Wheeldon & Wheeldon
[2011] FamCA 40
•7 February 2011
| WHEELDON & WHEELDON AND ORS | [2011] FamCA 40 |
| FAMILY LAW – PROPERTY – Where the husband’s parents were joined as second and third respondents – Where the wife seeks a declaration that the husband is beneficially entitled to a property and that his parents hold that property on trust for him – Where the wife seeks that the husband’s parents transfer the property to him and that he subsequently transfer a half interest in the property to her – Where the husband is in receipt of a periodic pension payment from a superannuation fund as a result of being injured at work |
| Family Law Act 1975 (Cth) Stamp Duties Act 1920 (NSW) (repealed) |
| Trott and Trott (2006) FLC ¶93-263 Webber and Webber (1985) FLC ¶90-648 West and Green (1993) FLC ¶92-395 |
| APPLICANT: | Ms Wheeldon |
| 1ST RESPONDENT: | Mr Wheeldon |
| 2ND RESPONDENT: | Mrs Wheeldon Senior |
| 3RD RESPONDENT: | Mr Wheeldon Senior |
| FILE NUMBER: | SYF | 4066 | of | 2005 |
| DATE DELIVERED: | 7 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 9-11 February 2009, 18 September 2009, 12 October 2009, 15 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Greenaway and Mr Raphael |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Macpherson |
| COUNSEL FOR THE 2ND AND 3RD RESPONDENTS: | Mr Batey |
Definitions
A.Category 1 splittable payment is the fortnightly payments made by the
SAS Trustee Corporation (“the trustee”) to the husband and
B.Category 2 splittable payment is all other payments made by the Trustee to the husband which are not a Category 1 splittable payment.
Orders
The husband pay to the wife the sum of $16,497.40 held to his credit in the account with the Emergency Services Employees Credit Union.
It is declared that the second respondent, Mrs Wheeldon Senior is the sole legal and beneficial owner of the property at G.
Superannuation
Pursuant to s 90MT(1)(b) of the Family Law Act 1975 (Cth) the wife is entitled to be paid the specified percentage, being fifteen (15) per cent, of the Category 1 splittable payment to be made from the husband’s superannuation interest in the SAS Trustee Corporation from his interest in the State Superannuation Scheme, Membership Number … and the husband’s entitlement to that payment from the State Superannuation Scheme is accordingly reduced.
The Trustee shall do all such acts and things and have signed all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement created for the wife in Order 3 above and
(b)pay the entitlement whenever the trustee makes the Category 1 splittable payment out of the husband’s interest in the State Superannuation Scheme.
In accordance with s 90MT(1)(b) of the Family Law Act1975 (Cth):
(a)the wife is entitled to be paid the specified percentage, being 38.5 per cent of the Category 2 splittable payment to be made from the husband’s interest in the State Superannuation Scheme
(b)the husband’s entitlement to that payment from the State Superannuation Scheme is correspondingly reduced.
The trustee shall do all such acts and things and have signed all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement created for the wife in Order 5 above and
(b)pay the entitlement whenever the trustee makes a Category 2 splittable payment out of the husband’s interest in the State Superannuation Scheme.
Orders 3 to 6 (inclusive) hereof have the effect from the operative time and the operative time is the date of this Order.
In the event that the Trustee does not, pursuant to Order 3 herein, pay to the wife each fortnight fifteen (15) per cent of the Category 1 splittable payment from the date of these Orders then the husband will pay each fortnight fifteen (15) per cent of the amount he receives each fortnight from the Trustee until such time as the trustee commences to make payment to the wife pursuant to the preceding order.
For the purposes of such payments being made by the husband to the wife for the period that the husband receives a fortnightly invalidity pension from the State Superannuation Scheme that such payments be paid to the wife within seven (7) days of receipt by him and to be paid to the credit of the wife’s account with Emergency Services Credit Union BSB … and account number … or to such other account as the wife shall notify the husband in writing from time to time.
For the purpose of effecting Order 8 and Order 9 above the husband shall provide a bankers order to his bank to cause the automatic periodic deduction from his account of the sums required to be paid and that he vary the bankers order as required from time to time to comply with Order 8 and Order 9 above.
Upon the husband being entitled to commute his pension into a lump sum and in the event that the wife gives the husband written notice to do so, the husband shall, within the time required by the trustee and in a form required by the Trustee, elect to commute to a lump sum form, the pension payable to the husband under the terms of the fund.
It be noted that nothing in these Orders be taken as a prohibition against the husband exercising his right to commute his superannuation interest to a lump sum.
Except as otherwise provided in these Orders, the husband and wife each be declared the sole legal and beneficial owner of all items of property, including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in their possession or control.
Either party have liberty to restore on seven days’ notice in respect of the implementation of these Orders.
If either party refuses or neglects to sign within fourteen (14) days of a written request to do so any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed from the list of Active Pending Cases.
IT IS NOTED that publication of this judgment under the pseudonym Wheeldon & Wheeldon and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4066 of 2005
| MS WHEELDON |
Applicant
And
| MR WHEELDON |
1st Respondent
And
| MRS WHEELDON SENIOR |
2nd Respondent
And
| MR WHEELDON SENIOR |
3rd Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court are proceedings between the parties to a marriage seeking an alteration of their property interests. The proceedings were commenced by the wife. The husband’s mother and father have been joined to the proceedings as the second and third respondents respectively by reason of the wife’s claim for relief against them.
The wife seeks orders and declarations to the following effect:
a)a declaration that the husband is beneficially entitled to the whole of the right, title and interest in the land and premises known as G (“the G property”);
b)a declaration that the husband’s parents hold the G property on trust for him;
c)a declaration that the transfer of a half interest in the G property by the husband’s father to the husband’s mother was a transaction made to defeat an existing or anticipated order in the proceedings between the husband and wife, or that, irrespective of intention, it was likely to do so; and,
d)a consequential order setting aside the transfer of the half interest in the G property by the husband’s father to the husband’s mother; requiring the half interest to be re-transferred by the husband’s father to the husband’s mother as joint tenants; requiring the husband’s parents to transfer the G property to the husband as sole registered proprietor and beneficial owner; and, requiring the husband to transfer to the wife a half interest in the property as tenant in common.
In the alternative, the following relief is sought by the wife:
a)a declaration that the husband and wife are beneficially entitled to the G property in equal shares;
b)a declaration that the husband’s parents hold the G property on trust for the husband and wife as beneficial owners in equal shares; and,
c)like orders to those set out above, setting aside the transfer of the half interest in the G property by the husband’s father to the husband’s mother and giving effect to a transfer of the property to the husband and wife as tenants in common in equal shares.
Subject to the orders in either alternative being made, the wife seeks then an order for the sale of the G property and an unequal division of the proceeds. She also seeks a splitting order for half of the husband’s superannuation entitlement under the scheme and that otherwise the husband and wife, as against each other, be declared the beneficial owners of the property presently in their respective possession or control.
The husband seeks a splitting order in relation to his superannuation entitlement which would have the effect of giving to the wife a sum based on a dollar calculation rather than a percentage. He also seeks that himself and the wife be declared the owners of and retain the property presently held by each of them; and, an order for costs. He opposes the orders sought by the wife in relation to the G property.
The husband’s parents, the second and third respondents seek the dismissal of the wife’s application so far as it seeks orders against them; and, an order for the payment by the wife of their costs.
Background Facts
Where in this judgment I make statements of fact, they are, unless otherwise specified, my findings of fact.
In 1955, the husband was born. He is currently 55 years of age.
In 1956, the wife was born. She is currently 54 years of age.
In November or December 1975, the husband and wife became engaged to be married.
In December 1975, the husband’s father told the husband and wife that they could live at the G property if they paid its rates. The property was at that time occupied by the husband’s great aunt.
In January 1976, the husband’s great aunt vacated the G property.
In October 1976, the husband and wife commenced occupation of the G property.
In November 1976, the husband and wife were married.
In August 1977, the wife ceased employment.
In January 1978, the husband and wife’s daughter was born. She is currently 33 years of age.
In August 1980, the husband and wife’s son was born. He is currently 30 years of age.
In September 1982, the husband and wife’s second son was born. He is currently 28 years of age.
In 1985 or 1986, the wife recommenced employment.
On 3 May 1993, the wife filed for bankruptcy.
In April or May 2002, the husband and wife separated.
On 23 November 2008, the husband was medically retired on the grounds of permanent incapacity.
The Issues
The issues for determination in this matter are as follows:
a)What is the property of the parties to the marriage or either of them and, in particular, whether the G property is owned beneficially by either the husband or the husband and wife jointly;
b)Whether some relief should be provided to the husband or the husband and wife jointly by reason of certain promises said to have been made to them; encouragement said to have been given to them to believe in certain matters; or, work undertaken by them; and, if so, what relief and on what basis; and,
c)Given the assets of the parties to the marriage or either of them, what, if any, is an appropriate alteration to their property interests which will do justice as between them, having regard to the matters required to be taken into account under the Family Law Act1975 (Cth) (“the Act”).
Property Matters
The first step that the Court must undertake is to identify the property of the parties to the marriage or either of them available for division between them.
At the conclusion of the hearing, the Court was provided with a balance sheet which is set out for consideration later in these reasons.
In this case, the major issue is what, if any, interests do the parties to the marriage or either of them have in the G property; and, what remedies, if any, might be provided to them or either of them in recognition of the interest in the property said to exist or to otherwise appropriately compensate them for work done for the benefit of its registered owners.
The Evidence in Relation to the G Property
The Evidence of the Wife
The wife has given evidence of a number of conversations between the husband and herself or in her presence. In particular, in her affidavit filed on 28 September 2005, she asserts that:
a)At the time of her engagement to the husband, he said to her words to the following effect:
[c]ome and look at my house. My aunt lived there but she has lived there conditionally. She knew she would have to leave when I was ready to move in. It is very old and unliveable but we can renovate it. My parents bought this house for me to have and have held it on trust until now. It is mine and will be a lot of work and money to do it up but we can make it beautiful.
b)She asserts that the husband later said to her:
[d]on’t worry. This is my house which means it is your house too and you can make it beautiful. We will renovate it because the location is great. It’s all ours and we can fix it up any way we want to.
c)She asserts that, when he asked her father for permission to marry, the husband said:
I own my own home next door to my parents; we can do it up and live there.
She asserts that the husband later said to her father in her presence:
[m]y grandfather wanted to make sure that my mother would have a house to give me when I grew up. My house in [G] has been held in trust for me my whole life. My parents paid my grandfather [for] the freehold to secure that for me. I have not needed to live there up to now, but I will now spend all my money renovating it to make it liveable for [the wife] and me, I promise to be a good provider and I think that will make [the wife] happy.
d)She further asserts that the husband made similar statements to her, such as:
[i]t would be better if we lived off your money and saved my wages for the renovation of our house.
In her affidavit, the wife also deposes to a number of conversations between the husband’s parents and herself in which reference was made to having the G property for the husband. The wife deposes that the husband’s mother said to her: “[h]e wanted to be able to give it to him for his 21st” and “[the husband’s] Aunt will be moving out as she knows that it is [the husband’s] house …”
It is asserted by the wife that, in 1976, the husband asked his parents to put the G property in his name and they refused to do so on the basis that, it is suggested, about $1,000 would be required to pay “gift tax”, presumably stamp duty at gift rates. It is suggested that the husband’s father, who had been largely responsible for the renovations to the G property, said:
[w]ouldn’t you rather spend thousand of dollars [sic] on renovations than giving it to the government? If you had that much money to throw around then why am I helping you with the work for nothing?
The wife asserts that, in October 1976, a conversation took place in which the husband’s parents said to the husband in her presence: “[t]he house is yours and it is your responsibility to now pay the Rates.” There are other conversations deposed to by her in which references were made to the G property being “[the husband’s] house” or “giving [the husband] the house”.
The wife says that, in 1977, when she became pregnant, the husband and herself asked his parents to procure the title to the G property in their names and that, in response, his parents said: “it would cost you tens of thousands of dollars in gift tax.” She says that the husband and herself could not afford to pay such a sum, particularly in circumstances where she was shortly to give birth to their first child and where she would not be in paid employment. There is a suggestion that the husband and herself were told by his parents: “[d]on’t worry, the house is yours.”
The wife says that, with each subsequent pregnancy and continually throughout the marriage, including in 1985, there were requests by the husband and herself to his parents to transfer to them the title of the G property. She says that those requests were refused by his parents on the basis that the gift tax would be significant and that, in any event, the husband trusted his parents.
In about 1985, consideration was given by the husband and wife to moving from the G property to another house. The wife has given evidence asserting that a discussion took place with the husband’s father about the people to whom the husband’s parents might let the G property and the arrangements that might be made to afford his parents, who owned and occupied the adjacent property, some benefits in the use of its backyard.
In 1985, the husband and wife borrowed $10,000 by means of a personal loan which the wife says was enough to enable them to build an additional room on the G property to accommodate the needs of the growing family.
In 2000, the wife says that a new kitchen was installed in the G property.
The husband and wife thereafter sought to borrow an amount to purchase a “weekender” from the Emergency Services Credit Union. The wife says that the husband assured her that he had spoken to his parents and that he said to her words to the effect: “Mum and Dad said no worries. That sounds great. You should buy a weekender in the Central Coast, near our holiday property!” She deposes that the Credit Union officer said that it would be better if the G property was in the names of both the husband and herself, and consequently the husband said that he would speak to his parents, which he did. Her evidence is that the husband came back to her and said words to the effect that his parents would not transfer the G property to them and that the husband’s mother said that she would not do so since, having consulted with her financial advisor, she was advised that she might need the property to fund retirement.
The wife says that she lodged a caveat against the title of the G property, but that, upon its lapse, the husband’s father transferred his interest in the property to the husband’s mother. She asserts that the transfer was purported to be pursuant to a binding agreement which was, in her view, a sham. She asserts that the transfer was made with the intention of defeating her claim in these proceedings.
Although much time has been spent considering the nature of this transfer, it seems to the Court that, if either the husband or wife had a claim to the G property, it would not matter whether the transfer was made with the intention to defeat the claim or the operation of the Stamp Duties Act 1920 (NSW) (repealed), or whether it was indeed a genuine transfer. The transfer could still be set aside if it had the effect of defeating a claim, irrespective of the intention behind its creation. However, it appears what is asserted is that the existence and nature (as an instrument which, on the wife’s assertion, was intended to defeat a claim) of the transfer is recognition of the claim of the wife and, inferentially, the need to defeat it.
The Evidence of the Husband
The husband’s evidence is to the effect that, before his marriage to the wife, his father or mother said to him: “[i]f you wish you can live next door in No. 12.”
In his affidavit filed on 10 May 2007, the husband deposes that, in December 1975, his father said to the wife and himself:
[w]e (referring to himself and my mother) would like you (referring to [the wife] and me) to live in No 12. It looks like Aunty […] is going to have to move to a nursing home. We will need to renovate the property for you because its in a pretty original state.
In the same or subsequent year, the husband asserts that his father said to him: “[i]f you want to live there (referring to No. 12) we can fix it up for you”.
The G property was renovated and the husband worked with his father on the renovations, as did the wife. The husband asserts that his father’s friends also assisted with the renovations and those friends included KD, NG, FR and GR.
He deposes that his parents paid for many of the requirements of the extensive renovations.
The husband deposes that, on four or five occasions between the time that he became engaged to the wife and the time that the wife and himself moved into the G property, his father or mother said to the wife and himself words to the effect: “[y]ou can live in No. 12 as long as you pay the rates and taxes and keep the property in good repair.” After taking up occupation of the premises, he says that he paid the Council and Water Rates and the electricity and telephone charges and that they kept the property in good repair. He says that it was customary for his parents to give them the rates notices, which he paid. It seems that his parents always paid the insurance applicable to the G property with the wife and himself insuring the contents of the home.
The husband says that the wife and himself decided to renovate the kitchen in 1999. The quote for the kitchen was $12,060 and additional items (including a new stove, refrigerator, dishwasher and oven) totalled $6,182. An electrician was employed to undertake some of the wiring at a cost of $490. The husband procured a loan from his credit union which was repaid from compensation received by him for a work-related injury.
The husband has raised as an issue many of the statements said to have been made by him and his parents to the wife concerning the G property. His evidence is that the aunt who occupied the G property moved out because she was ill and wanted to live with her daughter. The husband denies that he ever mentioned that the G property was held on trust, since no such trust existed. He says that his grandfather never owned houses, he only leased them and that the G property was purchased by his parents from the Scottish Australia Society.
It is conceded by the husband that the G property was from time to time referred to as “[the husband and wife’s] place”. However, he denies any implication of ownership in such a phrase. He denies many of the other conversations said to have occurred in the presence of his parents or himself.
The husband asserts that his father paid between 80 to 90% of the costs of materials for the renovations to the G property.
In his affidavit filed on 30 November 2005, the husband deposes that he had a conversation with his mother at the time of the parties’ first child’s birth in 1978 to the effect that the wife and himself needed to start saving to buy their own home. He pointed out to his mother that his father and herself would be able to rent out the G property and thereby recoup some of the renovation costs.
The husband says that he also had a discussion with the wife about saving for a deposit to enable them to purchase a home. He asserts that, when the wife told him that she wanted a bigger home to house the family, she said to him: “[l]et’s ask your parents if we can build an extension.” He says that he replied: “[i]t would be better to save for a deposit for our own house, and buy a bigger house”. He further asserts that his father said to the wife and himself: “[i]f you move out and into your own home then I will seal off the yard.”
It is further asserted by the husband that a conversation with the wife took place in which she is reported to have said: “I’m just sick of your parents coming around whenever they feel like it. If we could move to our own place it would make things a lot easier.”
The husband and wife approached the Emergency Services Credit Union who advised them that, if they owned the G property, then they could borrow on the equity and secure a larger loan. The husband says that he went to his parents and asked what assistance they could provide and that his mother said words to the effect: “[w]e’ll talk to our financial advisor and get back to you.”
The husband denies the wife’s assertion as to his reasons for leaving the marriage and says that it was motivated by the enmity between the wife and his parents and himself being in the constant position, as he saw it, of being “like the meat in the sandwich”.
The husband denies the wife’s evidence of many of the conversations said to have taken place in his presence. He is, of course, unable to comment on those which the wife asserts she had with his parents and which were not in his presence. He does agree that his parents implied that he would inherit the G property in due course.
The husband asserts that the sum borrowed to fund the extension to the G property was not $10,000 as suggested by the wife but rather the sum of $7,000. He also asserts that the builders, being friends of his, undertook the work at a discounted rate.
The husband, in other evidence, says of his superannuation fund that he has retired from the NSW Emergency Services by reason of ill health. In his Financial Statement filed on 4 February 2010, he says that he is in receipt of a Superannuation Invalidity Pension of $810 per week, or $1,610 per fortnight as set out in his affidavit filed on 4 February 2010. His evidence is that he would have the ability at age 55 to convert that pension into a lump sum. The husband is now 55 years and has undertaken not to convert the entitlement at the present time pending the determination of this matter and for twenty-one days thereafter.
The husband had previously stated in his affidavit filed on 4 February 2009 that it is his intention not to convert the pension in that way but to continue with the income since he says he does not have any prospect of continued employment.
The husband has given evidence and identified a number of documents which were applications he had made to the Emergency Services Credit Union. The documents were tendered into evidence as Exhibit “C”. Relevantly, the box on one such application was ticked to the effect that he was the owner of the property in which he resided. His oral evidence was that this was done at the behest of the officer dealing with the application and that officer had appended a note to the application. He says that the particular application for that loan would, with loans already in existence, be beyond the general limit of unsecured lending. The application, he says, was accompanied by a note to the Board explaining that the property was his parents’ property and that it might be available if a guarantee were required. No such note was produced to the Court.
The Evidence of the Second and Third Respondents
The husband’s mother and father, the second and third respondents say that no promise was ever made to transfer the G property to the husband and/or the wife either expressly or impliedly.
The husband’s parents deny that they or either of them did or said anything to give rise to the coming into existence of an expectation that the G property would be transferred to the husband or the wife or either of them.
The husband’s parents further deny that they or either of them did or said anything which would warrant the construing of a trust in favour of the husband and wife; that they made any representation which did or was intended to create an express trust in favour of the husband and wife; or that there was any advancement by them in favour of the husband.
The husband’s parents deny that they acted unconscionably towards the husband and wife or that the husband and wife acted to their detriment as a consequence of the actions of the husband’s parents. They say that in fact as a result of their actions the husband and wife had the benefit of rent-free occupancy - paying only some outgoings of the property which they occupied for the duration of their cohabitation and some costs towards renovations to the property.
Finally, the husband’s parents deny that there was falseness about their separation or that the Section 90 Agreement was in any way inequitable or was intended to or had the effect of defeating any anticipated claim. There are a number of aspects to this issue; namely, the question of credit for the husband and wife and whether the transaction was made with the intention to defeat the wife’s claim. Based on the wording of the section the transaction may be set aside by the Court in the event that it has the effect of defeating an existing or anticipated claim or if it has that effect, irrespective of intention.
The basis on which the transaction is more relevant is on the question of whether in the minds of the husband’s parents such a claim existed. It would corroborate such a mindset if I find that it was their intention to defeat a claim of the wife.
The husband’s mother denies the conversations alleged by the wife. She asserts that the majority of the renovations to the G property were carried out by the husband’s father.
The husband’s mother admits that she may have from time to time referred to the G property as “[the husband’s] house” when it was occupied by him but did not do so intending to indicate any proprietary interest in the G property.
The husband’s mother asserts that she had a conversation with the husband to the following effect: “[y]ou can live in No. 12 for as long as you like, rent free, provided you pay the rates” and to which the husband’s mother says he replied: “[w]e’re going to live on one wage and bank the rest.” She says she responded: “[t]hat’s good, you might have enough money to buy a house in five years or so.”
The husband’s mother denies the conversations asserted by the wife. She does however depose to conversations with the husband on three occasions when the husband’s father was not present. The first two such conversations occurred in the mid 1980s wherein the husband said to her: “[c]an you transfer the house to us?” She deposes she replied: “[n]o, even if we did transfer it to you it would cost a lot of money in stamp duty”. In February 2002, she says the husband again approached her about transferring the G property and the husband is reported to have said: “[s]he (referring to the applicant) has been to see a solicitor and it will cost about $39,000.00 in stamp duty to transfer the house to us”. The husband’s mother says she told her son that she would discuss his request with his father.
The husband’s mother said that the following day her son said to her words to the effect: “[w]e’ve been to the [Emergency Services] Credit Union, and if you transfer the house to us we can have equity which will enable us to buy a weekender.” To this she asserts she replied: “[n]o, we’ve decided not to transfer the house to you. We’re not getting any younger and we will need both the houses for our future.” She says her son replied, “[d]on’t worry about it, they’re your houses.”
The husband’s mother denies she ever had a conversation with the wife about a transfer of the title of the G property or any possibility of such a transfer.
The husband’s mother deposes that during her son’s occupancy of the G property she always paid the household insurance and her son insured the contents.
The husband’s father in his evidence-in-chief detailed the work he and his friends had undertaken in the renovation of the G property. He was supported in what he said by the affidavit evidence of those friends. None of them had ever been told that the property was the husband’s and all of them said that they offered their services because of a relationship with the husband’s father.
The husband’s father recalls in his affidavit that the husband’s mother said to him: “[the husband] has asked if we can transfer No. 12 to him as he wants to use it as security to buy a holiday house.” He deposes that in reply he said: “I don’t think we should, it’s fine for him to continue to live there rent free but we need these assets for our retirement.” The husband’s mother, he says, said: “I agree, I’ll tell him that tomorrow when I see him.”
If I accept the evidence of the husband’s parents, then it seems to me that there is no basis on which I could say that I should construe that they held the G property on trust for either the husband and wife or the husband. There is nothing in the evidence of the husband’s parents, if I accept that evidence, which in my opinion operates to establish circumstances in which such a trust ought to be construed; nor is there any support for the view that the husband and wife were encouraged to believe that the property was owned by them and that they acted on the encouragement offered to their detriment, such that it is in equity appropriate that they should have the benefit of an equitable remedy.
Credit
The wife’s evidence of statements made to her by the husband or actions taken by the husband in relation to borrowings from his credit union, even if accepted, do not act as evidence against the husband’s parents. In essence, however, the wife’s case relies on her uncorroborated recollections of her conversations with either the husband’s mother or husband’s father or both of them. Those conversations as to content are denied by each of the husband’s parents in the proceedings.
The wife’s evidence was brought into question as to her part in the renovations to the property in which she and the husband resided and the combined evidence of those who took part in the renovations made it clear that her evidence was unreliable. I accept the evidence of those who laboured on the property to renovate it as correct and the wife’s evidence as being incorrect.
The statements made by the husband in his credit union applications for loans for such things as cars and credit card debt consolidation did not, in the light of his explanation of those statements and the purpose for which the loans were sought, add any credence to the evidence concerning statements which the wife said were made by the husband’s parents. Much of the husband’s evidence was not the subject of challenge by way of cross-examination.
The wife asserted that failure to transfer the property to the husband or perhaps the husband and she was as a result of a belief stated by the husband’s parents that such a transfer would accrue “gift tax”. The husband’s father flatly denied any such assertion and said that the only time he had considered the impost of any such tax in relation to the property was in contemplation of his transfer of his interest in it to the husband’s mother as part of a separation agreement entered into between them, which of course did not attract such tax or duty.
The wife’s brother was called to give evidence. He purported to recall conversations raising the issue of gift tax but I was unconvinced by those recollections and prefer the evidence of the husband’s parents.
The search by the wife for corroborative evidence in the existence of and circumstances surrounding the separation agreement entered into between the husband’s parents fails in my view. I find the evidence of the husband’s parents about the way in which the agreement came about and the circumstances that subsequently existed explicable other than in terms of a “sham agreement” designed to somehow defeat the wife’s claim. It is not unbelievable that two persons who have lived together for many years decided to partition their assets and live in a way which allows them autonomy but permits them to share those things that they retain in common. I do not accept that it was entered into because the parties to it believed that it would be effective to defeat a claim which the wife had made.
In general, however, I preferred the evidence of the husband’s parents to that of either the husband or the wife. Their denials of conversations which promised a gift of the G property to anyone were unequivocal. When the husband raised with them the possibility of a transfer to either himself or the wife of the title to the property his requests were met with refusal on three occasions. Cross-examination did not demonstrate other than the witnesses continuing to adhere to their denials. The husband’s mother particularly was impressive as a witness. Her answers were clear and direct that she did not give up any interest in her assets in favour of the husband and/or the wife; rather they had permission to occupy the property and no more. The house insurance was continued to be paid by either herself or the husband’s father and herself with the husband meeting the insurance cost of the contents.
Findings
The wife submitted that, by operation of estoppel, either proprietary or promissory, or estoppel by encouragement, the Court should provide her with relief. It was pointed out by counsel for the husband’s parents that the nub of any such remedy is a promise by the husband’s parents or encouragement by the husband’s parents of the claimant(s) in a belief or expectation on which they relied to their detriment.
I do not find that any such promise was made, nor was any such encouragement given, to any expectation. I do not find that there was a detriment suffered by the husband and the wife. They could at all times have made other plans for their accommodation. The work which they did to the premises of the G property was to accommodate their expanded family. They asked the husband’s mother whether they could do that work and they were given permission to do so.
The husband and wife had continuing occupancy of the G property during their long cohabitation at no rental costs. The permission to expend the money did not, in my view, amount to an encouragement of a belief that the property was theirs. It was an accession to an expressed need for the husband and wife to make their rent-free accommodation more comfortable, having regard to the extension of their family. It may be that the wife had a hope or even an expectation that the property would become theirs (an expectation during the life of his parents which on his evidence was not shared by the husband), but there is no evidence, in my view, that such a hope or expectation, if it existed, was created, nurtured or encouraged by the owners of the property.
In all, I reject the wife’s claim for equitable relief and find that the evidence as accepted does not sustain a case for such relief.
Accordingly, the wife’s claim against the husband’s parents is dismissed.
The husband’s parents point out that the husband and wife did not suffer any detriment and say that they had the benefit of rent-free occupancy for a period of 26 years. The wife’s counsel says that a detriment within the terms of his argument does not have to be financial. Even accepting that, I have to take into account in assessing a detriment the net rather than the gross value of the detriment. The rent-free occupancy is something that I would have to take into account as a benefit to determine the net detriment.
It is asserted that the husband’s father and/or mother were unjustly enriched by the work which was done to the premises. I do not, having regard to the detriment suffered by the husband’s parents in foregoing rent for their property when occupied by the husband and wife, find that there was an unjust enrichment of the husband’s parents.
The case of the wife must stand or fall on either:
a)the acceptance of evidence of the creation of an express trust which, by reason of the lack of writing, must be treated as a constructive trust;
b)the acceptance of representations as ones on which the applicant and first respondent have acted to their detriment and which should give rise to a constructive trust;
c)the acceptance of encouragement of the husband and wife in a false belief that the property was theirs and doing nothing to rectify that false belief; or,
d)a finding that the actions of the parties and the representations made were such that, in the absence of equitable relief, the first and second respondents will be unjustly enriched.
In this case, the threshold question which thus arises is whose evidence I prefer. Having regard to my findings on those matters set out above, I accordingly find that the property of the parties to the marriage, or either of them, is as set out hereunder.
The Balance Sheet
In his written submissions, the husband asserts that the assets and liabilities of the parties to the marriage are as follows:
| Assets | ($) |
| · [T property] (h) | 200,000 |
| · [Emergency Services] Employees Credit Union (h) | 34,420 |
| · IAG shares (h) | 3,626 |
| · 2008 Hyundai Tuczon […] (h) | 18,000 |
| · Household contents (h) | 4,000 |
| · Other personal property (h) | 6,000 |
| · ANZ Bank (w) | 2,400 |
| · 2004 Holden Cruise […] (w) | 12,000 |
| · Household contents (w) | 2,000 |
| · Other personal property (w) | 5,000 |
| Total Assets | $287,446 |
| Liabilities | |
| · Mortgage – [T property] (h) | 197,000 |
| · [Emergency Services] Credit Union (w) | 9,602 |
| Total Liabilities | $206,602 |
| Nett Assets | $80,844 |
| Nett Asset Pool (exclusive of Superannuation) | $80,844 |
| Superannuation | |
| · Wife’s superannuation (w) | 72,661 |
| Total Superannuation | $72,661 |
Different submissions were made as to what should be included in the balance sheet.
Following a mention of this matter on 8 July 2010, the wife’s solicitor was requested by the Court to provide evidence of the current value of the wife’s superannuation. In a letter dated 18 November 2010, the wife’s solicitor advised that the wife’s superannuation was valued at $98,726.
The value of the husband’s superannuation has increased as this matter has continued. Initially, it was valued at $639,082.21 and, more recently, it was valued at $688,416.73 as contained in the husband’s Form 6 of 13 October 2010.
There was conflicting evidence as to the valuation of the husband’s superannuation fund – that was as set out in his affidavit and that provided by a document, titled Superannuation Information Form (Exhibit “K”). That latter form ascribed a gross value of the husband’s fund of $639,082.21, but said that no lump sum is payable in the future, and clearly the calculation was made up of the value of the husband’s pension during his life expectancy. The husband however provided information as to the amount that might be drawn upon his application of an election available to him.To utilise the higher figure, were the fund to be drawn down would be unfair, and, to utilise the lower figure, were the fund never drawn down would be equally unfair.
I prefer to adopt an approach to the value and distribution of the husband’s superannuation separately from the pool of assets otherwise determined.
Superannuation
Each of the husband and the wife are members of superannuation schemes, the values of which have changed from those which were current in 2009. I propose to adopt the current superannuation values as more recently provided to the Court.
The wife’s interest in her superannuation fund is currently in the accumulation phase and is valued at $98,726.
The husband is in receipt of a pension in the sum of $45,635.85 per annum because of his medical condition which prevents him from working; he was previously receiving $44,041.22. The pension is being paid from a
non-allocated fund. The husband was entitled to receive and did receive an amount which was a basic benefit and which is taken into account by me under my considerations of the matters referred to in s 75(2) of the Act.
Exhibit “K”, tendered on behalf of the husband, is a statement, inter alia, from the husband’s superannuation scheme which specified the value of his fund at $639,082.21 as at 12 January 2009 and $661,651.81 as at 12 October 2009. As discussed above, the quantum of the value of the husband’s superannuation has subsequently amended to $688,416.73 as at 13 October 2010.
The current commutation value of the husband’s superannuation at 60 years of age is estimated by the Trustee to be $437,292.50. A letter from the husband’s solicitor advises that the next opportunity for commutation of the husband’s superannuation is in the six months prior to the husband’s 60th birthday which occurs in February 2015 and for the purpose of the orders I have used that sum as a valuation of the husband’s superannuation.
The wife seeks a splitting order as to an amount of 42.83% of the husband’s superannuation calculated mathematically on a basis that the parties’ superannuation entitlements are equally divided, subject to an allowance in favour of the husband under s 75(2) by reason of the fact that presently his sole support is the pension he receives and the wife is presently in employment. The wife currently receives a weekly income of $1,927 as disclosed in her Financial Statement filed on 4 February 2010.
However, it is the husband’s evidence that such a splitting order as sought by the wife does not comply with the regulations of the husband’s superannuation fund and that the trustee will not manage a split of the husband’s fortnightly pension on behalf of the wife. As a consequence, the husband’s solicitors provided a form of suggested draft orders providing seven days’ notice of the final splitting order and which requires the husband to pay from his fortnightly pension a regular sum into the wife’s bank account.
In her written submissions, the wife referred to the decision in Trott & Trott (2006) FLC ¶93-263 and submitted that Watts J’s assessment about a contribution to the pension, set out at paragraphs 141 to 145, was incorrect, and that the assessment of 15% as the wife’s contribution to the husband’s pension was much too low and should be adjusted to 50% - that being the same contribution-based adjustment as the superannuation.
In relation to s 75(2) factors, the wife concedes however that an adjustment in the husband’s favour ought to be made given that the wife is presently working whereas the pension is the husband’s only source of income. An affidavit by the wife deposing as to an apparent change of circumstances in her employment was rejected. The wife proposed that adjustment in the husband’s favour be 10% which would result in the wife receiving 40% of the husband’s pension.
In the abovementioned paragraphs of Watts J’s reasons for judgment, it was said that the wife could not claim any direct contribution following the husband being hurt on duty. The parties in that matter were not together at that time and the husband was not nursed or attended to by the wife in relation to his injuries. It was found that the wife had made post-separation contributions in relation to the parties’ two children which had increased due to the husband’s injuries. It was further found that additional burdens were placed on the wife during the marriage as a result of the husband applying for promotions and the parties relocating. The wife made contributions relevant to the amount of the husband’s salary as at the date of his discharge from the NSW Police Force.
In Trott & Trott (supra), the husband was in the NSW Police Force and had an interest in the SAS Trustee Corporation Pooled Fund under the Police Regulation (Superannuation) Act1906 (“PRSA”). The husband was medically discharged after sustaining injuries at work and as a result his superannuation entitlements and other benefits crystalised. The husband’s interest in his fund was in the payment phase and his superannuation interest was being paid by way of a periodic payment (a fortnightly pension). The wife sought that a percentage splitting order be made in respect of that periodic amount.
The husband’s interest was payable as a CPI indexed pension for life with the opportunity to commute part or all of the pension to a lump sum at age 60. Under the PRSA, the husband could also request the trustee to partially commute the pension at age 55 years.
His Honour considered it important to categorise the husband’s superannuation interest into two distinguishable parts: firstly, a non-commutable indexed pension to age 60, with a partial right to commute at age 55 and secondly, a commutable (ability to convert the pension into a lump sum) indexed life pension after the age of 60.
Justice Watts went on to determine the value of the husband’s superannuation interest and in doing so noted that the Family Law (Superannuation) Regulations 2001 (Cth) (“FLSR”) do not contain a method for valuing a pension interest in the payment phase which may later be converted to a lump sum. It was further noted by his Honour that the statutory formula also does not differentiate between the value of the husband’s superannuation interest before and after reaching normal retirement age.
Justice Watts referred to the decision of the Full Court of the Family Court of Australia (Bryant CJ, Finn and Coleman JJ) in Coghlan and Coghlan (2005) FLC ¶93-220 and said: “… Coghlan said it was important to give “proper recognition” to the “real nature” of the superannuation interests in question (paragraphs 67 and 68.”
Given that s 90MT(2)(b) of the Act provides that where the FLSR do not provide a methodology for determining the value of a superannuation interest, then “… the court must determine the value of the interest by such method as the court considers appropriate.”
In Trott & Trott (supra), his Honour noted (at paragraph 102) that a valuation of the superannuation had been carried out which was not in accordance with the Regulations on the assumption that the husband would commute the pension into a lump sum when he attained the age of 60 years. That report considered that the most appropriate method was to segment the superannuation into two, and which said:
The first is a valuation of the superannuation payable until the commutation option at age 60 becomes available. The method for this is the method in Schedule 5 for valuing a fixed term pension. The second is to value the superannuation from age 60 assuming that it is taken as a 50% pension and a 50% lump sum. The method for this is provided for in Schedule 6 but using factors from schedule 4 for growth of the interest until age 60.
His Honour went on to consider (at paragraph 109) that:
[a]ny discounting for the fact that the husband will not immediately receive the whole of the value of the amount in one lump sum is taken into account in the formula used to calculate the amount in the first place. Income streams of this nature are a valuable asset.
As in the present case, the husband in Trott & Trott (supra) was in receipt of a fortnightly pension (Category 1 of the superannuation interest) before the normal retirement age, as he was injured on duty. The husband’s entitlement was in accordance with the PRSA. The evidence was there had been a finding of permanent incapacity for his job. Under the Category 1 interest the husband could request that the pension be partially commuted when he turned 55 years, and 40% of the pension could be commuted for a period of five years under the PRSA.
His Honour considered the contributions to the Category 1 interest and the amount on which his superannuation interest was based.
In relation to the Category 2 interest, upon attaining 60 years of age the husband’s superannuation interests change. The husband’s superannuation interest is calculated by multiplying the member’s salary or office at the date of retirement or discharge with a service ratio, calculated upon completed years of service. This amount is payable upon the member attaining 60 years of age or upon earlier discharge. The husband was able to commute the whole of the pension at age 60 years.
Because the husband in that case had been injured on duty, his superannuation allowance after the age of 60 years changed from a defined benefit in the growth phase to a defined benefit in the payment phase to which a different calculation was then applicable.
In relation to contributions to the Category 2 superannuation interest, it was found that during the period that the husband made contributions to the fund from his salary, the wife continued in her role as parent. The husband was in the fund to the date of retirement for close to 23 years, 10 years of which time the parties were married. His Honour went on to consider contributions to superannuation made prior to and after cohabitation and further, whether it was appropriate to apply a “Webber and Webber” (1985) FLC ¶90-648 or “West and Green” (1993) FLC ¶92-395 formula in such a case. The wife’s contributions to the husband’s Category 2 superannuation was assessed at 40%, and a percentage splitting order of 15% was made in the wife’s favour in relation to the Category 1 superannuation interest.
Justice Watts went on to say:
205. It is my view that the wife should be entitled to a lump sum payment when the husband reaches the age of 60 should she choose that option. If the wife makes that choice and gives written notice to the husband, the husband will be required to commute his whole pension in order to make 40% of the resulting lump sum available to the wife (see paragraph 136 above). In Law-Smith and Seinor (1989) FLC ¶92-050 the husband was a 59 year old NSW Police Officer. The Full Court held that there was power under Section 114(1) FLA to order the husband to instruct the trustee to exercise their discretion to pay the husband a lump sum. In Clavijo and Clavijo (Ellis, Finn and Morgan JJ; unreported delivered 21 March 1996) the Court referred to Law-Smith and Senior without disagreeing with the observations made in that case.
206. If the wife doesn’t choose commutation of the husband’s superannuation interest to a lump sum when he reaches 60, then the husband himself can still choose to do so (and the wife would receive 40% of the resulting lump sum).
I respectfully concur with the reasoning of his Honour and propose to adopt a similar approach.
I find the assets and liabilities of the parties are as follows:
| Assets | ($) |
| · T property (h) | 200,000 |
| · Emergency Services Credit Union (h) | 34,420 |
| · IAG Shares (h) | 3,626 |
| · 2008 Hyundai Tuczon (h) | 18,000 |
| · Household contents (h) | 4,000 |
| · Other Personal Property (h) | 6,000 |
| · ANZ Bank (w) | 2,400 |
| · 2004 Holden (w) | 12,000 |
| · Household contents (w) | 2,000 |
| · Other personal property (w) | 5,000 |
| Total Assets | $287,446 |
| Liabilities | |
| · Mortgage T property (h) | 197,000 |
| · Emergency Services Credit Union (w) | 9,602 |
| Total Liabilities | $206,602 |
| Superannuation | |
| · Wife’s Superannuation (2010) | 98,726 |
| · Husband’s Superannuation valued as hereafter set out | 437,292.50 |
| Total Assets (including superannuation) | $823,464.50 |
| Nett Assets | $616,862.50 |
| Nett Asset Pool (exclusive of Superannuation) | $80,844 |
Section 79(4) Contributions
Initial Contributions
The husband and wife met when they were in high school. The husband completed Year 12 in 1973 and the wife completed Year 12 in 1974. They were engaged in 1975.
The husband’s affidavit evidence is that he commenced employment in the NSW Emergency Services within a matter of days of completing his Higher School Certificate examinations.
At the commencement of the marriage, the husband had $2,000 which had been gifted to him by his parents. Neither the husband nor the wife had significant assets at the commencement of cohabitation as they became engaged shortly after completing their secondary education. The husband however was employed for twelve months prior to their marriage and cohabitation.
Contributions to Date of Separation
In his written submissions, the husband asserts that his parents made a direct financial contribution to the property of the parties to the marriage by either providing them with rent-free accommodation for a period of 26 years or, on the wife’s case, providing them with the G property. The husband further says that his parents made ‘gifts’ in relation to the renovations of that property and that from time to time the husband and wife assisted the husband’s father in undertaking the renovations.
During the marriage, the husband was employed by the NSW Emergency Services and, in his written submissions, he says he contributed his income to matrimonial expenses.
During the marriage, the wife’s affidavit evidence is that she undertook various roles of employment. Upon the marriage, the wife worked at a supermarket and, thereafter from 1977 to 1983, she did not work, apart from casual work. Between 1983 and 1985, the wife worked as part-time for a travel company and, in 1985, she worked for the same company as a salesperson.
In 1988, the wife’s affidavit evidence is that she started her own business, as a sales consultant. In or about 1993, she was earning approximately $40,000 per annum working as a salesperson and, in 1996, she commenced work for the NSW Government, earning $25,000 to $30,000 which increased to $35,000 to $40,000 later that year.
The wife has been in her present employment since 1998, commencing at a salary of $50,000 per annum which had increased to $90,000 at the time of swearing her affidavit in August 2007.
On 3 May 1993, the wife said she filed for personal bankruptcy and obtained a Discharge on 4 May 1996.
The wife’s affidavit evidence is that, commencing from the two years prior to the marriage, the husband and wife renovated the G property and, while the husband was working shift work on the weekends, she would undertake work on the property with either set of parents. Details of the repair, maintenance and renovation which the wife asserted was undertaken on the property, and her contributions in relation to same, are otherwise set out in these reasons for judgment and I do not repeat them here.
The husband’s submission is that the wife made the primary contribution to the welfare of the children of the marriage, assisted by him.
In his Case Outline document, the husband sought that contributions be assessed 70% in his favour and 30% to the wife.
Contributions Post Separation
I find it appropriate, having considered the totality of the evidence, to treat the contributions of the parties to the marriage to the acquisition, conservation and improvement of assets, and to the welfare of the family, including in the role of homemaker and parent, as being equal.
Conclusion on Contributions
All in all, I assess the contributions of the husband and wife to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them, including such property which is no longer the property of the parties to the marriage or either of them, to be equal to the date of the hearing.
Section 75(2) Considerations
The husband received an employment payout of $66,252.22, comprised largely of annual leave and long service leave.
The husband joined the NSW Emergency Services in 1973 and he was medically retired in 2008 on the grounds of permanent incapacity. The husband’s superannuation entitlement is in the State Superannuation Scheme and the State Authorities Non-Contributory Superannuation Scheme.
The husband is now in receipt of a Superannuation Invalidity Pension upon which he is wholly dependent for financial support. In his affidavit filed on
4 February 2009, he said that he does not expect to be able to work again. Indeed, he has worked for the NSW Emergency Services since shortly after concluding his secondary education and he has always worked in this area of employment. He is now 55 years of age and, given his age and incapacity, he is unlikely to secure other employment in the future.
The husband says that he is entitled to receive a lump sum benefit. However, he says that it is not his intention to commute his superannuation to a lump sum and that he intends to continue to claim the pension entitlement.
The wife has clearly indirectly contributed to the husband maintaining entitlements under his superannuation scheme by virtue of her contribution aliunde to the marriage.
The husband owns property which is heavily mortgaged and in respect of which he has obligations for repayment. His equity in the property is minimal.
The wife has superannuation and an income higher than that of the husband.
The husband received certain benefits upon the termination of his employment by reason of his injuries.
Conclusion on s 75(2)
For all the reasons referred to above, and in the circumstances where the husband is in a dependent position in relation to his pension and the wife is employed, I find that an approximately 15% adjustment should be made in his favour in relation to their net assets, excluding their superannuation. There needs however to be recognition of the wife’s contribution to creation of the entitlement to the pension.
Accordingly, whilst ever the pension is paid the wife should receive 15% thereof. In the event that the husband converts the pension to a lump sum or otherwise receives a lump sum in whole or in part then the wife should receive 38.5% of such lump sum.
In thus calculating the husband and wife’s superannuation entitlements for the purposes of the division as set out below, the lump sum which would be received by the husband has been added to the wife’s superannuation entitlements, and equally divided, from which sum the value of the wife’s superannuation has been deducted.
Just and Equitable
In the circumstances of this case, I determine that result to be just and equitable.
Orders to be Made
I propose orders which will give effect to the following division in relation to the pool of assets of the parties to the marriage.
As a result of my determination that the husband will receive 65% of the husband and wife’s net assets (excluding superannuation) and the wife will receive 35% of the husband and wife’s net assets (excluding superannuation), this would result in an adjusting payment of $712.60 to be made from the wife to the husband.
However, as I propose that the husband and wife share equally in the funds held in the husband’s Emergency Services Employees Credit Union, I propose to deduct the amount of $712.60 from the wife’s entitlement to the balance of that account in effecting the final division of property between the husband and wife. This will result in the husband being required to transfer to the wife the sum of $16,497.40.
The wife will receive:
| Assets | ($) |
| · ANZ Bank (w) | 2,400 |
| · 2004 Holden (w) | 12,000 |
| · Household contents (w) | 2,000 |
| · Other personal property (w) | 5,000 |
| · Half of the funds on the husband’s Emergency Services Employees Credit Union |
|
| Total Assets (excluding superannuation) | $38,610 |
| Liabilities | |
| · Emergency Services Credit Union (w) | 9,602 |
| · Adjusting payment from wife to the husband | 712.60 |
| Total Liabilities | $10,314.60 |
| Net Assets (excluding superannuation) | $28,295.40 |
The husband will receive:
| Assets | ($) |
| · T property (h) | 200,000 |
| · Half the funds in the Emergency Services Employees Credit Union (h) |
|
| · IAG Shares (h) | 3,626 |
| · 2008 Hyundai Tuczon (h) | 18,000 |
| · Household contents (h) | 4,000 |
| · Other Personal Property (h) | 6,000 |
| · Adjusting payment from the wife to the husband | 712.60 |
| Total Assets (excluding superannuation) | $249,548.60 |
| Liabilities | |
| · Mortgage T property (h) | 197,000 |
| Total Liabilities | $197,000 |
| Net Assets (excluding superannuation) | $52,548.60 |
Superannuation
In relation to the husband and wife’s superannuation, I propose to deal with that as a separate pool and propose to do the following.
The wife will receive:
| Superannuation | ($) |
| · Wife’s Superannuation | 98,726 |
| · Wife’s entitlement to the husband’s superannuation | 169,283.25 |
| Total superannuation | $268,009.25 |
The husband will receive:
| Superannuation | ($) |
| · Husband’s Superannuation of $437,292.50 less $169,283.25 to be received by the wife |
|
| Total superannuation | $268,009.25 |
I certify that the preceding one-hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on
7 February 2011.
Associate:
Date: 7 February 2011
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