SCRIVEN & SCRIVEN
[2019] FCCA 2046
•26 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SCRIVEN & SCRIVEN | [2019] FCCA 2046 |
| Catchwords: HELD – The Wife considered to have made the greater contribution during the relationship as homemaker and in circumstances where that role was made more onerous due to the Husband’s overseas deployment and subsequent health difficulties – orders made for the Wife to receive 70% of the proceeds of sale from the former matrimonial home and the Husband to receive 30% of same – order for the Wife to retain all of her superannuation entitlement and for a splitting order in relation to the Husband’s superannuation such that the Wife receives 25% of same – parties otherwise agree which of their remaining chattels each is to retain. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79 |
| Cases cited: Norbis v Norbis (1986) FLC 91-712 |
| Applicant: | MR SCRIVEN |
| Respondent: | MS SCRIVEN |
| File Number: | MLC 7084 of 2018 |
| Judgment of: | Judge Bender |
| Hearing date: | 28 May 2019 |
| Date of Last Submission: | 28 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sweet |
| Solicitors for the Applicant: | J A Middlemis |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Not applicable |
ORDERS
The matter be adjourned to 17 September 2019 at 9:30am for mention.
AND THE COURT NOTES THAT:
(A)The matter has been adjourned to enable procedural fairness to be provided to the Husband’s superannuation fund. Upon proof of procedural fairness being provided to the Husband’s superannuation fund, orders will be pronounced in Chambers in accordance with the decision of this Court and the adjourned date vacated.
IT IS NOTED that publication of this judgment under the pseudonym Scriven & Scriven is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BENDIGO |
MLC 7084 of 2018
| MR SCRIVEN |
Applicant
And
| MS SCRIVEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the parties’ competing property application following the breakdown of their 18 year relationship.
The Husband seeks that he receive 30% of the net proceeds of the sale of the former matrimonial home after the sale costs, the mortgages registered on the property and agreed debts are paid and that he retains the chattels agreed upon by the parties.
The Husband also seeks orders that each party retain their own superannuation entitlements. This means the Husband would retain his Superannuation and Benefits Scheme which is now in the payment phase. He currently receives $3,049.00 gross per fortnight by way of a pension payment. Because the Husband’s superannuation is in the payment phase, it cannot be converted to a lump sum. The Wife would retain her Public Service Superannuation which has a value of $168,903 as at 30 June 2018.
The Wife is seeking orders that she receive 80% of the net proceeds of the sale of the former matrimonial home.
The Wife also seeks orders that there be a splitting order in relation to the Husband’s Superannuation and Benefits Scheme pension such that she receive 70% of same. She also seeks to retain her own superannuation.
Background
The Husband was born 1975 and is aged 43 years. He joined the Defence Force on 31 January 1995 and was discharged on grounds of ill health in 2014. He receives a Department of Veterans’ Affairs pension of $1,157.55 per fortnight and a Invalidity pension of $2,067.25 (net) per fortnight, a total of $3,224.80 (net). The Husband has re-partnered with Ms A and, on his evidence, lives between her home and that of his mother’s in City C. It is the Husband’s evidence Ms A provides him with no financial support.
The Wife was born 1978 and is aged 41 years. The Wife was employed by the Public Service as a specialist officer earning approximately $100,000 per annum. The Wife has been unable to work since August 2018 because of injuries sustained in a motor vehicle accident in 2017 and the subsequent development of severe mental health issues. The Wife is currently in receipt of income protection payments of $4,121.12 (net) per month. It is the Wife’s evidence these payments are only for two years. The Wife re-partnered after the separation however it is her evidence that this relationship is now over.
The parties commenced co-habitation in 1998/1999. At the commencement of their co-habitation the Wife had a son, Mr B Scriven born 1997, from a previous relationship. Mr B Scriven was always treated by the parties as their son and adopted the surname Scriven.
The parties married in 2001. There are two children born of the parties’ relationship, X on 1999 (19 years) and Y 2002 (17 years). Y remains living with the Wife and the Husband is now paying Child Support.
At the commencement of the relationship, the parties had nominal assets.
During the marriage, the Husband was based in City D and Canberra as well as being deployed overseas to Country E, Country F and Country G.
The Husband developed significant psychological injuries over some years as a result of his service in the Defence Force, including severe Post-Traumatic Stress Disorder (“PTSD”). In 2013 as a result of his mental health issues, the Husband also developed severe alcoholism. He was medically discharged from the Defence Force on 2 July 2014.
At or around the time of the Husband’s discharge, the parties purchased a farm at H Road Town I NSW (“the former matrimonial home”) as the Husband wanted space and to be in an environment that was familiar and comfortable. He had grown up on a farm. This move was supported by the Husband’s doctors. There is no evidence before the Court as to the purchase price or the initial borrowings of the parties to effect the purchase of the former matrimonial home.
After the Husband’s discharge from the Defence Force he received a number of lump sum payments including long service leave, lump sum superannuation back payments and compensation for his PTSD. It is the Husband’s evidence these payments were used to assist in the purchase of the former matrimonial home and for living expenses.
It is the Wife’s evidence that a large portion of the lump sum payments received by the Husband were expended by him on alcohol.
After his discharge, the Husband’s mental health and alcoholism was such that the Wife was declared his carer in 2015 and received a carer’s payment. The Wife was also appointed the Husband’s power of attorney.
Because of the Husband’s health issues, his superannuation entitlements with the Superannuation and Benefits Scheme have been in the payment phase since he was medically discharged in 2014. The Husband also holds a totally and permanently incapacitated (“TPI”) gold card which ensures his medical expenses will be met for life. It is not anticipated that he will be able to return to any form of paid employment.
The parties separated in January 2017 when the Husband left the former matrimonial home after being given an ultimatum by the Wife that she would end the relationship if he did not stop drinking. The Husband moved to Victoria for what the Wife understood to be a temporary break but they did not reconcile.
In July 2017, the Wife was involved in a motor vehicle accident in which she herniated disks in her back which compressed the nerves. The Wife continues to suffer significant pain and mobility limitations as a result of the injuries suffered by her in the accident.
The Wife has also developed severe psychological injuries as a result of the impact of the motor vehicle accident.
As a result of the Wife’s ongoing physical injuries from the motor vehicle accident and her severe mental health issues, the Wife has been on leave without pay since August 2018. As noted in paragraph [7] of this judgment, she is currently in receipt of income protection insurance.
Whilst the Wife genuinely wishes to return to work, it is unknown at this time if or when she may be able to do so.
The parties have placed the former matrimonial home on the market for sale. At the time of the hearing it had not sold, though offers had been received and were being considered by the parties. It is understood by the Court that the offers being made for the former matrimonial home are considerably lower than what the parties purchased the property for.
On 12 February 2019 an order was made in the following terms:
“1.That on or before 20th February 2019 the husbands solicitors shall write to the husbands superannuation fund requesting from that fund the following information:
(i) A description of the nature of the superannuation pension payments currently being paid to the husband; and
(ii) Whether a splitting order can be made with respect to the husbands Superannuation and Benefits Scheme pension; and
(iii) If a superannuation split can be made is the amount of the split capable of being converted to a lump sum payment to be paid to the wife and if so how; and
(iv) What impact would that have on the husband’s pension.”
In response to the correspondence sent to them by the Husband’s solicitors in compliance with the orders of 12 February 2019, the Commonwealth Superannuation Corporation sent the Husband’s solicitors an email dated 8 April 2019 which reads as follows:
“Dear Mr Middlemis
SCRIVEN & SCRIVEN - FAMILY LAW MATTER
SCHEME MEMBER - MR SCRIVEN
NON. MEMBER SPOUSE - MS SCRIVEN (Your Client)
We refer to your email dated 5 March 2019, regarding your client's family law matter, An administrative error had meant your original requests were not provided to the correct team to action and CSC apologises sincerely for this delay.
In relation to your request of 12 February 2019 we note that your client was directly supplied a Form 6 response on 13 March 2019 (as enclosed) that addresses most of your enquiries. However a direct response to your questions is also provided below;
(i) A description of the nature of the superannuation pension payments currently being paid to the husband:
Mr Scriven is currently in receipt of invalidity pension payments from his interest in the Superannuation and Benefits Scheme . Further detail is available at Whether a splitting order can be made with respect to the husband's Superannuation and Benefits Scheme pension;
Yes, a splitting order can be made. Please see the Superannuation and Benefits Scheme publication "Family Law and Splitting Super" for further information: https// A copy is enclosed.
(iii) If a superannuation split can be made is the amount of the split capable of being converted to a lump sum payment to be paid to the wife and if so how;
No, the splitting of a pension in the payment phase generally results in the non-member spouse becoming entitled to a Superannuation and Benefits Scheme Associate pension. Please see the below general information for more details.
(iv) What impact would this have on the husband's pension
The husband's Superannuation and Benefits Scheme pension is reduced with effect from the operative time of the family law split.
General Information
The split of the pension results in the non-member spouse becoming entitled to a Superannuation and Benefits Scheme associate pension with effect from the operative time. Only if the Associate pension is below the prescribed amount (currently $1,804.05 per annum) may the non-member spouse elect to receive benefits as a lump sum.
The Superannuation and Benefits Scheme associate pension is payable for the life of the non-member spouse, is not commutable and has no reversionary component. This means the associate pension ceases to be paid upon the death of the non-member spouse.
Calculation of the Superannuation and Benefits Scheme Associate Pension
Please note that the Superannuation and Benefits Scheme associate pension is calculated by applying the specified percentage to the value of the member spouse's pension, not to the current rate of the member spouse's pension.
The non-member spouse's pension is calculated by reference to the higher of the Family Law Value under the Family Law (Superannuation) Regulations 2001 or the Scheme Value under the Superannuation (Family Law- Superannuation Act 7976) Orders 2004, using the percentage specified in the Court Orders.
IMPORTANT
(1) The total of the fortnightly pension payments paid to both the member and associate following the split are not likely to be equal to the fortnightly pension payments received by the member prior to the split. This is because the formulae for calculating both the associate pension and reducing the original member's pension incorporate age and life expectancy factors specific to the member and the associate.
(2) The final calculation of the associate pension may not equate to the specified percentage set out in the Orders. This is because the specified percentage will be applied to the value of the benefit, as described above.”
The Law
Section 79 of the Family Law Act 1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
“(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.”
The matters to be taken into account under section 75(2) of the Act are as follows:
“(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.”
The High Court in the matter of Stanford v Stanford [2012] HCA 52 held that prior to making orders for the division of the property in which the parties have an equitable interest in accordance with the provisions of section 79 of the Family Law Act 1975 (“the Act”), the Court must first determine that is just and equitable that the Court make such orders.
The High Court in Stanford (supra) held that in the majority of matters the decision as to whether it is just and equitable for the court to make property orders is easily resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.
This is such a matter, and thus it is apparent it is just and equitable that orders be made adjusting property matters between the parties.
Prior to the decision in Stanford (supra), a trial judge would follow the four step approach as articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395 when determining how to alter property interests between the parties.
The four step process set out in Hickey is as follows. Firstly, the Court determines the nature of the property pool and attribute valuations to that property. Secondly, the Court considers the contributions of the parties to the property pool including direct and indirect financial contributions and non-financial contributions often in the form of homemaker or parent. Thirdly, and after considering entitlements based on contributions the Court determines whether any further adjustments to either parties entitlement is proper, given the considerations under s.75(2) of the Act. Finally, the Court stands back and considers whether the proposed division of the property is just and equitable pursuant to section 79(2) of the Act.
The High Court in Stanford (supra) and subsequently the Full Court in Bevan and Bevan [2013] FamCAFC 116 observed that this four step approach should not be rigidly followed.
However, the Full Court in Bevan (supra) also indicated that in the majority of property cases, the four step approach is an appropriate manner in which to approach the determination of the division of properties between parties once the Court is satisfied that such division is just and equitable.
I am satisfied that this is a matter where the four step approach of Hickey is the appropriate approach to be taken to determine a just and equitable division of property between the parties.
The Evidence
Given there was little factual dispute between the parties, it was agreed the matter would proceed on the basis of submissions only.
The Husband relies on his affidavits sworn 25 June 2018, 6 December 2019 and 17 May 2019. He also relies on his Financial Statement sworn 25 June 2018 and Outline of Case filed 6 February 2019.
The Wife relies on her affidavits sworn 21 November 2018, 25 January 2019 and 23 May 2019. She also relies on her Financial Statement sworn 21 November 2018.
The Issues
Having read the material relied upon by the parties and heard their submissions, the issues for determination in this matter in order to achieve a just and equitable division of property between the parties are as follows:
a)should the Court adopt a global approach to the assets for division between the parties or an asset by asset approach, especially given the Husband’s Superannuation and Benefits Scheme superannuation is in the payment phase;
b)should there be an adjustment in the Wife’s favour for the contributions by her arising from her care of the children whilst the Husband was posted overseas and the additional care of the Husband and the children required of the Wife because of the Husband’s health issues;
c)what should be the adjustment in the parties’ favour pursuant to section 75(2) of the Act and in particular:
i)in the Husband’s favour given his permanent disability; and
ii)in the Wife’s favour given her current inability to work and ongoing support of the parties’ daughter, and that the Husband has the benefit of an indexed pension for life as well as having his health costs paid for life; and
d)how does the Court “finalise” the matter when the Wife’s future health and capacity for employment is unknown, as is any entitlement she may have to a CTP payment following the 2017 motor vehicle accident.
Assets and Liabilities
The parties’ agreed assets and liabilities are as follows:-
Assets
H Road Town I $850,000 - $875,000 Westpac Mortgage ($662,594) ($662,594) Vendor Terms (secured by 2nd mortgage) ($25,000) ($25,000) Costs of Sale (estimated) ($20,000) ($20,000) $142,406 $167,406
Less agreed liabilities
J finance Loan
(in Wife’s name)$20,000 $20,000 Westpac Mastercard at separation (in Wife’s name)
$15,000 $15,000 K motor vehicle finance loan (in Wife’s name)
$7,000 $7,000 ATS loan at separation (in Husband’s name)
$11,000 $11,000 Net proceeds of sale $89,406 to $114,406
Superannuation
The Wife’s Public Service superannuation is currently at $168,903.
The Husband’s Superannuation and Benefits Scheme superannuation is currently in the payment phase.
Chattels
The parties do not agree as to the value of the chattels it is agreed each are to retain. The disputed values of those chattels are as follows:
| Chattels to be retained by the Husband | Husband’s value | Wife’s value |
| L motor vehicle | $5,000 | $10,000 |
| M motor vehicle | $2,000 | $2,000 |
| Motorcycle | $2,000 | $4,000 |
| Tools | $500 | $8,000 |
| $11,500 | $26,000 |
| Chattels to be retained by the Wife | Husband’s value | Wife’s value |
| Trailer | $3,000 | $1,500 |
| Ride-on Mower | $5,000 | $1,500 |
| $8,000 | $3,000 |
Neither party placed any independent sworn evidence before the Court as to the value of their chattels.
Given the disputed value of the chattels each party is to retain and the lack of any sworn evidence as to their value, it is not possible to determine the value of the chattels each party is to retain.
Accordingly, other than the Court noting that it is agreed each party will retain certain chattels, these chattels will not be included in the pool of assets for division between the parties.
Asset by Asset or Global Approach
When determining how property should be divided between parties, the Court can adopt either a global approach whereby the totality of the pool is calculated and a division of that total pool determined, or an asset-by-asset approach which involves the parties’ interests in each separate asset being determined individually and orders made that deal with each asset individually.
That either of these approaches is legitimate and an appropriate exercise of discretion under section 79 of the Act has been confirmed by the High Court in Norbis v Norbis (1986) FLC 91-712.
Given the Husband’s superannuation is in the payment phase and any splitting order in the Wife’s favour cannot be converted to a lump sum, it is appropriate that the Court adopts an asset by asset approach in this matter.
Contributions
It is submitted on behalf of the Husband that the Court should consider the parties’ contributions over what was a lengthy relationship to have been fairly equal.
At the commencement of the relationship neither party had assets of any great significance.
During the marriage each party was in paid employment and contributing to the welfare of the family to the best of their ability.
Whilst conceding that the Wife’s duties as homemaker and parent were made more onerous whilst he was posted overseas and particularly in the last few years of the parties’ relationship when the Husband’s mental health significantly deteriorated and he was consuming alcohol to excess, it is submitted that the Husband’s life was equally as difficult for him.
It was therefore submitted on behalf of the Husband that overall both parties contributed and supported each other to the best of their ability during their relationship.
It is submitted by the Wife that her contributions were made the more onerous as both homemaker and parent as a result of the Husband’s occupation and more particularly with the onset of his mental health issues resulting in the Husband’s disability reaching a level where she was officially his paid carer.
The Wife further submits that post separation, she was left to “pick up the pieces”. She argues that other than some limited financial support immediately after separation, she was left with the financial responsibility for the very large level of indebtedness on the former matrimonial home. At the same time, the Wife was supporting the parties’ daughter Y who was continuing at high school as well as managing Y’s significant health issues.
It is the Wife’s further submission that the financial responsibility for the matrimonial debts was made more onerous because of the injuries suffered by her in the motor vehicle accident in July 2017 and subsequent deterioration in her health and resultant financial stress when she was unable to continue in paid employment.
The health issues suffered by the Husband as a result of his service in the Defence Force are severe and for life. This meant however that for many years and particularly in the latter part of the parties’ marriage, the homemaking and parenting responsibilities as well as the responsibility to care for the Husband rested entirely on the Wife’s shoulders. As such her contributions to the family must be seen to have been greater than those of the Husband, albeit it is noted through no fault of the Husband.
Accordingly, the Court is satisfied that the Wife’s contributions were greater than those of the Husband.
Section 75(2) factors
As was appropriately submitted by Counsel for the Husband, if the Wife had not suffered the injuries that she did in the motor vehicle accident and her subsequent mental health issues such that she had been unable to continue in her employment with the Public Service, the Husband’s proposal would be very hard to argue against.
The difficulty for the Court is that it remains unknown what the Wife’s future will entail. That she is currently fully incapacitated from pursuing paid employment is not disputed. What is unknown is whether she will recover and if she does recover, the extent of any recovery and when that recovery will actually take place.
It is submitted on behalf of the Husband that if the Wife recovers and returns to work at her previous income level she will be on an income not dissimilar to that of the Husband. It is further submitted that if the Wife is able to return to employment she will be able to again contribute to her superannuation so that when she reaches retirement age she will have the benefit of a not inconsiderable capital payment. This contrasts with the Husband’s circumstances where the ongoing pension payment is all that now remains to him.
It is therefore submitted on behalf of the Husband that in all the circumstances that currently exist in this matter the appropriate outcome when contemplating section 75(2) factors is that he retain the entirety of his Superannuation and Benefits Scheme pension in the payment phase and that the Wife retain most of the proceeds of sale of the former matrimonial home as well as the entirety of her current superannuation entitlements.
It was further submitted on behalf of the Husband that if the Court is contemplating some form of splitting order in relation to the Husband’s superannuation entitlement, that it be limited to a period of time such that it ceases upon the Wife returning to employment.
The difficulty with such a proposal is that the information made available to the Court by the Husband’s superannuation fund does not enable the Court to make a splitting payment for a limited period of time. It is apparent from the material provided by the Husband’s superannuation fund that upon the making of a splitting order, the non-member’s spouse becomes entitled to a Superannuation and Benefits Scheme associate pension which is payable for the life of the non-member spouse. It is not commutable and has no reversionary component.
The Wife submits that her capacity to return to employment is a complete unknown even though she loves her job and is genuinely committed to doing everything in her power to address her health issues and to return to her position with the Public Service.
It is the Wife’s evidence however that she is genuinely concerned that if she is unable to get better and back to the person she was, she is going to end up on a disability pension on which she will have to support herself and continue to support the parties’ children, even after they turn 18.
It is the Wife’s submission that in these circumstances, and particularly given the parties’ very small pool of realisable assets, the only just and equitable outcome is that she receives the vast proportion of the net proceeds of sale of the former matrimonial home, retains her superannuation, which given her age she will not be able to access for many years, and that otherwise the Court make a splitting order in relation to the Husband’s superannuation so that she too has an income stream going forward.
It is the Wife’s evidence that she is not currently pursuing a Compulsory Third Party Claim (“CTP”) for the injuries she suffered in the car accident in 2017. It is her evidence that such a claim can only be pursued when her injuries are assessed as permanent and if her level of disability, if any, is of a certain percentage. She describes any such claim as being very much in the future and any potential claim as very limited.
Conclusion
This matter is very sad. The Court has before it two people who are struggling as a result of their health issues and whose asset pool is such that it is difficult to make orders that will provide either of them with assets and an income to comfortably move on with their lives.
The Husband’s superannuation which is now in the payment phase cannot be converted to a lump sum payment either in the hands of the Husband or, if a splitting order is made, in the hands of the Wife.
The parties’ only realisable asset are the proceeds of sale of the former matrimonial home and some chattels of small value. Upon sale of the former matrimonial home and the payment of the parties’ various debts it will realise somewhere between $90,000 and $114,000.
The Husband has re-partnered and is currently living between his mother’s and his new partner’s home. The Husband has a lifetime income stream that is currently $84,000 net per annum together with a TPI gold card which will ensure that his medical needs and expenses will be met for life.
As noted previously in this judgment, the Wife’s capacity to return to her former employment is a complete unknown and she is currently in receipt of income protection insurance of $4,000 net per month. This insurance is for a two year period only.
This Court has the power under section 79(5)(a) of the Act to adjourn property settlement proceedings where the Court is of the opinion there is likely to be a significant change in the financial circumstances of the parties to the marriage or either of them and that having regard to the time when the change is likely to take place, it is reasonable to adjourn the proceedings if the order the Court could make in respect to the parties’ property if that significant change in financial circumstances occurs is more likely to do justice as between the parties than an order the Court could make immediately.
It is therefore open to this Court to adjourn these proceedings until such time as the Wife’s health stabilises and it is known whether she will return to her former employment.
There are major difficulties with the Court taking such a course of action. Firstly, both parties are seeking to finalise these proceedings so that they can move on with their lives. Neither seeks to have the proceedings adjourned. Secondly, as has been noted in this judgment, it is completely unknown when or if the Wife’s health will stabilise. It is therefore not known when the change is likely to take place.
Accordingly, this is a matter where, despite there being circumstances that make a final determination of this matter more difficult, it should be determined and finalised at this time as is the application of both parties.
Upon sale of the former matrimonial home the Wife will have to reaccommodate herself and the parties’ 17-year-old daughter. Given the very small capital amount available to the parties, the Wife will not be able to afford to purchase her own home and will have to obtain rental accommodation.
As set out in paragraph [59] of this judgment, the Court is satisfied that the Wife’s contributions exceeded those of the Husband, particularly in the latter part of the marriage because of the additional responsibilities that the Wife had to take on as a result of the Husband’s illness.
As also set out in this judgment, the Husband is not ever likely to return to any form of paid employment and as such is unable to make any further contribution to superannuation.
This is not a matter where the Court is assisted by attributing particular percentages to the adjustments to be made against each of the parties’ assets on the basis of contributions and section 75(2) factors. Rather, it is a matter of balancing all the relevant factors in this matter to determine the appropriate way in which to divide the parties’ assets.
Therefore when balancing the parties’ property, the contributions of the parties, the section 75(2) factors applicable to both parties and what is unknown in relation to the Wife’s future health and employment prospects, I have determined that the following is how the parties’ assets should be dealt with:
a) Proceeds of sale of the former matrimonial home
The Wife shall receive 70% of the proceeds of the sale of the former matrimonial home and the Husband shall receive 30% after payment sale costs, the two mortgages registered on the property and the liabilities listed in paragraph [41] of this judgment.
b) The Wife’s superannuation
The Wife shall retain the totality of her current superannuation entitlements.
c) The Husband’s superannuation
There be a splitting order in relation to the Husband’s superannuation such that the Husband receive 75% of his pension and the Wife receive 25% of his pension.
d) The chattels listed in paragraph [44] of this judgment
The chattels be divided as has been agreed between the parties.
Just and equitable
The practical result of this decision is that the Wife will receive an amount sufficient to enable her to reaccommodate herself and Y after her current liabilities are discharged. The Husband will have a sufficient amount to create a small nest egg for himself.
The Wife will have the benefit of her superannuation, noting however that given her age it will be quite some considerable time into the future before she will be able to access her superannuation unless she is permanently disabled.
It is not possible to determine exactly how much each party will receive upon the making of the splitting order given the advice of the Husband’s superannuation fund as set out at paragraph [25] of this judgment.
However, if the Husband receives something approximate to 75% of his current payment, he would receive $1,550.25 (net) per fortnight as well as his Department of Veteran Affairs pension of $1,157.55, a total of $2,707.80 per fortnight (net). This is $70,402 (net) per annum. The Husband’s Financial Statement sworn 25 June 2018 deposes to his weekly expenses being $1,147.00. This figure includes payment of the mortgage on the former matrimonial home of $312 and payment of the Defence Bank loan of $275. The former the Husband has not paid in months and the latter loan will be discharged on the sale of the former matrimonial home.
Whilst the Husband’s Financial Statement does not include a figure for the usual weekly living expenses such as food, utilities, motor vehicle expenses, clothing, entertainment and the like or include his current child support liability of $185 that will expire shortly as Y turns 18 in May 2020, it is very apparent that the orders as proposed will result in the Husband continuing to receive an income stream more than sufficient to support himself for the balance of his life, particularly in circumstances where his health expenses will be met in full.
The Wife will have a guaranteed income stream going forward to supplement anything she may receive by way of income protection insurance, her salary if she is able to return to work or a pension if she should not recover from her current health difficulties.
I am satisfied given the most unusual circumstances of this matter that this is an appropriately just and equitable outcome.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate: Hannah Baker
Date: 26 July 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Procedural Fairness
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Remedies
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