Sobol & Sobol
[2023] FedCFamC1F 1065
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sobol & Sobol [2023] FedCFamC1F 1065
File number(s): BRC 8587 of 2021 Judgment of: BAUMANN J Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – PROPERTY – Significant compensation payments received by the husband from his medical discharge from the Australian Defence Force – Husband’s superannuation treated as a financial resource and not as an asset – property adjustment orders made that achieve justice and equity for both parties Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Aleksovski & Aleksovski (1996) FLC 92-705
Cahill & Cahill (2006) FLC 92-253
Hickey & Hickey (2003) FLC 93-143
Robb& Robb (1995) FLC 92-555
Stanford & Stanford (2012) 247 CLR 108
Townsend & Townsend (1994) 18 Fam LR 505
Division: Division 1 First Instance Number of paragraphs: 40 Date of last submission/s: 3 March 2023 Date of hearing: 9-10 February 2023 Place: Brisbane Counsel for the Applicant: Mr M Drysdale KC Solicitor for the Applicant: Biggs Fitzgerald Pike Counsel for the Respondent: Mr R Clark Solicitor for the Respondent: Allan R De Brenni & Company ORDERS
BRC 8587 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SOBOL
Applicant
AND: MS SOBOL
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
14 December 2023
THE COURT ORDERS:
1.That the nett proceeds of sale of the former matrimonial home at B Street, Suburb C (“the Suburb C property”) currently held in the Trust Account of Biggs Fitzgerald Pike Solicitors be divided between the parties in the following manner:
(a)In payment of the sum of $140,000.00 to the wife; and
(b)In payment of the balance to the husband,
and this Order constitutes sufficient authority from the parties to Biggs Fitzgerald Pike Solicitors to make the payments referred to above.
2.That the wife transfer to the husband and the husband retain for his sole use and benefit absolutely the following:
(a)Moneys standing to the credit of any bank account held in the name of the husband.
(b)Moneys paid to the husband by way of interim distribution from the nett proceeds of sale of the Suburb C property prior to the date of these Orders;
(c)The husband’s Motor Vehicle 1.
(d)The husband’s Motor Vehicle 2.
(e)The husband’s interest in his Military Superannuation.
3.That the husband transfer to the wife and the wife retain for her sole use and benefit absolutely the following:
(a)Moneys standing to the credit of any bank account held solely in the name of the wife;
(b)Moneys paid to the wife by way of interim distribution from the nett proceeds of sale of the Suburb C property prior to the date of these Orders;
(c)Motor Vehicle 3 in the wife’s possession; and
(d)The wife’s interest in Superannuation Fund 2.
4.That the husband be responsible for and indemnify the wife and keep her indemnified in relation to any debts or liabilities held solely in his name, including but not limited to:
(a)his Commonwealth Bank Mastercard liability;
(b)his ANZ personal loan; and
(c)the personal loan associated with the acquisition of Motor Vehicle 2.
5.That the wife be responsible for and indemnify the husband and keep him indemnified in relation to any debts or liabilities held solely in her name.
6.That except as otherwise provided in this Order, the husband and the wife are entitled to be the sole legal and beneficial owners of all items of property including (but not limited to) money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sobol & Sobol has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODCUTION
The parties cohabited between 1997 and 2020 – a period of over 22 years. Their modest nett assets of just over $648,000 was not the major focus of this property dispute.
Rather the weight to be attributed (and to whom) to significant compensation payments received by the husband from his medical discharge from the Australian Defence Force, and how the Court should deal with the husband’s benefits (particularly his rights to an invalidity pension) caused the most unresolved conflict between the husband and wife.
These Reasons seek to explain how the Court has come to the determination of what orders achieve justice and equity for both the husband and the wife.
CONTEXTUAL BACKGROUND
Statements of fact hereafter shall be construed as findings of fact.
The wife was born in 1966 and the husband was born in 1970. The husband enlisted in the Australian Defence Force in 1988 at the age of 17 years and was discharged on medical grounds in 2013 after 25 years of military service.
When the parties commenced cohabitation in 1997, the wife was 30 years of age and had the care of her daughter Ms E (from an earlier relationship) who was only then 16 months of age, having been born in 1996. The wife’s two sons, Mr F and Mr G, were living in Adelaide and continued to do so for most of their infancy. The husband at the time of cohabitation was aged 26 years.
The parties were blessed with the birth of their son Mr H in 2003, having married 12 months earlier.
It is not necessary to record the number of deployments, postings and events associated with the husband’s employment in the Defence Force, some of which, where relevant, are referred to later in these Reasons when discussing contributions. However, before the husband, who was always the main “breadwinner” in the family, was discharged in 2013, it is not disputed that:
(a)in 2012, the husband received the sum of $179,426 by way of compensation payment for injuries sustained in the course of his service, paid by the Department of Veterans Affairs (“DVA”); and
(b)the parties purchased the former matrimonial home at B Street, Suburb C (“the family home”) for $630,000, with settlement occurring in 2012. A portion of the compensation payment was used with borrowings of $560,000 as a Defence Force home loan as facilitated by the National Australia Bank meeting the difference, including costs of purchase, stamp duty etc.
Upon his discharge on medical grounds, the husband has been unable to work, but in addition to a number of lump sum compensation payments received, the husband estimates totalling $936,328 in the period from 2012 to 2019 (paragraph 42 of the husband’s trial affidavit filed 21 December 2022), he began to receive a fortnightly invalidity pension and service pension paid by the DVA. This stream of income is summarised below, however these fortnightly benefits were further supplemented between July 2013 and September 2013 by a number of other payments for other entitlements as are detailed at paragraph 43 of the husband’s trial affidavit, totalling $218,544.12.
The husband says (at paragraph 59) and I accept, that during the relationship and up until 30 January 2020:
The whole of the payments received by way of my injury compensation payments, the Military Invalidity Pension and DVA Service Pension were deposited into our joint National Australia Bank Account No. […48] up until 30 January 2020 (approximately 3 weeks after our final separation). These moneys were used to acquire property, to preserve and maintain property and to pay for day to day living expenses…
The husband’s decision to travel to Country J in late 2019 alone was seen by the wife as conduct demonstrating the marriage was over, and on 10 January 2020 solicitors for the wife communicated to the husband (who was still overseas at the time) that the wife regarded that the marriage had broken down irrevocably. Although the husband did not return to Australia until after this date, I accept that final separation should be regarded as occurring on 10 January 2020 – after a relationship to that time of over 22 years.
It came as a surprise to the husband that commencing 2 January 2020, the wife effected a series of withdrawals from the joint bank account and Commonwealth Bank of Australia Mastercard account which he estimated totalled approximately $120,864. These transactions and the wife’s use of those funds, together with the somewhat confusing conduct of the wife relating to the insurance of Motor Vehicle 4 (purchased by the husband in 2019 for $78,000), which the wife asserts was stolen on or before 12 January 2020, were the main focus of the wife’s cross-examination conducted by Senior Counsel for the husband, Mr Drysdale of King’s Counsel.
The wife initially commenced property proceedings in April 2020, shortly before the wife received an insurance payout of $80,000 under the insurance policy (then in her name solely) relating to the alleged theft of Motor Vehicle 4. However, when the husband and wife decided they would try to resolve their property dispute without further litigation or financial mediation, each party filed a Notice of Discontinuance. Unfortunately, after being unable to resolve the dispute through private negotiations, the husband filed an Application for property settlement on 30 June 2021, and the matter progressed to trial before me for two days commencing 9 February 2023, with written submissions concluded thereafter by 3 March 2023.
The Court expresses its regret to the parties for the delay in producing these Reasons for Judgment.
PRINCIPLES TO BE APPLIED
Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:
(a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
(b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4) of the Family Law Act 1975 (Cth) (“the Act”) ;
(c)to consider the factors as are relevant contained in s 75(2) of the Act; and
(d)finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.
Both legally represented parties contended it was just and equitable to make property adjustment orders (s79(2)) and I agree, applying the principles enunciated by the High Court in Stanford & Stanford (2012) 247 CLR 108.
POOL OF INTERESTS
In the husband’s written submissions, the pool (consistent with the husband’s trial affidavit) was estimated at a nett figure of $651,253.62 (excluding the husband’s military superannuation invalidity payments) and in the wife’s submissions (at paragraph 37), this pool is accepted save for:
(a)the wife contended that Motor Vehicle 5 (value $3,000) should be excluded as the vehicle is now registered in the name of the parties’ son, Mr H. The husband does not wish to maintain his position about Motor Vehicle 5 being included; and
(b)at paragraph 36 of the written submissions, Counsel for the wife asserted that the wife “has never conceded that the property pool should exclude the military super invalidity pension and, respectfully, there is sufficient grounds that could be argued that make it just and equitable not to exclude the military super invalidity pension.”
As I explain next, it is my view that consistent with authority, the appropriate approach is to regard the husband’s military superannuation pension as a financial resource under s 75(2) and not as an “asset” included (at the value agreed from the expert evidence of Mr K) in stage one of the usual analysis as part of the pool of interests.
On this basis, I find the pool of interests to be as follows:
ASSETS
OWNER
ITEM
VALUE
Joint
Nett sale of proceeds of former matrimonial home
$337,225
Wife
Interim distribution
$90,000
Husband
Interim distribution
$90,000
Husband
Motor Vehicle 1
$10,000
Husband
Motor Vehicle 2
$22,700
Wife
Motor Vehicle 3
$19,500
$569,425
ADD BACKS
Husband
Funds spent on legal fees
$33,061
Wife
Funds spent on legal fees
$25,000
Wife
Funds paid by the wife to her brother
$6,000
Wife
Moneys withdrawn by the wife following separation
$37,870
Wife
Moneys withdrawn by the wife on 2 January 2020
$5,000
$106,931
SUPERANNUATION
Wife
Superannuation Fund 2 entitlement
$16,820
$16,820
Total assets
$693,176
LIABILITIES
Husband
ANZ personal loan
$15,116
Husband
Motor Vehicle 2 loan
$24,332
Husband
Commonwealth Bank Mastercard
$5,475
Total liabilities
$44,923
NETT COMBINED POOL
$648,253
Although the wife’s submissions did not challenge the inclusion of the premature dispositions by the wife, the evidence demonstrates that is what occurred and applying Townsend & Townsend (1994) 18 Fam LR 505, the funds withdrawn should be “added back” notionally, unless an adequate explanation for the use of the funds was given on oath by the wife. The husband’s submissions reveal sensible concessions about some of the funds accessed by the wife, leaving the balances set out above to be included in the pool of interests. I agree.
HUSBAND’S INVALIDITY PENSION
Mr K was engaged by the husband as an expert to provide a report as to the characteristics and valuation of the husband’s interest in his Military Superannuation. At the time of the hearing before me, the husband disclosed that he was receiving a payment of effectively $2,022 (gross) a week, payable fortnightly ($105,144 per annum).
Although at one time the wife challenged the opinions of Mr K and engaged her own expert, Mr D, I ordered on 28 September 2022 that the two experts confer and thereafter provide a memorandum of their conference setting out areas of agreement and disagreement.
On 28 October 2022, the two experts conferred, and arising from that conference a signed joint expert statement dated 1 November 2022 and filed 7 November 2022 issued, which stated that:
The experts agree on all the calculations of the five family law valuations presented in [Mr K’s] affidavit signed on 29 Aug 2022.
The experts agree on all the calculations in relation to the ordinary superannuation and the compensation element presented in [Mr K’s] affidavit signed o 29 Aug 2022.
In discussions between the experts, it was noted that the ordinary superannuation had a price basis of 30 Jun 2013. Any base amount would ideally reflect changes in investment for the funded component and CPI for the unfunded component from 2013 to the present date.
(As per the original)
The reference to a “base amount”, I take to be a reference to a sum to be considered if a superannuation splitting order was being considered. The husband properly conceded that the nature of his superannuation (in its payment phase) was splitable. The wife sought an order in effect that she receive $300,000 as a base sum from the husband’s superannuation interest, which would be paid to her as a pension. The husband opposes any splitting order – a topic I shall return to when discussing what orders do justice and equity.
On the basis of an acceptance of Mr K’s expert report, for context, I summarise the following opinions of relevance:
(a)The report addresses the form, function and nature of the Military Superannuation Invalidity Pension and also identifies the component of the pension that relates to Mr Sobol’s compensation for personal injury following his medical discharge;
(b)The invalidity pension consists of a mix of ordinary superannuation and compensation for personal injury. The report quantifies that element that is not related to ordinary superannuation – the element that is not ordinary superannuation is compensation;
(c)The invalidity classification under the Military Superannuation is reviewable, and as such precludes the payment of a lump sum as the very intention of the invalidity pension is for it to change in accordance with the changing circumstances of the member;
(d)If the husband’s health was to improve and a split benefit had been ordered, this would not diminish the benefit for the wife, but for the husband it could mean his pension could be reduced to zero. Obviously, the effect of a splitting order is an immediate reduction in the husband’s pension and any lump sum which might be payable to him – noting the lump sum payment is fully preserved and cannot be accessed until at least his preservation age;
(e)Any splitting order would apply to both the pension and any lump sum, and it is not possible to just specify the pension;
(f)The expert opined that the prescribed methodology requires a determination of the family law value before the granting of the invalidity pension. This amount equates to the retirement component;
(g)The expert concluded that at 13 July 2013, the total value of the invalidity pension was $1,607,439.76 being:
Compensation component
$1,044,923.18
Ordinary super
$562,516.58
As at 22 August 2022, the total value was $1,568,007.63 of which $1,019,204.96 represents the compensation component.
I will deal, when discussing contributions under s 79(4) of the Act, how these respective components are to be weighed into the other numerous and diverse contributions, but at this time it is appropriate to deal with the wife’s contention that the “lump sum” value should be included in the pool of interests rather than considered under s 75(2).
Although, as noted, the wife has “never conceded” that the property pool should exclude the military pension, I accept the written submissions of the husband’s Senior Counsel at paragraphs 56 to 60, relying on the Full Court decision in Cahill & Cahill (2006) FLC 92-253, and adopt as accurate that:
(a)the appropriate approach is to regard the husband’s Military Superannuation pension as a financial resource under s 75(2);
(b)the capital value, whilst required in the event a splitting order is sought does no more than represent a calculation of the value of future entitlements calculated in accordance with assumptions made under the regulations; and
(c)the pension represents, until the husband’s retirement age at least, compensation for a component of the husband’s lost income.
CONTRIBUTIONS
The wife acknowledged that the husband’s financial contributions do overwhelm those made by her. I find that there is much merit in the detailed analysis of contributions by the husband’s Senior Counsel at paragraphs 27 to 50 (excluding the reference to Robb & Robb (1995) FLC 92-555 which is properly to be considered under s 75(2)(o) and not s 79(4), and in summary:
(a)at the time of cohabitation in 1997, the husband owned a car and furniture, but importantly had an interest in his Military Superannuation, valued retrospectively by Mr K at $60,795.54, which had accumulated since the husband enlisted nine years earlier in 1988. The wife had few assets of significance;
(b)the husband was the primary source of income during the relationship. The wife did work from time to time, but her income was modest and not consistent;
(c)at paragraph 30 of the husband’s submissions, details founded on the evidence of employment related benefits, additional to merely the husband’s salary, are given – some of which were paid on his discharge. As an enlisted person, the husband received, and the family unit benefited from, subsidised military housing and subsidised home loan interest assistance;
(d)significant compensation payments, particularised at paragraph 41 of the husband’s affidavit were received – totalling $935,328.80 – with the first payment of $179,426.17 in 2012. Consistent with authorities such as Aleksovski & Aleksovski (1996) FLC 92‑705, these payments arising from the husband’s injuries should be treated as a contribution by him;
(e)the wife says, and I accept, that she assisted (with Mr L) in advocating for the husband’s entitlements with the DVA, however the compensation due to the husband arose from his injuries, and the care provided by the wife including advocating for him could only be described as a modest contribution, adopting as I do, the contentions on the evidence set out at paragraph 41 of the husband’s written submissions;
(f)the husband concedes, properly in my assessment, that the wife was the primary homemaker and parent to Mr H – and of course Ms E, the child from her earlier relationship. I do not ignore that life as a partner of a military person can be onerous – with the enlisted person often being away at times for long periods. Also, as in this case, postings to different locations requires adjustments for the family. To the extent that the wife sought to adduce some evidence from her psychologist which might be regarded as an attempt to seek a Kennon & Kennon (1997) FLC 92-757 type adjustment, no serious submissions were made by the wife to seek such adjustment, and as the husband’s written submissions assert, and I agree, there was a lack of admissible evidence about the conduct, impact and effect to support a finding that the wife’s non‑financial contributions were made more onerous; and
(g)post separation, the wife has accessed joint funds to the extent of around $235,000; and withdraw $28,119 from her superannuation entitlements, all of which accumulated during the relationship, and received $80,000 from an insurance payout on Motor Vehicle 4. The evidence around how the wife unilaterally changed the contract of car insurance whilst the husband was in Country J (allegedly with another woman), and the circumstances whereby the car was stolen – the day before the husband returned from overseas, had an air of suspicion about it. However, the Court is entitled to infer that the insurance company would not have made a payment under the contract of insurance unless they were satisfied they had a legal obligation to do so. The fact remains however, it was a vehicle which had been purchased in the husband’s name with funds from his compensation payments.
Taking all these various and diverse contributions into account over a relatively long relationship, I find the contribution-based entitlement to be 67.5% to the husband and 32.5% to the wife.
SECTION 75(2) FACTORS
Whilst the husband’s submissions (at paragraphs 51 to 86) on the evidence focused on three main issues, namely:
(a)the husband’s contribution to the care and support of Ms E, Mr F and Mr G;
(b)financial resources; and
(c)earning capacity,
the wife’s submissions (in reply) at paragraphs 45 to 52 commenced with the statement that “section 75(2) creates more imposing questions for the Court’s consideration.”
So that the parties are satisfied that I have dealt with all the relevant factors prescribed by s 75(2), I deal with those considerations sequentially in a narrative form:
(a)The wife is four years older than the husband and, by comparison to the husband, the wife enjoys reasonable health for a lady soon to turn 57 years. The wife did not seriously challenge the multitude of health challenges the husband deals with, many on a daily basis, described at paragraph 38 (for which he received compensation as previously noted) and the ongoing post-traumatic stress disorder, major depressive disorder and anxiety;
(b)I am satisfied the husband is unable to work for remuneration of any significance in a highly competitive workplace. In any event, the husband’s continued access to his invalidity pension, his service pension (totalling over $2,200 gross per week) and the additional benefits he receives or has access to from DVA as a result of his service in the military, does reduce his need to seek any employment. The wife has training and experience in care services, and at the hearing was earning $800 (gross per week). She also obtains a small pension. Even though I accept she may be able to earn more income, maximising her potential would only increase her income marginally and it would still be modest, and less than the husband’s income;
(c)As I will observe below, I do not regard it as just and equitable for the Court to make any superannuation splitting order in the wife’s favour. This means that the husband’s invalidity payment by way of pension is likely to continue for the rest of his life – and likely will incrementally increase. The payments he receives from his superannuation component (some of which I accept accrued during the relationship), combined with his untouched invalidity payment, does mean an adjustment in the wife’s favour is justified.
(d)Neither party has the care of a child under the age of 18 years;
(e)Neither party has a legal duty to support another person;
(f)I have already referred to the fact that the parties both receive a small pension (excluding the husband’s superannuation benefits);
(g)I accept that the wife has less disposable income than the husband and as such, there was likely a decrease in her standard of living since separation. I do not ignore the substantial funds the wife accessed whilst the husband was in Country J – acknowledged by the wife’s own submissions at paragraph 55 – referring to the wife’s behaviour as “very angry” and that it is nevertheless the case that “hell hath no fury like a woman scorned”;
(h)I have previously recognised the minimal contribution the wife made to the husband in navigating the various applications for compensation payments;
(i)The orders I intend to make will divide the remaining funds in trust (each party having had the benefit of a partial property order for $90,000) in a manner which achieves justice and equity without disturbing the husband’s invalidity pension and superannuation benefits;
(j)Section 75(2)(o) requires the Court to take into consideration “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. I accept the submissions of the husband at paragraph 46 that the husband’s contribution to the welfare of Ms E, who was but a baby at cohabitation, is a factor that weighs in favour of an adjustment to the husband. Although I also accept the husband made a contribution to Mr F and Mr G during various holidays and shorter visits, the husband regarded Ms E as part of his household; treated her as his daughter, and the child’s biological father provided no meaningful financial support or sought to maintain a relationship with her. In a somewhat confusing submission, drawing on [65] of Robb& Robb (1995) FLC 92-555, the wife submitted at paragraph 49 that:
The [w]ife submits that whilst the [h]usband’s support towards [Ms E] and, from time to time, the two boys, is gratefully appreciated, it was his choice and of no legal requirement and, respectfully, this should be considered by the [C]ourt in its deliberations.
Frankly, this was a submission (I accept on instructions) which does little credit to the wife; attempts unsuccessfully to minimise the genuine efforts of the husband, and in my view is yet another example of the “anger” which the wife still carries even when separation occurred in January 2020 – over three years ago.
Considering the factors above, and particularly when no splitting order will be made, I regard an adjustment to the wife of 20% is appropriate – which on the pool of $648,253 computes to a payment by the husband to the wife of approximately $130,000.
On the basis that the wife may be entitled to receive 52.5% of the pool as found by me, it is compelled by law and principle to consider not the percentages, but what orders achieve justice and equity – which is my next task.
WHAT ORDERS ACHIEVE JUSTICE AND EQUITY?
I have already alluded to the determination I have made against making a superannuation splitting order of 30% as sought by the wife – or any level of splitting order. In summary, my decision is shaped by:
(a)The fact that the majority of the pension received stems, on the evidence of Mr K, from the invalidity benefit. That benefit arises from the injuries the husband has and the ongoing effect. It would not be just and equitable for the wife to share in that benefit – beyond the fact that the husband’s receipt of the pension has been taken into account;
(b)In circumstances where the superannuation component cannot be “split” separately as Mr K opined, it would not be just and equitable to be seen to attempt to “split” a component, as it will reduce the husband’s invalidity payment; and
(c)The husband’s superannuation component accumulated during the relationship, but from a base established and created before cohabitation. I accept that the wife would, in usual circumstances, be able to articulate a sensible claim to part of a superannuation benefit (either in an accumulation account or in superannuation in its payment phase), however I have taken that into account by the adjustment in her favour under s 75(2) which would have been higher but for the other factors considered that would compel an adjustment to the husband.
If the wife is to receive 52.5% of the pool of $648,253, this amounts to $340,333, made up as follows:
Interim distribution
$90,000
Motor Vehicle 3
$19,500
Add backs
$73,870
Superannuation
$16,820
$200,190
Share of funds in trust
$140,143
$340,333
If the husband is to receive 47.5% of the pool of $648,253, this amounts to $307,920 made up as follows:
Interim distribution
$90,000
Motor Vehicle 1
$10,000
Motor Vehicle 2
$22,700
Add backs
$33,061
$155,761
Less liabilities
$44,923
$110,838
Plus share of funds in trust
$197,082
$307,920
I regard orders which give effect to this distribution, are just and equitable to both parties.
I understand the wife might say that orders which distribute the nett proceeds of the sale of the home as to:
(a)the husband - $90,000 + $197,082 = $287,082; and
(b)the wife - $90,000 + $140,143 = $230,143,
or a differential of nearly $60,000 is not fair – however she retains her modest superannuation; also notionally received over $40,000 more “added back” and has no debt (other than legal expenses).
I will round down the figure to be made available to the wife to $140,000, as is reflected in the orders which appear at the commencement of these Reasons.
If either party seeks to pursue an order for costs, then it can be the subject of a specific application for costs, supported by evidence of quantification and written submissions as to why the discretion under s 117 should be exercised, filed in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 14 December 2023
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