W and W

[2008] FCWA 11

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: W and W [2008] FCWA 11

CORAM: CROOKS J

HEARD: 22 NOVEMBER 2007

DELIVERED : 5 FEBRUARY 2008

FILE NO/S: PT 90 of 2006

BETWEEN: W

Applicant/Mother

AND

W
Respondent/Father

Catchwords:

Property settlement
Addbacks to asset pool - split of superannuation
S 75(2) adjustment

Legislation:

Family Law Act 1975, Part 6, s 75, s 79, s 90MT
Family Law (Superannuation) Regulations Act 2001

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr S French

Respondent: Self Represented Litigant

Solicitors:

Applicant: Dwyer Durack

Respondent:

Case(s) referred to in judgment(s):

Briese and Briese (1986) FLC 91-713

Townsend and Townsend (1995) FLC 92-569

Weir and Weir (1993) FLC 92-338

1The dispute to be determined concerns the division of property between [Mr W] and [Mrs W].

2The issues concerning the parties’ children were resolved, at least on an interim basis by consent orders made at the commencement of the trial.

Background

3The husband is 50 years of age and the wife is 43 years of age.

4The parties married [in] February 1986 and finally separated on 2 January 2005. Accordingly, the parties lived together for nearly 19 years.

5There are four children of the marriage, [S] now aged 18 years, [L] now aged 16 years, [J] now aged 10 years and [R] now aged 8 years.

6At the time of separation, the parties and their four children were living at [the address of an] unencumbered property held in the joint names of the parties (“the property”). The wife and children left the [matrimonial] property and within a short time of separation moved into rental accommodation. The husband has since continued to live in the [matrimonial] property.

7The two youngest children, [J] and [R] have, since the separation, continued to live with the wife. [L] lived with the wife and his siblings until March 2006 when he commenced to live with the husband. The eldest child [S], ceased living with the wife in December 2006 when she moved to her boyfriend’s parents’ home.

8[L] has suffered from severe behavioural problems for a number of years. He was suspended from High School in 2006 because of problems over his attendance and disruptive behaviour.

9At the time of trial:

(a)[J] and [R] were living with the wife and were full-time students;

(b)[L] was living with the husband who said he had finished school and would be seeking employment.

10The consent parenting orders I made at the beginning of the trial provided inter alia that until further order:

(a)[J] and [R] live with the wife and spend each alternate week from after school Wednesday until the commencement of school the following Monday with the husband together with the additional periods as set out in the orders;

(b)[L] live with his father and spend time with his mother in accordance with his wishes.

11During the marriage, the parties purchased and paid off the [matrimonial] property and when they separated had accumulated significant savings with no debt.

12At the time of separation:

(a)the husband was continuing to work for [ a government agency];

(b)the wife was doing relief work as an [assistant] and commenced a 12 month diploma course in this work.

13The wife filed an application on 3 March 2006 seeking parenting and property orders. The wife also applied for interim spousal maintenance orders. The husband opposed the wife’s claims.

14The husband voluntarily resigned his employment with [the government agency] from 10 April 2006 and became entitled to certain termination payments. As a consequence of the husband’s resignation, the wife made application dated 11 May 2006 seeking inter alia orders that the husband give disclosure of documents relating to his termination pay and orders to prevent the husband from dealing with the termination funds.

15On 9 June 2006 the Court ordered inter alia:

(a)an injunction be placed on the husband restraining him from dealing with his termination pay, if any, without the written consent of the wife;

(b)that the husband’s termination pay, if any, be deposited into a bank account in joint names requiring the parties’ signature to effect any transaction

16In mid June 2006 the husband received $3,571.66 from [the government agency] which was covered by the injunctions made. The husband deposited these funds in his own account and spent the funds notwithstanding the orders made against him.

17During the proceedings the wife’s solicitors made various requests for the husband to give disclosure of documents in relation to his superannuation entitlements, bank accounts and receipts to evidence how the husband allegedly spent the savings held in his name at separation with Home Building Society. Notwithstanding these requests for disclosure, the husband failed to give adequate disclosure which I deal with in more detail later in these reasons.

18On 15 January 2007 the parties attended a procedural conference conducted by Registrar Fleming who recorded on the conference file note “there is an issue as to disclosure and I indicated to [Mr W] that he should comply with disclosure requirements of the wife”.

The evidence and materials relied upon at trial

19The wife was represented at trial by Mr French of counsel. The wife gave evidence in support of her application to the Court and was cross-examined. She also relied upon the following documents in relation to the financial issues:

(a)her trial affidavit sworn on 5 September 2007;

(b)her amended financial statement sworn 5 September 2007;

(c)her affidavit sworn 24 September 2007;

(d)her affidavit sworn 11 October 2007;

(e)the affidavit of the valuer, [Mr S] affirmed 10 October 2007.

20The husband represented himself on the hearing. He gave evidence in support of his application to the Court and was cross-examined. In addition to the husband’s oral evidence, I have taken into account:

(a)his affidavit sworn 27 March 2006;

(b)his affidavit sworn 29 May 2006;

(c)his financial statement sworn 27 March 2006;

(d)his trial affidavit sworn 17 November 2007.

21The husband failed to file any updated financial statement.

Wife’s position at trial

(a)Mr French submitted that the wife should receive a lump sum equal to 65% of the assets which should be paid from the proceeds of sale of the [matrimonial] property. The wife opposes the making of a splitting order in respect of the husband’s superannuation entitlements in her favour as part of her settlement;

(b)in determining the assets for division between the parties, the wife seeks that the savings of $56,024 which the husband retained at the time of the time the parties’ separation be notionally added back to the pool of assets to be divided between the parties;

(c)the wife further seeks that the sum of $20,000 withdrawn by the husband from his superannuation entitlements after he left [a government agency] also be notionally added back to the asset pool.

Husband’s position at trial

(a)the husband’s proposed that all assets be divided equally, including the [matrimonial] property, all savings and the parties superannuation entitlements. Notwithstanding the husband did not specifically seek a superannuation splitting order in his filed Minute of Orders, the hearing was dealt with on the basis that the husband was seeking orders to divide the superannuation;

(b)as to the asset pool the husband proposed in paragraph 31 of his trial affidavit that he was prepared for the wife to share equally in the value of his superannuation and accumulated savings at the time of separation.

Property proceedings – the law

22Property cases are governed by s 79 of the Family Law Act 1975.

23The determination of an application pursuant to s 79 involves a four step process which can be summarised as follows:

(a)to ascertain the property of the parties;

(b)to determine the contributions made by the parties to the property;

(c)to consider the other factors set out in s 79(4) and s 75(2) which include the parties’ future needs, income earning capacities, responsibilities and resources;

(d)to finally reach a decision that is just and equitable in all the circumstances.

The assets

(“the [matrimonial] property”)

24The [matrimonial] property was valued by a licensed valuer, [Mr S] at $750,000 in the report attached to his affidavit affirmed 10 October 2007. This value was not challenged by the husband and I accept this value. In any event, the husband conceded that the [matrimonial] property would need to be sold. He was not in a position to purchase the wife’s interest in the home.

Savings retained by husband

25In paragraph 34 of the wife’s trial affidavit she describes how since about 1995 the parties have been accumulating savings in a Home Building Society Account operated in the husband’s name. Annexure “D” to the wife’s trial affidavit is a copy of the Home Building Society Statement of Account for the period 12 May 2005 to 19 April 2007. The opening entry on 12 May 2005 refers to a deposit of $56,024.13. Although this Bank entry is some four months after the date of separation, I intend to include this amount in the asset pool. The husband did not dispute the accuracy of this amount at the trial.

26The husband’s evidence is that he has spent all of these savings. The Home Building Society account statements show numerous cash withdrawals as having been made from the opening deposit of $56,024.13, such that by 30 April 2006 the balance in the account was reduced to $793.43. The transactions on the account included a cash withdrawal of $10,000 on 18 August 2005 and a cash withdrawal of $20,000 on 22 December 2005. It was not suggested that any person other than the husband operated the account. The husband gave evidence both at the trial and in his affidavit sworn 29 May 2006 in relation to the expenditure of the savings. The following is a list of those items of expenditure from the savings which were specifically mentioned by the husband:

Purchase of washing machine	E $550
Cost of rewiring house	E 2,600
Cost of new oven	E 500
Cost of computer	1,600
Legal fees paid	E 9,500
Gym membership	486
[Holiday] for husband and children	E 660-760

27Apart from these specific items, which total approximately $16,000, the husband’s evidence is that he had been “living” from his savings.

28I have serious reservations about the accuracy and reliability of the husband’s evidence that he has spent all of the savings of $56,024 for these reasons:

(a)prior to the trial, the husband was asked by the wife’s solicitors to produce receipts to verify how the funds were spent as part of his disclosure obligations. There was no evidence that the husband produced documents which would verify the spending of the savings;

(b)the husband also failed to produce at the trial any receipts to verify how he spent the parties’ savings other than with respect to his legal expenses which were verified;

(c)during the period of about 12 months when the husband says he spent all of the savings, he was continuing to receive an annual salary of approximately $40,000 from [a government agency] and was living in the [matrimonial] property for which there were no mortgage repayments but only the usual outgoings of rates, taxes and insurances;

(d)the husband said he was very careful with his money and estimated he could save in the region of $20,000 per annum from his [a government agency] income.

29The husband said in his trial affidavit he was prepared for the wife to share equally in the value of the savings at the time of separation. Even if the husband had been unwilling to make this concession, I would have included the savings in the asset pool at the original amount as I am not satisfied that the husband has in fact disposed of the funds in question. In any event, the disposal of such a large amount of money in the circumstances I have described would constitute a premature distribution of matrimonial assets which should be notionally added back in the asset pool: Townsend and Townsend (1995) FLC 92-569.

Superannuation

30The wife’s evidence is that she has superannuation with [her government agency superannuation scheme] worth $2,711 at 28 March 2007. No more recent evidence was provided by the wife and I will include this amount in the asset pool.

31In his trial affidavit, the husband attached a statement from [his government agency superannuation scheme] showing a closing balance at 30 June 2007 of $106,530.18. This is the most recent evidence provided as to the value of the husband’s interest in the superannuation scheme and I intend to include this amount in the asset pool.

Superannuation draw-down

32In the husband’s Financial Statement sworn 27 March 2006 he estimated the value of his interest in the [a government agency superannuation scheme] to be $120,000. This estimate was consistent with the value of $119,080.80 for the husband’s benefits at 30 June 2005 which was set out in the statement from [a government agency] which was annexed to the wife’s trial affidavit. During cross‑examination, the husband was asked to explain the apparent discrepancy between his estimate of $120,000 and the reduced value of $106,530.18 at 30 June 2007. The husband said that after he left [a government agency] he accessed $20,000 from his superannuation fund which he spent on “living”. The husband made no reference to this withdrawal of superannuation in his trial affidavit nor did he provide any documents to evidence the withdrawal.

33The husband’s failure to disclose the withdrawal of the $20,000 from his superannuation scheme fell far short of his obligations to make proper disclosure. He set out to deliberately conceal this from the wife.

34When dealing with the obligation on parties to disclose their financial circumstances, Smithers J in Briese and Briese (1986) FLC 91-713 at 75,180 said:

“I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding …

In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.”

35In relation to non-disclosure of assets, the Full Court in Weir and Weir (1993) FLC 92-338 stated at 79,593 as follows:

“… once it has been established that there has been a deliberate non disclosure, …, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.”

36Mr French submitted that I should also notionally addback to the asset pool the sum of $20,000 received by the husband and I accept this submission. I regard this withdrawal as a premature distribution of matrimonial assets. The husband produced no documents to verify how these funds were spent.

Other savings

37The husband said in his evidence he currently has about $600-$700 in savings. I have already determined to include in the asset pool the full amount of savings held at the time of separation. I do not intend to include the amount disclosed by the husband as his current savings to avoid the risk of double counting.

Motor vehicle

38The wife places a value of $1,000 on the [motor vehicle] which is owned by the husband. In his Financial Statement sworn 27 March 2006 the husband placed a value of $1,500 on the vehicle. Given the time that has passed since this statement was made, I am going to include the value of $1,000 for the husband’s motor vehicle in the asset pool. There was no valuation of the vehicle.

Household contents

39In his Financial Statement sworn 27 March 2006 the husband placed a value of $3,000 on the household contents. He agreed he retained most of the contents. The wife says that she has household items worth approximately $400 and the husband has household items worth $2,000. I intend to include the values claimed by the wife. There was no valuation for the household items.

Legal costs

40The husband gave evidence he has paid approximately $9,500 in legal expenses which he says came from the savings he held at the time of separation. Given I have included the full amount of savings held by the husband at the time of separation, the legal expenses paid by the husband will not be added back. The husband has no outstanding legal costs other than a potential liability to Legal Aid WA in respect of the costs of the independent children’s lawyer which is yet to be assessed. I received a copy of the wife’s costs practice direction notification which showed the wife as having incurred costs of an estimated $34,463.39 plus anticipated further costs estimated at between $2,000 and $8,000 to the end of the first day of trial. These costs have not been paid and will be paid from the wife’s share of settlement funds. I do not intend to include the wife’s costs as a liability in the pool of assets. The wife also has a potential liability to Legal Aid WA.

Conclusion

41For the purposes of these proceedings, I determine that the parties have the following asset pool for division between them.

Assets	Husband	Wife
[The matrimonial home ]	$375,000	$375,000
Savings retained by husband on separation	56,024
Furniture	400
Furniture	2,000
[Motor vehicle]	1,000
Superannuation draw down	20,000
Total assets	454,024	375,400

Superannuation assets
Superannuation	106,530
Superannuation	2,711
Total superannuation assets	106,530	2,711
Total assets including superannuation	560,554	378,111
Liabilities	Nil

42The total net assets including superannuation is $938,665.

Contributions to non-superannuation assets

43Neither party had any significant assets at commencement of cohabitation. The wife submitted that the parties’ financial and non-financial contributions from the commencement of cohabitation to the time of separation were of equivalent value. The husband did not suggest otherwise. I accept the submission made on behalf of the wife. The husband was employed throughout the marriage and was the main financial provider. The wife worked up until the birth of the first child and thereafter was the party primarily responsible for the care of the children and the home and later took on a variety of part-time jobs. I am satisfied both parties worked hard throughout the marriage, brought up four children, were careful with their money and managed to acquire their home free of debt and set aside a significant amount in savings. I regard their contributions to the time of separation as being equal.

Contributions after separation to non-superannuation assets

44Mr French submitted that the wife had made a greater contribution than the husband following the separation and that the difference in those contributions was such as to warrant them being assessed overall in proportions 55% by the wife and 45% by the husband. The husband opposed the wife receiving any additional adjustment.

45When the parties separated, the husband was continuing to work for [a government agency] on a taxable income of approximately $40,000 per annum. He remained living in the [matrimonial] property for which the husband was not required to meet any mortgage repayments. I accept that since the parties’ separation the wife has struggled to support herself and the children from income she has received. Following separation the wife was initially earning $227 per week which has increased since the separation to $664 per week. Until mid March 2006 the wife had the prime responsibility for accommodating and otherwise providing for the four children of the marriage. Since mid March 2006 [L] has lived mainly with his father and in December 2006 [S] moved from the wife’s home. The two youngest children continued to live with the wife. The husband resigned from his employment with [a government agency] with effect from April 2006 and since this time the husband has been unemployed apart from some seasonal work as a [sports instructor]. As a result of this decision, the husband’s income all but ceased and it ended the husband’s opportunity to accumulate savings which was his practice before separation. Notwithstanding the husband’s greater role with [L]’s care after he gave up work, I am satisfied that the overall greater burden has fallen on the wife by reason of the abovementioned circumstances.

Assessment of contributions to non-superannuation assets

46I have found that neither party had any significant assets at the date of commencement of cohabitation. I have also found that the contributions during the period of cohabitation should be regarded as being of equal value. I have, however, found that the wife made a greater contribution than the husband in the period following the separation. In considering the weight to be given to this factor, I keep in mind that this was a lengthy relationship of some 19 years and that whilst there was a discrepancy in contributions since separation, this occurred over a period of a little less than three years. In the exercise of my discretion, I determine that contributions overall should be assessed as having been made 52% by the wife and 48% by the husband.

47Mr French in his submissions on post separation contributions also referred to the limited child support received by the wife from the husband to justify the wife’s claim. In arriving at my assessment on contributions, I have not taken child support payments into account notwithstanding that I consider the issue of child support to be significant in this case. I have done this because I propose to deal with child support when I consider the other factors in s 79(4).

Contributions to superannuation assets

48The husband commenced working for [a government agency] in 1989. In the absence of any evidence from the husband to the contrary, I conclude that the husband’s superannuation entitlements were all accumulated during his years of employment with [a government agency]. These entitlements were part of the benefits the husband received from his employment. I intend to treat the wife’s superannuation in the same manner. I have assessed contributions to the non-superannuation assets as having been made in proportions 52% by the wife and 48% by the husband. This assessment should also apply to the parties’ superannuation assets having regard to the respective contributions of the parties during the marriage which I have outlined.

Section 75(2) and other factors

(a)the age and state of health of each of the parties;

49The husband is 50 years of age and the wife is 43 years of age. Although the husband referred in his affidavit material to having high blood pressure, he did not produce any medical evidence on this condition. I find that neither party has any health problems which might prevent or impact on either of them working in the future.

(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

50The wife is employed as an [assistant] for [a school] and is earning a gross weekly income of $664 per week. Prior to the husband’s resignation from [a government agency] from April 2006, he was earning about $750 gross per week.

51The husband says that he resigned from [a government agency] to be available full-time to support [L] and help deal with his problems. He said in paragraph 24 of his affidavit sworn 27 March 2006 “I may not return to full-time work until I have sorted out the children, [L] in particular”. The wife’s case is that the husband’s decision to give up work was his response to the financial claims she made against him.

52I have little doubt that the husband’s decision to resign from [a government agency] was influenced by his desire to be available for [L] who he loves very much. However, the timing of this decision so soon after the wife made application for property settlement and spousal maintenance on 3 March 2006 and the husband’s comments to the wife that “I am going back to work when the case is finished” which I accept were made, cause me to view the husband’s evidence on this point with suspicion. The husband’s unsatisfactory evidence and failure to give proper disclosure concerning the draw-downs of his superannuation and the expenditure of the parties’ savings, simply add to my concerns about the husband’s explanation for giving up employment. I am satisfied that the husband’s decision to leave [a government agency] was strongly motivated by his desire to reduce or avoid his financial obligations to the wife, particularly for the support of the children whilst they remained in her care after March 2006.

53Since leaving [a government agency], the husband has obtained a heavy rigid driver’s license and obtained some seasonal work as a [an instructor] with the education department for which he was paid about $500 take home.

54More significant, however, is the husband’s evidence that there was plenty of work available for him with [a government agency] and he had been asked to return to work for his former employer. The husband said he was considering returning to work for [a government agency] and would be earning between $45,000 and $50,000 per annum if he took the job. He also said he was now comfortable about leaving [L] at home.

55I am satisfied the husband presently has an earning capacity of between $850 and $950 per week gross from full-time work and is able to adequately support himself in the future. The wife is currently working 35 hours per week as [an assistant] and these working hours enable her to attend to the needs of [J] and [R]. Before the parties’ separation, the wife was working less than full-time because she was the primary caregiver for the children. I am satisfied that the hours currently being worked by the wife are reasonable given her circumstances and she has the capacity to continue to work on this basis for the foreseeable future.

56In summary therefore, I am satisfied that the husband has the greater capacity for gainful employment than does the wife and he can earn a superior income, although not a significantly superior income.

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

57[J] aged 10 years and [R] aged 8 years live primarily with the wife and under the parties’ agreed arrangements, they are to spend each alternate week from after school Wednesday until the commencement of school the following Monday with the husband. The school holiday periods are to be shared.

58For the foreseeable future at least, the wife will have the main responsibility for the care of these two children. They have resided with the wife since the parties separated.

59[L], who is now aged 16 years, continues to reside with the husband. The husband said [L] has now finished school apart from a few units and will be looking for work. The wife’s ongoing responsibility for the care of the two youngest children however, will continue for the foreseeable future. This, I regard as a significant factor.

(d)commitments of each of the parties that are necessary to enable the party to support:

(i)himself or herself; and

(ii)a child or another person that the party has a duty to maintain;

60The wife is supporting herself from her income and the husband has the capacity to fully support himself. Neither party has a duty to maintain a child or another person other than the dependant children of the marriage.

(e)the responsibilities of either party to support any other person;

61Neither party is responsible to support any person other than the children.

(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)any law of the Commonwealth, of a State or Territory or of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party;

62After ceasing work at [a government agency] the husband received Centrelink benefits for [L]. These benefits for [L] will no doubt cease when he finds work.

63Both parties have superannuation. Whilst there is a significant imbalance between the value of the parties’ superannuation entitlements, I do not propose to take that into account as I have included superannuation in the pool of assets.

(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;

64The parties enjoyed a modest but reasonable standard of living during the relationship and should have sufficient income and capital available to them to ensure each can maintain a reasonable standard of living in the future.

(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

(l)the need to protect a party who wishes to continue that party’s role as a parent;

65These paragraphs do not require additional consideration. Whilst originally seeking orders for spousal maintenance when she commenced the proceedings, the wife no longer pursues this claim. The wife obtained a diploma as an [assistant] from a course she took following separation. Whilst wishing to continue her parenting role for [J] and [R] and assist [S] and [L] where possible, it would appear the wife’s present employment does enable her to work and still manage to provide for the needs of the children in her care.

(m)if either party is cohabiting with another person–the financial circumstances relating to the cohabitation;

66The husband has not repartnered. Whilst the husband alleges that the wife has repartnered with a man she has known for some years, the wife denied this when it was put to her. The wife said she does not live with any person other than the children in her care and has no plans to change from this position. I accept her evidence.

(n)the terms of any order made or proposed to be made under s 79 in relation to:

(i)the property of the parties; or

(ii)vested bankruptcy property in relation to a bankrupt party;

67The property and financial resources of the parties have been set out previously in these Reasons as has my assessment on the contributions of the parties.

(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

68Prior to [L] moving in with the husband, his assessed child support liability was $790.42 per month. This amount was reduced to $380.17 per month after [L] commenced living with the husband and was later reduced further to $26.00 per month. The wife then describes in paragraph 49 of her trial affidavit how once the husband finished working for [a government agency], the agency assessed that she should then pay the husband $21.67 per month given that he was unemployed and the wife was working part-time. This was even though the wife was solely supporting the two youngest children. The agency later determined that neither party should pay any child support to the other. For more than 18 months therefore the wife has received virtually nothing in child support from the husband and has paid rent for the accommodation she has occupied with the younger children.

69I was advised by Mr French that in addition to the agreed arrangements as set out in the consent parenting orders, the parties have agreed that for so long as the current parenting arrangements continue, the wife would not claim any child support for [J] and [R] and the husband would not claim any child support for [L].

70[J] and [R] will no doubt continue as full-time students for many years to come and will need ongoing support. The wife will have the sole burden of supporting [J] and [R] unless there is some variation to the child support arrangements agreed upon between the parties. The husband, however, should not have any long term commitment to support [L] who has left school.

(o)any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account; and

71Mr French submits that the husband has been uncooperative throughout the proceedings, particularly after his solicitors ceased to act for him, causing the wife unnecessary added legal costs. The wife has incurred significant legal expenses during these proceedings but has also had all of the benefits of legal representation. I consider any costs incurred by the wife because of the husband’s failure to cooperate with his disclosure obligations or otherwise should be considered in an application for costs following the delivery of these Reasons. I do not take this factor into account in determining the property division. The wife also in her submissions refers to her struggle to provide accommodation and support for the children in the period following separation whilst the husband lived in the unencumbered matrimonial home. I have taken these factors into account.

(p)the terms of any financial agreement that is binding on the parties.

72This paragraph has no relevance.

Conclusion

73I am satisfied an adjustment of 10% in favour of the wife is appropriate after considering the s 75(2) and other factors. In coming to this decision, I have taken into account in particular the fact that the wife will be primarily responsible for the care of the two youngest children and for accommodating those children. The wife has received no child support for those children since April 2006 and she will, in all likelihood, have the major responsibility for their future maintenance.

Just and equitable

74The effect of my decision on contributions and the other factors is that the wife shall be entitled to 62% of the non-superannuation assets which equates with a figure of $514,243 and 62% of the superannuation assets which equates with a figure of $67,729. On the basis of the wife retaining her existing superannuation entitlement of $2,711, a splitting order using a base amount of $65,018 is required to achieve the proposed division.

75The husband’s entitlement to 38% of the non-superannuation assets equates with a figure of $315,181 and 38% of the superannuation assets equates with a figure of $41,512.

76Mr French submits that I should exercise my discretion to make orders which would result in the wife receiving her full entitlements from the proceeds resulting from the sale of the [matrimonial] property. This, he argues would produce the just and equitable result in the circumstances of this case. He opposed the wife receiving a share of the husband’s superannuation entitlements in her share of assets.

77The husband argues that the proportion of the assets to be retained by the wife should apply equally to the superannuation assets. This would result in the superannuation assets being shared by the parties so that the husband would not be disadvantaged by receiving a lesser entitlement to the non-superannuation assets, simply because of his significant superannuation entitlements.

78Combining the superannuation and other assets the total value of the asset pool is $938,665. The husband’s entitlement of 38% equates with an amount of $356,693. If this entitlement was to include his superannuation entitlements of $106,530, this would reduce the husband’s non-superannuation assets to $250,162.70. The value of the husband’s superannuation represents approximately 30% of his share of the asset pool which the husband cannot use for many years to come. I do not consider such an outcome to produce a just and equitable result in the circumstances. I consider the just result is achieved by dividing the superannuation assets in the same proportions and the other assets.

Effect of orders

79On the basis of the wife receiving 62% of the non-superannuation assets and 62% of superannuation assets, the following result should be achieved.

Assets	Husband	Wife
Anticipated division of sale proceeds of [matrimonial] property to achieve a 62/38 division of the asset pool in the wife’s favour based on a selling price of $750,000 without allowance for any selling costs	236,157	513,843
Savings retained by husband on separation	56,024
Furniture	400
Furniture	2,000
[Motor vehicle]	1,000
Superannuation draw down	20,000
Total assets	315,181	514,243

Superannuation assets
Superannuation after proposed splitting orders to achieve 62/38 division of the parties’ total superannuation entitlements	41,512
Superannuation after proposed splitting orders	67,729
Total superannuation assets	41,512	67,729

80Because the [matrimonial] property will need to be sold before final entitlements can be determined, I intend to provide in the orders for the amount required to give the wife 62% of the non-superannuation assets, excluding the [matrimonial] property. The total value of these assets is $79,424. The necessary adjusting amount for the wife to receive 62% of these assets is $49,243 less the $400 in furniture she is retaining being the amount of $48,843.

81The wife seeks in her amended application that arrears of child support also be paid from the sale proceeds. I was not given evidence as to the current arrears, if any, and do not intend to make this order. In any event, other avenues should be available to the wife and/or the Child Support Agency to ensure any arrears of child support are collected at the time of settlement of the sale.

82Because no notice of the proposed superannuation splitting orders has been given to the Trustee of [his government superannuation scheme], I will delay pronouncing these orders until the appropriate notice has been given.

83The orders I propose to make, subject to any submissions as to form, are as follows:

1.The parties forthwith do all such acts and sign all documents necessary to sell the property situated at [the address of the matrimonial home ] in the State of Western Australia, more particularly described in Certificate of title Volume xxxx Folio xxx held in the joint names of the parties and sale proceeds be disbursed in the following manner:

(a)in payment of agent’s commission and reasonable expenses of sale;

(b)in payment to the wife of $48,843;

(b)in payment to the wife of 62% of the proceeds of sale then remaining;

(c)in payment of the balance to the husband.

2.In the event that either party refuses or neglects to execute a deed and/or an instrument in compliance with the provisions of order 1 above, then the Registrar of the Family Court of Western Australia be appointed to execute all deeds and/or instruments in the name of the husband or wife and do all acts and things to give validity to the deeds and/or instruments.

3.Unless otherwise ordered, any interest the wife may have in the following vest absolutely in the husband:

(a)the husband’s savings;

(b)the husband’s superannuation entitlements; and

(c)the husband’s motor vehicle.

4.Unless otherwise ordered, any interest the husband may have in the following vest absolutely in the wife:

(a)the wife’s savings; and

(b)the wife’s superannuation entitlements.

5.Except as otherwise specified in these orders:

(a)any interest of the wife in any property in the name of possession of, or under the control of, the husband vest in the wife;

(b)any interest of the husband in any property in the name or possession of, or under the control of, the wife vest in the husband.

6.Each party indemnify the other in respect of any liability that may arise in respect of any item of property that vests in that party pursuant to these orders.

7.The Trustee of [his government superannuation scheme] (hereinafter referred to as “[GSS]”) is bound by these orders and required to do all such acts and things and sign all such documents as may be required to give full effect to these orders, it being noted that the Trustee was accorded procedural fairness in relation to the making of this order.

8.The base amount allocated to the wife out of the superannuation interest held by the husband in [GSS] is $65,018.

9.In accordance with s90MT(1) of the Family Law Act 1975, whenever the Trustee of [GSS] makes a splittable payment out of the superannuation interest held by the husband in [GSS], the Trustee shall pay to the wife, or her legal personal representative, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there is a corresponding reduction in the entitlement the husband would have had but for this order.

10.Paragraph 7 of this order has effect from the operative time.

11.The solicitors for the wife shall serve a sealed copy of this order upon the Trustee within 7 days.

12.The operative time for the purpose of this order is four business days from the date of service upon the Trustee of a sealed copy of these orders.

13.The husband shall be and is hereby restrained by himself, his servants or agents from executing, and/or giving to the Trustee of [GSS] a binding death benefit nomination in favour of any person, or from doing any other act or thing, which would render any part of, or payment from, his superannuation interest in [GSS] a “not splittable payment” within the meaning of regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001 such as would defeat the wife’s entitlement pursuant to this order.

I certify that the preceding [83] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate