Simons & Simons

[2008] FamCA 719

FAMILY COURT OF AUSTRALIA

SIMONS & SIMONS [2008] FamCA 719

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Principles and their application in relation to a resulting trust and the presumption of advancement – Assessment of contributions to the value of superannuation entitlements separate from other property – Superannuation splitting payment

Family Law Act 1975 (Cth) Ss 75(2) & 79

Hickey & Anor and Attorney-General for the Commonwealth (Intervener) (2003) FLC 93-143 at 14-15
Calverley v Green (1984) 155 CLR 242 at 266 per Deane J
Bloch v Bloch (1981) 37 ALR 55 at 60 per Wilson J
Townsend (1995) FLC 92-569 at 81,654 per Nicholson CJ
Norbis and Norbis (1986) FLC 91-712 at 75,168
Coghlan and Coghlan (2005) FLC 93-220
Elsey and Elsey (1997) FLC 92-727 at 83,799

APPLICANT: Ms Simons

RESPONDENT: Mr Simons

INDEPENDENT CHILDREN’S LAWYER: Newnhams, Solicitors

FILE NUMBER: SYF 3205 of 2005

DATE DELIVERED: 26 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATES: 11-13 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	D Barry
SOLICITOR FOR THE APPLICANT:	Legal Aid Commission of New South Wales
RESPONDENT (IN PERSON):	Mr Simons
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	J Knox
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Newnhams, Solicitors

Orders

1. That in accordance with s.90MT(1)(b) of the Family Law Act 1975 (“the Act”):

   (a)the wife is entitled to be paid the specified percentage of each splittable payment out of the husband’s interest in the S Fund (“the Fund”);  and

   (b)the husband’s entitlement and the entitlement of such other person to whom a splittable payment may be made, to payments out of the husband’s interest in the Fund is correspondingly reduced by force of this Order.

2. That the specified percentage for the purpose of Order 1 is 10%.

3. That this Order have effect from the operative time AND the operative time is seven (7) days after the next splittable payment following service of these Orders on the trustee of the Fund.

4. That the trustee of the Fund shall do all such acts and things and sign all such documents as may be necessary to:

   (a)calculate, in accordance with the requirements of the Act, the entitlement created by Order 1 herein; and

   (b)pay the entitlement whenever a splittable payment becomes payable out of the husband’s interest in the Fund.

5. Declare that each party is the sole beneficial owner of all items of personalty and superannuation entitlements in his or her respective possession power or control subject to the Orders made this day.

6. That all documents produced on subpoena may be returned to the person who produced the same.

7. That the proceedings be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF3205 of 2005

Ms Simons

Applicant

And

Mr Simons

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the applicant Ms Simons (who for convenience I shall refer to as “the wife”) sought parenting orders and orders for property settlement including:  a superannuation splitting order;  as well an alternative order by way of spousal maintenance in accordance with her Amended Application for Final Orders filed 26 June 2006

2. On the second day of the hearing the wife sought orders in accordance with the “Minute of Orders” Exhibit 2.

3. By his Amended Response filed 17 August 2006 Mr Simons (who for convenience I shall refer to as “the husband”) opposed certain of the parenting orders sought by the wife and otherwise sought a dismissal of the wife’s amended application.

4. The wife has been legally represented throughout.

5. The husband has been unrepresented, including throughout the hearing.

6. The independent children’s lawyer appeared at the hearing.

7. On 12 August 2008 parenting orders were made by consent.  Those orders in substance provided:  for the wife to have sole parental responsibility for the two children of the marriage;  that the two children live with the wife;  and they may live together in Perth.  Those orders also provided that the husband may spend supervised periods of time with the two children and communicate with them.

8. The proceedings, which continued on a defended basis before me were the property settlement proceedings and, the application of the wife, for a superannuation splitting order.  Notwithstanding, that an alternative order had been sought by her for spousal maintenance (to which I have made earlier reference), implicitly this was no longer sought as it was not referred to in the case outline document dated 7 August 2008 lodged by counsel for the wife, nor was it referred to in counsel’s submissions made at the conclusion of the evidence in the hearing.

HISTORICAL BACKGROUND

1. The following are brief relevant historical matters.

2. The wife contended in her amended application that cohabitation between the parties commenced in 1993.

3. However, the wife’s Affidavit sworn 16 November 2006 contended that the date of commencement of cohabitation was during 1992.

4. The husband claimed that cohabitation only commenced on the marriage of the parties.

5. Whilst the date of cohabitation was explored to some degree during cross examination of the husband, it was sensibly not pursued further by counsel when I raised with him whether or not the date of commencement of cohabitation being 1992, 1993 or at marriage in April 1994 was likely to be significant in the ultimate determination of the issues.  On that point, counsel for the wife did not proceed with that aspect of cross-examination. Nor did the husband cross-examine the wife in relation to that matter.

6. The parties married in April 1994.  I find that the parties commenced cohabitation as at that date.

7. The parties then cohabited for a subsequent period of about six and a half years until they separated under the same roof during October 2000.

8. The husband ceased to live with wife and the two children on about 22 February 2001.  The parties have continuously lived in separate residences since that time.

9. At the time the husband ceased to live in the same premises as the wife, the eldest child was about 6½ years old and the wife was pregnant with the youngest child.

10. Each of the parties is 44 years of age.  The wife is a customer service officer.  The husband is a retired State public servant.

11. The two children of the marriage (“the two children”) are:

    (a)K who is 13 years of age having been born in August 1994.

    (b)E who is 7 years of age having been born in April 2001.

12. The eldest child of the parties has continuously lived in the care of the wife since the parties’ separation, other than for sporadic brief periods in the care of the husband.

13. The youngest child of the parties has lived with the wife continuously since her birth, other than for similar periods in the care of the husband.

14. The wife’s child of her prior relationship is C who is 20 years of age having been born in April 1988 (“C”).  C lives in Perth with her father.

15. C had previously lived with the parties until she moved to live in Perth with her father before returning to Sydney to live with the parties again in about 1999.

16. In 1991 the wife’s parents purchased real estate situate at and as known as F in the State of Western Australia (“the [F] property”).  The F property was purchased in the names of the wife’s parents as joint tenants of two undivided fourth shares.  The wife and her sister held one undivided fourth share each as tenants in common.

17. On 7 August 2000 an apprehended violence order was made against the husband for the protection of C.

18. The wife’s mother died in February 2001.  Consequently, the wife, C and the eldest child of the parties moved to Perth where they commenced to live with the wife’s father.  The youngest child of the parties was subsequently born in Perth.

19. On 23 May 2001 a transmission application was registered on the title to the F property which had the effect of the wife’s father receiving by survivorship the interest previously held by the wife’s mother given that they had held their interests as joint tenants.

20. In 2002 the husband accepted retirement from the New South Wales public service on medical grounds (“the husband’s retirement”).

21. In July 2002 the wife and the two children returned to live with the husband in Sydney.  C remained living in Perth.

22. In 2004 C was diagnosed with cancer.  C has since been in remission.

23. In June 2004 the marriage of the parties was dissolved by decree nisi which subsequently became absolute one month later.

24. In May 2006 the wife’s father, together with the wife and her sister, granted an option for the purchase of the F property for $1.5 million.  The F property was then encumbered.

25. In December 2006, the wife’s father discharged the mortgage over the F property.  The funds used for that purpose were solely his.  The F property then became unencumbered.

26. On 16 May 2007 the purchaser exercised the option for the purchase of the F property.

27. On 15 October 2007 interim parenting orders were made by consent. Directions were made.

28. On 1 May 2008 the sale of the F property was settled.  The net proceeds of sale were received and retained by the wife’s father pursuant to written authorities furnished by the wife and her sister.  The wife’s father deposited the net proceeds of sale in his superannuation fund.

Relevant legal principals pursuant to section 79 of the Family Law Act 1975 (“The Act”)

1. It is now well established that generally speaking the approach to be taken to determination of property settlement proceedings, concluding with an order that is “just and equitable”, represents four steps.

2. The first of which is that the Court should determine the property and financial resources of the parties at the date of the hearing.

3. Secondly, determine the nature and extent of the respective contributions made by each of the parties whether financial or non-financial, including contribution to the welfare of family in the role of home-maker and parent.

4. Thirdly, determine and assess the relevant matters pursuant to s.75(2).

5. Fourthly, consideration of orders, if any that should be made that are just and equitable.[1]

   [1] Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143 at 14-15

6. I will now proceed to make findings in relation to the property of the parties, their respective financial and non-financial contributions and relevant matters (if any) pursuant to s.75(2) of the Act.

PROPERTY OF THE PARTIES

1. The following is the property of the parties as set out in Exhibit 11:

Assets	Wife’s Value	Husband’s Value
Wife’s bank account:
- CSR	$30	NK
- Comtax	$600	NK
- [A] Credit Union	$1,700	NK
Wife’s motor vehicle	$4,000	NK
Wife’s household contents	$2,000	$10,000
Wife’s superannuation	$5,000	NK
Husband’s bank accounts:
- Citibank	NK	$0
- [B] Credit Union	NK	$0
Husband’s motor vehicle	NK	$850
Husband’s household contents	$6,000	$6,000
Husband’s superannuation:
1. Value of interest as at 08/08/2005 taking into account option to commute	$709,920	NK
2. Value of retirement benefits to be received from age 60, as at 08/08/2005	$230,665	NK
Liabilities	Wife’s Value	Husband’s Value
Husband’s personal loan with GE Finance	NK	$1,600
Husband’s HSBC Visa Card	NK	$1,870
Husband’s Citibank Visa Card	NK	$3,660
Husband’s personal loan with brother	NK	$1,700
Wife’s Target card	$900	NK
Wife’s [A Credit Union ] loan	$8,000	NK

1. In relation to the husband’s superannuation being “value of interest as at 8 August 2005…” set out in the table contained in paragraph 43, the amount should be $676,585.64 without the option to commute as was conceded by counsel for the wife during his submissions.

2. The following is disputed property which it is contended should be added-back:

   (a)The wife’s one-quarter interest in the proceeds of sale of the F property.

   (b)The wife’s non-preserved superannuation benefits received and applied by her in the sum of $10,000.00.

   (c)The husband’s termination pay and benefits received by him and applied in the sum of approximately $30,000.00.

3. I make the following findings in relation to those disputed items of property itemised in paragraph 43.

Disputed items of property (“Add backs”)

The wife’s one-quarter interest in the proceeds of sale of the F property

1. Affidavit evidence was given by the wife and her father in relation to the purchase of the F property and the subsequent dealing with the legal interests to the title of that property which was held by them as well as the wife’s late mother and the wife’s sister.  The substance of that evidence is set out in the following paragraphs.

2. In 1991, the wife’s father, the wife’s mother, the wife and the wife’s sister became the registered proprietors of the F property.  They held their interests in the proportions and on the basis set out in paragraph 24 of this Judgment.

3. The purchase price of the F property was funded by the wife’s father and mother implicitly from their own funds which included a bank loan secured by mortgage over the F property.  The wife and her sister did not make any contribution to the purchase price or its financing, nor have they borne any of the financial obligations relevant to the F property since its purchase.

4. The evidence of the wife’s father and the wife is that the purchase of the F property in the names of the wife’s father, the wife’s late mother, the wife and her sister was for the purpose of improving the opportunity to obtain a subdivision of the F property.  The basis for that approach was not set out in the evidence.

5. The wife’s father held his late wife’s interest pursuant to the registration of the transmission application referred to in paragraph 27 of this Judgment.

6. The wife and her sister signed and completed all relevant documentation to enable the granting of an option for the purchase of the F property and the subsequent sale and completion of the sale following the option being exercised by the purchaser as referred to in paragraphs 32 to 34 and 36 herein.

7. The wife and her sister signed disbursement authorities to enable the wife’s father to receive and retain the deposit and the net proceeds of sale of the F property following settlement which took place on 1 May 2008.

8. The evidence of the wife and the wife’s father is to the effect that the net proceeds of sale of the F property were both retained and utilised by the wife’s father for his benefit, demonstrated by his deposit of those funds by way of contribution to his superannuation fund.

9. The husband declined the opportunity to cross-examine the wife’s father.  The husband did not cross-examine the wife on any of the relevant matters which I have summarised with regard to the F property.

10. I find that the evidence of the wife’s father and the wife set out in their respective affidavits is both detailed and plausible.  In those circumstances, and there not being any challenge to any aspect of that evidence, I make findings of fact that reflect the matters set forth in paragraphs 47-54 of this Judgment.

11. The case for the wife is that at all material times she has held her one-quarter interest in the title to the F property as trustee for her parents and subsequently for the wife’s father as a necessary consequence of him having obtained the interest formerly held by the wife’s mother by way of survivorship, their interests having been held as joint tenants.

12. In support of the wife’s case, it is submitted that her position as a trustee for the wife’s father arises as a result of the presumption of a resulting trust not having been rebutted by any presumption of advancement.

13. A resulting trust arises as was held by the High Court in Calverley v Green:[2]

    Where a person pays the purchase price of property and causes it to be transferred to another and himself jointly, the property is presumed to be held by the transferee or transferees upon trust for the person who provided the purchase money.

    [2] Calverley v Green (1984) 155 CLR 242 at 266 per Deane J

14. I have found that the purchase price for the F property was solely contributed by the wife’s father and the wife’s late mother.  Consequently, that is sufficient to lead to the conclusion that a resulting trust has been established as contended on behalf of the wife, subject to consideration of the presumption of advancement.

15. In relation to the possible presumption of advancement, it is arguable that the benefit an interest in the title to the F property was provided by the wife’s father for the wife.  In Calverley v Green “there are certain relationships in which equity infers that any benefit which was provided for one party at the cost of other has been so provided by way of ‘advancement’ with the result that the prima facie position remains that the equitable interest is presumed to follow the legal estate and to be at home with the legal title”.[3]

    [3] supra at p.267

16. Should a requisite relationship applies in this case, namely parent and child with an obligation to support the latter, I conclude that the presumption of advancement has been rebutted.  The reason is that I have made findings of fact that the circumstances which led to the wife acquiring an interest to the title to the F property was not for the purpose of her holding that interest beneficially, but rather pursuant to the common intention of the wife’s father and herself reflected in the circumstances of the purchase of the F property earlier reviewed and which are the subject of my findings of fact.[4]

    [4] supra at pp.246, 251 per Gibbs CJ; Bloch v Bloch (1981) 37 ALR 55 at 60 per Wilson J

17. Consequently, I have determined that the wife does not have a legal or beneficial interest in an amount equal to a quarter of the proceeds of sale of the F property received and retained by the wife’s father.

The wife’s non-preserved superannuation benefits received - $10,000.00

1. The evidence of the wife is that in 2005 she received the non-preserved portion of her superannuation entitlements of approximately $10,000.00 as amplified in her oral evidence in contrast to the figure of $8,000.00 referred to in her affidavit evidence.  The wife’s further evidence is that such amount has been fully expended by her on a combination of outstanding indebtedness in meeting travel and associated expenses relative to her support for C following her diagnosis of cancer.  The wife expanded upon such expenditure during the course of her oral evidence.

2. There was little, if any, challenge to the wife’s evidence.

3. I am satisfied that the wife’s evidence should be accepted.  Therefore, I find that the wife expended the non-preserved amount of her superannuation entitlements as explained by her.

4. As was made clear by the Full Court in Townsend,[5] reasonable expenditure of funds brought about by a realisation of property, which might otherwise have been taken into account for the purpose of calculation of the net property of the parties, will not be added-back for that purpose.

   [5] Townsend (1995) FLC 92-569 at 81,654 per Nicholson CJ

5. I find that the evidence of the wife, which I have accepted, demonstrates reasonable expenditure by her of the amount of $10,000.00 and as a result will not be added-back for the purpose of calculation of the net property of the parties.

The husband’s termination pay and benefits - E$30,000.00

1. Following the husband’s medical retirement from the New South Wales public service, he received termination pay including all leave entitlements amounting to about $30,000.00.

2. The husband’s affidavit evidence which annexes his Financial Statement sworn 27 April 2006 sets out in an itemised fashion his accounting for the receipt and expenditure of the relevant amount of approximately $30,000.00.

1. The husband was cross-examined in relation to that evidence and during the course of that cross-examination provided further evidence of the circumstances which led to certain of the expenditure taking place.

2. During the course of submissions counsel for the wife, whilst quite properly recognising the obstacle created by the judgment of Nicholson CJ in Townsend[6], he submitted that the expenditure by the husband of $5,000.00 for “Pacific Sky Cruise” did not represent reasonable expenditure having regard to the financial circumstances of the wife at the time.

   [6] ibid, Townsend

3. I do not accept that submission as there is paucity, at best, of the wife’s financial circumstances and implicitly that of the children of the marriage at the time that the husband spent $5,000.00 on a cruise.

4. Whilst it is undoubtedly arguable that it was a matter for the husband to give further evidence about that matter, that has an air of unreality about it as the husband was unrepresented and lacked the knowledge and assistance that would have been afforded to him if he had been legally represented.  It was certainly not my function as the trial Judge to give the husband forensic legal advice, as opposed to answering or informing him about questions of practice and procedure and matters of law.  The husband was not cross-examined in relation to that matter.

5. Upon further consideration, I am persuaded on the balance of probabilities that the amount expended by the husband for the cruise was reasonable, as there was no evidence to the contrary.  Consequently, I do not propose to include this as an add-back the amount of $30,000.00 or indeed $5,000.00 for the purpose of calculation of the parties’ net property.

REVISED PROPERTY OF THE PARTIES

1. I find that the property of the parties is as set forth in paragraph 42, with the exception of the husband’s superannuation as at 8 August 2005 which was given as $709,920.00 in Exhibit 11, reproduced in paragraph 43.

2. The submission of counsel for the wife is that I should disregard the husband’s alleged ability to commute his pension as the evidence did not support it.  Counsel for the wife during his submissions properly conceded that the amount should be $676,585.64.

3. Exhibit 10 reveals that the wife’s superannuation entitlements as at 12 August 2008 are $11,224.21.  That is the amount I will substitute for the figure of $5,000.00 referred to in paragraph 43 hereof.

CONTRIBUTIONS

1. I make the following findings in relation to the financial and non-financial contributions of each of the parties including the contribution to the welfare of the family in the role of homemaker and parent.

2. There was no challenge to the affidavit evidence of the wife in relation to her various contributions.

3. The husband was cross-examined to a limited extent in relation to his contributions.

The wife

1. I find that the wife’s initial financial contributions were represented by her furniture and furnishings in a rented flat, clothing and personal effects.  The wife may have had superannuation entitlements, however, the detail of such entitlements were not adduced.

2. The wife made a financial contribution as a result of applying the income earned by her to meet family living expenses during the period of cohabitation.  The wife was principally employed on a full-time basis carrying out clerical work other than shortly prior to the birth of the eldest child and for a period of six months after his birth.

3. The wife has been employed with her current employer since the year 2000.

4. The wife made a contribution to the welfare of the family in the role of homemaker and parent performing a range of domestic work with assistance from the husband so far as preparation of meals was concerned.

5. During the period of cohabitation and since that time the only property acquired by the parties were motor vehicles and progressive superannuation entitlements following employer contributions.

6. Subsequent to the parties’ separation, the wife has continued to make the financial contributions of the nature and extent previously made by her during cohabitation, other than the periods when she was confined and following the birth of the youngest child.

7. The wife has continued her contribution in the role of homemaker and parent for the two children of the marriage including performance of domestic work and the daily care and upbringing of the two children.

The husband

1. The husband’s initial financial contributions were represented by his motor vehicle, television receiver, VCR, clothing and personal effects.  In addition, the husband had superannuation entitlements, however, there is no evidence of its value.

2. Throughout the period of cohabitation the husband made a financial contribution represented by his full-time employment and applied his income towards family living expenses subject to the regular use of part of his income for his personal indulgences and entertainment in the purchase of alcohol, cigarettes and gambling.

3. The evidence is insufficient to quantify, even in approximate terms, the husband’s range of expenditure on all or any of those items of discretionary expenditure.

4. Indeed, no submission was made by counsel for the wife that suggested that an appropriate finding could be made, nor was there a distinct submission made in relation to an issue of “waste”.  Rather, the wife’s case was that I should not find that the husband made a financial contribution of the whole of his available income towards family expenditure due to his habit of spending available money on alcohol, cigarettes and gambling.  I will refer to that matter in my subsequent assessment of the respective contributions of the parties.

5. The husband also made a contribution in the role of homemaker and parent by the preparation of meals for the family.

6. Subsequent to the separation of the parties, the husband was medically retired from his employment in the New South Wales public service in 2002.  The husband received approximately $30,000.00 as his eligible termination payment which included outstanding leave benefits.  The husband expended those funds for the purposes referred to in paragraph 69.

7. Since separation the husband has consistently paid the child support assessment.  I accept the evidence given by the husband in his Financial Statement sworn 30 August 2007 and filed 31 August 2007 and that the current amount is $516.42 per month.

8. The husband has made a limited contribution in the role of homemaker and parent since the parties separated.  The youngest child was born after separation.  The two children have spent sporadic and limited periods of time in the husband’s care.

ASSESSMENT OF CONTRIBUTIONS

1. It is not a matter of controversy that the wife has made the prime contribution to the welfare of the family in the role of homemaker and parent taking into account her contributions both during the period of cohabitation and since.

2. In addition, the wife has made significant financial contributions by the application of her income from employment to meet family expenses both prior and subsequent to the parties’ separation.

3. The husband made a significant financial contribution during the period of cohabitation by the application of the income earned by him towards family expenses, although his discretionary income was in part expended upon alcohol, cigarettes and gambling.  I am unable to proportion the totality of that expenditure in relation to his available income given a range of percentages as the evidence is of insufficient detail to enable me to do so.

4. The husband also made a contribution in the role of homemaker and parent during the period of cohabitation by the performance of some domestic work such as the preparation of meals, however that contribution whilst undoubtedly of assistance was minor compared to that of the wife both in relation to the performance by her of domestic work as well as the care and upbringing of the parties’ eldest child as the youngest child was born subsequent to separation.

5. Subsequent to the separation of the parties almost the sole contribution in the role of homemaker and parent and the limited and sporadic periods of time that the two children of the marriage have spent with the husband.

6. In addition, the wife has continued to earn and apply income for the support of herself and the two children augmented by the husband’s regular payment of child support in accordance with child support assessments.

7. A cursory review of the net property of the parties as found by me in paragraph 43, revised in paragraphs 76 and 78 makes it clear that the parties do not have significant net property as it reflects items of personalty and various personal liabilities save and except the wife’s superannuation entitlements currently of a relatively modest amount and the valuation of the husband’s superannuation pension payment.  The latter is by far the most significant property which falls for consideration.

8. I propose to consider the contributions to the husband’s superannuation entitlements separate from the parties’ relatively negligible net property.  I do so in accordance with the High Court’s judgment in Norbis and Norbis which made it clear that in a given case the trial Judge has a discretion to apply a global approach for the purpose of assessment of contributions to property of the parties or an “asset by asset” approach.[7]  The Full Court effectively applied that approach in Coghlan and Coghlan.[8]

   [7] Norbis and Norbis (1986) FLC 91-712 at 75,168

   [8] Coghlan and Coghlan (2005) FLC 93-220

9. In relation to the contributions to the husband’s superannuation entitlement, Exhibit 12 reveals that the husband became a member of the relevant superannuation fund on 16 August 1983.  The husband made the sole contributions for a period of approximately 11 years prior to the commencement of cohabitation between the parties.

10. As a consequence of the direct and indirect financial and non-financial contributions made by each of the parties the subject of my earlier findings and assessment, each of them made contributions during the period of cohabitation of some 6 ½ years and for the period of two years following separation which occurred under the same roof in October 2000.  The husband was medically retired from his employment in 2002.  The husband’s contributions greatly outweigh those of the wife, as for more than half of the years of contributions, his were the sole contributions for a period.  That is for a period of 11 years out of about 19 years of contributions.  Unfortunately, the evidence does not enable me to relate the consequential percentage to the value of the husband’s superannuation entitlements at the commencement of cohabitation as there is an absence of evidence of that amount.

11. In view of the weight that I give to the husband’s sole contributions to the value of his superannuation entitlement, allowing for greater weight that I attribute to the combined contributions of the wife as opposed to the husband for the period from commencement of cohabitation until the parties separated, I assess the husband’s contributions as being 70% with the remaining 30% to the wife.

12. In relation to the other property of the parties represented by the net personal property owned by them to which I have made reference, I assess their respective contributions on the basis of 60% in favour of the wife and 40% in favour of the husband.

RELEVANT SECTION 75(2) MATTERS

1. I make the following findings in relation to relevant matters pursuant to the provisions of s.75(2).

2. The parties are each aged 44 years.

3. The wife is in good health.

4. The husband’s health is unsound.

5. The wife’s income is as set forth in her Financial Statement sworn 31 July 2008 to which there was no challenge.  The wife’s salary is estimated at $550.00 per week gross and receives government benefits estimated at $148.00 per week, as well as child support assessment on an estimated weekly basis of $125.00 giving a total of $823.00 gross per week.

6. The wife has the property described in paragraphs 43 and 78 hereof.

7. The wife has a financial resource represented by past financial assistance that has been provided from time to time by the wife’s father including the offer of accommodation in his home in Perth where the wife and two children will soon be living.

8. The wife has the physical and mental capacity for appropriate employment in her current employment position as a full-time service officer.  The wife has aspirations to obtain employment in a similar position in Perth with future career prospects allied with further tertiary education.

9. The husband’s income is set out in his Financial Statement filed 31 August 2007.  It is represented by his superannuation payments of $740.00 per week gross.  I accept the husband’s evidence that he has the expenditure itemised in his financial statement.  The husband explained during the course of oral evidence that his child support assessment payment of $516.00 per month is deducted from his gross periodic superannuation payment which amounts to $238.00 per fortnight.

10. The husband has the property described in paragraphs 43, 76 to 77.

11. The husband has the financial resource represented by accommodation provided to him by his sister and brother-in-law in their home and pays rent of $120.00 per week.  Evidence was given by the husband that such accommodation was a finite period and was likely to come to an end due to a foreshadowed sale of the property.

12. The wife has the care and control of the two children of the marriage who are aged 13 and 7 years respectively.  That is likely to continue for the foreseeable future.

13. The husband may spend supervised periods of time with the two children of the marriage in Perth pursuant to the orders made by consent on 12 August 2008.

14. Both parties have the commitments necessary to support herself or himself and the two children of the marriage as set forth in their most recent financial statements.

15. Each of the parties is eligible for superannuation benefits.  The husband currently receives a superannuation pension.  The wife has modest superannuation entitlements as set forth in paragraph 78 hereof.

16. The husband pays child support at the rate of $516.42 per month in accordance with the child support assessment.

ASSESSMENT OF RELEVANT SECTION 75(2) MATTERS

1. I have determined that I will not make an adjustment in favour of either party having regard to the weight to be given to relevant matters pursuant to s.75(2) for the following reasons.

2. There are a number of matters which favour one party or the other.  The weight which I attribute to each of them balanced on a global basis has led me to the conclusion to which I have referred.

3. Those matters include, on the wife’s side, that she has the ongoing care of the two children of the marriage who are aged 13 and 7 years respectively.  That care and responsibility will continue for many years particularly so far as the youngest child is concerned.

4. In addition, the wife has to provide suitable accommodation for herself and the two children.  The wife has been able to meet her responsibilities in that regard and still obtain and continue in full-time employment.  The wife proposes to do so in Perth.

5. The wife is in good health and has a financial resource and support available to her which will be provided by her father with regard to the potential use of his home for accommodation.  In the past the wife’s father has provided financial assistance.  I infer that the wife’s father will be open to do so in the future, there being no evidence to the contrary.

6. The husband’s health is markedly unsound.  He was medically retired from his employment in 2002.  In recent years the husband has suffered from a variety of debilitating ailments necessitating admissions to hospital.

7. Counsel for the wife quite properly conceded that the husband does not have an earning capacity.

8. The husband’s sole source of income is his superannuation pension.  He continues to pay child support in accordance with the child support assessment.

CONCLUSION

1. The net property of the parties is insignificant having regard to it being represented by items of personalty of relatively small amounts and taking into account their respective liabilities.  The value of the wife’s superannuation entitlement is modest.  Those matters are not in controversy.

2. I have concluded that the most sensible and practical way of dealing with such net property is that each of the parties retain such items that are in his or her possession power or control with the consequential personal liabilities which each of them have been meeting to date and which accrued inferentially in recent times.  That approach is in my view one which would lead to just and equitable orders.  Indeed, no submission to the contrary was made.

3. That then leaves for determination the wife’s application for a superannuation splitting payment order in relation to the husband’s superannuation pension.  The value of that pension is $676,585.64.  Counsel for the wife correctly conceded, in my view that the evidence was certainly not clear that the husband has the ability to commute.  Indeed, as he stressed, the wife does not seek an order for a lump sum reflecting any proportion of that amount.  The wife seeks a superannuation splitting payment.

4. The husband’s approach is that this matter should be viewed as “maintenance”.  However, I am not determining a spousal maintenance application.  I am determining a property settlement application which brings into play the principles earlier set out by me in this Judgment.

5. The husband’s superannuation pension payment is $1138.92 per fortnight net.  That amount is net after tax and payment of the child support assessment amount.  It is indexed in accordance with the CPI.

6. However, I must consider my findings in relation to the available income of the husband having regard to the amount of $1138.92 per fortnight net.  That equates to $569.00 per week net.  In terms of the husband’s available income, I must take a pragmatic approach as not to do so would ignore the requirement that orders for property settlement, if any, must be just and equitable.[9]

   [9] Elsey and Elsey (1997) FLC 92-727 at 83,799

7. I have reviewed the evidence of the husband’s estimated weekly expenditure, taking into account Exhibit 4.  To the extent to which it had obvious omissions such as loan repayments, I have also had regard to the husband’s Financial Statement filed 31 August 2007.

8. I find that the following are the husband’s estimated expenses on a weekly basis, given the convoluted manner in which the expenses have been expressed in Exhibit 4.

(H)  Weekly expenses	Per week
Rent	125.00
Car insurance	15.00
Car green slip	8.00
Car pink slip	0.60
NRMA	1.70
Car maintenance	1.00
Driver’s licence	0.90
PSA	0.60
Medical insurance	11.70
Home contents insurance	0.80
Funeral policy	5.75
HSBC loan	50.00
Personal loan from GE Finance	50.00
Citibank	50.00
Weekly expenses (other than the above)	150.00
$471.05

1. A simple deduction of the husband’s estimated weekly expenditure of $471.00 from his superannuation pension on a weekly basis of $569.00 leaves a net balance of about $98.00.

2. That equates to about 17% of the pension expressed on a weekly basis.

3. However, the matter does not end at this point. I have assessed the parties’ contributions to the husband’s property represented by his superannuation entitlements. I have also determined that there will not be an adjustment pursuant to the relevant matters arising under s.75(2).

4. Any order for property settlement must be just and equitable.

5. In my view, it is superficial and an oversimplification to make a superannuation splitting payment that reflects the available net balance in the husband’s hands of his superannuation pension after deduction of his estimated weekly expenses.  That approach makes no allowance for exigencies of life and the clearly very frugal items of expenditure that the husband has, especially in the area of what is described in his evidence as “weekly expenses”, otherwise itemised in his relevant financial statement and Exhibit 4.

1. Accordingly, taking that approach, I have concluded that an order for a payment split by a superannuation splitting order providing 10% of the husband’s superannuation pension in favour of the wife is just and equitable.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: …

Date:  26 August 2008