Trebiano & Trebiano

[2018] FamCA 344

FAMILY COURT OF AUSTRALIA

TREBIANO & TREBIANO [2018] FamCA 344

FAMILY LAW – PROPERTY – 25 year marriage where parties were 45 at time of marriage – Where both parties seek disparate orders as to adjustment – Where appropriate to make orders – Where consideration of contributions – Where wife’s Kennon argument not made out – Where contributions overall significantly favour the wife – Where consideration of relevant s 75(2) factors requiring some adjustment in favour of husband – Where consideration of applicable principles – Where orders made.

Family Law Act 1975 (Cth) ss 75(2), 79,

Bevan & Bevan [2014] FamCAFC 19
Chancellor & McCoy [2016] FamCAFC 256
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Kennon & Kennon (1997) FLC 92-757;[1997] Fam LR 1
Pandelis & Pandelis (2018) FLC 93-831; [2018] FamCAFC 66
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT: Ms Trebiano

RESPONDENT: Mr Trebiano

FILE NUMBER: PAC 1251 of 2017

DATE DELIVERED: 18 May 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 1, 2 and 5 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT:	Maclarens Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Johnston

SOLICITOR FOR THE RESPONDENT: Brander Smith Mcknight Lawyers

Orders

1. That the parties do all things necessary to forthwith sell the property at B Street, Suburb C for the best price reasonably obtainable and on sale after payment of agent’s commission, selling costs and contract adjustments divide the proceeds of sale as to 55 per cent plus $32,981.00 to the Wife and the balance then remaining to the Husband.

2. That pending sale the husband pay as they fall due and payable outgoings including council and water rates, insurances and services and maintain the property in good order and condition having regard to the condition of the property as at the date of Single Expert valuation.

3. Liberty to apply as to the implementation or enforcement of the previous order.

4. That the Husband and Wife do all things necessary to cause D Pty Ltd as trustee of the Trebiano Pension Fund to comply with the following:

   (a)That a base amount sum as is necessary to cause the Wife to have a total superannuation entitlement equal to 80 per cent of the net value of the Trebiano Pension Fund is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”), to the Wife out of the Husband’s interest in the Trebiano Pension Fund.

   (b)That, in accordance with s 90MT(1)(c) of the Act:

   (i)the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Superannuation Regulations”); and

   (ii)the Husband’s entitlement in the Trebiano Pension Fund is correspondingly reduced.

   (c)That D Pty Ltd the trustee of the Trebiano Pension Fund shall do all acts and things and sign all such documents as may be necessary to:

   (i)calculate, in accordance with the requirements of the Act and the Superannuation Regulations, the entitlement created for Wife in Order 3(a); and

   (ii)transfer the entitlement to the Wife’s member benefit entitlement in the Trebiano Pension Fund and correspondingly reduce the entitlement of the Husband.

   (d)That this order have effect from the operative time being the date of this order.

   (e)That the Husband shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising the request pursuant to r 7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the Superannuation Industry Regulations”) for the rollover or transfer of the Husband’s transferable benefits either in specie or in cash out of the Trebiano Pension Fund to a complying fund of the Husband’s choosing in accordance with r 7A.12 of the Superannuation Industry Regulations.

5. Liberty to apply as to implementation or enforcement of the previous order.

6. That concurrently with the Husband’s compliance with Order 3(e) above, the husband shall do all things necessary and sign all necessary documents to transfer to the wife or her nominee all his interest and shareholding in D Pty Ltd and resign from any office held by him in the said company.

7. That any application for costs be by way of written submissions filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days and judgment thereafter be reserved.

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 Trebiano & Trebiano 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 1251  of 2017

Ms Trebiano

Applicant

And

Mr Trebiano

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for property settlement as between husband and wife commenced by the applicant wife by Initiating Application filed 22 March 2017.

2. In that application the wife, somewhat inelegantly, sought an order that the marital assets be adjusted in favour of her as to 80 per cent and the husband 20 per cent and for the purposes of giving effect to that adjustment:

   a)the husband transfer to her his interest in the property at B Street, Suburb C (“the Suburb C property”);

   b)the husband and wife retain certain items of personalty; and

   c)there be a superannuation splitting order of the entirety of the husband’s superannuation interest in favour of the wife;

   d)together with any cash payment from the wife to the husband so as to give effect to the overall adjustment.

3. However, at the commencement of the trial the wife sought orders that, in summary, provided for a transfer of the Suburb C property to her and various splitting orders in relation to the parties’ superannuation fund that would divide the fund about 32.5 per cent to the husband and 67.5 per cent to the wife with each party retaining their respective personalty including bank accounts.

4. At the conclusion of the trial, her alternative position was that the Suburb C property be sold so as to effect an overall 70/30 split of all assets in her favour.

5. The husband in his Further Amended Response filed 11 August 2017 sought property adjustment orders so as to give effect to an overall adjustment as to 60 per cent to himself and 40 per cent to the wife and for the purposes of giving effect to that adjustment:

   a)the wife transfer to him her interest in the Suburb C property;

   b)the husband and wife retain certain items of personalty; and

   c)the husband and wife cause D Pty Ltd as trustee of the Trebiano  Pension Fund to sell the funds, three real estate properties and that thereafter the funds then remaining in the pension fund be paid equally to the husband and wife or as they may otherwise direct;

   d)together with any cash payment from the husband to the wife so as to give effect to the overall adjustment of 60 per cent to the husband and 40 per cent to the wife with each party retaining their respective personalty including bank accounts.

6. As will be seen, the husband’s position at trial had little regard to the reality of the parties’ respective contributions.

7. The applicant wife relied on the following:

   a)her Initiating Application filed 22 March 2017;

   b)her trial affidavit filed 30 November 2017;

   c)the affidavit of Ms E filed 30 November 2017;

   d)the affidavit of Ms F filed 30 November 2017; and

   e)her Financial Statement filed 22 March 2017.

8. The respondent husband relied on:

   a)his Further Amended Response filed 11 August 2017;

   b)his trial affidavit filed 21 November2017;

   c)his Financial Statement filed March 2017;

   d)the affidavit of Professor G filed 10 November 2017; and

   e)the affidavit of Associate Professor H filed 10 November 2017.

Context

1. The parties commenced cohabitation in early 1992 and married in that same year. At this time the parties were both 45 years of age.

2. Both parties were at trial 70 years of age.

3. It is common ground that their relationship was fractious, conflictual and difficult, with the husband conceding that he was prone to outbursts of anger and emotion from time to time. Otherwise, the relationship was supportive and caring with the wife attending to the husband’s needs after his health deteriorated as discussed below.

4. After periods of separation “under the one roof” of varying lengths of time from late 2010 to May 2017, during which the wife received a Centrelink Carers Pension relating to the husband, the parties finally separated on 15 May 2017 when the wife moved out of the matrimonial home at Suburb C. The husband has had the benefit of occupation of the home since that time.

5. There are no children of the relationship.

6. In 2008 the husband was diagnosed with Kennedy’s Disease, a neurodegenerative disorder that affects multiple body systems. It inflicts a slow wasting of the muscles of the body and weakness along with significant tremors and difficulty swallowing and speaking. He has particular limitation in his arms, shoulders, legs and loss of strength in his hands.  As at February 2017 he was assessed as highly disabled, needing assistance in the activities of daily living such as dressing and feeding himself and as having great difficulty mobilising. He now requires a walking stick and uses a motorised scooter. He is assessed as needing disability appropriate accommodation. He requires ongoing medication to assist his swallowing and relieve cramps in his forearms and fingers. Otherwise, the husband has had prostate surgery with no long term effects with proper management.

7. His relationship with the wife subsequently deteriorated and there was some physical violence to the wife culminating with him overdosing on prescription drugs in late 2010. In April 2011 the wife sought an Apprehended Domestic Violence protection order against the husband following his drunken behaviour. The application did not proceed.

8. Notwithstanding the wife has continued to run the household, attend primarily to household tasks and to provide domestic services to the husband. She, otherwise, has attended medical appointments with him and provided care as necessary.

The Approach to Property Adjustment

1. The approach to the determination of an application under s 79 of the Family Law Act 1975 (Cth) (“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, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.

2. 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. 

3. Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.

4. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4).

5. The Court in the application of s 79(2) of the Act needs to conclude that it would be unjust or unfair to leave the parties’ property rights intact.

6. In Chancellor & McCoy [2016] FamCAFC 256 the Full Court said:

   42.In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan and Chapman, namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 (Cth) (“the Act”) when determining whether it is “just and equitable” to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters. 

7. 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. 

8. In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property as does the husband.

9. It would, in some circumstances, be unjust or unfair to leave property rights intact where there is common ownership and discrete assets are sought by each. Such is the case in this matter and the parties both agree that their common ownership of property is to be brought to an end so as to reflect their respective contentions as to entitlement.

10. It is appropriate that property adjustment orders be made.

11. Otherwise, a consideration of s 79(4) factors as discussed below reveals it would be unjust or unfair to leave the parties’ property rights as they are.

12. Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). 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)).

13. 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.

Background

1. At the commencement of cohabitation the parties had the following assets:

   a)Wife:

   i)Property at 1 J Street, Suburb K unencumbered. This property was tenanted at $400.00 per week. This property was sold by the wife in June 1998 for $175,000.00 from which she received net proceeds of about $171,000.00 together with Bartercard credits of $10,000.00 relating to the sale of the contents of the property.

   ii)Property at 2 J Street, Suburb K. This property was purchased by the wife in 1987 for $80,000.00 and was later refinanced with a borrowing of $200,000.00 for the purposes of constructing a dwelling on her property at L Town referred to below. This property was tenanted at $400.00 per week. The wife sold this property in December 1997 for $192,000.00 and the small balance remaining after sale costs and discharge of mortgage was retained by the wife.

   iii)Property at M Street, L Town. This property was purchased by the wife in 1988 for $100,000.00. Subsequent to purchase the wife constructed a new two-bedroom home on the property at a cost of $200,000.00 that was funded by way of a mortgage advance secured over her property at 2 J Street, Suburb K. This property was sold by the wife in May 1998 for $510,000.00. The wife received net proceeds of sale of about $492,000.00. The wife applied some of the proceeds of sale in reduction of the mortgage secured over the Suburb C property. The remaining funds were paid into the parties’ self-managed superannuation fund to purchase a commercial property at N Street, Suburb O for a total purchase cost of about $425,000.00. The property was initially purchased in the parties’ names as trustee for the fund and not formally transferred to the fund’s trustee company until 2017. Shortly after the purchase of the Suburb O property by the parties’ self-managed superannuation fund, the wife received a gift from her father of $100,000.00 that was paid by her into the self-managed superannuation fund.

   iv)Two businesses “P” and “Q” trading at Suburb K. In 1992 the wife subleased her business “P” for $500.00 per week but she continued to own and operate the Q business. The husband made little contribution to the conduct of her business. The Q business was later sold in June 1998 with the wife receiving $165,000.00 in addition to $50,000.00 of Bartercard credits. The wife applied the cash proceeds from sale of the business to the parties’ self-managed superannuation fund.

   v)A motor vehicle.

   vi)Some savings.

   b)The husband:

   i)Property at R Street, Suburb S. This property was purchased by him in 1987 for $74,000.00 and encumbered by mortgage. This property was sold by him in 1998 with the husband receiving net proceeds of sale of about $100,000.00.

   ii)One half interest in a commercial property at T Street, Suburb U subject to mortgage.

   iii)50 per cent interest in a business V Pty Ltd. In 1999 the husband’s partner in V Pty Ltd acquired the husband’s half interest in the business that traded from premises at T Street, Suburb U. The husband received $60,000.00 plus outstanding debtors of about $35,000.00 as they were paid. It is not clear how he applied these funds but it appears probable that they were applied to the ongoing costs of renovation.

   iv)A motor vehicle, various items of personalty and plant and machinery subject to a loan.

   v)Superannuation of about $8,000.00.

2. In the early years of the parties’ cohabitation the wife continued to work in and derive income from her businesses until 1998. In addition she received rental income from the J Street, Suburb K properties.

The Suburb C property:

1. The parties’ Suburb C home was purchased in early 1992 for $238,000.00. The husband redrew $30,000.00 from the mortgage secured over his Suburb S property to contribute to the purchase and otherwise the balance of the purchase was funded by way of mortgage to the Commonwealth Bank of Australia. On settlement of the purchase the husband was repaid his $30,000.00 contribution from the mortgage funds and it was repaid into the Suburb S mortgage. Mortgage payments were about $960.00 per fortnight serviced from the parties’ respective incomes.

2. Both parties applied their income towards living expenses and mortgage payments for the Suburb C property until the mortgage was discharged.

3. Following the sale of the wife’s property at 1 J Street, Suburb K (June 1998 for $171,000.00) and the sale of the husband’s property at Suburb S (1998 for $100,000.00) the funds received were applied to discharge the mortgage secured over the Suburb C property and to commence renovations.

4. At about the time the mortgage was discharged the parties embarked upon an extensive and painstakingly slow renovation of the matrimonial home at Suburb C which took place over a period of almost seven years from 1997 to 2005. The wife applied her $50,000.00 of Bartercard credits from the sale of her business in part payment of the initial builder engaged.

5. The builder was taken off the job in mid-2000 and both parties thereafter were intimately involved in the renovations. Much of the work thereafter was undertaken by paid tradesman, some by the husband and some by family members of both parties. The wife’s father gifted to the parties $20,000.00 that was applied by them to the cost of renovations. The wife estimates payments of about $600,000.00 funded from the parties’ superannuation income stream and as otherwise identified. The wife also applied $60,000.00 of Bartercard credits to partially pay the initial builder. The slow progress of work was often the subject of contention between the parties.

1. In July 2004 the wife received a compensation payment arising from injuries received by her in a motor vehicle accident earlier that year. She received $17,227.00 and applied those funds towards the ongoing cost of renovations.

2. Otherwise, the wife contributed further funds of about $33,000.00 from her late mother’s estate to the cost of renovations.

3. In 2009 the parties procured the construction of a self-contained flat on the second level of the home. Once again tradesmen were engaged and some work was done by the husband himself. Otherwise, work was done in 2014 to the garden and grounds of the property.

4. Otherwise, the husband derived modest funds from his mother’s estate and a gun buyback scheme.  

The wife’s inheritance: Exh “N”

1. In September 2005 the wife’s mother passed away. Ultimately in early 2006 the wife asserts that she received sums totalling $533,589.00 from her mother’s estate. The husband takes issue with the total sum but there is no issue that the inheritance was significant and that particular funds were applied by the wife  as follows:

   a)the acquisition of a share portfolio in about 2006 at a cost of $300,000.00 with such investment being made through a financial adviser. The share portfolio of the wife suffered a significant reduction in value as a consequence of the global financial crisis in 2008/2009 and poor financial advice. The wife was successful in obtaining compensation as against her financial adviser and received the sum of $150,000.00 plus interest. Funds realised from the compensation payment and the ultimate sale of the wife’s shareholding totalling about $250,000.00 were paid into the parties’ self-managed superannuation fund;

   b)the sum of $200,000.00 paid into the parties’ self-managed superannuation fund on term deposit; and

   c)the balance of about $33,000.00 was paid towards the cost of ongoing renovations to the matrimonial home.

The Trebiano Pension Fund

1. In early 1999 the husband and wife established a self-managed superannuation fund: The Trebiano Pension Fund. They incorporated D Pty Ltd to act as trustee of the fund.

2. In 1999 the fund purchased the property at N Street, Suburb O for a total purchase cost of about $425,000.00. The property was initially purchased in their names as trustee for the fund and not formally transferred to the fund’s trustee company until 2017.

3. In 1999 the fund purchased the property at W Street, Suburb K for $190,000.00.

4. In 1999, following advice, the fund purchased the commercial premises at T Street, Suburb U from the husband and his partner for $355,000.00. The husband’s one half share of the purchase price was applied to discharge his loan relating to the Suburb U property in the sum of $81,437.00 with the balance of $95,531.00 being paid by him into the self-managed super fund. The husband’s business continued to trade from the premises and paid rent to the fund.

5. Capital contributions to the fund as best can be determined were made as follows:

   Wife         $     425,000.00    purchase of Suburb O property (1999)

   -Sale of M Street, L Town

   $     100,000.00    gift from her father (1999)

   $     165,000.00    funds from sale of business (1999)

   $     200,000.00    inheritance from her late mother (2005)

   $     250,000.00    share sales and compensation award (2010)

   $ 1,140,000.00

   Husband$      95,531.00    net half interest in sale of his Suburb U property

6. From 1999 the parties lived on their superannuation fund income paid to them as a tax free pension. In later years each party had an income stream of over $50,000.00 per annum tax free with funds used for living expenses and ongoing renovations to the Suburb C property.

7. The wife attended to the investment, banking and financial records of the fund and, until March 2017, managed the rental properties in the fund. Since then the Suburb U property has been commercially managed.

8. Both parties are now of an age that they can both withdraw funds from the superannuation fund without accruing any taxation liability.

9. As at trial the fund had an agreed value of about $2,853,000.00 and comprised the rental properties at Suburb O, Suburb K and Suburb U together with funds at bank. Notwithstanding markedly different contributions to the fund, the parties’ member benefits in the fund have been treated as equal since its inception.

The home at Suburb C

1. Both the husband and wife seek to retain the Suburb C property.

2. The husband notwithstanding his illness and lack of mobility asserts that it is suitable for his ongoing accommodation with some modifications, yet he asserts the need for assistance in and about the upkeep of the property both internally and externally. He concedes mobility difficulties for him in access to and getting around in the home.

3. The husband has a “workshop” at the home that contains equipment and building materials.

Discussion

1. The first task is to identify the assets and liabilities of the parties. Exhibit “V” provides a working balance sheet that was addressed in submissions.

2. The pool, it was ultimately agreed, comprised the following:

Assets

Joint                Home at Suburb C  $ 1,550,000.00

Wife                CBA Term Deposit  $      50,000.00

Husband          CBA Smart Access (…0) (Exh “T”)           $        4,574.00

Husband          Equipment, tools and gun collection         $      17,600.00

Husband          German car  $      54,500.00

Wife                4WD  $      10,000.00

Wife                CBA Smart Access (…4)  $        4,044.00

Wife                CBA Netsaver (…8)  $      20,266.00

Wife                Cash from safe  $      12,500.00

Husband          Cash from safe  $      12,500.00

Husband          Term deposit funds received from wife     $      50,000.00

$ 1,785,984.00

Superannuation

Trebiano Superannuation Fund as at 1 February 2018:

Wife                Member benefit  $ 1,426,500.00

Husband          Member Benefit  $ 1,426,500.00        

$ 2,853,000.00

1. In the fund is the N Street, Suburb O property which has a value of $1,425,000.00. The wife seeks to retain the property as it was previously her father’s property.

Contributions

1. In Dickons & Dickons [2012] FamCAFC 154 the Full Court said at [24] and following:

   There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

   Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.

   The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.

2. In Pandelis & Pandelis [2018] FamCAFC 66 the Full Court reiterated:

   24. We think it important to record that in Zyk and Zyk [1995] FamCA 135; (1995) FLC 92-644, the Full Court said it is somewhat artificial to purport to assign a percentage to a particular category of contributions. Further, in Dickons v Dickons (2012) 50 Fam LR 244 another Full Court said:

   26. The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.

3. From the significant assets held by the parties at cohabitation there were disparate contributions made to the non-superannuation pool and the self-managed superannuation fund as identified above.

4. It is appropriate in such a circumstance to adopt a two pools approach and assess the parties’ contributions to each pool.

The non-superannuation pool

1. This pool comprises substantially the Suburb C property and the parties’, otherwise, accumulated assets by way of funds at bank and personalty.

2. Significantly, the parties did not merge their finances until the purchase of the Suburb C property. The purchase was in effect fully funded by mortgage in 1992. The parties serviced the mortgage and their living expenses from income until capital assets were realised in 1998 some 20 years ago. 

3. The mortgage was discharged with funds contributed by the parties as to $171,000.00 from the wife and $100,000.00 from the husband. The discharge figure is not known. It appears that any surplus was applied to the household and renovations.

4. Thus the contributions to the property at that time were approximately in the proportions of 63 per cent to the wife and 37 per cent to the husband.

5. Subsequent renovations were funded by tax free income from the parties’ superannuation fund and small capital contributions from each party. The income from the fund applied to renovations and the parties’ living expenses must be seen as significantly arising from the wife’s capital contributions to the fund over a period as discussed below that facilitated the fund accruing significant rental income that permitted a pension stream to each party and the accumulation of cash reserves in the fund. The fund met a significant portion of the estimated expenditure of about $600,000.00 on renovations.

6. Otherwise, renovation and living expenses were, other than from superannuation income, in part funded it appears from the sale of the husband’s business, funds from the sale of the wife’s property at 2 J Street, Suburb K, the balance of L Town sale funds, the residue of the wife’s inheritance, and other small resources identified above.

7. Otherwise, both parties expended physical effort in and about the renovations, considerably more so by the husband, but at the same time the wife maintained as best she could the household and the daily domestic tasks.

8. The wife asserts that her contributions were made more arduous by reason of the husband’s conduct towards her or her exposure to his anger and lack of emotional regulation. There is little objective evidence supporting the wife’s assertions and indeed she remained in the home for years until final separation, a circumstance that belies her assertion that she was “fearful of (the husband) every day of cohabitation”. Indeed she was his carer, as she represented to government authorities, which entitled her to receive government benefits.

9. The husband denies much of the wife’s assertions yet he concedes some aspects of his behaviour in the context of his depression, anger and emotional dysregulation. He makes allegations against the wife of violence towards him.

10. There is significant factual dispute as to this issue that on the evidence cannot be resolved.

11. However, overall it is not accepted that the allegations by the wife in any event would bring this matter into the realm of the narrow realm of cases referred to in Kennon & Kennon (1997) FLC 92-757;[1997] Fam LR 1 where it was said:

    However, it is important to consider the “floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.

12. Overall, due to the wife’s greater financial contributions, it is considered that contributions to the non-superannuation pool should favour the wife as to 60 per cent and to the husband 40 per cent. This creates a disparity of about $350,000.00 between them.

Section 75(2) factors: Non superannuation pool

1. Both parties are of retirement age and have retired. The husband’s health is slowly degenerating as discussed above and the prospect is that he will require assisted living in the foreseeable future. There is no evidence as to how that can be facilitated or what future care costs may be.

2. The property and income circumstances of the parties are considered above. Whilst the superannuation fund is at present a financial resource as to income the capital assets of the fund are available to both parties without any taxation liability.

3. Both parties have a need to accommodate themselves in appropriate housing according to age and health needs. Such is indicative of the primary non superannuation asset being sold to realise funds for that to happen. Both parties will need a capital investment sum to meet living expenses going forward.

4. Neither party is in receipt of any income tested pension although entitlement may arise as a consequence of the matrimonial assets being divided.

5. These considerations are indicative of an adjustment in favour of the husband of 5 per cent due to his greater health needs thus creating a disparity of about $175,000.00 between the parties.

Overall: Non Superannuation Pool

1. Overall, the non-superannuation pool is to be adjusted as to 55 per cent to the wife and 45 per cent to the husband. It is appropriate that there be an order for sale of the Suburb C property with consequent adjustive orders.

Superannuation Pool  

1. Capital contributions to the superannuation pool have been considered above. They overwhelmingly favour the wife of about 90 per cent to the husband’s 10 per cent.

2. There is nothing to suggest that a contribution assessment reflecting capital contributions should not be adopted. The fund has in effect been static, accruing rental income and increasing real estate values with the wife attending to property management and bookkeeping.

Section 75(2) factors: Superannuation pool

1. The factors considered above are again relevant.

2. The contribution based adjustment would see the husband receive about $285,000.00, being 10 per cent, from the fund. He is in need of income to live on with his needs exacerbated by his deteriorating health circumstances.

3. The significance of his health issues is to some extent diminished by his age.

4. The contribution based assessment would see a most significant disparity in superannuation between the parties.

5. A superannuation entitlement of about $570,000.00, being 20 per cent of the value of the fund. This, leaving aside any superannuation earnings, would see the husband have an income stream of just over $1,000.00 per week for a period of more than 10 years at which time he will be 80 years of age. The wife’s future needs will be met by her retaining the remainder of the fund, being 80 per cent, that reflects her otherwise significant contribution.

6. The husband will, otherwise, have about $700,000.00 from the sale of the home and his other assets and personalty.

7. On balance, an adjustment of a further 10 per cent in the husband’s favour is appropriate to effect such an outcome. 

Overall: Superannuation Pool

1. Overall, the superannuation pool is to be adjusted as to 80 per cent to the wife and 20 per cent to the husband. This would give the husband a superannuation entitlement of about $570,600.00 and the wife an entitlement of $2,282,400.00. The wife seeks to retain the Suburb O property that is in the fund. It is appropriate that she do so by retaining the fund with the husband to roll out his entitlement.

Orders

1. Superannuation pool: It is practical that the there be a splitting order as to the parties’ entitlements in the Trebiano Pension Fund and that the husband be required to roll out his entitlement to a fund of  his own choosing. The husband should be removed from the fund trustee company and thereafter the wife will control the fund for her own benefit.

2. Orders will be made accordingly.

3. Non superannuation pool: It is appropriate that orders be made so as to adjust the parties’ assets other than the Suburb C property as to 55 per cent to the wife and 45 per cent to the husband with any adjusting payment to come from the proceeds of sale of the Suburb C home. The home shall be sold and the proceeds of sale be divided as to 55 per cent to the wife and 45 per cent to the husband.  

4. As to personalty etc. the wife will retain:

   Wife                CBA Term Deposit  $      50,000.00

   Wife                4WD  $      10,000.00

   Wife                CBA Smart Access (…4)  $        4,044.00

   Wife                CBA Netsaver (…8)  $      20,266.00

   Wife                Cash from safe  $      12,500.00

   $      96,810.00

5. As to personalty etc. the husband will retain:

   Husband          CBA Smart Access (…0) (Exh “T”)           $        4,574.00

   Husband          Equipment, tools and gun collection         $      17,600.00

   Husband          German car  $      54,500.00

   Husband          Cash from safe  $      12,500.00

   Husband          Term deposit funds received from wife     $      50,000.00

   $     139,174.00

6. The totality of personalty etc. is $235,984.00. The wife is entitled to 55 per cent thereof being $129,791.00 thus requiring a payment by way of adjustment from the husband to her of $32,981.00. This sum can be paid from the husband’s entitlement from the proceeds of sale of the home at Suburb C.

7. Orders will be made accordingly.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 May 2018.

Associate: 

Date:  18 May 2018