medical opinion, that his occupation and future earning capacity  may well be affected by this degeneration given the restrictions as outline in the evidence of Dr M.

   The Wife:

   ·Is 52 years of age

   ·The wife has suffered cancer and has been required to undergo treatment in relation to the cancer. She requires periodic review and treatment. As at her Affidavit  sworn 30^th April 2015 the wife was to come off medication and have further determination in relation to treatment

2. 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;

   a.Income:

   It is argued that the income of each of the parties at present and identified in Financial Statements is sufficient to meet their needs

   b.Capacity for Appropriate Gainful Employment

   It is argued that both parties as at the date of trial are exercising a capacity for appropriate gainful employment in their career fields.

   It is argued that the wife has a greater capacity to work more shifts than she is exercising at the present time, and that she is tailoring her work to the minimum number of hours for the purposes of these proceedings.

3. whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

   The parties have Equal Shared Parental Responsibility and shared care in relation to Y.

   It is argued that Y is of a sufficient age and maturity whereby he does not need close supervision and it is highly likely that he will be pursuing his own teenage interests in the foreseeable future. Plus he is highly likely to be self-determinative as to his living arrangements.

4. commitments of each of the parties that are necessary to enable the party to support himself or herself and  a child or another person that the party has a duty to maintain ;

   It is argued there are no issues raised by either party requiring an adjustment under this subsection

5. The responsibilities of either party to support any other person;

   There are no issues raised by either party requiring an adjustment under this subsection

   10. The effect of any proposed order upon the earning capacity of either party to the marriage;

   There are no issues raised by either party requiring an adjustment under this subsection

11.Any other order made under this Act affecting a party to the marriage or a child of the marriage; 

The parties have Equal Shared Parental Responsibility and shared care in relation to Y.

12.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;

The husband pays assessed Child Support Agency payments as required.

In addition the parties pay $5 per week to Y’s bank account  through their joint account.

The husband pays for Y’s needs whilst Y is in his care and pays half towards his school uniforms, school needs and medical needs.

13. Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;

There are no issues raised by either party requiring an adjustment under this subsection

14. the need to protect a party who wishes to continue that party's role as a parent;

It is argued there are no issues raised by requiring an adjustment under this subsection. It is argued that Y is of a sufficient age and maturity whereby he done not need close supervision and it is highly likely that he will be pursuing his own teenage interests in the foreseeable future.

15. if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;

There are no issues raised by either party requiring an adjustment under this subsection

1. terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

   see above

   17. Any other matter;

   It is argued that the husband should be allowed first option to purchase the wife’s interest in Property M

   ·The husband has the capacity to do so

   ·The husband has maintained an interest in (hobbies omitted) with Y and there are facilities in the former matrimonial home which Y would miss.

   ·The husband has demonstrated a capacity during the marriage [and together with his own father as a child] in creating  and manufacturing items. The property has a shed with tools which would allow him to continue with this recreational. This is particularly important to the husband as this provides him with recreational and therapeutic activities as his degenerative conditions progress. He would also like to involve Y.

It is asserted there would therefore be no adjustment under this subsection. 

Conclusion   Just and Equitable

It is argued that this is a long relationship of  22 years with two children. The effect of the Orders as sought by the husband will permit each party to have sufficient funds to re-house, with a mortgage, which each has the capacity to service. They will each have equal superannuation for their future retirement needs. There is no imbalance visited upon either party. It is argued therefore that the Orders are just and equitable

Balance Sheet	Name	SAWYER
	File No
ASSETS	Date	Time
	Before

Owner		Description	Wife / de facto partner’s value	Husband / de facto partner’s value
ASSETS
1.	J	Property M[1]	860,000	860,000
2.	J	(omitted) Bank[2]	1,000
3.	H	X Trail  [3]	3,400
4.	H	(omitted) Super[4]	360,805
5.	H	(omitted) Super[5]	9,931
6.	W	Renault (omitted)[6]	2,600
7.	W	(employer omitted) Superannuation Plan[7]	156,157
8.
9.
10.
11.
12.
13.
14.
15.

[1] Agreed from single expert valuation Mr M dated 8 March 2016

[2] From husband’s affidavit there is an updated figure. The wife has not provided any updated figure.

[3] Admission against interest from the Husband’s Affidavit. Neither party has an admissible formal valuation of vehicles

[4] Annexure ' A ' to the husband’s affidavit.

[5] Annexure ‘B’ to the husband’s Affidavit.

[6] Admission against interest in the wife’s financial statement sworn the  30^th April 2015. Neither party has an admissible formal valuation of vehicle.

[7] The wife asserts this figure as an accumulation fund in her  financial statement sworn the  30^th April 2015.

LIABILITIES

Owner		Description	Wife/Defacto Partner’s $	Husband/Defacto Partner’s $
LIABILITIES
1.   1	J	Mortgage on Property M	97,700	97,700
2.	J	Loan to (omitted) Bank	25,000	25,000
3.	J	Visa Card	76

List of Objections

In relation to the Affidavit of the wife sworn the 30^th April 2105

Paragraph 86 and Annexure ‘A’:                 Form. It is argued that the Respondent is required to adduce expert medical evidence in accordance with the rules and provide an Affidavit of such expert, as has been done by the husband.

Paragraph 87 and annexure ‘B’:                   Form. It is argued that the Respondent is required to adduce expert medical evidence in accordance with the rules and provide an Affidavit of such expert, as has been done by the husband.

Schedule 2

Case Outline Document of Respondent Wife

PROCEEDINGS

These proceedings concern financial orders only.

DOCUMENTS

1. The wife relies on the following documents:

   (a)Amended Response filed 3 August 2015

   (b)Affidavit of Ms Sawyer sworn and filed 11 March 2016

   (c)Financial Statement of Ms Sawyer sworn and filed 11 March 2016

ORDERS SOUGHT

1. The wife seeks the orders contained in the attached Minute of Orders, effectively seeking that she be allowed to retain the former matrimonial home on condition that she make a cash payment of $247,500 to the husband and that the parties’ superannuation be split equally.  

2. The effect of the wife’s proposal is that she will retain 60% of the overall net assets (within which each party retains or received by way of a splitting order, 50% of the combined value of the superannuation).

3. Having regard to the husband’s pleadings, the wife understands that the husband seeks an equal division of the value of all net assets.  The Husband’s Initiating Application filed 24 January 2014 seeks that he be allowed to retain the former matrimonial home with a cash adjustment of $352,000 being paid to the wife.  

CHRONOLOGY

1. A detailed chronology is attached to this Outline. 

2. The key dates are:

   (a)1990:     Date of cohabitation

   (b)27 December 2012: Date of separation (22 years)

   (c)Children born (omitted) 1994 (X, now aged 21 years) and (omitted) 2002 (Y, now aged 13 years)    

   (d)8 May 2014:  Final parenting orders for Y made by consent.  Mother is primary carer.  

BALANCE SHEET

Item	Non-superannuation assets	Ownership	Value
1	Property M	J	860,000
2	Renault car	W	2,150
3	Nissan X-Trail car	H	6,500
4	Cash at bank	H	800
5	Cash at bank	W	2,000
Value of non-super assets		871,450

Superannuation	Value
6	(omitted) Superannuation (Accumulation Fund)	H	9,931
7	(omitted) Superannuation Scheme (DBF in growth phase)	H	360,805
8	(employer omitted) Superannuation Plan (Partial DBF in growth phase and partial Accumulation Fund)	W	175,055
Value of superannuation	545,791

Joint liabilities
9	Mortgage in favour of (omitted) Bank over FMH	J	(97,898)

Post separation liabilities
10	Personal loan from (omitted) Bank	W	(10,539)
11	Mastercard	W	(2,237)
12	Legal fees	W	(25,262)
13	Personal loan from (omitted) Bank	H	(25,000)
14	Visa card	H	(76)

BALANCE SHEET SUMMARY

Net non-super assets	$871,450 - $97,898 =	$773,552
Superannuation	$545,791
Net assets	$1,319,343

OUTLINE OF ARGUMENT

1. The following issues will be amplified in closing submissions in light of the oral evidence.

Contributions during relationship

1. The wife contends that the parties made equal but differing financial and home-maker contributions during the 22 year relationship. 

Post separation contributions

1. The wife contends that she has made various post separation financial contributions which have not been matched by the husband, namely:

   (a)Providing direct financial support to the children of the marriage, X and Y.  X, although an adult at the age of 21 years, is nevertheless a student who continues to live at home. The husband pays modest child support of about $93 per week for Y. This has recently increased from $75.00 per week. The wife pays for most of Y’s school and extra curricular expenses other than his private school tuition fees which are shared equally between the parties.  Such expenses include school uniforms, school supplies, school activity fees and medical/dental/orthodontic expenses. 

   (b)Meeting the costs associated with the significant maintenance and repair work of the former matrimonial home, namely replacing a window in the garage, purchasing a new sewerage pump for the septic system, unblocking sewerage pipes and fixing leaking taps, and repairs to the solar heating system. 

   (c)Paying for all outgoings on the property including all mortgage payments, council rates, and building insurance.

2. The wife contends that an adjustment of about 2.5% to 5% should be made in her favour to reflect these post separation contributions.

Future needs

1. The wife contends that a further adjustment of 7.5% to 10% should be made in her favour to reflect differences in future needs.

2. The aspects of s 75(2) that are relevant in this case are:

   (a)Responsibilities for the care of Y (s 75(2)(c)), being a child under the age of 18.  Y is aged 13 and in Year 8 at school.  Final parenting orders see Y living in the primary care of the mother (9 nights per fortnight during school terms and half holidays);

   (b)The wife’s responsibility to care for X (s 75(2)(d)(ii) or (e)) who is aged 21 years and living with the mother while she is undertaking an apprenticeship;

   (c)The wife’s uncertain health and what this may mean for her future capacity to work full time.  The wife was diagnosed with thyroid cancer in early 2013 and continues to require monitoring and assessment.  Although she has been able to continue full time employment (while utilising leave entitlements from time to time), she is to consult with a surgeon in early July 2016 for review of her condition; 

   (d)The disparity of income between the parties.  The wife earns about $66,000 per annum (gross) as a full time (occupation omitted) employed by (employer omitted).  The husband earns about $86,000 per annum (gross) as a full time (occupation omitted) employed by (employer omitted).  These figures based on income as at 30 June 2015.

GILLIAN ELDERSHAW

Counsel for the Respondent Wife

17 March 2016

Sawyer and Sawyer (omitted) 2547/2014
Respondent Wife’s Chronology

Date	Event	Source
(omitted) 1962	Ms Sawyer (“the wife”) is born in (country omitted), (occupation omitted) for (employer omitted), 53 years of age.
(omitted) 1966	Mr Sawyer (“the husband”) is born in Australia, (occupation omitted) for (omitted), 49 years of age.
(omitted) 1991	Parties marry in (omitted). The wife is 29 years of age and the husband is 25 years of age.
1991	Parties commence living together.
(omitted) 1992	Wife commences employment with (employer omitted).
1993	Parties purchase block of land at Property M, where the former matrimonial home is built.
1993-1994	Parties home is built in Property M.
1994	Husband commences employment with (employer omitted)
(omitted) 1994	X is born, 21 years of age.
(omitted) 2002	Y is born, grade 8 (omitted) School, 13 years of age.
30 June 2011	Husband's taxable income is $77,163.00.	NOA
30 June 2011	Wife's taxable income is $47,751.00.	NOA
30 June 2012	Husband’s Taxable Income $79,037.00.	ITR
30 June 2012	Wife's taxable income is $45,558.00.	NOA
27 December 2012	Parties separate.
March 2013	Wife is diagnosed with thyroid cancer.
3 April 2013	Wife undergoes first surgery for thyroid cancer.
26 June 2013	Wife undergoes second surgery for thyroid cancer.
30 June 2013	Husband's taxable income is $81,921.00	NOA
30 June 2013	Wife's taxable income is $50,444.00.	NOA
31 July 2013 - 2 August 2013	Wife undergoes radiation treatment for thyroid cancer.
20 September 2013	Parties close joint (omitted) Visa account (omitted)
11 October 2013	Wife opens (omitted) Bank personal loan (omitted) $10,000.00.
6 December 2013	(omitted) joint valuation for the family home - $680,000.00.
21 February 2014	Wife opens (omitted) Bank personal loan (omitted) $14,500.00. Pays out (omitted) Bank personal loan established 11 October 2013.
1 March 2014	Wife closes (omitted) Bank personal loan (omitted) $10,000.00.
16 June 2014	Second joint valuation for the family home from Mr M - $800,000.00.
30 June 2014	Husband’s Taxable income is $85,038.00	ITR
30 June 2014	Wife’s taxable Income is $61,987.00	ITR
29 August 2014	Wife undergoes a nuclear scan. The scan reveals active cancer cells in the wife's thyroid tissue.
October 2014	Husband travels to (omitted), Victoria.	(omitted) Bank Account statement number 4
7 October 2014	Medical Certificate from Dr E of (omitted) Medical Clinic states: "Ms Sawyer has had extensive treatment for cancer of the thyroid over the last 18 months.  After recent specialist review it has been determined that she will need ongoing active surveillance due to the real possibility of residual disease.  There may be further treatment necessary in coming months."
27 October 2014	Divorce Order is made.
28 November 2014	Divorce Order takes effect.
19 January 2015	Husband travels to (omitted)	(omitted) Bank Account statement number 4
16 February 2015	Medical certificate from Dr M of (omitted) Medical Clinic states: "In my opinion Ms Sawyer is being treated for thyroid cancer starting April 28 which will cause fatigue which may necessitate time off work."
7 March 2015	Wife obtains updating valuation report for the family home from Mr M - $860,000.00.
28 April 2015	Wife goes off her medication for 4-5 weeks to determine what further treatment she requires.
1 May 2015	Payment to Johnson Horsley Lawyers by the husband of $3,000.00.	(omitted) Bank Account statement
15 May 2015	Valuation for wife’s superannuation with (employer omitted) Superannuation Plan $175,055.35.
4 June 2015	Wife undergoes a nuclear scan.
16 June 2015	Husband obtains updating valuation for the family home from (omitted) - $775,000.00.
30 June 2015	Valuation of Husband’s superannuation interest with the (omitted) Superannuation Scheme $347,048.05. Value of husband’s (omitted) Super $9,931.00.
30 June 2015	Wife's taxable income is $66,881.00.	(omitted)
30 June 2015	Husband's taxable income is $86,372.00.	(omitted)
June/July 2015	Husband travels to (country omitted).	(omitted) Bank Account statement
27 July 2015	Payment to Johnson Horsley Lawyers by the husband of $2,000.00.	(omitted) Bank Account statement
28 July 2015	Husband is in (omitted).	(omitted) Bank Account statement
1 September 2015	There are transactions on the husband's (omitted) Bank account in (omitted).	(omitted) Bank Account statement
1 September 2015	(omitted) tickets purchased - $126.00.	(omitted) Bank Account statement
3 September 2015	Payment by the husband to Johnson Horsley Lawyers of $1,829.00.	(omitted) Bank Account statement
4 November 2015	Husband is in (omitted).	(omitted) Bank Account statement
18 November 2015	Child support assessment issues for 1 January 2016 to 30 November 2016.  The monthly rate is $406.42.  The weekly rate is $93.47.
23 November 2015	Husband is in (omitted).	(omitted) Bank Account statement
19 January 2016	Husband is in (omitted).	(omitted) Bank Account statement
16 February 2016	Medical Certificate from Dr D of (omitted) Medical Clinic states: "In my opinion Ms Sawyer has papillary cancer of the thyroid and is having regular follow up scans which necessitate her stopping her thyroid medication."
16 February 2016	Payment to the husband's (omitted) Bank account ((omitted)) in the amount of $12,445.74.	Statement. Payment comes from (omitted) Bank account.
16 February 2016	Cash deposit to the husband's (omitted) Bank Account bank of $12,554.26.	(omitted) Bank Account statement
22 February 2016	Husband makes payment of $5,000.00 to Johnson Horsley Lawyers.	(omitted) Bank Account statement
23 February 2016	Husband pays $5,000.00 to Johnson Horsley Lawyers.	(omitted) Bank Account statement
24 February 2016	Husband's annual salary (cash component) $87,107.00.  Gross salary per fortnight $3,375.87.
8 March 2016	Parties jointly obtain updated valuation report for the family home - $860,000.00.
9 March 2016	Wife owes $25,262.48 to DGB Lawyers for professional fees and disbursements.
9 March 2016	Husband’s gross weekly income is $1687.00.	HFS
March 2016	Husband pays child support for Y $93.00/wk per assessment.
19 April 2016	Wife has an appointment for a neck ultrasound.
4 May 2016	Wife has an appointment for a nuclear consultation.
5 July 2016	Wife has a further appointment with Mr P.  This appointment is to consider the results from the neck ultrasound, blood tests and nuclear scan.

Sawyer and Sawyer (omitted) 2547/2014
Minute of Orders Sought by Respondent Wife

1. These Orders are made by way of alteration of property interests pursuant to section 79 of the Family Law Act 1975 (hereinafter referred to as "the Act").

2. Within forty two (42) days after the date of these Orders the Respondent wife is to pay the lump sum of two hundred and forty thousand five hundred dollars ($247,500.00) to the Applicant Husband.

3. Simultaneously with the payment referred to in Order 2 hereof being made the parties are to do all things necessary to:

   3.1transfer all of the Applicant husband's right, title and interest in the property situate at and known as Property M, New South Wales, folio identifier (omitted) (hereinafter referred to as "the Property M property") to the Respondent wife; 

   3.2discharge the mortgages to (omitted) Bank secured against the Property M property with the Respondent wife to:

   3.2.1be solely responsible for the payment of the total amount required to be paid to (omitted) Bank to effect discharge of the mortgages;  and

   3.2.2indemnify and keep indemnified the Applicant husband with respect to such payment.

4. As from the date of these Orders the Respondent wife is to pay all outgoings relating to the Property M property, including, but not limited to, all regular instalments payable with respect to the mortgage secured against the property, all statutory rates and charges, all utility expenses and all insurance premiums as and when they fall due and the Respondent wife is to indemnify and keep indemnified the Applicant husband with respect to the payment of all such outgoings.

5. If the Respondent wife fails to comply with the terms of Order 2 or Order 3 hereof the parties are to forthwith do all things necessary to list for sale and sell the Property M property by public auction at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it), or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:

   5.1payment of agent's commission and advertising expenses relating to the sale;

   5.2payment for legal expenses relating to the sale; 

   5.3payment to (omitted) Bank in the total amount required to effect the discharge of the mortgage secured against the Property M property; 

   5.4payment of all costs incurred, if any, in relation to the determination of a value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee; 

   5.5payment of the balance owing to the Applicant husband pursuant to Order 2 hereof plus any interest payable to the Applicant husband pursuant to these Orders; 

   5.6payment to the Respondent wife of the balance then remaining.

1. In the event the amount referred to in Order 2 hereof or any portion thereof remains outstanding after the due date for payment the Respondent wife is to pay interest to the Applicant husband at the rate prescribed by the Family Law Rules from the original due date of the payment until the payment is made in full. 

2. The Court allocates, as required by section 90MT(4) of the Act, a base amount of $X (where X is to be calculated so that each party retains an equal amount of the total superannuation) out of the Applicant Husband’s interest in the (omitted) Superannuation Scheme (hereinafter referred to as "the Fund").

3. In accordance with section 90MT(1)(a) of the Act whenever the Trustee of the Fund makes a spittable payment out of the Applicant husband's interest in the Fund the Trustee shall:

   8.1create an entitlement on the part of the Respondent wife, or on the Respondent wife's death, the wife's legal personal representative, to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   8.2make a corresponding reduction in the entitlement to the Applicant husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.

4. These Orders have effect from the operative time and the operative time is four (4) business days after the service of these Orders of the Trustee.

5. Whenever the Trustee of the Fund makes a splittable payment out of the Applicant husband's interest in the Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created pursuant to Order 8 hereof in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001.

6. Each party and the Trustee have liberty to apply not less than three (3) business days notice, in respect of the implementation of the super splitting Orders. 

7. The Respondent wife's solicitor must serve a certified copy of the Orders upon the Trustee of the Fund within seven (7) days after the date of the Orders. 

8. Having been accorded procedural fairness with respect to the Orders concerning the Applicant husband's interest in the Fund and the allocation of a base amount from the Fund to the Respondent wife Orders 7-11 hereof bind the Trustee of the Fund.

9. As between the Applicant husband and Respondent wife, and subject to the above Orders, the Applicant husband and the Respondent wife are to each respectively retain all interest in and entitlement to:

   14.1all personal property now in his/her respective possession and/or control; 

   14.2all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;  and

   14.3all interests in life insurance policies and Superannuation Funds standing in his/her sole name respectively. 

10. Unless otherwise expressly stated in these Orders each party is to be liable for the payment of any debt incurred in their sole name or jointly with any other person or encumbering any property retained by the party in accordance with these Orders and is to indemnify and keep indemnified the other party in relation thereto. 

11. The parties are to do all things necessary to give effect to these Orders in the time periods prescribed herein. 

12. In the event of either party refusing or neglecting to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court is to be appointed pursuant to section 106A of the Act to execute such deed, document or instrument in the name of the said party and to do all things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

13. Any party in default of these Orders is to pay all reasonable solicitor/client costs incurred by the other party for the purpose of enforcing these Orders with the amount payable to be in accordance with the Family Court Rules unless otherwise agreed to between the parties.