Woodmore & Rowland
[2022] FedCFamC2F 1266
Federal Circuit and Family Court of Australia
(DIVISION 2)
Woodmore & Rowland [2022] FedCFamC2F 1266
File number(s): MLC 11045 of 2021 Judgment of: JUDGE GLASS Date of judgment: 14 October 2022 Catchwords: FAMILY LAW – PROPERTY – where parties of a de facto relationship seek alteration of interest in property – whether it is just and equitable to alter parties’ interest in property – where parties maintained largely separate finances - where the Court’s task is to weigh and assess contributions of all kinds and from all sources – where no adjustment warranted pursuant to paragraph 90SM(4)(d-g) and subsection 90SF(3) factors Legislation: Family Law Act 1975 (Cth) ss s90SM, 90SM(4), 90SM(4)(a)–(c)90SM(4)(e), 90SM(4)(D)–(G) 90SF(3), 90ST Cases cited: Aleksovski v Aleksovski (1996) FLC 93-705
Anson & Meek (2017) FLC 93-816
Carlson & Fluvium [2012] FamCA 32
Duarte & Another & Morse (2019) FLC 93-902
Kramer & Anor & Ward (2017) FLC 93-817
R & H [2003] FamCA 125
Robb & Robb (1995) FLC 92-555
Russo & Wylie (2016) FLC 93-747
Stanford v Stanford (2012) 247 CLR 108
Wallis & Manning (2017) FLC 93-759
Zaruba & Zaruba (2017) FLC 93-776
Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 12 October 2022 Date of hearing: 12-13 September 2022 Place: Melbourne Counsel for the Applicant: Dr Ingleby Solicitor for the Applicant: Partners in Family Law Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Nevett Ford Lawyers ORDERS
Amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 14 October 2022
MLC 11045 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WOODMORE
Applicant
AND: MS ROWLAND
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
14 october 2022
THE COURT ORDERS THAT:
1.Within 60 days the Respondent pay to the Applicant $68,560 ("the Payment").
2.Within 120 days, the Respondent refinance the mortgage in respect of B Street, Suburb C, Victoria (“the B Street, Suburb C property”) into her sole name.
3.In default of paragraphs 1 or 2, the B Street, Suburb C property be sold:
(a)By an agent as agreed but in default of agreement as nominated by the president or their nominee of the REIV;
(b)At a reserve or minimum price of $950,000 and if the property is not sold within 60 days of listing the reserve or minimum price shall be reduced by 2.5% per month until the property is sold; and
(c)With a settlement period of 60 days.
4.That the proceeds of sale shall be distributed:
(a)Firstly, to pay the costs and commission of sale;
(b)Secondly, to discharge the registered mortgage;
(c)Thirdly, to pay to the Applicant such part of the Payment as remains unpaid;
(d)Fourthly, to pay to the Respondent the remainder.
5.Within 60 days of receiving the Payment, the Applicant shall refinance the mortgage in respect of D Street, Suburb E, Victoria, into her sole name, failing which the property shall be sold altogether out of court and the net proceeds be paid to the Applicant.
6.The Court allocate, as required by Section 90XT(4) of the Family Law Act 1975, a base amount of
$110,000$82,623 to the Applicant out of the Respondent's interest in the Super Fund F ('Fund').7.That, pursuant to Section 90XT(l)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable with respect to the interest of the Respondent in the Fund, the Trustee, Super Fund G Pty Ltd ('Trustee') shall:
(a)Pay to the Applicant, or her legal representative the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)Make a corresponding reduction in the entitlement the Respondent would have had in the Fund but for this Order.
8.That Order 7 has effect from the operative time.
9.That the operative time for these Orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of Fund.
10.That the Trustee of the Fund shall do all such acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of, and make payment to, the Applicant in accordance with Order 4 of these Orders.
11.That the Respondent shall do all things necessary, including but not limited to, exercising her request pursuant to Regulation 7A.07(2) of the Superannuation Industry (Supervision) Regulations 1994 for the payment of the transferable benefits out of the Applicant's interest in the Fund to the Applicant in accordance with Regulation 7A.13 of the Superannuation Industry (Supervision) Regulations 1994.
12.That pursuant to Regulation 14F of the Family Law (Superannuation) Regulations 2001 any payments from the Respondent's superannuation interest made after the Trustee has paid a lump sum to the Applicant are not splittable payments.
13.That unless otherwise specified in these Orders and save for the purpose 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 property (including choses in action) owned by or in the possession of such party as at the date of these Orders.
(b)Each party forego any further claims they may have to any superannuation benefits belonging to or earned by the other.
(c)Insurance policies remain the sole property of the owner named therein.
(d)Cash in any joint accounts is to be divided equally between the parties.
(e)Any monies or liabilities held in any bank or credit accounts remain the sole property of the owner named in whose name the accounts are held.
(f)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.
(g)Each party remain responsible for any debts in that party's name.
14.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Woodmore & Rowland has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS
After a seven and half year de facto relationship, Ms Woodmore and Ms Rowland separated in October 2019. Arising for determination are their respective applications for an alteration of their interests in property.
Ms Woodmore broadly proposes that Ms Rowland pay her the sum of $124,000, roughly equating to Ms Woodmore retaining 45% of the net value of the parties’ non-superannuation assets. She also seeks a superannuation split of $110,000 from Ms Rowland’s superannuation fund which would have the effect of approximately equalising the parties’ superannuation interests.
Ms Rowland proposes that Ms Woodmore pay her the sum of $147,863.40, equating to Ms Rowland retaining 80% of the value of the parties’ non-superannuation interests. She proposes no alteration to their superannuation interests which would have the effect of her retaining 94% of their value.
The particulars of the parties’ applications are contained in Minutes that were marked as exhibits in the proceedings as amended orally in the case of Ms Rowland. Ms Woodmore relies on the documents particularised in her Outline of Case filed 6 September 2022. Ms Rowland relies on her Affidavit and Financial Statement filed 29 August 2022.
In the absence of specific challenges to some of the contradictory evidence before the Court, both parties sought to rely on general credit findings in support of a contention that their evidence should be preferred. Given those evidentiary conflicts are otherwise incapable of resolution, it will be necessary to make general credit findings despite the restraint usually attendant upon their making.[1]
[1] Carlson & Fluvium [2012] FamCA 32 at [165-167]; quoted in Adamson & Adamson (2014) FLC 93-622 at [89].
I generally prefer Ms Woodmore’s evidence. It was given in a more straightforward manner and she readily made appropriate concessions. An error in Ms Woodmore’s affidavit in relation to her having resigned from her employment was advised by Ms Woodmore’s solicitor within 2 days of it having been filed and was corrected in evidence in chief.
In contrast, Ms Rowland’s evidence was given in a reserved, cautious and defensive manner. She was reluctant to make any concessions about Ms Woodmore’s contributions to the welfare of the family, including the help she had undoubtedly provided with the care of Ms Rowland’s children. She affirmed in oral evidence the accuracy of her Financial Statement filed 29 August 2022 which recorded her total salary or wages before tax as $250 per week. She also affirmed the accuracy of her Affidavit filed on 29 August 2022 which asserts that “I am therefore currently surviving off my minimal casual income of $250 per week and child support payments.”[2] The week prior to her execution of those documents, she was paid a net sum of $1,667.70 from her employer. She gave oral evidence that payment represents her current fortnightly pay, albeit that she is employed casually and there is uncertainty about her hours. She sought to explain the discrepancy by asserting that she was giving an average weekly amount, but the basis upon which it was calculated was unexplained by her. The previous fortnight, she had earned $928.85 after tax. The Financial Statement also records that she was paying $125 per week by way of income tax. She agreed that figure was inaccurate.
[2] Respondent’s Affidavit filed 29 August 2022, paragraph 72.
Ms Rowland’s evidence in relation to the payment of her mortgage was also misleading. She deposes that “I have paid every single cent of that mortgage since I purchased my house in 2008.”[3] Ms Rowland also sought to maintain in oral evidence that she alone had paid her mortgage. That evidence is inconsistent with the undisputed fact that Ms Woodmore paid Ms Rowland $200 to $300 per week for an extended period of time into an account which was the source of funds for the mortgage payments.
[3] Respondent’s Affidavit filed 29 August 2022, paragraph 51.
Statutory framework
Pursuant to section 90SM of the Family Law Act 1975 (Cth) (“the Act”), I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, it is just and equitable to do so.[4] If I am so satisfied, I am required to consider the matters prescribed by subsection 90SM(4) of the Act and by the device of paragraph 90SM(4)(e), relevant matters referred to in subsection 90SF(3) of the Act.
[4] Family Law Act 1975 (Cth) s 90SM(3).
Property interests
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[5] Those interests are agreed to comprise the following:
[5] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
Asset
O'ship
Value
D Street, Suburb E
App
$725,000
Less Company H mortgage
Joint
($441,421)
J Trust interest
App
$169,000
Bank accounts
App
$1,120
Crypto Currency Wallet
App
$3
Funeral Benefit
App
$7,188
Loan from Ms K & Ms L
App
($50,000)
Income tax debt
App
($9,348)
Mastercard
App
($860)
NAB Low Rate Platinum
App
($7,442)
Commonwealth Bank Mastercard
App
($5,956)
ATO company debt
App
($11,496)
B Street, Suburb C
Res
$950,000
Less Company H mortgage
Joint
($228,904)
Bank accounts
Res
$10,509
Company M shares
Res
$592
Motor Vehicle 1
Res
$15,000
Loan from N
Res
($4,744)
ATO debt
Res
($4,051)
ANZ Credit Card
Res
($3,319)
Total non-superannuation interests
$1,110,871
Company O
App
$14,962
Super Fund F
Res
$229,001
Total superannuation interests
$243,963
Total property interests
$1,354,834
Justice and equity
The parties are jointly liable for home loans that are cross-collateralised against their properties. Both parties seek an alteration of their property interests in order to finally determine the financial relationships between them.[6] It is implicit in both parties’ requests that the Court make orders that it is accepted the making of an order would be just and equitable.[7] I consider it to be just and equitable to make a property settlement order because there will no longer be the common use of property by the parties.[8] Further, in the same way as it is inappropriate not to sever parties’ joint interests in property,[9] I consider it inappropriate not to sever their joint liabilities.
[6] Family Law Act 1975 (Cth), s 90ST.
[7] Russo & Wylie (2016) FLC 93-747 at [54].
[8] Stanford at [42].
[9] Duarte & Another & Morse (2019) FLC 93-902 at [486].
Contributions
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[10] I am also required to take into account the parties’ contributions to the welfare of the family.[11]
[10] Family Law Act 1975 (Cth), ss 90SM(4)(a-b).
[11] Family Law Act 1975 (Cth), ss 90SM(4)(c).
At the commencement of the de facto relationship in April 2012, Ms Woodmore had recently purchased the D Street, Suburb E apartment. It then had an agreed value of $515,000 subject to a mortgage of approximately $450,000. Ms Woodmore accordingly held equity in the D Street, Suburb E property equating to approximately $65,000. Ms Woodmore gave unchallenged evidence of then having superannuation interests of approximately $8,000.
Ms Woodmore also had an interest in the J Trust at the commencement of the relationship. The trust owns a property at P Street, Suburb Q, New Zealand in which Ms Woodmore’s mother lives. Ms Woodmore paid the deposit for the purchase of the property in 2008 in the amount of $38,000. It is agreed that Ms Woodmore’s property interests include the total value of the trust. Although Ms Woodmore is unable to recall the balance of the home loan relating to the property in 2012, the property was then valued at $160,000 NZD. Ms Rowland proposed without contradiction that I value the value Ms Woodmore’s interest in the trust in April 2012 at $66,000. Ms Woodmore’s mother meets the outgoings for the property and neither party has made any contributions to it since the initial deposit.
In April 2012, Ms Rowland owned the B Street, Suburb C property. It was then worth $710,000 and was subject to a mortgage of approximately $234,000, equating to an equity of approximately $476,000. Ms Rowland’s father had contributed $200,000 to the acquisition of the property, which was at one time asserted by Ms Rowland to be a loan owing to him, although that assertion was abandoned during the hearing.
At the commencement of the parties’ de facto relationship, Ms Rowland had superannuation interests worth $53,512. She also owned a vehicle and on Ms Woodmore’s unchallenged evidence some shares. Neither party adduced evidence in relation to their then value.
During the parties’ relationship, Ms Woodmore worked initially as a professional before commencing a cleaning business trading as Company R. She met the costs of her household, including servicing the home loan secured against the D Street, Suburb E property. She did so on a principal and interest basis until early 2017 when she commenced paying interest only on that loan. She did not make any superannuation contributions, asserting that she could not afford to do so.
Ms Rowland worked throughout the parties’ relationship as an educator. She also largely met the costs of her household and her employer made compulsory superannuation contributions on her behalf.
Whilst the parties’ generally maintained separate finances, Ms Woodmore nominated Ms Rowland as the beneficiary to her superannuation fund and funeral benefit insurance. The parties intended to instruct a lawyer to prepare wills for them. Those discussions were documented by Ms Woodmore and it is agreed that the majority of the resultant document accurately reflected the parties’ intentions for their wills. Ms Rowland denied that she intended her assets, aside from the parties’ beach house, were intended to be distributed evenly between Ms Woodmore and Ms Rowland’s two children. Although Ms Woodmore gave evidence that was in fact her intention as documented, I consider it unnecessary to resolve that factual dispute.
During the parties’ relationship, they maintained separate residences, although Ms Rowland stayed at Ms Woodmore’s home in D Street, Suburb E for five nights each fortnight during school terms and for half school holiday periods. Ms Woodmore’s evidence that she paid the day to day living expenses including food and alcohol during the time Ms Rowland stayed at D Street, Suburb E was not challenged, and I accept it. Ms Woodmore also stayed at Ms Rowland’s home on alternate weekends.
In addition to meeting some of Ms Rowland’s living expenses during the times the parties lived together in D Street, Suburb E, Ms Woodmore transferred money to Ms Rowland in the sum of $200 per week from May 2015 until February 2016 and $300 per week from February 2016 until the parties’ separation in October 2019. Those payments amount to a total of approximately $65,000. Ms Woodmore also paid the mobile phone expenses for Ms Rowland and her sons for approximately 3 years. Ms Rowland used the account into which the funds from Ms Woodmore were deposited for her household expenses, including groceries and fuel. Funds were also transferred from that account into another account from which home loan repayments were made for the B Street, Suburb C property. Ms Woodmore thereby indirectly financially contributed to the conservation of that property.
For approximately 5 years, Ms Woodmore employed staff who attended upon Ms Rowland’s home to clean it each week. Ms Woodmore covered the cost of that service. I accept her denial that she did so for the convenience of her business.
Ms Rowland sought to characterise the cleaning services provided by Ms Woodmore as a gift. If that characterisation is intended to convey that the service provision ought not be treated as a contribution by her, I reject it. The Court’s essential task is “to weigh and assess contributions of all kinds and from all sources made by each of the parties”,[12] which assessment “must embrace the totality of contributions of all types”.[13] Ms Woodmore’s evidence was that she arranged the cleaning because she loved Ms Rowland, she wanted to help and support her and make things easier for her. I consider it was a contribution made by her to the welfare of the family.
[12] Aleksovski v Aleksovski (1996) FLC 93-705 at 83,437; Wallis & Manning (2017) FLC 93-759 at [20].
[13] Anson & Meek (2017) FLC 93-816 per Murphy J at [29].
Ms Rowland also considered the weekly payments totalling approximately $65,000 made to her by Ms Woodmore to also be a gift. Again, I reject any suggestion that those payments were not contributions. As Ms Rowland conceded in cross-examination, what she has today in part represents financial contributions made by Ms Woodmore. Ms Rowland made no similar contributions towards Ms Woodmore’s existing property interests.
Ms Woodmore gave unchallenged evidence that she usually paid the parties’ entertainment costs, including concert and event tickets and meals and drinks out. Ms Woodmore denied that the parties had equally contributed to the costs of their holidays, giving evidence that she would have paid at least two thirds of the cost. I prefer Ms Woodmore’s evidence in light of the general credit findings I have made.
Ms Woodmore made non-financial contributions to Ms Rowland’s property. She painted the lounge room, living room and upstairs bedroom. She regrouted the bathroom when she painted it in January 2015. She worked with Ms Rowland’s father to install a driveway gate and garden gazebo, albeit only over the course of approximately three days. Her evidence in that respect was not successfully challenged. That Ms Rowland may have suggested paying someone else to undertake some of the work does not detract from the fact that it was a contribution made by Ms Woodmore.
In December 2016, the parties jointly acquired a property at S Street, Suburb T for a purchase price of $400,000. It was used as a holiday home by the parties and rented out via Airbnb. The parties applied the equity in their respective real properties to the purchase.
Ms Woodmore made non-financial contributions to the property, including painting the ceilings throughout, renovating the kitchen, including replacing the benchtop, sink, taps and tiling the splashback and walls, and replacing the flyscreens. Ms Rowland’s evidence of having sourced furniture, bedding, linen, décor and kitchen items as well as paying $6,000 for an air-conditioning system was unchallenged and uncontradicted and I accept it.
The parties operated a joint bank account into which rental income was deposited and expenses met for the S Street, Suburb T property. The parties also made regular weekly deposits of between $50 and $100 each to cover expenses. Ms Woodmore was responsible for utility and other outgoings for the property including electricity, gas, internet, local government and water rates. Ms Woodmore was responsible for the rental management, including cleaning and guest changeovers. Ms Woodmore’s oral evidence was consistent with her affidavit evidence on these topics and it was not successfully impeached in cross-examination.
In 2020, the parties’ sold the S Street, Suburb T property for $521,000 generating net proceeds of $65,623. Ms Woodmore retained $45,936 of those proceeds whereas Ms Rowland retained $19,687. Ms Woodmore retained the greater portion of those proceeds on account of her additional contributions to the property. I accept Ms Woodmore’s evidence that there were no discussions that the distribution of those funds was intended to settle the parties’ financial relationships. Ms Rowland’s evidence that an agreement was reached to that effect was conclusory and unsupported by facts that would enable me to be satisfied of the conclusion.[14] I am also not satisfied that the funds retained by Ms Woodmore were a reimbursement for the overall contributions made by her.
[14] Kramer & Anor & Ward (2017) FLC 93-817 at [10].
Ms Rowland was made redundant in late 2021. She received a severance payment of $75,091.60. She thereafter worked during a period of redeployment for a further 17 weeks, concluding her former employment in mid 2022.
Ms Rowland denied in cross-examination that Ms Woodmore had made any contributions to Ms Rowland’s legal fees relating to a parenting dispute. Whilst a bank transfer was specifically put to her, Ms Woodmore did not herself give any evidence of having made such a contribution. I am unable to conclude that Ms Woodmore did in fact make such contributions.
Ms Rowland sought to minimise the extent of Ms Woodmore’s contributions by reference to the fact that Ms Woodmore’s mortgage had not reduced during the course of the relationship. That submission overlooks the fact that neither party’s mortgages meaningfully reduced during their relationship. Ms Woodmore’s home loan balance is now $441,421 whereas it was $450,000 at the start of the parties’ relationship. Ms Rowland’s home loan is now $228,904, whereas it was approximately $234,000 at the start of their relationship. I am not satisfied Ms Woodmore’s failure to more meaningfully reduce her home loan balance sounds in reduced assessment of her contributions.
Ms Rowland in effect contends that because she contributed approximately 80% of the value of the parties’ initial assets, she should retain such a percentage now. I consider that to do so would be to give inadequate weight to the parties’ subsequent contributions over the course of their 7 and a half year relationship.[15] I do not accept Ms Rowland’s submission that Ms Woodmore’s contributions were insignificant.
[15] Wallis & Manning (2017) FLC 93-759 at [116] and the cases there quoted.
I conclude that given the approximately $345,000 in additional equity contributed by Ms Rowland at the commencement of the de facto relationship and the approximately $50,000 in additional superannuation, and the myriad of contributions made by each of the parties since that time, their contributions to both non-superannuation and superannuation assets should be assessed as 60% in favour of Ms Rowland and 40% in favour of Ms Woodmore. Such an outcome would be reflected in Ms Rowland retaining $222,174 more value in non-superannuation assets and $48,793 more superannuation than Ms Woodmore.
Paragraphs 90sm(4)(d, e, f and g) and subsection 90sf(3) factors
Ms Woodmore is 52 years of age and suffers from osteoarthritis which has prevented her from undertaking cleaning activities for approximately the last 18 months. She also suffers from a medical condition causing back pain. It does not appear these injuries prevent her from undertaking her current office based work.
Ms Woodmore works full time at Employer U as a professional. Her contract covers a period of secondment and will come to an end in early 2023. She is currently looking for alternative work thereafter. In her current role, she derives income of approximately $113,000 per annum. Her taxable income for the financial year ending 30 June 2022 was $97,734.
Ms Woodmore continues to operate her cleaning business which employs one part time cleaner. The business has suffered due to the COVID-19 pandemic. Many of its commercial clients ceased trading and the number of domestic clients has reduced. Many of its staff have returned to their countries of origin. Ms Woodmore has not drawn a wage from the business in the current financial year.
Ms Rowland is 52 years of age and suffers from a medical condition. She has been admitted to hospital five times this year and incurred medication costs of $3,500. She is immunocompromised which has reduced her availability for some employment during the COVID-19 pandemic. She previously worked four days per week, giving evidence doing so “allowed me to manage my illness, attend the many medical appointments associated with it and spend more time caring directly for my children.”[16] The evidence does not support a conclusion that she is unable to work the same number of days as last year for medical or child caring reasons, although she does not presently have such employment available to her.
[16] Respondent’s Affidavit filed 29 August 2022, paragraph 11.
Ms Rowland works 2 days per week as an educator for which she receives $1,667.70 per fortnight after tax, or $43,360 per annum. In 2021, she was earning a gross salary of $1,594.41 before tax,[17] equating to approximately $83,000 per annum. She has applied for further employment.
[17] Exhibit A6, page 3.
Ms Rowland has two children, V, now aged 17 years and W, now aged 14 years. They lived primarily in Ms Rowland’s care and spent approximately 5 nights per fortnight with their other parent. Ms Woodmore gives evidence that she cooked meals for them fortnightly, took them to dance classes and other activities weekly, went to every school and dance performance and school picnic with them, took them to school monthly and did chores around their home with them, such as gardening, and collected them from their other parent’s care for a period in 2015 and 2016. She travelled with them on several holidays to Town X, City Y, Country Z and Country AB. The only aspect of that evidence that was the subject of challenge was the frequency with which she took W to dance. Ms Woodmore gave oral evidence that she took him at least one third of the time, if not half the time. I find Ms Woodmore took W to dance classes a minority of the time and otherwise accept her evidence.
In providing assistance for Ms Rowland’s children, Ms Woodmore was acting as a volunteer assisting Ms Rowland in the discharge of her legal obligations. The justice of the case requires that that contribution to be taken into account,[18] though I note the contributions here are modest and not everything Ms Woodmore did for the benefit of Ms Rowland’s children should result in some monetary reward in property settlement proceedings.[19]
[18] Robb & Robb (1995) FLC 92-555 at 81,547.
[19] Zaruba & Zaruba (2017) FLC 93-776 at [54]; R & H [2003] FamCA 125 at [23].
Ms Rowland continues to provide primary care for her two children. V suffers from a medical condition and cannot drive as a result. Ms Rowland receives child support of $138.46 per week from the children’s other parent.
With some of the relevant factors modestly favouring Ms Woodmore and others modestly favouring Ms Rowland, I am not satisfied that an adjustment is warranted to the contributions based assessment I have made. Ms Rowland will retain 60% of the value of the parties’ assets as a result.
Conclusions
In order to give effect to the above conclusions, Ms Woodmore needs to retain non-superannuation assets worth $444,348 and superannuation assets worth $97,585. Given she currently has non-superannuation assets worth $375,788 and superannuation assets worth $14,962, adjustments of those respective assets need to be made in her favour of $68,560 and $82,623 respectively.
Ms Rowland did not cavil with the mechanism proposed by Ms Woodmore for the adjustments to be made by way of cash payment and superannuation split. I consider the default provision sought by Ms Woodmore in the event Ms Rowland is unable to make the payment to be appropriate in the circumstances.
Whilst not formally sought by either party, it is common ground that the home loans on their respective properties will need to be refinanced. I will allow a further 60 days from the due date for the payment for such refinance to occur. Ms Woodmore gave evidence that she will need to contact a mortgage broker in order to ascertain whether she will be able to retain the B Street, Suburb C property. I consider it appropriate that she have an opportunity to refinance the property in the event she is able to, failing which she accepts it will need to be sold.
The form of the other proposed orders providing for the parties to otherwise retain their respective assets is agreed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 14 October 2022
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