Volny & Jastrow
[2022] FedCFamC2F 1201
•6 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Volny & Jastrow [2022] FedCFamC2F 1201
File number(s): PAC 1027 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 6 September 2022 Catchwords: FAMILY LAW – property adjustment - Orders made Legislation: Family Law Act 1975 (Cth), ss 75(2), 79(2), 102NA
Limitation Act 1969 (NSW), s 54
Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 76 Date of hearing: 8–9 August 2022 Place: Parramatta Counsel for the Applicant: Ms Mattar Solicitor for the Applicant: Choice Law Group The Respondent: The Respondent appeared in person ORDERS
PAC 1027 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VOLNY
Applicant
AND: MR JASTROW
Respondent
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
6 September 2022
THE COURT ORDERS THAT:
1.The matrimonial home situate and located at B Street, Suburb C in the state of New South Wales being all that land contained in Folio Identifier Lot … section … in Deposited Plan … be sold by way of public auction through a real estate agent agreed to by the parties.
2.The reserve price for the sale of the matrimonial home shall be agreed to by the parties or in the absence of agreement shall be a price nominated as the fair market value by the real estate agent.
3.On settlement of the sale of the matrimonial home, the gross settlement funds be disbursed as follows:
(a)In adjustment of all council rates and water rates due on settlement;
(b)Payment of the agent’s commission;
(c)Payment of all reasonable and necessary legal fees of the conveyance;
(d)Any amount required to pay the mortgage loan debt to NAB;
(e)The sum of $96,606 be paid to Ms D in discharge of her loan to the Husband;
(f)A sum representing 60% of the balance of the net proceeds of sale plus $40,050 be paid to the Wife;
(g)The balance be paid to the Husband.
4.Should the matrimonial home be sold at a price in excess of $885,000, then there shall be an adjustment of the monies payable to the Wife and to the Husband, pursuant to Order 3 above, in accordance with the Court’s Reasons for Judgment herein.
5.Subject to these Orders, the parties have the sole right, title and interest in any other property, including choses-in-action and superannuation, which is at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
6.In the event that either party refuses or neglects to execute any deed or instrument, a Registrar of this Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Volny & Jastrow has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
Introduction
These are Reasons for Judgment relating to a hearing held before the Court on 8 and 9 August 2022, relating to property proceedings.
The Wife appeared, legally represented. The Husband appeared in person.
The Wife had made family violence allegations against the Husband and previous apprehended domestic violence Orders had been made but which had expired. The Court had previously made an order under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) having the effect that the Husband was not permitted to cross-examine the Wife.
The main asset, the subject of these property proceedings, is the former matrimonial home at B Street, Suburb C, NSW (“the property”). It is subject to a substantial mortgage loan. The Husband contends that there are significant liabilities arising out of the parties’ relationship which the Wife disputes.
PROPOSALS
In relation to the property proceedings, the Wife sought final orders as set out in her Initiating Application filed 3 July 2020; inter alia, she sought orders that the property be sold and the net proceeds of sale be disbursed 90 per cent to the Wife and the balance to the Husband.
In relation to the property proceedings, the Husband sought final orders as set out in his Case Outline filed 3 August 2022: he sought orders that the property not be sold; that the Husband pay an amount of no more than $35,000 to the Wife in instalments “to settle these proceedings”; and that all debts acquired to obtain the property be taken into calculation “as they are directly related to the family home”.
MATERIAL RELIED UPON
The Wife relied upon the following documents:
(a)Her trial Affidavit filed 12 May 2022;
(b)Her Financial Statement filed 12 May 2022 ;
(c)Joint Statement of Issues filed 5 August 2021;
(d)Her Case outline filed 3 August 2022.
The Husband relied upon the following documents:
(a)His Affidavits filed 24 November 2020, and 9 May 2022;
(b)His Financial Statement filed 24 November 2020;
(c)His Case Outline filed 3 August 2022 (10 pages).
The following Exhibits became evidence in the proceedings:
(a)Exhibit A: Amended Balance Sheet;
(b)Exhibit B: Pages from the Wife’s Tender Bundle;
(i)Contract for the sale of land B Street, Suburb C property, page 1;
(ii)Company E new loan submission, pages 3–6;
(iii)Husband’s bank statements 24 March 2020-30 June 2020 and 12 January 2017–10 March 2017, pages 14–16;
(iv)Husband’s bank statement 12 January 2018–9 March 2018, pages 20–21;
(v)Husband’s 2020–2021 tax return, pages 58–64;
(vi)Husband’s 2019–2020 tax return, pages 36–40;
(vii)Photos from Instagram of the husband working as an entertainer, pages 51–55;
(c)Exhibit C: Certificate of Registration;
(d)Exhibit D: Husband’s Tender Bundle;
(e)Exhibit E: Wife’s Bank F Statement;
(f)Exhibit F: Email from Wife’s rental company.
Evidence
The Court has considered the documentary material relied upon by the parties discussed above, and the parties’ oral evidence. The Court has considered both parties’ allegations and contentions in relation to their claimed relief in these proceedings.
The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below under the headings “Contributions”, “Balance sheet” and “Section 75(2)”.
legal principles
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282.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.
283.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.
284.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). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285.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 de facto 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.
286.In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the de facto Wife seeks an order for adjustment of property and the de facto Husband contends that there should be no such adjustment.
287.It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288.In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289.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)).
290.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.
Balance sheet
The parties’ Amended Balance Sheet was Exhibit A at the final hearing and is now set out.
AMENDED BALANCE SHEET Ownership Description Applicant’s value Respondent’s value Assets 1 H B Street, Suburb C $885,000.00 $885,000.00 2 H G Street, City H, Country J $70,000.00 $NIL 3 H K Street, City H, Country J $70,000.00 $NIL 4 W Bank F Account $300.00 $300.00 5 H NAB Bank Account $3,400.00 $3,400.00 6 H Bank F Account $1,200.00 $1,200.00 7 W Motor Vehicle 1 $7,000.00 $7,000.00 Total $1,036,900 $896,900 Addbacks 8 $ $ Total $ $ Liabilities 9 H NAB Home Loan $602,751.16 $602,751.16 10 H Personal Loan from Ms D $NIL $131,358.00 11 H Personal Loan from Mr L $NIL $8,000.00 12 H Bank M Credit Card $NIL $2,000.00 13 H Legal Aid Debt $NIL $8,740.96 Total $602,751.16 $752,850.12 Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 14 H Super Fund N Accumulation interest $26,751.16 $26,751.16 Total $26,751.16 $26,751.16 Financial Resources Ownership Description Applicant’s Value Respondent’s Value 15 $ $ Total $ $
In relation to items 2 and 3, the Court does not accept that the Husband owns properties in Country J or has disposed of them during the parties’ relationship. The Wife’s documentary evidence (in particular her translated documents from the Country J language) in this context, does not persuasively establish that the Husband owns such properties and nor does it establish their contended value of $70,000 each. The Court accepts the Husband’s evidence in relation to the Wife’s evidence in this context, and broadly accept his submissions in this context. Items 2 and 3 will be removed from the balance sheet.
In relation to items 4, 5, and 6, the bank accounts of the parties, there is no significant evidence indicating that the credit balances set out in the Amended Balance Sheet are monies arising out of the parties’ relationship; the sums are likely post separation accumulations by the parties. Those items shall be removed from the balance sheet.
In relation to item 7, the Wife’s Motor Vehicle 1, this car was purchased by the Wife post separation from savings that she made from Centrelink benefits received post separation. The Husband made no contribution towards this car and item 7 shall be removed from the balance sheet.
In relation to item 10, the Husband’s asserted loan from Ms D (“Ms D”) in the sum of $131,358, the Court finds that Ms D lent the sum of $59,000 ($50,000 in bank transfers and $9,000 in cash) to the Husband in September and October 2016 to assist the Husband in paying for a deposit for the purchase of the property. The Court finds that there was probably an oral loan agreement between Ms D and the Husband in about September 2016 in relation to a loan of $59,000 with an interest rate of 30 per cent on the loan and which was to be repaid about one year later.
The Court observes that the purchase price for the property was $760,000, and the NAB lent the Husband $655,637 on 25 October 2016 for the purchase, with about $645,341 (after bank related charges) being available to be utilised for the purchase. Thus the Husband was required to furnish some $114,659 for the balance of purchase price, together with $29,260 for stamp duty on the purchase, being a total of $143,919, as well as legal conveyancing fees ($1,300). On 5 September 2016, being the contract date for purchase of the property, the Husband had credit funds in his ANZ account of only about $99,368 (prior to receiving loan funds from Ms D). Again, Ms D loaned $59,000 to the Husband to assist him in relation to funding the balance of purchase price. The Court finds that the Husband provided the balance of $84,919.
Ms D and the Husband signed a “financial agreement” on 1 December 2016. This “financial agreement” merely confirmed the existence of the likely prior oral loan agreement between Ms D and the Husband relating to the advance of $59,000 made by Ms D to the Husband in about September/October 2016.The “agreement” provided that a total of $51,000 had been loaned to the Husband in September 2016, and cash loans of $9,000 had been loaned to the Husband in October 2016. The “agreement” confirmed repayment of the total loan of $60,000 by 5 September 2017 at an interest rate of 30 per cent.
The Court accepts the Husband’s oral evidence that the reference in the above “financial agreement” to Ms D having advanced $1,000 to the Husband on 25 November 2016 is incorrect; in fact the Husband paid $1,000 to Ms D on that date for Ms D having previously paid for some concrete.
There is email correspondence between the Husband and Ms D from February 2018 relating to the Husband repaying the loan. An email from Ms D dated 7 April 2018 to the Husband states that she is willing to wait for a lump sum payment of $90,000 after sale of the property.
On 18 April 2019 the Husband signed a statutory declaration confirming the above loan from Ms D, and stating that as at that date the loan with interest owing was $78,000. The statutory declaration states that the Husband has not paid any of the debt yet due to difficult financial circumstances.
A letter from Ms D dated 30 October 2020, addressed “to whom it may concern”, and signed by Ms D states, inter alia, that she has agreed to cap the amount of the loan, in addition to interest, to a total of $90,000, “taking into consideration the circumstances that [the Husband] had forwarded to me.” She states that she is certain that the parties would ensure to pay her debt “as soon as the house is sold.”
The Financial Statement of the Husband filed 24 November 2020 states that the loan amount outstanding to Ms D was $90,000 at that time.
On 12 December 2020 Ms D sent an email to the Husband stating, inter alia, that:
You are telling me now after over four years that the interest I applied was not legal….you have not paid a cent yet and now you are telling me it was illegal. Anyhow I am prepared to reduce the interest rate to match a bank’s personal loan rate which I have attached to this email the new interest rate is 11.99% per annum. The correct (legal) new rate will apply from the day I made the first transfer and you will stop being charged interest once you finish paying off the amount. As you recall the total loan amount was $60,000 add to that 11.99% interest this brings up the loan amount to $88,776 if the total was paid this year. I will continue to charge interest and will take legal action if you try and get out of paying the loan.
The Court observes that the Husband’s Affidavit filed 9 May 2022 confirms that Ms D adjusted the interest rate applicable under the loan to 11.99 per cent. He states that the current loan amount is over $90,000 due to calculated interest.
On 13 December 2020 the Husband sent an email to Ms D stating, inter alia, that he had received legal advice that the interest rate of 30 per cent was illegal.
In October and November 2021 the Husband repaid Ms D the sum of about $9,000 which is referred to in the NAB bank statements. The Court observes, in passing, that such repayment probably operates as a confirmation of the debt owing to Ms D under s 54 of the Limitation Act 1969 (NSW), effectively extending the limitation period for recovery of the loan debt by Ms D.
Ms D would appear to have calculated the above sum of $88,776 being owing in December 2020 on this basis: $60,000 plus interest at 11.99 per cent for four years (interest not compounding). Using that approach, the amount owing on a loan of $60,000 at 11.99 per cent is presently about $103,164.
With the actual loan at $59,000, then interest at 11.99 per cent on that amount until October/November 2021, the amount owing then is about $94,370. Then taking into account the Husband’s repayment on the loan of about $9,000 in October/November 2021, the balance owing is $85,370. Allowing interest at 11.99 per cent on that amount of $85,370 for one year (to date) the balance owing is about $95,606. Ms D’s asserted loan debt outstanding of $131,358 as set out in her message to the Husband of 1 August 2022 would therefore appear to have been calculated on an interest rate in excess of 11.99 per cent. The sum of $95,606 will enter the balance sheet as a matrimonial debt owed to Ms D (incurred by the Husband to purchase the property) in lieu of the figure of $131,358.
The Wife contends that certain sums of money were available to the Husband both prior to the parties’ separation in early December 2017 and post separation, and that such sums of money could feasibly have been used by the Husband to reduce the debt owing to Ms D. The Court will now explore this contention.
On 12 January 2018 the Husband withdrew $40,000 from his NAB account, which prior to the withdrawal had a credit balance of $54,684. The Husband stated in oral evidence that this $40,000 was not used to repay Ms D. He also stated that he could not recall what he did with this $40,000.
Settlement of the purchase of the property probably occurred in about late October 2016. The parties finally separated on about 8 December 2017. NAB bank statement number 3 (Husband’s bank account, account number …50) shows a credit balance of $19,767 as at 9 March 2017. The next available NAB bank statement number 7, for the period 12 September 2017 to 10 November 2017, shows a credit balance of $41,200 as at 12 September 2017. The credit balance as at 8 November 2017 is stated to be $52,023. The next available NAB bank statement number 8, for the period 11 November 2017 to 11 January 2018 shows a credit balance of $52,023 as at 11 November 2017 with a credit balance of $54,684 as at 11 January 2018. NAB bank statement number 9 reveals the Husband’s withdrawal from the account of $40,000 on 12 January 2018.
The Court observes that NAB bank statements numbers 4, 5, and 6, were not placed into evidence by either party, and which absent bank statements spanned the period from about 11 March 2017 to 11 September 2017, a period of about six months, noting that the credit balance as at 10 March 2017 was $19,767 and the opening credit balance as at 12 September 2017 was $41,200.
The above bank statements reveal the source of credits to the NAB bank account from 18 January 2017 to 12 January 2018 to be mainly a combination of these sources: the Husband’s employment income; $10,000 from the Office of State Revenue NSW being a first home owners grant of $10,000; and a total sum of about $13,050 received from “Ms D” (withdrawal notations on the bank statements stating, “debt repay thanx Ms D”).
The Court observes that the above sum of $13,050 was not dealt with directly in the evidence and there was no significant cross examination of the Husband on this issue, with the Court accepting the Husband’s oral evidence that to date he has only repaid to Ms D the sum of about $9,000 in respect to the loan from her. Accordingly, there was no significant evidence before the Court in relation this total sum of $13,050, and the Court observes that no express oral submissions were made by the Wife in relation to this sum.
The above bank statements reveal that significant debits to the NAB bank account were monthly repayments of the mortgage loan from NAB in relation to the property in the sum of $3,336. The receipt by the Husband into his NAB bank account of $10,000 on 17 February 2017, being the first home owners grant, was effectively utilised by him in ongoing monthly repayments of the NAB mortgage loan by reference to the NAB bank statements.
In the final analysis, the Husband provided no persuasive explanation in relation to what he did with the $40,000 withdrawn from his NAB bank account on 12 January 2018 whether for reasonable living expenses or otherwise. The Court accepts his evidence that he did not use it to repay (in part) the loan advance from Ms D.
It should be again noted that as at the date of separation on about 8 December 2017, the NAB bank account revealed a credit balance of $54,904. And again, significant credits to the NAB bank account leading up to the withdrawal of $40,000 on 12 January 2018 was the Husband’s employment income and during which employment the Wife was caring for the children thus indirectly enabling the Husband to earn income. Thus the $40,000 withdrawn was matrimonial property of the parties. The Court infers that the Husband has had the benefit of such monies without reference to the Wife. The withdrawal of $40,000 should be added back to the balance sheet and ultimately taken into account as a premature distribution of matrimonial property to the Husband.
The Wife contends that withdrawals by the Husband from his ANZ bank account in a total of about $7,000 from 31 October 2016 to 29 November 2016 should be regarded by the Court as monies feasibly available to the Husband to repay Ms D. The Husband in oral evidence stated that these monies could not have been used by him to repay Ms D at this time and the Court accepts this evidence. The Court is not persuaded that these monies withdrawn by the Husband represented wastage by him of matrimonial assets or constituted a premature distribution of property by him.
The Wife contends that a withdrawal by the Husband of $10,000 on 16 September 2016 (the parties had not yet separated at this time) could have been used to repay Ms D. The Husband in oral evidence stated that these monies were not used to repay Ms D at this time and the Court accepts this evidence. The Court is not persuaded that these monies withdrawn by the Husband represented wastage by him of matrimonial assets or constituted a premature distribution of property by him; it is likely that the funds were either used by the Husband to assist in purchasing the property or were used for reasonable living expenses.
In re-examination, the Husband (not referring to his $40,000 withdrawal) stated that the reason he did not repay the loan from Ms D was because he spent monies on legal fees. In his Affidavit filed 24 November 2020, the Husband asserted that he spent considerable monies on legal fees (in excess of $27,000) and the Court accepts this evidence, particularly noting the documentary evidence from his solicitors regarding legal fees. In passing, there is no significant evidence that the husband’s withdrawal of $40,000 was used to pay his legal fees.
In relation to item 11, a personal loan by the Husband from Mr L in the sum of $8,000, this loan was asserted by the Husband to have been obtained post separation from Mr L (the original loan amount was $12,000) to assist him with his living expenses. There is no significant evidence as to when post separation this debt was incurred. The Husband asserted he used part of the loan from Mr L for legal expenses. He did not describe the nature of the living expenses that he spent part of the loan on. This sum of $8,000 shall be removed from the balance sheet accordingly.
In relation to item 12, the Husband’s Bank M credit card debt of $2,000, in relation to the Husband’s purchase of furniture, this was incurred by the Husband post separation (date unknown) and should be removed from the balance sheet accordingly.
In relation to item 13, the Husband’s legal aid debt of $8,740, this debt relates to the Husband’s legal representation for the parties’ parenting proceedings. This sum of $8,740 shall be removed from the balance sheet accordingly.
The adjusted balance sheet accordingly will be as follows:
ADJUSTED BALANCE SHEET Item Description Value Assets 1 B Street, Suburb C $885,000 Total $885,000 Addbacks 2 Monies withdrawn by Husband on 12 January 2018 $40,000 Total $40,000 Liabilities 3 NAB home loan $602,751 4 Personal loan from Ms D $95,606 Total $698,357 Superannuation 5 Husband’s superannuation $26,751 Total $26,751
From the above, it can be seen that the parties’ net non-superannuation assets are $226,643, and the Husband’s superannuation is $26,751. The total asset pool is accordingly $253,394 but noting that the Husband has received a premature distribution of matrimonial property of $40,000 on 12 January 2018.
Section 79(2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
The parties’ cohabitation commenced upon marriage in about 2008 in Country J. Final separation occurred on about 8 December 2017. (The Husband had commenced proceedings in this Court in early March 2018).
At cohabitation in about 2008 in Country J, the parties had no significant property.
In 2014 the Husband moved to Australia in about 2014. The children and the Wife remained in Country J. In 2014 the Wife and children moved to Country O. The Wife obtained a pension whilst she and the children resided in Country O and that pension was the primary financial resource that the Wife used to support herself and the children.
In September 2016 the Husband purchased the former matrimonial home at B Street, Suburb C (the property), in the sum of $760,000. He took a mortgage loan from NAB in the sum of about $655,637 to assist in the purchase. He also borrowed $59,000 from Ms D (Ms D) to assist in the purchase. He utilised cash savings to pay the balance owing in relation to the purchase of the property together with stamp duty on the purchase of the property and legal fees on the purchase totalling all up some $86,219.
Since the purchase of the property, the Husband has alone paid the mortgage loan repayments to NAB.
The Wife and children moved to Australia in about 2017. The Wife at that time had 13,600 euros ($21,000) which she gave to the Husband. The Husband used this $21,000 to repay loans owed to two of his friends. The Husband had spent over $25,000 to bring the Wife and children to Australia. During the relationship the Husband worked, in particular, as a retail worker.
The Wife has been the primary carer of the child from birth to date. This has been a very significant contribution by the Wife. The Husband assisted the Wife with the care of the children but not between about 2014 and 2017 (apart from a two-month trip by the Husband to Country O in about late 2015). The Husband did not spend time with the children after final separation until February 2020.
The Husband has been residing in the property since separation and has paid the mortgage loan repayments since then. The Wife, since about December 2021, has been paying for rental accommodation for herself and the children in the sum of $400 per week.
The Husband’s superannuation asset with Super Fund N is now valued at $26,751. As at 24 November 2020 the Husband valued it at $17,777 (see his Financial Statement filed 24 November 2020).
The Wife made indirect contributions towards the Husband’s superannuation, through her primary care of the children, thus enabling the Husband to earn income and thereby acquire superannuation.
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to non-superannuation and superannuation assets to be equal.
Section 75(2) of the Act
The Husband is 46 years, and the Wife 51 years.
The Wife is in good health.
The Husband does not assert that he has any significant health issues and the court infers that he is in good health.
The Wife will remain the primary carer of the children aged 10 and 12 years. She provides for all their needs. The Wife pays school fees for the children each year in the sum of about $780. The Husband pays child support of about $56 per week.
Parenting Orders of 14 February 2020 provide that the children spend, during school term times, each alternate weekend from Friday after school to Sunday afternoon with the Husband. Under those Orders the children spend block time with the father during school holidays. The Court accepts the Husband’s evidence as to his time spent with the children.
The Husband works in paid employment through the Employer P for three days each week (about 25–30 hours per week) earning about $950 gross per week. He does not obtain significant income through work as an entertainer nor through his small home repairs business.
The Husband has significant years ahead of him of income earning potential before retirement.
The Wife is currently studying English and hopes to study further once she is competent in the English language. She is currently not working and has not been able to secure employment since arriving in Australia. The Court observes that the Wife’s Financial Statement filed 12 May 2022 refers to her obtaining Job Seeker and Family Tax Benefit in the sum of about $688 per week. The Wife probably now has a quite modest earning capacity (the Court acknowledging that that she presently has the full-time care of school-age children) which may increase by reference to her English studies and further proposed studies but it is unlikely that the Wife’s earning capacity will ever approach the Husband’s significantly greater earning capacity.
The Husband has modest superannuation entitlements $26,751 and the Wife has no superannuation. Again, the Wife is aged 51 years and the Husband is aged 46 years.
Taking into account the above matters, there should be an adjustment in favour the Wife of 10 per cent representing $25,339 by reference to the net asset pool of $253,394.
Thus the adjusted contributions finding is 60 per cent to the Wife and 40 per cent to the Husband.
Justice and equity
Pursuant to the Court’s contribution assessment, the Husband should be left with assets representing, in value, 40 per cent of the net assets including superannuation, being $101,357 (40 per cent of $253,394) but less $40,000 being the premature distribution to himself on 12 January 2018, leaving a net amount to him of $61,357.
Should he retain his superannuation, $26,751, he should receive cash of about $34,606 from the net sale proceeds of the property (making a total of $61,357, being 40 per cent of the net assets including superannuation less the $40,000 previously received by him). With the $34,606 he can repay his debts to Mr L, Bank M, and Legal Aid (debts totalling $18,740) with some cash remaining. The Husband has bank account cash assets of at least $4,600 which did not enter the balance sheet.
The Wife will be entitled to 60 per cent of the net assets including superannuation, a sum of about $152,036. Should the Husband retain his superannuation of $26,751, the Wife will need to receive the sum of about $152,036 from the net sale proceeds of the property.
It should be emphasized that the Wife remains the primary carer of the children only aged 10 and 12 years, and the Court refers to its discussion above as to her earning capacity; inter alia, the Wife has not yet begun to work in paid employment and she is still learning to speak English. The Husband by comparison is only aged 46 years, has a proven work capacity, and is in good health.
The Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
The Court makes Orders accordingly.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 6 September 2022
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