TAYLOR & TAYLOR

[2016] FamCA 451

FAMILY COURT OF AUSTRALIA

TAYLOR & TAYLOR [2016] FamCA 451

FAMILY LAW – PROPERTY – Long marriage but no substantial non-superannuation assets – Main financial contribution during the marriage sourced to husband’s disability – Lump sum payment for disability in the course of service – Loss of capital in property transactions – Modest remaining amount after forced sales by mortgagee bank – Husband bankrupt – Husband’s Trustee in Bankruptcy not seeking any orders with respect to remaining funds – Husband medically assessed as totally and permanently disabled – Disability pension not commutable into any lump sum – Post-separation period (four years) during which husband assumed virtually sole financial and other responsibilities for three children without meaningful support from wife – Husband also responsible for joint debts – Assessment of contributions heavily in husband’s favour – s 75(2) matters likewise favour husband – Just and equitable orders – Wife has residual earning capacity and consequent capacity to increase superannuation – Husband totally and permanently unemployable and wholly reliant upon pension – Need of younger children for ongoing support – Not just and equitable to apportion husband’s pension

Family Law Act 1975 (Cth)

Family Law (Superannuation) Regulations 2001 (Cth)

Stanford v Stanford (2012) FLC 93-518

APPLICANT: Ms Taylor

RESPONDENT:	Mr Taylor
FILE NUMBER:	BRC	2836	of		2012

DATE DELIVERED: 8 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 28 January 2016

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

Orders

IT IS ORDERED THAT:

1. It is declared that the wife is the sole legal and beneficial owner of the entitlement of the parties or either of them to the remaining proceeds of sale of the properties previously owned by the parties or either of them subject to mortgages in favour of the National Australia Bank being the properties situate at C Street, Suburb D and the property situate at E Street, F Town.

2. The wife is at liberty to cause the National Australia Bank to release to her such remaining proceeds held by the National Australia Bank and by these orders the release of such funds to the wife is a good and sufficient discharge of any liability of the National Australia Bank to release such funds to either, or both, the husband and the wife.

3. Otherwise each party shall retain absolutely to the exclusion of the other all items of property, financial resource or superannuation interest presently in the name or control or possession of that party or to which the party is entitled.

4. All applications be otherwise dismissed and removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Taylor & Taylor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2836/2012

Ms Taylor

Applicant

And

Mr Taylor

Respondent

REASONS FOR JUDGMENT

1. On 28 January 2016, Ms Taylor (“the wife”) and Mr Taylor (“the husband”) and the Independent Children’s Lawyer (“ICL”) for the subject children entered into orders made by consent with respect to the children, G (born in 1999) and H (born in 2003).  The parties’ oldest son, Mr I, attained his majority in December 2015. 

2. Those parenting orders brought to a conclusion longstanding disputation between the parties surrounding parenting issues that had existed since their final separation in March 2012.  The making of those parenting orders also concluded the ICL’s involvement in these proceedings.

3. It is largely unnecessary to the determination of remaining property adjustment issues between the husband and the wife pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) to recount the unfortunate history of the parenting dispute. All that now needs to be noted is that the final parenting orders provide for the children to live with the husband and to spend no time or communicate with the wife. In these respects the orders reflect the now longstanding and sad reality of what has been the position for some years as regards the children’s relationship, or lack of relationship, with the wife.

4. The determination of property settlement orders occurs within a very narrow compass because of the meagre property interests involved. 

5. It would appear that the only remaining property interests to be considered are:

   a)approximately $60,000 held in the trust account of the solicitors for the National Australia Bank (“NAB”) on account of a mortgagee sale of property previously owned by the parties – subject potentially to an approximate $27,000 debt to the NAB in respect of a debit balance remaining on the mortgagee sale of another property;

   b)the husband’s superannuation invalidity pension for total and permanent disability related to injuries suffered during his employment.  As at trial on 28 January 2016 this pension was being paid in fortnightly payments of $2,190 (net of tax) equating to $70,876 gross per annum;

   c)the husband’s public service payment for total and permanent disability amounting to $2,596 per annum paid in instalments.

6. Whilst the husband has a motor vehicle I accept his evidence that the debt of $38,000 owing to a financier for that vehicle equates to its value so he essentially has no equity in that asset.

7. On 6 November 2015 Mr J was appointed Trustee in Bankruptcy of the husband’s estate (“the Trustee”).

8. The Trustee appeared on 19 November 2015 at what was to be the first day of trial of these proceedings.  The Trustee initially sought an adjournment of the trial given his then very recent involvement. 

9. In the result the trial was, for a number of reasons, adjourned and relisted to proceed on 28 January 2016.  Importantly though, the Trustee confirmed on the record during the proceedings on 19 November 2015 that the Trustee would not oppose (and did not wish to be heard further on) any orders having the effect that the wife receive the parties’ entitlement to the remaining funds held on their behalf by the NAB.

10. The husband raised no objection, on the proviso that he retains in full his pension benefits, to orders being made for the wife to receive the whole of the parties’ entitlement to the funds referred to. 

11. For her part, the wife contends that if she receives these funds she ought also receive 25 per cent of the husband’s pension payments. 

12. The husbands super supplied statements described as “[i]nformation as specified in the Family Law (Superannuation) Provision of Information-… Superannuation and Benefits Scheme Determination 2004 (as amended)” in response to requests from the husband’s then solicitors.  These are attached to the husband’s affidavit filed on 23 June 2014. 

13. The statement in respect of the husband’s annual pension confirms that it is a splittable superannuation interest for the purposes of reg 64 of the Family Law (Superannuation) Regulations 2001 (Cth). It also confirms that there is no lump sum payable with respect to the pension the husband receives. There is no provision for the husband to commute any part of the pension into a lump sum.

14. Given the issues joined between the parties, it can be seen that the issue which crystallises is whether it is just and equitable, and appropriate within the meaning of s 79 of the Act to adjust the husband’s interest in his disability pension by making some payment splitting order in favour of the wife.

15. Neither party had legal representation for the trial.  In the circumstances of the husband’s bankruptcy and the wife’s likewise modest financial position, neither party had the financial capacity to fund any expert evidence concerning the husband’s disability pension.  That noted, it seems to me that expert evidence which placed some lump sum capital value upon a fortnightly pension payment, by capitalising the payment received, would have been of little assistance.  As already noted, the pension payment cannot be commuted into a lump sum and of course may be subject to future administrative or legislative change. 

16. To the extent that the Act now provides that such an interest be treated as “property” this does not convert what is in truth a fortnightly pension payment, into a capital asset that the husband can deal with. All that the husband has, as and when they are received, are the fortnightly pension payments.

17. I record that not only did the parties not have the benefit of legal representation at trial, but in the case of the husband the material he relied upon was somewhat out of date.  For her part, at one point in the lead up to trial the wife had filed no relevant material concerning property settlement despite directions for her to do so having been previously made by Registrars.  In consequence at one point the husband flagged to the wife and to the Court that he would seek to have the trial of the property proceedings proceed on an undefended basis.

18. In the result, the wife filed some material in accordance with further orders made for the trial on 28 January 2016 and the husband did not ultimately pursue an application that his case proceed on an undefended basis.

19. Each party read and relied upon material for the purpose of the trial on 28 January 2016 and each party was cross-examined by the other at that trial.

History relevant to contributions – s 79(4)(a), (b) and (c)

1. The parties, each 42 years of age at trial, were aged about 23 years when they commenced cohabitation in December 1996.

2. Neither party had any assets of substance at the commencement of cohabitation.

3. The parties married in 2003 and finally separated in March 2012.  Thus the period of cohabitation spans approximately 15 years. 

4. There are three children of the relationship, Mr I born in 1997, G born in 1999 and H born in 2003. 

5. Throughout the relationship the wife performed a homemaking and parenting role and in addition from time to time worked in external employment.  The husband acknowledges in his material that the wife bore the major share of responsibility for homemaking and parenting.

6. For most of the relationship the husband was employed full-time in the public service.  He undertook training for, and was engaged in, overseas deployments during his employment.  Such engagements had obvious effects in terms of increasing the homemaking and parenting burden borne by the wife. 

7. Unfortunately, these engagements had a seriously adverse impact upon the husband’s health.  The husband returned in about 2009 from a deployment in overseas suffering post-traumatic stress disorder, hearing loss, tinnitus, and lumbar spondylosis. 

8. The health consequences for the husband involved him in admissions to hospital from time to time.  His post-traumatic stress disorder had very significant impacts upon the husband’s capacity to function and consequent impacts upon the wife’s need to provide him with additional care and support.

9. In summary, commensurate with the husband’s poor health was an increased burden upon the wife in providing him with care and support in addition to her usual homemaking and parenting responsibilities.  The wife’s capacity to engage in external employment, I accept, was consequently limited in the periods of greatest incapacity of the husband.

10. In about July 2011 the husband was medically discharged from the public service.  He received a disability payment of approximately $290,000 related to his service-caused disability.

11. It is to be recognised that both parties contributed to the husband’s earnings during the period he was employed.  That is, the wife made an indirect contribution to the husband being able to undertake his employment and receive his salary by adopting the homemaking and parenting role which relieved the husband of that responsibility. 

12. It can likewise be concluded that there is some indirect contribution by the wife to the disability payment referred to, but it must also be recognised that the nature and characteristics of that payment was in respect of service-caused disability suffered by the husband.  It was not an entitlement based on performing work but rather an entitlement akin to a damages award for the permanent disability the husband sustained in the course of that work.  It is obviously referable to the loss of the husband’s capacity to earn income in future. 

13. In that respect the $290,000 disability payment can be seen to be a substantial contribution by the husband effectively as and by way of an advance upon what he might otherwise have earned in the normal course had his service continued. 

14. With the benefit of the $290,000 payment referred to, the parties embarked upon property acquisitions. 

15. In August 2011 the parties purchased the property at C Street, Suburb D for $510,000 (“C Street”).  Up until then the parties and their children had resided in rental accommodation including rental accommodation provided through the Housing Authority at subsidised rent.  About $100,000 of the C Street purchase was funded from the husband’s disability payment and the balance of about $410,000 required was borrowed upon mortgage from the NAB. 

16. Also in August 2011 the parties purchased a farm property at F Town (“F Town”) for a price of $250,000.  A deposit of $75,000 for this purchase together with an additional $70,000 to construct a barn on F Town was funded from the husband’s disability payment; with the balance purchase funds of about $175,000 again being funded by mortgage from the NAB.

17. Allowing for some purchases of furniture, appliances, farm equipment and motor cycles as well as about $20,000 being incurred in stamp duty in respect of the property purchases referred to, the whole of the husband’s disability payment was utilised.  Allowing for the value of the barn constructed on F Town, upon completion of these purchases the parties held assets worth about $830,000 but they had to service a total of about $585,000 in mortgage debt secured upon those properties.

18. The parties’ final separation in March 2012 was only some seven months after they had acquired C Street and F Town.  As at separation the children were aged 15 years, 13 years and 10 years respectively.

19. I accept the husband’s evidence to the effect that on and from final separation he was effectively solely responsible for attempting to meet jointly accumulated debts.  These included necessary mortgage repayments; payments upon joint credit cards; payments of motor vehicle loans; and payments in respect of personal loans. 

20. I also accept the husband’s evidence that since separation, a period of about four years to trial, the husband has received only minimal child support from the wife, and he has thus borne the major share of responsibility for the financial support of the children as well as in relation to parenting and homemaking responsibilities in respect of the children in circumstances where they have lived with him, and particularly in recent years have had no time or communication at all with the wife.

21. In terms of child support the evidence is that the wife has historically been assessed to pay child support at the rate of $33 per month based upon an annual income as per the wife’s historical taxation returns submitted of about $9,000 per annum.  Plainly, $33 per month falls well short of the actual needs of three boys of the ages of these children over the four year period since separation.

22. The husband gave evidence, which I accept, that he has not received any payment at all for child support from the wife since about November 2014.  He acknowledged in evidence that when the wife submits a taxation return he has historically received some lump sum payment equating to the accumulated arrears of $33 per month then outstanding.  It would seem the wife has not submitted her 2015 taxation return and thus the husband has received no payments since November 2014.

23. I accept the husband’s evidence that by late 2014 the husband was unable to continue meeting his then commitments without drawing down upon his accumulated superannuation entitlement.  In late 2014 the husband drew the entirety of this entitlement of $70,657.35 to meet debts and expenses, including future debts and expenses for the children.  To that point the husband had been incurring rental expenses since separation and had been attempting to meet the parties’ joint debts and ongoing repayments.  In his affidavit filed on 26 September 2014 the husband sets out his then current and future expenses met, or to be met, from the superannuation payment totalling about $44,000.

24. The husband acknowledges, as is the fact, that this superannuation entitlement was accumulated during the relationship.  However, I accept the husband’s evidence that he essentially applied the superannuation payment to discharge what were effectively joint responsibilities including expenses in relation to the children. 

25. The husband acknowledges using about $10,000 of his superannuation to meet his legal expenses of these proceedings and in that respect that sum was applied by the husband for his exclusive benefit.  I accept the husband’s evidence that the substantial liability for legal fees of these proceedings the husband had incurred to that point was subsumed in his recent bankruptcy.

26. Because the parties were in default in paying the mortgages with respect to C Street and F Town, the mortgagee NAB entered into possession of those properties and exercised its power of sale with respect to both properties.

27. The approximate $60,000 held in the trust account of the solicitors for the NAB comprises the balance proceeds of sale of C Street after repayment to the NAB of the mortgage debt with respect to that property.  Those funds have not been released by the NAB apparently because there is a remaining debt owing by the parties to the NAB of approximately $27,000 representing the shortfall between the sale proceeds of the F Town property and what is owing to the NAB on that mortgage.  The husband explained that on his understanding the NAB was not entitled to automatically offset the debit against the credit albeit that it seems the NAB maintains that there is a liability for the approximately $27,000 referred to. 

28. It would seem that virtually since separation or soon after separation the children have aligned themselves to the husband in his dispute with the wife.  It is unnecessary for present purposes to analyse why that situation developed, or where fault lies for that unfortunate state of affairs, but the reality is that the husband has more or less been solely responsible for the children since separation, including financially, with the wife’s level of assessed child support being exceedingly modest and well short of meeting any substantial proportion of the actual expenses of children of the respective ages of these children over the period referred to.

29. That noted, as already observed, the husband accessed his superannuation entitlement of approximately $70,000 being an entitlement that can be seen to have been jointly contributed to during the relationship: the husband working and earning income and the wife undertaking primary responsibility for parenting and homemaking.

30. In this respect, then, the use of the $70,000 by the husband in the manner referred to can be seen as a contribution also by the wife to joint expenses and expenses in relation to the children. 

31. Taking into account that by withdrawing and using the wife’s notional share of superannuation withdrawn, the wife has effectively made a financial contribution to the support of the children, that is an offsetting contribution factor to the husband’s role, post-separation, of parenting and other support of the children.

32. Overwhelmingly the most significant financial contribution during the relationship was the husband’s contribution of his lump sum disability payment as earlier referred to.  Unfortunately though, as events have transpired, the majority of the capital so contributed has been lost as evidenced by what remains from the sales of the C Street and F Town properties.

1. In my judgment the outstanding features of the husband’s contributions (within the meaning of s 79(4)(a), (b) and (c)) include that it was a disability payment of $290,000 that the husband received for disability which constitutes the major capital contribution by either party to the relationship. Obviously, that was substantially lost or depleted in what transpired after the purchase of the subject properties in the post-separation period but nevertheless, that which remains is effectively from that original source. The other outstanding feature of the husband’s contributions are his financial and non-financial post-separation contributions with respect to the children of the marriage. To some extent that is offset by the husband’s withdrawal and use of the superannuation benefit of approximately $70,000 already referred to but it remains a feature which weighs heavily in the balance in the husband’s favour.

2. Whilst often the assessment of contribution-based entitlement of each party is expressed in percentage terms, it seems to me that the meagre amount of existing property, and the nature and characteristics of the husband’s pension would result in a distortion if some attempt to apply a percentage was made at this stage of the assessment process.  I propose to consider relevant s 75(2) matters and then consider what orders are just and equitable in the overall circumstances of this case.

Relevant s 75(2) matters – s 79(4)(e)

1. The husband provides medical reports from each of his treating general medical practitioner and his treating psychiatrist each containing opinions to the effect that by reason of the post-traumatic stress disorder the husband sustained in his employment, he is unlikely to ever be able to again work in employment for which he is reasonably qualified by education, training or experience or for which he could be qualified by retraining.

2. In short, the husband’s medical evidence, which I accept, is to the effect that it is more likely than not that for the rest of his life the husband will be permanently commercially unemployable.

3. Whilst part of the wife’s cross-examination of the husband at trial was directed to questioning the husband about voluntary work he undertakes from time to time in an effort by the wife to demonstrate some residual employment capacity, I am comfortably satisfied on the husband’s evidence that the work he has performed is voluntary and the husband has only performed that work for short periods when he feels well enough to do so.  It is impossible to infer from the husband’s evidence, which I accept, concerning his voluntary work that the husband has some residual employment capacity.

4. I am satisfied based on both the husband’s own evidence, and his medical evidence in support, that the husband is to be taken to be permanently unemployable in any commercial sense.

5. I accept the husband’s evidence that as a consequence of him no longer owning a home, by reason of the forced sales by the NAB, the husband lost his entitlement to the Home Owner Assistance Scheme of $497 per month at the time.  As it would seem unlikely that the husband can again achieve home ownership, his loss of that entitlement is significant.

6. The husband’s financial and other circumstances were explored with him under cross-examination at trial.

7. As at trial all three children were residing with the husband in rental accommodation the husband provides and pays for.

8. Whilst the oldest child, Mr I, attained his majority in December 2015 and he is in the first year of an apprenticeship to qualify as an electrician, I accept the husband’s evidence that Mr I only earns between $200 and $300 per week from which he must meet fuel and other motor vehicle expenses to transport himself from job to job to obtain that income.  In other words, Mr I’s net position does not allow him to make any substantial contribution even to his own support as at the time of trial.

9. I thus accept the husband’s evidence that he supports Mr I financially to a substantial degree including by the provision of accommodation, food and utilities.  Obviously, that is likely to change in the not too distant future as Mr I progresses in his apprenticeship and in his work.

10. G is in year 12 for 2016.  There is evidence, which I accept, that G has historically been a capable academic achiever.  I accept the husband’s evidence to the effect that after completion of grade 12, G plans to undertake dual degrees at university.

11. Whilst it can be accepted, as the wife ultimately submitted, that each of G and in turn H can rely upon the Commonwealth’s “HECS” scheme in relation to funding their university fees; and both can reasonably be expected to undertake some part-time work whilst attending university; the reality, I accept, is that G and H will continue to be financially dependent to a substantial degree for some years to come.

12. H is only in year 8 at school in 2016 and the husband referred to him also having ambitions to undertake university studies when he completes his current five years of secondary schooling.  It is more likely than not that H will remain financially dependent for many years to come.  He has to complete five years of secondary school before embarking upon some years of tertiary study.  The husband provided an estimated need to provide assistance to his sons for the next seven years and even that estimate might be optimistic with respect to H.  Based upon the history of this matter, it would appear more likely than not that it will be the husband who will primarily meet the ongoing need for financial support of G and H in circumstances where the wife’s historical assessments of child support have been as minimal as $33 per month. 

13. The pension the husband receives is paid in the amount of $2,190 per fortnight after tax, or $1,095 per week in net terms.  From this the husband meets $600 per week in rent for a home sufficiently large enough to accommodate himself and the children.  The husband gave evidence that apart from the increase in the rent he pays, his expenses otherwise remain in accordance with his financial statement filed on 26 September 2014.

14. The husband also receives Family Tax Payments from Centrelink.  The husband gave evidence, which I accept, that his fortnightly payment of approximately $130 from the public service for permanent disability will gradually diminish over the next three or four years to the point being reached where nothing is paid. 

15. I accept the husband’s evidence that, as at trial, his financial situation is such that he is behind in his rental payments and behind in the repayments due upon his motor vehicle.  It can readily be accepted that after his fixed payments for rent and car repayments and after having to meet utilities for a house occupied by himself and his three sons currently (and himself and his two younger sons for some significant time to come), the husband’s income from the sources referred to does not provide him with any excess financial capacity.

16. The wife tendered in evidence a number of exhibits to demonstrate the historical level of her earnings.  Exhibit 3 is an Australian Taxation Office payment summary containing a summary of the wife’s employers and income and taxation paid for the financial years 2012 to 2015 (inclusive).  That indicates that in her highest income year (2013) the wife earned $34,092 gross.  Exhibits 4 and 5 were various payslips for the wife for various periods.  The net effect of this evidence was in support of the wife’s contention that her historical earnings over the period since separation are about $30,000 gross per annum, which can be accepted.

17. The wife’s evidence was to the effect that her earnings were not limited by reason of any incapacity on her part to engage in full-time employment.  Rather, the wife’s evidence was to the effect that her earnings were limited because she was limited to casual employment in that casual employment is the norm offered in her field of work; and full-time work is difficult to obtain.

18. It is to be noted that the 2014 pay slips in Exhibit 4 reflect that the full-time work equivalent then attracted an annual salary of $46,870 plus superannuation, whilst the 2015 payslips in Exhibit 5 reflect an hourly rate of $30.54.  If that hourly rate was translated to a 35 hour working week it would obviously reflect an annual salary for full-time work in the order of $55,000 gross.

19. As already noted, the wife has historically been assessed to pay child support at the rate of only $33 per month based upon an annual income of about $9,000 per annum.  That income level seems inconsistent with the wife’s own evidence of earning an average of $30,000 gross per annum.  In any event, it can be seen that largely the wife has retained for her own benefit any income she has earned over the approximate four year post-separation period.

20. That aspect aside, apart from the wife’s oral evidence to the effect that it is difficult for her to obtain full-time work, it is the fact that she has in the past from time to time secured full-time work.  The wife offered no evidence of failed attempts to secure full-time work over the lengthy period since separation.  She offered no convincing evidence corroborating her assertion that it is difficult to obtain full-time work.  Whilst her own evidence in this respect can be accepted as a broad proposition, the wife’s evidence did not descend to particulars of attempts made by her to secure full-time work or other remunerative employment.

21. I do not accept that the wife’s current employment capacity is limited to earning $30,000 gross per annum.

22. The wife is in the process of studying for a degree but she contends that it may be many years yet before she completes that course of study, the wife nominating a period of some 10 years before completion, and the wife also refers to having a HECS debt to repay when she eventually qualifies.

23. I did not find the wife’s evidence that she is limited to casual/part-time employment at all convincing, nor do I accept that the wife is limited to a rate of progress with her degree that results in it being as long as 10 years before she obtains her qualification to work.

24. In my judgment, it is more likely than not that the wife has the present capacity to earn income significantly higher than $30,000 and probably in the order of $45,000 to $50,000 per annum; and it is more likely than not that the wife will enhance her capacity by obtaining her degree certainly within the timeframe that H remains reliant upon the husband to support him as earlier discussed.

25. The wife gave evidence of her determination to have further children.  She denied any continuing intimate relationship with Mr K, the person with whom she acknowledged she was in a “brief relationship” previously and, she says, after separation.  However, the wife acknowledged that as at trial she continues to live in Mr K’s residence and that she receives financial and other support from his parents.  In contrast to the husband paying $600 per week or $31,200 per annum to accommodate himself and the children, it would seem that the wife does not have any similar expense with her accommodation being provided by Mr K. 

26. This noted, it can be accepted that the wife’s financial circumstances overall are constrained presently, but compared to the husband the wife has a residual earning capacity of substantial value which the husband simply does not have. 

27. According to her financial statement filed on 27 July 2013 the wife had then accumulated $12,000 in superannuation.  She has the capacity, if she exercises her earning capacity in full for the remainder of her working life, to substantially increase the value of her superannuation as existing upon retirement.  The husband does not have any like capacity.

28. Fundamentally, currently and for the foreseeable future, the husband has and will have significant commitments for the support of the children, G and H.  As already noted, historically very little in the way of financial support has been provided by the wife.

29. In my judgment the relevant s 75(2) matters overwhelmingly favour the husband.

Just and equitable orders

1. Obviously the parties’ final separation was voluntary and it brought an end to their common use of property as well as to the implicit assumptions underlying the relationship whilst it was intact.  It can thus be concluded that circumstances exist for it to be just and equitable to make property adjustment orders.[1]

   [1] Stanford v Stanford (2012) FLC 93-518

2. Neither the husband nor his Trustee in Bankruptcy mounted any opposition to orders being made for the wife to receive the remaining proceeds of sale held by the NAB.  As already noted, the husband’s position was based upon his pension interest being undisturbed.

3. Whilst the wife sought an order having the effect of releasing to her the approximate $60,000 held without reference to the approximate $27,000 debt, on the basis that she would be able to negotiate with the NAB in respect of that debt, it would not be legitimate for the Court to make orders in terms which impinge upon any legal rights of a third party in the NAB’s position.

4. It may well be that the wife can successfully negotiate with the NAB and receive about $60,000, but in my judgment I ought proceed on the cautionary basis that the approximate $27,000 in debt will have to be paid, leaving approximately $33,000 available to the wife. 

5. I am not persuaded that in all the unfortunate circumstances of this case that it would be just and equitable, or appropriate, to make an order having the effect of adjusting any proportion of the husband’s pension in the wife’s favour by a splitting order.

6. It bears repeating that the nature of that pension interest is that it is paid for the husband’s employment related total and permanent disability from engaging in employment for the rest of his life.  It is paid in fortnightly instalments and none of the pension is commutable into any lump sum. 

7. Whether the rate of pension or the conditions upon which it is payable in future remain as currently is not guaranteed, governed as these things are by legislative and/or administrative review from time to time.

8. I am satisfied that the financial demands upon the husband of the support he has provided since separation and continues to provide for the children of the marriage will continue with respect to G and H for many years yet. 

9. In my judgment the husband’s pension entitlement less the burden of support for G and H is matched by the wife’s residual earning capacity and her capacity to build superannuation over the remainder of her working life.  The wife is likely to have further enhanced her earning capacity (and capacity to increase her superannuation) by degree qualifications obtainable probably within the timeframe that H remains financially dependent.

10. In my judgment, it would not be just and equitable, or appropriate, within the meaning of s 79 of the Act to adjust any proportion of the husband’s pension in favour of the wife.

11. For these reasons I make the orders set out at the commencement of these Reasons.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 June 2016.

Associate:

Date:  8 June 2016