WILMOT & WILMOT
[2017] FCCA 2765
•20 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILMOT & WILMOT | [2017] FCCA 2765 |
| Catchwords: HELD – Order made that the Wife provide written confirmation to the Husband’s solicitor that she can borrow sufficient funds to refinance the mortgage on the former matrimonial home and make a cash payment to the Husband – order that if the Wife is unable or unwilling to refinance, the former matrimonial home be sold – superannuation splitting order made that if the Wife can refinance and make a cash payment to the Husband, $45,000 of her entitlement to the Husband’s superannuation be offset against the Husband’s entitlement in the fund and if she cannot refinance there be a superannuation splitting order that equalises the parties’ superannuation entitlements. |
| Legislation: Family Law Act 1975 (Cth) ss.75(2), 79 |
| Cases cited: Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395 Stanford v Stanford [2012] HCA 52 Bevan and Bevan [2013] FamCAFC 116 Bevan & Bevan (No 2) (2014) FLC 93-572 |
| Applicant: | MR WILMOT |
| Respondent: | MS WILMOT |
| File Number: | NCC 1843 of 2016 |
| Judgment of: | Judge Bender |
| Hearing date: | 13 September 2017 |
| Date of Last Submission: | 13 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 20 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levick |
| Solicitors for the Applicant: | Gianacas Argiris McDonald |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Not applicable |
ORDERS
By 4:00pm on 20 December 2017 the Wife provide proof to the Husband’s solicitors by way of written confirmation from a lending institution or other nominated lender that she can borrow $390,000 to refinance the mortgages on the property at Property A (“the former matrimonial home”) and pay the Husband the sum of $45,000 (“the written confirmation”)
In the event the Wife complies with order (1) herein:
(a)the Wife pay to the Husband the sum of $45,000 (“the payment”) within 30 days of providing the Husband’s solicitors with the written confirmation;
(b)contemporaneously with the payment the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife, all of his right, title and interest in the former matrimonial home; and
(c)the Wife indemnify the Husband against all payments and liability pursuant to the mortgages and all apportionable rates, taxes and outgoings of or with respect to the former matrimonial home.
In the event the Wife is unable to, or elects not to comply with order (1) herein, then the parties shall do all such acts and execute all such documents necessary to place the former matrimonial home on the market for sale (“the sale”) and upon settlement of the sale the proceeds be paid as follows:
(a)firstly to all costs and commissions of the sale;
(b)secondly to discharge any outstanding mortgages
(c)thirdly to pay all outstanding rates, taxes and outgoings on the property; and
(d)fourthly the balance to be divided between parties as follows:
(i)57.5% to the Wife; and
(ii)42.5% to the Husband.
Pending the payment or the sale:
(a)the Wife have the sole right to occupy the former matrimonial home and during such right of occupation the Wife pay all instalments pursuant to the mortgages and all rates and taxes and like apportionable outgoings of the former matrimonial home as they fall due;
(b)the parties hold their respective interest in the former matrimonial home upon trust pursuant to these orders; and
(c)neither party encumber the former matrimonial home without the consent in writing of the other party.
Each party shall be responsible for any Capital Gains Tax assessed against them arising from the sale of the (omitted) Investment.
Orders (6) to (10) of these orders are binding on the Trustee of the (omitted) Super Fund (“the Fund”).
Pursuant to section 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the superannuation interest of Mr Wilmot (member number (omitted)) (hereinafter referred to as the Husband) in (omitted) Super Ms Wilmot (hereinafter referred to as the Wife) shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the Husband, such base amount to be:
(a)$40,000 in the event the Wife complies with order (1) herein; or
(b)$85,205 in the event the Wife is unable to or elects not to comply with order (1) herein.
Order (7) shall take effect from the operative time and shall bind the Trustee.
The operative time for the purpose of orders (7) and (8) above shall be the beginning of the fourth business day after the day on which a sealed copy of these orders is served on the Trustee.
The Trustee of (omitted) Super in accordance with the obligations set out in the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 shall do all acts and things and sign all such documents as may be necessary to calculate the entitlement of the Wife and make payment in accordance with these orders.
The tools of trade and memorabilia be forthwith sold by auction or such other means of sale as agreed between the parties and in the event the parties are unable to agree on the manner of sale, they are to be sold in such manner and by such person/organisation as nominated by the Auctioneers and Valuers Association of Australia.
Upon sale of the memorabilia and tools pursuant to order (11) herein, the proceeds of sale are to be divided as follows:
(a)firstly to all costs and commissions of sale (if any);
(b)secondly, the balance be divided between the parties as follows:
(i)57.5% to the Wife; and
(ii)42.5% to the Husband.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner/beneficiary named therein;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Wilmot & Wilmot is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1843 of 2016
| MR WILMOT |
Applicant
And
| MS WILMOT |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties in this matter are seeking property orders following the breakdown of their 17 year marriage.
The Husband is seeking orders that the former matrimonial home at Property A (“the former matrimonial home”), the (omitted) Investment and the parties’ collection of memorabilia and tools be sold and that the net proceeds of sale be divided such that the Wife receives 55% of same and he receives 45% of same.
The Husband also seeks an order that there be a splitting order that will equalise the parties’ superannuation entitlements. It is the Husband’s submission that a splitting order is appropriate given he and the Wife are only in their forties and neither will be able to access their superannuation for some 20 years.
It is submitted on behalf of the Husband that such an outcome is just and equitable as it allows an appropriate adjustment in the Wife’s favour for his slightly higher earning capacity and because the Wife has the sole care of the parties’ two children X born (omitted) 2000 (“X”) and Y born (omitted) 2005 (“Y”) and provides him with a cash payment to enable him to re-establish himself.
The Wife is seeking that orders be made that will enable her to retain the former matrimonial home.
It is the Wife’s evidence that the former matrimonial home is very important to her. It has great sentimental value as her late father helped the parties to build it. She also wants X and Y to be able to stay in their home.
The Wife seeks an order that there be no superannuation split and that her entitlement to the Husband’s superannuation be offset against any payment she would be required to pay the Husband for his share of the former matrimonial home.
The Wife asks that when considering a division of property between the parties, the Court take note of her greater contributions as parent and homemaker as she provided the majority of care to X and Y both during and after the marriage, her sole care of X and Y into the future and the Husband’s greater income earning capacity.
Background
The Husband was born on (omitted) 1971 and is aged 46. He is a (occupation omitted) with (employer omitted) earning $93,000 per annum. The Husband has repartnered with Ms S and lives with her in her home. He pays Ms S $400 per week as his contribution to their living costs.
The Wife was born on (omitted) 1972 and is aged 45 years. She is employed as a (occupation omitted) and earns $63,000 per annum. She has not repartnered.
The parties met in (omitted) 1990. In 1995 they jointly purchased a block of land at Property A for $54,000. They borrowed the purchase price and jointly serviced the loan which was paid off by the time construction of the former matrimonial home commenced in 1997.
In 1997-8 the parties built the former matrimonial home as owner builders. They were greatly assisted in this task by their extended families and friends. Both parties’ fathers assisted most days in the construction of the home.
The Wife’s father was a qualified (occupation omitted) and the Husband a qualified (occupation omitted). They were able to utilise their contacts in the building trade to engage friends and tradesman to assist in building the home.
The parties commenced cohabitation in (omitted) 1998 when they moved into the completed former matrimonial home. They married on
(omitted) 1998.
Throughout the marriage the parties borrowed additional funds on the mortgage over the former matrimonial home to build a deck on the home, install an in-ground pool and to purchase two new cars.
In (omitted) 2006 the Husband left (employer omitted) where he had been employed (occupation omitted) and joined the (employer omitted). For six months he undertook training in (omitted) during the week and returned home to (omitted) on weekends.
Prior to the birth of the children the Wife worked full-time. She returned to part-time employment after taking approximately 12 months maternity leave after the birth of each of the children.
In September 2012 the parties purchased an (omitted) Investment on the advice of their financial advisor. The parties borrowed the totality of the monies needed to purchase the investment and the loan was secured by way of a second mortgage over the former matrimonial home.
Throughout the marriage the parties maintained separate bank accounts into which each had their salary paid. The mortgage, utilities, water and rates were paid from the Husband’s account. The family’s other expenses, including school expenses, clothing, food, petrol, mobile phone, Austar, gym expenses and the like were paid from the Wife’s account.
It is the Husband’s evidence the Wife controlled the parties’ finances during the marriage. It is his evidence he would give the Wife the eftpos card to his account and she would use it to pay the mortgage, the bills, food, petrol and other expenses. The Wife would then return the card to the Husband.
It is the Husband’s evidence that during the marriage the Wife obtained and used credit cards to pay various bills and debts. It is his evidence that whilst the cards were taken out in his name, the Wife was a secondary card holder and the only one to use the credit cards.
The Wife refutes the Husband’s evidence that she controlled the parties’ finances. It is her evidence that it was the Husband who insisted they maintain separate accounts and that he would insist the money in his account was his money to use as he pleased.
It is the Wife’s evidence that she used all her money to meet X and Y’s expenses and that she was never able to get ahead to the extent there were times she had to ask her family for money to ensure payment of various expenses.
It is the Wife’s evidence she would use the credit cards to pay various bills at times but the Husband would become very angry when she did so.
During the marriage the parties collected a large quantity of memorabilia including toy cars and collectible model cars. The Husband also had a workshop full of tools. Whilst the Wife estimates the value of the memorabilia to be $40,000 and the tools to be $25,000, they have not been professionally valued. Neither party wishes to retain either the memorabilia or the tools and it was agreed during the final hearing that they would be sold.
The parties separated in late December 2015 when the Husband left the former matrimonial home.
From late December 2015 until 13 February 2016 the Husband continued to pay the mortgages and household expenses. From 13 February 2016 until 26 June 2016 the Husband paid half the mortgages together with half of the home contents insurance and rates.
From 26 June 2016 until 31 December 2016 neither party paid the first mortgage secured over the former matrimonial home. The mortgage was $8,000 in credit at separation and this was used to offset the mortgage payments.
From January 2017 the Wife has paid the home mortgage.
Neither party made any payments in relation to the (omitted) Investment loan between 26 June 2016 and 30 June 2017. The Wife has made two payments since that date.
Whilst there was an exchange of correspondence between the parties about the need to sell the (omitted) Investment, neither party could agree who would service the loan taken out for its purchase and who would be responsible for any shortfall between the sale price and the mortgage taken out for its purchase. The parties only agreed to the sale of the (omitted) Investment at the conclusion of the final hearing. Accordingly, an interim consent order was made at the conclusion of the hearing for its sale.
At the date of separation there were two credit cards in the Husband’s name, a (omitted) Bank Visa card with $1,800 owing and a (omitted) Bank Visa card with $3,400 owing. The Husband paid the credit cards post separation. He obtained a (omitted) Bank credit card after separation which he used to pay out the existing two credit cards as the (omitted) Bank credit card offered an interest free period.
The Husband has paid child support for X and Y at the assessed rate since separation. He is currently paying $340.25 per week.
The Husband initiated proceedings on 20 July 2016 seeking both parenting and property orders.
When the parties first separated the Husband spent some limited time with X and Y. Sadly, he currently has no relationship with them.
On 8 December 2016 the Husband through his solicitors advised the Wife and the Court that having read the section 11F Child Inclusive Memorandum dated 11 October 2016, he was discontinuing his application for parenting orders.
The Evidence
The Husband relies on his trial affidavit sworn 14 August 2017 and his Financial Statements sworn 14 July 2016 and 14 August 2017. The Husband also gave vive voce evidence at the final hearing.
The Wife relies on her trial affidavit and Financial Statement sworn
7 August 2017. The Wife also gave vive voce evidence at the final hearing.
Despite there no longer being any application for parenting orders before the Court, both parties devoted three quarters of their trial affidavits to parenting issues. By agreement, neither party was cross-examined on those aspects of their trial affidavits.
The Issues
Having read the material relied on by the parties, heard their evidence, considered their proposals and having heard their submissions, the issues requiring adjudication in order to determine financial matters between the parties are as follows:
a)what, if any adjustment should be made for the parties’ contributions to the pool of assets;
b)what adjustment should be made in the Wife’s favour for section 75(2) factors and in particular;
i)the disparity in the parties’ earning capacity; and
ii)the Wife having sole responsibility for X and Y;
c)should there be a superannuation splitting order equalising the parties’ superannuation entitlements or should the Husband retain some or all of his superannuation to enable the Wife to have the capacity to retain the former matrimonial home.
The Law
Section 79 of the Family Law Act 1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interests of the parties in property. Those matters are:
“(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage 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 marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.”
The matters to be taken into account under section 75(2) of the Act are as follows:
“(a) the age and state of health of each of the parties; 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 marriage 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 (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, 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
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; 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 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; 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
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.”
The High Court in the matter of Stanford v Stanford [2012] HCA 52 held that prior to making orders for the division of the property in which the parties have an equitable interest in accordance with the provisions of section 79 of the Family Law Act 1975 (“the Act”), the Court must first determine that it is just and equitable that the Court make such orders.
The High Court in Stanford (supra) held that in the majority of matters the decision as to whether it is just and equitable for the court to make property orders is easily resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.
This is such a matter, and thus it is apparent it is just and equitable that orders be made adjusting property matters between the parties.
Prior to the decision in Stanford (supra), a trial judge would follow the four step approach in determining how to alter property interests between the parties as articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395.
The four step process set out in Hickey is as follows. Firstly, the Court will determine the nature of the property pool and attribute valuations. Secondly, the Court considers the contributions of the parties to the property pool including direct and indirect financial contributions and non-financial contributions often in the form of homemaker or parent. Thirdly, and after considering entitlements based on contributions the Court determines whether any further adjustments to either party’s entitlement is proper, given the considerations under section 75(2) of the Act. Finally, the Court stands back and considers whether the proposed division of the property is just and equitable pursuant to section 79(2) of the Act.
The High Court in Stanford (supra) and subsequently the Full Court in Bevan and Bevan [2013] FamCAFC 116 observed that this four step approach should not be rigidly followed.
However, the Full Court in Bevan & Bevan (No 2) (2014) FLC 93-572 also indicated that in the majority of property cases, the four step approach is an appropriate manner in which to approach the determination of the division of properties between parties once the Court is satisfied that such division is just and equitable.
I am satisfied that this is a matter where the four step approach of Hickey is the appropriate approach to be taken to determine a just and equitable division of property between the parties.
Assets and Liabilities
The parties are in agreement that the former matrimonial home is valued at $540,000.
The Husband drives a Toyota (omitted) and the Wife a Mitsubishi (omitted). It is agreed between the parties that they will each retain their current motor vehicle and that it is not necessary to include them in the pool of assets for division between them.
As set out in paragraph [31] of the judgment, interim orders were made at the conclusion of the final hearing which provided for the sale of the (omitted) Investment and for the proceeds of sale to be used to discharge some or all of the loan taken out for its purchase.
In accordance with the Notation to the interim orders made
13 September 2017, the Husband’s solicitors have advised my Chambers that the (omitted) Investment has sold and that the parties received $44,310.33 from the sale of that investment. These funds were used to reduce the second mortgage to the (omitted) Bank secured on the former matrimonial home from $56,054 to $11,743.67.
The Husband’s solicitors have also advised my Chambers that the Husband’s estimated Capital Gains Tax on the sale of the (omitted) Investment is $1,200 and the Wife’s estimated Capital Gains Tax is $600.
Further, as set out in paragraph [25] of this judgment, the parties have a large quantity of memorabilia which they collected during the marriage. The Husband also had a workshop full of tools. Neither party wishes to retain either the memorabilia or the tools and have therefore agreed that those items are to be sold.
Accordingly, the pool of assets for division between the parties is as follows:
| Pool | |
| Property A | $540,000.00 |
| less first mortgage | -$332,515.00 |
| less second mortgage (balance (omitted) loan) | -$11,743.67 |
| $195,741.33 | |
| Superannuation | |
| Husband's (omitted) superannuation | $217,815.00 |
| Wife's (omitted) superannuation | $47,405.64 |
| $265,220.64 | |
| Memorabilia / Tools | to be sold |
Contributions
It is submitted on behalf of the Husband that the parties’ contributions should be considered to be equal.
It is submitted on behalf of the Husband that the building of the former matrimonial home was the joint effort of both he and the Wife, as well as there being considerable assistance from his father, the Wife’s father and members of their extended families and friends.
The Husband agrees that his former father-in-law brought his expertise as a (occupation omitted) to the construction of the home and that he and the Wife were able to utilise tradesmen known to both the Wife’s father and himself.
It is the Husband’s evidence that in addition to the work undertaken by he and the Wife, their family and friends during the construction of the former matrimonial home, he installed the air-conditioning into the home and undertook the majority of the landscaping to the home.
It is the Husband’s evidence that during the marriage both he and the Wife contributed as parents and homemakers.
It is the Husband’s evidence that prior to separation he had a close and loving relationship with X and Y. It is his evidence that his estrangement from X and Y since separation has not been what he wants and has come about because the Wife actively undermines his relationship with them.
It is the Husband’s evidence that he pays appropriate child support for X and Y, currently at the rate of $340 per week, and that he has done so since separation.
It is submitted by the Wife that she made by far the greater contribution as parent and homemaker, both during the marriage and since separation.
It is her evidence that the Husband had very little involvement in the care of X and Y during the marriage and that it was she who was responsible for taking them to all their medical appointments, attending to all their school requirements, including attendance at parent-teacher interviews, concerts, speech nights and the like, assisting in their extra-curricular activities as well as performing the majority of household duties.
It is the Wife’s evidence that the breakdown in the Husband’s relationship with X and Y is because of his very poor relationship with them and because of his behaviour towards them during the relationship and since separation.
The Husband strongly refutes the Wife’s evidence that he was not a “hands-on father” during the marriage. It is his evidence that he was involved in both X and Y’s sporting activities, would take them to school and did attend parent-teacher interviews and medical appointments.
In relation to the former matrimonial home, it is the Wife’s evidence that her father had a major role in its construction. Because he was a qualified (occupation omitted), he was able to organise tradesmen to undertake those jobs that required a tradesman, was present daily to supervise and oversee the work being done whilst she and the Husband were at their usual jobs and that his input resulted in considerable savings to the parties.
The parties’ marriage was a long one and on the evidence of both parties, it is apparent both worked hard and contributed to the wellbeing of their family to the best of their ability.
The former matrimonial home’s construction, on both parties’ evidence, involved an enormous amount of hard work by all involved, including the parties themselves, their fathers and other members of their families. I don’t believe any single person’s contribution to the construction of the former matrimonial home greatly outweighed the contributions of all.
Accordingly, I am satisfied that the contributions made by the parties, both financially and as parents and homemakers, should be considered equal.
Section 75(2) factors
It is submitted on behalf of the Husband that there should be an adjustment for section 75(2) factors in the Wife’s favour given the Husband has a higher earning capacity than the Wife and because she will have the primary responsibility for the parties’ two children going forward and in particular Y, who is only 12.
It is submitted on behalf of the Husband that that adjustment should be 5%, as in real terms that means that the Wife receives 10% more of the relatively small property pool than does the Husband.
The Wife, who was self-represented, made no submissions as to what percentage adjustment should be made in her favour for section 75(2) factors. She instead highlighted the disparity in the parties’ earning capacity and that she is going to be responsible for both X and Y into the future.
The Husband agrees with the Wife that X has aspirations to pursue tertiary qualifications when he finishes high school this year and that he will continue to live with the Wife who will be required to support him whilst he undertakes his further studies.
The Wife quite properly points out to the Court that once X finishes his secondary schooling, the Husband’s obligation to pay child support for him will cease and the amount she currently receives by way of child support will be reduced accordingly.
Having considered all the relevant factors, I have formed the view that the adjustment in the Wife’s favour for section 75(2) factors should be 7.5%.
Should there be a superannuation splitting order?
It is submitted on behalf of the Husband that there should be a superannuation splitting order made which equalises the parties’ superannuation entitlements. This would mean that there should be an order that an amount of $85,205 be split from the Husband’s superannuation fund to the Wife’s superannuation fund.
It is submitted on behalf of the Husband that an order there be no superannuation split cannot be seen to be just and equitable given the Husband is only 46 and would not have access to his superannuation for some nearly 20 years.
It is further submitted on behalf of the Husband that an order that the Husband receive no cash payment is not a fair outcome for him, as he is entitled to have recourse to money from which he can meet his outstanding legal costs and to use as the springboard to restart his life.
The Wife is desperate to be able to retain the former matrimonial home. It is her evidence that this is very important to her as it was the last property her father, a (occupation omitted), built. Sadly, the Wife recently lost her father and this makes her desire to retain the property even more deeply felt.
It is the Wife’s evidence that she also wishes to retain the only home that X and Y have known in order to continue to provide them with the security that staying in their home offers.
The Court has a broad discretion as to what orders it makes in relation to parties’ superannuation entitlements. It is not obliged to make a superannuation splitting order, nor is it obliged to make an order that equalises parties’ superannuation entitlements. The manner in which the Court deals with parties’ superannuation entitlements will be dependent upon the facts of each particular case.
The Wife did not place any evidence before the Court as to her borrowing capacity or whether there are family members or friends who are in a position to offer her some assistance in order to be able to pay the Husband his share in the former matrimonial home.
Given the Court’s determination that the parties’ real assets should be divided 57.5% / 42.5% in the Wife’s favour, if a splitting order was made in the terms sought by the Husband, the Wife would have to make a payment to the Husband of $83,190 in order to retain the former matrimonial home. Given the current level of indebtedness on the property is $344,258, the Wife would have to be able to obtain a mortgage of $427,448 in order to retain the former matrimonial home.
Given the Wife’s relatively small income, it is not unreasonable to speculate that she would have difficulty obtaining finance at that level or have the capacity to service a debt of that magnitude.
I am in complete accord with the submissions made on behalf of the Husband that he is entitled to receive some form of cash payment as part of the orders made by this court adjusting property matters between the parties.
I also have considerable sympathy for the Wife’s desire to retain the former matrimonial home.
Therefore, in an endeavour to achieve a just and equitable outcome for both parties, orders will be made that will give the Wife the opportunity to provide written proof to the Husband’s solicitors within 30 days that she has the capacity to borrow $390,000 and that she is prepared to do so.
In the event the Wife is able to borrow $390,000 and is prepared to do so, orders will be made that she refinance all the mortgages on the former matrimonial home and pay the Husband the sum of $45,000. Contemporaneously with the refinancing and payment, the Husband shall transfer the former matrimonial home to the Wife. There would also be a splitting order made, such that the amount of $40,000 is split from the Husband’s superannuation to the Wife.
In the event the Wife is unable or unwilling to refinance the former matrimonial home for the sum of $390,000, then the orders will provide for the former matrimonial home to be sold and for the net proceeds of sale to be divided such that the Wife receive $57.5% of same and the Husband receive 42.5% of same. There will be a superannuation splitting order made equalising the parties’ respective superannuation entitlements.
Orders will also be made that the memorabilia and the tools be sold by way of auction or such other means of sale as agreed between the parties. If the parties are unable to agree on the manner of sale, then they are to be sold in such manner and by such person/organisation as nominated by the Auctioneers and Valuers Association of Australia. Upon sale of the memorabilia and tools, the proceeds of sale are to be divided such that the Wife receives 57.5% of same and the Husband receives 42.5% of same.
Having considered all the aspects of this case, I am satisfied that orders in the terms proposed are just and equitable to both parties. The orders afford the Wife an opportunity to retain the matrimonial home and enable the Husband to receive a cash payment. If the Wife is unable to afford to buy the Husband out, the orders provide for the sale of the former matrimonial home and for there to be a division of the proceeds as has been determined by the Court.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 20 November 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Constructive Trust
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Costs
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