STEEL & STEEL

[2015] FCCA 3178

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEEL & STEEL [2015] FCCA 3178

Catchwords:
FAMILY LAW – Property – initial financial contribution – property in Wife’s name – contribute by Maternal Grandmother – company in liquidation – release from liability obtained by Wife secures retention of property by Wife – not just and equitable to make a property adjustment between the parties.

Legislation:

Family Law Act 1975, ss.65DA(2), 62B, 75, 75(2), 75(2)(o), 79, 79(2), 79(4), 79(5) and Part VIIIA

Gosper & Gosper (1987) FLC 91-818
Stanford v Stanford [2012] HCA 52

Watson & Ling [2013] FamCA 57

Applicant: MS STEEL

Respondent: MR STEEL

File Number: MLC 7706 of 2013

Judgment of: Judge Stewart

Hearing dates: 2, 3 & 14 September 2015

Date of Last Submission: 14 September 2015

Delivered at: Melbourne

Delivered on: 14 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Nicholson

Solicitors for the Applicant: Bella & Associates

Solicitors for the Respondent: Mr N Knight of Knight Family Lawyers

ORDERS

1. The proceedings are adjourned to 18 September 2015 at 9.00am for costs applications.

2. By consent, final parenting orders are made in accordance with the Minute of Order dated 14 September 2015, marked with the letter “A” and annexed hereto.

3. The solicitors for the Applicant email a clean typed copy of the Minutes in Word format to [email protected] within 7 days.

   (a)That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (b)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Wife );

   (c)Monies standing to the credit of the parties in any joint bank account are to become the property of Wife ;

   (d)Insurance policies remain the sole property of the owner named therein.

   (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.

4. Otherwise all extant property applications be and are hereby dismissed.

5. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in the Factsheet and these particulars are included in these orders.

‘A’

Parenting Orders:

1. All current parenting orders be discharged.

2. The Husband and Wife have equal shared parental responsibility for the children:

   (2.1)X, born (omitted) 2009; and

   (2.2)Y, born (omitted) 2011.

3. The children live with the Wife.

4. The Husband spend time with the children as follows:

   (4.1)As to weekend time during school terms:

   (4.1.1)Pending the child Y concluding her 1^st school term each alternate weekend from immediately after school/kindergarten Friday to 5.00pm Sunday, commencing 18 September 2015, with such time to be extended to conclude at 5.00pm Monday in the event that the Monday is a non school day for the children;

   (4.1.2)Thereafter each alternate weekend from immediately after school/kindergarten Friday to the commencement of school Monday with such time to be extended to conclude at the commencement of school Tuesday in the event that the Monday is a non school day for the children;

   (4.2)Each Wednesday from immediately after school until 7.00pm, with items the children take to the mother’s residence to be returned to the Husband on the following weekend; 

   (4.3)As to holiday time:

   (4.3.1)Pending Y's commencing school as follows:

   (4.3.1.1)On the 1^st weekend of each of the 3 mid-year school holidays commencing on the last Friday of such holidays, with such time to conclude:

   (4.3.1.1.1)At 5.00pm Monday of the September school holidays in 2015;

   (4.3.1.1.2)At 5.00pm on the Wednesday of the 1^st term school holidays in 2016;

   (4.3.1.1.3)At 5.00pm on the Thursday of the 2^nd term school holidays in 2016 and

   (4.3.1.1.4)At 5.00pm on the Friday of the 3^rd term school holidays in 2016;

   (4.3.1.1.5)Each alternate weekend on the Christmas school holidays in 2015/16 with such time being extended to conclude at 5.00pm on the Monday of each such weekend;

   (4.3.1.1.6)From 5.00pm Saturday to 5.00pm Thursday in the first, third and fifth weeks of such holidays in 2016/17.

   (4.3.2)Upon Y commencing school:

   (4.3.2.1)For half of each of the 3 mid year school holidays, as agreed, and in default of agreement such time shall commence at 5.00pm on the first Saturday and conclude at 5.00pm on the middle Saturday thereafter, each year;

   (4.3.2.2)For 2 weeks in the Christmas school holidays in each year as agreed, and in default of agreement such time shall:

   (4.3.2.2.1)In Y’s 1^st school year be on a week about basis during January from 5.00pm on the 1^st Saturday to 5.00pm on the following Saturday and each alternate week thereafter

   (4.3.2.3)Thereafter such time shall:

   (4.3.2.3.1)Commence at 5.00pm on the 27^th December ; and

   (4.3.2.3.2)Conclude at 5.00pm 14 days thereafter;

   of such holidays in 2018/19 and each alternate year thereafter, and:

   (4.3.2.3.3)Commence at 12.00 noon on 12^th  January; and

   (4.3.2.3.4)Conclude at 12.00 noon 14 days thereafter;

   of such holidays in 2019/20 and each alternate year.

   (4.3.3)From 4.00pm on 24 December 2015 to 4.00pm 25 December 2015 and each alternate year thereafter;

   (4.4)From 4.00pm on 25 December 2016 to 4.00pm on 26 December 2016 and each alternate year thereafter;

   (4.5)On the Husband’s Day weekend in each year from after school/kinder on  Friday to 5.00pm Sunday;

   (4.6)As otherwise agreed between the parties in writing or by SMS message.

5. The Husband and Wife  may communicate with the children by telephone when they are not otherwise in their respective care during school holiday times pursuant to these orders, as follows:

   (5.1)Each Tuesday and Thursday between 5.30pm and 6.00pm with the parent with whom the children are not then living to instigate such calls;

   (5.2)At all reasonable times with the children to instigate such calls with the parent with whom they are then residing to facilitate such calls;

6. The time the Husband spends with the children shall be suspended:

   (6.1)Pursuant to sub-paragraphs 4.1 hereof:

   (6.1.1)On the Mother’s Day weekend, in each year;

   (6.1.2)For the duration of each of the 3 mid year school holiday and Christmas school holiday periods;

   with such time to resume at the conclusion of such holidays as if the holidays had not intervened.

   (6.2)Pursuant to sub-paragraphs 4.3 hereof:

   (6.2.1)From 4.00pm on 25 December 2015 to 4.00pm 26 December 2015 and each alternate year thereafter;

   (6.2.2)From 4.00pm on 24 December 2016 to 4.00pm 25 December 2016 and each alternate year thereafter;

7. For the purpose of the children’s change over from the Wife  to the Husband in order to spend time with the Husband pursuant to the orders contained herein:

   (7.1)The Husband shall deliver the children from and return the children to:

   (7.1.1)Their school where such time commences/concludes on a school day;

   (7.2)The Wife shall deliver the children to the Husband’s residence at the commencement of each period; and the Husband shall return the children to the Wife’s residence at the conclusion of each period, at all other times.

8. The Husband and Wife :

   (8.1)Keep the other advised at all times of their respective residential addresses and landline and mobile telephone numbers;

   (8.2)Advise the other immediately in the event that the children, or either of them suffer any serious illness or injury;

   (8.3)Authorise any medical practitioner upon whom the children, or either of them, may attend from time to time, to communicate with the other in respect to the children’s medical condition and/or requirements.

   (8.4)Advise the other of all sporting and extra-curricular activities in which the children, or either of them, are involved and permit the other to attend such functions;

   (8.5)Authorize all schools at which the children may attend, from time to time, to:

   (8.5.1)Provide the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to the children;

   (8.5.2)Communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools;

   (8.5.3)Permit the other to attend all school function to which parents are normally invited;

   (8.5.4)Include the Husband as a contact person in respect to the children in the event of emergency ;

   subject to any school policy in relation thereto;

9. The Wife  and the Husband each be at liberty to provide a copy of these Orders to any one or more of the following:

   (9.1)The Principal or delegate of the Principal of the school attended from time to time by the children, or either of them;

   (9.2)Any Medical Practitioner and/or allied health professional attending upon the children, or either of them;

10. That pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and those particulars are included in these orders.

11. That all applications in relation to parenting orders are otherwise dismissed.

12. Certify for advocacy.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7706 of 2013

MS STEEL

Applicant

And

MR STEEL

Respondent

REASONS FOR JUDGMENT

(as revised from transcript)

1. These proceedings come before the Court on both parenting and property applications by the Wife. The parenting arrangements have resolved save for some rulings that I delivered earlier today and the parties are in the process of checking those parenting orders. The property proceedings are concerning and this is a case that is as much about the failed business activities of the parties as it is about anything else.

2. The Husband was born in 1970 and he will be 45 years old shortly.  The Wife was born in 1974 and she will be 41 years old shortly. The parties met and commenced a relationship in 2006 and if not immediately then fairly shortly thereafter they commenced cohabitation.

3. The Wife was working, as was the Husband, at the time of the commencement of cohabitation.  The Wife owned a property at Property M in the state of Victoria (“the Property M property”), which is still held by her. Although the Wife states that the Property M property had approximately $60,000 equity in it at the time of cohabitation, there is little evidence of that. I accept that the Wife held the Property M property at the commencement of the relationship and it was an asset in her name. The Wife had a car and some superannuation entitlements and had some credit card liabilities. The Wife estimates, and as a guide only – that she thought she held about $115,000 of assets. 

4. The Husband said that he commenced the relationship with household furniture and a motor vehicle and also had some superannuation entitlements. The Husband was employed at that time, earning approximately $100,000 per annum.

5. At the commencement of the relationship the Husband was the director and shareholder of a company (“the first company”) and it seems the first company, which was also a building company, met with some difficulties and went into liquidation shortly after the parties commenced living together. The demise of the first company resulted in the parties entering into a settlement arrangement of litigation where they paid the sum of $70,000 for negligent building works.

6. The parties shortly after that set up a further company in a new incarnation of a building company called (omitted) Pty Ltd (“(omitted) Pty Ltd”). In 2007 the Wife stopped working for external remunerative employment and commenced working for (omitted) Pty Ltd. She was employed in an (omitted) role and earned about $50,000 per annum plus a motor vehicle allowance. 

7. Notwithstanding the position put by the Husband each of the parties working within (omitted) Pty Ltd and performing various roles within the company seems normal and an average way that parties conduct themselves in their business lives during their marriage and their relationship. 

8. The parties’ relationship continued and they married on (omitted) 2009.

9. On the (omitted) 2009, their son X was born.  X is currently aged 5 years.

10. Two and a half years later on (omitted) 2011, the parties’ daughter Y was born and she is presently aged 4 years.

11. Pursuant to the orders that have been agreed between the parties, the children will spend every second weekend with the Husband together with an evening meal on a Wednesday. There is to be a graduating schedule of time leading up to an arrangement where they spend half of the school holidays and special occasions with the Husband. That will be the arrangement for the foreseeable, if not the long-term future. 

12. Following the birth of the children and in November 2011, the company (omitted) Pty Ltd ceased trading.  At this time, the parties commenced a business called (omitted) Pty Ltd (“(omitted) Pty Ltd”) and the Husband was the sole director. (omitted) Pty Ltd operated a new (omitted) business which commenced operations initially from the Property M property and eventually went on to conduct its operations from rented premises. 

13. The Wife assumed a greater role in home duties in her role as primary carer for the children. She worked somewhat less in the business, however continued to receive benefits from the business. I assume, although it’s not particularised in the parties’ material, that she continued to fulfil an administrative role within the business. Again, I don’t regard that situation as being anything but ordinary and unremarkable in terms of the way parties conduct their lives when running what was essentially a family business.

14. The parties had three periods of separation during their marriage. Between 23 June 2012 and 5 December 2012 they separated for a period of six months.  At that time, the Husband moved out of the Property M property, but the Wife continued to receive a salary through the business. The Husband did not pay formal child support at that time. The Wife’s mother, Ms W, assisted the Wife with the financial responsibilities of caring for the children and her self-support. During this period, the Wife was the sole carer of the children and the Husband had very little involvement with them. The Husband says that at the time the parties separated, they had done so due to emotional issues he felt were exhibited in the Wife. I do not need to reconcile that particular factual dispute in order to determine what is the appropriate property adjustment between the parties. 

15. Upon the parties reconciling following this separation, the parties decided to live in the Husband’s rental accommodation and to rent out the Property M property. The Husband made non-financial contributions at that time via his efforts towards renovating the Property M property. Although he says that “he” paid $50,000 towards that renovation, it is clear that those funds were joint funds. I accept that the Husband made non-financial contributions in terms of personal exertion in renovating that property. 

16. For around a year, from December 2012 the parties continued to reside in rental accommodation. The Husband makes a point of saying that the rent costs were paid for by (omitted) Pty Ltd. It seems clear that those were joint monies. Overall each of the parties had contributed money earned through the company and their personal exertion efforts (whether by way of non-financial contributions in terms of building works or non-financial contributions in terms of the role of homemaker and parent). They have each contributed the best of their respective abilities to the welfare of the family and to the acquisition, conservation and improvement of matrimonial assets and resources generally.

17. In July to October of 2013, the parties separated again, and the Wife and the children moved to live with her mother in a unit in (omitted). During this period (omitted) Pty Ltd continued to pay a wage to the Wife and the Husband did not pay formal child support, although I accept that he made a financial contribution by the distribution of income through the company. According to the Wife, she was the sole carer of the children or at least the primary carer during that period.  There is a factual dispute between the parties as to whether or not the Husband sought involvement with the children and whether or not the Wife denied the Husband such involvement. It is unnecessary to determine that factual dispute as the impact on the ultimate outcome of these property proceedings would be de minimus.

18. The parties finally separated in July of 2014.

19. The Wife now lives and has moved to a unit owned by her mother and adjacent to the unit that Ms W lives in.

20. In around October of 2014, (omitted) Pty Ltd ceased trading and the Wife no longer received a salary or any financial support from (omitted) Pty Ltd. Final separation was on or around 22 July 2014 and the last time the Wife received any salary from (omitted) Pty Ltd was 15 July 2014. As  at today in September of 2015, the Wife has received no form of financial support from the Husband either personally or through the business since that date, save for the maintenance of Health Insurance for the children (which ironically the Wife also maintains for the children on her own health insurance policy) 

21. The Husband said that he has suffered emotional distress following separation and found it difficult to see the children. There is a factual dispute between the parties as to whether or not at least until Christmas of 2014 the Husband had actually actively sought to see the children. It is unnecessary to determine that factual dispute as the impact on the ultimate outcome of these property proceedings would be minimal.

22. On 29 October 2014 (omitted) Pty Ltd was wound up and placed into voluntary liquidation. There is a significant dispute as to what might now be owing to creditors. I simply don’t know.

23. The only evidence before the Court is the Creditors Voluntary Liquidation Report dated 4 December 2014 (“Liquidation Report), which is annexed to the Wife’s affidavit filed 12 August 2015 as “Annexure S3”. That document sets out a significant deficiency of creditors against business assets of at least $250,000. The Liquidator’s Report at page 8 sets out as follows:

    I am currently in the process of reviewing and reconciling the journal entries that make up the loan account…

24. There is a loan account in the company where the parties, or either of them, owe money to the company in the sum of approximately $307,000. That is a personal loan account. Each of the parties had, at the date of the Liquidator’s Report, some level of personal liability that could be attached to them personally rather than it being simply a company liability with respect to that loan account.  The liquidator goes on:

    However, prima facie it appears that Mr Steel & Ms Steel owe the Company an amount of $307,825.33 by way of an unpaid debit balance loan account.

25. The liquidator (at page 13 and 14 of the Liquidation Report) notes that the company appears to have been trading whilst insolvent since about January of 2014 and that the Husband, as a director, was unlikely to have assets sufficient to mount an insolvent trading action.

1. That much is true. The only asset of any value in this case is the Property M property, and that has been and has always been in the sole name of the Wife. The Husband has never had a legal interest in the Property M property.

2. These proceedings were issued in December of 2013.  There have been various parenting proceedings and I note that the parenting proceedings are in the process of being resolved, but resolved in the running of this hearing. 

3. The Property M property has been tenanted and the Wife has been receiving the rent from the tenants and applying that money towards the mortgage over the Property M property.  On 29 July 2015, the tenants left the Property M property and that property has not been tenanted since that time.

4. The liquidator has had some involvement in the proceedings.  On 9 July 2015, the Wife filed an Amended Initiating Application seeking in essence, an indemnity from the Husband for the debt to (omitted) Pty Ltd and also seeking that she retain the non-superannuation assets in these proceedings, such non-superannuation assets already being in her name.

5. The parties attended a Conciliation Conference on 14 July 2015 and it is an agreed fact that the Liquidator attended and was involved in discussions at the Conciliation Conference. It is also an agreed fact that the Liquidator was served with the Wife’s Amended Initiating Application and I am satisfied in this case that procedural fairness has been afforded to the Liquidator.

6. What is also not in dispute is that on 5 August 2015 the Wife entered into a Deed of Release. I note that the Deed of Release contains the following as recitals: -

   3.7 During the period from at least June 2012 to June of 2014, the Husband and the Wife received loan monies from the Company totalling at least $307,825.33(“Debt Owed”); and 

   3.8 The Liquidator asserts that the Company’s debts are in the vicinity of $1,400,000, although the full extent of the Company’s debts had yet to be determined by the Liquidator. 

7. The Liquidator was aware that the Wife sought orders seeking to be excused from any monies owing by the Husband and/or Wife to the creditors of the company or the Liquidator. The recitals record that the Liquidator had instructed his solicitors to commence proceedings against the Husband and the Wife to recover the debt owed to the company.

8. The Wife has been personally released from any claim in the Liquidator’s case in consideration for payment of $125,000 paid to the Liquidator in order to secure the Deed of Release. The funds to make that payment were loaned to the Wife by her mother. The Wife’s mother, who provided that money, has taken a second mortgage over the Property M property to secure that debt.

9. It is put by the Husband that I should completely disregard that debt in terms of the proceedings in this case. I do not accept that as a proposition. First of all, the fact that Ms W has taken a second mortgage indicates to me that she has an expectation of repayment in the future. It is true that she said during her evidence that she would not claim payment until she found herself in dire straits, however this advance, as opposed to the many numerous and other advances that were made by her during the marriage has been done with some degree of formality; it is a large amount of money and it is designed to protect her daughter from financial disadvantage as had been the situation during the marriage.

10. For instance, during the marriage, as is set out in Ms W’s affidavit, she advanced the Husband (and perhaps probably more correctly the company) the sum of $29,000. There is a factual dispute between the parties as to whether or not that was at the Husband’s request; however I accept that that was a loan, could have been claimed in the liquidation, however, for reasons set out in her evidence, Ms W has not claimed that through the company. I regard that as another contribution on the Wife’s behalf.

11. I also accept that Ms W has made numerous other contributions in a financial sense and I am satisfied that Ms W has made numerous ad-hoc contributions over the course of years of the parties’ marriage.

12. It makes little difference as to whether or not those additional contributions are in the vicinity of $200,000 or something less than that because the contribution, as I assess it, has been significant, substantial and has contributed to the welfare of the family. The contributions made by Ms W continue this day in circumstances where Ms W provides the Wife with an allowance in the approximate sum of $5,000 per month in order to support herself and the children in circumstances where the Husband does not pay child support.

13. The Husband is currently in arrears of child support in the sum of approximately $6,000. I do not understand why the Husband has not paid any child support to the Wife and I have ultimately formed the view that, unless forced to do so, the Husband will treat the Wife and the children in the same cavalier fashion that he has treated his business relationships; that is, that he will not provide financial support until he is required to do so. That is a matter that weighs significantly on my mind in these proceedings.

14. In this matter, it should be noted in terms of the property that it is not possible to include all aspects on which I heard or on which there was evidence. Nonetheless, I have taken the totality of the evidence into account and just because I have not mentioned something in these reasons, it does not follow that I did not have regard to it. In these reasons, unless the contrary is obvious from the way in which I have referred to facts or matters, a statement of fact is a finding of fact.

15. The parties in these proceedings have each relied on a case outline document and have each set out the affidavits and the Financial Statements upon which they rely in those documents. I have read all of those documents. 

16. The parties’ respective applications in summary are as follows and are simple: -

    a)the Wife says, in the alternative, that:-

    i)pursuant to section 79(2) of the Family Law Act 1975, it is not just and equitable to make an order under the Act; or

    ii)the evidence points to a result where the Husband retains that which is in his name (which is essentially his superannuation entitlements) and the Wife retains the property in her name together with various debts, a mortgage and a second mortgage over the Property M property.

17. Part VIIIA of the Family Law Act 1975 provides for the division of property for parties to a marriage. Section 79 of the Act enables me to make such orders as I consider appropriate in altering the interests of parties in their property. Section 79 sets out a number of significant matters that must be considered in order to determine what might be appropriate.

18. In the case of Stanford v Stanford [2012] HCA 52, which that has been referred to in the proceedings, the High Court considered the operation of section 79 of the Act. The High Court observed that, while the power conferred by section 79 is not to be exercised in accordance with fixed rules, three fundamental propositions should not be obscured.

19. Those propositions are, in summary, as follows: 

    a)first, it is necessary to consider whether it is just and equitable to make a property settlement by identifying the existing legal and equitable interests of the parties in property.  In a moment, I shall do that; 

    b)Second, it is necessary to consider whether the parties’ rights and interests in property should be altered; 

    c)Third, in determining whether a property settlement is just and equitable, one does not begin with an assumption that one or both of the parties has a right to have the property of the parties divided between them or has an interest in marital property simply by virtue of the matters set out in section 79(4) of the Act.

20. In referring specifically to section 79(2) and my consideration pursuant to that section, the High Court said as follows:

    To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

21. Their Honours further observed at paragraph 42 that:

    In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied…

22. I am not convinced that the just and equitable requirement is readily satisfied in this case for the reasons that I shall come to shortly.

23. As Murphy J observed in the case of Watson & Ling [2013] FamCA 57, as a result of the matters set out in Stanford:

    …the Court’s approach to s 79/s 90SM may be less compartmentalised than what a strict or unthinking adherence to four (or three) “steps” might otherwise reveal. The task is essentially holistic; is it just and equitable in the particular circumstances of the particular relationship or marriage under consideration to make an order and, if so, its terms must similarly meet that criteria.

24. In order to assess the first consideration, I turn to what the parties’ interests in property are. The Property M property has an agreed value of $630,000. There is a first mortgage in the sum of approximately $390,000 and for the reasons that I have set out, I propose to take into account the second mortgage to the Wife’s mother of $125,000. Accordingly, the Wife has approximately $115,000 equity in the home. The Husband asserts an equitable interest in the Wife’s interest by virtue of the length of the marriage.

25. The Wife has a car and a debt associated with that car. It is agreed that I can disregard the car for the purpose of this exercise. She has various credit card debts in the approximate sum of $44,000 and I accept that $30,000 of her present credit card liability result in association of the purchase of building materials purchased for the operations of the company. The evidence suggested that there was about $30,000 spent at a hardware and building supplies store in Melbourne. Accordingly, the non-superannuation property interests held by the parties, in this case, less the liabilities, result in net assets in the sum of approximately $71,000. 

26. The Husband’s application is that he seeks a payment from the Wife of $80,000, which, is in excess of 100 per cent of the non-superannuation assets. The Husband has no debt that he records as part of the asset pool. However, I note in circumstances where he, on the one hand, purports to say that he has no personal liability to the company Liquidator, he somehow, in a nebulous way, wants me to take into account an undefined liability that he might have for company debts.

27. In circumstances where the Husband is represented and in circumstances where he has clearly, in my view, chosen not to put that evidence before the Court, I will not take any unparticularised and undefined liability it into account. I cannot be drawn into a nebulous assessment of liability. What is clear is that the Wife has avoided any further personal responsibility for debt over and above the $125,000.

28. In terms of superannuation, the Wife has just under $74,000 of superannuation and the Husband has about $96,000 of superannuation.  The Husband does not seek a superannuation split and seeks to retain his superior superannuation entitlements.

29. In assessing whatever the Husband’s contribution might have been to the $71,000 net equity in non-superannuation assets, I accept that due to a period of financial and non-financial contributions, on one view the Husband may have a contribution-based entitlement to a proportion. To make a prima facie assessment that he does not would be to ignore the busy years of the marriage throughout which the parties ran businesses and raised two children.

30. The difficulty for the parties, however, is that without the largesse of Ms W there would be no assets. There would have been no one who would have been prepared to lend the parties or even the Wife the sum of money required to obtain the Deed of Release. Had the Deed of Release not been provided, the parties would not have significant, modest or any assets at all.

31. The parties would be facing financial ruin without the contribution by Ms W.

32. Thus, the contribution of $125,000 made by Ms W should be assessed in terms of the amount contributed and also the overreaching effect of conserving the Wife’s asset position on the following grounds:-

    a)The first is that it is a financial amount that has been contributed but of course I have already taken it into account as a loan;

    b)The second, more ethereal contribution and therefore more difficult to assess in that it has essentially saved the only asset that is in existence.

33. In my view, the contribution on behalf of the Wife must be overwhelming. I refer to cases such as Gosper & Gosper (1987) FLC 91-818 and the cases that follow it in terms of the assessment of such contributions. In terms of the way contribution have been made following the Conciliation Conference and separation by the parties, in circumstances where there were large debts facing the parties, I take it into account as a contribution for and on behalf of the Wife.

34. Thus, in this matter I am convinced that in the circumstances pursuant to section 79(2) it is not just and equitable to make an alteration of property in this case.

35. However, if I am wrong about that I do wish to briefly turn to the section 79(4) factors and the section 75(2) factors as they pertain to this particular family.

36. I have identified the property of the parties or either of them.

37. The financial contributions of the parties are as I have set out, with each of the parties making contributions during the marriage essentially through the family business, with the Wife making an initial financial contributions of an unspecified amount at the commencement of the relationship, as did the Husband.

38. I accept that each of the parties have made non-financial contributions by their personal exertions, renovations, homemaker and parent contributions. I accept that the Wife has made a contribution to the welfare of the family as constituted and to the care of the children of the marriage as homemaker and parent. I accept that the initial financial contribution of the parties should be given some weight. In particular I accept that the initial financial contribution by the Wife in terms of the Property M property is a significant matter.

39. I have identified the contributions during the marriage.  If I identify the contributions after separation they must fall in favour of the Wife.  She has made significant homemaker contributions and has been assisted in doing so by her mother.

40. I now turn to the section 75(2) factors.

41. Each of the parties are in their mid-forties and each of them appear to be in good health.

42. The Husband clearly has a capacity for remunerative employment outside of the home and he earns somewhere between $120,000 and $135,000. There was some consternation surrounding whether or not he had declared a car allowance and, again, it’s not clear to me although it would seem that the income that he discloses in his Financial Statement was, in fact, exactly $120,000 give or take a few cents and his car allowance was likely to be on top of that.  I am satisfied that each of the parties has a capacity for ongoing remunerative employment; however, at this stage the Husband’s capacity is far greater than the Wife’s. 

43. When I take into account the Wife’s care and control of the children of the marriage and her desire to continue (at least until the children have attained school age) in a role of homemaker and parent, the section 75(2) factors weigh heavily in the Wife’s favour. The Wife’s commitments to support herself are significant and I note at this stage that she receives an allowance of approximately $5,000 per month from her mother together with the rent-free accommodation that she receives from her mother.

44. Neither party has a responsibility to support any other person except the children.  The Wife is reliant, in addition to the assistance of her mother, on Centrelink benefits.  I do not consider that anything that the Husband has paid, or the Centrelink benefits, would provide the Wife with a reasonable standard of living compared to that which she enjoyed during the marriage, however, her mother’s contribution has made a reasonable standard of living possible.

45. I am satisfied that on his income the Husband is able to enjoy a reasonable standard of living particularly when I take into account economies of scale in that he shares expenses with his de facto Wife.

46. Spousal Maintenance is not under consideration in this case.

47. The marriage has reduced the earning capacity of the Wife.

48. Save for the short periods of unemployment by the Husband (and particularly the period after July 2014 where he seemed to have a significant emotional reaction to the breakdown of the marriage), I am not satisfied that the breakdown of the marriage has affected the Husband’s earning capacity in any detrimental way. On present analysis, working for third parties, as opposed to running a business, has proved more lucrative for the Husband.

49. The Husband cohabits with another person however declined to put her financial position before the Court. Quite clearly she makes some contribution to his household.

50. Child Support I have dealt with. I note that the present Child Support assessment as it has finally been determined by the Child Support Agency is at $550.00 per week. If the Child Support Agency or the Social Security Appeals Tribunal eventually assess the Wife as having zero income, which seems to me to be the case, it is likely that his child support will increase in due course but at this stage at least it is just over $220.00 per fortnight.

51. Under section 75(2)(o) I do take into account the financial contributions of Ms W, I have considered the argument on behalf of the Husband that the Wife has a significant financial resource via her mother and I accept that that is so but it is done by way of necessity rather than for any other reason. Clearly, Ms W has the usual natural love and affection for her daughter and her grandchildren and she has been prepared to contribute in that regard and, indeed, will continue to contribute especially in terms of school fees and the monthly allowance that she provides to the Wife.

52. In assessing all of these factors and in particular what I regard as overwhelming factors in terms of the contributions on the Wife ’s side of the ledger I would expect that any property adjustment, if any, to be made to the Husband would be in the vicinity of 10 to 20 per cent of the non-superannuation asset pool. Because neither of the parties have decided to seek a superannuation split the only way I can deal with this case, in my view, is on a one-pool approach although I was urged by the Husband not to do it that way.

53. Even if I do approach the cost on a two-pool approach in order to equalise superannuation to the parties (which would be the more favourable way of doing it for the Husband), it would result in an adjustment of superannuation in the sum of $11,193 to the Wife. If I calculate even on the Husband’s entitlement of 20 per cent, in my view, the Husband’s distribution that would result in an adjustment to him of just under $14,000. The difference between $11,193 and $14,000, in my view, is de minimis and I do not propose to make an order in that regard.

54. It is for that reason that even after considering the contribution factors and the factors pursuant to section 75(2) that pursuant to section 79(2) I regard it as not being just and equitable to make a property division in this case.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Associate: 

Date: 3 December 2015