WARDEN & WARDEN

FAMILY COURT OF AUSTRALIA

WARDEN & WARDEN

[2011] FamCA 1029

FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

APPLICANT:

Mr Warden

RESPONDENT:

Ms Warden

FILE NUMBER:

MLC

4412

2010

DATE DELIVERED:

10 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

18, 19 January 2011, 31 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood

SOLICITOR FOR THE APPLICANT:

Stephen Farmer & Associates

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

Orders

That the husband and wife shall forthwith do all acts and sign all documents necessary to sell the property situated at B Street, C Town (“The C Town property”) through such agent, in such manner, on such terms and for such price as agreed between the parties, and failing agreement, to be determined by the President of the Real Estate Institute of Victoria or his nominee, and the proceeds of sale are to be applied:
(a)    First, in payment of all costs, commissions, and expenses of sale;
(b)    Secondly, to discharge the mortgage and any other encumbrance affecting the C Town property;
(c)    Thirdly, in payment of $29,500 into an interest bearing bank account in the parties’ joint names to be applied to the payment of Capital Gains Tax generated by the sale of the C Town property;
(d)    Fourthly, to repay the husband’s mother Ms D Warden so much of the $100,000 loan that is then outstanding;
(e)    Fifthly, the balance then remaining to be divided 60 per cent to the wife and 40 per cent to the husband.
That pending the completion of the sale of the C Town property the husband shall have the sole right to occupy the property and shall pay all instalments pursuant to the mortgage and any other encumbrance and all rates and taxes and like apportionable outgoings as they fall due, and shall keep the wife indemnified in relation to all such outgoings.
That at the expiration of 7 days after the final VCE examination of the parties’ daughter E born on… 1994 the husband and the wife shall do all acts and sign all documents necessary to sell the property situated at F Street, Suburb G (“the home”) through such agent, in such manner, on such terms and for such price as agreed between the parties, and failing agreement, to be determined by the President of the Real Estate Institute of Victoria or his nominee, and the proceeds of sale are to be applied:
(a)    First, in payment of all costs, commissions, and expenses of the sale;
(b)    Secondly, to discharge the mortgage and any other encumbrance affecting the home;
(c)    Thirdly, to re-pay the husband’s mother Ms D Warden so much of the $100,000 loan that is then outstanding;
(d)    Fourthly, the balance then remaining to be divided 60 per cent to the wife and 40 per cent to the husband, provided that the sum of $11,074 shall be with-held from the sum due to the wife and paid to the husband by way of adjustment of personal property.
That pending the completion of the sale of the home the wife shall have the sole right to occupy the home and shall pay all instalments pursuant to the mortgage and any other encumbrance and all rates and taxes and like apportionable outgoings as they fall due and shall keep the husband indemnified in relation to all such payments.

4A.That upon the Capital Gains Tax relating to the C Town property being assessed the parties sign all documents and do all things necessary to:
(a)Pay the amount assessed from the joint account established pursuant to paragraph 1(c);
(b)Pay any amount by which the assessed Capital Gains Tax exceeds the amount in the said joint account in the proportion of 60 per cent by the wife and 40 per cent by the husband; and
(c)Refund in the proportions of 60 per cent to the wife and 40 per cent to the husband any amount remaining in the said joint account after payment of the Capital Gains Tax.

That the wife shall, at a time agreed between the parties, make the following chattels available to the husband for his collection within 14 days:
(a)    Books brought to or accumulated during the marriage by the husband including but not limited to books in which his father’s name is inscribed;
(b)    Two silver tea sets;
(c)    Two paintings by a noted artist;
(d)    Crystal previously the property of the husband’s great aunt;
(e)    Personal birthday or Christmas gifts to the husband;
(f)     An old stock saddle; and
(g)    Lacquerware panels.
That pursuant to s 90MT(1)(a) of the Family Law Act1975, whenever a splittable payment becomes payable in respect of the superannuation interest of Mr Warden (“the husband”) in the H Superannuation (H Revised Scheme) (“the Fund”):
(a) Ms Warden (“the wife”) shall be entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2011 using the base amount of $268,520 (provided that such base amount shall not exceed the value of the interest determined under s 90MT(2)); and
(b) There be a corresponding reduction in the superannuation interests of the husband to whom the splittable payment would have been made but for the Order.
That the trustee of the Fund, the H Superannuation Board (“the Trustee”) shall do all such things and sign all such documents as may be necessary to:
(a) Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by paragraph 6 of this Order; and
(b) Pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the Fund.
That this order have effect from the operative time and the operative time is 4 business days after the service of the final sealed orders on the Trustee.
That, after service of the payment split notice pursuant to Regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary, including, but not limited to, exercising her request pursuant to Regulation 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the Fund to a fund of the wife’s choosing in accordance with Regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
That there be liberty to apply to each party and the trustee in relation to the implementation of the orders effecting the superannuation interest.
If, as a result of termination of his employment the husband becomes entitled to a benefit prior to the ESSB making a payment under s 59AC of the State Superannuation Act 1988, he shall provide to the ESSB all such forms as shall be necessary to enable the Trustee to determine the nature and quantum of the superannuation entitlement and any other related information it any reasonably require, within 7 days of that entitlement arising.
That until such time as the superannuation split to the wife pursuant to these orders can be rolled over into a separate account of the wife, the husband or his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these orders.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders each party shall be solely entitled to the exclusion of the other to all other property in the possession of such party or registered in the name of such party as at the date of these orders.
That all applications shall otherwise be dismissed and removed from the list of cases awaiting finalisation in the court.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
That in the event that either party proposes a costs application, they must notify my Associate and the other party within 21 days from this date.

IT IS NOTED

That it is agreed between the parties that in addition to the periodic amount that the husband is assessed to pay to the wife for the support of the children, E born … 1994 and J born … 1996 (“the children”), the husband will pay all books, tuition fees, fees for compulsory extra activities and all optional activities previously notified and approved by him in relation to the children’s attendance at I School or such other school as is agreed between the parties.
That the value of the transferable benefits from the husband’s interest in the Fund to the wife’s interest are calculated in accordance with Regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
That the trustee will be relieved of its obligations to calculate and split payments under paragraph 7 of these orders in the event that the transferable benefits are transferred to a fund of the wife’s choosing in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4412 of 2010

Mr Warden

Applicant

And

Ms Warden

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr and Ms Warden cannot agree on a property settlement after a marriage of just over 17 years.
There are four steps for me in a property case.
The first is to establish the parties’ assets and liabilities. By the end of this case they were largely agreed. There was still a dispute as to whether $100,000 advanced by Mr Warden’s mother was or was not a loan, how his potential inheritance from his mother should be treated, and whether estimated selling costs on a particular property should be taken into account.
The second step is to determine contributions.
It was agreed that when it comes to income, parenting, and home-making duties during the marriage, although the parties contributed in different ways, their contributions should be regarded as equal.
Otherwise, Mr Warden said that he contributed more, taking into account a property he owned at the start of the marriage, gifts from his aunt, and loans and other assistance from his mother. He said, if the $100,000 sum is repaid to his mother, contributions should be decided 52.5 per cent in his favour. If the $100,000 is not repaid, then contributions should be decided 57.5 per cent in his favour. He said that superannuation should be treated differently, on the basis of 60 per cent/40 per cent in his favour.
Ms Warden said that the parties brought in similar assets, taking into account a redundancy package and superannuation payout she received early in the marriage and a gift from her aunt, and that the husband’s superannuation entitlement at the time of the marriage was no greater than hers. In addition, she said she contributed to Mr Warden’s support while he obtained his LLB qualifications and, some matrimonial funds were used towards the purchase of assets that Mr Warden will effectively inherit from his mother. She wanted overall contributions treated as equal.
The third step is to consider s 75(2) of the Family Law Act and other factors in relation to each party’s respective position going into the future.
There was a dispute as to who will be looking after the parties’ two teenage daughters, and as to aspects of Mr Warden’s inheritance prospects, but it is clear that he earns a significantly higher income than Ms Warden. His position was that Ms Warden should receive an increment of 5 per cent to 7.5 per cent in relation to the existing assets (again depending how the $100,000 loan is treated), and that the superannuation should be split now, in the growth phase, 60 per cent/40 per cent in his favour.
Ms Warden’s position had various iterations and was at times unclear. Ultimately, her primary position was that she should receive most of the existing assets, with the parties retaining their respective superannuation entitlements. Alternatively, she should retain 62.5 per cent of the existing assets (that is, a 12.5 per cent adjustment in her favour), plus 50 per cent of the superannuation with the split deferred to the payment phase, or 62.5 per cent of the superannuation if split in the growth phase.
The fourth step, to ensure a just and equitable result between the parties, is largely where the issue lies in this case.
Ms Warden’s desire was to retain most of the existing assets, in order to retain the former matrimonial home.
Mr Warden’s position was that, as it is likely to be many years before the parties are likely to retire, both the former matrimonial home and their holiday home need to be sold, the net proceeds (after payment of expenses, mortgages, the loan to his mother, and CGT) distributed, and the parties’ superannuation split now, so that each party can re-establish themselves in housing and go forward with a clean break.
The case was adjourned part-heard when the final submissions started. There was inadequate evidence as to the projected value to the wife of a part of Mr Warden’s superannuation rolled into her accumulation fund, compared with the projected value to the husband of the share retained by him in his defined benefit scheme. She also required expert evidence as to the effect of a split in the payment phase, as opposed to the growth phase of his fund. And, her solicitor had not given the required notice to the trustee of the husband’s fund as to the splitting orders that would be sought at least by way of what was then stated as her alternative position.
It was unfortunate that the evidence had not been available earlier, when it should have been. I shall return to the detail of the evidence below. Questions of costs will need to be dealt with in due course.

BACKGROUND

The husband is Mr Warden. He is aged 48. He is employed as a public servant, on a package of $181,000 per annum. The wife, Ms Warden, is aged 49 and is also employed as a public servant, and earning $73,000 per annum plus 9 per cent superannuation.
The parties married in 1992 and separated in September 2009.
Their children, E born in 1994 and aged 17, and J born in 1996 and aged 14, currently live with their mother nine nights per fortnight, and with their father on five nights per fortnight. For a period of some months last year, J lived with her father. Both girls attend I School, where E is in her final VCE year.
Mr Warden has agreed to pay the girls’ school fees, together with the “extras” on the school bills, books, and extra-curricula activities agreed in advance. The parties have provided a Minute of that agreement. It shall be annexed as a Notation to the final orders.

MATERIAL RELIED UPON

The husband initially relied upon the following documents:
·His Initiating Application filed 14 May 2010
·His affidavit sworn 25 November 2010
·His financial statement sworn 25 November 2010
·The affidavit of his mother Ms D Warden sworn 25 November 2010
·The affidavit of his sister Ms K sworn 24 November 2010
·The affidavit of valuer Mr L sworn 23 November 2010
·H Super Form 6 as at 19 November 2010
·H Super Form 6 as at 18 November 2009
·H Super Form 6 as at 1 February 1992.
Mr L was not required for cross-examination as the valuation issue was agreed.
The wife initially relied upon the following documents:
·Her response filed 18 June 2010
·Her financial statements filed 18 June 2010 and 25 November 2010
·Her affidavit filed 25 November 2010
·The affidavit of valuer Mr M filed 7 December 2010.
Mr M was not required.
When the case was adjourned part-heard, two further affidavits were filed on behalf of Ms Warden:
·The affidavit of Ms N filed 21 March 2011, as to the value of the husband’s superannuation.
·The affidavit of Mr O, filed 22 March 2011, as to the notice to the relevant Fund trustee, and responses.
Ms N was called for cross-examination.
Mr Warden then relied upon an additional affidavit by Mr P (Exhibit H7) as to the employee and employer contributions to his superannuation scheme.

THE ASSETS AND LIABILITIES

There had been a dispute about chattels, but it was resolved in the course of the hearing. The parties’ Consent Orders will be included in the final orders.
There had been an issue about a sum of $20,000, withdrawn by Ms Warden from joint funds post-separation. After the evidence, it was agreed that a sum of $9,268 should be added back, being joint monies already received by the wife and used by her towards her own legal fees.
Otherwise, most of the assets and liabilities were agreed but I need to resolve the following:
·Whether a $100,000 sum advanced by Mr Warden’s mother needs to be repaid to her
·Whether estimated selling costs of the C Town holiday home should be recognised as a liability in the pool
·Whether the husband’s potential inheritance from his mother should be part of the pool.

The $100,000 sum from the husband’s mother

Mr Warden is one of four children.
One son, Mr Q, has been estranged from the family since 2007, when he took legal proceedings against his mother, claiming an interest in a farm property that she had sold. The case was settled. He received a sum of $200,000 and an adjoining farm property from Ms D Warden. In the course of those legal proceedings, Mr Q made statements to the effect that he would contest her will.
There is another son, Mr R. Ms D Warden has made specific arrangements for his continuing involvement in another farm property.
Against that backdrop, she entered certain arrangements with her remaining two children, being the husband, and his sister Ms K, with a view to dealing equally with all of the children.
First, when she sold the farm in 2007, she made available a sum of $100,000 to the husband and wife in this case, and the same amount to Mrs K and her husband. Ms D Warden said that she decided that rather than invest the money in an interest-bearing deposit, she would make a loan to each couple, who in turn agreed to pay her interest of 5 per cent per annum, the rate she could have earned if the money were invested elsewhere. She was comfortable with that, because it would benefit each couple who were otherwise paying about 7 per cent on their respective mortgages. She swore that she was not giving them the money, and it was fully understood that if she needed or requested the money then it would be repaid.
Mr Warden and his sister support that account. Ms Warden agreed, except her initial evidence was that the capital was never expected to be repaid.
As is common when it comes to families, the position is not as clear-cut or straightforward as in an arms-length and well-documented commercial transaction. I am satisfied however that this arrangement, entered in the later stage of the marriage, was more probably as recounted by Mr Warden, his sister and mother.
The fact is that Ms D Warden has at all times received the annual interest of 5 per cent from her son and daughter. That counters against an intention of an outright gift. It supports Ms D Warden’s continuing proprietorship of the capital. Ms Warden ultimately conceded that even if the money is not repaid to Ms D Warden after this case, Mr Warden will have to keep paying the 5 per cent interest.
I found Mr Warden to be a forthright witness. He readily conceded that if his mother is repaid the $100,000, the likelihood is that she shall make it available to him again, on the same terms. That is something that I would take into account when considering the s 75(2) factors and the financial resources available to the husband.

Ms Warden’s sadness at the breakdown of the marriage was nowhere more apparent than on this topic. She had been very close to Ms D Warden. Much of her perspective on the property settlement was clouded by her palpable heartache that, as she saw things, the end of the marriage was brought about by the husband’s relationship with her closest friend. She clearly felt sad that she had lost her marriage, the future that she looked forward to, and in addition, her relationship with her mother-in-law.
Ultimately, Ms Warden effectively conceded that it would be unfair if she were to receive a percentage of that $100,000 sum. She conceded that it was essentially an advance on the husband’s inheritance that would be taken back by his mother if needed. And she conceded that whatever percentage of the parties’ assets she would retain, if the $100,000 remained part of the pool, she would be receiving that percentage of this part of the husband’s inheritance.
I am satisfied that Ms D Warden’s loan of $100,000 should be repaid to her from the parties’ assets.

The selling costs of the C Town property

Mr Warden said that the parties’ holiday home at C Town will need to be sold. His case was that it will be essential to enable both parties to be re-housed.
Ms Warden said Mr Warden should retain that property, although soon after separation, she was critical of him for refusing to sell it. She had gone so far as to claim he had “wasted” the asset. Her criticism appears to have been unwarranted.
Mr Warden’s account was that he had not wanted to sell, as he thought there was very little equity in the property. Later, when they obtained the valuation, it appeared that the equity could be between $150,000-186,500 (depending on how another particular loan is treated – I shall return to that). He then took the view that the property had to be sold, for the equity to be released. His account of that history was not undermined in any way.
The parties agreed that a sum of $29,500, being the estimated capital gains tax on the C Town property, should be included in the pool as a liability. Although Ms Warden did not agree that selling expenses should be taken into account, as a matter of logic, like the CGT, they should be. The husband’s estimate of $20,000 was not disputed. It strikes me as a reasonable sum to include as an inevitable and imminent liability.

The husband’s inheritance

At around the time of the litigation between Mr Warden’s brother Mr Q and his mother, in 2007, Ms D Warden took further steps to protect her assets.
She transferred her home at S Street, Suburb T into the names of Mr Warden and his sister Mrs K as tenants in common, with a Declaration of Trust that they hold it on trust for her. The home is valued at $1,550,000. I accept that the Trust was established to protect the mother’s home against a potential claim as threatened by their brother Mr Q.
On 9 April 2007, she also created the Ms D Warden Trust. Mr Warden, Ms D Warden and Mrs K are the trustees of that Trust. Ms D Warden is the income beneficiary, and Mr Warden and Mrs K are the capital beneficiaries. The assets of the Trust are a $300,000 mortgage, a term deposit of $201,000 with Rural Bank, and an ANZ cash management account of $20,000. That is a total of $530,000-odd, in addition to the $200,000 that I have found was advanced to the husband and his sister by way of loan.
Counsel for Ms Warden opened the case on the basis of Mr Warden’s “family entitlements” being viewed as a “third pool of assets”, that is, in addition to the parties’ “hard assets” and their superannuation. Ultimately, he had to concede that neither Ms D Warden’s home, nor the assets of the Ms D Warden Trust, are assets of the parties.
The wife’s case then changed, with an assertion by counsel on her behalf that Mr Warden “controls” the Trusts, although it was acknowledged that he “may have a moral obligation to support his mother from those trusts if she needs the money…”
The fact that Ms D Warden struggled in some of her explanations of the Trust structure, or that Mr Warden’s sister was not fully across the detail, could not lead me to conclude that Mr Warden therefore “controls” the Trusts. Instead, I find that he is a trusted and dutiful son, with legal training, upon whom his mother and sister have depended to put in place a structure protective of the mother’s assets. He looks after things by way of assistance to his mother.
I am satisfied that Ms D Warden’s home and Trust assets cannot be included in the pool, either as assets of the parties or as assets controlled by Mr Warden. I am satisfied that steps have been taken to protect Ms D Warden’s assets from the brother, but structured carefully so that she controls the use of the assets during her lifetime.
However, no-one pretended other than a specific intention for Mr Warden and Mrs K to ultimately benefit from their mother’s estate. That is a relevant s 75(2) consideration. I shall return to it, together with further detail, as relevant, as to the structure of legal and beneficial interests in the assets.

The Assets and Liabilities

The value of the parties’ assets and liabilities was otherwise mostly agreed. I note that by the end of the evidence I was none the wiser if the mortgage on the former matrimonial home was $123,129 (as claimed by Mr Warden) or $126,000 (as claimed by Ms Warden). It is a small difference, and doing the best I can, I propose treating the mortgage as between those two figures. The small difference does not warrant re-opening the evidence, and has little effect on the outcome.
Otherwise there was some conjecture as to how a $36,000 line-of-credit secured over the former matrimonial home should be treated, in that it was used for the purchase of the C Town property. For current purposes, it should be reflected accurately as a liability over the former matrimonial home. How best to deal with it shall be determined below.

The Assets

The former matrimonial home $1,150,000

The C Town property $ 520,000

The wife’s shares $ 5,278

The husband’s shares $ 3,240

The wife’s motor vehicle $ 18,000

The wife’s legal fees added back $ 9,268

Total Assets $1,705,786

Liabilities

Mortgage on the former matrimonial home $124,500

Line-of-credit secured on the former matrimonial home $ 36,000

Re-payment to the husband’s mother $100,000

Mortgage on the C Town property $333,500

Estimated CGT on the C Town property $ 29,500

Estimated selling costs on the C Town property $ 20,000

Total Liabilities $643,500

Total Net Assets $1,062,286

Superannuation

The wife’s HESTA superannuation $ 77,454

The husband’s ESSS superannuation $614,494

Total Superannuation $691,948

CONTRIBUTIONS

Mr Warden said that contributions to assets, other than superannuation, should be regarded as 52.5 per cent in his favour. Ms Warden said they should be regarded as equal.
They both agreed that their non-financial and other contributions to family life were equal. The main dispute related to assets brought into the marriage.
Mr Warden said he brought into the relationship a property from which, within a year of their marriage, he received sale proceeds of $35,000. That sum was then used towards the purchase of the parties’ first home for $159,000. He said that he also brought in nearly $20,000 in gifts from his aunt, and that his mother was generous to them. She made a $10,000 advance that enabled the parties to purchase their home, although they did repay that loan. He referred to his mother’s generosity too in paying for a number of family holidays, and then again via the favourable interest rate at which they were able to have the use of the $100,000 sum towards the home mortgage.
As to superannuation, Mr Warden’s case was that contributions should be considered on a 60 per cent/40 per cent basis in his favour, taking into account that he contributed to his fund for 10 years prior to marriage, and the estimated value when the marriage started was about $50,000.
Ms Warden did not disagree with Mr Warden’s account of what he brought into the marriage. She said though that she brought in a comparable amount. When she gave up her public service career in 1997, at around the time of J’s birth, she received about $45,000, being $32,000 in redundancy pay, and $13,000 in superannuation that was rolled into her current HESTA fund. It seems she also received about $2,500 by way of leave entitlement.
Otherwise, she said that during the marriage she received $5,000 from her aunt, and she helped support the husband for 12 months while he finished his LLB studies and was an Articled Clerk. She pointed to joint monies expended on Ms D Warden’s assets, being $20,000 for stamp duty on her S Street home, (the wife had claimed $30,000, but later conceded it was $20,000), and Mr Warden’s share of land tax on the property, he and his sister having paid $2,900 each per year, between 2007 and separation in 2009. And, she said that any trips paid for by Ms D Warden were of mutual benefit. They enabled Ms D Warden to have the company of the family on holiday.
As to superannuation, Ms Warden said the parties started in the public service at the same time, and at the time of their marriage, she had approximately the same years of service and entitlements as the husband, although she was on a slightly lower level of pay. After she left the public service, Mr Warden was able to stay in his defined benefit fund, whereas when she returned to work, she could only be in an accumulation fund, to her disadvantage.
There was an issue in relation to some payments after separation. Mr Warden said that he should be credited for payments he made on the mortgage on the former matrimonial home for a period after separation, and also that he had paid and would continue to pay substantial school fees for the children.
Ms Warden said that any financial contributions by the husband after separation had been and would be matched by her contributions to the care of the girls.
I am satisfied that the husband’s payments towards the home and the school fees, after separation, simply reflected the disparity in the parties’ income, and did not constitute an additional contribution on his part. As to his future payments for school fees, they will be taken into account as a s 75(2) factor below.
Counsel for Ms Warden submitted that “about two-thirds” of Ms Warden’s redundancy package related to her working life before the marriage. A redundancy payment is really a prospective payment, effectively a compensation for future earnings rather than a compensation for the past. Although calculated according to years of service, to refer to two-thirds of it as if it were a pre-marriage contribution, does not reflect its true form.
Although Ms Warden claimed separately that she helped support the husband as he finished his degree and undertook his Articles, it was in fact from that same sum of money. It cannot be counted twice. In any event, he was still earning, but at a modest rate for the Articles year. She had stopped work. Her redundancy monies, like his salary, were used for family purposes, as part of the “consolidated revenue” of funds. It is fair to conclude that both parties were earning, or looking after the children, or a combination of both, throughout the marriage.
In considering the monies brought in by Mr Warden at the start of the marriage, and the capacity they provided for the parties to purchase their home, it is not possible, after the passage of years, to say they should be reflected somehow dollar for dollar, or traced in a precise and linear manner.
I am satisfied though that contributions to non-superannuation assets should be regarded as 52.5 per cent/47.5 per cent in Mr Warden’s favour. The property sold by him early in the marriage was the platform upon which the parties’ property purchase was built. Their capacity to purchase the home was also enhanced by being able to borrow monies short-term from his mother. Although Mr Warden also received a higher amount in family gifts and assistance, I regard that as balanced by the fact that in the latter part of the marriage, the parties’ joint family monies were used towards stamp duty and the land tax payments in relation to Ms D Warden’s property.
I turn then to the question of contributions and superannuation. Although Ms Warden said that her superannuation entitlement was about equal to the husband’s at the start of the marriage, it is difficult to calculate. It seems she joined the public service at around the same time as him, and mostly worked at a similar level. Mr Warden’s superannuation was valued at about $50,000 at the time of the marriage. There was no evidence of the value of Ms Warden’s fund at that point. What is known is that she rolled-over $13,000 into an accumulation fund some five years later, at the time she took the redundancy package. That does not help me determine its value at the date of the marriage. I have no evidence about penalties for taking it early. In the absence of precise evidence, I proceed on the basis that, given their similar years of service and earnings, it is likely that the parties’ superannuation interests were similar at the start of the marriage.
It was argued for Ms Warden that I should take into account that she had to roll her superannuation pay-out into an accumulation fund, whereas Mr Warden was able to retain the benefits of a defined benefit fund. That is something I am also asked to take into account in terms of the s 75(2) factors, and again in arriving at a just and equitable arrangement between the parties. I cannot count it three times. I do not propose taking that into account for the purposes of contributions, but I shall return to it as relevant below.
Both parties have continued to contribute to their superannuation funds since separation. The contribution to Mr Warden’s fund is $35,859 per year, nearly $13,500 contributed by him, the balance by his employer. Since separation, about $53,000 has been contributed to his fund. Ms Warden’s employer contributes 9 per cent of her salary to superannuation, so about $10,000 has been contributed since separation.
Mr Warden earns more than Ms Warden, a factor that must fairly be taken into account when it comes to an adjustment in her favour for s 75(2) factors. It is equally fair to take it into account his higher contribution to superannuation since separation. Doing the best that I can, I propose an adjustment in Mr Warden’s favour of 52.5 per cent/47.5 per cent.

THE SECTION 75(2) AND OTHER FACTORS

Ms Warden’s primary position has always been that she wants to retain the home. How that could be achieved, applying proper legal principles, including justice and equity to Mr Warden, was not articulated in a clear or consistent manner. It changed throughout the case. And when it came to the s 75(2) and other factors, it was hard to establish a clear submission as to how they should be treated, rather than a continuing emphasis on the “result” that was sought.
In her Case Outline, in addition to some other small items, including shares and her car, Ms Warden sought to keep the home, with the mortgage paid out by the husband. That is, effectively more than the available assets. She also sought her superannuation.
In opening, counsel for the wife sought 62.5 per cent of the “hard assets”, with an additional “notional amount” from the hard assets, equivalent to 50 per cent of the parties’ superannuation. In combination, it meant she would retain close to all of the existing assets.
In cross-examination, Ms Warden conceded that although she wanted to retain the home without debts, “it’s not going to happen”. She said she could pay out the home mortgage and pay Mr Warden $35,000-odd. He could retain the holiday home. That still meant that she would retain more than 95 per cent of the existing assets.
After the evidence, counsel stated Ms Warden’s primary position, that she should take the hard assets, and each party should retain their own superannuation. Counsel also put an alternative position, for Ms Warden to retain the home, her superannuation and the other small items, for Mr Warden to retain C Town and his shares, and for a 50 per cent split of his superannuation in her favour, specifically in the payment rather than the growth phase of the fund. That is when the adjournment was needed to obtain more evidence about the superannuation fund and to give the necessary notice to the fund’s trustee.
Although in his written submissions counsel for the wife argued similarly to the primary and alternative positions put at the end of the evidence, he added another option, that in the event the superannuation would be split in the growth phase, the wife’s percentage should be truly reflective of adjustments made for contributions and future needs (so she should receive 62.5 per cent of the superannuation).
In oral submissions, the wife’s case changed again. Counsel said then that the wife’s primary position was to retain the home and her superannuation and the other small items (excluding her shares), for Mr Warden to retain C Town, his and her shares, and superannuation and, and for Ms Warden to pay him the sum of $43,119. That would still mean, although it was not spelt out by counsel, that Ms Warden would retain more than 95 per cent of the existing assets.
Counsel also conceded that if the wife were to receive a superannuation split in the payment phase, it should be “less than 50 per cent”, as Mr Warden would have contributed to his fund for another 10 to 11 years, and she would have her own fund. In fact, if he works until 65, he shall contribute to his fund for another 17 years.
Counsel for the wife said the adjustment to her on the s 75(2) factors should be 12.5 per cent. Although he framed the orders he was seeking for the wife in terms of her retaining the equivalent of 62.5 per cent of hard assets and 50 per cent of both funds, he had to concede that in reality it meant that Ms Warden would retain, on his reckoning, 85.4 per cent of existing assets. As noted, on the asset pool as determined, it is in fact almost all the existing assets, at over 95 per cent. So Mr Warden would retain less than 5 per cent.
For Mr Warden’s part, he conceded that Ms Warden is entitled to more than him on the basis of the s 75(2) factors. His case was that there should be a 7.5 per cent adjustment in her favour.
Mr Warden wanted both properties sold, and the proceeds divided between the parties, so that each could re-house themselves. He also proposed the 60 per cent/40 per cent split of the superannuation funds in his favour, in the growth phase. The essence of his case was that at the parties’ ages, retirement is still well into the future. Each needs the security and dignity of housing now, as well as the assurance of superannuation for the future.
There is an obvious disparity in the parties’ respective earnings and income-earning capacity.
Ms Warden gave up full-time public service employment after the birth of the parties’ second daughter, but continued to work part-time during the children’s younger years, mainly in her own business. From about 2007, she worked full-time in a suburban business. In 2009 she moved to her current position, where earning about $73,000 plus 9 per cent superannuation per annum (a package of about $80,000).
Mr Warden, in the meantime, was promoted through the public service, so he now has a salary package of about $180,000 per annum. Of his salary package, just under $36,000 relates to the superannuation contribution.
Leading up to the last State election, Mr Warden said that his job was uncertain, but in the absence of any other evidence, I am satisfied that it is probable that he is secure, given 30 years of service, a responsible position, and no indication that he is without a job. In any event, at only 48, he is relatively young, and with his legal qualification and administrative background, he is likely to have career opportunities. If he stays in the public service, his earliest retirement age under his superannuation fund is 58. There was no evidence to suggest he would retire before 65. Ms Warden is 49. There was also no evidence as to her proposal for early retirement.

The parties’ teenage girls both have mental health issues, something both parents must contend with in their care of them. The girls currently live nine nights each fortnight with their mother, and five nights with their father. Ms Warden claimed that she will have the primary responsibility for them. Mr Warden said that was far from certain, and that it may well change. He pointed to a period last year when J spent some months with him. That does show a degree of uncertainty, but the history reflects a higher probability that they will continue in the present pattern, spending more time with their mother, but still substantial time with their father.
On a day-to-day basis, Ms Warden currently has the greater financial responsibility for the girls. Mr Warden however pays child support of just over $13,500 per year. He has also agreed to pay for all private school fees, books, compulsory extra activities, and all optional activities previously notified to and approved by him in relation to the girls’ attendance at I School, or such other school as agreed between the parents. The school tuition fees alone are currently about $24,000 per year in total for both girls. Those fees reflect that E is on a 50 per cent scholarship. J is not.
Although J has been unsettled, the evidence did not persuade me that she will be at other than a private school for the balance of her schooling. Her father was complimentary about I School. Her mother’s concern that he might change J to a government school did not appear to be well-founded.
Although E will finish school at the end of this year, she proposes to live at university next year. How those expenses are to be met was not discussed as part of this case, but it is clear that although E turns 18 next year, her expenses will continue. It is likely that her parents shall continue to support her, and it is likely that substantial university and/or residential college fees shall continue to be met more by Mr Warden than Ms Warden, if not entirely by him.
I must also take into account the disparity in the parties’ future resources. I have already rejected Ms Warden’s initial assertion that Mr Warden’s mother’s assets should be included as a specific pool of assets to be retained by Mr Warden, as well as her later assertion that the mother’s assets are fully controlled by Mr Warden. I am satisfied though that upon Ms D Warden’s passing, Mr Warden and his sister shall inherit her estate. The estate planning that Ms D Warden has put in place is specifically designed towards that end.
The uncertainty is as to the assets that may or may not be available at that point, and of course when that point may be. I am left in no doubt that in addition to Mr Warden’s strongly felt moral obligation to maintain assets for and to support his mother during her life, he has in any event a legal obligation to do so.
Although Ms D Warden’s S Street property is in the name of the husband and his sister, the Declaration of Trust is carefully worded in Clause 5 to read:
The trustee must on request by the beneficiary execute and deliver any transfer, proxy, direction or other instrument relating to the asset as the beneficiary requires.
The intent for Ms D Warden, as the beneficiary, to be able to deal with the property, is clear.
As to the Ms D Warden Trust, Ms D Warden is the income beneficiary.
Ms D Warden is 86, and although hard of hearing, is still living independently. She said she is in reasonably good health and that she proposes enjoying her assets in whatever way that she chooses, in particular, if the need arises, by spending a considerable sum to live in a comfortable and refined nursing home or retirement village. Although she swore in her affidavit, and repeated in evidence, that she “might buy a racehorse”, that struck me mostly as a feisty reminder from her that while she is alive, it is her money, and she shall decide how it is to be spent.
I am satisfied that whatever monies are needed for Ms D Warden’s thorough and comfortable care, shall be spent. In the sad circumstances of her dying shortly, Mr Warden is likely to inherit just over $1 million. At 86, Ms D Warden could however live for quite some time, and could require substantial funds by way of a bond and/or recurrent payments if she needs long-term nursing home care.
The conclusion is clear however that of the two parties, Mr Warden is the one with the prospect of an inheritance. When, and for how much, is unclear.
It is also likely that Mr Warden shall again be able to borrow $100,000 at a favourable interest rate from his mother. He was quite open about that expectation. Between that, and his higher income than the wife, he has the greater borrowing capacity, when it comes to re-housing. That however must be balanced against the fact that of his gross salary, as well as some being contributed to superannuation as set out above, for the next few years, a very substantial after-tax sum will be required for school fees and extra-curricula expenses, in addition to child support.
Ms Warden said there are limits to what she can raise by way of a loan. Although she said her bank has offered her $300,000, she claimed that she can only service a loan of $200,000.
Ms Warden continues to live in the former matrimonial home. Pending the property settlement, Mr Warden has been living in a one bedroom “granny flat” on his mother’s property. He is keen to live independently again. He needs proper accommodation for himself and his daughters. It is appropriate for him to be in a position to achieve that. He needs some capital.
He is in a relationship with a woman who has recently settled her own property dispute and has purchased a home. He says there are no specific plans to move in together. It is possible that they will in the future, but if they do live together, he will need to contribute financially. I can note that of the two parties, Mr Warden is more likely to have the benefit of a shared living arrangement, but in light of the uncertainty about it, that factor cannot have too much weight attached to it.
Ms Warden is desperately keen to retain the home. She claimed she could not find a three-bedroom unit or property in a comparable area for under $900,000, and if she has to purchase a property, she will naturally face the expense of changeover costs. There was no expert evidence about that.
Save that I can take into account that if the home is sold, the wife, (like the husband), will face the expense of purchasing a property, I cannot attach significant weight to the figures asserted by her.
Although Mr Warden’s position is that the home needs to be sold so that each party can re-house themselves and move into the future with dignity, he agreed any sale should be delayed until E finishes her VCE year. That delay is a continuing benefit to Ms Warden, who by then shall have had the use of the asset for more than two years’ after separation, although she will be meeting its expenses until it is sold and settled.
There should be an adjustment in Ms Warden’s favour. She has substantially lower income than Mr Warden. She has a lower income-earning capacity, given her years out of the public service and mainstream employment. She does not have the prospect of a future inheritance, like Mr Warden. She is likely to have more of the primary care of the children. Mr Warden is likely to have a higher borrowing capacity than Ms Warden, although I did not hear any precise evidence as to funds that might be made available to him, other than that his mother will most likely re-loan the sum of $100,000 at the same favourable interest rate of 5 per cent. And he may have the option of moving in with a partner.
Balanced against all of that, the children are aged 17 and 14. They spend more than a third of each fortnight with their father, and holiday time. He pays appropriate child support as well as taking on the considerable expense of private school and other fees for a short time for E and longer for J. The parties seem to share aspirations for the girls’ higher education and both seemed to accept E is likely to live in at college next year. There was no evidence as to how that would be supported. Given the disparity in the parties’ earnings, just as with the private school fees, it is likely the burden will fall mostly, if not entirely on Mr Warden. His inheritance prospects are uncertain, both in terms of what money shall remain available after his mother’s passing, and also as to the timing.
I conclude that, when it comes to existing assets, there should be an adjustment of 12.5 per cent in Ms Warden’s favour. The husband’s proposal of 7.5 per cent was not in itself unreasonable, but I must consider it in terms of its monetary value, and am satisfied that 12.5 per cent of the pool creates a differential between the parties of more than $250,000. That meaningfully addresses the disparities between the parties.
Taking into account the adjustment for contributions proposed above, Ms Warden would receive 60 per cent of the existing assets.
I turn then to the impact of the s 75(2) and other factors on the parties’ superannuation interests.
Ms Warden’s superannuation, in an accumulation fund, is valued at $77,454. Mr Warden’s defined benefit fund is valued at $614,494. Counsel for the wife had Mr Warden’s superannuation valued slightly higher, but he failed to take into account the surcharge.
I have already noted Ms Warden’s various alternative proposals as to how to treat the parties’ superannuation. Mr Warden’s position is that there should be an immediate split of his fund on the basis of 40 per cent to the wife of the aggregate of the two funds, that is $276,779, less the amount in her fund to be retained by her, so that she would have a sum of $199,325 rolled into her fund.
The major issue in terms of any adjustment to his superannuation is the difference in what each party can achieve by way of their eventual superannuation entitlements, and whether any splitting by way of adjustment to the wife should take place in the growth or the payment phase of the husband’s fund.
As to the projected value of their respective superannuation funds, the wife’s expert, Ms N, filed two affidavits and was cross-examined. Her first affidavit contained her report, the second one, her report with modifications arising from comments supplied by the husband’s lawyers.
She calculated the value of the parties’ respective funds according to different retirement ages (55, 60 and 65), different percentage splits (50/50 or 40/60 in the husband’s favour), and taking into account various salary levels at the time of the husband’s retirement (on his current salary or at a promoted level).
Ms N concluded her second report saying that in the event that Mr Warden’s superannuation was split 50 per cent now to the wife, the value of his superannuation at a retirement age of 60, with promotions, would be $1,114,553. Ms Warden would receive $773,708, or a total of $855,000 when combined with her own HESTA fund. That calculation appeared to support Mr Sweeney’s original assertion that the superannuation monies in the husband’s fund would be worth considerably more to him, than the monies held in the wife’s fund would be worth to her. The report also suggested that a split in the payment phase would provide a closer result between the parties.
In cross-examination, it became clear that with the variables involved, that assessment provided only one possibility.
Ms N emphasised that an increase in Mr Warden’s remuneration would have the greatest effect on the final benefit, so that much of the valuation would depend on whether or not he progressed further in his public service ranking. She conceded that for the purpose of her calculations she had chosen an increased salary point (the mid-point of the EO2 rankings) but it was “just a point”. She said that “a split now and split later” would be “much closer” if Mr Warden’s salary does not increase to that level.
Ms N pointed out that, without any salary increase for Mr Warden, if a 50 per cent split of the funds were made now, at age 55, in fact it would be the wife who would be better off. Mr Warden would receive just under $550,000, Ms Warden $620,000. In oral evidence, Ms N agreed to various adjustments that would reduce that gap, but would still see the wife $30,000 better off than the husband. Even at age 60, she would be marginally better off. I note there was no evidence of a current intention for that early retirement.
There were also other smaller variations that Ms N had not taken into account. She had allowed only a 6 per cent return in assessing Ms Warden’s invested superannuation funds, significantly lower than the more than 10 per cent return she has received with her interest being held in a part of the fund attracting more aggressive rates of return. Ms N conceded that if a mid point of 8 per cent were used, depending on timing, it would change the equation. She said that at 55, on a 50 per cent split, it may make a $20,000 to $30,000 difference in the wife’s favour.
Ms N also conceded that her calculations were based on a split in the husband’s fund, but she had not calculated the effect of Ms Warden’s own superannuation fund being treated 50/50, in line with the husband’s. She said the mathematical difference was probably about $35,000 in Ms Warden’s favour.
Ms N also conceded that she had not factored in the possibility of the wife herself going up the corporate ladder. She said however that would make only a small difference. At 9 per cent of her salary, the present level of contribution to her fund is presently $6,400 per annum. If her salary rose by $10,000, it would be an increase of $900 by way of annual superannuation contributions.
Ms N pointed out that the way the H fund works, if the husband retired at 54 years and 11 months, he would be significantly better off than if he retired at aged 55. However, that does not take into account the vagaries of whether or not he would thereafter be employed and earning income, or in any other way building up superannuation. And, again, the evidence showed no current intention to retire then, or before the age of sixty-five.
Otherwise, Ms N discussed the range of six options as to how Mr Warden’s superannuation can ultimately be taken. Each would produce a different outcome, depending on when and how a split is made.
Counsel for the wife argued that any superannuation split should be done in the payment phase, rather than the growth phase. He relied on the decision of Young J in BAR & JMR (2005) FLC 93-231. Counsel emphasised the uncertainty of Mr Warden’s retirement date, any promotion or salary increase, that he will “presumably” reach his maximum multiplier after 30 years of service in three years or so, that the wife would not share in the increased multiplier if the split occurs in the growth phase, and that his eligible termination benefit is different from the valuation under the regulations.
Counsel for the husband submitted that this case can be distinguished from the single judge’s decision in BAR & JMR. In that case the husband could retire at 50 and was aged 51. In this case Mr Warden cannot retire and access his superannuation for some years. In that case, the husband had stopped making payments before the case. In this case, Mr Warden will be making very substantial payments for a period well into the future. Indeed it could be for a period as long again as the marriage. And, if the parties work until 65, he will contribute more than another $600,000. Even at 60, he will have contributed another $430,000. By 55, it would be more than $250,000. And, in this case, the evidence is that the husband’s salary is the most important consideration, rather than the multiplier.
In any event, the trustee has made it clear that it requires a “clean break” and would need to be heard if it were proposed to split the superannuation in the payment phase. Counsel for the wife did not suggest that further notice should be given to the trustee, to attend at court, and did not adequately answer the trustee’s requirement for a clean break.
I am satisfied that the trustee’s requirement in this regard accords with the justice and equity of the situation, given the parties’ ages and what is likely to be a substantial period before Mr Warden has access to his superannuation. If he works until 65, that is 17 years’ from now, it is more or less the same period again as the marriage. As the parties’ lives are now separate, and Mr Warden makes a substantial contribution towards his fund, it is fairer for a split to be made now.
Again, it is hard to be precise or formulaic as to the correct adjustment to the wife. It should recognise the history that has led to the disparity between the parties’ superannuation prospects. What cannot be overlooked, under s 75(2)(o), is that Ms Warden gave up the advantages of her defined benefit fund when she stopped work to care for the children. It should also take into account the vagaries of their future careers including the uncertainty of future promotions.
I propose a 2.5 per cent adjustment in Ms Warden’s favour for a split now, to achieve a clean break. Mr Warden can then retain the advantage of his defined benefit fund (subject of course to his debt account), built up over a long period of substantial contributions, while the history and the fact that Ms Warden’s fund cannot build in the same way is recognised. Taking into account the contributions to superannuation of 52.5 per cent/47.5 per cent in the husband’s favour, with this adjustment, the wife would be entitled to a split of a sum equivalent to 50 per cent of the funds.

A JUST AND EQUITABLE PROPERTY SETTLEMENT

On the basis of contributions and s 75(2) and other factors, Ms Warden would be entitled to 60 per cent of the existing assets ($637,731), and Mr Warden to 40 per cent of them ($424,914). She would also be entitled to 50 per cent of the combined superannuation funds, being $345,974, less the sum she shall retain in her own fund, a total split of $268,520.
To achieve justice and equity between the parties, the court must consider the overall result of the above calculations. Precise arithmetical calculations and percentages must give way to justice and equity. And the structure of orders must be designed towards the same end.
I am satisfied that Ms Warden’s aspiration to retain the former matrimonial home cannot be achieved. On any view, she cannot afford to borrow enough to pay out Mr Warden’s share of the existing assets. She cannot support the loan repayments for that sum, and the existing loans, in total more than $540,000. She could only retain the home if Mr Warden were effectively cut out of existing assets. That would not be a just and equitable result.
The assets have been built up through a lifetime of work and long commitment to professional and family life by both parties. A result whereby Ms Warden would retain all or nearly all the existing assets would fail to take into account the very many years that are likely to pass before Mr Warden has access to superannuation, and his likely need for some capital base against which to borrow to achieve appropriate accommodation for himself and the girls when they are with him. Nor would it fairly take into account the various financial commitments he will bear that will impact on his capacity to achieve reasonable housing in at least the medium term.
Given the reality that the home will need to be sold, Mr Warden wanted both properties sold. His view was that both properties would need to be sold for the parties to be able to buy new homes. Ms Warden wanted Mr Warden to retain the C Town property. It seems her concern was that if, for example, the home sold first, she could be left without settled accommodation until she also received the proceeds from the C Town sale. They are both reasonable considerations in determining the final structure of orders.

I am satisfied that it is realistic and fair for both properties to be sold. The C Town property should be placed on the market forthwith. The former matrimonial home should be placed on the market shortly after E finishes her VCE exams later this year. There can be no certainty about it, but the C Town property is likely to settle first.
The likelihood is that the net sale proceeds from the C Town sale will be modest, once the mortgage, sale expenses, and CGT are met. On present indications, there could be something like $137,000 remaining. For clarity, I note that the $36,000 line of credit used to purchase the C Town property, is secured over and shall be paid out of the sale proceeds from the home.
Ms D Warden needs her $100,000 loan repaid. Mr Warden needs to receive a sum of $11,074 from the wife’s share of sale proceeds, as a 60/40 adjustment for the smaller assets retained by each of the parties, being on the one hand the wife’s shares of $5,278, motor vehicle of $18,000, and legal fees of $9,268, and on the other hand the husband’s shares of $3,240.
Ms D Warden and Mr Warden should both receive those sums as soon as possible, that is, from the first sale settlement, or at least as much as can be paid from that first settlement. Any outstanding balance should be paid from the second settlement.
If the C Town property settles first, that is likely to work better for Ms Warden, who would be able to live in the home until it settles and she receives her entire share from these orders. If the home settles first, she will at least receive the major part of her share of the property settlement. She may then be able to purchase again, or she may need to rent, pending the other sale. Given the inbuilt delay in the sale of the home, it is the less likely scenario. In any event, to order a further delay to the sale of the home would not be fair or reasonable to Mr Warden.
Otherwise, I shall structure the orders so that the parties receive appropriate percentages from the net proceeds of sale of the two properties. That way, neither carries a risk, or receives a windfall, from one or both of the transactions.

THE ORDERS

I shall include in the orders the parties’ consent orders for chattels, and their agreed notation for child support.
I am conscious that the parties, not knowing the result of the case, did not address me on much of the fine detail of orders. Accordingly, the orders I propose are subject to submissions as to form and those fine details. With that understanding, the proposed orders are as follows:
1.That the husband and wife shall forthwith do all acts and sign all documents necessary to sell the property situated at B Street, C Town (“The C Town property”) through such agent, in such manner, on such terms and for such price as agreed between the parties, and failing agreement, to be determined by the President of the Real Estate Institute of Victoria or his nominee, and the proceeds of sale are to be applied:
(a)    First, in payment of all costs, commissions, and expenses of sale;
(b)    Secondly, to discharge the mortgage and any other encumbrance affecting the C Town property;
(c)    Thirdly, in payment of Capital Gains Tax generated by the sale of the C Town property;
(d)    Fourthly, to repay the husband’s mother Ms D Warden so much of the $100,000 loan that is then outstanding;
(e)    Fifthly, the balance then remaining to be divided 60 per cent to the wife and 40 per cent to the husband, provided that so much of the sum of $11,074 that is then outstanding to the husband, shall be with-held from the sum due to the wife and paid to the husband by way of adjustment of personal property.
2.That pending the completion of the sale of the C Town property the husband shall have the sole right to occupy the property and shall pay all instalments pursuant to the mortgage and any other encumbrance and all rates and taxes and like apportionable outgoings as they fall due, and shall keep the wife indemnified in relation to all such outgoings.
3.That at the expiration of 7 days after the final VCE examination of the parties’ daughter E born in 1994 the husband and the wife shall do all acts and sign all documents necessary to sell the property situated at F Street, Suburb G (“the home”) through such agent, in such manner, on such terms and for such price as agreed between the parties, and failing agreement, to be determined by the President of the Real Estate Institute of Victoria or his nominee, and the proceeds of sale are to be applied:
(a)First, in payment of all costs, commissions, and expenses of the sale;
(b)Secondly, to discharge the mortgage and any other encumbrance affecting the home;
(c)Thirdly, to re-pay the husband’s mother Ms D Warden so much of the $100,000 loan that is then outstanding;
(d)Fourthly, the balance then remaining to be divided 60 per cent to the wife and 40 per cent to the husband, provided that so much of the sum of $11,074 that is then outstanding to the husband, shall be with-held from the sum due to the wife and paid to the husband.
4.That pending the completion of the sale of the home the wife shall have the sole right to occupy the home and shall pay all instalments pursuant to the mortgage and any other encumbrance and all rates and taxes and like apportionable outgoings as they fall due and shall keep the husband indemnified in relation to all such payments.
5.That the wife shall, by consent between the parties, make the following chattels available to the husband for his collection within 14 days:
(a)Books brought to or accumulated during the marriage by the husband including but not limited to books in which his father’s name is inscribed;
(b)Two silver tea sets;
(c)Two paintings by a noted artist;
(d)Crystal previously the property of the husband’s great aunt;
(e)Personal birthday or Christmas gifts to the husband;
(f)An old stock saddle; and
(g)lacquerware panels.
6.That pursuant to s 90MT(1)(a) of the Family Law Act1975, whenever a splittable payment becomes payable in respect of the superannuation interest of Mr Warden (“the husband”) in the H Superannuation (H Revised Scheme) (“the Fund”):
(a)Ms Warden (“the wife”) shall be entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2011 using the base amount of $268,520 (provided that such base amount shall not exceed the value of the interest determined under s 90MT(2)); and
(b)There be a corresponding reduction in the superannuation interests of the husband to whom the splittable payment would have been made but for the Order.
7.That the trustee of the Fund, the H Superannuation Board (“the Trustee”) shall do all such things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by paragraph 6 of this Order; and
(b)Pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the Fund.
8.That this order have effect from the operative time and the operative time is 4 business days after the service of the final sealed orders on the Trustee.
9.That, after service of the payment split notice pursuant to Regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary, including, but not limited to, exercising her request pursuant to Regulation 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the Fund to a fund of the wife’s choosing in accordance with Regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
10.That there be liberty to apply to each party and the trustee in relation to the implementation of the orders effecting the superannuation interest.
11.If, as a result of termination of his employment the husband becomes entitled to a benefit prior to the ESSB making a payment under s 59AC of the State Superannuation Act 1988, he shall provide to the ESSB all such forms as shall be necessary to enable the Trustee to determine the nature and quantum of the superannuation entitlement and any other related information it any reasonably require, within 7 days of that entitlement arising.
12.That until such time as the superannuation split to the wife pursuant to these orders can be rolled over into a separate account of the wife, the husband or his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these orders.
13.That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders each party shall be solely entitled to the exclusion of the other to all other property in the possession of such party or registered in the name of such party as at the date of these orders.
14.That all applications shall otherwise be dismissed and removed from the list of cases awaiting finalisation in the court.
15.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
IT IS NOTED
1.That it is agreed between the parties that in addition to the periodic amount that the husband is assessed to pay to the wife for the support of the children, E born in 1994 and J born in 1996 (“the children”), the husband will pay all books, tuition fees, fees for compulsory extra activities and all optional activities previously notified and approved by him in relation to the children’s attendance at I School or such other school as is agreed between the parties.
2.That the value of the transferable benefits from the husband’s interest in the Fund to the wife’s interest are calculated in accordance with Regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
3.That the trustee will be relieved of its obligations to calculate and split payments under paragraph 8 of these orders in the event that the transferable benefits are transferred to a fund of the wife’s choosing in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.

I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Desssau delivered on 10 June 22011.

Associate:

Date: 10 June 2011

[2011] FamCA 1029

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