TILKI & TILKI

[2020] FamCA 804

FAMILY COURT OF AUSTRALIA

TILKI & TILKI [2020] FamCA 804

FAMILY LAW – PROPERTY – Property Adjustment – Where discussion of applicable principles – Where both parties seek adjusting orders – Where assertion by the husband as to the wife’s gambling – Where significant matrimonial capital funds received by the husband post separation – Where consideration of relevant contributions and relevant s 75(2) factors.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Russell & Russell (1999) FLC 92-877
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT: Mr Tilki

RESPONDENT: Ms Tilki

FILE NUMBER: PAC 1024 of 2014

DATE DELIVERED: 23 September 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 & 19 June 2020 & 31 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maddox

SOLICITOR FOR THE APPLICANT: Hutchison Lawyer

COUNSEL FOR THE RESPONDENT: Mr Rosic

SOLICITOR FOR THE RESPONDENT: Calvin Nelson & Co Lawyers & Tax Agents

Orders

1. That within three months from this date the husband do all things necessary and sign all documents necessary to transfer to the wife his interest in the property at J Street, Suburb B NSW being the land in Folio Identifier ...

2. That concurrently with the husband complying with the previous order the wife do all things necessary to refinance the present mortgage secured over the said property so as to release the husband from all or any liability in respect to the said mortgage. 

3. That the husband do all things necessary and sign all necessary documents to facilitate the wife procuring a discharge of the present mortgage secured over the said property.

4. That the husband and wife do all things necessary to authorise and direct that funds presently held on trust for them be paid out as to $8,950 to the wife and the balance to the husband.

5. Liberty to apply as to implementation or enforcement of these orders.

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 Tilki & Tilki 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 PARRAMATTA

FILE NUMBER: PAC 1024 of 2014

Mr Tilki

Applicant

And

Ms Tilki

Respondent

REASONS FOR JUDGMENT

1. In property settlement proceedings between the applicant husband and the respondent wife, the husband filed an Amended Initiating Application on 27 May 2020.

2. In that application he sought relevantly, in summary, orders to the following effect:

   a)that the husband transfer to the wife his interest in the real estate property situate at J Street, Suburb B, New South Wales (“the Suburb B property”);

   b)that simultaneously with the said transfer, the wife indemnify the husband from any liability in respect to the Westpac Banking Corporation mortgage registered over the said property in an amount outstanding as at 12 May 2020 of $180,667;

   c)that the husband be declared solely entitled to the property situate at V Street, F Town (“the F Town property”); and

   d)that, otherwise, each party be declared solely entitled to items of personalty including superannuation in their respective possession or entitlement.

3. The respondent wife for her part relied upon her Amended Response to the husband’s Initiating Application. That Amended Response was filed on 19 December 2019 and, in summary, sought the following orders:

   a)that the husband pay to the wife the sum of $150,000 within two months;

   b)that simultaneously with that payment, the husband transfer to the wife his interest in the Suburb B property;

   c)that the wife indemnify the husband from any liability in respect of the Westpac Banking Corporation mortgage secured over the Suburb B property; and

   d)that, otherwise, each party be declared solely entitled to items of personalty including superannuation in their respective possession or entitlement.

At trial

1. At trial the husband relied upon:

   a)his trial affidavit filed 3 June 2020; and

   b)his Financial Statement filed 13 May 2020.

2. At trial the husband sought orders as in his Amended Initiating Application.

3. At trial the wife relied upon:

   a)her trial affidavit filed 19 December 2019; and

   b)her Financial Statement filed 18 June 2020.

4. At trial the wife sought orders substantially as sought in her Amended Response. During the course of the trial the wife sought the payment to her of a reduced adjusting sum of $117,298.

5. At the commencement of the trial counsel for the husband noted that one of the primary issues for determination was the identity of the asset pool for adjustment purposes. It was contended by counsel for the husband that at separation contributions overall should favour the husband as to 55/45 and as at hearing that disparity should remain. The sole contention for the disparity in assessing contributions was the issue discussed below as to the wife’s “gambling”. It was further contended that there should be an adjustment by reason of the considerations in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) favouring the husband in the range of 2.5 to 5 per cent.

6. Counsel for the wife at the commencement of the trial agreed that a primary issue for determination was the asset pool for adjustment purposes. He contended that overall contributions should be assessed as equal and that there be no further adjustment by reason of any of the considerations in s 75(2) of the Act.

Context

1. The husband at trial was aged 61 and the wife was aged almost 60.

2. The husband suffers from a medical disability involving lack of muscular control around his face about the neck area that impedes his ability to communicate effectively.  This was readily apparent during his oral evidence during the trial.  It is not suggested that he has any significant, if any, capacity for future employment.

3. The wife is in full-time employment as a subcontractor. The wife is not an employee and must make her own arrangements for superannuation and the costs of providing her services.  The wife asserts a number of issues that impact upon her health.  However, she makes no assertion that she is not able to continue her present work into the foreseeable future.

4. The parties married in Country D in 1982.

5. There are two children of the parties’ marriage now aged 29 and 27. Both children were born in Australia. 

6. It is not an issue that throughout cohabitation the wife was the primary homemaker and caregiver for the parties’ two children. 

7. The parties separated in August 2012 although they continued to reside under the one roof until about May 2014.

8. At the time of trial, the husband was in receipt of a Centrelink disability pension together with a modest Country D pension arising from his pre-marriage employment in that country. During the parties’ cohabitation the husband worked in various positions and occupations.  His employment as an educator ceased in September 2008.  He obtained other employment in various capacities until about the time of separation when he ceased work due to ill health. 

9. The wife at the time of trial was employed as a manager on a contract basis earning about $80,000 per annum.  The wife worked throughout the marriage except for short periods including a period of unpaid maternity leave of about 14 months. She received workers compensation for a period between 1987 and 1989.  In 1987 she commenced to subcontract as a manager. She proposes to continue her present employment.

Background

1. The wife migrated to Australia from Country D in early 1971 with her family.

2. Prior to marriage the husband was working as an educator for the Department of Education in Country D. 

3. Subsequent to the parties’ marriage, the husband was able to come to Australia under a spouse visa sponsored by the wife.  He arrived in February 1983.

4. The parties resided with the wife’s parents for the first 12 months of their cohabitation in Australia.  They were provided some funds by the wife’s parents.

5. Shortly after his arrival in Australia, the husband obtained manual work after completing a short course in English and later obtained additional part-time work as a Country D community educator on Saturdays.

6. Initially, the parties resided at the home of the wife’s parents until they obtained independent rental home unit accommodation in 1984.  By this time the wife had also obtained manual work.  The wife obtained full-time work at W Bank by mid-1986. 

7. The parties purchased their first matrimonial home at Suburb N in October 1986.  The purchase price was funded from their savings and from a first mortgage security.

8. Subsequently, during the relationship, the parties purchased and sold various properties including at Suburb K, Suburb L, Suburb C, Suburb M (2) and Suburb G.

9. In late 1991 the parties returned to live at the wife’s parent’s home and their first home at Suburb N was rented for a period to assist with mortgage and other payments.  The parties resided with the wife’s parents from June 1990. They acquired that property in partnership with the husband’s brother in 1996. They later acquired the interest of the husband’s brother in November 2001. 

10. The parties operated a joint account until about 1995 at which time the husband stopped the wife’s access to that account.

11. Subsequently the wife opened her own account to which she deposited her income and she used these funds to provide for household and living expenses for herself, the husband and the two children and her car payments of about $600 per month.  The husband paid mortgage outgoings and utilities from the parties’ joint account to which his income was deposited. 

The Suburb G property

1. In August 2003 the parties purchased an investment property at P Street, Suburb G for $477,500.  For the purposes of tax minimisation the property was purchased in the name of the husband but the mortgage security was in the name of both the husband and wife. The parties moved to the Suburb G property in 2003 following its purchase. The parties whilst residing in the property undertook renovations and improvements to the property funded by mortgage drawings at a total cost of approximately $120,000. Subsequently from 2009 till 2013 the property was tenanted. 

2. The Suburb G property after separation was sold in November 2015.  Subsequent to separation in 2014, the husband met the shortfall of about $15,000 in mortgage payments and outgoings from his income and from funds received from his superannuation entitlement. The property sold for $642,175.  After discharge of mortgage, selling costs and contract adjustments the sum of about $113,300 was deposited to the credit of the matrimonial home mortgage at Suburb B.

Properties in Country D

1. In about 2004 the parties, borrowing against the equity of the Suburb G property, purchased a home unit in Q City, Country D for about $35,000 in the husband’s name.  Subsequently, and again using the available equity in the Suburb G property, in 2006 the parties purchased two blocks of land at H Town in Country D for a total price of $99,000 and other property.

2. The home unit property in Country D was subsequently renovated by the parties.

3. The parties constructed home units on one of the blocks of land purchased by them in Country D and over the period from 2007 to 2010 about $371,000 was withdrawn from their joint mortgage account secured against the Suburb G property for that purpose. 

4. The parties resided in rented accommodation in Sydney from September 2008 until the purchase of the present matrimonial home at Suburb B in June 2012.

The matrimonial home: Suburb B

1. The Suburb B property was purchased in mid-2012 for the sum of $376,000 with the purchase price in part funded by a Westpac banking Corporation mortgage in the sum of $338,400. At separation, the mortgage balance was about $325,000.

2. The wife has retained sole occupation of the former matrimonial home at Suburb B since the parties’ final separation in 2014.  However, since separation and until December 2019 the wife had made payments by way of mortgage payments, property outgoings, home insurance payments and maintenance and upkeep of the home totalling in all about $108,000 without contribution from the husband.

3. After deposit of sale funds from Suburb G referred to above, the mortgage balance was reduced to about $201,000. At trial the balance was about $180,000.

Sale of properties in Country D

1. Following separation in 2014 it appears there were various discussions between the parties as to property resolution.  The wife in 2015 commenced proceedings in Country D so as to secure in part her interest in the parties’ Country D assets but these proceedings were later dismissed.

2. In June 2015 the husband sold a unit in the parties’ unit development in H Town for 100,000 local currency. In July 2015 the husband then sold another unit in the parties’ unit development in H Town for 110,000 local currency.  In July 2015 the husband sold the parties’ home unit property at Q City in Country D for 70,000 local currency.  The proceeds of sale of these properties were deposited by the husband to his bank account with the R Bank in Country D.

3. In March 2016 the husband sold the remaining two home units in the parties’ home unit development for a total of 170,000 local currency. Funds were deposited to the husband’s Country D bank account.

4. Subsequently, later in March 2016 the husband sold two further properties that had been acquired by him at H Town in Country D for the total sum of 380,000 local currency.  

Invested Funds

1. In all the husband realised 830,000 local currency from the property sales.  He invested the proceeds of sale and as at October 2016 the capital sum had increased to 925,182 local currency.  That sum converted to $390,900AUD.  This sum was deposited to a term deposit account in Country D.

2. The term deposit account in Country D matured on 21 November 2016 in the sum of $393,129AUD.

3. In August 2017 the husband transferred from his term deposit account $151,031 to his conveyancer to fund the final purchase by him of the F Town property.  The husband, at this time, also transferred to his Westpac Banking Corporation account …01 the sum of $142,927.  This transfer left the balance of about $100,000 remaining in his Country D term deposit account. 

4. As at September 2019 this investment had increased to $123,161. The husband had transferred a further $70,000 to his Westpac account thus leaving a balance of about $53,000 in Country D. Those funds have been remitted and the sum of $53,903 is held in trust pending further order.

5. Thus the husband had received to his Westpac account about $212,927 since August 2017. The disposition of funds by him is considered below.

Country D Pension and Disability Benefit

1. By reason of the husband’s pre-marriage employment in Country D he was prospectively entitled to the payment of a Country D pension.  In February 2004 he made application for such pension with such application accompanied by a payment by him of $10,000US from available matrimonial funds.

2. Subsequently, he commenced receiving a Country D pension in January 2005.  This pension has increased over time initially commencing at the rate of about …97 local currency per month and as at May 2019 it had increased to 2102 local currency per month that approximates to about $505AUD per month.

3. The husband initially made application for a disability pension from Centrelink in late 2017.  That application was rejected.  After an appeal the husband commenced receiving the benefit in August 2019 backdated to October 2017. His current benefit is $380 per fortnight.

The Husband’s Superannuation

1. In May 2014 the husband withdrew the totality of his T Superannuation benefit in the sum of $216,683. At that time the husband was 55 years of age.  This superannuation had clearly accumulated significantly during cohabitation.

2. The husband applied about $19,500 of these funds to the purchase of a motor vehicle that he sold a short while later depositing the proceeds of sale of $20,000 into his Westpac Banking Corporation account. In addition, the husband purchased a second motor vehicle in September 2014 for the sum of $24,500 with that vehicle remaining in F Town for his use.

3. In March 2017 following a claim for total and permanent disablement the husband became entitled to a lump sum disablement payment from his other super fund R Super in the sum of $46,290.  The husband received those funds in April 2017, rolling $36,290 back into his superannuation fund and depositing $10,000 to his Westpac Banking Corporation account.

4. Overall, the husband had received in his Westpac account a total of $226,683 from his two superannuation funds.

5. Otherwise, the husband has provided some financial assistance to the parties’ eldest daughter in the purchase of two modest motor vehicles costing in all about $8,500 together with funds of about $4,000 advanced to assist his daughter.  The husband also advanced to the parties’ youngest daughter funds totalling about $6,000 for a car and other expenses. Otherwise, he advanced to his daughters $39,000 by way of loans.

6. In oral evidence the husband conceded that he had also paid funds towards his legal fees. Exh “J” reveals payment of a total of $24,050. The parties subsequently agreed on the amount paid to the date of trial.

7. In July 2017 the husband paid the initial deposit on the purchase of his F Town property in the sum of $7,700 and thereafter expended further funds totalling $56,330 in renovations and improvements to the F Town property.  The F Town property has a present value of $220,000 and is unencumbered.

8. In January 2019 the husband purchased an old model motor vehicle 2 for $8,700 that is garaged in Sydney.

9. The various lump sums referred to above total about $178,000. As discussed later, some of these funds the parties have agreed should be added back to the asset pool for division.

10. Otherwise, the husband does not account for his disposition of funds transferred from Country D apart from the final purchase of the F Town property. There is a balance remaining in his account at trial of about $113,000 leaving about $100,000 unexplained save for the contention that it was spent on living expenses.

11. The wife clearly had a significant entitlement to the capital funds received by the husband. He accounted to her for none of it and used it as he sought fit.

12. The husband asserts that he has, otherwise, expended the balance of funds received by him from his superannuation entitlements in meeting living expenses since mid-2014.  He asserts that he expended funds on maintaining his private health insurance, health club membership, payment of board, rent, gas and electricity and credit card payments. 

The Wife’s Gambling

1. The husband asserts that the wife, during various periods of cohabitation, was a gambler and attended clubs and other licensed venues to play the poker machines.

2. During the relevant periods the wife operated her business through the one CBA account (…81). She conceded drawings from her CBA account and credit card use for gaming but also for food purchases, Bingo books and coffee at various venues where she was accompanied by her mother and friends.

3. The husband asserts that in July 2000 the wife had accumulated credit card debts of about $18,000 together with a loan borrowed from her employer of $5,000.  At about this time, the parties sold their home unit investment property in Suburb K for $155,000.  The husband says that after discharge of mortgage and sale costs, net proceeds were about $30,000 from which the husband drew cheques to pay out five credit cards and the employer’s loan totalling in all $23,000.  The wife asserts that the payments came from the joint account. Nothing turns on the dispute.

1. The wife concedes that in about 1995/1996 she began recreational gambling.  She used her own income and credit cards for this purpose.  She says that not all of her credit card debt was for gambling with debt also incurred for household expenses for which the husband refused to make any contribution other than payment of fixed outgoings relating to their home. 

2. It was initially in October 1997 that the wife revealed to the husband that she had accumulated credit card debt of about $18,000.  The husband from matrimonial funds paid out this initial debt in November 1997 and demanded that she repay that sum to him over a period of time. 

3. In 2000 the wife revealed further accumulated credit card debt of about $19,000 at a time when the investment property at Suburb K had just been sold in July 2000.  She acknowledges that the husband paid out this further credit card debt from funds available from the proceeds of sale.  The wife asserts that she repaid funds to the husband by depositing $1,000 a month to his ANZ Visa card as well as taking over payment of the family private health cover which she did until December 2014. The husband concedes that such payments were made for the period from about September 2009 to final separation in 2014.

4. The husband further asserts that in January 2003 the wife revealed that she had accumulated further credit card debt of about $19,000.  It is certainly evident from the wife’s oral evidence that she withdrew significant funds from her CBA account in the latter part of 2002. Some, she asserts, were spent on the household and family where the husband paid only the mortgage and property outgoings and her weekly income was only $650.

5. The parties at this time had sold two investment properties for the total sum of $776,000.  Sale proceeds were mostly applied to the purchase of the Suburb G property referred to above and to paying out the credit card debt totalling $19,106. The credit card debt accumulated as the wife concedes some withdrawals for gaming but mostly to meet household, family expenses and her car expenses.

6. Regrettably, the husband offers no evidence that can properly quantify funds expended by the wife on her gaming. Apart from expenditure from her own available income, his evidence is as to the payment of about $57,000 from matrimonial funds over a period almost 20 years ago. How much of the sum was expended on gaming is simply a matter of conjecture. The husband does not contend that the family suffered in any way from the wife’s recreational gaming. The impact of the payments so long ago on the present pool for division is also simply a matter of conjecture. The husband offers no evidence or, indeed, any submissions on the point.

Property settlement

1. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19 and Chapman & Chapman [2014] FamCAFC 91.

2. The process ordinarily involves a staged process.

3. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. 

4. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship. In particular, such a circumstance arises where both parties seek adjustive orders but are unable to agree as to same.

5. The circumstances of this matter as outlined above clearly demonstrated that it is appropriate and just and equitable for an order adjusting the property rights of the parties.

6. Once the s 79(2) issue is resolved the Court then considers the contributions made by the parties as defined in s 79(4)(a) to (c).

7. The Court must then consider s 79(4)(d) to (g), in particular, the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).

8. The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.

The Asset Pool

1. The draft asset pool for consideration was comprised in Exh “H”.

2. Following submissions the asset pool was as follows:

   Assets:

   Joint               Home at Suburb B  $675,000

   Husband        F Town Property  $220,000

   Husband        Westpac account (…97)                 $112,992

   Husband        Westpac account (…51)                $      603

   Husband        Country D funds held in trust        $  51,300

   Husband        motor vehicle 1   $    9,000

   Husband        motor vehicle 3   $   11,000

   Wife               CBA account (…81)  $     3,075

   Wife               motor vehicle 1   $     2,500

   Husband        Funds expended before trial          #

   Husband        Funds advanced to daughters        $   58,000

   Husband        Paid legal fees  $   31,500

   Wife               Funds expended on gaming           #

   Wife               T Superannuation   $   52,903

   Husband       R Superannuation  $   76,929

   Liabilities:

   Joint               Mortgage Suburb B   $180,036

3. Issues in relation to the asset pool are marked # above:

   a)Husband’s funds expended: This has been substantially addressed by the agreed inclusion of the funds advanced to the parties’ daughters by the husband and his paid legal fees. The remaining issue is the fate of funds held on term deposit in Country D. As set out above, some funds were initially remitted to the husband’s Westpac account for the purchase of his F Town property and other funds totalling about $213,000 were also deposited to his account leaving a balance of about $53,161. The parties have agreed to include the sum of $52,903 in the balance sheet together with other sums expended from his superannuation withdrawal. The husband retains a balance in his bank account referred to above. Otherwise, his explanation for the balance is that it was expended on living expenses. His explanation is not entirely satisfactory in circumstances where he was after separation receiving government benefits and his Country D pension. It is not appropriate to add back some imprecise sum. The husband’s retention of funds will be considered in the context of s 75(2) below.

   b)The wife’s gaming activities: as discussed above it is the husband who has the onus to establish that these activities wantonly depleted the present asset pool or had some adverse effect on the household. He makes no such submission. There will be no sum included in the pool.

4. Accordingly the final pool for consideration is:

   Assets:

   Joint               Home at Suburb B  $   675,000

   Husband        F Town property  $   220,000

   Husband        Westpac account (…97)  $   112,992

   Husband        Westpac account (…51)  $          603

   Husband        Country D funds held in trust  $     51,300

   Husband        motor vehicle 1   $       9,000

   Husband        motor vehicle 3   $     11,000

   Wife               CBA account (…81)  $       3,075

   Wife               motor vehicle 1   $       2,500

   Husband        Funds advanced to daughters  $     58,000

   Husband        Paid legal fees  $     31,500

   Wife               T Superannuation   $     52,903

   Husband       R Superannuation  $     76,929

   $1,304,802

   Liabilities:

   Joint               Mortgage Suburb B   $   180,036

   $1,124,766

5. Both parties seek disparate orders in relation to property adjustment. The matrimonial home remains in joint names. It is just and equitable that the Court make adjusting orders.

Contributions

1. A history of the relationship is discussed above. At the outset of the trial both parties considered that contributions should be regarded as equal save that the husband contended that the wife’s gaming activities should result in contributions favouring him 55 per cent to the wife’s 45 per cent. Such a result would create a disparity of about $100,000 between the parties.

2. As discussed above, there will be no addback to the asset pool of any sum reflecting the wife’s asserted gaming activities.  Otherwise, there is no sum to be added back as a consequence of significant funds had and expended by the husband post separation.

3. The parties’ concession that, otherwise, contributions should be regarded as equal in all of the circumstances discussed above, is a proper reflection of the myriad contributions during this marriage by the parties.

4. Contributions will be assessed as equal.

Section 75(2) considerations

1. The Court has had regard to the various considerations set out in s 75(2) of the Act.

2. The parties’ age and health are discussed above.

3. The income, property and financial resources of the parties are set out above. The wife contends that there should be a modest adjustment in favour of the wife of 3 per cent by reason, firstly, of the husband’s receipt of his Country D pension representing, as it does, unearned income into the foreseeable future and, secondly, the husband’s poor accounting for significant funds received by him post separation. 

4. It is clear that the husband’s entitlement to the pension accrued prior to the parties’ marriage but the entitlement later accrued at a cost in about 2004 of $10,000US to the parties. The periodic sum received is modest.

5. Otherwise, the husband’s evidence as to the use by him of significant matrimonial funds is to an extent unsatisfactory and he has had the use and benefit of the funds from his superannuation and sale of Country D properties for some years without any accounting for any of such funds to the wife.

6. The husband contends that factors of health and the disparity in earning capacity should result in an adjustment in the range of 2.5 per cent to 5 per cent in favour of the husband.

7. The husband has available to him unencumbered accommodation acquired with what represented matrimonial funds. He seeks no ongoing financial support from the wife. He is in recept of his Country D pension and disability Centrelink benefits.

8. The wife will retain the home and have long term mortgage commitments. She is 59 years of age and hopes to continue to work into the foreseeable future. She is a few years short of what would be an expected retirement age but with at present only modest superannuation.

9. In all of the circumstances, there will be no adjustment to the equality achieved by the parties’ respective contributions.

10. The wife is entitled the funds totalling $562,392.

11. Should she retain the home and assets in her possession she will have as follows:

    Assets:

    Home at Suburb B  $ 675,000

    CBA account (…81)  $     3,075

    motor vehicle 1   $     2,500

    T Superannation   $   52,903

    $ 733,478

    Liabilities:

    Mortgage Suburb B   $ 180,036

    $ 553,442

12. There should be a further payment to the wife of about $8,950 to achieve the desired result. This can be paid out of the presently held trust funds with the balance then held paid to the husband.

13. The husband will retain the balance of the funds in trust and other assets in his possession or attributed to him as set out above.

14. Such a result has no impact on the parties’ earning capacity.

15. Orders will be made accordingly.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 23 September 2020.

Associate: 

Date:  23 September 2020