Schuyler and Paige

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHUYLER & PAIGE

[2018] FCCA 610

Catchwords:
FAMILY LAW – Application for property adjustment orders between de facto spouses – assessment of contributions – orders made.

Legislation:

Family Law Act 1975, ss.90SM, 90SF

Cases cited:

Kowaliw and Kowaliw [1981] FamCA 70

Applicant:

MR SCHUYLER

Respondent:

MS PAIGE

File Number:

PAC 2438 of 2015

Judgment of:

Judge Newbrun

Hearing dates:

8, 9 September 2016, 22 May 2017

Date of Last Submission:

5 December 2017

Delivered at:

Parramatta

Delivered on:

14 March 2018

REPRESENTATION

Counsel for the Applicant:

Ms Judge

Solicitors for the Applicant:

A J & Associates Lawyers

Counsel for the Respondent:

Mr Gardiner

Solicitors for the Respondent:

Slater and Gordon Lawyers

ORDERS

Within three months the husband shall pay to the wife the sum of $25,200.
Simultaneously with the above payment to the wife, the wife will do all such acts and things and sign all necessary documents so as to transfer to the husband all of her right, title and interest in the Property A property situated at Property A in the State of New South Wales.
That simultaneously with the transfer set out above the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the above property and replace it with a mortgage to the party acquiring the above property alone.
That subject to the preceding Order, the husband remain liable for and indemnify the wife in respect of the home loan with (omitted mortgagee) which the husband and wife hold in their names and secured by way of mortgage over the above property.
Should the husband fail to pay to the wife the above sum of $25,200 pursuant to Order (1) above, then the above property shall be sold and from the net proceeds of sale, the wife shall be paid the said sum of $25,200 and the balance of the proceeds of sale shall be paid to the husband.
That the wife be declared the sole owner at law and in equity as between the husband and herself in respect of the interest she holds in the property at Property B in the State of New South Wales.
That subject to the preceding Order, the wife remain liable for and indemnify the husband in respect to the home loan with (omitted mortgagee) which the wife holds in her name and secured by way of mortgage over the Property A property.
The husband shall be entitled to retain ownership of all other items of property presently in his possession, name and control, including but not limited to the following:
(a)Monies in bank accounts in his name;
(b)Motorcycle, (omitted registration)
(c)Furniture, furnishings, jewellery, shares, and personal effects in his possession;
(d)Superannuation.
The wife shall be entitled to retain the ownership of all other items of property presently in her possession, name or control including but not limited to the following:
(a)Monies in bank accounts in her name;
(b)Furniture, furnishings, jewellery, shares, and personal effects in her possession;
(c)(omitted) motor vehicle, (omitted registration);
(d)Superannuation.
That in the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of these Orders made herein, then the Registrar of the Court shall be appointed pursuant to section 106(A)(1) of the Family Law Act 1975 (Cth), to execute such Deed or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the said Deed or instrument, upon the Registrar being satisfied of such refusal or failure, verified by way of affidavit.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2438 of 2015

MR SCHUYLER

Applicant

And

MS PAIGE

Respondent

REASONS FOR JUDGMENT

Introduction

This was the Final Hearing of property proceedings between the Applicant de facto husband (hereafter “the husband”) born (omitted) 1974, aged 44 years, and the Respondent de facto wife (hereafter “the wife”) born (omitted) 1966, aged 52 years.
It was common ground that the parties commenced cohabitation in about February 2010. The wife’s mother also resided with the parties, and with the husband at certain times, whilst the wife was deployed overseas in her work. There were no children of the relationship. The husband has children from a prior relationship for whom he pays child support.
During the relationship, both parties worked for (employer omitted)
Two properties were purchased during the relationship: a property at Property B (“Property B property”), which was placed in the sole name of the wife, and a home unit at Property A (“Property A property”) being placed into the parties’ joint names.
The parties separated on a final basis on 31 January 2015, at which time the husband moved into the Property A property and the wife remained residing at the Property B property.

Parties’ Proposals

The husband sought Orders as set out in his amended Case Outline, (Exhibit I).
Inter alia, the husband sought Orders that the wife transfer to him her interest in the Property A property (and that the parties discharge the mortgage on that property, with the husband taking a mortgage to replace the former mortgage); that the wife be declared the sole owner of the Property B property (and remain liable for the mortgage over that property); that the parties each retain ownership of all other items of property presently in their possession, name and control (including monies in bank accounts, furniture and motor vehicles); and that the husband receive $50,000 by way of superannuation split from the wife’s interest in her (omitted superannuation).
The wife sought orders as set out in her Case Outline (Exhibit K), summarised as follows:
1.That the wife retain sole ownership of the Property B property and remain liable for the existing loan secured over the property.
2.That the Property A property be sold and the net proceeds of sale divided equally between the parties.
3.That each party retain all other property including superannuation held in their respective names and/or possession.

Material Relied Upon

The husband relied upon the following documents:
a)Initiating Application filed 25 May 2015;
b)Affidavit of Mr Schuyler filed 26 August 2016 (excluding paragraphs 52, 53, and Annexures “A” and “B”);
c)Financial Statement of Mr Schuyler filed 26 August 2016.
The wife relied upon the following documents:
a)Response filed 9 July 2015;
b)Affidavit of Ms Paige filed 15 August 2016;
c)Affidavit of Ms P (wife’s mother) filed 16 August 2016;
d)Financial Statement of Ms Paige filed 15 August 2016.
The following exhibits were relied upon:
a)(bank omitted) subpoenas (Exhibit A: tabs in Sleeve 5);
b)(omitted) credit union loan application of husband (Exhibit B);
c)Employment records re: husband (Exhibit C: (omitted) subpoena Sleeve 6);
d)Proposed Minute of Order, relating to financial disclosure (Exhibit D);
e)Respondent’s Tender Bundle (Exhibit E; MFI1);
f)Conditional loan approval letter from (omitted mortgagee) bank to the Applicant and Ms J dated 22 March 2017 (Exhibit F);
g)Bank statements from (omitted) bank from 23 December 2009 to 2015 (Exhibit G: blue highlight and flagged);
h)Applicant husband’s Outline of Submissions (Exhibit H);
i)Applicant husband’s Amended Case Outline (Exhibit I);
j)Balance sheet (without handwritten amendments) (Exhibit J) (but note that each party provided a separate balance sheet to the Court after the conclusion of the final hearing);
k)Case Outline of the Respondent wife (Exhibit K);
l)Short outline of the Respondent wife’s submissions (Exhibit L)

Evidence

The wife first commenced employment with the (employer omitted) in 2003, and the husband in 2004.
The parties first commenced living together at a rental property at (omitted), which the wife had already occupied with her mother. The wife paid the rent of about $860 per fortnight until about July 2011 when the Property B property was purchased.
At cohabitation, the wife owned a car worth about $20,000. She also had household contents.
The wife also had a significant amount of superannuation. She had been a member of her superannuation scheme since about 1988/1989.
At about the time of cohabitation, the husband owned a car, valued at about $7,000, had cash of about $2,000 and debts of about $27,000 (Exhibit B), and had some personal effects. Shortly after cohabitation commenced, he sold this car and purchased a (vehicle omitted) with the proceeds, including a loan of about $31,000 from the (bank omitted).
The wife was deployed by the (employer omitted) to (country omitted) from about September 2010 to September 2011, during which time the wife spent about twelve weeks in Australia. The husband also visited the wife in (country omitted), staying for two weeks on each occasion.
The wife was then deployed to the (country omitted) from about July 2012 to July 2014; the wife worked sixteen week blocks before she returned to Australia for four weeks leave.
Whilst the wife was deployed overseas, she was paid significantly higher than her normal wage. She was paid various living away from home entitlements, and her income whilst overseas was exempt from tax.
From 2010 to 2014, the wife’s net income for each year ranged from about $80,208 to $169,661.
The husband’s gross income from July 2010 to the end of June 2014 ranged from about $73,000 to about $106,000. His earnings for the 2015 financial year up to 8 March 2015 was $33,429.
In about July 2010, the husband was deployed to (country omitted) for sixteen weeks; from about December 2013 to January 2014 to (county omitted); and to Darwin from about March 2014 to April 2014.
The parties opened a joint bank account with the (bank omitted) in late June 2010. Both parties made payments into this account by transferring funds from their respective bank accounts.
The wife made regular transfers into the joint account from August 2010 to separation in January 2015, being initially $100 per fortnight; from January 2011, $500 every fortnight; from August 2011, $1,500 every fortnight; and from March 2013, $1,600 every fortnight until separation.
From August 2010 the husband made fortnightly payments into the joint account of $300, which later increased in August 2011 to about $750 per fortnight. By about January 2013 the husband was paying about $800 per fortnight, and such latter payments continued until separation.
In May 2011 the Property B property was purchased for $400,000. The wife paid the deposit of $20,000. This property was placed in her name.
A mortgage of $380,000 was obtained through (omitted mortgagee) for the balance. The loan repayments for the mortgage were debited from the joint account.
All of the other major outgoings of the parties, including utilities, were paid for from the joint account.
At purchase, the Property B property required minor works. The husband provided some organisational assistance in this regard. It was habitable nevertheless. The parties did some paint work together a short time later.
The husband organised some tradesmen to attend upon the Property B property to carry out some repairs. He dealt with the Local Council and insurance officers in relation to certain previous illegal building works having been carried out at the property, and needed to take some time off work with some reduction of his income relating to this time off.
The parties both contributed towards usual household chores and domestic duties when living together.
The Property B property was the parties’ principal place of residence from July 2011 until their separation at the end of January 2015 (whilst noting the parties’ deployments overseas during the relationship, in particular the wife’s deployments).
The wife’s mother also occupied the Property B property during this period. The wife’s mother purchased the groceries and other household items during the periods when the wife was deployed overseas; she spent an average of $150 per week. She did not make any discrete contribution for board or utilities.
The wife’s mother did the majority of the cleaning and maintaining of the home at this property prior to having a fall at the beginning of 2014. The husband occasionally mowed the lawns; however, by reason of the husband being deployed, they were usually mowed by a friend of the husband’s. A pool handyman maintained the pool.
In about the second half of 2012, the wife’s mother and the husband had a disagreement, resulting in the wife’s mother no longer doing any domestic chores (such as cooking, washing and ironing) for the husband, which she had been carrying out for the husband prior to this time.
During the parties’ relationship, the wife’s mother was reasonably independent. She ceased driving in November 2012 by reason of eye problems. She continued to perform household duties.
Whilst the wife was deployed overseas with the (employer omitted), the husband would take the wife’s mother to some of her medical related appointments and occasionally grocery shopping. He provided some assistance to her when she sustained a hip fracture from about January 2014.
When the wife returned to Australia in early 2014, she arranged for various support services to be available to provide support for her mother.
The Court rejects the husband’s factual contentions as to the level of assistance he afforded the wife’s mother whilst the wife was deployed overseas.
In January 2014, the parties separated briefly, and the wife paid a sum of $15,000 to the husband, arising out of a previously discussed proposed financial agreement between the parties.
In February 2014 the parties purchased the Property A property as an investment. The purchase price was $235,000. The wife paid the deposit of $23,500 from her savings. This property was placed in their joint names.
A mortgage loan was obtained through (omitted mortgagee) for the sum of about $221,000 for the balance. A separate investment account was set up.
The husband paid about $8,700 for stamp duty and legal fees.
The rent received for the Property A property was about $280 per week, and was paid into the investment account. The mortgage repayments of about $900 per month were debited from the same account.
The husband paid about $125 per week for other expenses for the Property A property such as utilities and levies.
In June 2014, the wife commenced work for (employer omitted) in Sydney. By this time, the wife’s mother was becoming less mobile due to recurring hip problems.
In August 2014, the wife took five months’ carer’s leave so she could care for her mother, who had a second hip replacement in September 2014. She received her normal pay during this time.
The husband was made redundant in July 2014. He received about $83,000.
The husband spent the following sums for the Property B property: $5,000 towards solar panels, $3,000 for bathroom renovations, and about $3,000 for general maintenance. Both parties paid for window replacement at this property.
The wife also contributed about $5,000 towards the solar panels for the Property B property.
The husband spent about $5,000 on renovations for the Property A property.
From about July 2014 until about mid-October 2014, the husband was unemployed. He then commenced employment with (employer omitted), where he remained employed for the remainder of the relationship. The husband’s work was based in (country omitted). He was a fly-in-fly-out worker where he would be away for two weeks at a time before returning home for two weeks.
The husband spent about $34,000 from the above redundancy payment in relation to gambling activities.
Throughout the relationship, the wife always paid additional amounts into her superannuation. From 2013 she increased these contributions from 5% to 10% of her gross pay, which was in addition to the contribution made by her employer.
The parties separated finally in January 2015.
The wife remained living at the Property B property. She remained solely responsible for meeting the mortgage repayments on the home loan for that property, being $500 per week, including other outgoings for the property such as maintenance and utilities.
In July 2016, the wife refinanced the mortgage over the Property B property. The balance owing of $443,000 to (omitted mortgagee) was refinanced through (omitted mortgagee), with the principal amount being $483,000. The wife had borrowed additional funds to cover legal costs associated with these proceedings.
The wife, in March 2016, changed motor vehicles. She traded in the motor vehicle she had owned at the time of separation. The trade-in was used to pay off a personal loan held by the wife with (bank omitted). The wife now owns a 2016 motor vehicle, with the purchase price being $47,900.
The husband moved into the Property A property immediately following separation, and has been meeting the mortgage repayments and outgoings. The husband had rented the Property A property for about ten weeks in about December 2015, but the tenant only paid about four weeks’ rent and had to be evicted.
The husband and his girlfriend Ms J obtained conditional approval for a home loan from (omitted mortgagee) on 22 March 2017 (Exhibit F). The husband stated that Ms J had a taxable income in 2016 of $138,000. This conditional loan approval was based upon the assistance of Ms J.
At the final separation in January 2015, there was about $35,000 in the (omitted mortgagee) offset account number (omitted). These funds comprised the wife’s earnings. This offset account was linked to the home loan joint account for the Property B property.
For the year ending 30 June 2016, the wife’s income from her employment was $108,125. As at 22 May 2017 the wife was earning $105,000 gross per annum. The wife intends to remain employed with (employer omitted).
The husband was earning “on average $1,300 per week” at the time he made his Affidavit in August 2016, stating his occupation as (omitted).
As at 27 June 2017, the husband asserted that he was earning $48,600 gross per annum from his employment as (omitted) (see the schedule of earnings sent by the parties to the Court).
However, the husband was earning $2,100 per fortnight after tax in May 2017 in (occupation omitted) with (employer omitted), and during the 2013 tax year he earnt some $105,613 with the (employer omitted). In the husband’s amended Case Outline (exhibit I) it was stated that the husband was working for (employer omitted) “and will shortly re-apply” to the (employer omitted), and that the parties’ earning capacity was similar.
The husband conceded in his Affidavit that at certain times when he had time off work he did frequent a number of hotels and he did gamble on poker machines, with amounts he spent coming from his personal account.
Exhibit E is a bundle of bank statements showing, inter alia, ATM withdrawals by the husband from his (omitted) bank account from February 2010 to the end of January 2015, with ATM withdrawals from the (businesses omitted) totalling $94,484.
The husband was cross-examined extensively in relation to Exhibit E, being his (omitted) bank account withdrawals at the various hotel establishments including the (business omitted). The husband, during this cross-examination, made numerous concessions relating to his gambling activities, including the fact that he had had difficulties with gambling in 2010, 2011, and 2012. He conceded that during the period from about February 2010 to January 2015, the majority of monies withdrawn from his bank account were utilised to play poker machines, with the husband referring to some 90% of the withdrawals being used for gambling.

The Court finds that the majority of the above funds of $94,484 were spent by the husband gambling on poker machines, with such funds being predominantly withdrawn from his personal bank account; this bank account with (omitted) was an account into which the husband’s income was deposited. The husband also spent about $34,000 from his redundancy payment on gambling activities.
The wife also gambled on poker machines from time to time, but to a much lesser extent than the husband. The wife’s mother also gambled on poker machines from time to time, and occasionally made withdrawals from the wife’s (omitted) Bank account referred to immediately below.
Exhibit G is a bundle of bank statements showing, inter alia, intermittent withdrawals by the wife and her mother (when the wife was deployed overseas) from the wife’s (omitted) Bank account, from February 2010 to January 2015, often from establishments such as the (omitted), and totalling $15,640. A significant proportion of these funds were used by the wife for gambling on poker machines.
The case which has come to define the scope of “waste” in the family law context and which is viewed as establishing legal “guidelines” for this Court is the frequently cited case of Kowaliw and Kowaliw [1981] FamCA 70; (1981) FLC 91-092 (“Kowaliw”).
In Kowaliw, Baker J made the following comments on the topic of “waste” at [10]:
[10] As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
[11] Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.
At [18] of Kowaliw Baker J reiterated his earlier comments by stating:
If a party has acted in a manner to which I have referred earlier … then such conduct in my view and the economic consequences that flow therefrom are clearly matters to which the Court may have regard pursuant to the provisions of sec. 75(2)(o).
The wife submitted, inter alia, that such gambling by the husband should be considered reckless conduct “in gambling almost one third of the net assets of the parties (and) is to be taken into account.”
The husband submitted, inter alia, that his contributions were not diminished by the use of some funds for gambling. He submitted that the wife also maintained her earnings, other than that which was placed into the parties’ joint account, for her own purposes.
The Court is not satisfied that the husband’s expenditure of the majority of some $94,484 on gambling activities should be found to be wastage of matrimonial assets.
This expenditure of the husband, during the parties’ relatively short relationship, was predominantly from his own surplus income (including from part of his redundancy payout), that was available to him after he had made financial contributions (albeit to a much lesser extent than the wife) to the parties’ joint account (and thereby to the properties), and to which the wife made no contribution.
Similarly, the wife’s much lesser expenditure on gambling activities in the sum of about $15,640, having been expended from the wife’s personal earnings, is not relevant in this context.

Property Adjustment

Pursuant to section 90SM(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), in property settlement proceedings, the Court may make such Order as it considers appropriate, in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them, altering the interests of the parties to the de facto relationship in the property. Such Order may include an Order requiring either or both of the parties to the de facto relationship to make, for the benefit of either or both of the parties to the de facto relationship, such transfer of property as the Court determines.
The Court, in determining property proceedings, should firstly identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property that is available for distribution between them. The Court should then determine whether it is just and equitable to make an Order altering the parties’ interests in such property. If the Court is satisfied that it is so just and equitable, the Court should then consider the contributions made by each of the parties pursuant to section 90SM(4) of the Act before looking at their future needs by reference to the factors set out under section 90SF(3) of the Act.

Balance Sheet

Each party provided a separate balance sheet to the Court after the conclusion of the Final Hearing. The balance sheet immediately below sets out the competing contentions of the parties from their respective balance sheets:

Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
ASSETS
1	Ms Paige	Property B		$ 650,000	$650,000
2	J	Property A		$ 350,000	$350,000
3	Ms Paige	(omitted vehicle)		$ 37,000	$ 45,000
4	Mr Schuyler	(omitted0 Motorcycle		$ 17,000	$ 17,000
Total		$ 1,054,000	$1,062,000
ADDBACKS
5	Ms Paige	Solicitors Trust Account		$Not agreed	$14,000
Total		$0	$14,000
LIABILITIES
6	Ms Paige	(omitted mortgagee) Low Rate Home Loan (omitted)		$ 443,000	$403,000
7	J	(omitted mortgagee) Fixed Rate Home Loan (omitted))		$ 223,000	$223,000
Total		$ 666,000	$626,000
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
8	Ms Paige	(omitted superannuation)	Defined Benefit	$ 396,488	$396,488
9	Mr Schuyler	(omitted superannuation)	Defined Benefit	$Not agreed	$206,166
10	Mr Schuyler	(omitted superannuation)	Defined Benefit	$5,200	$5,200
Total		$	$607,854
FINANCIAL RESOURCES
Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
11
12

Item No	Below are the wife’s comments as to disputed items
3.	W: (omitted vehicle) value is $37,000. Search conducted at redbook.com.au on 13 June 2017 for current mid-range private sale price.
5.	W: Add-back of $14,000 is not agreed by Wife. The wife contends this should not be included on the balance sheet.
6.	W: Mortgage as at 31 January 2015, being the date of separation. It is noted that the wife refinanced the property for $480,000 after separation.
9.	W: Not agreed by Wife as value is not pursuant to an official superannuation valuation. It is noted that value provided by the Husband is as per the Husband’s Form 6 information of 31 January 2016. The Wife’s super is pursuant to a valuation as at 31 January 2015, being the date of separation.

Item 3: the wife’s above contended value for her motor vehicle relates to her above asserted Redbook search, which is not evidence. The wife’s Financial Statement filed 15 August 2016 states that this motor vehicle was valued at $45,000, and that amount shall go into the balance sheet.
Item 5: there is no evidence before the Court relating to this disputed add back of $14,000 and it shall be removed from the balance sheet.
Item 6: the husband contends that the (omitted mortgagee) mortgage balance as at separation was $403,000. The wife contends that it was $443,000.
There is evidence relating to the (omitted mortgagee) mortgage balance. In the Affidavit evidence of the wife, paragraph 137, she states that in July 2016 she refinanced this mortgage. She states that there was a balance owing of $443,000 at the time of discharge. She states that the new mortgage is held with (omitted mortgagee) and the principal amount was for $483,000, having borrowed additional funds to cover legal costs associated with these proceedings. In cross-examination, the wife stated that she spent about $35,000 on legal fees. The husband’s Financial Statement filed 26 August 2016 contends that his 50% share of this mortgage was $221,500. The sum of $443,000 shall go into the balance sheet.
Item 9: the husband contends that his superannuation interest with (omitted superannuation) is valued at $206,166. However, he provided no persuasive evidence of this contended value. The husband’s Case Outline (Exhibit I) states that his superannuation interest at separation was E$177,000. The husband’s Financial Statement filed 26 August 2016 values his (omitted) superannuation interest at $177,000. In cross-examination, the husband stated he did not have a current valuation of this superannuation interest.
The husband’s contended value is not agreed to by the wife. She contends that the husband’s contended value is not pursuant to an official superannuation valuation; rather, the contended value by the husband is as per his Form 6 information of 31 January 2016. In the absence of evidence, and noting the above matters, this contention of the wife should be accepted. The amount of $177,000 shall go into the balance sheet.
The Court finds the assets and liabilities of the parties to be:

Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
ASSETS
13	Ms Paige	Property B		$ 650,000	$650,000
14	J	Property A		$ 350,000	$350,000
15	Ms Paige	(omitted vehicle)		$ 45,000	$ 45,000
16	Mr Schuyler	(omitted) Motorcycle		$ 17,000	$ 17,000
Total		$ 1,062,000	$1,062,000
ADDBACKS
17
Total		$0	$0
LIABILITIES
18	Ms Paige	(omitted mortgagee) Low Rate Home Loan (omitted))		$ 443,000	$443,000
19	J	(omitted mortgagee) Fixed Rate Home Loan (omitted))		$ 223,000	$223,000
Total		$ 666,000	$666,000
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
20	Ms Paige	(omitted superannuation)	Defined Benefit	$ 396,488	$396,488
21	Mr Schuyler	(omitted superannuation)	Defined Benefit	$177,000	$177,000
22	Mr Schuyler	(omitted superannuation)	Defined Benefit	$5,200	$5,200
Total		$578,688	$578,688

Accordingly, the Court finds the parties’ net non-superannuation assets to be $396,000. The Court finds the parties’ superannuation assets to be $578,688.

Section 90SM (3) of the Act

The Court is satisfied that it is appropriate in this case to alter the property interests of the parties in light of the breakdown of their de facto relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity. The parties join in seeking orders for property adjustment.

Contributions

The Court proposes to adopt a two pool approach, by dividing the assets into superannuation and non-superannuation pools.
The Court will firstly consider the non-superannuation pool of assets.
In assessing the husband’s contributions, the Court takes into account:
·The husband’s financial contributions to the parties’ joint bank account, from which mortgage repayments and other outgoings were made, but which were significantly less than those of the wife’s contributions (see below). Nevertheless, these financial contributions were of significance;
·The husband’s contributions towards maintenance of the Property B property, although this was not a significant contribution (and the Court refers, inter alia, to its discussion of the evidence relating to the extent to which the wife’s mother and husband carried out household tasks living in the same home);
·The husband’s organisation of tradesmen and dealings with Local Council and insurance officers in relation to the illegal building works at the Property B property, including his time off work with some loss of income during that time off;
·The husband’s payment of about $11,000 towards renovations and maintenance to the Property B property, as well as a joint contribution with the wife for window replacement;
·The husband’s payment of $8,700 in stamp duty and legal fees for the Property A property;
·The husband’s payment of about $5,000 on renovations to the Property A property, together with his replacement of the carpet and new garage door;
·The husband’s payment of $125 per week for other expenses for the Property A property such as utilities, levies and repairs;
·The husband’s payment of $2,300 for veterinary costs;
·Post separation, the husband has paid the outgoings on the Property A property, which is offset to a not insignificant extent by his having had the benefit of living in that property during that time to date (apart from the brief period when the property was rented out).
The Court does not accept the husband’s submissions as to his contended initial contributions at the commencement of the relationship; inter alia, the overseas trip and photo shoot were mutually enjoyed discretionary expenditure, and the Court otherwise notes his debt position at this time.
The husband submits that the wife left the relationship with about $35,000 in the offset account, and the wife has had the benefit of those savings. However, the wife’s evidence, which the Court accepts, is that these funds comprised her earnings with no contribution by the husband to those savings.
In assessing the wife’s contributions, the Court takes into account:
·The wife’s superior financial contributions to the parties’ joint bank account. These contributions were of significance;
·The wife’s payment of the deposit of $20,000 for the Property B property;
·The wife’s payment of about $5,000 towards the solar panels for the Property B property, as well as a joint contribution with the husband to window replacements at that property;
·The wife’s payment of $15,000 to the husband in about January 2014 arising from their brief separation at this time;
·The wife’s payment of the deposit of $23,500 for the Property A property;
·Post separation, the wife has paid the outgoings on the Property B property, which is offset to a not insignificant extent by her having had the benefit of living in that property during that time to date.
The parties’ homemaker contributions should be regarded as approximately equal during the time that they lived together at the Property B property.
The husband submitted that contributions should be assessed as to 55% to the wife and “in the vicinity of at least 45%” to himself, but applying to both non-superannuation and superannuation assets.
The wife ultimately submitted that the Court would conclude that contributions favoured the wife 72%/28%, excluding superannuation, motor vehicles and savings, and taking into account the husband’s wastage through his gambling activities.
The Court finds that the greater contributions of the wife should warrant a division of non-superannuation property of 70% in favour of the wife and 30% to the husband.
The Court will now deal with the superannuation pool.
The wife’s superannuation with (omitted) at commencement of cohabitation was about $148,000 (this was the wife’s evidence in cross-examination). She had been in the fund since about 1988/1989. She agreed that she had doubled her superannuation during the relationship.
Throughout the relationship, the wife always paid additional amounts into her superannuation. This was set at 5% of her gross pay. However, from 2013 onwards she increased this to 10%, which was in addition to the contribution made by her employer.
The husband’s Amended Case Outline (Exhibit I) states that his superannuation interest was E$100,000 at cohabitation.
The husband’s Case Outline (Exhibit I) states that his superannuation interest at separation was E$177,000. The husband’s Financial Statement filed 26 August 2016 states that his superannuation interest with (omitted) is to be valued at E$177,000. The Court’s final balance sheet reflects this figure of $177,000.
The husband had commenced employment with (employer omitted) in about 2004, roughly six years before the parties’ relationship commenced.
The husband is aged about 44 years, and the wife about 52 years.
There is no persuasive evidence, in the context of this relatively short relationship, that either party made relevant contributions to the other’s superannuation entitlements. The Court does not accept that the husband’s residing in the same residence as that of the wife’s mother in some way enabled the wife to take work deployments overseas with (employer omitted), thereby enabling her to increase her superannuation entitlements. For example, there is no persuasive evidence that had the husband not provided the wife’s mother with the occasional assistance he provided to her, the wife would not have taken up the overseas deployments in her work. In this context, the Court refers to its prior discussion as to the manner in which the husband and wife’s mother lived in the same household and interacted during the parties’ relationship, including the level of independence of the wife’s mother during that relationship.
During the course of this relatively short relationship, the wife decided to spend significant employment periods deployed overseas, which was not objected to by the husband. Similarly, the husband made his own decisions to spend time working away from Sydney, which was not opposed by the wife.
Each party should retain their own respective superannuation entitlements.

Section 90SF(3) of the Act

Both parties are in reasonable health.
Both parties have a capacity for remunerative employment. The wife will retire earlier than the husband if they retire at the same age.
The Court finds the parties’ earning capacities to be comparable.
The Court does not take into account in the husband’s favour, his assistance to the wife’s mother, as previously discussed, during the course of the parties’ relationship, when the wife was deployed overseas. Such assistance does not fall within section 90SF(3)(d) or (e), and, in the view of the Court, the justice of the case does not warrant such assistance being brought to account under section 90SF(3)(r) of the Act.
The Court refers to the parties’ respective superannuation entitlements, whilst noting their respective ages.
The husband, in his Outline of Submissions, contended for an adjustment of no less than 5% overall in his favour (the Court noting that in final oral submissions the husband contended for a much greater percentage adjustment). Inter alia, he points to the significant disparity in the parties’ circumstances, the wife’s significant superannuation entitlement, and the husband’s contended support and welfare of the wife’s mother.
The wife submits that there should be no adjustment pursuant to section 90SF(3).
In the view of the Court, there should be no adjustment pursuant to section 90SF(3).

Conclusion

The husband seeks to have the wife transfer to him her interest in the Property A property.
In this context, he refers to Exhibit F, being the conditional loan approval from (omitted mortgagee) to himself and his girlfriend of 22 March 2017 (referring to a conditional loan approval of $318,000).

Again, the husband and wife should retain their respective superannuation entitlements of $182,200 and $396,488. The husband is aged 44 years and the wife 52 years, and their earning capacities are comparable.
The parties’ net non-superannuation assets are $396,000.
The parties’ contributions have been assessed by the Court at 70% in the wife’s favour; 70% of $396,000 is $277,200 and 30% is $118,800.
The wife now owns her car, valued at $45,000, and the Property B property is in her name, with a net value of $207,000. These assets total $252,000. She will need to receive $25,200 from the husband to make up her 70% entitlement.
The husband wishes to retain the jointly owned Property A property, valued at $350,000 with a mortgage loan of $223,000.
Accordingly, the husband will be required to re-finance this mortgage loan of $223,000 and borrow $25,200 to pay to the wife (pursuant to the Court’s contribution assessment of 70% in favour of the wife), a total borrowing of $248,200.
The husband will accordingly be left with the Property A property, net $127,000, and his motorcycle valued at $17,000, which together total $144,000, less the borrowing of $25,200 to pay to the wife. This produces a net total of $118,800, being 30% of the net non-superannuation pool. The Court is satisfied that this represents a just and equitable property settlement, and it will be appropriate to make Orders reflecting such property settlement.
The husband should be given the opportunity to re-finance both the Property A property mortgage loan and borrow $25,200 to pay to the wife. He should be given three months to effect these borrowings. Otherwise the Property A property should be sold to allow the wife to be paid $25,200.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 13 March 2018

[2018] FCCA 610

14 March 2018

Key Legal Topics

Areas of Law

Family Law

Property Law

Equity & Trusts

Legal Concepts

Remedies

Jurisdiction

Procedural Fairness

Costs

Injunction

Statutory Construction