Stewart and Allkins

[2018] FamCA 201

FAMILY COURT OF AUSTRALIA

STEWART & ALLKINS [2018] FamCA 201

FAMILY LAW – PROPERTY SETTLEMENT – Where the parties agree there should be an adjustment of interests – Where both parties made contributions financially and for the welfare of the family over a long marriage – Where the wife post-separation is in a much stronger financial position than the husband in terms of her income and superannuation – Where the wife has had since 2015 and likely will have in future sole care of and financial responsibility for the children. Where the parties agree the wife should make a cash payment to the husband but disagree over the amount to be paid – Ordered the wife pay to the husband a sum of $426,118 within 42 days of the date of these orders

Family Law Act 1975 (Cth), ss 75, 79

Bevan & Bevan [2013] FamCAFC 116
Stanford & Stanford (2012) 247 CLR 108

APPLICANT: Mr Stewart

RESPONDENT: Ms Allkins

FILE NUMBER: MLC 4912 of 2014

DATE DELIVERED: 4 April 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Melbourne

JUDGMENT OF: Cleary J

HEARING DATE: August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Atkinson
SOLICITOR FOR THE APPLICANT:	Vadarlis & Associates

COUNSEL FOR THE RESPONDENT: Ms Stoikovska

SOLICITOR FOR THE RESPONDENT: Cantwell Family Lawyers

Orders

1. That the wife pay to the husband a sum of $426,118 within 42 days of the date of these orders.

2. That the husband resigns as Director of B Pty Ltd and transfers his shareholding to the wife.

3. That the wife retain the property at C Street, Suburb D (“the Suburb D property”) and remain responsible for and indemnify the husband with respect to all outgoings associated with the Suburb D property.

4. That the wife be declared the sole owner of her interest in E Pty Ltd to the exclusion of the husband and indemnify him in relation all liabilities associated with same.

5. That the husband retains his interest in F Pty Ltd and the “G” business to the exclusion of the wife and shall indemnify her in relation to all liabilities associated with same.

6. That the husband be declared the sole owner of the property at H Street, J Town (“J Town”) and shall indemnify the wife with respect to any liability associated with J Town.

7. Each party retain their respective superannuation entitlements and all other assets and liabilities in their respective names currently in possession of each.

8. In the event that a party refuses or neglects to comply with an order directing that party to execute a deed or instrument a Registrar of this Court may, pursuant to Section 106A of the Family Law Act (Cth) 1975 execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

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 Stewart & Allkins 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 NEWCASTLE

FILE NUMBER: MLC4912/2014

Mr Stewart

Applicant

And

Ms Allkins

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for adjustment of interests in matrimonial property.

2. The applicant is the husband Mr Stewart aged 47. He runs a franchise business (“G Pty Ltd”).

3. The respondent is the wife Ms Allkins aged 44. She is the owner of a business. Her company, of which she is the sole director, is E Pty Ltd.

4. The parties met at university in 1991. They began living together late in 1992 aged 21 and 19 years respectively.

5. In 1996 the parties married.

6. There are two children of the marriage, girls born in 2002 and 2004 and now aged 15 and 14.

7. The parties separated finally in December 2013 ending a long relationship of 21 years. The children have lived with the wife since separation.

The Evidence

1. The documents relied on were as follows: 

   The Applicant Husband – Mr Stewart

   (a)Amended Initiating Application filed 18/05/2017;

   (b)Affidavit of Husband filed 15/05/2107;

   (c)Financial Statement of Husband filed 15/05/2017;

   (d)Affidavit in reply of Husband filed 27/06/2017;

   The Respondent Wife – Ms Allkins

   (e)Response filed 5/06/2017;

   (f)Affidavit of Wife filed 5/06/2017;

   (g)Financial Statement of Wife filed 5/06/2017;

   (h)Affidavit of Mr K filed 10/08/2017.

Reports

1. Reports from experts were obtained. Their evidence informed the agreed values in the Joint Balance Sheet.[1]

   [1] Exhibit 1

Approach to Alteration of Interests in Property

1. In considering applications for alteration of property interests and transfer of property the Court must:

   (i)Identify the existing legal and equitable interests of the parties in property;[2]

   (ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;

   (iii)

   If an alteration should be made, to consider the matters contained in

   
   

   ss 79(4) and 75(2) of the Family Law Act (Cth) 1975 (“the Act”) in coming to an adjustment; and

   (iv)Analyse and consider whether the adjustment under consideration would be just and equitable.

   [2] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116

1. Identify the assets and liabilities of the parties

1. The parties’ assets are set out in the joint balance sheet:[3]

   [3] Exhibit 1

O’ship		Description		H’band value	Wife value
ASSETS
1	H		J Town	$ 575,000	$ 575,000
2	B Pty Ltd/ (W) (LPL)		C Street, Suburb D	$ 900,000	$ 900,000
3	W		E Pty Ltd (as at 31 December 2016) As at 3 July 2017 additional cash at bank (now at $909,394, up from $757,838 in Agreed Balance Sheet of experts Mr K)*	$ 989,000 $ 151, 556	$ 989,000 Not agreed
4	W		Motor vehicle 3	$ 36,000	$ 36,000
5	H (FPL)		Motor vehicle 1	$ 17,000	$ 17,000
6	H (FPL)		G Franchisor/ee business (including Motor vehicle 2)1	Nil	Not known
7	H		Motorbike	$ 2,600	$ 2,600
8	W		Jewellery	$ 18,750	Agreed value, inclusion not agreed
9	H		Jewellery	$ 450	Agreed value, inclusion not agreed
10	H		Furniture and chattels	$ 8,475	$ 8,475
11	W		Furniture and chattels	$ 2,590	$ 2,590
12	W		Value of L Family Trust2	Not known	Not agreed
Total			$ 2,701,421	$ 2,530,665

*Order 5 of the 5 July 2017 of Registrar Jenkins provides 1) the valuation date of E Pty Ltd is deemed to be 31 December 2016; and 2) the wife provide updated financial information as reasonably requested by the valuers.

ADDBACKS
13	H	Legal fees paid as addbacks	$ 85,053	Agreed figure/not agreed as addback
14	W	Legal fees paid as addbacks	$ 179,143	Agreed figure/not agreed as addback
15	W	EPL Dividends	Amount unknown	Not agreed
Total		E$ 264,1963	$ Nil

LIABILITIES
16	H	ANZ Overdraft secured over J Town (facility limit $195,000) – now at $181,992	NIL (included in item 6 above)	NIL
17	W	Tax payable if cash holdings withdrawn from EPL (based on $900,000 withdrawal)	Not agreed4	$ 218,571
18	W	Tax payable re $220,182 withdrawn from EPL (withdrawn by wife for EPL currently shown as Directors Loans but taken as dividend)	Not agreed5	$ 63,514
19	W	Tax payable “Family Trust” (Suburb D office) – for rent paid in 2017 year	Not agreed6	$ 38,800
20	H	Husband’s loan from parents (for school fees)	$ 10,000	Not agreed
21	H	Husband’s loan from Mr M (for living expenses)	$ 10,000	Not agreed
22	H	Husband’s legal fees unpaid to end of trial (estimate)	E$ 485,169	Not agreed
23	W	Wife’s legal fees unpaid to end of trial (estimate)	E$ 53,000	Not agreed
24	H	Credit cards (NAB as at 8/8/2017)	$ 24,385	Not agreed
25	H	Credit card (ANZ as at 8/8/2017)	$ 13,829	Not agreed
Total		E$ 596,383	E$ 320,885

SUPERANNUATION
Member		Name of fund
26	H	Z self-managed superannuation fund as at 15/05/2017	E$ 366,000	E$366,000
27	W	Wife’s self-managed super fund – L Super Fund as at 30/06/2017	E$ 368,000	E$ 368,000
Total		$ 734,000	$ 734,000

¹ F Pty Ltd, based on purchase value of franchisor business, $175,000 (excl. GST); Motor vehicle 2 car value $14,000 (less loan on car $17,975); less ANZ Overdraft for purchase of business ($181,992) and less loan to FPL from husband’s parents and brother re. franchisor rights purchase ($26,240); DR$3,207; but say Nil.
² Documentation relating to value of L Family Trust including current Financial Statements not disclosed by wife; this is denied by the wife; she asserts its only asset is Suburb D.

³ Excludes a value attributed to EPL dividends paid to wife; wife queries the relevance of this.
⁴ The amount is agreed on a withdrawal if taken as a dividend; the husband does not accept that the wife will make a withdrawal or of that amount; there are circumstances whereby (for example purchase of another business) no tax may be payable; wife asserts this is speculative; she has no such intention.
⁵ The husband asserts the wife, as a professional, has made financial arrangements of her choosing with such tax consequences as my flow; the wife has effected no dividends out to the husband from the business in which he has a share as a matrimonial asset. The husband is not a shareholder and as such the wife asserts no dividend is payable to him.
⁶ The husband has no understanding of this; the wife has made her own arrangements; at time of sale of N Street matrimonial home the wife arranged a significant advance payment of office rent (to her own entity); there was no need for further rent to be paid by reason of the advanced payment; the wife asserts the husband is aware tax was owing for the 2016 income year (discovered trust tax return including bank statements evidencing payment of the tax on behalf of the Family Trust. It has no cash or bank accounts).

Revised Balance Sheet

1. The following contested items have been omitted, included or revised for the following reasons:

   Item 3 (sub–item).   Husband submitted for sum of additional cash at bank of $151,556 to be added to the value of this item, EPL.

   I have excluded this asserted asset. Item 3 has been valued. The cash increase would need to be interpreted by a valuer as to its creation and proposed use, for instance Tax/GST/PAYG provision or discretionary use. To include it is to run the risk of injustice.

   Item 6Excluded. No value was attributed by either party.

   Items 8&9Included. These items of personalty are similar to furniture and chattels.

   Item 12Excluded. Neither party put forward a value for this item. The wife asserted that its only asset is Item 2 (property at Suburb D). There was no successful challenge to this assertion.

   Items 13&14Excluded. The legal fees of the parties have been paid from income for the wife and largely remain to be paid by the husband.

   Item 15Excluded. Neither party put forward a value for this item.

   Item 17Excluded. This item is projected estimated tax payable if cash was withdrawn from EPL. It is not established that cash would be withdrawn to meet the anticipated payment to the husband or for any reason.

   Item 18Excluded. Tax payable personal to the wife resulting from payment of a dividend to herself. Not a matrimonial debt.

   Item 19Excluded. Rent paid in advance for 2017 by Trust (Item 2). Reduction of cash prior to valuation and provision for tax now would amount to a double benefit.

   Item 20Excluded. There was no challenge to the evidence of the husband that he borrowed from his parents to contribute to school fees. There was no evidence from the husband’s parents as to requirement for repayment. The husband will likely pay back some or all of the money he owes his parents when he can afford to do so. This is a liability personal to the husband.

   Item 21Excluded. There is no evidence to support this alleged loan and the conditions of repayment.

   Items 22&23Excluded. Legal fees of both parties estimated only, personal to each of them and differing in quantum.

   Items 24&25Excluded. Current credit card debt is not a matrimonial liability.

Revised Net Asset Pool

1. Assets:

O’ship		Description		H’band value	Wife value
ASSETS
1	H		J Town	$ 575,000	$ 575,000
2	B Pty Ltd/LPL (W)		C Street, Suburb D	$ 900,000	$ 900,000
3	W		E Pty Ltd (as at 31 December 2016)	$ 989,000	$ 989,000
4	W		Motor vehicle 3	$ 36,000	$ 36,000
5	H (FPL)		Motor vehicle 1	$ 17,000	$ 17,000
7	H		Motorbike	$ 2,600	$ 2,600
8	W		Jewellery	$ 18,750	$ 18,750
9	H		Jewellery	$ 450	$ 450
10	H		Furniture and chattels	$ 8,475	$ 8,475
11	W		Furniture and chattels	$ 2,590	$ 2,590
Total			$ 2,549,865	$ 2,549,865

1. Liabilities:

LIABILITIES
16	H	ANZ Overdraft secured over J Town (facility limit $195,000) – now at $181,992 included in item 6 above	NIL (included in item 6 above)	NIL
Total		$ NIL	$ NIL

1. Total Net asset Pool:                    $2,549,865.

2. Superannuation:

SUPERANNUATION
Member		Name of fund
26	H	Z self-managed superannuation fund as at 15/05/2017	E$ 366,000	E$ 366,000
27	W	Wife’s self-managed super fund – L Super Fund as at 30/06/2017	E$ 368,000	E$ 368,000
Total		$ 734,000	$ 734,000

2. Would it be just and equitable to make an adjustment to interests in property

1. This was a long marriage, over 21 years. The parties were divorced in December 2014. The parties wish to put an end to their financial relationship.

2. The parties agree that there should be an adjustment of interests. Further they now agree that the wife should make a cash payment to the husband with each party otherwise retaining property and superannuation interests currently in the respective position of each.

3. They disagree over the amount to be paid. The husband proposes $886,058.[4] The wife proposes $223,718.[5]

   [4] Exhibit 2

   [5] Exhibit 3

4. The bases for the disagreement are the value of the contributions each made to date of trial and the factors pursuant to s 75(2) of the Act which relate to future needs of each.

5. Accordingly, an analysis of those matters is the next step.

3. Consideration of ss 79(4) and 75(2) of the Act in order to come to a just and equitable adjustment

Contributions under section 79(4)

1. It is an agreed fact that both parties had no significant assets when they began living together in 1992. Their position was equal.

2. An asset pool of roughly $3.2 million, including superannuation interests, has been generated over 25 years to date of trial.

3. The parties studied, worked, shared houses and rented for their first four years together.

4. After a short number of years they were both working full-time, the wife as a professional, the husband as a salesman.

5. The parties clearly shared a wish to generate wealth and acquire assets.

6. At first they pooled funds with friends to develop a property in Suburb O. Probably they learnt from the experience, they did not lose money, but it was financially unprofitable.

7. Thereafter the purchase and sale of real property, as set out below, was profitable.

Suburb Q property 1996-1999

1. In 1996 the parties together bought a property in P Street, Suburb Q (“the Suburb Q property”) for $165,000. The parties lived in the Suburb Q property together for about four years.

2. The purchase was financed by borrowing from the bank, and also, on commercial terms, from the wife’s parents.

3. Both parties contributed to repaying the loans.

4. In late 1999 the parties sold the Suburb Q property for $250,000.

Land/townhouse in Suburb D 1999

1. In mid-1999 the parties bought vacant land in R Street, Suburb D (“the Suburb D land”) and borrowed to build a townhouse on it. The husband managed the project of constructing the house.

2. By mid-2000 the property built on the Suburb D land was finished. It had cost $450,000.

3. In February 2003 the parties sold the Suburb D property for $840,000.

Yacht ‘Sunsail’ 2001-2011

1. In March 2001 the parties bought a yacht for $85,000. The yacht was used personally by both parties but it meant more to the husband and was probably used more by him. Sailing is an activity still pursued by the husband.

2. The yacht was also chartered over the years so generated some income.

3. The yacht was sold in March 2011 for $62,000.

Gift from Wife’s mother 2011

1. In that same year 2011 the wife’s mother gave her daughter the gift of $125,000 which was applied to the reduction of the NAB mortgage.

Wife establishes a business and becomes self-employed 2003 to date

1. In July 2003 the wife established a company, E Pty Ltd (EPL) which ran her business. The wife initially operated from home.

2. In January 2008 the parties bought a property in S Street, Suburb T, (“the S Street property”) for $275,000 plus GST. It was a serviced office for use by the wife’s company. She moved her business into those premises for about two years. Thereafter the S Street property was leased to a third party. In 2014 the S Street property was sold for $320,000.

3. In April 2009 the parties purchased an apartment at C Street (“C Street”) for $740,000. The wife moved out of the S Street property and thereafter ran her business from C Street.

Husband re-trains in real estate

1. At around the same time the husband enrolled and completed a Cert. V Business Certificate.

2. In early 2004 the parties and the elder child, then aged about 18 months, moved to live in U Town about 50 kilometres north west of Melbourne.

N Street 2005-2015

1. In February 2005 the parties bought a property in N Street, Suburb V, (“N Street”) for $687,000. It became the family home.

2. N Street was transferred by the wife two years later to the sole name of the husband for reasons related to asset protection for the benefit of both parties.

3. In 2008 the elder child started school. By mutual agreement the husband became the full-time carer of the younger child, then aged four. Previously a nanny had been employed for the two children.

4. In 2009 renovations were undertaken on N Street at a cost of $330,000.

J Town 2010 to date

1. In April 2010 the parties purchased about 50 acres of vacant land at H Street, J Town (“J Town”) for $310,000.

2. J Town was purchased in the sole name of the husband.

3. The purpose of the purchase was to build a weekender on the land for family use.

4. The construction was financed by $125,000 gifted in 2011 to the wife by her parents, with the balance borrowed and secured against N Street.

5. By March/April 2013 the relationship between the parties had fractured.

6. They began a practice of each parent living in N Street with the children in alternate weeks.

7. The parties underwent what the husband took to be marriage counselling and what the wife described as counselling “to get the husband to change his angry behaviour towards the children.”

8. By October 2013 the parties had expended $433,000 on the construction of a house on J Town.

9. In December 2013 the parties finally separated after the wife made a clear statement to the husband that the marriage was over.

10. The wife had acquired rented accommodation in the same suburb as the family home for herself at W Street, Suburb V (“W Street”) and the two girls, then aged 11 and nine years.

11. Thereafter, no further income arising from E Pty Ltd was paid from the Family Trust to the husband.

Separation 2013

1. The parties separated in 2013, with the husband thereafter living in N Street alone. The children spent time with him there.

2. For the first 12 months the wife made repayments on the mortgage. She then ceased doing so. The mortgagee threatened foreclosure. The preference of the wife was for a sale of N Street.

1. The husband could not afford mortgage repayments, he reluctantly conceded that the property must be sold.

2. In October 2015 N Street was sold for $1.425 million. After the settlement of that sale all matrimonial property was unencumbered.

3. After the sale of N Street the husband moved to live at J Town. He asserts it is his full time residence. The wife asserts that the husband lives with a new partner in her home in central Melbourne. There is no evidence to support that assertion.

Husband buys a “G” franchise 2013

1. On or before December 2013 the husband committed to buying a franchised business “G”. There was a delay of about four months before acquisition was complete.

2. In January 2014 the husband withdrew either $50,000 or $71,000 from joint funds. In the witness box the wife conceded that she challenged the husband about the withdrawal; he had told her that he needed money to live on for a year.

3. In April 2014 two things happened: the S Street property was sold; and the husband completed his agreement with G.

Analysis

1. The parties started out together with minimal assets. They were both students at when they met.

2. The husband did not complete his degree and commenced full time work in 1993 in sales.

3. The wife did complete her degree and worked full time for one year of that course and then from 1995 in a professional occupation.

4. Each party made a financial contribution to the acquisition of property and the support of the household through income. Increasingly the contribution was a greater one by the wife as her business grew successfully and became more profitable.

5. In 2011 the wife used the gift of funds from her mother ($125,000) to reduce mortgage debt.

6. Each party was involved in the care and supervision of the children. The wife was working in her business from home whilst the children were infants, making herself available to them as needed with the assistance of a paid nanny from early 2005. The husband was in the paid workforce.

7. Later, when the first child was due to start school the parties agreed that the father should cease paid employment to care for the younger child during the day and get the elder child to and from school. That arrangement continued for almost three years.

8. By the end of 2010 the husband had returned to paid work. He worked from home four days out of five in order to be available to the children.

9. There is a dispute between the parties over which of them performed the majority of household work, cooking, cleaning, shopping and washing. I accept both performed domestic tasks in addition to their involvement in the lives and activities of the children around working full time.

10. Clearly these were busy working lives. I regard their respective contributions, both financial and to the welfare of the family, as substantial but slightly favouring the wife by the date of separation.

11. Post-separation the care of the children was shared until late 2015 when the children stopped spending time with their father. Since then the wife has had sole responsibility for their care and support

12. The cross-examination of the husband reflected the wife’s strong disapproval of the actions of the husband post-separation pursuing the purchase of a franchise rather than looking for employment in areas where he had worked previously.

13. The evidence of the husband was that there was a severe downtown in employment at the time in the industry which provided his usual source of employment and further that he felt left behind and de-skilled from being out of the workforce. He was criticised in cross examination but not in my view successfully challenged.

14. The husband retained proceeds of sale of the parties’ caravan without reference to associated debt. More significantly he drew down funds to assist in the purchase and running of his new business which increased debt.

15. Between separation and date of trial, contributions to the welfare of the children favoured the wife because of her greater contribution to the financial support and welfare of the children post separation.

16. Overall I consider that the contributions at date of trial favour the wife in the ratio of 60 percent to 40 percent.

3. Should any adjustment be made pursuant to section 75(2)?

1. The relevant matters to be taken into account are as follows:

The age and state of health of each of the parties

1. The parties are both aged in their mid forties. Neither raises ill health as an issue.

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. This is a matter of some significance.

2. The wife, during the course of the marriage developed a specialised business. The business flourished and has been most successful. The interest, tertiary education and business acumen of the wife informed that success.

3. The wife discloses gross income of $6764 per week with $1000 of income in excess of all expenditure including tax.

4. The husband discloses gross weekly income of $1100 with expenditure including tax exceeding income by $775.

5. The evidence supports a finding that the wife will go on in much the same way.

6. The wife is living in rented accommodation close by to the former matrimonial home.

7. The position of the husband may improve if he is able to consolidate his position with the franchise parent organisation as a franchisor or get out entirely and return to his previous fields of employment.

8. What is clear is that there will most probably continue to be a substantial disparity in income between the parties. There is a long standing differential in capacity to earn, and not simply actual income.

9. I take this factor into account for substantial adjustment in favour of the husband.

Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

1. On 29 July 2015 final parenting orders were made by consent. Despite the orders for the children to spend equal time with each parent the children do not spend time with their father. The orders failed almost from the outset.

2. There is a notation to the orders as follows:

   1.Both parents intend that they shall continue to facilitate all parenting arrangements with both children and take into account any wishes expressed by [X] and [Y].

3. The mother has allowed the children to choose not to see their father at all and continues to support their decision.

4. Accordingly the wife has had the full time care and supervision of the children with regard to all aspects of their lives.

5. The husband is most unhappy about the orders not being complied with. He wants to spend time with the children and had expected he would.

6. However the reality is that for the next four years it is more likely that the children will remain in the exclusive care of their mother spending very little or no time with the father.

7. Accordingly the wife will likely organise her work around their care and general supervision for the next four years until both children have reached adulthood.

8. I take this factor into account as an adjusting factor in favour of the wife.

Commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain

1. Both parties have a duty to maintain the two children until each turns 18 years. The children may progress to tertiary study and remain dependent for many more years. However, without a further order, support of young adults is a matter of parental choice not legal obligation.

2. Neither party otherwise nominates any third party requiring support.

Subject to s 75(2)(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party

1. Each of the parties has a substantial superannuation interest of equivalent value. The wife managed those funds expertly, in a tax effective manner for the joint benefit of the parties, during the marriage.

2. The fund of the wife is likely to steadily grow as she contributes to her own present benefit, and for future income on retirement, at least twenty years away.

3. On present indications the husband will not be in a position to make further contributions to his own fund as a self-employed person. He cannot afford to do so. If he returns to paid employment some reasonable contribution at least at the statutory rate will be made.

4. However the financial position of the wife in the future will undoubtedly be stronger in terms of superannuation income. It is a concomitant of her higher income but a separate factor to take into account.

5. I do take it into account as a factor for adjustment in favour of the husband.

Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

1. The parties are divorced.

2. The husband is living in a property on acreage which is comfortable but inconvenient for working in the city.

3. The wife is living in comfortable rented accommodation in the same local area as the former family home. It is convenient to her workplace and to the school attended by the children.

The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

1. The marriage endured for 21 years. The parties had lived together as a couple for four years prior to marriage. It is now four years since they separated.

2. For these parties the marriage provided to the wife a platform for the development and growth of a successful business.

3. At first the wife operated out of the parties’ home. She was in the home when the children were young with a paid nanny also present.

4. The husband worked outside the home but on at least two occasions changed or modified his work in order to be at home and more available to the wife and the children.

5. In 2008 the wife moved the business into outside premises which the parties purchased. The husband ceased paid employment and stayed at home with the younger child, also supervising the older child around school and activities.

6. The evidence suggests that the husband enjoyed his time with the children but found it difficult to fit back into the workforce.

If either party is cohabiting with another person-the financial circumstances relating to the cohabitation

1. There is no evidence of either party cohabiting. The father has formed a new relationship.

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. Both children attend a private secondary school. The combined school fees, excluding the undoubtedly considerable costs of uniforms, books, music, drama camps and extra-curricular activities is $61,344 per annum. There is a residential camp in Year 9 which adds $25,000 in that year to that sum.

2. The wife has, since soon after separation, paid all of these expenses and more (for health care and private health insurance) herself.

3. The husband agreed, during the marriage, to the girls attending the school they do, but he cannot afford the contribution which he offered after separation, that is half of the costs associated with the children.

4. The husband in the 12 months post-separation spent money in the order of $600 per month on eating out and alcohol. I take into account that he was spending substantial, if not equal time, with the children during that period. He continued to sail for his own pleasure.

5. The husband has contributed a comparatively very modest sum (part of school fees) to child support, directly to the wife correctly assessing that she would be able and willing to cover all the costs.

6. I accept his assertion that he would re-consider contributing half private school fees once he had “the means to pay my half share.”[6]

   [6] Affidavit in Reply of the husband filed 27.06.2017, par 33

7. Realistically the evidence suggests that there will be no change in the short term to enable the husband to contribute in that way or much at all.

8. I take this factor into account as a factor for adjustment favouring the wife.

Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

1. The assets of the wife are principally her business including the real estate from which it operates.

2. The assets of the husband are principally his house on the acreage. He is a business owner selling franchises. There is an associated debt on the J Town property which neutralised the value of that business.

Analysis

1. The factors for adjustment are:

   -    The higher income and earning capacity of the wife together with her ongoing ability to contribute to her self-managed superannuation at past levels. These factors favour the husband;

   -    The obligation of the wife to provide financially for all of the children’s expenses including school fees and associated costs for the next four to five years together with her provision of all care and supervision of the children. These factors favour the wife;

   -    Overall the adjusting factors come close to balancing each other particularly as the earning capacity of the husband could improve, and the willingness of the children to spend time with their father could change;

   -    However the superior income and future earning capacity of the wife together with the associated ability to contribute to superannuation in future requires a small adjustment in favour of the husband so as to creating a further disparity of 5 percent;

   -    On that basis the overall division becomes 57.5 percent to the wife and 42.5 percent to the husband.

4. Analysis of whether the adjustment contemplated is just and equitable

1. At present the parties have assets, interests and liabilities within their possession and control as follows:

2. The husband:

   Assets

   Items 1&16              J Town  $ 575,000

   Item 5  Motor vehicle 1                    $ 17,000

   Item 7  Motorbike    $ 2,600

   Item 9  Jewellery  $ 450

   Item 10  Furniture   $ 8,475

   Sub Total  $ 603,525

   Superannuation

   Item 26  Z Super  $ 366,000

   TOTAL  $ 969,525

3. The wife:

   Assets

   Item 2  Suburb D  $ 900,000

   Item 3   EPL  $ 989,000

   Item 4  Motor vehicle 3                    $ 36,000

   Item 8  Jewellery   $ 18,750

   Item 11  Furniture   $ 2,590

   Sub Total  $ 1,946,340

   Superannuation

   Item 27L Super  $ 368,000

   TOTAL$ 2,314,340

Combined Net Assets

1. The net asset pool including superannuation is:   $3,283,865

   To the wife 57.5 percent   $1,888,222

   To the Husband 42.5 percent  $1,395,642

Conclusion

1. To achieve a division of 57.5/42.5 a cash payment by the wife to the husband of $426,118 is required.

   -    To the husband $1,395,642 less assets in possession of $969,525, plus payment of $426,118;

   -    To the wife $1,888,222 taking into account assets in possession of $2,314,340, payment required to be made of $426,118.

2. A reasonable period of time will be allowed for the wife to borrow the funds if she so chooses.

3. Orders are made accordingly.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 4 April 2018.

Associate:

Date:  4 April 2018