Wordsworth and Tatum
[2018] FCCA 1480
•13 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WORDSWORTH & TATUM | [2018] FCCA 1480 |
| Catchwords: FAMILY LAW – Property – Short relationship/marriage between older parties – significant loss of capital during the relationship due to investment in a farming property – how to equitably distribute the loss. |
| Legislation: Family Law Act 1975 (Cth), ss.75,79 |
| Cases cited: Norbis & Norbis (1986) FLC 91-712 Stanford & Stanford (2012) FLC93-495 |
| Applicant: | MS WORDSWORTH |
| Respondent: | MR TATUM |
| File Number: | NCC 2451 of 2013 |
| Judgment of: | Judge Terry |
| Hearing dates: | 7 & 8 December 2017 |
| Date of Last Submission: | 8 December 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 13 June 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Bates |
| Solicitors for the Respondent: | Lawlers Solicitors & Conveyancers |
ORDERS
Each party shall sign all documents and do all acts and things necessary to authorise Lawlers Solicitors to pay the money held in their trust account on behalf of the parties to the wife.
Within 60 days of the date hereof the husband shall pay to the wife the sum of $263,986.70.
Contemporaneously with the husband complying with Order (2) above, Order (1) of the Orders made on 8 December 2017 is discharged and the husband is declared the owner to the exclusion of the wife of the balance of his workplace damages claim payment.
Upon the wife providing evidence that procedural fairness has been accorded to the Trustee of the husband’s superannuation fund a base amount of $99,065.00 is allocated, as required by s.90MT(4) of the Family Law Act 1975 to Ms Wordsworth out of Mr Tatum’s interest in the Super Fund 1.
In accordance with paragraph s.90MT(1)(a) of the Family Law Act 1975:
(a)Ms Wordsworth is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)Mr Tatum’s entitlement to payments out of his interest in the Super Fund 1 and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of these Orders.
The Trustee of the Super Fund 1 (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement created for Ms Wordsworth by Orders (4) and (5) above; and
(b)pay the entitlement whenever the Trustee makes a splittable payment out of Mr Tatum’s interest in the Super Fund 1.
These Orders have effect from the operative time and the operative time for this Order is 7 days from the date of service of Orders made on the Trustee of the Super Fund 1.
Each party is otherwise declared the owner of all assets in their possession or under their control.
If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then the Registrar of the Newcastle Registry of the Federal Circuit Court is appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
IT IS NOTED that publication of this judgment under the pseudonym Wordsworth & Tatum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2451 of 2013
| MS WORDSWORTH |
Applicant
And
| MR TATUM |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property settlement proceedings arising out of a 4 year and 8 month relationship/marriage between parties who are now 56 and 59 respectively.
The husband introduced a farming property into the relationship and the wife made capital contributions of over $400,000.00 which went to help conserve and improve that property. However the property was sold after separation for little profit.
The wife now has minimal assets in her name. The husband on the other hand has a sizeable superannuation entitlement and he recently received $755,000.00 as a result of settling a workplace damages claim. It was common ground that the wife should receive something from those assets but the parties disagreed about how much that should be.
The wife was self-represented and did not argue her case in a way which aligned with s.75 & 79 of the Family Law Act. It seemed to be her case that she should receive her capital back together with some return on her capital and that the husband should compensate her for a back injury she suffered during the relationship. She said that the husband had misled her about the value of the rural property and that he should be responsible for the loss which arose as a result of little being realised upon sale of the property.
When she was pressed during final submissions to put a figure on her claim the wife said that she was hoping to walk away with $700,000.00 although she also mentioned a figure of $500,000.00. [1]
[1] Cf wife’s amended application filed on 5 July 2017 in which she sought a superannuation splitting order transferring $1.05m of the husband’s superannuation to her.
The husband’s proposal was that the wife should retain $30,000.00 which she received by way of partial property settlement four years ago and should also receive $268,000.00 in total from his superannuation and the damages claim.
The husband’s case was the wife could not expect to get all her money back while he alone shouldered the loss arising from the diminution in value of the rural property. He said that the wife should count herself lucky that he had received a large sum of money post-separation as a result of settling a workplace damages claim because if this had not occurred she might have received little indeed from the property settlement proceedings.
The history of the litigation
The parties separated in July 2013 and the wife commenced these proceedings by an application filed on 2 October 2013.
In November 2013 an order was made after a contested interim hearing for the husband to have sole occupancy of Property C, the rural property on which the parties had been living, and the property was placed on the market for sale.
Property C was sold in August 2014. This crystallised the value of part of the pool but the parties continued to argue over whether one of them had secreted cattle away and over the valuation of plant and equipment.
In 2015 the husband’s solicitors became concerned about his mental state and on 7 April 2015 a litigation guardian was appointed for the husband.
A conciliation conference was held but the matter did not settle at the conciliation conference and it was listed for trial on 8 & 9 February 2016.
These trial dates were vacated because the husband revealed that he had filed a workplace damages claim and there was a prospect that the workplace damages claim if successful would significantly augment the pool.
The workplace damages claim settled on 31 October 2017 and the hearing of the property matter took place on 7 & 8 December 2017.
I finally note that the husband was declared bankrupt on 28 June 2016 and is due for automatic discharge on 29 June 2019. I was informed by the husband’s counsel that the Trustee in Bankruptcy was aware of the property proceedings and did not wish to be heard in relation to them. I was specifically informed that the Trustee in Bankruptcy made no claim in relation to the money held in trust from the workplace damages claim.
The evidence
The wife relied on her amended application, affidavit and financial statement filed on 5 July 2017 and the affidavit of Mr R filed on 3 September 2015.
The wife’s trial affidavit egregiously failed to pay heed to the rules of evidence. It was so bad that it would have taken hours to deal with objections to it and little of it would have been left standing after all the submissions, hearsay, bare assertions without foundation and opinion evidence were excised from it.
I could have adjourned the trial and given the wife the opportunity to completely replace the affidavit but the other option was to allow the affidavit to stand and ignore the submissions, hearsay, opinion and colourful and emotive language and extract from it the few admissible bits and pieces of evidence.
Neither party wished the trial to be adjourned and the husband’s counsel agreed to the latter course but the wife needs to be aware that not only can I not treat submissions, hearsay or opinion without foundation as evidence, her case was not enhanced by her use of colourful and emotive language.
The husband relied on his amended response filed on 11 July 2017, his affidavits filed on 11 July 2017 and 28 November 2017, his financial statement filed on 13 November 2017 and the affidavits of Mr S filed on 9 September 2015, Ms M filed on 9 September 2015 and Mr T filed on 7 July 2015.
Mr P, an accountant with experience in valuing superannuation interests, prepared a valuation of the husband’s Super Fund 1 Superannuation entitlement on the joint instructions of the parties.
Neither party wished to ask Mr P any questions but all of the other witnesses were cross-examined.
The evidence of the lay witnesses called by each party went largely to the issues of alleged missing cattle, furniture, plant and equipment. The witnesses were all well-meaning but their evidence did not greatly assist me.
The wife’s refusal to permit anyone to sight and value the chattels and equipment in her possession causes me to have considerable concern about her willingness to present a frank and open case and there were occasions when she was not a witness of credit.
An example was the evidence she gave in connection with a dispute about whether she had retained the husband’s father’s war medals. The war medals are not something I can do anything about as I will explain later but it is of concern the wife gave different evidence on different occasions about her knowledge of the whereabouts of the medals.
In her trial affidavit she said as follows:
I don’t know if there are any war medals, I have never seen them; I researched them and Mr Tatum’s father only got service medals….I believe the medals are just a ploy to get the courts attention on emotional impact.[2]
[2] Wife’s affidavit filed on 5 July 2017 paragraph 12
However in an affidavit filed on 3 April 2014 she said that they:
Remain on the 4th shelf in the wardrobe in the bedroom that faces the driveway, up high in a teak box.
There were problems with the husband’s evidence as well. At the commencement of the hearing his counsel indicated that the information in the husband’s affidavit about his asset position at the commencement of cohabitation was wrong. He then proceeded to outline the correct position which the husband endorsed when he went into the witness box.
During the hearing the husband conceded that he did in fact have the Tractor which the parties had each been accusing the other of having throughout the litigation.
The fact that there were credit issues with both parties will be relevant when it comes to me considering whether I can do anything about the claims they each made that the other had secreted away items of property and some of the cattle.
Background
The parties met online and commenced cohabitation in 2008 when they were 49 and 44 respectively.
The husband said that he was separated from his previous partner Ms J when he commenced his relationship with the wife. The wife said that she subsequently discovered that he was still in a relationship with Ms J. I cannot determine where the truth lies about this and I do not consider that anything turns on it for the purposes of these proceedings.
The parties married on 2010 and separated on or about 18 July 2013. They had a three year marriage and cohabited for a little under 5 years. They were divorced on 28 February 2015.
There are no children of the marriage. The wife has two children from a previous relationship, Mr D and Ms A, who were adults when the parties commenced their relationship.
When the relationship commenced the parties were both living in rented properties on Region C and were both employed. The husband was an (occupation omitted) employed by (employer omitted) and wife was working in a (employer omitted).
Soon after the parties met they commenced living together in a rented unit on the Region C.
At the commencement of cohabitation the husband owned a farm near Town K called Property C. He was in the habit of going up to the property on weekends and carrying out necessary tasks including managing the small herd of cattle on the property and he continued to do that after he and the wife commenced cohabitation. The wife did not initially go up there as Ms J was living on the property.
In 2008, shortly after cohabitation commenced, the wife purchased Property A for $229,000.00 using $80,000.00 from a previous property settlement and about $147,000.00 borrowed from Bank 1. She rented this property to her daughter Ms A.
In 2009 Mr D transferred ownership to the wife of an unencumbered property he owned at Property B. He had purchased this property for $335,000.00 in 2006 with money he received from a motor vehicle compensation claim. The transfer occurred because either Mr D or the wife or both feared that a former or current partner of Mr D’s may make a claim on the property.
At or about the same time the wife obtained a personal loan from Bank 1. She used some of the money to pay the stamp duty for the transfer of Property B into her name, bought her daughter Ms A a car and gave the husband $17,600.00 to help him pay his debts.
In or about 2009 Ms J moved off Property C and the wife began to go up to the property with the husband on weekends.
After the wife began to go up to Property C the husband agreed that Mr D could live at Property C. Mr D has an extensive criminal record which includes convictions for offences of violence and his presence in the parties lives caused intermittent problems from that point on. In late 2009 the parties obtained an Apprehended Violence Order (ADVO) against him but it was discharged soon after and he was allowed to return to live at Property C.
In February 2010 the wife borrowed $150,000.00 secured on Property B. She gave to the husband $140,000.00 to enable him to pay out Ms J and the balance was used to pay living expenses and expenses connected with Property C.
On 2 March 2010 the parties executed contracts promising to make mutual wills and on 2010 they were married at (omitted).
On 30 June 2011 the husband made the wife a partner in Business W which he had established prior to the commencement of cohabitation to conduct the farming enterprises on Property C.
In 2011 the husband ceased to attend work and began receiving worker’s compensation payments equivalent to his wage. He claimed that he had been a victim of workplace bullying.
The parties commenced living at Property C in about 2011 and in 2011 the wife obtained a job at a local (employer omitted).
On 26 September 2011 the wife sold Property B for $318,000.00 and received net $168,000.00. She claimed that all of this money was given to the husband and it was not in dispute at trial that this money was used for living expenses and farm purposes.
In January 2012 the wife sold Property A for $268,000.00 and received net about $79,000.00. She gave $28,844.05 of this to the husband to enable him to pay legal fees arising out of his dispute with Ms J. $50,767.00 was used either for living expenses or for costs associated with running Property C.
In 2012 the husband’s employment was terminated. He received $53,058.00 long service leave and other entitlements and he began receiving fortnightly pension payments from his superannuation fund.
Mr D had been incarcerated in 2011 and had been out of the parties’ lives but in 2013 he was released from jail and commenced living at Property C. This was followed by much turmoil. The husband claimed and I have no reason to disbelieve, that in 2013 Mr D assaulted him in the kitchen at the home.
The wife alleged that on 2013 the husband tried to run her down in a motor vehicle. She made a complaint to police who took out an ADVO for her protection.
The husband said that the parties separated on 18 July 2013 which was the date he moved off the property leaving the wife in occupation. The wife also put the date of separation in July.
On 2 October 2013 the wife filed an application in the Federal Circuit Court at Newcastle seeking a property settlement.
The husband filed a response and sought an interim order for sole occupancy of Property C. It was his case that he had been doing his best to maintain Property C while not living on the property but that he needed to resume living there so that he could properly look after the property pending the sale which the parties had agreed must occur.
The wife opposed the interim application but after a hearing on 18 November 2013 I ordered that the husband have sole occupancy of the property. The wife was ordered to vacate by 10 January 2014 and the husband was ordered to pay her $3,000.00 to assist her to relocate.
An order was also made for the husband to sell the cattle on the property and for the proceeds of sale to be used to pay $30,000.00 to the wife and pay a debt due to Davis & Cameron. The balance was to be placed in trust pending finalisation of the property settlement proceedings.
The husband sold cattle and paid the wife $3,000.00 as ordered at the time she moved off the property. In due course the wife was paid $30,000.00 from the sale of cattle and the balance of the proceeds of sale of cattle were placed in trust.
Property C was sold on 21 July 2014 for $940,000.00. The mortgage stood at $866,000.00 and net $19,795.48 remained after payment of selling costs. This was also placed into trust pending the resolution of the property settlement proceedings.
The property matter did not settle at a subsequent conciliation conference and a trial was eventually conducted in December 2017.
The assets, liabilities and superannuation
I am satisfied that the pool consists of the following assets deriving from the relationship:
Description
Ownership
Value
Proceeds of sale of Property C and cattle held in trust
Joint
$34,005.00[3]
Farming equipment in the possession of husband
Husband
$19,500.00
Tractor in the possession of the husband
Husband
$15,000.00
Motor vehicle 3
Husband
$2,000.00
Farming and miscellaneous equipment in possession of wife
Wife
$18,000.00
Total
$88,505.00
[3] I have used this figure for ease of calculation but the trust account statement which is Exhibit P gives the balance as $34,005.79
The parties each have some household contents to which they ascribed minimal values. By consent the household contents were not included in the list of assets available for distribution. A Vehicle 1 in the possession of the wife of minimal value and a Vehicle 2 which the husband alleged was the wife’s and the wife said was not hers but on any view was of minimal value were also excluded by agreement.
The wife sought to have taken into account that the husband received $53,058.00 long service leave and other entitlements in September 2012 when he was medically retired. This money was received long before separation. The husband said that it was spent on household bills and costs associated with running the property and this is a credible assertion. I do not accept that this amount should be included in the pool as a notional asset or otherwise taken into account.
The wife also sought to have taken into account an amount of $56,538.00 the husband received by way of tax refund on 28 August 2013 and an amount of $22,087.10 which she said were tax credits he received for the period 7 May 2013 to 18 December 2014.
This money no longer exists and while the court can on occasions include money which no longer exists as a notional asset in the pool to which percentages are to be applied whether it does so or not is a matter of discretion.
The husband was responsible for servicing the mortgage and other debts in respect of the property from separation to the sale of the property and paying the running costs of the property from January 2014 to the sale of the property and he said that this money had all been used for those purposes. The mortgage payments alone were something approaching $6,000.00 per month or $72,000.00 per annum and the husband’s income had reduced to $78,000.00 per annum by the stage. It is entirely credible that these amounts were used to meet the mortgage payments and running costs of the farm and in those circumstances it is not appropriate to add the money back.
There was no evidence about what happened to the second amount but it is long gone and the husband had expenses after the sale of Property C including rehousing himself and paying credit card bills and I do not intend to add this amount to the pool as a notional asset either.
The husband’s counsel submitted that the amount of $30,000.00 which the wife received in 2014 by way of partial property settlement following the sale of Property C should be included in the pool as a notional asset. However the wife used this money for living expenses and none of it now exists. The wife had to rehouse herself and she not unreasonably pursued a course of study after separation rather than engaging in full time employment. The husband did not have to immediately rehouse himself and had the benefit of remaining on Property C until its sale in June 2014. I do not intend to include any of this money in the pool as a notional asset.
Both parties alleged that the other had much more farming equipment, chattels, plant and equipment and (in the case of the husband’s assets) horses in their possession than they were willing to disclose.
The husband alleged that before the sale of Property C the wife removed a large quantity of items including valuable saddles and other equipment. He claimed that the wife cleaned out the property and that the plant, equipment and chattels in her possession were worth $122,850.00 rather than the $18,000.00 she claimed.
The wife admitted removing some items and said that Mr D took some items which belonged to him. However she denied removing a large quantity of plant and equipment and maintained that the items in her possession were worth $18,000.00.
I cannot be certain about the extent to which the wife took property above and beyond what she disclosed. It is one person’s word against the others in circumstances where there are credit issues with both parties. The other problem is that there is no foundation for the husband’s claim about the value of the items the wife allegedly took. I cannot place weight on his bare assertion that a collection of dog bowls was worth $100.00 or a big yellow auger $1,000.00.
The wife repeatedly refused to disclose the whereabouts of the items in her possession or allow them to be inspected and valued and I can place no weight on her assertion that the items are worth $18,000.00. However her admission against the interest is the only evidence I have (because she did not have to admit that the items were worth anything) and I have included the items in the wife’s possession in the pool at this value.
I might have been inclined to treat the wife’s refusal to permit inspection and valuation of the items as a s.75(2)(o) matter were it not for the fact that there are problems with the evidence about the items in the husband’s possession in particular his late disclosure of having the Tractor.
The wife claimed that the farm equipment and horses retained/disposed of by the husband after separation were worth $158,630.00. There is no evidence which would allow me to find that this is correct.
The husband was not a witness of credit as to chattels and equipment. He revealed during the trial that he did in fact have the Tractor which had been the subject of much dispute. However that is not sufficient to allow me to conclude that he ever had chattels and equipment in his possession worth $158,630.00 and I have also used his admission against interest that the farming equipment in his possession is worth $19,500.00.
The husband admitted during the course of the trial that he had the Tractor. It has never been valued. The wife said and I have no reason to disbelieve that the parties agreed when preparing a balance sheet in 2014 that it was worth $15,000.00. As the husband did not disclose having it until the trial began putting valuation of it out of reach I intend to include it at $15,000.00 rather than at $12,000.00 which the husband asserted it was worth.
The documents provided in connection with the husband’s bankruptcy suggest that he did not declare ownership of this asset to his Trustee in Bankruptcy. The Trustee has allowed the husband to retain some chattels but may not take the same attitude to the Tractor. However given the husband’s belated admission to having it I intend to include it in the pool despite the doubt surrounding his entitlement to it. The husband ought to be brought to account for retaining this asset.
The wife cross-examined the husband about horses but I am not satisfied that he has or had valuable horses in his possession which need to be factored in when determining a property settlement.
There was a significant dispute between the parties about whether either of them had taken and benefitted from the sale of some of the cattle which were on Property C at the time of separation.
In November 2013 an order was made for the sale of the cattle on Property C. The husband was given charge of the sale and he sold 149 head of cattle on 9 December 2013 and a further 90 head on 12 December 2013.
The husband alleged that when he went to sell the cattle there was a shortfall of 59 head. He alleged the wife had spirited them away. However there is no independent evidence that the wife took let alone sold cattle and I cannot do anything with this allegation.
The wife alleged that the husband had spirited cattle away with the assistance of the owner of a neighbouring property. She alleged that he had sold those cattle which were worth $100,000.00.
The weakness of the wife’s case in regard to the husband taking cattle is highlighted by the fact that the chief piece of evidence she relied on was that on a particular night the husband had a lengthy telephone conversation with his neighbour.
The husband produced documents concerning the identification tags for the cattle which he said demonstrated that he could not possibly have taken and surreptitiously sold the cattle.
I cannot make a finding that either party took cattle. There are several possibilities. One if that the husband or wife did take some of the cattle and sell them by some nefarious means if that is indeed possible. Another is that they are both mistaken and no cattle were ever missing. Yet another is that some third party took some of the cattle. There is simply no evidence which would enable me to determine where the truth lies.
The assets deriving from the marriage are worth $88,505.00 and the only liability which remains is:
Description
Ownership
Value
Bank 1 loan
Wife
$11,172.00
The above debt derives from two loans taken out in the wife’s name during the relationship. She has been paying them off since separation and the husband did not dispute that the debt was a relevant liability.
In her financial statement filed on 5 July 2017 the wife alleged that she owed a debt to Company Z in the sum of $4,232.43. The husband did not include this in his balance sheet for trial and the wife did not mention it. I have not included it as it is not clear whether this money was still owing in December 2017.
At the time of separation the husband had credit card debt totalling something like $130,000.00. He made repayments post-separation but the debt no longer exists because he was made bankrupt on 28 June 2016.
The assets deriving from the relationship are therefore worth net $77,333.00.
The husband has an asset in the form of his workplace damages claim payment in the amount of $755,000.00. He settled his claim for net $904,262.00 from which he was obliged to pay legal costs leaving a balance of $755,000.00.
The parties superannuation is as follows:
Description
Ownership
Value
Super Fund 1
Husband
$1,337,813.00
Super Fund 2
Wife
$47,663.00
Total
$1,385,476.00
The wife’s superannuation is an accumulation interest.
The husband’s interest in the Super Fund 1 is a defined benefit interest. Since he retired in September 2012 he has been receiving fortnightly payments indexed for inflation. In July 2017 he was receiving $1,800.00 per week or $93,600.00 per annum.
Mr P, who is recognised as having expertise in valuing superannuation interests, prepared a valuation of the husband’s superannuation using scheme specific factors. He confirmed that the family law value of the pension as at July 2017 was $1,337,813.00.
The husband had an opportunity to convert his entitlement into a lump sum at or around his 55th birthday. That time has passed but he has another window of opportunity to obtain a lump sum in the six months prior to or six months after his 60th birthday. He turns 60 on 2019.
In Mr P’s opinion it would not make economic sense for the husband to cash out his superannuation entitlement unless his life expectancy was substantially less than average as the exchange rate did not reflect the market cost of purchasing a pension, but that is a matter for the husband.
The husband’s counsel said that the husband had not decided whether to apply for a lump sum. He asked the court to note that if the husband cashed out his entitlement he would receive $917,752.50[4] and not the $1.3 million which is the capitalised value of the income stream but given that the husband has not decided whether to cash out the entitlement I cannot do anything with this information.
[4] Exhibit R
The husband’s superannuation interest can be split and Mr P said that the effect on the husband’s pension of a base amount splitting order would be approximately in the same proportion which the base amount bore to the total value. A splitting order which gave the wife 50% of the total value for example would result in a 50% decrease in the husband’s fortnightly payment.
In summary the pool is worth $2,217,809.00 and consists of the following:
i)Assets deriving from the relationship worth net $77,333.00.
ii)The husband’s superannuation which has a capitalised value of $1,337,813.00;
iii)The wife’s accumulation superannuation interest worth $47,663.00;
iv)The husband’s workplace damages payment of $755,000.00.
The applicable law
S.79 (1) of the Family Law Act 1975 empowers the court to make such orders as it considers appropriate altering parties’ interests in property.
S.79 (2) provides that the court shall not make an order under this section unless it considers that it would be just and equitable to do so.
In Stanford & Stanford the High Court stressed that when an application for a property settlement was made the court must first identify the parties interests in property and then consider whether it was just and equitable to make an order altering those interests. It stressed that this question could not be answered simply by considering whether a party had made contributions as set out in s. 79(4) of the Family Law Act.
Both parties accepted that it was appropriate for the court to consider making property settlement orders. The parties both poured capital and income into Property C and they are now separated and the case clearly comes within the situation referred to in Stanford namely it is a situation where:
…any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship and the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
I intend to take the usual steps to resolve the question of what particular alteration of interests would be just and equitable and those steps are:
i)to assess the contributions of the parties under s.79(4)(a), (b) and (c) and to express those contributions as a percentage;
ii)to consider the matters in s.79(4)(d), (e), (f) and (g), which includes the matters in s.75(2) so far as they are relevant, and determine whether any adjustment should be made as a result to the contribution based entitlements;
iii)to consider the effect of those findings and resolve what orders are just and equitable in all the circumstances of the case.
Contributions
The basis on which contributions are to be assessed
Contributions can be assessed either globally to one pool of assets or separately to either individual assets or separate pools.[5] Assessing contributions globally is more usual but the husband’s counsel submitted that in this case contributions should be assessed separately in respect of three separate pools: the relationship pool, the superannuation pool and the workplace damages pool.
[5] Norbis & Norbis (1986) FLC 91-712
I agree that this is appropriate. This was a short marriage and different considerations apply to each pool.
Property C was acquired by the husband only three years before the parties’ commenced cohabitation and it was into this property that the wife poured her capital. The husband’s superannuation on the other hand was acquired over a period of 27 years.
The wife’s superannuation also needs to be considered separately. It is unclear when she commenced acquiring superannuation but her superannuation doubled in value between separation and the time of trial.
Finally the workplace damages claim depends on the husband having suffered a personal injury and that asset also needs to be given separate consideration.
I intend to assess contributions separately to three separate pools (with the superannuation pool comprising two separate components) but the pool into which the wife’s capital disappeared is miniscule compared to the size of the other two pools and I will need to very carefully stand back at the end and ensure that the overall outcome is just and equitable. This is a case where simply adding up the components derived by assessing contributions to separate pools and leaving it at that could easily lead to an outcome which is not just and equitable.
The relationship pool
The wife’s capital contributions during the relationship from sources independent of the husband were as follows:
Date
Description
Amount
2009
Personal Loan
$17,489.00
2010
Loan secured over Property B
$150,000.00[6]
2011
Proceeds of sale of Property B
$158,223.00
2012
Sale of Property A
$79,606.00.[7]
Total
$405,318.00
[6] The husband said and it appeared to be common ground that $140,000.00 was used to pay out Ms J and the balance was used to pay household bills and expenses.
[7] The husband said that this was money was used as to $28,844.05 to pay the solicitors who acted in his family law matter with Ms J and that the balance was spent on household bills and some partnership expenses
The wife said and I accept that she made an additional contribution for the husband’s benefit in that he was required as part of his settlement with Ms J to transfer 50 live weaner calves to her and this occurred on or about 2011 after the husband and wife were operating Property C together. The husband did not dispute that this had occurred but I am not able to place a value on this contribution.
In her case outline document the wife added to the above the total income she earned during the relationship as if it was an additional capital contribution but this is not the correct way to deal with income earned during the relationship.
In his trial affidavit filed on 11 July 2017 the husband set out what he claimed were his assets when he and the wife commenced their relationship but at the beginning of the trial his counsel indicated that he now took a different position and the husband confirmed this when he went into the witness box. He claimed that his assets at the commencement of the relationship were:
Property C
$1.2m
Stock
$118,000.00
Plant & Equipment
$50,000.00
Vehicle 4
$10,000.00
Household contents
$15,000.00
Bank 2 Savings
$4,000.00
Total
$1,397,000.00
The husband said that his liabilities were:
Loan to Bank 1
$1,015,036.00
Overdraft
$158,000.00
Bank 3 Visa
$55,000.00
Bank 4 Visa
$35,000.00
Total liabilities
$1,263,036.00
This would mean that the husband’s assets at the commencement of cohabitation were about $134,000.00 but his counsel said and the husband confirmed in the witness box that in January 2009 the husband attended a farm debt mediation and received a payment of $300,000.00 which he used to wipe out the overdraft and reduce the Bank 1 mortgage to $866,000.00.
The husband asserted that this meant that in or about 2009 which was only about five months after cohabitation commenced his net asset position was about $414,000.00.
There are difficulties with the husband’s figures. One is that there was no independent evidence of the value of Property C in September 2008.
The husband purchased this property in 2005 with his then partner Ms J for $1.4m and he commenced the business Business W at the same time. He retained the property as part of his property settlement with Ms J in 2005. He later separated from Ms J and commenced a relationship with Ms J.
Ms J made a claim for a property settlement alleging she had made contributions during her short relationship with the husband and Property C was valued at $1.1m in January 2011 for the purposes of this claim. The property could therefore have been worth less in 2008 than the husband now asserts and in any event his interest in 2008 was subject to Ms J’s claim which eventually crystallised at $140,000.00 plus 50 weaner cattle.
There was no evidence to support the husband’s contention that in 2008 he owned cattle and horses worth $118,000.00 or plant and equipment worth $50,000.00 and there was no evidence to support his claim about the value of furniture or the Vehicle 4 or the amount he had in the bank.
The estimates for the value of the plant and equipment and cattle and horses do not strike a discordant note given the price received for the cattle at the conclusion of the marriage and the parties’ assertions about the value of plant and equipment at the end of the relationship but I cannot say more than that.
More importantly the wife importantly established in cross-examination that the husband had much more extensive credit card debt than he disclosed in his affidavit. He admitted that he also had an Bank 2, a Credit Card 2, a Credit Card 1 and a Visa Card and that at the commencement of cohabitation he owed money for the purchase of cattle and cattle yards.
It is impossible to be sure what the net value of the husband’s assets were when cohabitation commenced in 2008. Given the existence of Ms J’s claim it was certainly less than the $414,000.00 he asserted and given the later valuation of Property C and its eventual sale price and the existence of the credit card debt, I cannot rule out the possibility that his net asset position in August 2008 was not good at all, perhaps more in the vicinity of $140,000.00 than $414,000.00.
Employment
The husband was employed as an (occupation omitted) with (employer omitted) from when the relationship began in 2008 until he ceased attending work in 2011. During this period his income was $157,000.00 per annum.
In 2011 the husband commenced receiving workers compensation payments in the same amount as his usual salary and this continued until September 2012 when he was medically retired. From September 2012 he was in receipt of a superannuation pension which was initially $78,000.00 per annum.
The wife worked at various occupations between 2008 and 2013. From 2008 to 2010 she was a (occupation omitted) for (employer omitted). From 2010 to 2011 she was a (occupation omitted) for (employer omitted). From 2011 to 2012 she was the (occupation omitted) of the (employer omitted) and from 2013 to 2013 she was unemployed. In 2013 the wife commenced work as a (occupation omitted) at a (employer omitted).
The wife produced evidence of her income between 2009 and 2013 and asserted that her total gross taxable income was $186,243.00 which averages $37,000.00 per annum. This sits comfortably with the husband’s claim that the wife historically earned between $400.00 and $600.00 per week.
In summary the husband’s income was $157,000.00 per annum from the commencement of cohabitation in or about 2008 until 2012 and was $78,000.00 per annum from 2012 until separation in July 2013. The wife’s salary averaged $37,000.00 per annum throughout the relationship.
Financial contributions during the relationship
I accept the husband’s evidence that he paid the interest only loan repayments on the debt to the Bank 1 of $6,000.00 per month together with BAS payments, fuel for pumps and the majority of the household expenses. I also accept his evidence that he paid the rent for the unit the parties lived in on the Region C from 2008 until 2012.
I accept that the $53,058.00 long service leave and other entitlements he received in 2012 was used to pay household and farm expenses.
The husband complained that the wife did not make much of a financial contribution and that she paid $100.00 per week to Mr D. The issue of her paying Mr D was not explored during cross-examination and it was not contended that the wife was a profligate spender on things such as unnecessary luxury items, alcohol or gambling. I accept that she used her income for family purposes.
Non-financial contributions
The wife asserted that during the relationship she did all the cooking, cleaning and other housework. She said that she also fed and watered stock on Property C and assisted with yard work and painting.
I consider it likely that the wife did do more of the “inside” work but she asserted that the husband did not help around the farm and I do not accept that assertion.
The husband’s evidence was that from 2005 to August 2012 when he was medically retired he worked at Property C on weekends and did fencing, rotated the cattle, doctored the cattle, pumped and maintained water, did fencing maintenance, sprayed weeds and farmed Lucerne and other forage crops for cattle feed. He said and I accept that he also painted and maintained the house. I accept the husband’s evidence about his activities on the farm and the home at Property C.
I accept that after the husband retired the he did the majority of the work on the property. I accept that the wife made a contribution but she also had off-farm employment for most of the period after the parties moved to Property C.
Post separation matters
By the time of separation (judging by the sale price of Property C a year later) the parties’ financial situation was poor. They had equity of about $84,000.00 in Property C and also owned plant and equipment and horses. However the husband also had credit card and other debts which totalled $142,287.69.
Save for three mortgage payments and some liabilities which were paid from the sale of cattle[8] between separation and the sale of Property C, in July 2014 the husband made the mortgage payments and made the credit card payments and he also attended to the day to day maintenance of Property C. He was in receipt of superannuation of $78,000.00 per annum but the interest only loan repayments were $6,000.00 per month so the situation even in the very short term was untenable and illustrates why it would be entirely inappropriate to treat as a notional asset any tax refunds or other credits the husband received post-separation.
[8] Husband’s affidavit filed on 11 July 2017 paragraph 69
The husband ultimately declared bankruptcy as he could not pay the credit card debt, which totalled about $130,000.00 in July 2013 and $129,699.37 at the time of the sale of Property C.
The husband’s counsel submitted that the husband should be given credit for his post-separation efforts to keep debt under control but the reality was that he continued to do what he had been doing up to the date of separation.
The wife had never been a high income earner and had to rehouse herself. She offered to pay $200.00 per week toward the mortgage plus the electricity and telephone accounts which the husband accepted. I accept that no payments were ever in fact made but the wife was not in a position on her very modest income to contribute to debt repayments or the running costs of Property C.
The husband went further however and alleged that not only did the wife fail to contribute financially she frustrated his attempts to maintain Property C after separation.
He said that between July 2013 when he moved off the property and January 2014 when he was permitted to move back on following a court order, she threatened Mr E and Ms M who he attempted to engage to assist him with farm work, opened the gates on the property so that the heifers and bulls and the cows which he had painstakingly separated were all mixed up again the following morning, put the dairy cows in with the weaners resulting in the weaners draining the dairy cows and the dairy cows dying, and caused the condition of stock to deteriorate because she could not work the water pump and could not carry out basic medical procedures for the animals.
There is some merit in the husband’s complaints. The wife similarly engaged in actions (which if successful would also have been self-defeating) to try to harm the husband’s interests when she questioned during investigation of his workplace damages claim whether he had in fact suffered a work place injury but it is not possible for me to make a finding about the economic effect of the wife’s actions. The husband alleged that the total value of the cattle which died or went missing while the wife was in occupation of the property was $26,298.60 but there were other problems at the time in that the area was in drought and it would be unsafe for me to sheet blame home to the wife for this exact dollar amount.
The wife did make a post separation contribution to reducing debt. She alleged and it was not disputed that at the time of separation $23,360.58 was owing on a Bank 1 loan and $8,112.43 on a Company Z debt. She said and I accept that she paid these debts from income in a total amount of $18,840.52 so that by the time of trial $11,172.00 was owing to Bank 1.
Conclusion about contributions to the relationship pool
In some respects an assessment of contributions to this pool is almost meaningless because the parties’ contributions to this pool from income and capital sums vastly exceeds the amount now available for distribution.
Property C was sold for $950,000.00, $450,000.00 less than the husband had paid for it 9 years previously, $250,000.00 less than he claimed it was worth in 2008 and $150,000.00 less than it was worth when it was valued in 2011 for the purpose of his property settlement with Ms J. At the end of the relationship $77,000.00 is left to divide.
There was a flavour in the wife’s case of her claiming that the husband misled her about his financial situation and sucked money out of her. She alleged that the husband’s behaviour toward her began to get nasty when she ran out of money.
I cannot find that either of those propositions are correct on the state of the evidence. There was no evidence that the husband deliberately gave the wife false documents or false figures. He made her a partner in Business W meaning that she had the capacity to access financial documents if she wanted to. There was no evidence that the wife asked questions and was refused answers or that she was given misleading answers. There was no evidence that this was a violent relationship in which the wife might have been afraid to ask questions or was a situation where the husband took account of personal frailties of the wife such as intellectual disability, inability to speak English or mental health issues. The wife is a feisty woman who is more than capable of standing up for herself.
The wife alleged that the husband became nasty when she ran out of money but the particular difficulties in the relationship seem to have emerged when Mr D got out of prison in 2013 and again commenced living on the property. I accept the husband’s evidence that Mr D was threatening and intimidating and assaulted him in 2013. If anything led to the demise of the relationship it was that.
The wife joined with the husband in taking active steps to retain and run the property. She would have been the first to claim a share of the gain if the property had increased in value and she cannot expect the husband to solely bear the loss arising from its decline in value.
There is nothing in the evidence which would allow me to find that the decline in value had anything to do with the way the parties managed the property. The loan secured over the property was an interest only loan which did not help because no equity was created by the loan repayments and there is reference in the material to the area being in drought toward the end of the parties’ relationship which might offer some explanation although nobody attempted to put forward an explanation.
The fact that so little is left in this pool in comparison to the contributions which were made is something I will have to keep in mind when trying to ensure that the overall outcome is just and equitable but for the time being I will attempt to assess contributions to this pool.
During the relationship the parties both contributed income to the repayment of debt and maintenance of the farm and the husband continued to do so after the relationship ended. The proportion between their incomes was about 75% by the husband and 25% by the wife during the first four years of the relationship and was about 66% and 33% in the last twelve months.
In that respect the husband’s contributions exceeded the wife’s but a relevant factor is that the wife introduced capital sums totalling $405,318.00. $186,744.00 went to pay Ms J and to pay the legal costs associated with her claim and the balance of $218,394.00 assisted with paying farm debt and keeping Property C running.
The husband introduced Property C and plant, equipment and stock into the relationship but it is very difficult to be sure about his net asset position at the commencement of cohabitation or in 2009. He had a large number of credit cards and was much more heavily indebted than he initially revealed in his trial affidavit, and he failed to factor in that when he commenced his relationship with the wife Ms J had a claim on his assets which later crystallised at $140,000.00 and cost $46,744.00 to resolve. As previously noted it is not beyond the bench of possibility that the husband’s net assets were worth more like $140,000.00 than $400,000 in 2008/2009.
The husband earned considerably more than the wife during the relationship which is relevant in a short marriage, and some of the wife’s large capital contributions went to assist with running Property C and could be seen as offsetting the husband’s much greater income which was used for the same purpose, but the capital payments which allowed the husband to settle with Ms J in my view on the balance of probabilities exceeded the value of the assets introduced by the husband.
In his case outline document the husband’s counsel’s argued that the wife had already received a fair share of this pool because she had received the $30,000.00 and would retain the $18,000.00 worth of items in her possession. He submitted that the husband should retain the money in trust and the parties should otherwise keep the assets from this pool which were in their possession.
This pool is worth $77,333.00 and the wife has assets in her possession worth $6,828.00 net representing about 9% of this pool. It would not be just and equitable to assess contributions to this pool as 91% by the husband and 9% by the wife.
During final submissions the husband’s counsel submitted that this pool should be divided equally but I do not agree that this is appropriate either.
The husband’s contributions to this pool cannot be discounted because of the wife’s larger capital contributions and he poured his considerable income into the property but in my view an appropriate assessment of contributions after the wife’s capital contributions and the considerable uncertainty about the husband’s equity in the property when the relationship commenced is 60% in the wife’s favour and $40% in the husband’s.
This would entitle the wife to $46,399.80 and the husband to $30,933.20.
Superannuation
The wife had superannuation worth $21,819.85 at or about the time of separation in 2013.
She did not clarify what part of any of the superannuation was acquired before cohabitation commenced.
The wife had superannuation of $47,663.00 at the time of trial so over half of her superannuation was acquired post-separation during a period when to her credit she re-educated herself and obtained work as in the field of (occupation omitted).
It could be argued that if the wife is deemed to have made a contribution to the superannuation the husband acquired during the relationship then the husband should be deemed to have made a contribution to the superannuation acquired by the wife but it would at best be in the vicinity of $10,000.00 and the husband’s counsel did not ask me to assess the husband as having contributed to the wife’s superannuation.
The capitalised value of the husband’s superannuation at the time of trial was $1,337,813.00.
The husband joined the Super Fund 1 on 1985 and was a member for 23 years before the parties commenced a relationship. The value of his superannuation in 2008 is unknown. He contributed to his fund between when the parties commenced a relationship in September 2008 and when he was medically retired from (employer omitted) in 2012, a period of four years.
The parties married and joined their fortunes together for the purposes of running Property C and I am prepared to infer as the husband’s counsel asked me to do, that the wife made an indirect contribution to the husband’s superannuation as a result of her role in the marriage but she was with the husband for less than a 6th of the time that he was in the fund.
No reliable figure is available for the value of the husband’s superannuation at or about the time cohabitation commenced; the resignation benefit at any particular time does not assist. The husband’s counsel used the years of service to try and put a value on the wife’s deemed contribution.
The husband’s counsel submitted that the total period of the husband’s contribution to his superannuation was 27 years and the parties were together for 4 years or 14.81% of that period. 14.81% of the capitalised value was $198,130.00 and the wife should be deemed to have contributed 50% of this or $99,065.00.
This is in my view a generous assessment and as the husband’s counsel proposed it I will adopt it.
The workplace damages payment
The husband claimed that he had suffered a psychological injury with a deemed injury date of 2011 and he settled the claim with his employer for $904,262.00. The components of the settlement were:
Past wage loss after deduction of worker’s
Compensation payments $207,670.00
Fox v Wood $25,839.00
Past loss of superannuation $48,330.00
Future wage loss $506,849.00
Future superannuation $55,574.00
Costs (party/party estimated) $60,000.00
Total $904,262.00The loss of wages component was for the period 2011 to 2017.
The husband’s counsel submitted that the wife could be deemed to have contributed only to the past wage loss, past superannuation loss and to a very insignificant amount the Fox v Wood claim. He submitted that the past wage loss attributed to the period of separation arithmetically was worth $61,000.00 to $62,000.00. The three components added together are thus worth $281,839.00 and he submitted that the wife could be deemed to have contributed 13% or $36,639.00.
Although this court is not generally attracted to an arithmetical assessment of contributions, there is force in the submission by the husband’s counsel that this is the only basis on which an appropriate assessment of the wife’s contributions to this pool can be made.
This is not a case where the wife provided support and assistance to the husband following an injury or supported him in pursuit of his claim. During cross-examination the wife said that the husband never mentioned anything to her during the relationship about any events at work which might have caused him stress or injury. She also conceded that she gave a statement to a private detective in which she disputed that the husband had suffered a workplace injury.
I accept the submission by the husband’s counsel that the wife should be assessed as having contributed $36,639.00 to this pool.
Summary
The wife did not make submissions about contributions in a way which balanced the diverse contributions of the parties; her approach was more that she should be compensated for her exact capital contributions and in some general way for the impact of her back injury.
I am left with the husband’s counsel’s analysis, and with the adjustment to the non-superannuation pool referred to earlier, I am satisfied that the assessment of contributions by the husband’s counsel should be accepted, indeed the superannuation assessment is generous as the husband’s counsel calculated it on an arithmetical basis and did not seek to factor in the wife’s superannuation.
The assessments in respect of each pool result in the wife being entitled to $229,766.80 made up of:
a)$46,399.80 from the relationship pool;
b)$99,065.00 from the husband’s superannuation;
c)$47,663.00 being her superannuation; and
d)$36,639.00 from the workplace damages pool.
They result in the husband being entitled to $749,294.20 (his damages award less $36,639.00 payment plus $30,933.20 from the relationship pool). The husband also has his fortnightly pension payments of $1,800.00 or if he chooses to cash this out an amount of $900,000.00.
S. 79(4) (d) (e) (f) and (g) matters
I am required to consider the matters in s.79(4) (d) (e) (f) and (g) of the Family Law Act. Subsection (e) is relevant; it requires the court to have regard to the matters in s. 75(2) of the Act.
S. 75(2) matters
The wife is 55. She studied (qualifications omitted) after the end of the relationship and at the time of the hearing was working as an (occupation omitted) at (employer omitted). In her financial statement filed in June 2017 she said that she was earning $1,500.00 per week or $78,000.00 per annum.
During the hearing the wife said that she was considering throwing in her job and going to stay with Mr D in Queensland to help him and his partner with their young child. As was pointed out to the wife during the hearing if she does that it will be her choice. She has a capacity for employment if she chooses to exercise it.
The wife injured her back in 2012 but the report of Dr B dated 5 July 2017 which the wife provided did not suggest that the wife was suffering from any incapacity which might impact on her ability to obtain employment in the future. Dr B said that there was no absolute indication for surgery and that while it might need to be considered in the future this was “only a possibility rather than a probability.”
The wife has not re-partnered and does not have a legal responsibility to provide for any other person. In her case outline document the wife alleged that she had a responsibility to care for her son Mr D. Mr D is an adult with a partner and child. There is no evidence that he requires support from the wife let alone that she has any legal obligation to provide it. Certainly she sold the house Mr D transferred to her and used the money for her own purposes during her marriage to the husband. However there was there was evidence that this had left her open to possible legal action by Mr D.
The wife gave unchallenged evidence that she had a VET debt of $16,855.20 arising out of her training. However there was no evidence that this needed to be repaid in a lump sum as opposed to being repaid by deductions from the wife’s salary. If it is repaid by means of deductions from the wife’s salary it will reduce her weekly income for a period of time but I was provided with no evidence about this.
In her financial statement filed on 5 July 2017 the wife said that her sister had provided her with $10,000.00 to pay legal fees and that a Mr L had paid $2,000.00 for provision of a medical report. She did not claim in the liabilities section of the financial statement however to owe these people any money.
On the basis of contributions the wife is entitled to $229,766.80. She has superannuation of $47,663.00 and the plant and equipment in her possession less the Bank 1 debt are worth $6,828.00. The remaining $175,275.80 could come from:
a)$34,005.00 being the money held in trust by Lawler’s.
b)$99,065.00 from the husband’s superannuation;
c)$42,205.80 from the workplace damages pool.
In final submissions the wife suggested that she transfer the farming equipment and chattels in her possession to the husband. As was pointed out to the wife in submissions she has never allowed anyone to inspect these items and I cannot expect the husband to take them now, even at the value of $18,000.00 which the wife attributes to them.
The husband is almost 59. He was medically retired from his employment and he suffers from a depressive disorder and has other health problems including Type 1 diabetes. He does not have any capacity for future employment.
The husband receives a superannuation pension of $1,800.00 per week or $93,600.00 per annum. If a splitting order is made on the basis of the contribution assessment his income will be reduced by about 7% to $1,672.00 per fortnight. He will still have more than sufficient income to live on.
If the husband chooses to cash out his superannuation and receives less than the capitalised value of the pension that is a matter for him. In that event on the basis of contributions he will have over $917,000.00 cash to live on or rehouse himself as he chooses.
In his financial statement filed on 13 November 2017 the husband alleged that he had a taxation debt of $10,000.00. There was no evidence about this beyond the husband’s assertion that it was owed and I cannot take it into account.
The husband is entitled to the following on the basis of contributions:
i)$30,933.20 from the relationship pool
ii)$718,361.00 from his workplace damages award
iii)His weekly superannuation payments of $1,672.00 per fortnight or $86,944.00 per annum.
In some respects there is nothing in the parties’ circumstances which justifies an adjustment for s. 75(2) matters. The wife is working. The husband is not and he is a few years older but unless he chooses to cash out his superannuation, he has a substantial income for life and an income which is indexed for inflation and would be sufficient to meet his living costs and housing needs albeit he may need to rent.
The wife can continue to work and accrue superannuation until retirement. She will never be in anything like as a strong a financial position as the husband in terms of retirement income but the parties’ were together for under 5 years. The husband is in a fortunate position because of 23 years of employment before his relationship with the wife commenced and it is not the job of the court to engage in social engineering and attempt to equalise the parties’ financial circumstances.
However it is necessary to take into account the impact on the parties of the loss occasioned by all the money poured into Property C and that loss has fallen much more heavily on the wife.
Both parties are assured of future income but the husband has a large cash amount as a result of his damages award and the wife has little in the way of assets, and this in circumstances where I am satisfied that the wife’s contribution to the relationship pool exceeded the husband’s.
I must step back and have a look at the outcome rather than just blindly applying the contribution percentages and I am satisfied, and indeed the husband’s counsel conceded, that this was a case where applying the contribution percentages does not result in a just and equitable outcome. An adjustment must be made in the wife’s favour and whether it is characterised as being pursuant to s. 75(2) (o) or simply to ensure that the outcome is just and equitable does not matter.
The husband’s counsel proposed that the wife receive a 5% adjustment. On my pool this would entitle the wife to an additional $110,890.45 and the total she would receive would be boosted to $340,657.25.
In my view this is inadequate. If the wife is entitled as the husband’s solicitor submitted she was to superannuation of $99,065.00, then the net outcome for the wife is that the money she had at the beginning of the relationship (including her own superannuation) has diminished to $187,101.25.
It is true that I took some of the wife’s capital contributions into account to balance the disparity in the parties’ incomes during the relationship but the result is the loss arising out of the operation of Property C still falls far too heavily on the wife.
In my view the appropriate s.75(2) adjustment in the wife’s favour is 10% which will give her an additional $221,780.90.
The loss still falls more heavily on the wife but I cannot overlook the fact that the husband is in a superior financial position partly because he became a member twenty three years before separation of a valuable superannuation fund and he suffered a workplace injury which has led to him being entitled to a cash payment.
The wife will receive $451,547.70 which comprises of the following:
Description
Value
Proceeds of sale of Property C and cattle held in trust
$34,005.00
Farming and miscellaneous equipment in possession of wife
$18,000.00
Superannuation already in her name
$47,663.00
Superannuation split from husband
$99,065.00
Cash payment from husband
$263,986.70
Less Bank 1 debt
($11,172.00)
Total
$451,547.70
The husband will receive:
Description
Ownership
Value
Farming equipment in possession of husband
Husband
$19,500.00
Tractor
Husband
$15,000.00
Motor vehicle 3
Husband
$2,000.00
Workplace damages claim less payment to wife
$491,013.30
Total
$527,513.30
The husband will also retain his income for life of $1,672.00 per week. If he chooses to cash some or all of his entitlement out that is a matter for him.
I am satisfied that the outcome is just and equitable.
The Orders
I intend to order that the wife receive the amount held in trust by Lawlers Solicitors including the $0.19c left out in this judgment for ease of calculation.
I intend to make a splitting order in relation to the wife’s entitlement to the husband’s superannuation but I have been unable to find evidence of procedural fairness in the papers I have available to me. The splitting order will therefore be made in chambers as soon as evidence of procedural fairness is received.
The husband is aggrieved that his father’s war medals are missing and sought an order that the wife return them. The wife said that she did not have them.
I have no reason to believe that the husband mischievously removed the medals himself to make the wife look bad or that he is mistaken about leaving them in the house but the evidence is not sufficient to allow me to make a finding that the wife has the medals.
She was not a witness of credit and particularly so about the medals. However the wife’s son Mr D was able to access the house at this time and I cannot discount the possibility that he took the medals and he is not a party to the proceedings. Moreover, even if I could make a finding that the wife took the medals I could not make any effective orders for their return. It is not possible to fix on a monetary value for the medals to be paid to the husband in the event they are not delivered up.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 13 June 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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