Somers and Somers (No 2)

[2017] FamCA 724

FAMILY COURT OF AUSTRALIA

SOMERS & SOMERS (NO. 2)	[2017] FamCA 724
FAMILY LAW – PROPERTY

APPLICANT: Mr Somers

RESPONDENT: Ms Somers

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 1965 of 2016

DATE DELIVERED:

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22, 23, 24, 25, 26, 29, 30 and 31 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paterson

SOLICITOR FOR THE APPLICANT: Carew Counsel

COUNSEL FOR THE RESPONDENT: Ms Vogel

SOLICITOR FOR THE RESPONDENT:
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT

1.Within 21 days (“the date”) the wife pay to the husband, the sum of $551,355 (“the payment”) and contemporaneously with the payment the husband transfer to the wife all his right title and interest in the property situated at II Street, Suburb JJ in the State of Victoria, more particularly described in Certificate of Title Volume … Folio … (“the property”).

2.In default of the payment being made in full, the parties forthwith do all acts and things and sign all necessary documents to effect the sale of the property and for that purpose the following orders apply:

a)      The property be listed for sale by public auction with KK Real Estate agents, and the husband be permitted to provide a copy of this Order to the said real estate agent;

b)      A conveyancing agency or solicitor agreed upon by the parties have conduct of sale and, if the parties cannot agree on a conveyancing agent or solicitor, the husband nominate three in writing to the wife and the wife choose one of those three within 7 days;

c)     The wife cooperate with all reasonable requests of the real estate agent to access the property for any reasonable purpose required by him/her including but not limited to having photographs taken for advertising purposes, and to open the property for inspection;

d)     The wife do all things necessary to present the property in a neat and tidy condition during the selling campaign;

e)     The reserve price of the property be such amount and the date of the auction be as is agreed between the parties and failing agreement within 14 days such list price and/or auction date as the parties cannot agree upon be as nominated by the real estate agent;

f)     The sale price of the property be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 80 per cent of the list price be accepted by the parties as the sale price;

g)     The parties each pay to the estate agent one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties;

h)     The parties execute a contract of sale and all other documents necessary to complete the sale of the Suburb JJ property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;

i)      The contract of sale provide for completion within 60 days after the date of the contract or any other time period as agreed by the parties;

j)      The parties do all acts and things and sign all documents to obtain the early release of the deposit money where possible and such funds be divided as to 60 per cent to the husband and 40 per cent to the wife; and

j)      Pending the payment or completion of the sale:-

i)Until further order, the wife be entitled to occupy the property and during such occupation she pay and be responsible for all rates, taxes and like apportionable outgoings with respect to the property; and

ii)Each party continue to pay and be responsible for $710 per month by way of mortgage instalments.

3.The proceeds of sale of the property be paid in the following manner and priority:

a)     To discharge mortgage no. …9Y to Westpac Banking Corporation;

b)     To discharge any other encumbrance affecting the property including rates, taxes and other reasonable expenses;

c)     Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;

d)     Payment of the legal costs and outlays relating to the sale;

e)     Payment of any expenses to be reimbursed under the preceding sub-paragraph (2(f));

f)     The balance to be divided so as to effect an overall division of the non-superannuation assets in the proportion of 60 per cent to the husband and 40 per cent to the wife as follows being:-

i)an amount equivalent to H to the husband;

ii)the balance to the wife, where:-

H = (P + E) - $621 x 60 per cent less K, where:
P = net proceeds of sale of the property after payment of estate agent’s commission and expenses and legal expenses on the sale and the deposit monies (if any) disbursed pursuant to paragraph 3(j) of this Order
E= $287,881 (being $128,881 as the value of the Suburb LL property and $159,000 interim property payments).
K = $208,881 (being the value of the Suburb LL property and the interim property payment of $80,000 received by the husband).

4.In the event that either party refuses or neglects to comply with paragraph 2 hereof a Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to section 106A of the Family Law Act to execute all deeds and documents on behalf of the transferee, in their personal capacity or otherwise, and do all acts and things necessary to give validity and operation to paragraph 2 hereof.

5.The wife pay to the husband the sum of $1,400 on account of Dr G’s fees to attend Court on 30 May 2017, such payment be deducted from the wife’s entitlement pursuant to paragraph 3(f)(ii) of this Order. In the event that the property is not sold, the wife pay the sum of $1,400 to the husband contemporaneously with the payment.

6.Paragraphs 7 to 12 of these orders are binding on the Trustees of the BT SUPER FUND (“the Fund”).

7.The base amount allocated to the wife out of the interest of the husband in the Fund is $34,455.10 (“the base amount”).

8.Pursuant to s 90MT(1)(a) Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the husband in the Fund, the wife is entitled to be paid an amount calculated in accordance with Part 6 Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the husband.

9.Immediately upon receipt of a sealed copy of the orders, the wife shall arrange for a copy to be served upon the trustee of the Fund.

10.Until:

a)     the establishment of a separate superannuation interest in the name of the wife in the fund; or

b)     the transfer all rolling over into another superannuation fund as nominated by the wife of the payment split created by these orders; or

c)     the wife satisfies a condition of release and is paid the payment split which was created by paragraph 8; or

d) the wife exercises a waiver of rights within the meaning of section 90MZ of the Act in relation to the payment split created by paragraph 7;

the husband will do nothing and will permit nothing to be done that may render any part of his interest in the fund a non-splittable payment within the meaning of Regulations 12 or 13 of the Regulations

11.There be liberty to each party and the Trustee of the Fund to apply regarding the implementation of these Orders affecting the interests of the husband and the wife in the Fund.

12.That paragraphs 5 to 10 of this Order has effect from the operative time and the operative time is the fourth business day following service of these orders upon the trustee of the Fund.

13.The wife forthwith register the Japanese motor vehicle registration number … into her sole name, noting that on 30 May 2017 she was provided with a VicRoads transfer of registration document signed by the husband.

14.That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:-

a)     each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the Suburb JJ property being deemed to be in the possession of the wife;

b)     monies standing to the credit of the parties in any bank account in either of their respective names are to become the property of the party in whose name the account stands;

c)     each party forego any claims they may have to any superannuation benefits belonging to or earned by the other save as provided in these Orders;

d)     insurance policies remain the sole property of the owner named thereon;

e)     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;

f)     any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

15.I reserve to the parties liberty to apply in relation to the implementation of this Order.

1. All applications for alteration of property interests be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Somers & Somers (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1965 of 2016

Mr Somers

Applicant

And

Ms Somers

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. Yesterday, 14 September 2017, I delivered my decision in relation to parenting arrangements for the parties’ child, B[1], and adjourned the property proceedings to today. This is my decision on a final alteration of property interests.

   [1] The medium neutral citation for which is Somers & Somers [2017] FamCA 713

2. The hearing in relation to financial matters occupied the same eight days over which the parenting case was heard in May 2017. For ease of reference, I will restate necessary facts so the decisions are self- contained.

The parties

1. The wife was born in Country H in 1972 and is aged 45. The wife is employed for two hours per week on a Wednesday evening and under a part time contract and additionally for approximately 21 hours per week with another employer. The wife currently resides in the former family home at II Street. The wife has not re-partnered.

2. The husband was born in Country H in 1968 and aged 49 years. The husband has been employed long term as in the health industry. He works full time from Monday to Friday, 8.30am to 5pm, although he advised he has some flexibility in his start/finish times and is in a position to take extended long service leave to be a full time carer for B in the event that he is successful in his application for B to live with him. In 2017, the husband moved into his own accommodation being an apartment at Suburb J, having previously lived between his mother and brothers’ homes after the parties separated. He has not re-partnered.

The law

1. Part VIII of the Family Law Act 1975 (“the Act”) provides the Court with the power to make order for the division of property of parties to a marriage.

2. Section 79 of the Act enables the Court to make such orders as it considers appropriate in altering the interests of the parties in their property.

3. Section 79 sets out a number of significant matters that must be considered in order to determine what orders are appropriate. I am required[2] :-

   (1)To identify the property in which the parties or either of them have a legal or equitable interest.

   (2)To consider whether it is just and equitable for the parties’ rights and interests in property to be altered.

   (3)To consider what division is appropriate having regard to the factors in s79(4) and s75(2) if the Act.

   (4)To be satisfied that the order effecting the alteration of property interests is “just and equitable” in all of the circumstances of the case.

   [2]  Stanford v Stanford [2012] HCA 52

4. Over 21 years of marriage, the parties acquired various property and superannuation interests either jointly or individually and now they have separated. They can no longer have joint use and enjoyment of property available to them, as they did during the relationship. The parties both seek an alteration of property interests, albeit in differing proportions. I am satisfied that it is just and equitable to alter the interests of the husband and wife in property.

5. Section 79(4) of the Family Law Act requires consideration of the contributions of the parties. The relevant parts of s.79(4) are as follows:

   79(4)   In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –

   (a)         The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

   (b)         The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

   (c)         the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.

   (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e) the matters referred to in subsection 75(2) so far as they are relevant; and

   (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

6. I need only consider such of the factors under Section 75(2) as are relevant to this case. I will list those below.

Issues & orders sought

1. There are a number of relevant mutual concessions in this case in relation to property. They were:-

   ·If B’s residence changed to the husband (as it has), the non-superannuation interests should be divided as to 60 per cent to the husband and 40 per cent to the wife.

   ·Regardless of the outcome of the parenting proceedings, there should be a split of the husband’s superannuation interest with BT Super to effect an equal division between the parties of the value of superannuation interests;

2. There was agreement on the value of all assets, the superannuation interests and one of the liabilities.

3. The parties handed up minutes of orders sought. The husband’s minute is Exhibit “H18”. The wife’s minute is “W14”. In discussion with counsel, there was also agreement reached as to the estate agent to be used to handle any sale of the former matrimonial home and all of the incidental mechanics of any sale.

4. The matters which remain in issue to be determined by me are:-

   a)Whether the husband owes his mother $30,000 and, if so, whether it should be treated as a liability of the parties and deducted from the net assets divisible between the parties.

   b)Whether the wife’s HELP debt of $15,000 should be treated as a liability of the parties and deducted from the net assets divisible between the parties.

   c)Whether the wife ought to have an opportunity to pay out the husband’s interest in and then retain the former family home.

Assets & liabilities 

1. The relevant property of the parties is detailed in Exhibit “C2” and consists of two real properties, interim distributions of funds to the parties and superannuation interests. The total value of the non-superannuation interests is $1,267,681 and superannuation interests have an agreed value of $101,374.

2. The non-superannuation assets are:-

   (1)The former matrimonial home at II Street, Suburb JJ. It stands in the joint names of the husband and the wife. It has an agreed value of $1,300,000 and is subject to a Westpac Investment Loan of $320,200. The agreed net value of the former matrimonial home is $979,000.

   (2)The husband’s 50 per cent interest in the property at MM Street, Suburb LL. The husband is registered as a tenant in common in equal shares with his brother Mr NN Somers. The Suburb LL property has an agreed value of $680,000 and it is encumbered by a Westpac Investment Loan of $422,238 leaving an entire equity of $257,762 of which the husband’s half share has an agreed value of $128,881;

   (3)An interim payment to the husband which he applied to payment of legal fees in these proceedings and of which the parties agree he has had the benefit of $80,000.

   (4)Five interim payments to the wife which she applied to payment of legal fees in these proceedings and of which the parties agree she has had the benefit of $79,000.

3. The superannuation interests are:-

   (1)The husband’s interest in BT Super at $85,000.

   (2)The wife’s interests with Vic Super of $2,174 and with OO Super of $13,916, being a total of $16,090.

4. The only relevant liability not in issue was the wife’s Westpac Mastercard. The husband’s case was there was $621 outstanding at separation which was referrable to pre-separation family expenses. The wife said initially that the indebtedness which should be taken into account at $6,621. Ultimately, however, it was conceded by the wife that the amount is $621. 

5. I will deal now with the first two contentious issues

6. The husband alleges that his parents lent the parties $130,000 to assist the parties to acquire the property at II Street. He says $100,000 was repaid but $30,000 remains outstanding. He seeks the $30,000 be deducted and paid to his mother from the assets of the parties prior a division between them. The wife’s evidence is that the husband’s parents lent them $100,000 and all of it has been repaid. The husband and his mother were cross examined about the total borrowings. Both said $130,000 was lent and this was not successfully challenged. Having heard the evidence of the parties and the husband’s mother, I conclude that sums totalling $130,000 were advanced by way of loan and that only $100,000 has been repaid. Therefore, the remaining $30,000 is unpaid.

7. The husband’s obligation as to timing of the repayment of the $30,000 is, however, another matter. Neither the husband nor his mother gave evidence about when the $30,000 must be repaid notwithstanding that the husband could obviously have called that evidence. Both the husband and his mother referred to the advances being documented but the documents were not produced (or called for). I infer that such evidence as could have been called or produced would not have assisted the husband on the issue of the timing of the repayment.

1. I conclude that the husband does owe his mother $30,000 but that he is under no pressing obligation to repay those funds. Indeed, I do not exclude the possibility that the debt of $30,000 may not be extinguished in his mother’s lifetime.

2. The wife’s Higher Education Loan Program liability of $14,000 is referrable to tertiary studies undertaken by the wife during the marriage. The wife’s evidence was that she will be required to make repayment instalments once she achieves a certain income which is significantly higher than she is now receiving. There was no attempt to adduce evidence of the relevant income threshold or the likelihood of the wife attaining that level of income.

3. The monies are owing by the wife but she will not be required to repay the $14,000 until some indeterminate future time and perhaps not even in her lifetime. If or when the wife reaches the income threshold, she will be required to repay the loan by instalments calculated by reference to her actual income and not as a lump sum.

4. I conclude that the $14,000 should not be treated as a liability which reduced the value of assets to be divided between the parties.

5. I will take the individual indebtedness of the parties below into account under s75(2)(a).

Evidence

1. There were no significant objections taken to the admissibility or fairness of the evidence relied upon. 

2. The wife filed two affidavits of evidence-in-chief, the first being sworn on 10 May 2017, and the second being sworn on 19 May 2017.  The last sworn affidavit of evidence-in-chief contained all of the text of the earlier affidavit of evidence-in-chief, some extra text and some further annexures.  It was, during the trial, necessary to refer to the wife’s first affidavit of evidence-in-chief, only to harvest certain documents which were in due course tendered by consent or by the wife.  The wife relied on the following documents:

   a)her affidavit of evidence-in-chief, being those sworn on 10 May 2017 and 19 May 2017.  They incorporated by reference certain paragraphs of the wife’s affidavit sworn 29 March 2016;

   b)her financial statement sworn 21 May 2017.

3. The applicant husband relied on the following documents:

   a)his affidavit of evidence-in-chief, affirmed on 5 April 2017;

   b)his affidavit in response affirmed on 15 May 2017;

   c)his financial statement affirmed on 5 April 2017;

   d)the affidavit of his mother, Ms CC Somers, affirmed on 16 May 2017;

   e)the affidavit of Mr PP, real property valuer, sworn 6 April 2017.

4. I have regard to the evidence which I heard referable to the parenting case as context.

5. In addition, there were numerous Exhibits which included an overview in table form of assets and liabilities divisible between the parties. There were a number of iterations of the table with the final being tendered as Exhibit “C2”.  

PROOF AND FINDINGS OF FACT

1. Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.

2. A statement of fact is a finding of fact.

CREDIT & IMPRESSION OF WITNESSES

1. As to parenting issues, I found the wife to be an unreliable witness. I was not able to say whether she was dishonest or believes false facts. I concluded that her allegations against the husband of family violence were not accurate or true. I found the husband to be a modest but genuine witness. I regarded him as being reliable and truthful.

2. There was much less evidence in relation to the property aspect proceedings than there was on parenting issues and the financial matters were much less emotionally charged.

3. I found the husband and the wife to be forthright witnesses. I am satisfied that the wife is inaccurate about how much was lent by the husband’s parents to the husband but I do not find that she gave that evidence dishonestly.

4. Ms CC Somers (the husband’s mother) swore an affidavit on 16 May 2017 about parenting issues. She attended court for cross examination on the third day of the trial. She is retired. She previously worked as an accountant in Europe. She gave evidence that she had lent the husband $130,000 which was put toward the acquisition of the former family home at II Street. In cross examination by counsel for the wife she confirmed that only $100,000 of the $130,000 has been repaid. She gave no evidence about the terms of repayment of the $30,000. I regarded the husband’s mother as a truthful witness.

History of the relationship

1. The parties were in a relationship from 1992. Neither party had assets of significance at the commencement of their cohabitation. There were two reported brief separations (under the same roof); one in 2007 for a period of 8 months and a second in 2014 for a period of three months. The parents separated finally in January 2016. The marriage still subsists.

2. The husband obtained Australian citizenship in 1994. The parties married in 1995 in Country H. The wife obtained Australian citizenship in 1996.

3. The wife’s evidence is that their qualifications from Country H were not recognised in Australia so they both undertook retraining during the first few years of the marriage and had various menial jobs to support themselves. The husband says he worked at various menial jobs from 1994, when he arrived, until 1999, and did not undertake any study. He says in 1999 he commenced full time employment and was funded by his employer to undertake a course to obtain a certificate qualification in 2001, which he completed.  Since then, he has been employed full time with the same employer. The husband says the wife did not undertake any work when the commenced living together but was studying to obtain a qualification to teach Country CC. The wife says she was working various jobs in the service industry whilst she studied. The wife obtained a grant to apply for a PhD in 2002 or 2003, which she never completed. The wife says shortly after commencing her PhD she started tutoring. The husband says after this, the wife worked intermittently and on a part time basis in various positions from which she earned minimal income. The wife says she did work part time in various tutoring positions but also continued to work in the service industry. Otherwise, the affidavit evidence of both parents provides scant details of what the family’s life was like, in terms of child caring responsibilities and work history, prior to separation.

4. The parties purchased the site of the former matrimonial home in 1999 or 2000 for $219,500 with the savings of $50,000, a gift from the husband’s parents of $30,000 and mortgage finance. There is no suggestion that the $30,000 was not a gift to both the husband and the wife and I find that to be the case.

5. The Suburb LL property at MM Street, Suburb LL, was acquired in 2003 and is registered in the names of the husband and his brother, Mr NN, as tenants in common. The husband says his parents contributed approximately $80,000 to the deposit from their own monies and Mr NN contributed approximately $80,000. The husband says his parents did not have the ability to obtain a mortgage due to their age and lack of full time employment and his brother was also unable to obtain a mortgage on his own as he worked on a casual basis. His evidence was that he and his brother obtained a mortgage but his parents and his brother funded the mortgage repayments. The husband’s evidence is that his parents treated the property as their own and the registration of his and Mr NN’s names on title was due to a Country CC custom to register property in the names of sons. The husband’s evidence was that he considered his parents to have an equitable interest in their property due to their financial contribution and a life tenancy in the property. His mother continues to live in the property. The wife denied this; her evidence was that she had no knowledge of the sums contributed by Mr NN or the husband’s parents to the Suburb LL property. At trial, the parties agreed that the husband’s interest in the Suburb LL property would be valued at $128,881.

6. The wife says she undertook all domestic housekeeping for the parties both before and after B was born. B was born in 2009. The wife says she “provided sole care for her” and continued teaching part-time. I am not convinced that is the case. The parties’ affidavit material provided scant details of the family’s home life. However, I am satisfied that the father was an involved parent and has a close relationship with B prior to separation. That is supported by what the wife says about the husband having allegedly marginalised B at one point in the marriage, allegedly as a means to hurt the wife. It is also supported by the child’s enthusiastic and spontaneous affectionate reaction to the husband, as described by the contact supervisor. 

7. I have considered the evidence adduced by the wife primarily in the parenting proceedings. The wife’s evidence is partly corroborated by Ms QQ who was cross-examined.  Ms QQ deposed to the husband calling the wife rude names, treating her in a derogatory manner, demeaning her and being “nasty and gruff”.  Under cross-examination Ms QQ confirmed that she had not observed the father in a family context since 2013. She also confirmed that her observation of B at that time and as late as 2015 indicated that B loved both her father and her mother. Ms QQ deposes to the wife having complained to her about the husband’s assault and rape. Because these were reports by the wife (whose evidence on these matters I do not accept) I do not give weight to Ms BB’s hearsay evidence. I have no doubt that the household was not a particularly happy one but in the context of authority such as Kennon & Kennon[3], this evidence does not qualify as a ground on which to regard the wife’s contribution as being made under onerous circumstances and thereby attracting greater weight in my evaluation under s 79(4).

   [3] Kennon & Kennon [1997] FamCA 27

8. In 2012 and 2013 the husband borrowed sums totalling $130,000 from his mother and, with further borrowed funds, redeveloped the II Street site into two town houses, selling one and keeping the second. The parties resided there together until January 2016, when the husband vacated the property. The wife continued to live at II Street after separation; and until final parenting orders were made on 14 September 2017, B lived with her as well.

9. The husband says he managed the redevelopment, drawing plans, engaging builders and trades people and supervising the project. The wife’s evidence was that they were equally involved in the redevelopment project. There was no cross-examination of the parties about redevelopment.  I conclude that they were both engaged with the project, it was a joint endeavour for their mutual benefit and the advancement of the family. It would have been a very busy time. More likely than not that the husband carried more of the redevelopment work than the wife as well as being employed in a full time position. The wife was studying, working part time and probably assumed more care of B.

10. Since separation the wife has almost exclusive care of B. That has been a significant contribution but one in which the husband would gladly have shared had the wife been amenable to him doing so.

11. The wife has earned a better income from a number of jobs since separation. Indeed, now she earns more than the husband. The husband has paid one half of the mortgage payments on the family home in lieu of child support.

12. I am satisfied that the husband and the wife each made significant contributions as a homemaker and parent as well as financial and non-financial contributions.    

The effect of any proposed order upon the earning capacity of either party to the marriage

1. The orders sought by the parties do not impact on their earning capacity.

Section 75(2) matters

1. Contributions under s79(4) look backwards. The purpose of the adjustive factors under s75(2) is to render a just and equitable result in relation to future obligations and needs.

(a)The age and state of health of each of the parties; and

(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

1. As indicated, the husband is in good health and aged 49 and the wife is aged 45. The husband says the wife is in good health, the wife says that is so, except she suffers a mental illness as a result of the husband’s perpetration of family violence on her. For the reasons set out in my decision in relation to the parenting aspect of this case,[4] I am not satisfied that the wife’s allegations of family violence were true or accurate. That said, the wife clearly does have some mental health issues. However, they appear not to impact on her employability.

   [4] Somers & Somers [2017] FamCA 713

2. The wife is currently employed part time with two employers. The wife alleges that she suffers from neck pain and spinal injuries “most likely at some stage prevent me from continuing to work four jobs”. The wife has two employment positions at the moment. One full time or close to full time and one part time. There was no medical evidence to that effect that the wife will not have the capacity to work into the future as she does now.

3. The husband’s evidence is that he currently earns $1090 per week.[5] The wife earns $1311 per week.[6]

(c) Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years

[5] Mr Somers Financial Statement affirmed 5 April 2017

[6] Ms Somers Financial Statement sworn 21 May 2017

1. Pursuant to final orders made on 14 September 2017, the husband has sole care and parental responsibility for B, who is currently eight years old. Hopefully, the wife will be able to take a role as a non-primary but significant carer of B after a review of parenting arrangements early next year.  

(d) Commitments of each of the parties that are necessary to enable the parties to support himself or herself or 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

(l) The need to protect a party who wishes to continue that party’s role as a parent.

1. Neither party has a commitment to support anyone but themselves and B. Each party would have to juggle work and child care responsibilities to care for B. The effect of the parenting proceedings was to change B’s residence to live with the husband and have no communication with the wife pending a review and a further reportable family consultant assessment[7] early in 2018. This will be a very difficult adjustment period for the family, the husband will require a lot of support. He has the ability to take 31 weeks long service during which he can devote himself wholly to the caring for B and himself.

   [7] S11F child and parent issues assessment

(f) The eligibility of either party for a pension, allowance or benefit

1. Neither party receives a pension.

Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable

1. The proposed orders will provide the parties with a capacity to support himself/herself with some capital and an intact capacity to earn income.

(k) The duration of the marriage and the extent to which it has affected the earning capacity of the parties

1. The husband submits that he has been the primary bread-winner of the family throughout the marriage and supported the wife during her various studies and the PhD, which she did not complete. It was submitted on the husband’s behalf that, in his current employment, which he has held for almost two decades, the husband’s capacity to increase his potential earnings is limited. The wife asserts that the husband does have the capacity to earn more income but the assertion was not demonstrated on the evidence. I am satisfied that the husband has little opportunity to increase his income. That said, he has a steady position in the workforce.

2. The wife increased her qualifications for employment during the marriage. Her income earning capacity increased.

(n) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

1. A child support assessment will be made if and when the husband applies.

Discussion

1. The s75(2) factors weigh in favour of the husband. The husband has a lesser income than the wife, he has the care of the only child of the marriage. The husband carries forward the $30,000 indebtedness to his mother and the wife carries forward her student loan of $14,000. Those liabilities do not impact on the parties immediately but will need to be met or adjusted at some stage. Currently, the debts may impact on the capacity either has to borrow funds commercially.

2. Having regard to current circumstances, the final adjustment of 60 per cent of non-superannuation assets and half the superannuation interest to the husband is within the range of results which I consider appropriate. 

3. There was agreement as to the form of the orders. On reflection (by me), there are a few anomalies in the agreed form.

   a)The fees of the expert witness Dr G to attend to give evidence were agreed to be borne equally but the minute was drawn so that the husband would be reimbursed from the proceeds of sale of the former matrimonial home. There was no provision for payment otherwise than after a sale and the disbursement from the proceeds prior to a division meant that the husband would pay 60 per cent of the fees.

   b)There was no provision for the selection of a solicitor or conveyancer to act on the sale so I have provided for the parties to agree upon a solicitor or conveyancer promptly and, in the absence of agreement for the wife to choose from a list provided by the husband.

   c)The parties agreed to the husband receiving 60 per cent of the non-superannuation assets but the adjustment in respect of the parties each receiving one half of any early released deposit was ambiguous. I have provided for any deposit to be divided as to 40 per cent to the wife and 60 per cent to the husband.

4. The agreement provides for the add-back of the pre-payment of monies, $80,000 to the husband and $79,000 to the wife, is appropriate and just and equitable.

5. The final step is for me to be satisfied that the order I propose to make to effect a final alteration of property interests is just and equitable in all the circumstances and within the meaning of s79(2) of the Act. The parties agreed on a division of property in proportional terms. However, for me to be satisfied that the alteration is just and equitable “in all the circumstances” requires me to look at the alteration in money terms and in the whole context of the matter.

6. The superannuation interests are valued at $101,090 and it is agreed their respective entitlements be equalised at $50,545.

7. The non-superannuation assets amount to $1,267,681 comprising the former matrimonial home, the husband’s interest in the Suburb LL property and the interim distributions of funds. I have decided that the only liability to be treated as a deduction is the $621 being the wife’s credit card liability at separation. That leaves the value of the net non-superannuation assets divisible between the parties at $1,267,060.

8. The husband’s entitlement to 60 per cent of the non-superannuation property will be to a value of $760,236 of which he already has his interest in the property at Suburb LL valued at $128,881 and the $80,000 interim property order. Absent a sale of the former matrimonial home, that results in an entitlement of $551,355 from the former matrimonial home. His superannuation interest after the split provided for in this Order will be $50,545. He will have very substantial legal fees to pay referrable to this proceeding. He has an annual income of $56,000 to $58,000 and his employment is secure. 

1. The wife’s entitlement to 40 per cent of the non-superannuation property will be to a value of $506,824 of which she already had the benefit of her $79,000 interim property order. Absent a sale of the former matrimonial home, that results in an entitlement of $427,824. Her superannuation interest after the split provided for in this Order will be $50,545. She will have substantial legal fees to pay referrable to this proceeding. She currently has an annual income of $68,000 to $70,000 through various teaching jobs. So, whilst the wife’s employment is not secure, she is not reliant on any one position. 

2. The wife seeks to retain the former matrimonial home and pay out the husband’s interest in it. I am inclined to the same view as the husband, namely, that it may be difficult for the wife to refinance the existing mortgage of $320,200 (as she must) and borrow another $551,355. That is a total indebtedness of $872,000 against a current market value of the former matrimonial home at $1,300,000. This will put the wife in a high repayment bracket. The wife produced some documents from a bank which indicated that she was eligible for a considerably lesser loan.

3. The wife says that she is confident of being able to live rent free in a friend’s home so could, if she needs to, rent the former matrimonial home. Against this, the wife sought no longer than the 21 days to be able to pay the husband his entitlement. If she cannot do so within that time, the former matrimonial home will have to be sold and interest will be payable by the wife to the husband on the payment amount of $551,355 from the date that the husband was due to receive the payment until the date that he does. That interest will be paid from her entitlement from the proceeds of sale, at the latest. It will be calculated pursuant to Rule 17.03 of the Family Law Rules 2004 which is a rate equivalent to 6 per cent above the cash rate last published by the Reserve Bank of Australia before the payment was due.

4. I am prepared to allow the wife the opportunity to try to retain the home. The financial risks of doing so are largely the wife’s risks.  

5. I have provided an equation for a distribution of property in the event that the former matrimonial home is sold so that the selling costs would be met equitably.

Conclusion

1. I am satisfied that the order effecting the final alteration of property interests is just and equitable within the meaning of s79(2) of the Act and I will order accordingly.

Costs

1. Any party wishing to make an application for costs may do so.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Legal Associate:

Date: 15 September 2017