Schmidt & Schmidt
[2009] FamCA 1386
•2 April 2009
FAMILY COURT OF AUSTRALIA
| SCHMIDT & SCHMIDT | [2009] FamCA 1386 |
| FAMILY LAW – PROPERTY – Alteration of property interests – Superannuation – Two different categories of superannuation interest – Hurt on duty pension – Contributions – Just and equitable division of assets |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Schmidt |
| RESPONDENT: | Ms Schmidt |
| FILE NUMBER: | NCC | 1180 | of | 2007 |
| DATE DELIVERED: | 2 April 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 15 October 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gould |
| SOLICITOR FOR THE APPLICANT: | Kekeff & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Cummings |
| SOLICITOR FOR THE RESPONDENT: | Boyd Olsen Lawyers |
Orders
An order is made pursuant to s.79 in accordance with paragraphs 2 to 8 below.
Within 28 days from the date of making these orders, the husband shall pay to the wife the sum of $324,384.00.
Contemporaneous with the payment referred to in paragraph 2, the wife shall do all acts and things and sign all necessary documents, instruments and writings so as to cause to transfer to the husband all of her right, title and interest in the former matrimonial home property situate at and known as V property in the State of New South Wales being Lot 1 DP …; Lot 3 DP … and Lot 190 DP … (“the V property”).
In the event that the husband fails to make payment to the wife in accordance with paragraph 2 each party will do all things and sign all necessary documents to effect a sale of the V property by private treaty at a price to be agreed upon by the parties and failing agreement to be determined by a nominee of the Real Estate Institute of New South Wales for the time being and the net proceeds of sale of the V property be distributed as follows:-
4.1.Payment of the costs of sale;
4.2.Payment to the wife of 67.6% of the proceeds to be calculated before the discharge of any encumbrance;
4.3.Discharge of any encumbrance;
4.4.Payment to the husband of the balance.
5.1 In this clause:
category 1 splittable payment is a payment made by the SAS Trustee Corporation (“the trustee”) prior to the Husband reaching the age of sixty (60); and
category 2 splittable payment is any other payment made by the trustee to the Husband which is not a category 1 splittable payment.
5.2In accordance with paragraph 90MT(1)(b) of the Family Law Act 1975:
5.2.1the wife is entitled to be paid the specified percentage, being 10%, of the category 1 splittable payment to be made from the husband’s superannuation interest in the SAS Trustee Corporation Pooled Fund and payable in accordance with the Police Regulation (Superannuation) Act 1906 (NSW); and
5.2.2the husband’s entitlement to that payment from the SAS Trustee Corporation Pooled Fund is correspondingly reduced.
5.3The trustee shall do all such acts and things and have signed all such documents as may be necessary to:
5.3.1calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife in paragraph 6.2 of this clause; and
5.3.2pay the entitlement whenever the trustee makes the category 1 splittable payment out of the husband’s interest in the SAS Trustee Corporation Pooled Fund.
5.4In accordance with paragraph 90MT(1)(b) of the Family Law Act 1975:
5.4.1the wife is entitled to be paid the specified percentage, being 35%, of the category 2 splittable payment to be made from the husband’s superannuation interest in the SAS Trustee Corporation Pooled Fund and payable in accordance with the Police Regulation (Superannuation) Act 1906 (NSW); and
5.4.2the husband’s entitlement to that payment from the SAS Trustee Corporation Pooled Fund is correspondingly reduced.
5.5The trustee shall do all such acts and things and have signed all such documents as may be necessary to:
5.5.1calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife in paragraph 6.4 of this clause; and
5.5.2pay the entitlement whenever the trustee makes the category 2 splittable payment out of the husband’s interest in the SAS Trustee Corporation Pooled Fund.
5.6This clause has effect from the operative time and the operative time is the date of this order.
5.7Any rule that has not been formally complied with relating to giving notice to the trustees of the SAS Trustee Corporation Pooled Fund, as to the form of the orders sought, is dispensed with.
Unless the wife gives her written consent to do so, the husband be restrained from giving notice to the SAS Trustee Corporation pursuant to s 14K of the Police Regulation (Superannuation) Act 1906 to commute the pension payable to him from time to time to a lump sum.
The wife be declared to be the sole beneficial owner of the superannuation entitlements in which she is named as the superannuant.
Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of the making of these orders, and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, any motor vehicles are deemed to be in the possession of the registered owner thereof and specifically the husband shall be entitled to those items to which the distribution table contained in the reasons for judgment dated this day indicates he is entitled and the wife shall be entitled to those items to which the distribution table contained in the reasons for judgment dated this day indicates she is entitled.
Except as otherwise provided in these orders, each party shall be declared to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
In the event either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
Either party have liberty to restore on seven days notice in respect of the implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Schmidt & Schmidt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 1180 of 2007
| MR SCHMIDT |
Applicant
And
| MS SCHMIDT |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This matter is about what alteration of property and other assets should be made between the husband and the wife.
The matters about which I am required to make decisions include:-
2.1.What amount (if any) should be added back to the balance sheet on account of monies received by the parties since separation;
2.2.How the assets of the parties should be divided based on the contributions that they have both made;
2.3.How the husband’s superannuation interest (both prior to retirement and after retirement) should be treated;
2.4.Whether the wife should receive all or the bulk of the non-superannuation assets.
The husband has previously worked as a police officer. He was hurt on duty and medically discharged from the police force. He currently receives a pension as a result of post traumatic stress disorder.
AGREED FACTS
Exhibit 9, as amended by agreement of both counsel during the hearing, is a set of facts upon which the parties have agreed.
The husband was born in 1965 and is therefore 44 years of age.
The wife was born in 1966 and is therefore 42 years of age.
It is agreed that the parties began living together in 1999. The wife asserts that this was in about January 1999, the husband asserts that it was later.
The parties married in 2000.
At the commencement of the cohabitation the wife was the registered proprietor of real property at C (“the C property”).
At the commencement of cohabitation the husband was the registered proprietor of two properties, one at H (“H property”) and another parcel of land at K (“K property”).
There are two children of the marriage:
11.1.B born in February 2003 (currently 6 years of age); and
11.2.Y born in October 2004 (currently 4 years of age).
In June 1999 the husband was transferred by the police force to V. The parties moved to live in V. The wife resigned her long-term employment in Newcastle at this time.
In June 2000 the parties purchased the property known as V (“the V property”) for $240,000. The loan used to purchase the property was solely in the husband’s name.
In August 2000 the parties borrowed $200,000 from the ANZ Bank secured on the property registered in the wife’s name at C and the property registered in the husband’s name at H and discharged the existing mortgages on those properties.
In or around April 2003 the husband was transferred to N Police Station.
In June 2003 the parties borrowed a further $40,000 from the ANZ Bank secured on the C and H properties, thus extending the mortgage indebtedness. These monies were used to pay for renovations to the H property.
Around April 2004 the husband was transferred to P Police Station.
In April 2005 the husband commenced sick leave from the New South Wales Police Service.
On 9 September 2005 the husband extended the loan secured on the V property by $20,000.
On 1 July 2006 the parties separated and the wife moved with the children, B and Y, to live at her parents’ home at C.
On 20 September 2006 the wife settled the sale of the C property. The sale price was $237,000. The proceeds of sale were distributed as follows:-
In discharge of the mortgage to the ANZ Bank $144,972.32
In payment to the husband $40,000.00
In payment to the wife $44,853.62
Balance to legal costs and real estate agent’s commission.
On or around 27 September 2006 the husband received a payment of $54,095 from the New South Wales Police Service.
On 1 November 2006 the husband sold the H property. The sale proceeds were distributed as follows:-
In discharge of the mortgage secured on H property $96,099.59
In discharge of the mortgage secured on the V property $111,500.32
In discharge of the supplementary loan secured on V $18,619.43
Office of State Revenue (land tax) $774.00
In payment of rate adjustments, legal costs and real estate agent’s commission
Balance to an account in the parties’ joint names $29,026.50
In December 2006 the husband received from State Super a superannuation basic benefit of $32,971.60 and in addition the husband received back pay in the sum of $15,000.
The parties’ joint liabilities at separation were as follows:-
ANZ Bank “supplementary loan” …296 in the husband’s name $19,032.13
ANZ Bank “residential investment loan” …668 in joint names $238,443.47
ANZ Bank home loan in the husband’s name $111,399.51
The husband redrew the sum of $2,000 on the home loan on 4 July 2006.
APPLICATIONS
Husband
The husband’s application for final property orders is in the following terms:
1.That within 28 days from the date of making these orders the wife shall do all acts and things and sign all necessary documents, instruments and writings so as to cause to transfer to the husband all of her right, title and interest in the former matrimonial home property situate at and known as [V property] in the state of New South Wales being Lot 1 DP […]; Lot 3 DP […]; and Lot 190 DP […].
2.That contemporaneously with transfer of the property from the wife to the husband in Clause 1 above, the husband pay to the wife the sum of $195,000.00 by way of property settlement.
3.That 10% of any splittable payment in the husband’s superannuation interest with State Super be paid to the wife until 21 October 2022.
4.That in accordance with s 90MT(1)(a) of the Family Law Act 1975, whenever the trustee of State Super makes a splittable payment from the pension entitlement held by the husband with State Super, the trustee shall:
4.1pay to the wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
4.2make a corresponding reduction in the entitlement that the husband would have had but for these orders;
4.3That Order 1 has effect from the operative time; and
4.4The operative time for these orders is fourteen (14) days from the date of these orders.
5.That, having been afforded procedural fairness, Orders 3 and 4 herein bind the Trustee or Trustees from time to time of State Super.
6.That except as otherwise provided in these orders each party is hereby declared to be the sole owner of all other property and chattels of whatsoever kind and nature currently held in their respective name, possession and/or control as at the date of these orders and for that purpose Bank accounts be deemed to be in the possession of the party whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker, whose age or working future provides the conditions for payment out of such entitlements and the other party is hereby declared to have no interest therein.
7.That except as otherwise provided in these orders each party shall be declared to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
8.In the event of either party refusing, neglecting or otherwise failing to sign any such document as is necessary to put these orders into effect within fourteen (14) days of a written request to do so then the Registrar of the Family Court of Australia or any other officer of the Court is hereby appointed to sign any such document pursuant to the provisions of Section 106A of the Family Law Act 1975 on behalf of the defaulting party.
Wife
The wife’s application for final property orders is in the following terms:
1.That within thirty five days of the date of the making of Orders the husband do all acts and things and sign all documents necessary to transfer to the wife all of his right, title and interest in the property [V] being the land contained in Folio Identifiers 1/[…], 190/[…] and 3/[…] and thereafter give up vacant possession of the property to the wife.
2.That upon the transfer in Order 1 above the husband transfer to the wife the following property situate on the property “[V]”: quadbike, motorbike, the farming plant and equipment, the cattle, and crop.
3.That forthwith upon the making of these Orders and other than as provided herein the wife transfer to the husband all of her right, title and interest in any item of property or personalty in the husband’s possession and/or control as at the date of these Orders.
4.That forthwith upon the making of these Orders and other than as provided herein the husband transfer to the wife all his right, title and interest in any item of property or personalty in the wife’s possession and/or control as at the date of these Orders.
5.That the husband indemnify and keep indemnified the wife in respect of any liability in his name as at the date of these Orders.
6.That the wife indemnify and keep indemnified the husband in respect of any liability in her name as at the date of these Orders.
7.That pursuant to Section 106A of the Family Law Act, in any event that any party shall fail, neglect or refuse to sign any document required to give effect to these Orders within seven days of being requested in writing by another party who has an interest in the execution of such document, then upon the filing of an Affidavit evidencing such failure, neglect, or refusal, a Registrar of the Newcastle Registry of the Family Court of Australia is appointed to execute such document in lieu of the defaulting party.
CREDIT
The husband gave evidence in a straightforward manner. He appeared to listen attentively to the questions and respond appropriately, often making concessions against his own interests.
The wife also gave evidence in a confident manner and was not found wanting in any significant way during cross examination. I reject counsel for the husband’s assertion that the wife’s presentation in the witness box would mean that I would accept the husband’s evidence over the wife’s evidence.
Both parties seemed to me to be attempting to give evidence to the best of their recollection and where there are any differences in the recollection of the parties I will need to rely upon what other objective evidence there is or choose the version that is more inherently likely.
MORE DETAILED CHRONOLOGY
On 18 October 1989 the husband settled the purchase of K property for $88,500 and gave a mortgage of that property to the National Mutual Royal Savings Bank Limited to secure a loan of $59,500.
On 12 June 1998 the wife settled the purchase of the C property for $108,500 and gave a mortgage of that property to the State Bank of New South Wales to secure a loan of $99,000.
On 22 June 1998 the husband settled the purchase of H property for $104,000 and gave a mortgage of that property to the ANZ Bank to secure a loan in the amount of $146,000.
There is slight disagreement about when the parties commenced cohabitation. The wife said it was in January 1999, the husband says it was a little later. The husband conceded however that the parties spent time together at the date asserted by the wife. Little turns on this difference.
At the time of the cohabitation the husband had H and K properties and a Subaru motor vehicle. The wife had the C property.
When the husband was transferred to V in June 1999, the wife resigned her long term employment in Newcastle and received employment termination payments. The wife commenced employment in V shortly after the parties commenced to live in V.
In March/April 1999 when the parties moved to V they lived in rental accommodation. The husband continued to work as a police officer. His income was $57,200 and he paid the rent. The wife worked full time as a retail assistant with an income of $22,300. The wife used her income in part to support shortfalls in mortgage payments on the C property after rent was received in respect of that property.
On 15 November 1999 the husband sold K property for a price of $129,500. It is unclear as to what amount from the sale price was used to discharge the mortgage. The husband asserts that he received net sale proceeds of approximately $90,000.
On 8 February 2000 the husband sold his Subaru motor vehicle for net proceeds of sale of $30,000.
In April 2000 the wife ceased making contributions to her AMP retirement savings plan and became a member of REST Super on 1 June 2000.
On 10 April 2000 the husband entered into a contract to purchase the V property for the sum of $240,000. This was a farm and was to be the parties’ home for the rest of the time that they lived together. It is the husband’s contention that he contributed what he said were the net proceeds of the sale of K property ($90,000) to the acquisition of the V property and used part of the proceeds of the sale of the Subaru motor vehicle of approximately $20,000 towards that purchase. Therefore, it is the husband’s contention that he contributed $110,000 towards the purchase of the V property. The settlement of the purchase of that property took place on 21 July 2000. At that time a mortgage was entered into with the ANZ Bank. The amount stamped on that mortgage is $234,000. That mortgage was not just over the V property but also over H property. It is unknown as to what the mortgage was on H property prior to this refinancing arrangement.
From July 2000 the parties formed a partnership to undertake farming activities at the V property. At no stage between 2000 and to date has any profit been made from the operations of the V property in any financial year.
In August 2000 the parties undertook a further borrowing in the sum of $200,000 with the ANZ Bank. This mortgage was styled as a residential investment loan and the parties used those funds to discharge the loans secured on the C property and the loan on H property. The wife gave a mortgage to the ANZ Bank secured on the C property.
The wife ceased work in about December 2002, two months before the birth of B in February 2003. She returned to work in October 2003 as a part time sales assistant one day per fortnight and worked into her second pregnancy. The wife took time off when Y was due to be born, and then continued working after Y was born in October 2004.
In about April 2003 the husband was transferred to N. That police station was approximately 100 kilometres from the former matrimonial home. The husband spent time away from the family whilst he was employed at N. The wife says that that was usually three to four days at a time. This commenced when B was only a couple of months old.
In June 2003 the parties borrowed an amount of $40,000 for the purposes of renovating the H property.
In about April 2004 the husband was transferred to P Police Station, approximately 40 kilometres from the V property.
In April 2005 the husband commenced sick leave from NSW Police Service and did not return to the police service after that time.
In May 2005 the husband commenced to receive workers’ compensation. The husband was diagnosed with suffering post traumatic stress disorder. He commenced consultations with psychologist Ms L in Orange and was treated by Dr M with medication.
The husband says that the parties separated under the one roof in May 2006 and that the wife moved back to her parents’ home in Newcastle with the child on 1 July 2006. The wife at that time placed the C property on the market for sale. Shortly after the separation the husband withdrew $2,000 from the loan secured on the V property and sold the Mitsubishi Trion utility for $4,000. He relinquished the Ford Territory motor vehicle and received $1,500 as a result of making lease overpayments.
On 20 September 2006 the wife settled the sale of the C property for the sum of $237,000 and each of the parties received the sum of $40,000 from the proceeds of sale. The wife received an additional amount of $4,853.
In September 2006 the husband received a net payment of $54,095.39 from NSW Police. This amount was accumulated long service leave and holiday pay.
On 25 September 2006 the husband filed an application for parenting and property orders in the Federal Magistrates Court and on 20 October 2006 the wife filed a response.
The matter came before the Federal Magistrates Court on 24 October 2006 and the wife obtained an injunctive order restraining the husband from disposing of the proceeds of the sale of H property. The property at H was settled in November 2006 for a sale price of $266,000. The net proceeds of sale of $29,000 were placed into a joint account and were subsequently (in January 2007) ordered to be paid to the wife as lump sum spousal maintenance.
On 22 December 2006 the husband received an advice from State Super Trustee Corporation that his pension had been granted and that the sum of $32,971.60 had been deposited into his ANZ Bank account. These monies were available to the husband as they were undeducted contributions that had been made to State Super. At the same time the husband received a further amount by way of back pay of ten weeks in the sum of $15,000.
Thereafter, the husband has received regular periodic payments in accordance with his entitlements under the Police Regulation (Superannuation) Act 1906 (“PRSA”).
In March 2007 the wife moved with the children from her parents’ home to reside in her present rented accommodation.
In August 2007 the husband rented a home in the Newcastle area so that the children could live with him in Newcastle each alternate Friday from 9am to 9am on the following Monday and from 5pm each alternate Wednesday to 5pm the following Friday.
On 12 June 2008 final parenting orders were made by consent. The effect of the orders was that the children would live with their father from 9am Friday to 9am Wednesday each alternate week (this is 5 nights and 6 days a fortnight). What this means is that the husband is responsible for the children on three normal working days each fortnight and the wife is responsible for the children on seven normal working days each fortnight.
THE APPROACH TAKEN
In this matter my task is to:
61.1.Identify and value the property, assets, financial resources and liabilities of the parties;
61.2.Identify relevant contributions and assess them;
61.3.Consider relevant matters referred to in s 79(4)(d) – (g) of the Family Law Act;
61.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.
In this case a global approach to the assessment of contributions made to the assets of the parties is not appropriate. This is because there are three very different types of assets held by the parties. The first group of assets are those which are immediately available to the parties. The other assets are the different categories of superannuation interests held by the husband as a result of him being a member of the SAS Trustee Corporation Pool Fund under the PRSA. The nature of that fund is more fully described in Trott & Trott (2006) FLC 93-263.
As I said in that case, the distinction between the two elements of the husband’s superannuation interest is important when analysing the “real nature” of the husband’s superannuation interest. The Full Court made it clear in Coghlan & Coghlan (2005) FLC 93-220 that drawing distinctions as to the nature, form and characteristics of superannuation interests is, in certain cases, an important thing to do. This is one of those cases.
It is appropriate in this case to look at contributions in three separate pools of assets and I accordingly will divide the assets into the following pools:-
64.1.Non-superannuation assets together with the wife’s superannuation;
64.2.The husband’s Category 1 superannuation interests (pre “retirement” superannuation interests);
64.3.The husband’s Category 2 superannuation interests (post “retirement” superannuation interests).
BALANCE SHEET
The parties agreed on a joint balance sheet which is dated 18 September 2008 (and which I mark Exhibit 14). The figures on Exhibit 14 have been changed so far as they set out the current value in relation to the husband’s superannuation interests. Those values have been updated by a report annexed to the affidavit of the single expert witness, Mr G, sworn 13 October 2008. The main contention in relation to the balance sheet relates to what amount should be added back. For reasons set out below, I have determined that the amount of that addback be in the sum of $50,000.
| Pool 1 | ||||||
| Assets | ||||||
| Item no. | Title | Description | H value | W value | Agreed/ Determined | Value |
| 1 | J | V property | $480,000 | $480,000 | Agreed | $480,000 |
| 2 | J | Quad bike | $1,200 | $1,200 | Agreed | $1,200 |
| 3 | J | Motor bike | $1,500 | $1,500 | Agreed | $1,500 |
| 4 | H | Mazda | $37,000 | $37,000 | Agreed | $37,000 |
| 5 | W | Holden Astra motor vehicle | $23,000 | $23,000 | Agreed | $23,000 |
| 6 | J | Boat and trailer | $2,500 | $2,500 | Agreed | $2,500 |
| 7 | J | Furniture and contents at V property | $3,000 | $3,000 | Agreed | $3,000 |
| 8 | W | Furniture and Contents | $12,000 | $12,000 | Agreed | $12,000 |
| 9 | J | Horse float | $2,000 | $2,000 | Agreed | $2,000 |
| 10 | J | Farming equipment | $12,000 | $12,000 | Agreed | $12,000 |
| 11 | J | Cattle | $12,500 | $12,500 | Agreed | $12,500 |
| 12 | J | Crop | $8,000 | $8,000 | Agreed | $8,000 |
| 13 | J | Horses and gear | $3,500 | $3,500 | Agreed | $3,500 |
| 14 | H | Prime mover | $34,000 | $34,000 | Agreed | $34,000 |
| 15 | H | Tipper trailer | $26,000 | $26,000 | Agreed | $26,000 |
| 16 | H | Flat top trailer | $9,000 | $9,000 | Agreed | $9,000 |
| 17 | H | AMP Building Society account | $50 | $50 | Agreed | $50 |
| 18 | H | Central West Credit Union account | $500 | $500 | Agreed | $500 |
| 19 | H | Addbacks in accordance with discussion in judgment | nil | $67,971 | Determined | $50,000 |
| 20 | H | Monies drawn down on loan account on 4.7.06 | $2,000 | $2,000 | Agreed | $2,000 |
| 21 | W | Superannuation - AMP police | $31,999 | $31,999 | Agreed | $31,999 |
| 22 | W | REST Superannuation | $8,170 | $8,170 | Agreed | $8,170 |
| Total assets | $759,919 | |||||
| Liabilities | ||||||
| Item no. | Title | Description | H value | W value | Agreed/ Determined | Value |
| 23 | W | ATO CGT debt | $15,500 | $15,500 | Agreed | $15,500 |
| 24 | H | Central West Credit Union | $45,000 | $45,000 | Agreed | $45,000 |
| 25 | H | ATO CGT debt | $17,500 | $17,500 | Agreed | $17,500 |
| 26 | H | Farm/crop cost | $14,000 | $14,000 | Agreed | $14,000 |
| Total liabilities | $92,000 | |||||
| Total net assets | $667,919 | |||||
| Pool 2 | ||||||
| Assets | ||||||
| Item no. | Title | Description | H value | W value | Agreed/ Determined | Value |
| 27 | H | Police Super: Invalidity benefit payable to retirement age at 60 | $650,308 | $650,308 | Agreed | $650,308 |
| Total assets | $650,308 | |||||
| Pool 3 | ||||||
| Assets | ||||||
| Item no. | Title | Description | H value | W value | Agreed/ Determined | Value |
| 28 | H | Police super: retirement benefit payable as a pension only: age 60 | $453,791 | $453,791 | Agreed | $453,791 |
| Total assets | $453,791 | |||||
Addbacks
It is not disputed that the husband received the following amounts which are referred to in the balance sheet above under the heading “addbacks”:-
Item 1
Cash payment to husband from SAS Trustee Corporation on retirement from police force net basic benefit
$32,971.00
Item 2
Accumulated long service leave and holiday pay received by the husband in September 2006 net
$54,000.00
Item 3
Back pay received by the husband on his resignation from the police force
$15,000.00
Item 4
From proceeds of the sale of the properties at H and C: $40,000 received by each of the husband and the wife net
$40,000.00
Item 7
Mitsubishi Triton motor vehicle
$4,000.00
Item 8
Ford Territory
$1,500.00
Item 9
Tax refund for 2005/2006
$3,398.00
$150,869.00
The husband agrees that the amount of $2,000 (item 10) should be added back.
In relation to the other amounts received by the husband totalling $150,869, the wife concedes that there are other items in the “Asset” section on the balance sheet which have been acquired from those funds, and to avoid double counting, the value of those items should be credited to the husband before the amount of the addback is calculated. Those items are a prime mover (item 13) in the sum of $36,000 and a motor vehicle (traded on item 4) in the sum of $34,000. In addition, both parties have agreed in this case that legal fees they have paid are not to be added back. The husband paid $12,000 in legal fees from the amount of $151,471 and therefore that also should be credited to the husband. The amount of $151,471 includes $1,500 for a repayment on the Ford Territory. That amount is in dispute. The husband alleges that that amount was obtained by him as a refund of overpayments that he made on a lease. Although it was not made clear explicitly in his evidence, I infer that those payments were made from post separation income or assets that have otherwise been included, at least initially in my discussion, by way of addback. I accept it would be a double accounting therefore to add in the $1,500.
The amount of the credits is $83,500 ($36,000 + $34,000 + $12,000 + $1,500). The balance to be accounted for by the husband is in the sum of $67,369 ($150,869 - $83,500).
By way of explanation as to where those monies have gone, the husband points to paragraph 60 of his affidavit sworn 23 September 2008 which sets out his current weekly income and expenses. He says that his current income per week (net pension benefit from super fund) is in the sum of $884.21.
He gives a list of expenses which total $1,430 per week.
The shortfall is in the sum of $546 per week ($1,430 - $884).
Counsel for the husband makes the submission that over a period in excess of two years from 1 July 2006 the shortfall of $67,369 is substantially accounted for ($546 x 119 weeks = $64,974). The difference is a bit over $2,000. Counsel for the husband correctly submits that a precise accounting is not required and that any differences are not of sufficient magnitude to warrant adjustment by way of addback.
Counsel for the wife attacks this logic for a number of reasons:-
74.1.The income asserted is $884 per week from the husband’s superannuation benefit. A letter from State Super dated 2 October 2008 indicates that the husband’s current net fortnightly pension is $1,919 (or $959.50 per week). It is submitted by the wife therefore that the pension of $884, whilst it might have been accurate at some point in time, is not currently accurate and that the husband’s average income over the 119 weeks is higher than counsel for the husband estimated in his calculation.
74.2.One of the current expenditure items by the husband is rent (in Newcastle) of $195 per week. Whilst the wife does not challenge that as being currently inaccurate, the evidence is that the husband did not take up this rental accommodation in Newcastle until the end of August 2007. There is therefore a period from 1 July 2006 to the end of August 2007 where that expenditure was not incurred. This means that counsel for the husband’s calculation is inaccurate by the amount of $11,700 ($195 per week x 60 weeks).
74.3.Counsel for the wife challenged the expense referred to in the husband’s affidavit as “cattle feed” in the sum of $300 per week. In cross examination the husband amended that to “cattle expenses”. Counsel for the wife pointed out that the expense immediately above cattle expenses is child support and the amount for that was $114 per week (for the two children). I deal elsewhere with the history of the husband’s farming activities and I accept in part the submission made by counsel for the wife that the payment of $300 per week by the husband on cattle expenses was him indulging himself in a hobby and was not the type of expense that was contemplated by the Full Court in their discussion in Chorn & Hopkins. A calculation of that expense over the 119 weeks is $35,700 ($300 per week x 119 weeks).
74.4.Counsel for the wife referred to the item of expense which is petrol which the husband says is $180 per week. It is pointed out that the original order made by the Federal Magistrates Court on 2 February 2007 required that travel between the parties be shared. The husband was only travelling once a month to see the children at that point in time and it is asserted that there is a saving there.
The figures in paragraph 74.2 and 74.3 add to $47,400 ($11,700 + $35,700).
The final submission by counsel for the wife was that I should add back an amount of $55,000 which is some approximate arbitrary mid point between the figure of $67,369 and $47,400 (to take into account matters raised by counsel for the wife in relation to the husband’s income at times being higher than what is estimated in paragraph 60 of the husband’s affidavit sworn 23 September 2008 and for his petrol expenses not being as high as he estimated them).
Doing the best I can on the evidence I have I find that it would be appropriate to add an amount of $50,000 back into the balance sheet in relation to the amount of $141,971 that the husband actually received.
The aide memoire handed up by counsel for the husband during final submissions has addbacks of 4, 5 and 10 on it of $86,853. That adds back the wife’s $40,000 as well as the husband’s $40,000. No oral submissions were advanced to explain why the wife’s $40,000 should be added back. Up until final parenting orders were made, the wife had the significant burden of being the primary carer of the children and the amount of the payment of child support by the husband has been affected by the losses incurred on the farm. I am satisfied that monies received by the wife have been expended by her on living expenses and on legal fees (which the parties have mutually agreed in this case not to add back onto the balance sheet).
SUPERANNUATION (POOLS 2 AND 3)
As Mr G’s report points out, in 2006 entitlements under the PRSA were made subject to fund specific valuation methods and factors which were set out in the Family Law (Superannuation) (Methods & Factors for Valuing Particular Superannuation Interests) Amendment Approval 2006 (No. 2).
The full set of agreed amended valuation figures in relation to superannuation are as follows:-
Police super: invalidity benefit payable to retirement age at 55
$490,191
Police super: invalidity benefit payable to retirement age at 60
$650,308
Police super: retirement benefit, commuted to lump sum, payable at age 55
$424,248
Police super: retirement benefit, commuted to lump sum, payable at age 60
$327,521
Police super: retirement benefit payable as a pension only at age 55
$543,052
Police super: retirement benefit payable as a pension only from age 60
$453,791
It can be seen from the balance sheet set out above that I have selected the valuation figure for Pool 2 as the value of the invalidity benefit payable to retirement age at 60 and for Pool 3 as the value of the pension from age 60 (both in bold).
CONTRIBUTIONS
As indicated earlier, I will look at contributions to three different pools.
Non-superannuation assets together with the wife’s superannuation
The total of the non-superannuation assets on the balance sheet are in the sum of $667,919.
For the sake of simplicity, I have treated the superannuation interests of the wife with AMP & REST as part of the first pool.
At the commencement of the cohabitation the husband had a motor vehicle and was the proprietor of the H and K properties.
It is agreed that the husband sold his Subaru motor vehicle in February 2000 for $30,000.
The husband sold K property in November 1999 for $129,950. The husband claims that he received $90,000 by way of net proceeds of sale. That claim is challenged by the wife. I have no evidence as to what the amount of the mortgage was on K property at the time that it was sold.
The only evidence that exists is “PS 4”, which supports a finding that after selling his motor vehicle and buying another and after selling the K house, the husband had cash available to him on 24 March 2000 in the sum of $98,430.
It is reasonable to infer that some of that fund had accumulated during the period of the relationship which had been ongoing for about a year at that time. The husband in his affidavit at paragraph 15 asserts that he was “able to save quite a bit of money from his income before purchasing the home at [V]”.
“PS 5” is a term deposit with the ANZ for $24,000 which was lodged between 16 November 1999 and 16 January 2000. However, 16 January 2000 predates the opening of the account which is evidenced in “PS 4”. I am unable to comfortably infer that I should add the $24,000 to the $98,000. If I did that, the husband would in fact have more cash than he alleges ($110,000). It is less than clear to me that I can comfortably infer that the husband had $110,000 to put into the V property that came from pre-cohabitation assets (both parties agree that $110,000 was put into the acquisition of the V property). It was argued that one snapshot of the amount that the husband was able to save may be gleaned from the second page of “PS4”. It seems in that month the husband was able to accumulate credits into his account of $3,971. This is not a powerful submission because the expenditure on that page is $13,938.
It is in all the circumstances unsafe to accept the husband’s proposition that he contributed $110,000 from pre-cohabitation assets towards the acquisition of the V property in April 2000. I accept however that he made the lion’s share of the contributions towards the $110,000 which was contributed.
At the commencement of the cohabitation, the wife asserts that she had about $30,000 in assets which was made up by:-
92.1.The equity in C property of $12,000;
92.2.Her vehicle in the sum of $4,000;
92.3.Accrued leave entitlements taken as a lump sum of $3,816 (see paragraph 8 and annexures A and B of the wife’s affidavit);
92.4.Her interest in AMP Retirement Savings Plan - now $32,000, all accumulated before mid 2000 (wife’s affidavit paragraphs 17 and 19), $8,679 of which was utilised in the purchase of the family car in March 2001.
I accept that matters of significance when assessing the effect of the wife’s initial contribution of the C property are that it:-
93.1.Was retained until 2006 when it was sold for over 200 percent of its original purchase price;
93.2.Was utilised as security by the parties for other borrowings that in turn gave rise to an increase in assets;
93.3.Was held and sold without contribution of any further funds (to be compared with the husband’s H property in respect of which $40,000 was borrowed and used to improve it in 2003).
If I assume that the husband’s initial contribution is something less than $100,000 (say $95,000) and the wife’s initial contribution was about $30,000, then the non-superannuation asset pool has grown from around $125,000 to about $670,000. This can be primarily traced to the appreciation of property prices, particularly in the C and H properties.
The husband was a member of the police force from November 1985. The husband was posted to V in June 1999 and the wife resigned her long term employment in Newcastle to move to V with him. When the husband was transferred in April 2003 it meant that he had to work in N and the wife consequently had the primary responsibility of looking after B, who was a newly born baby, by herself for three to four days at a time.
The husband conceded in cross examination that the wife left a good job and left her family in Newcastle in order to move to V with him and that she otherwise had no connection with V at that time. He conceded that the wife (although they were not married at the time) showed commitment to him.
The parties lived together for seven and a half years. The evidence that I have would indicate that in terms of the myriad of contributions both parties made by way of their personal exertions during that seven and a half years, there is little that stands out that would move me from otherwise concluding that those contributions were equal.
In the time since separation, the wife has had a larger responsibility in the role of parent than has the husband. The husband has had the benefit of the occupation of the matrimonial farm since separation. Therefore, contributions made after the separation favour the wife.
Taking all that into account I assess that the parties have contributed equally to Pool 1.
Pool 2: Category 1 superannuation interests
The full set of agreed amended valuation figures in relation to superannuation is set out above. The figure that I have adopted in the balance sheet for category 1 superannuation interests is in the sum of $650,308, and that valuation is carried out using the appropriate formula based on invalidity benefit payable to retirement age at 60.
The husband currently receives an amount of $958.68 net per fortnight by way of income stream from his superannuation interest.
The reason he receives that fortnightly pension now (rather than at normal retirement age) is because he was hurt on duty.
I find that it is appropriate to assess contributions to pre-retirement superannuation interests separately.
Counsel for the husband argues that only 10 percent of the income stream should be seen as being contributed by the wife.
Between now and his retirement the amount of the husband’s current superannuation interest is not primarily based upon the amount of time that the husband was in the SAS Trustee Corporation pooled fund. It is based on:-
105.1.The husband being hurt on duty;
105.2.The circumstances in which the husband was hurt on duty;
105.3.The amount of the husband’s salary at the time that he was hurt on duty.
In this case the amount of the husband’s salary has a significant connection to the amount of time the husband has been with the police service. It also has some connection with the fact that the husband was promoted in 2003.
The husband was hurt when being exposed to a risk in the course of his employment to which members of the general work force would not normally be exposed. Consequently he receives a superannuation interest equivalent to 100 percent of his salary (s 10(1A)(c) PRSA).
The wife cannot claim any direct contribution arising from the husband being hurt on duty.
The wife has made contributions after separation in her role as parent to the two children of the marriage. I infer that the wife’s role as parent has to some degree, at least initially during the period of the husband’s impairment, increased, although over time that additional contribution which the wife has made has lessened as the husband has recovered. The wife can point to contributions that she made to the amount of the husband’s salary by supporting him in the move to V and to his move to N associated with his employment. I infer that during the course of the cohabitation the wife made sacrifices to enable the husband to pursue his career. There were additional burdens imposed upon the wife, particularly around about the time of the birth of the first child when the husband was away from the home because of his promotion.
Conclusion in relation to category 1 superannuation
The level of salary which the husband received at the time that he was hurt on duty is in part a result of contributions made by the wife during the cohabitation.
Counsel for the wife suggested that based on contributions, an appropriate adjustment in the wife’s favour of category 1 superannuation would be 20 percent of the superannuation interest.
I assess the wife’s contribution to category 1 of the husband’s superannuation interest at 10 percent.
Contributions to category 2 superannuation interest
The full set of agreed amended valuation figures in relation to category 2 superannuation is set out above. The figure adopted in the balance sheet is in the sum of $453,791 which is the valuation of the husband’s retirement benefit payable as a pension only from the age of 60.
The husband made contributions to his superannuation fund from his salary both before the cohabitation and during the cohabitation. The husband became a member of the fund in November 1985.
Consequently the husband was in the fund to the date of retirement from the police force for 21 years and one month. The parties were together for seven and a half years.
There is no evidence before me as to the value of the husband’s interest in the superannuation fund as at the date of cohabitation.
Once the husband was discharged because he was hurt on duty, his superannuation interest changed from being a defined benefit in the growth phase to a defined benefit in the payment phase.
In Trott & Trott (2006) FLC 93-263, at paragraphs 154 and following, I discuss the use of what has been called the “West & Green” approach.
In M & M (2006) FLC 93-281, the Full Court accepted that it would still be a matter to assess the weight and effect of “time served” contributions in the context of a history of all other contributions made by each party. In Trott (quoted with approval from the Full Court in M & M), I said:
“In my view the ‘West & Green’ approach does not fit comfortably with how the court assesses contributions in relation to other property and assets. The husband’s initial contribution to the superannuation (and there is no evidence as to what it was) is eroded over time by contributions made by each party during the course of cohabitation. The wife’s contributions as parent after the separation have to be taken into account.”
Counsel for the wife seeks, based on the wife’s contributions, a 35 percent adjustment in respect of category 2 superannuation interests.
Counsel for the husband submits that I should find the wife has only made a 10 percent contribution to the category 2 superannuation interest.
There is a distinction to be drawn between the contributions the wife has made towards the part of the husband’s superannuation interest that he receives because he was hurt on duty and the part of the superannuation interest that he will receive whether or not he had been hurt on duty. I am satisfied, taking into account the myriad of contributions both the parties have made during the time that they have been together, that the wife should be entitled to a 35 percent adjustment of the category 2 superannuation interest.
As I have said in Trott, it is important to know at the end of step 2 what splitting order (if any) is proposed given the need in step 3 to consider the matters set out in ss 79(4)(d) - (g) of the Act.
Superannuation - proposed orders
Counsel for the husband submitted that I should simply make a splitting order in accordance with the percentage interest that I find is consistent with the wife’s contributions to category 1 and category 2 superannuation (he preferred that course to any adjustment being made out of capital). On the other hand counsel for the wife sought orders that would wholly adjust against other assets the contribution that the wife had made to both category 1 and category 2 superannuation interests.
If I took the valuation of the pre and post aged 60 income streams and applied those valuations to my contribution findings, then the wife would receive from the non-superannuation assets $223,857.65 in relation to adjustments based on contributions for pools 2 and 3 (the calculation is $650,308 x 10% + $453,791 x 35%).
The amount of $223,857.65 is 33.5 percent of the non-superannuation assets ($223,857.65 ¸ $667,919).
If I otherwise divided the non-superannuation assets equally, then the wife would receive 83.5 percent of the non-superannuation assets and the husband 16.5 percent of the non-superannuation assets and the husband would retain all payments in the future from his police pension.
I do not think that it would be just and equitable for the husband to receive such a small percentage of currently available disposable assets.
Based on contributions, I provisionally propose as part of the s 79 order to make a percentage splitting order of 10 percent in the wife’s favour in relation to category 1 superannuation interests and a percentage splitting order of 35 percent in the wife’s favour in relation to the category 2 superannuation interests. I will consider at the fourth step whether that proposed order is just and equitable.
Procedural fairness to the trustee
The husband on 10 October 2008 had provided State Super with notification of the orders he had sought. The original order 3 that was sought was in the following terms:-
“That a base amount of $100.00 per week until 21.10.2022 be allocated to the wife out of the pension entitlement held by the husband with State Super.”
Exhibit 13 is a response by State Super dated 15 October 2008.
By implication, the trustee indicated that they did not have a problem with a splitting order being made but said:-
“We believe that the terminology used is inappropriate under the Family Law Splitting Legislation. The Trustee requires that the orders be worded in line with section 90MT(1)(b) of the Family Law Act 1975 and that they specify a percentage that is to apply to all splittable payments in relation to the member’s interest in the Fund. Furthermore, it is not possible, nor is it the intention of the splitting legislation for orders to specify an end date that is to apply in relation to the splitting payment.”
As I said during discussions with counsel, I was unaware of any legal reason why a base amount order could not be made against the husband’s superannuation interest under s 90MT(1)(a), but in any event counsel for the husband has sought to amend his application as set out above and seek a percentage splitting order. Furthermore, I indicated that I had no understanding as to why the trustee asserted that an order could not be crafted that expired at a particular date and applied only to splittable payments made prior to that date. The letter from the trustee does not indicate that they seek to be heard in the proceedings nor has the trustee sought to do so.
The trustee in a letter dated 15 October 2008 takes issue with a base amount being specified and an end date being specified. Whilst I have expressed the view that neither of those objections are valid, given that the order I propose involves neither of those formulations, the objection by the trustee in the letter has no relevance and consequently there is no question of lack of procedural fairness to the trustee in respect of the orders that I propose and I dispense with any Rule that has not been formally complied with that relates to notice being given to a trustee.
Commutation
The husband has indicated that he does not intend to commute his pension to a lump sum.
The orders that I make are based on the assumption that he does not commute, but there still should be the ability to do so if both parties consent in writing.
Normally the husband has the capacity to request the trustee to partially commute his pension to a lump sum at age 55. If the wife agrees to this in writing, the wife would receive 10 percent of that lump sum and 10 percent of the remaining pension until the husband was aged 60.
If the wife gives her written consent, the husband can choose to commute at age 60. In those circumstances the wife would receive 35 percent of the superannuation interest which has been commuted to a lump sum.
SECTION 79(4)(d) - (g) FACTORS
Counsel for the wife argues that the wife is entitled to a further adjustment in her favour on account of:
139.1.The disparity of the parties’ respective earning capacity;
139.2.The wife’s lack of superannuation, and her lack of opportunity to accumulate significant superannuation entitlements;
139.3.Her major ongoing parenting role of boys who are aged 6 and 4.
It is my view in this case that it is appropriate when considering adjustments under ss 79(4)(d) - (g) that one looks at the overall net property and superannuation interests together.
In doing that regard needs to be had to the findings in relation to contribution with respect to superannuation and the proposed splitting orders.
Counsel for the wife submits that an allowance of 5 percent of the overall assets (as a cross check, this is 13.26 percent of the non-superannuation assets) would be appropriate.
Counsel for the husband proposes that if orders are made in accordance with the wife’s submissions in respect of contributions, then an adjustment somewhere between 0 and 5 percent should be made in favour of the wife.
The husband is 44 years of age. The wife is 42 years of age.
Apart from the husband’s post traumatic stress disorder, both are in good health. The husband has a superannuation entitlement and is in receipt of a pension from State Super. As a medically retired police officer he will continue to have a weekly income stream of 90 percent of $958.68 per week (which amount will be indexed).
The Full Court in Bartlett & Bartlett (1996) FLC 92-721 cautioned that “care...must be taken if that approach [the approach of unevenly splitting a superannuation interest based on contributions that one of the parties has made to it] is adopted, to include in the consideration, the financial resource being that proportion of the present value of the superannuation quarantine after the application of the formula”.
There is force in the submission made by counsel for the wife that the disparity in the parties’ superannuation entitlements is a matter which attracts consideration of a further adjustment in the circumstances of this case.
The husband concedes that he is physically and mentally capable of sustaining appropriate gainful employment, provided such employment is not that of a police officer or any work which involves similar duties, eg security guard or bouncer.
It is asserted on behalf of the husband that his employment opportunities are limited in so far as he needs to maintain his role as parent of the children (five nights; six or five days per fortnight) but as I have said, in a normal working week the children are with their mother on seven days a fortnight and with their father three days a fortnight.
Currently that arrangement requires the husband to travel from V to Newcastle. This is said to be a factor in the husband’s favour because the mother moved away.
Whilst counsel for the husband mentioned Kennon in the context of his submissions about the mother moving away, it was difficult to understand the basis upon which that reference was made. The father in fact could choose to move closer to where the children live the majority of their time but I understand that he enjoys the activities at the V property and may wish to attempt to stay there. That is a lifestyle choice by him. It certainly is not a choice that he would make if he was looking to maximise his financial advantage.
The work he does in his capacity as farmer and the duties associated with the running of the former matrimonial home at V could only be seen as recreational in their nature.
The husband also works in the capacity of a driver, after having started a business. The potential of that business was not the subject of any special focus during cross examination. The husband agreed that he had also done some work for Mr T who also used to be a police officer. Mr T now has a building company. The extent of the work that the husband did with him from time to time was not the subject of any great examination.
Suffice to say, the husband is physically capable of meaningful employment, and subject to the restrictions referred to in these reasons, his earning capacity is not compromised.
The wife will have some superannuation entitlements with AMP and REST after the division of the assets.
The wife is physically and mentally capable of sustaining appropriate gainful employment. At the moment she still has a child who is not yet going to school with her seven out of ten working days a week. She finds employment on the days when the children are not with her. The wife is currently working on a casual basis for 15.5 to 17.5 hours per fortnight as a sales assistant outside of Newcastle. She said that she thought that it might be difficult in Newcastle to find work during school hours, but she has not thought about doing so at this stage.
A spousal maintenance order was made in favour of the wife on 2 February 2007 providing her with a lump sum of $29,000, being $400 per week for a period of 52 weeks, $20,800 plus the remainder of $8,200 to re-establish herself in a home in Newcastle.
The order proposed in relation to splitting the husband’s current pension (10 percent to the wife) is unlikely to have any significant effect on the assessment of child support payable by the husband to the wife. It is likely that the husband will pay slightly less child support but that that will be offset by the income stream the wife receives as a result of the splitting order.
I conclude that there should be an adjustment in the wife’s favour of 7.5 percent of the assets in pool 1.
JUST AND EQUITABLE
As has been said, no splitting order is sought by the wife. She wants to be able to obtain the whole of the adjustment pursuant to her claim under s 79 of the Act in cash so that she has capital to purchase an encumbered home for herself and the children.
It is argued that it is just and equitable to divide the assets in a way that would make an adjustment to the wife from the non-superannuation assets presently available.
During submissions counsel for the husband made it clear that the husband would prefer that both parties receive a portion of capital and that a splitting order be made in the wife’s favour to balance any percentage split that is otherwise just and equitable in this case.
On the wife’s proposal, the husband would receive his pension intact and his vehicles from which he proposes to earn a living.
Given the adjustment that I have found should be made for ss 79(4)(d) - (g) matters, if no splitting order was made the wife would receive 91 percent of the assets which are currently disposable. I do not consider that to be a just and equitable distribution of the assets. I propose to make an order whereby the wife will receive 57.5 percent and the husband 42.5 percent of the pool 1 assets. The wife will receive 10 percent of splittable payments from pool 2 and 35 percent of splittable payments from pool 3.
In circumstances where the husband now plays a significant co-parenting role, I do not consider that it is just and equitable for an adjustment of property to take place whereby the wife takes all of the current tangible assets and the husband takes assets which will progressively become available over the long term.
The distribution of pool 1 will be as follows:-
| H gets 42.5% | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | V property | 100% | $480,000 |
| 2 | Quad bike | 100% | $1,200 |
| 3 | Motor bike | 100% | $1,500 |
| 4 | Mazda | 100% | $37,000 |
| 6 | Boat and trailer | 100% | $2,500 |
| 7 | Furniture and contents at V property | 100% | $3,000 |
| 9 | Horse float | 100% | $2,000 |
| 10 | Farming equipment | 100% | $12,000 |
| 11 | Cattle | 100% | $12,500 |
| 12 | Crop | 100% | $8,000 |
| 13 | Horses and gear | 100% | $3,500 |
| 14 | Prime mover | 100% | $34,000 |
| 15 | Tipper trailer | 100% | $26,000 |
| 16 | Flat top trailer | 100% | $9,000 |
| 17 | AMP Building Society account | 100% | $50 |
| 18 | Central West Credit Union account | 100% | $500 |
| 19 | Addbacks in accordance with discussion in the reasons for judgment | 100% | $50,000 |
| 20 | Monies drawn down on loan account on 4.7.06 | 100% | $2,000 |
| Item No. | Description | Percentage | Value |
| 24 | Central West Credit Union | 100% | $45,000 |
| 25 | ATO CGT debt | 100% | $17,500 |
| 26 | Farm/crop cost | 100% | $14,000 |
| H pays W | $324,384 | ||
| Net Assets | $283,866 | ||
| W gets 57.5% | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 5 | Holden Astra motor vehicle | 100% | $23,000 |
| 8 | Furniture and Contents | 100% | $12,000 |
| 21 | Superannuation - AMP police | 100% | $31,999 |
| 22 | REST Superannuation | 100% | $8,170 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 23 | ATO CGT debt | 100% | $15,500 |
| W receives | $324,384 | ||
| Net Assets | $384,053 | ||
As can be seen, in order for the husband to retain the V property and the other assets in his possession, it would be necessary for him to pay to the wife the sum of $324,384. Standing back and looking at the distribution of assets on an overall basis, I find that this distribution achieves a just and equitable alteration of the property and assets of the parties.
In the event that there needs to be a sale of the V property then the wife is entitled to $324,384. The agreed value of the matrimonial home is $480,000. The wife’s entitlement to a percentage of that property is 67.6 percent ($324,384/$480,000).
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
Associate:
Date: 2 April 2009
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