Warner & Warner
[2008] FMCAfam 179
•19 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WARNER & WARNER | [2008] FMCAfam 179 |
| FAMILY LAW – Division of property – adjustment in favour of mother due to her illness. |
| Family Law Act 1975, s.75(2), 79(4) |
| Applicant: | MS WARNER |
| Respondent: | MR WARNER |
| File Number: | DGC 728 of 2007 |
| Judgment of: | Turner FM |
| Hearing dates: | 30 & 31 January 2008 |
| Date of Last Submission: | 31 January 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Combes |
| Solicitors for the Applicant: | Alpass & Associates |
| Counsel for the Respondent: | Ms. Jenkins |
| Solicitors for the Respondent: | Anderson Partners |
ORDERS
There be a 70/30% division of property in favour of the mother.
The father is to transfer his interest in the property at Property F to the mother at the expense of the mother.
The mother is responsible for the mortgage to the Commonwealth Bank of Australia over Property F.
The mother is to transfer her interest in Property B to the father at the expense of the father.
The father is responsible for the mortgage to the Commonwealth Bank of Australia over Property B.
The parties otherwise retain ownership of the assets in their possession.
In relation to superannuation, whenever a splittable payment becomes payable:
(a)The non member spouse is entitled to be paid 50% of the splittable payment; and
(b)The entitlement of the member is reduced by 50%.
The parties are to prepare an agreement for splitting of their superannuation entitlements for submission to the superannuation funds within 14 days for consideration by the funds as to whether they are being accorded procedural fairness.
The parties have liberty to apply to the Court should the funds not approve of the agreement.
The parties are to prepare and file with the Court within 28 days agreed orders to give effect to this decision and orders as to property and superannuation.
IT IS NOTED that publication of this judgment under the pseudonym Warner & Warner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 728 of 2007
| MS WARNER |
Applicant
And
| MR WARNER |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves the distribution of property between the parties to a 15 year marriage that ended in separation on 13 February 2006 and divorce on 11 April 2007. There are three children of the marriage A born in 1989, S born in 1990 and T born in 1993. All of the children live with the mother, but stay with the father some half of the time.
The following situation emerges from the documents and submissions:
Assets
Matrimonial home at Property F
$ 335,000
Less mortgage
–$ 135,000
Net value
$ 200,000
Property B
$ 200,000
Less mortgage
– $ 180,000–181,000
Net value
$ 19,500
Father’s four wheel drive
$ 10,000
Father’s tools
$ 1,000
The value of the father’s boat is not agreed: there was an insurance payout of $4,200 less an outstanding loan of $2,000
$ 2,200
The value of the mother’s commodore is not agreed.
The car was unregistered.
It was sold to a wrecker for $350 which is the only proper measure of its value before the Court$ 350
Total Assets
$ 233,050
Less credit balances owing:
Father (agreed)
Mother (agreed)
– $ 7,600
– $ 2,000
– $9,600
Net Assets
$ 223,450
The father says that during the course of the marriage he paid $6,000 off the debt for a failed business venture during a previous marriage.
The mother has a one third interest in her late father’s Estate but her step–mother has the right to live in the house included in the Estate. Whatever be the value of the eventual inheritance, it will not be for at least five years, and will not be included in the asset pool.
Application of s.79(4):
(4)(a)The father brought $18,000 into the relationship and the mother brought $9,000 in. Owing to the length of the marriage, the difference between those contributions is of no significance.
(4)(b)
The father made direct contributions to the improvement of the matrimonial home through the input of his skill and labour.
He arranged for his brother to do work on the roof. The father also worked on Property B.
An adjustment in favour of the father would have been appropriate had he not diverted significant funds away from his family, being $60,000 paid for the support of his children from a previous marriage, plus $6,000 paid off a pre relationship debt. These cancel out the father’s contributions to improving the properties. Paying off the $6,000 debt is not offset by the father withdrawing $3,000 from his life insurance and $3,000 from his superannuation for use by the family.
(4)(c) Both parties have contributed to the welfare of the children of the marriage, although the mother has made the larger contribution and continues to do so.
(4)(d)The orders outlined in this decision will have no effect on the earning capacity of either party.
(4)(f)There are no orders relevant to this matter.
(4)(g)The father pays child support of $680 per month.
Application of s.75(2):
(2)(a)The mother is 45 years of age and the father is 41 years of age. The mother is in poor health. The parties agree that a 15% adjustment should be made in her favour for this factor.
(2)(b)The mother is earning around $50,000 pa, and the father $55,000 pa. The physical capacity of the mother to continue in gainful employment is of concern, and is accounted for by the 15% adjustment. There appears to be no reason why the father cannot continue to work.
(2)(c)The mother has the major responsibility for the care and control of two children of the marriage, S and T, who are now 17 and 14 years old respectively. A is 18 years old. The father is responsible for paying $680 per month towards the maintenance of his two children S and T.
(2)(d)The father has had a commitment to maintain the children of a previous relationship. The mother in this case says that the father paid out $60,000 by way of that child support for those children.
(2)(e)See (2)(d) above.
(2)(f)The mother has given evidence that now she has obtained full–time employment, Centrelink has advised her that she is not eligible to receive any pension or allowance.
(2)(g)Based on the asset pool and income of the parties, neither party will enjoy more than a reasonable standard of living. It is appropriate that the wife retain the matrimonial home for her and the children to live in.
(2)(h)Not relevant.
(2(ha)Not relevant.
(2)(j)The duration of the marriage has not affected the state of the mother’s health, which is likely to deteriorate.
(2)(k)The retention of the matrimonial home will enhance the mother’s ability to care for the children.
(2)(l)Neither party is cohabitating with another person at present.
(2)(m)Not relevant.
(2)(n)Not relevant.
(2)(na)Child support of $680 per month payable by the father has been taken into account.
(2)(o)The mother’s health is being taken into account.
(2)(p)The mortgage of the properties and loans to the parties are being taken into account.
It is proposed for the father that there should be a 15% adjustment in favour of the mother under s.75(2)(a), a 5% adjustment in favour of the father for his input into extending the house at Property F, and for his work on the house at Property B, plus 5% for his post separation contributions to the house at Property B, as he has continued to make loan repayments in relation to that house. This would result in a 5% net adjustment in favour of the mother.
It is proposed for the mother that there be a 15% adjustment in her favour considering her future needs, plus 5% for being the primary carer. Although the children of the marriage stay at the father’s house up to seven nights per fortnight, the evidence is that they go to the matrimonial home for some time almost every day.
Is also clear that the mother is the major contributor to the needs of the children (S who is 17 years old and T who is 14 years old) including their schooling, health and medical expenses.
A 5% adjustment claimed in favour of the father for his input into the matrimonial home and the house at Property B is offset by factors including the use he has had of both properties, the fact that he is to retain Property B or benefit from its increased value, and by the 5% sought by the mother for post separation contributions.
The result is a 70/30% division in favour of the mother.
The fourth step, is for the Court to consider whether in all the circumstances a 70/30% division in favour of the mother is just and equitable. The Court considers that it is. The mother is liable to repay the mortgage over the house at Property F, which will be a similar cost to her paying rent. It would not be just and equitable to order the father to pay a lump sum towards discharging the mortgage as he would have to obtain a loan to do that, and does not have property of significant value to secure a loan. In all probability the father will have to continue paying rent. The father can sell the property at Propety B and repay the mortgage. The balance is fair.
Orders
The father is to transfer his interest in the property at Property F to the mother at the expense of the mother.
The mother is responsible for the mortgage to the Commonwealth Bank of Australia over Property F.
The mother is to transfer her interest in Property B to the Father at the expense of the Father.
The father is responsible for the mortgage to the Commonwealth Bank of Australia over Property B.
The parties otherwise retain ownership of the assets in their possession.
Superannuation
It is agreed that the superannuation be divided 50/50% (Court transcript page 68 line 4 and page 71 line 27). The father proposes that the superannuation payout be split rather than him being ordered to make a cash payment to the mother.
Superannuation should be included at its present value. Both parties propose that the superannuation entitlement should be divided 50/50%, the Court agrees. However, the mother contributed nothing to the father’s superannuation in CBUS which accrued before the relationship commenced. Exhibit “R3” shows that superannuation to be valued at $4,485 as at 23 August 2007. That will be excluded from the entitlements. The value of the father’s superannuation is therefore $70,000 less $4,485 = $65,915. Note: The mother accepts superannuation values as at June 2007 (Court transcript page 5, line 7). The mother’s superannuation is $29,000.
Looking at the factors in s.79(4) and in s.75(2) specifically in regard to superannuation, the Court considers that a splitting order of 50/50% is just and equitable.
The Court orders that whenever a splittable payment becomes payable:
a)The non member spouse is entitled to be paid 50% of the splittable payment; and
b)The entitlement of the member is reduced by 50%.
The parties are to prepare an agreement for splitting of their superannuation entitlements for submission to the superannuation funds within 14 days for consideration by the funds as to whether they are being accorded procedural fairness.
The parties have liberty to apply to the Court should the funds not approve of the agreement.
The parties are to prepare and file with the Court within 28 days agreed orders to give effect to the above decision and orders as to property and superannuation.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 19 March 2008
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