Skipper and Slevin
[2017] FCCA 120
•30 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SKIPPER & SLEVIN | [2017] FCCA 120 |
| Catchwords: FAMILY LAW – Property – de facto relationship of approximately ten years – modest asset pool – division of proceeds of sale of property – issue of de facto wife’s redundancy payment – contributions – whether further s.90SF(3) adjustments should be made. |
| Legislation: Family Law Act 1975, ss.90SF, 90SM, 90SS, 90ST |
| Cases cited: Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545 |
| Applicant: | MR SKIPPER |
| Respondent: | MS SLEVIN |
| File Number: | WOC 1119 of 2015 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 17 and 18 November 2016 |
| Date of Last Submission: | 18 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lo Schiavo |
| Solicitors for the Applicant: | Johnston Tobin |
| Solicitors for the Respondent: | Ms Ferguson of McNamara & Associates |
ORDERS
THE COURT ORDERS THAT:
Subject to paragraph 2 herein, the parties cause the net proceeds of the sale of Property A, currently held in the controlled monies account of Johnston Tobin Solicitors, to be divided between the parties $74,041.23 to the Applicant, Mr Skipper, and $42,046.16 to the Respondent, Ms Slevin (“the Respondent’s share”), with any remaining balance to be divided 60% to the Applicant and 40% to the Respondent.
Simultaneously with paragraph 1 herein, the Respondent cause the sum of $2,434.00 to be paid to the Applicant from the Respondent’s share.
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of Ms Slevin from her interest in (omitted) Super, Mr Skipper be entitled to be paid by the trustee of (omitted) Super, the amount calculated in accordance with Part 6 of the Family Law Superannuation Regulation 2001, using a base amount of $11,500.00 and that there be a corresponding reduction in the entitlement Ms Slevin would have but for this order.
Having been accorded procedural fairness in relation to the making of this Order, this order binds the Trustee of (omitted) Super.
The operative time of paragraph 3 herein is four (4) business days after the service of a certified copy of the original sealed Final Orders on the Trustee.
Paragraphs 3 to 5 herein be stayed.
Unless otherwise specified in these Orders:
(a)each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at this date;
(b)each party be solely entitled to any moneys, shares and debentures which stand in such party’s name as at this date;
(c)each party be solely entitled to any superannuation benefits held in such party’s name and each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other; and
(d)each party be solely liable for and indemnify the other against any debt, loan or liability whatsoever held in such party’s name as at this date.
Each party do all such things including the signing of all documents to give effect to these Orders.
In the event that either party refuses or neglects to execute any deed or instrument that may be required to give effect to these Orders, the Registrar of the Court be appointed pursuant to s.106A of the Act to execute such deed or instrument in the name of such party or parties and do all acts necessary to give validity to the operation to the deed or instrument.
In the event that either or both parties propose to seek their costs of these proceedings, they make, file and serve an Application in a Case within forty-two (42) days of this date.
AND THE COURT DIRECTS THAT:
Within 7 days following receipt of these orders, the Applicant cause correspondence to be sent to (omitted) Super together with a sealed copy of these orders for the purposes of providing that superannuation fund with procedural fairness.
AND THE COURT FURTHER ORDERS THAT:
The Applicant have leave to approach Chambers with relevant correspondence from (omitted) Super confirming that they have no objections to the superannuation splitting order and if so, seeking that the stay pursuant to paragraph 6 herein be lifted.
Subject to paragraphs 10 and 12 herein, all extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Paragraphs 3 to 5 herein reflect the superannuation splitting form of order sought by the Applicant.
B.Despite being raised by the Court during the hearing, there is no evidence that procedural fairness has been afforded to the relevant superannuation trustee.
C.Upon receipt of correspondence from (omitted) Super confirming that procedural fairness has been afforded and that they do not wish to be further heard in relation to the superannuation splitting order, the Court will consider in Chambers lifting the stay pursuant to paragraph 6 herein.
IT IS NOTED that publication of this judgment under the pseudonym Skipper & Slevin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 1119 of 2015
| MR SKIPPER |
Applicant
And
| MS SLEVIN |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter, MR SKIPPER (“the husband”) and MS SLEVIN (“the wife”)[1] are in dispute about financial matters arising from the end of their de facto relationship of approximately ten years.
[1] For ease of reference, the parties will be referred to throughout this judgment as the wife and the husband notwithstanding they were never married.
The details of the orders sought by each party are extracted below.
At the final hearing both parties were legally represented; the husband by Mr Lo Schiavo of counsel and the wife by her solicitor Ms Ferguson.
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”).
Background
Relationship history
The husband was born on (omitted) 1956 and was 60 years of age at the date of the hearing.
The wife was born on (omitted) 1968 and was 48 years of age at the date of the hearing.
The parties commenced cohabitation in 2004; according to the husband in mid-2004 or in (omitted) 2004, according to the wife. The parties were never married.
In approximately (omitted) 2005 the parties purchased a property at Property B, which was later sold in 2013. In (omitted) 2013 the parties purchased a property at Property A.
The parties separated on a final basis in 2014; in September of that year according to the husband, or in August, according to the wife.
There are no children of the relationship. The wife has three adult children from previous relationships (Ms A, aged 25, Ms B, aged 20, and Mr C, aged 18). The husband has no children.
The Court is not aware that either party is currently in a relationship.
Procedural history
The husband filed his Initiating Application on 10 November 2015 (Amended 21 October 2016). The wife filed her Response on 26 February 2016.
The matter first came before Judge Altobelli in a duty list in the Wollongong Registry on 1 March 2016. The parties subsequently attended a Conciliation Conference of 23 May 2016, which was unsuccessful.
On 23 May 2016, Judge Altobelli made interim property consent orders which provided, inter alia, for the sale of the Property A property and for the net proceeds of sale to be placed in a controlled monies account.
On 26 May 2016, Judge Altobelli adjourned the matter to 17 and 18 November 2016 for a two day final hearing before me and made further orders in relation to financial disclosure and for the filing of material.
The final hearing (in the Wollongong Registry) commenced on 17 November 2016 and concluded on 18 November 2016, after which I reserved my decision.
Legislative requirements
The competing orders sought by the parties raise a number of issues to be considered in light of the legislation, authorities, the available evidence and the parties’ submissions.
At the outset, the Court must consider whether it has the power to make the orders sought and whether the evidence justifies the making of such orders.
De facto causes
With the introduction of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 the relevant Courts were provided in 2009 with jurisdiction pursuant to Pt VIIIAB, Pt VIIIB, and s.114(2A) of the Family Law Act 1975 to determine financial matters in respect of de facto relationships. The regime under Pt VIIIAB (and Pt VIIIB if applicable) ‘mirrors’ the regime available to married couples under Pt VIII of the Act. It would also appear that the wording in s.114(2A), as applicable to de facto couples, mirrors s.114(1), as applicable to married couples.
In this case, there is no dispute as to the nature of the relationship or that the parties separated after the commencement of Part VIIIAB on 1 March 2009. Moreover, there was no suggestion that there was any jurisdictional impediment relating to participating jurisdictions and it is clear therefore, that for the purposes of s.90RD, a de facto relationship existed between the parties. For the purposes of the application, there is agreement between the parties that their relationship existed for a period in excess of the minimum requirements set out in s.90SB of the Act. The proceedings were also commenced within two years of the breakdown of the de facto relationship (as required by s.44(5) of the Act).
Property proceedings between parties to a de facto relationship are governed by the provisions of Part VIIIAB of the Act, and more specifically, s.90SM.
Section 90SM
The financial settlement regime under Pt VIIIAB of the Act mirrors the one available to married couples under Pt VIII.
Section 90SM(1) of the Act states that the Court may make such orders as it considers appropriate altering the interests of the parties in the property. Section 90SM(1) mirrors the powers set out in s.79(1) of the Act, but only applies following the “breakdown” of the de facto relationship.
Section 90SM(3) of the Act provides that:
The court must 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.
This corresponds to the principle found in s.79(2) of the Act.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in the property, s.90SM(4) of the Act sets out those matters which the Court must take into account when considering what orders should be made. Not surprisingly, s.90SM(4) reflects s.79(4) of the Act. For completeness s.90SM(4) states:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)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 de facto relationship 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 de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)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 de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, 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 de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SM(4)(e) requires the Court to have regard to the matters set out in s.90SF(3) that are relevant. Section 90SF(3) (which mirrors s.75(2) of the Act) states:
(3) The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); 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 de facto relationship 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 (4), 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) 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
(i) 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 de facto relationship 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 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; 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
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; 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
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.
Approach to exercise of discretion
The approach to the exercise of the Court’s discretion under s.79 (and by implication, s.90SM), has been outlined in numerous judicial decisions. The High Court in the decision of Stanford v Stanford [2012] HCA 52 (“Stanford”) held that before making any orders adjusting the parties’ interests in the property pursuant to s.79 of the Act, the Court must, as required by s.79(2) of the Act, determine that is “just and equitable” for the Court to do so. At paragraph 42 the High Court stated that in most cases:
The just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4)…
Prior to the decision in Stanford, the preferred approach in determining property matters was that set out by the of the Full Court of the Family Court of Australia (“Full Court”) in the matter of Hickey v Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; (2003) FLC 93-143. At paragraph 39, Nicholson CJ, Ellis and O’Ryan JJ stated:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case …
This approach was reconsidered by the Full Court in Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (“Bevan”) in light of the High Court’s comments in Stanford. At [71], Bryan CJ and Thackray J stated:
Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.
In Bevan & Bevan (No.2) [2014] FamCAFC 19; (2014) FLC 93-572 the Full Court, having upheld the appeal against the decision at first instance, proceeded to re-determine the property application before the Court. At paragraphs 18 to 19, Bryant CJ and Thackray J stated:
18. Senior counsel for the husband structured his submissions by reference to the “four-step” approach to property settlement applications discussed in our earlier reasons. By way of explanation for doing so, senior counsel said:
16. The adoption of the above [four-step] approach is not intended to presuppose a positive answer to the question posed [by] section 79(2), nor to suggest that it is an approach appropriate in all proceedings. Rather, and provided that the fundamental propositions outlined by the High Court in Stanford (2012) … are not obscured, such approach is intended to and does no more than provide a principled, disciplined and structured means by which all of the matters arising for consideration pursuant to section 79 can be conveniently and properly identified and assessed.
17. Further, and whilst not said critically nor in a matter which seeks to cavil with the decision in this appeal, no other approach to the determination emerges readily from either Stanford nor the decision in this appeal. It is respectfully submitted that provided that the ‘fundamental propositions’ articulated in Stanford are not obscured, and whilst not universally so as has always been recognised, the approach set out above continues to provide a proper, transparent, certain and structured approach to the presentation and determination of applications pursuant to section 79.
19. We have no issue with what senior counsel has said about the utility of the four-step process, which we accept provides a convenient way to structure both submissions and judgments, provided the caveat mentioned is not overlooked.
The “caveat” referred to by the Full Court is the requirement that the Court must first be satisfied that it is just and equitable to make an order adjusting property between the parties.
In the subsequent decision in Rockman & Rockman [2014] FCCA 1966 (“Rockman”), Judge Bender noted at paragraph 83 that the “High Court in Stanford neither disapproved or approved the four steps process”. I agree with her Honour’s observation. That said, the High Court did lay down what they described as three “fundamental propositions” which would provide useful guidance to trial judges when undertaking the task under s.79 of the Act. I note that in Bevan, Bryant CJ and Thackray J summarised those fundamental principles at paragraph 73 as follows:
… 1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3. A determination that a party has a right to a division of property fixed by reference only to the matters of s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
I also agree with the view expressed in Rockman that subsequent Full Court and single judge considerations of Stanford suggest that the path that may best “illuminate the path to the ultimate result” could now best be described as the following “five step process”:
(a)Firstly, what are the parties’ legal and equitable interests in property;
(b)Secondly, is it just and equitable to make an order adjusting the parties’ legal and equitable interests in that property;
If the answer to (b) is in the affirmative:
(c)Thirdly, identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) of the Act (s.90SM(4)(a), (b) and (c)) and determine the contribution-based entitlements of each party as a percentage of the net value of the property of the parties;
(d)Fourthly, identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g) (s.90SM(4)(d), (e), (f) and (g)) and s.75(2) of the Act (s.90SF(3)) and determine the adjustment, if any, that should be made to the contribution-based entitlements of each party as a percentage of the property of the parties; and
(e)Fifthly, given s.79(1) (s.90SM(1)) empowers the court to make such orders affecting the parties’ interest in the property as are appropriate, determine what order, if any, altering the parties’ interests are “appropriate” to enable the parties’ entitlements as determined pursuant to steps (c) and (d) to be achieved.
The Court will adopt this process for this decision.
Section 90SS
In addition to the specific powers provided by s.90SM(1) to adjust property interests, s.90SS(1)[2] provides the Court with the following general powers:
[2] This section mirrors s.80 of the Act.
(1) The court, in exercising its powers under this Division, may do any or all of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
(c) order that a specified transfer or settlement of property be made by way of maintenance for a party to a de facto relationship;
(d) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(e) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(f) appoint or remove trustees;
(g) order that payments be made direct to a party to the de facto relationship, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the de facto relationship;
(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make any other order, or grant any other injunction, (whether or not of the same nature as those mentioned in the preceding paragraphs of this section) which it thinks it is necessary to make to do justice;
(l) subject to this Act and the applicable Rules of Court, make an order under this Division at any time before or after the making of a decree under another provision of this Act.
Section 90ST
For completeness, I note that the Court must also consider s.90ST[3] of the Act which states:
In proceedings under this Division, other than proceedings under section 90SL, the court must, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the de facto relationship and avoid further proceedings between them.
[3] This section mirrors s.81 of the Act.
While s.90ST of the Act is clearly relevant to the making of a property order, it is neither a ‘head of power’ nor an absolute requirement. This was the view of the Full Court in In the Marriage of Crapp and Crapp (No.2) (1979) 5 Fam LR 47; (1979) FLC 90-615, noting that the Full Court was considering s.81 of the Act which mirrors s.90ST:
Firstly sec 81 is in the nature of an exhortation by the legislature to the courts and is not a separate source of power and secondly the section itself states that the policy of making orders which finally determine the financial relationship between the parties and avoid further proceedings is only to be taken ‘as far as (is) practicable’. Nevertheless it is true to say that it is unsatisfactory in the general context of the philosophy of the Family Law Act for a really significant issue between parties who are divorced and have gone their separate ways to remain in suspended animation for a number of years.[4]
[4] (1979) 5 Fam LR 47 at 61 (per Fogarty J; Pawley and Dovey JJ agreeing).
The practical effect of both s.81 and s.90ST of the Act is that the Court must endeavour to make an order that finalises the financial relationship between the relevant parties, but it does not require the Court to make an order that achieves finality.
That said, as a preliminary comment, I see clear benefit in orders being made that will finalise, if possible, the financial relationship between the parties to this case.
Proposals
Husband
The husband sought an outcome which would provide for him to receive the monies held in the controlled monies account from the proceeds of sale of the Property A property, that a superannuation spitting order be made which would provide for him to receive $30,000.00 from the wife’s superannuation, and that otherwise each party retain the remaining assets in their possession. The husband sought a two pools approach, with the husband to receive 60% of the non-superannuation pool and 50% of the superannuation pool. As referred to earlier, he also sought that the wife’s redundancy payment be ‘added back’ into the pool.
The precise orders sought by the husband were as follows:
1. That the balance of proceeds of sale in the amount of approximately $117,087.39 currently held in the Trust Account of Johnston Tobin Solicitors be paid to the Applicant.
2. That in accordance with Section 90MT (1)(a) of the FamilyLawAct1975 (the Act), whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of Ms Slevin from her interest in (omitted) Super, Mr Skipper entitled to entitled to (sic) be paid by the trustee of (omitted) Super, the amount calculated in accordance with Part 6 of the Family Law Superannuation Regulation 2001, using a base amount of $30,000.00 and that there be a corresponding reduction in the entitlement Ms Slevin would have but for this order.
a. That having been accorded procedural fairness in relation to the making of this Order, this order binds the Trustee of (omitted) Super.
b. The operative time of Order 2 is four (4) business days after the service of a certified copy of the original sealed Final Orders on the Trustee.
3. That otherwise then as provided for herein each party shall relinquish in favour of the other party any claim to a right, title or interest in any items of property presently in the possession or custody of the other party including but not limited to real property, monies held in any bank, building society or credit union, shares, Superannuation or life entitlements, motor vehicle, chattels, furniture, furnishing and personal effects.
4. Unless otherwise specified in these orders each party shall be liable for payment of any debt incurred in their sole name or jointly with any other person or encumbering any property retained by the party in accordance with these orders and shall indemnify and keep indemnified the other party in relation thereto.
5. That any debts incurred by either party since the date of separation by (sic) the sole Responsibility of the individual incurring such debt and such party agrees to indemnify the other party in full against any requirement to contribute to any such debt.
6. That the parties will do all acts and things and execute all documents, instruments, authorities and writings and give all contents (sic) necessary to give effect to the orders made herein. In the events of either party neglecting or refusing to execute such deeds, documents, etc, the registrar of the Family Court (sic) is hereby empowered to execute such deeds, documents, etc pursuant to Section 106A of the Family Law Act 1975 as amended to give validity to the operation of the deed or instrument.
Wife
The wife initially sought an outcome whereby the monies held in the controlled monies account be divided between the parties 53% to the husband and 47% to the wife, the wife pay the husband a further $2,434.00, and that otherwise each party retain the assets in their respective possessions. However, by the conclusion of the hearing, the wife conceded an adjustment in the husband’s favour for future needs and sought an overall division which would see the husband receiving 58% of the trust monies (and the wife 42%) and otherwise each party retain all other assets in their possession, including superannuation.[5] The wife also sought the husband pay her legal costs incurred since 31 October 2016.
[5] See Transcript, 18 November 2016, pages 90-91.
The precise orders sought by the wife were as follows:
1. That the net proceeds of sale of Property A (“the home”) currently held in the controlled monies account be divided between the parties as to 53% to the Applicant and 47% to the Respondent.
2. That the Respondent pay the Applicant the sum of $2434 being for rates and water usage whilst she had sole occupation of the home.
3. That unless otherwise specified in these orders:
a) Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's record thereof, insurance policies are deemed to be in the possession of the owner thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements, and the chattels in the home are deemed to be in the possession of the husband;
b) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders
4. That the Applicant pay the Respondent's legal costs incurred since 31 October 2016.
As stated, the wife’s minute of orders sought were verbally amended during submissions.
Issues
The following issues arise in this case:
·whether the wife’s redundancy payment of $70,651.00 should be added back to the pool (or added back in-part), noting that by the conclusion of the hearing, the husband reduced the amount claimed by way of ‘add back’;
·the respective contributions of the parties (that is, their initial and subsequent financial and non-financial contributions and contributions to the family);
·whether any further adjustment should be made for s.90SF(3) and related factors, noting that the wife concedes a small adjustment in the husband’s favour being 5% given his age and the minor disparity in their annual earnings received; and
·costs, noting that only the wife is seeking an order for costs.
Although referred to briefly during submissions, the wife did not ultimately press a ‘Kennon’ argument.[6]
[6] An argument based on the comments made by the Full Court in Kennon v Kennon (1997) 22 Fam LR 1.
I note that by the conclusion of the hearing it was agreed that the wife would pay ‘arrears in land and water rates’ totalling $2,434.00 from her share of the property settlement and that the issue relating to the wife’s ‘missed mortgage payments’ was ultimately not pressed.
Evidence of the parties
Both parties provided the Court with affidavit and oral evidence and were cross-examined.
A number of documents were tendered by each party in support of their case which have been considered as part of this decision.
Husband
The following documents were relied upon by the husband:
·Amended Initiating Application filed 21 October 2016;
·His Affidavit sworn and filed on 21 October 2016; and
·His Financial Statement filed 10 November 2015.
The husband also relied on his case outline document filed on 16 November 2016.
The husband additionally tendered a bundle of documents relevant to the proceedings which was marked as “A1.”
The husband was a well-spoken witness although presented as somewhat angry and disappointed. Although the husband was able to make some concessions when pressed, he was quite argumentative and determined to make his point. That said, he presented as genuine and clearly believes that he was deceived by the wife.
Wife
The following documents were relied upon by the wife:
·Response filed 26 February 2016;
·Her Affidavit sworn and filed 26 February 2016;
·Her Financial Statement filed 26 February 2016; and
·Her Affidavit sworn and filed on 4 November 2016.
The wife also relied on her case outline document filed on 16 November 2016.
The wife additionally tendered a bundle of documents relevant to the proceedings which was marked as “R1.”
The wife also presented as well-spoken and confident witness. While she was able to make some concessions when pressed, she was also determined to make her point. Much of the wife’s credibility as a witness rested on her explanations for her expenditure of the relevant redundancy payment she received during the relationship. While some of the wife’s explanations regarding the expenditure of the redundancy payment appeared genuine (eg. paying her children’s medical bills, paying for a holiday and paying for a car), other explanations did not seem plausible (eg. multiple withdrawals in short periods of time, in particular during December 2014).
Discussion
The Court will now consider the parties’ proposals and submissions in light of the legislative requirements and the available evidence.
Identifying and valuing the parties’ property and interests
As stated, the Court must firstly ascertain what property the parties have available for distribution. This requires the identification and valuation of the parties’ property, liabilities and financial resources. Generally speaking, the identification and valuation is at the date of the final hearing.[7] This will enable the Court to ascertain the net property ‘pool’.
Joint balance sheet[8]
[7] Warne & Warne (1982) 8 Fam LR 388 at 389 (per Simpson J; Strauss and Hase JJ agreeing); also see Omacini & Omacini (2005) 33 Fam LR 134 at 142 (per Holden, Warnick and Le Poer Trench JJ).
[8] As received by email to my Chambers on 21 November 2016.
The parties provided the following ‘joint balance sheet’.[9] Unless otherwise indicated, the values of the following assets and liabilities are agreed:
[9] In the table, ‘W’ refers to property registered in the Respondent de facto wife’s name or otherwise legally owned by her or in her possession and ‘H’ refers to property registered in the Applicant de facto husband’s name or otherwise legally owned by him or in his possession.
| Ownership | Description | Husband’s value | Wife’s value | ||
| ASSETS | |||||
| 1 | Joint | Proceeds sale Property A | $117,087.39 | $117,087.39 | |
| 2 | Omitted[10] | ||||
| 3 | W | Motor Vehicle – (omitted) | $4,000.00 | $4,000.00 | |
| 4 | H | (omitted) Bank Account | $137.00 | $137.00 | |
| 5 | W | (omitted) Bank Account | $2,406.00 | $2,406.00 | |
| 6 [11] | |||||
| 7 | |||||
| Total | $123,630.39 | $123,630.39 | |||
| ADDBACKS | |||||
| 8 | W | Land & water rates (agreed payable by Respondent)[12] | $2,434.00 | $2,434.00 | |
| 9 | W | Redundancy Payment[13] | $70,651.00 | 0.00 | |
| 10 | Omitted[14] | ||||
| 11 | Omitted[15] | ||||
| 12 | H | Greater initial contribution | $36,000.00 | $36,000.00[16] | |
| 13 | Omitted[17] | ||||
| Total | $109,085.00 | $38,434.00 | |||
| LIABILITIES | |||||
| 14 | Nil joint liabilities | ||||
| Total | |||||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Husband’s value | Wife’s value | |
| 15 | H | (omitted) | $60,000.00 | $60,000.00 | |
| 16 | W | (omitted) Super | $83,000.00 | $83,000.00 | |
| Total | $143,000.00 | $143,000.00 | |||
| FINANCIAL RESOURCES[18] | |||||
| Ownership | Description | Husband/de facto partner’s value | Wife/de facto partner’s value | ||
| 17 | H | Income | $907/week | ||
| 18 | W | Income | $E1,200/week | ||
| Total | $ | ||||
[10] This item was subsequently omitted by the parties. It referred to the division of “furniture and household contents”.
[11] Items 6 and 7 were blank rows in the Joint Balance Sheet.
[12] This item was agreed in submissions to be omitted by the parties. It referred to outstanding ‘land and water rates’ and it was agreed by the parties that the wife would pay (or adjust) the amount outstanding (being $2,434.00) from her share of the division of the sale proceeds held in trust for the parties; see Transcript, 18 November 2016, page 84.
[13] The inclusion of this item is in dispute.
[14] This item was subsequently omitted by the parties. It referred to ‘Unauthorised withdrawals from Joint Account.’
[15] This item was subsequently omitted by the parties. It referred to ‘Missed mortgage payments.’
[16] The wife asserts that this figure should be considered as a contribution as opposed to an addback.
[17] This item was subsequently omitted by the parties. It referred to ‘Additional post separation contributions to mortgage, insurance and rates.’
[18] Ultimately each party made submissions in relation to the income of the parties in the context of s.90SM.
Areas in dispute
To determine the net available property pool, the only matters that require determination are the issues of the addback of the wife’s redundancy payment of $70,651.00 and whether the ‘greater initial contributions’ by the husband should be included as an addback.
I note again that the issue of whether the arrears in council and water rates by the wife should be added back into the pool was resolved by the conclusion of the hearing.[19]
[19] Transcript, 18 November 2016, page 84.
Addback of wife’s redundancy payment
The parties are in dispute as to whether the wife’s redundancy payment of $70,651.00 should be ‘added back’ to the pool (or partially added back).
By the conclusion of the hearing, the husband reduced the amount claimed by way of add back to $42,250.25, or in the alternative, $32,584.19. In relation to the relevant redundancy certificate,[20] the husband claims the add back of ‘item 1’, ‘item 2’, ‘item 3’ and ‘item 5’ of the wife’s redundancy payment (being a total $42,250.25) or, in the alternative, ‘item 1’, ‘item 2’ and ‘item 3’ only (being a total of $32,584.19). I note that if one reconciles these figures with the relevant redundancy statement, it is clear that these amounts are gross payments pre-tax. The figures disclose that a net sum of $22,320.18 was referrable to items 1, 2, and 3 and a net sum of $31,986.24 if item 5 (which appears to have not had tax deducted from it) is included.
[20] The wife’s Employment separation certificate formed Annexure J of her affidavit sworn and filed on 4 November 2016.
The wife opposes the add backs sought in respect of her redundancy payment.
I am not persuaded that the wife’s redundancy payment (or part of it) should be ‘added back’ into the property pool, however I am persuaded by the argument that part of the wife’s redundancy payment should be considered under s.90SF(3)(r) of the Act. I will consider this further later in these reasons.
Addback of husband’s greater initial contribution
Although the sum of $36,000.00 was an agreed figure for the purposes of the balance sheet, the wife submits that this figure should be considered in light of the contributions of the parties as opposed to being an ‘add back’.
During the hearing, the Court raised with the parties whether this entry was appropriate to be added to the balance sheet. Nevertheless, I note that it was included in the final version of the balance sheet, and as a consequence, it is appropriate to make a finding as to its relevance.
I am not persuaded that the husband’s greater initial contribution should be ‘added back’ into the property pool. That said, I will consider this issue further when I consider the relevant evidence as to contributions made by each party.
Balance sheet findings
Given the above determinations, the Court finds that the net available property pool is at least $266,630.39, being non-superannuation assets totalling $123,630.39 and superannuation entitlements totalling $143,000.00. This sum is made up as follows:
| Ownership | Description | Value | ||
| 1 | Joint | Monies held in trust | $117,087.39 | |
| 2 | W | Motor Vehicle – (omitted) | $4,000.00 | |
| 3 | H | (omitted) Bank Account | $137.00 | |
| 4 | W | (omitted) Bank Account | $2,406.00 | |
| Sub-total | $123,630.39 | |||
| Superannuation | ||||
| Member | Name of Fund | Value | ||
| 5 | H | (omitted) | $60,000.00 | |
| 6 | W | (omitted) Super | $83,000.00 | |
| Sub-Total | $143,000.00 | |||
| Total | $266,630.39 | |||
Is it just and equitable to make any order?
Both the husband and the wife are before the Court seeking orders altering their property interests.
The Court is satisfied that this is a matter where it is just and equitable that orders be made adjusting property between the parties.
Global or asset-by-asset assessment of contributions
Before going any further I note that the circumstances of this case may make it more appropriate for the Court to consider the contributions of the parties on an ‘asset-by-asset approach’ rather than in a ‘global’ sense. In the High Court decision of Norbis & Norbis (1986) 161 CLR 513; (1986) 10 Fam LR 819; [1986] FLC 91-712, Mason, Deane, Dawson, Brennan and Dawson JJ, held that the adoption of the asset by asset approach by a judge was a discretionary matter and that both the global approach and the asset by asset approaches were legitimate and that the circumstances of the approach dictate which is more convenient. The importance is that justice and equity are served by either approach.
Although neither party advocated for a strict asset by asset assessment, the husband did submit that the circumstances warranted a two-pools approach with the parties’ superannuation entitlements being separated into a separate pool. The wife did not support the parties’ superannuation being treated as a separate pool of property (although during submissions she did appear to submit that the sale proceeds themselves should be treated as a separate pool). In C & C [2005] FamCA 429; (2005) 33 Fam LR 414; (2005) FLC 93-220 the Full Court[21] stated the following at paragraph 65:
65. … the trial judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
(a) value the superannuation interest (according to the regulations if an order under Pt VIIIB is sought or according to the regulations or otherwise if no order is sought);
(b) consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
(c) consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
(d) ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Pt VIIIB in relation to superannuation interests are just and equitable.
[21] Bryant CJ, Finn and Coleman JJ (Warnick J and O’Ryan J agreeing in the result, but disagreeing in part as to the reasoning).
Although the parties’ arguments for and against a ‘two pools’ approach are balanced, given the circumstances, including the length of cohabitation, I am satisfied that the party’s respective superannuation entitlements should be separated into a ‘separate pool’. However, I am not satisfied that the sale proceeds should also be treated as a separate pool.
Contributions
As stated, the Court is required to consider the parties’ contributions made on and from the commencement of their relationship,[22] during their relationship and following separation.[23]
[22] In the Marriage of Oliver (1978) 4 Fam LR 360; (1978) FLC 90-499.
[23] In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92-335.
Financial and non-financial contributions
Contributions made prior to relationship
The wife argues that at the commencement of the relationship, she owned a property and the husband lived there for nine months and did not contribute towards the mortgage.
The husband says that he lived with the wife for about six months and made contributions of $70.00 per week board and spent $50.00 per week on groceries. The wife disputes this.
I find that both parties made contributions at the commencement of the relationship.
Contributions made during relationship and following separation
The parties purchased the Property B property in approximately (omitted) 2005. The husband contributed approximately $58,000.00 to the purchase and the wife contributed an initial $22,000.00 to service the mortgage. The wife says that she made greater payments to the joint account to compensate for the difference in initial contributions.
The parties jointly presented to the Court an aide memoir, which reflects that the husband contributed $172,933.00 and the wife $152,960.00 to the joint account during the period of ownership of the Property B property. Post separation, it was also agreed that the husband contributed $10,214.00 and the wife $13,367.00 directly to the mortgage account. The husband also paid house insurance and rates in the sum of $2,444.00 post separation. Prior to separation, the parties agree that the husband deposited $7,700.00 and the wife $15,797.00 into the (omitted) Bank joint account.
The husband argues that he made greater financial contributions during the relationship for living expenses.[24]
[24] Transcript, 18 November 2016, page 94.
The husband also asserts that he did work on improvements, painting and repairs to the two houses.
The wife says that throughout the relationship the parties made similar non-financial contributions. She further asserts the parties’ total financial contributions at the date of the hearing are similar.
I find that both parties made contributions during the relationship and following separation.
Family contributions (as homemaker and parent)
The husband says that he assisted with the cooking, washing and cleaning of the household, including mowing the lawns.
The wife says that she “would look after inside the house and he [the husband] would look after outside. This is what we had agreed to and what worked best for both of us and our capabilities. I did the washing, cleaning, shopping and cooking and Mr Skipper maintained the yard.”[25]
[25] Affidavit of wife sworn and filed on 4 November 2016, paragraph 22.
I find that both parties have made a contribution to the family pursuant to s.90SM(4)(c).
Contributions analysis
I am satisfied that overall, the contributions made under section 90SM(4)(a) and (b) equalised over time. Given that some of the monies received from the redundancy payment were used for the wife’s children in the last year of the relationship, I am also satisfied that contributions for section 90SM(4)(c) equalised over time.
Given the available evidence, the Court is satisfied that the parties made equal contributions for the purposes of s.90SM(4)(a), (b) and (c).
Section 90SM(4) (and related) factors
As stated, the Court must have regard to the relevant factors under s.90SM(4)(d) to (g) of the Act in light of the evidence.
Section 90SM(4)(d): effect of any proposed order upon the earning capacity of either party to the de facto relationship
I am satisfied that none of the proposed orders will affect either party’s earning capacity.
Section 90SM(4)(e): matters referred to in sub-section 90SF(3) so far as they are relevant
(a)The age and state of health of each of the parties
As stated, the husband is aged 60 and the wife is aged 48, there being an age gap of approximately 12 years between the parties.
The husband is in good health. The wife says that she has mental health issues relating to anxiety and depression which have previously precluded her from working.[26]
(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
[26] Wife’s Case Outline dated 16 November 2016, page 2.
The wife is a (occupation omitted). The husband is a (occupation omitted).
The wife has a greater earning capacity than the husband. She has an ability to earn a (occupation omitted) salary of approximately $80,000.00 per year. The wife’s evidence is that she is currently in full time employment and is on a salary of approximately $73,903.00.
The husband’s age limits his future earning capacity.
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years
The wife has three children from previous relationships that are now aged 18 years or more.
(d)Commitments of each of the parties that are necessary to enable the parties to support; himself or herself; 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
As stated, the wife’s three children are over the age of 18. The husband has no children.
The Court is not aware that either party has any responsibility to support any other person.
(f)The eligibility of either party for a pension, allowance or benefits…
The husband has superannuation in the amount of approximately $60,000.00 whilst the wife has superannuation in the amount of $83,000.00.
Although the wife may have previously received a government assisted Family Tax Benefit, the wife’s children, as stated, are now aged over 18 years.
(g) a standard of living that in all the circumstances is reasonable
I am satisfied that the Orders to be made in this matter will provide a reasonable standard of living for the parties having regard to their modest assets and liabilities and the circumstances existing at the present time.
(h)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
This subsection is not relevant to the present dispute as neither party is seeking maintenance.
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
I am satisfied that on the evidence presented, there are sufficient assets to satisfy the claims of all known creditors.
(j)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
This subsection is not relevant to the present dispute as neither party is seeking maintenance.
(k)Duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The parties were in a de facto relationship for a period of approximately 10 years.
(l)Need to protect a party who wishes to continue that party's role as a parent
Although now aged 18 years, the wife submits that her youngest son Mr C is likely to be dependent on her for years to come given her assertion that he suffers from mental health issues.
(m)If either party is cohabiting with another person – the financial circumstances relating to the cohabitation
The wife’s children Ms B and Mr C lived with the parties during the relationship. The wife submits that her youngest son is likely to be dependent on her for years to come given his mental health issues.
The husband does not have any children. The Court is not aware that either party has re-partnered or the husband is cohabiting with another person.
(n)Terms of any order made or proposed to be made under section 90SM
These proceedings involve competing applications for property adjustment and not spousal maintenance.
(o) and (p) Terms of any order or declaration made, or proposed to be made, under this Part in relation to a party to the subject de facto relationship (in relation to another de facto relationship) etc
This consideration is not relevant to the present dispute.
(q)Any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship
This consideration is not relevant to the present dispute.
(r)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
It is relevant to consider the issue of the wife’s redundancy payment under this sub-section. The husband submits that the wife wastefully dissipated the redundancy payment on unnecessary spending. The wife disputes this and argues that the money received was spent on legitimate living expenses.
I am persuaded by the argument that there should be a notional ‘add back’ of part of the wife’s redundancy payment under this sub-section. Although some of the larger expenditures by the wife were clearly reasonable, such as buying a car, paying the children’s medical bills, and going on a holiday, some of the expenditure was clearly more than one would expect in the circumstances. There were undoubtedly a large number of cash withdrawals that raise suspicion and I find that such represents a pre-mature distribution of relevant property that the wife had the advantage of.
In terms of the wife’s spending of the redundancy payment, the Court is satisfied that a further 5% adjustment should be made in the husband’s favour. In cash terms, and based upon the value of the available non-superannuation asset pool, this is a further adjustment of approximately $6,181.50 in the husband’s favour.
While there is a question mark whether the wife was entirely honest about who drew out the monies for the ‘pokies’, it is difficult for the Court to make a finding in this regard as both parties had access to the relevant cash card. Accordingly, no further adjustment is appropriate.
(p)The terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship
This consideration is not relevant to the present dispute.
(q)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
This consideration is not relevant to the present dispute.
Section 90SM(4)(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
This consideration is not relevant to the present dispute.
Section 90SM(4)(g) any child support under the Child Support (Assessment) Act 1989that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
This consideration is not relevant to the present dispute.
Further adjustment analysis
In this case, given the various findings made above in relation to contributions and the s.90SM(4) and related factors, and given the fact that the parties are no longer living in a de facto relationship, I consider that it would be just and equitable to alter the parties’ interests in their property.
I note that the wife conceded a 5% adjustment to the husband for section 90SF(3) factors given the age and minor income differential. This was an appropriate concession as I find that this further adjustment is warranted.
As stated, in relation to the non-superannuation pool, the Court finds that a just and equitable outcome would be a distribution equal to 50% to each party, with the additional conceded 5% adjustment to the husband for s.90SF(3) and related factors. In addition, the Court finds that a further 5% adjustment in the husband’s favour under section 90SF(3)(r) of the Act would be just and equitable in the circumstances of this case. This would equate to a distribution of non-superannuation assets representing a distribution of 60% to the husband and 40% to the wife.
As I stated earlier, given the circumstances, I am satisfied that the parties’ respective superannuation entitlements should be separated into a ‘separate pool’. I find that the superannuation ‘pool’ should be notionally divided 50% to each party. This will necessarily involve a modest superannuation splitting order involving the wife’s superannuation. The relevant orders would be stayed pending receipt of correspondence confirming that procedural fairness had been afforded to the relevant superannuation trustee.
Conclusion
This case concerns a ten year relationship where the assets available for distribution are relatively modest.
Overall, the Court is satisfied that the parties should receive, in net terms, property to the value of 60% to the husband and 40% to the wife of the non-superannuation pool. As stated, the superannuation pool will be divided equally between the parties.
Based on the net known non-superannuation pool, the overall distribution to the husband (in monetary terms) would be $74,178.23.
The overall distribution to the wife (in monetary terms) will be $49,452.16. However, the wife has agreed to pay the husband from her overall distribution the sum of $2,434.00 being reimbursement of arrears in council and water rates.[27]
[27] Transcript, 18 November 2016, page 84.
The superannuation pool will be divided equally, with each party to receive $71,500.00. As stated, this will involve a modest super splitting order involving the wife’s superannuation with the relevant orders being stayed pending receipt of correspondence confirming that procedural fairness had been afforded to the relevant superannuation trustee.
There will be orders for the parties to cause the trust monies to be divided $74,041.23 to the husband and $42,046.16 to the wife. The wife will retain her motor vehicle and monies held in her bank account whilst the husband will retain the monies held in his own bank account. The division of net known non-superannuation pool may be summarised as follows:
Husband’s distribution: $74,178.23 (60%)
(omitted) Bank Account $137.00 Add trust monies to be received $74,041.23 Total $74,178.23
Wife’s distribution: $49,452.16 (40%)
Motor Vehicle – (omitted) $4,000.00 (omitted) Bank Account $2,406.00 Add trust monies to be received $43,046.16[28] Total $49,452.16 [28] As stated, the wife has agreed to pay the husband from her overall distribution the sum of $2,434.00 being reimbursement of arrears in council and water rates.
There will be an order, pursuant to s.106A of the Act, to take effect in the event of default in signing any required documentation.
I note again that the wife sought an order for costs. In the event that either party seeks to press a costs order in light of this decision, then an Application in a Case and relevant supporting affidavit should be filed and the Court can consider these issues separately.
The Court is satisfied that the above outcome is just and equitable.
I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 30 March 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Procedural Fairness
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Costs
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Stay of Proceedings
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Remedies
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Jurisdiction
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