Whitehead and McKay
[2016] FCCA 2440
•30 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITEHEAD & McKAY | [2016] FCCA 2440 |
| Catchwords: FAMILY LAW – Financial – 90SM. |
| Legislation: Family Law Act 1975 (Cth) ss.75(2), 90SF, 90SM, 90SN |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Elford & Elford [2016] FamCAFC 45 Pierce & Pierce [1998] FamCA 74 Stanford & Stanford [2012] HCA 52 |
| Applicant: | MR WHITEHEAD |
| Respondent: | MS MCKAY |
| File Number: | SYC 33 of 2015 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 29-30 August 2016 |
| Date of Last Submission: | 30 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Coode & Corry |
| Counsel for the Respondent: | Mr Morley |
| Solicitors for the Respondent: | Lamrocks Solicitors |
ORDERS
That pursuant to s.90SM of the Family Law Act, the respondent pay to the applicant the sum of $111,505 within 42 days of today’s date.
That within 42 days and at the election of the respondent she either pay;
(a)A further sum of $20,000 the applicant;
(b)Split her superannuation to provide to the applicant by way of a super splitting order the sum of $20,200.
In the event the respondent choses to make a super split the following orders will apply;
(a)Pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever a splitable payment becomes payable to Ms McKay formerly McKay from her interest in the (omitted) Super Fund, Mr Whitehead is entitled to be paid a base amount in the sum of $20,200 and there is to be a corresponding reduction in the entitlement of Ms McKay formerly McKay would have had but for these orders.
That, having been accorded procedural fairness in the making of these orders, Order (4) binds the Trustee of the (omitted) Super Fund.
Thereafter the parties retain all assets including real estate, money in any bank account or superannuation account in possessions or control absolutely.
IT IS NOTED that publication of this judgment under the pseudonym Whitehead & McKay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 33 of 2015
| MR WHITEHEAD |
Applicant
And
| MS MCKAY |
Respondent
REASONS FOR JUDGMENT
The matter of Whitehead & McKay is an application by Mr M under section 92SN of the Family Law Act[1] for a division of property between he and his former de facto partner, Ms McKay. The reality is that all the property that the parties acquired during this relationship are in Ms McKay’s name.
[1] Family Law Act 1975 (Cth)
When the matter commenced to be heard Ms McKay’s position was that the applicant would receive no monies whatsoever. On the second day of the trial she tendered short minutes of order that she pay him $100,000, otherwise each keep all assets in their respective control.
Section 90SM of the Family Law Act is as follows:
“Alteration of property interests
(1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines..”
I am not to make an order under this section unless I am satisfied that in all the circumstances it is just and equitable to make the order. Section 90SM(4):
“(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent;
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship;”
The matters under section 90SF(3), which is complimentary with 75(2)[2] for a married couple are;
[2] Family Law Act 1975 (Cth)
a) Section 90SF(3):
“ (3) The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;”
This is a 17-year relationship where the parties cohabited from 1996 to 2013. The wife’s initial application was that I not proceed to make any adjustment for the property owned by the parties because of her overwhelming financial contribution to the acquisition of the current assets. Having conceded on day 2 of the hearing that I ought make an order to pay the husband $100,000 the respondent agrees with the position the Court would have taken that it would be unjust and inequitable not to look at this matter and determine whether there ought be an order made dividing the current property having regard to the length of the relationship and contributions made by each to the acquisition of that property.
Therefore I find it is just and equitable that I exercise my discretion under section 90SM(2) of the Family LawAct and embark upon the enquiry to determine whether, I ought make any order or an order as contended by the applicant.
The applicant seeks by way of order that a property owned by the respondent at Property K, be transferred to him. That would give him, on the balance sheet, a property worth $590,000. It currently has a mortgage of $255,000 and, if sold, would have a capital gains tax of around $79,000. The applicant says otherwise he does not seek to disturb the ownership of the respondent assets.
The evidence I read before the parties was mercifully short;
a)For the applicant;
i)Initiating application filed 7 January 2015,
ii)A financial statement filed 14 July 2016,
iii)An affidavit filed 14 July 2016,
iv)Affidavit of the husband filed 14 July 2016,
v)Affidavit of the husband’s brother, Mr M, dated 3 August 2016, and
vi)Affidavit of a building consultant, Mr C, filed 12 August 2016.
b)For the respondent;
i)Her response filed 18 February 2015,
ii)Her affidavit of 15 July 2016 and I also read her affidavit of 11 February 2015,
iii)Her financial statement sworn 5 July 2016; and
iv)An affidavit of Mr P filed 12 August 2016.
c)Both the applicant, respondent, the respondent’s brother Mr M and Mr P was cross-examined.
There were various exhibits tendered.
a)For the applicant;
i)Applicant’s Exhibit 1: A letter from Coode Corey Solicitors to the wife dated 23 January 2014,
ii)Applicant’s Exhibit 2: Account statements of the wife, 29 August 2016, of the (omitted) Bank and (omitted) Bank,
iii)Applicant’s Exhibit 3: Joint balance sheet,
iv)Applicant’s Exhibit 4: Site report from (omitted),
v)Mr C’s affidavit filed in the applicant’s case went in unchallenged in that I agreed with the position taken by Mr Morley that the evidence of the value of work the husband says he carried out at the various properties owned by the respondent and the current value of that work is not a relevant consideration for me. I accept that submission.
vi)The affidavit was relevant to the scope of work the applicant says he undertook.
b)For the respondent;
i)Respondent’s Exhibit 1: 2011 to 2013 tax letters from the ATO in relation to the husband’s declared income,
ii)Respondent’s Exhibit 2: letter from the de facto husband to the magistrate in 2011 relating to driving under the influence of drug charges dated 27 October 2011, and
iii)Respondent’s Exhibit 3: four letters from the applicant’s various superannuation funds.
There was an agreed balance sheet tendered and the assets are these;
Assets
Ownership
Description
Amount
Wife
Property H
$730,000
Wife
Property K
$590,000
Wife
The balance of the proceeds of sale of the respondents property at Property C
$49,807
Wife
Volkswagon Motor Vehicle
$18,000
Wife
(omitted) Bank Account
$194
Wife
(omitted) Bank account in the respondent’s name, which is inheritance from her parents
$23,000
Husband
(omitted) Ski Boat
$3,000
Husband
Toyota (omitted)
$2,100
Husband
(omitted) Bank Account
$650
Total
$1,416,751
a)I will deduct from those assets the inheritance the respondent received from her parents of $23,000 and $200 in her bank given the length of separation of 3 years.
b)This gives a total of $1,393,551.
The liabilities are;
Liabilities
Ownership
Description
Amount
Wife
Car Loan
$22,000
Husband
Loan from Ms S for car
$1,500
Husband
(omitted) Bank for his legal costs
$18,000
Wife
Mortgage over Property K
$255,000
Total
$296,500
I will allow the husband’s loan from Ms S, the wife’s Toyota loan and the mortgage over Property K, $255,000. I will take into account the husband’s liability of $18,000 for legal fees but this is not a relationship debt.
That is a total indebtedness of $278,500.
The net available is $1,115,051.
Superannuation;
Ownership
Description
Amount
Husband
(omitted) Superannuation – Retirement Account
$13,830
Wife
(omitted) Superannuation – Accumulation
$327,000
Total
$340,830
I propose to deal with this matter by way of a two-pool approach. These parties have many years before they can access their superannuation, just being over the age of 50 and it is appropriate, in those circumstances that I treat the liquid and superannuation assets differently. It is clear that the wife’s current superannuation was acquired in the main over the 17-year relationship.
The wife’s case is that she brought into the relationship the property at Property H. She arranged for and purchased the property at Property K. She arranged for and purchased the property in Property C. She paid all outgoings, all mortgage costs, all rates and taxes, all maintenance costs for all of the properties during the relationship from her income and that her contribution to the current asset base is overwhelming.
The husband’s case is that the parties significantly renovated Property H in about 2004 to 2005. That his then skills as a (occupation omitted), an occupation he carried out at that time, were a significant contribution by him towards the ultimate value of Property H. He asserts he gave his labour for free and his expertise for free.
He tiled various rooms, bathrooms and the like at the Property H property. Additionally, he tiled the property at Property K and added to the value of that property. It is fairly clear from the evidence and the husband conceded that the respondent paid all outgoings in respect of all properties and that he had absolutely nothing to do with mortgages, refinancing, purchase or sales of properties.
It is also clear the respondent paid for all the outgoings, including rates and taxes on the property. The applicant made no financial contribution to those costs. He also conceded that when renovations and the like were carried out by the parties, that it was the respondent’s income that paid for all the cost of renovation, landscaping, erection of pool, purchase for fences, putting in a pool and all other items necessary to carry out the renovations.
The applicant’s case is he paid for some electrical work at a cost of $2,500 and was, at times, able to obtain tiles, glue and the grout and the like from work he did. However it is apparent from the evidence that it was the respondent who paid all other costs of the renovations and that the applicant’s contribution to this relationship has been his labouring and expertise as a (omitted) and his maintenance of the home whilst the parties were together.
The respondent conceded that the husband maintained the outside of the home and that this was a task he carried out during the relationship; however, without the respondent’s income and her ability to pay costs associated with renovation, acquisition and maintenance, the applicant would have had no properties to maintain, conserve or assist in the renovation of.
The applicant’s case is set out in his affidavit. It is apparent that he carried out the work he deposes to at the time the parties determined to renovate Property K. It is also apparent that this was a joint venture.
They agreed the property would be renovated. They each worked towards that renovation. The applicant by his labour and physical exertion, the respondent by all the money and some physical exertion well which the applicant readily agreed to.
This was a joint endeavour and it is simply not profitable to re-create history, as the respondent initially tried to do, and say that the applicant had nothing to do with these matters when it is clear he did. The respondent sought to minimise or not acknowledge his efforts and contribution by not referring to work he carried out at Property K and Property H. Her position was that he had made no contribution to the current value of these properties.
The applicant did work on these properties and his work is as follows:
a)He paved an area at Property H between 1996 and 1999.
b)When the pool was installed, he agreed, Ms McKay helped him landscape the property, plant plants, laid grass and the like. He and his brother put coping around the pool. Ms McKay paid for that coping. He and his brother erected the pool fence. Ms McKay paid for the cost of the fence erected.
c)He installed a large garden shed in the property given to him by his cousin. He laid the foundation for the shed. This required him to remove items in the backyard being a pool.
d)When he first lived at Property H he assisted with the first extension to Property K which was the addition of a family room and new kitchen. He demolished a wall; demolished some bedrooms and took the kitchen away. Skips were hired.
e)The applicant was very involved in carrying out of the first extension to the property, being the addition of the family room and re-doing the kitchen. The husband’s cousin, Mr A, installed the kitchen. It is caler he was involved in this work
f)He tiled the entire family room area and kitchen area. He and his brother installed the splashbacks and kitchen benches for the new kitchen top.
The respondent agreed in cross examination of the level of the applicant’s work on the first renovation. She did not agree that he demolished the entire kitchen himself, however, I was satisfied after hearing his evidence that he was directly involved in this particular renovation. He was not working much at this time or earning much income and he had the time and skill to do this work.
I accept the respondent’s position that any income the applicant earnt was not going into the renovations of the property. However he was working on her property.
In 2005 the respondent determined to carry out a large renovation by adding a top floor to the home. This renovation was carried out by Mr P and his company (omitted). After hearing Mr P’s evidence it is caler his company carried out this construction.
However, the applicant fully tiled to the two new bathrooms and laid lino in a family room upstairs. Exhibit 4 sets out work the owners were to do which is painting, internal and external and wall and floor tiling. The parties agreed each of them painted and that this painting is still not completed.
All plumbing and drainage to the bathrooms was to be by owners. All the sealants by owners. Ceramic tiles by owners. Supply and installation of all PC items, vanity shower screens, taps and towel rails by owners. All internal and external painting by owners. The parties did these works although painting is not yet complete.
The applicant sets out in his affidavit at paragraph 28 the work he carried out in relation to the second story addition.
Neither the respondent nor applicant set out in their affidavits the work the other assisted them in carrying out. I make no criticism of that as each made full disclosure and conceded when they were pushed in cross-examination about the assistance rendered by each to each.
The applicant clearly water-proofed and tiled the ensuite and main bathroom upstairs. The applicant conceded that the respondent paid for all the tiles, taps, fittings, whitegoods, PC items and the like, that a friend of his measured up for the shower screen but that Ms McKay paid for the shower screen.
The applicant said he did the majority of the painting but conceded Ms McKay did some. I accept this evidence. Ms McKay was working and was the powerhouse in earning the money in the relationship. This was not the nature of the applicant’s contribution at all. I accept the applicant’s case that he paid for electrical costs of some $2,500 after (omitted) had completed their work, which was installing ceiling fans and underfloor heating.
The respondent made the concession of the work but not the amount. I accept he paid this sum, as it was one of the few costs he was clear about. I accept he laid the vinyl floor and that Ms McKay helped him but it was his skill and expertise in the building industry that was the main stay of that endeavour. I accept that he took out tiles that he had previously laid in the family room area and laid wood as Ms McKay wished and although Ms McKay paid for the wood he clearly did this work.
I accept that the parties together landscaped the front yard in 2004 after the home was renovated and that Ms McKay paid for curb and guttering and edging and that he completed a part of the driveway. The driveway was only part completed and the applicants finished it.
I accept he was instrumental in designing and creating the large al fresco area at the back of the home which is detailed in Mr C’s report. He conceded he did not pay for a stacked stone wall as he set out in his affidavit but that he laid it. He agreed Ms McKay paid for everything.
This man very rarely put his hand in his pocket to pay for any of the renovations because either he did not have the income to pay for it or he was, as the respondent says, using his own income for his own purposes, sitting at the pub drinking.
In cross examination the respondent conceded that when Property K was purchased by her, the applicant tiled that property, being the lounge, entry, dining room, kitchen, hallway and laundry and that they each painted the inside of the home. The applicant clearly had more time than the respondent because he was not working much at all at this time.
As to his work history he worked for his brother for about 10 years off and on. He worked for other people when the work was available and he was often paid in cash. Receipt of cash is clear. The applicant did not complete any tax returns until after separation.
His notices of assessments in respondents exhibit 1 show income in 2011 of $11,424, in 2012 of $24,457 and 2013 of $23,792. He’s now earning a thousand dollars a week and has a permanent job, something he never achieved whilst the parties lived together.
He is earning more money now than he ever did during the relationship and the respondent would have her own reasons for why this is so. He was a modest income earner and if he did earn money it was often in cash.
I accept the respondent’s evidence that very little of that cash found its way into the support of the family, the maintenance or conservation of the properties or contribution to rates and taxes. It was his labour that he gave and, effectively, only his labour. I accept these parties mutually supported each other.
I accept the applicant’s evidence that he mainly prepared the food because the respondent was working and it was something he enjoyed doing. However, the purchase of the food, the respondent said, was something they did together and although the applicant would have me believe he purchased the majority of the food because he purchased it each night, I find there has been an equal contribution by them to the purchase of the food. I find that he was the one who did the majority of the cooking because he simply had the time to do it she did not.
I was referred to, in the case outline prepared on behalf of the applicant, various cases: Elford & Elford[3], Pierce & Pierce[4], Stanford & Stanford[5] and Bevan & Bevan[6]. I am satisfied I should embark upon a determination of whether I ought to adjust the current holding of the parties property.
[3] Elford & Elford (2016) FamCAFC 45
[4] Pierce & Pierce (1998) FAMCA 74
[5] Stanford & Stanford (2012) HCA 52
[6] Bevan & Bevan (2013) FamCAFC 116
I accept that the respondent has made an almost overwhelming financial contribution to the current asset base, which is not insubstantial, being two items of real estate, money in the bank and her superannuation. The respondent has made this contribution by bringing into the relationship Property H, by continuing to grow the parties’ wealth by her judicious investments, remortgaging, refinancing when interest rates were low and carefully watching the property market, by her sole payment for all costs associated with maintaining all of her properties and all costs of the renovation of property carried out by the parties. The applicant’s contribution has been his labour and his skills as a (occupation omitted) generally.
As set out in paragraph 15 the net liquid assets for division are $1,115,051. The respondent is seized $1,110,051 and the applicant of $5,000.
The respondent is additionally seized of superannuation in the amount of $327,000, and the applicant $13,800.
The imbalance in property ownership is stark. The respondent would say that is how it was in the relationship. Whatever the husband earnt, he spent on his life-style and not on assets creation and that this was his choice. The respondent says “I used my money to acquire assets” and today giving him $100,000 is seven per cent of the asset pool.
Looking at the principles of Pierce & Pierce[7] it is clear that the respondent made at the commencement of the relationship a 100 per cent contribution. The applicant came into the relationship with nothing, and he left the relationship with nothing. The respondent continued her substantial and overwhelming financial contribution to the assets during the relationship and post separation.
[7] Pierce & Pierce (1998) FAMCA 74
Contributions made by the applicant were his skill in tiling and other building activities, his knowledge of the area, his relationships with for example, with his cousin who put the kitchen in, a friend who installed the shower, obtaining tiles, grout, glue and the like, at times, if not free, at a substantially reduced cost. He maintained the outside of the home at Property K when he lived there and that this contribution continued throughout the relationship. The respondent agreed he maintained the yard at Property K.
However, his initial contribution by way of continuing to add value to the respondent’s properties at Property K and Property H, by tiling, painting, gyprocking and the like waned in the latter part of their relationship, particularly after the major renovations were carried out. Although the respondent continued her contributions at the same level they were at the commencement of the relationship throughout the relationship the applicant’s contributions had significantly waned by the day of separation.
The respondent was made redundant in 2006, and she, as always, being fiscally responsible, paid off the existing mortgage on Property H and that property has been unencumbered since 2006. She commenced a new job immediately and continued in her substantial role as (occupation omitted). The applicant made no such substantial contribution at any time during the relationship.
I would assess the applicant’s contribution-based entitlement directly to the current asset value, being all three properties the parties had during the relationship at 15 per cent.
However, what I also must take into account is that the applicant had the benefit of occupation of a substantial home, a quality home, effectively rent-free for 17 years and that benefit must be taken into account in assessing his overall contributions.
He paid no outgoings on that property whatsoever. Never once paid a rate, a tax, electricity bill or a phone bill. Left it all up to the applicant. He did not pay his way day to day in this relationship.
His contribution in the day-to-day ongoing maintenance of the home at Property K, although clear, is overwhelmed by the respondent’s continued contribution during and post the relationship to the financial maintenance of these properties.
Looking at the balance sheet it is clear that the respondent is in a far superior financial contribution. Neither seeks a super-splitting order yet with the significant imbalance in superannuation the bulk of which was acquired during the 17 year relationship ordinarily an adjustment would be made. I can make a super splitting order in any event.
The relevant factors are in doing justice and equity between the parties that the applicant effectively lived in this home for 17 years rent-free and at times was supported 100 per cent by the respondent.
Additionally the 100 per cent support of the applicant including maintaining all outgoings on the home occurred in circumstances where the parties had no children of their own, the applicant was well able to work, he had no diminution in his working capacity and his children came to this home for 10 years each alternate weekend.
The applicant’s contribution by way of his labour to the value of the respondent home is of small compass when one has regard to the contribution of the respondent not only to the properties but to the applicant directly and his children.
I find having regard to section 75(2)(o) of the Act[8] that the above matters are relevant and I will reduce the applicant’s entitlement by 5 per cent to 10 per cent of the asset pool today.
[8] Family Law Act 1975 (Cth)
In relation to superannuation the total superannuation is $340,830. To do justice and equity between the parties I propose to make a super splitting order of 10 per cent of that pool to the applicant given the bulk of this fund arose during the relationship. This would be superannuation to the applicant of $34,000. He is currently seized of $13,800. This requires super splitting order of $20,200 to the applicant and I will so order.
I will not make any adjustment for the future needs of the parties. They are both working and supporting themselves.
What does my proposed order for 10 per cent of the liquid assets to the applicant that mean today?
The net pool is $1,115,051. A 10 per cent division of the net property pool is $111,505. Although the applicant has $5,500 in property I will not reduce the figure I propose to award him by that amount in the exercise of my discretion.
If the respondent does not wish to have her superannuation split she can discharge that order by paying the applicant an additional $20,200 and I will give her 42 days to make that determination.
Looking back at the orders I propose to make. The respondent will seized of property worth $900,000 and some $317,000 in superannuation. The applicant will be seized of $116,000 odd with his cars and the like and $34,000 in superannuation or an additional $20,000 cash and only $13,800 in superannuation at the respondent’s choice. After a 17-year relationship where there are no children and the respondent as made the overwhelming superior financial contribution pre and post separation to the asset base I find this is a just and equitable order in all the circumstances and I will so order.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Henderson.
Date: 26 September 2016
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Procedural Fairness
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Remedies
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Statutory Construction
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