Xinya & Ping
[2022] FedCFamC2F 972
Federal Circuit and Family Court of Australia
(DIVISION 2)
Xinya & Ping [2022] FedCFamC2F 972
File number(s): MLC 3428 of 2020 Judgment of: JUDGE HARLAND Date of judgment: 25 July 2022 Catchwords: FAMILY LAW – property – 6 year relationship – initial contributions – Stanford argument
Credit issues with respect to aspects of both parties’ evidenceLegislation: Family Law Act 1975 (Cth) pt VIII, ss 75, 79, 90SM.
Rule 6.06(8) of Federal Circuit and Family Court Rules 2021 (Cth)
Cases cited: Jabour and Jabour [2019] FamCAFC 78
Stanford & Stanford [2010] FamCA 784
Division: Division 2 Family Law Number of paragraphs: 51 Date of hearing: 12 & 13 May 2022 Place: Melbourne Counsel for the Applicant: Ms Swart Counsel for the Respondent: Mr Trim Solicitor for the Applicant: AHL Legal Solicitor for the Respondent: M and K Lawyers Group Pty Ltd ORDERS
MLC 3428 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS XINYA
Applicant
AND: MR PING
Respondent
order made by:
JUDGE HARLAND
DATE OF ORDER:
25 July 2022
THE COURT ORDERS THAT:
1.Within 90 days of the date of these Orders, the Respondent husband pay to the Applicant wife the sum of $200,432 by way of property settlement (Settlement Sum).
2.Forthwith upon the making of such payment, the wife do all acts and things necessary and sign all such documents as may be required to remove the caveat registered over the properties situate at and known as B Street, Suburb C (B Street, Suburb C Property) and D Street, Suburb E (D Street, Suburb E Property).
3.In the event that the husband has not paid the Settlement Sum to the wife as referred to in paragraph 1 within 90 days of these orders, the husband shall immediately do all things and sign all documents necessary to sell the B Street, Suburb C Property and the proceeds of sale shall be applied in the following order and priority:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Second, to discharge the mortgage and any other encumbrance registered against the property;
(c)Fourth, to make a payment to the wife to reveal an overall adjustment of the net asset and superannuation pool of 60 percent to the wife and 40 percent to the husband;
4.Within 60 days of these orders, the wife deliver to the husband all jewelleries she received from the husband and his family members.
5.Save as otherwise provided in these orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
(a)The wife will retain for her sole use and benefit all property (including choses-in-action) in her possession as at the date of these orders including but not limited to:
(i)The property situate at and known as F Street, Suburb G (F Street, Suburb G Property);
(ii)The car in her possession;
(iii)Bank and like accounts in the wife's name;
(iv)The wife's superannuation entitlements;
(v)The personal effects, furniture and contents in the wife’s possession including all of the furniture and contents at the properties she is to retain pursuant to these orders;
(b)The husband will retain for his sole use and benefit all property (including choses-in-action) in his possession as at the date of these orders including but not limited to:
(i)The car in his possession;
(ii)Bank and like accounts in the husband's name;
(iii)The husband's superannuation entitlements;
(iv)The personal effects, furniture and contents in the husband's possession;
(c)All insurance policies will remain the property of the named owner;
(d)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(e)Each party will be solely liable for and indemnify the other in relation to:
(i)Any liability encumbering any item of property to which they are entitled pursuant to these orders; and
(ii)Any and all other liabilities in their sole name.
6.The parties will sign all documents and do all things necessary to give effect to these orders in the time periods described in these orders.
7.In the event that either party fails to comply with these Orders, then the Registrar of the Federal Circuit and Family Court of Australia is empowered and authorised to exercise all necessary documents on behalf of the non-complying party pursuant to section 106A of the Family Law Act 1975 (Cth) and by way of consequential arrangement to this order: -
(a)An affidavit by the compliant party and/or their solicitor setting out the non-compliant party’s failure to comply with these orders will be sufficient evidence of non-compliance; and
(b)The compliant party nominate a solicitor who is authorised to sign documents of PEXA transfers and such solicitor shall sign on behalf of the non-compliant party upon the written request from the compliant party to do so upon provision of a sealed copy of these Orders.
AND THE COURT NOTES THAT:
A.Pursuant to s.81 of the Family Law Act 1975, these orders shall as far as practicable finally determine the financial relationship between the parties and avoid further proceedings between them.
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 Xinya & Ping has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
The parties were in a relationship for approximately six years. They have been unable to reach an agreement as to the just an equitable adjustment of their property interests. This is unsurprising when considering the respective cases presented by their respective counsel. Both argued their client’s case was obvious and the other party was being unreasonable. Aspects of both parties’ evidence was unreliable.
The Applicant wife is 37. The Respondent husband is 39. They do not have children together. Both were born in China and are permanent residents of Australia. The wife currently earns approximately $94,000 a year. The husband earns approximately $75,000 a year. The wife says the parties met in 2011 and started dating in early 2012. The parties married in 2015. I prefer the wife’s evidence as to the dates of the commencement and the end of their relationship. The wife says the parties separated in December 2018 and the husband filed for divorce in December 2019. The husband remarried in 2021. The husband has a child with his wife, born in 2021.
The wife’s case is that she made significant initial contributions in the sum of $380,000 which she used to purchase a unit off the plan prior to the commencement of the parties’ relationship. She argues otherwise the parties’ contributions should be considered equal and that there should be no adjustment for s75(2) factors. She argues that there should be a 15% adjustment in her favour in recognition of her initial contributions.
The husband argues that this is a classic Stanford & Stanford [2010] FamCA 784 case. He disputes the extent of the wife’s initial contributions and submits that those contributions have been eroded. He places some significance on the increase in value of his real estate interests post separation. He also refers to the fact that he has remarried and has a young child with his wife to support. He argues that in all of the circumstances it would not be just and equitable to make any adjustment of the parties’ property interests.
Legal Principles
Part VIII of the Family Law Act 1975 (Cth) (“the Family Law Act”) governs property, spousal maintenance and maintenance agreement between married couples. The major provisions relating to marital property division are contained in ss.79(1); 79(2); 79(4); & 75(2) of the Family Law Act.
The High Court considered the operation of s.79 of the Family Law Act (which has almost identical terms to s.90SM) in the matter of Stanford v Stanford (2012) 247 CLR 108.
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. I am satisfied that it is just and equitable for there to be a property adjustment.
The High Court also pointed out that what is just and equitable is different in every case.
It is important to have regard to the myriad of contributions the parties have made over the whole of their long relationship and take a holistic approach to the assessment of the parties’ contributions.
Parties’ legal and equitable interests
The asset pool is largely agreed and consists of the following:
Asset Wife Husband Total F Street, Suburb G Property $975,000 $975,000 D Street, Suburb E Property $700,000 $700,000 B Street, Suburb C Property $975,000 $975,000 Commonwealth Bank Account $42,230 $42,230 Bank H Account $531 $531 Total of Asset Pool $1,017,230 $1,675,531 $2,692,761
Liabilities Wife Husband Total F Street, Suburb G Property $278,390 $278,390 D Street, Suburb E Property $352,880 $352,880 B Street, Suburb C Property $355,484 355,484 Loan owing to Parents $89,000 $89,000 Total Liabilities $278,390 $797,364 $1,075,754
Superannuation Wife Husband Total Super Fund J $207,998 $207,998 Super Fund K $87,117 $87,117 Net Total $207,998 $87,117 $295,115
Wife Husband Total Non-Superannuation Net pool $738,840
$878,167
$1,617,007 Combined Net Pool $946,838 $965,284 $1,912,122
By the end of the trial, the wife no longer pursued the addback of $12,500. There was a dispute prior to the trial about the value attributed to the wife’s motor vehicle, but as each party will retain their motor vehicles they agreed not to include either vehicle in the pool. Both parties have received advances from their parents post separation to assist with their legal fees and living expenses. Neither party seeks those amounts to be added back. The wife acknowledges the husband owes his parents $89,000.
The superannuation pool consists of the husband’s superannuation which is an accumulation fund with a balance of approximately $87,117, and the wife’s superannuation with a balance of approximately $207,998 which is a combination of an accumulation fund and a defined benefit fund. Working on the figures the parties provided, the wife has 70% of the combined superannuation pool while the husband has 30%. If the parties’ superannuation interests are included with their net assets, then on the current figures the wife has $946,838 or 49.5% and the husband has $965,284 or 50.5 %
Neither party seeks a superannuation split and the superannuation interest has not been valued. Most unsatisfactorily, the fact that a little over half of the wife’s superannuation is in a defined benefit fund was not disclosed until the superannuation statements were produced at trial. Part J of the financial statements to be filed requires the parties to identify the nature of their superannuation interests as well as the current balance. It also states that if a party is seeking a property adjustment then they are required to annex a superannuation information form to the financial statement. In practice this is rarely complied with. Rule 6.06(8) of Federal Circuit and Family Court Rules 2021 (Cth) require parties to exchange the completed superannuation information form unless they have already done so prior to the first return date.
The difficulty however is that the interest from a defined benefit fund is complex to value. Reliance cannot be placed on the face value shown on the superannuation statement in contrast to accumulation superannuation funds, as the ultimate value of a defined benefit fund’s interest is calculated using a number of factors including years of service with an employer and the income at retirement. The formula provided is more complex than this.
Counsel for the husband complained that the wife was seeking to benefit from the increase in value of his client’s properties, but was not offering any superannuation split. Given the increase in the wife’s superannuation entitlements, neither party sought a superannuation split at trial. In particular given the late disclosure by the wife, it was open to the husband’s counsel to change his client’s position to seek to submit the form of order after giving the superannuation trustee procedural fairness. He did not do so and no application has been made since I reserved my decision. Given this I will not make an order for a superannuation split.
The wife claims that she was obliged by her employer to opt within two years of her employment commencing whether or not to pay additional voluntary contributions to her superannuation fund.She says she that once she made that election she cannot change it, and has been making those voluntary contributions throughout and since the relationship.
In the circumstances of this case it is appropriate to consider the parties’ non-superannuation and superannuation assets in a combined pool as this most fairly recognises the increase in property values and the increase in superannuation.
What are the parties’ initial contributions and how should they be assessed?
The wife purchased the property at F Street, Suburb G (F Street, Suburb G property) in 2010 for $640,000 off the plan. She says she funded the deposit of $64,000 from her savings and monies provided to her from her parents. She provided a further $275,000 at settlement and took out a mortgage with ANZ bank for approximately $275,168.27 for the balance. The purchase settled in 2012 and she moved into that property. The wife did not obtain a valuation of the property in 2013 when the husband moved in. In cross-examination she did not think it was necessary given that she purchased the F Street, Suburb G property in 2012. The wife had estimated the value of the F Street, Suburb G property in 2013 as $700,000 in her initial material. Given there is no expert evidence as to the value of the F Street, Suburb G property in 2013, the purchase price of $640,000 at 2012 is the best figure.
The wife produced her Super Fund J statement which showed that as of 30 June 2013 she had approximately $27,159.81 in superannuation.
As of 30 June 2013, the husband’s Super Fund K superannuation statements showed he had approximately $12,956.46 in superannuation.
The husband was an extremely poor historian and was vague in many aspects of his evidence. When challenged about the times the parties allegedly met, he said that it was a long time ago and that he could not remember the exact dates. The husband did agree however that they were not living together when the wife moved into her F Street, Suburb G property, and that he helped her put together some furniture that her parents sent her from China.
When it was put to the husband that he moved into the wife’s F Street, Suburb G property in early 2013, he disagreed and said that he began to spend more time in the F Street, Suburb G property earlier in their relationship and less time at the Suburb L property where he was living at the time. The husband was unable to remember when he vacated the Suburb L property. I prefer the wife’s evidence with respect to when their relationship began and when they moved in together.
The husband moved into the F Street, Suburb G property in 2013. When the parties started living together, the wife says that she paid for the mortgage, council rates and body corporate fees. She says that for the first year she was solely responsible for the payment of utilities, but after that first year she asked the husband to contribute to their expenses.
Other contributions
In 2013, the husband purchased the property at B Street, Suburb C (B Street, Suburb C property) for $490,000. The husband says he funded the deposit of $49,000 from his savings and monies provided to him on loan from his parents of $88,970 to help fund the purchase of the B Street, Suburb C property. The husband obtained a mortgage of $392,000 from NAB and provided a further $77,088.12 from his savings to complete the settlement. The B Street, Suburb C property was privately leased to a tenant for $1,600 per month from late 2013.
The wife says that they spent four or five months in 2013 searching for and inspecting properties together. She provides text exchanges in support of this. She says she inspected the B Street, Suburb C property on her own as the husband could not get off work that day, and recommended to the husband that they should buy that property. The wife says the initial intention was for the parties to move into the B Street, Suburb C property as the matrimonial home, but that they later decided it was better to stay in the F Street, Suburb G property as it was closer to their work and the community had more amenities. The wife says the parties agreed that the rental income from the B Street, Suburb C property would be used to repay the B Street, Suburb C mortgage. The husband disputes this and claims that the wife made no contribution, financial or otherwise, towards the acquisition, maintenance or improvement of the B Street, Suburb C property.
The wife says that in 2016 the parties discussed the purchase of another investment property. The wife says that they both searched for properties together, and that after inspecting D Street, Suburb E (D Street, Suburb E property), the parties decided to purchase that property. The wife says that she offered to contribute money to the purchase price, but that the husband told her to use her money for daily expenses in order to improve their standard of living, and that he would pay the purchase price.
The wife says that she was involved in looking for properties for the parties to purchase and that she was involved in the decision to purchase the D Street, Suburb E property. The husband denies this, but could not explain why he sent the contract of sale to her before he signed it, and then said he might have needed help because of his difficulties with English.
The WeChat messages between the parties also show that they did discuss buying an investment property in 2016. I am satisfied that the wife was involved in the decisions to purchase both properties.
The husband purchased the D Street, Suburb E property in September 2016 for $490,000. The husband says he funded the deposit of $49,000 from his savings and monies provided to him on loan from his parents. In 2013, the husband’s parents loaned him $70,000 and gifted him a further $10,000 in 2016 in order to fund the purchase of the D Street, Suburb E property of which is annexed to his affidavit. The husband obtained a mortgage of $392,000 from Bank of Melbourne and provided a further $77,354.31 from his savings to complete the settlement. The D Street, Suburb E property was leased to tenants via M Real Estate agency for $1,800 per month from November 2016 to October 2018.
The wife says the D Street, Suburb E property was rented out until December 2018 when the husband moved into the property with his mother where they have been living there since. The wife says that the husband also rented two rooms of the D Street, Suburb E property, annexing in her affidavit an advertisement of the property on a Chinese website which she describes as a Chinese version of Gumtree. The husband’s Bank H statements show entries for payment of rent on 14 February 2019 from two individuals at $550 each. This is the same bank account the husband receives his salary from Employer N. The statements also show regular deposits of $2,000 a month from Mr O.
The husband denied the allegation that the parties started looking for a property to purchase together, and that the B Street, Suburb C property was intended to be their matrimonial home. When cross-examined about this, the husband said that the wife’s parents required that he buy a property as a precondition for their marriage. He does not refer to this in his affidavit. The wife’s mother was also not cross-examined about this. When the wife’s counsel suggested to the husband that it was a tradition in their culture where both parents expect the purchase of a matrimonial property, the husband said he did not understand his parent’s culture and that both parents are culturally from different places. The husband again said that when he bought the B Street, Suburb C property they were not yet married, and it was not the expectation that the property would become the matrimonial home, but that that the wife’s parents required him to buy a property before they would permit them to marry. This is a somewhat convenient explanation for the husband to give as he is seeking to effectively quarantine his property. The wife’s evidence is more credible on this point.
The husband said he could not remember the wife looking at properties with him. The husband claims he had $30,000 in savings at the commencement of the relationship. He was cross-examined at some length about this as at the time when he was working at Employer P in 2013, his gross annual salary was $44,268. The husband was asked how he was able to substantially save money from his earnings when he only started that job in 2013. The husband said that prior to 2013 he had obtained other employment such as waiting tables in a restaurant. The husband’s bank accounts show that he received $50,000 from his mother in June 2013, and for over a five month period his savings increased from about $32,000 to $47,000. The wife’s counsel put to the husband that this would mean he was saving approximately $700 a week during that five month period while he was living at the F Street, Suburb G property with the wife as his net pay at the time was $832 a week. This fits in with the wife’s claim that she had paid for all of the expenses in the first year when the parties had lived together at the F Street, Suburb G property.
The husband disagreed with the wife’s counsel’s proposition that he was able to substantially save because he was not contributing to expenses at the F Street, Suburb G property. The husband admitted he had a car and paid for petrol but said that he normally commuted via train to work. The husband also tried to further explain his calculations and said he was able to live on about $10,000 every 6 months.
The husband looked at his bank statements overnight and when cross-examination continued the next day, he claimed that about $11,000 was by way of repayment from a friend in Country Q. Again, the husband was vague. The husband denied receiving this income from his purported small business and said that the parties were financially independent and did not discuss every detail about their friends.
The husband’s evidence was difficult to reconcile particularly because he was so vague in his evidence, but then purported to remember details of calculations as to his savings. I formed the impression that at times he was trying to make his answers fit his narrative. His evidence was inconsistent and unconvincing. For example he claimed that he gave a lump sum to the wife for expenses but does not refer to this in his affidavit and was not able to produce any bank statement from 2013 reflecting this. The wife’s evidence that she asked him to start contributing to the expenses in 2014 makes sense because it is after the purchase of the B Street, Suburb C property which was rented out to tenants. The husband was unable to produce the bank statements showing that he made a payment of $5000 to the wife on 4 April 2014, which is also consistent with the wife’s evidence.
I find on the balance of probabilities that the husband was able to significantly save money as he was not contributing to the F Street, Suburb G property and living expenses.
loan agreements and advances from parents
The wife says she had no knowledge of any loan agreements between the husband and his parents until she read his affidavit. Both parties have received assistance from their parents post separation for legal fees. Neither party seek to have these amounts to form part of the asset pool.
business income and rental income
The wife says that the husband operated a side business selling health products produced in Australia to people in China via a Chinese e-commerce platform called R. The wife complains that the husband has refused to disclose the income he has received from that business.
The husband was cross-examined about this and claimed that he wanted to improve his Photoshop skills by creating a website and was hopeful of having customers for a short period of time. He later then said it was a hobby and that he was buying goods to help his friends. Again, his evidence is not credible.
It was necessary to issue the husband with a certificate under section 128 of the Evidence Act 1995 (Cth) with respect to his tax returns as his returns show that he claimed his car as being used 100% for a business from 2013 and 2019. The husband tried to claim that the school had asked him to do something with his car as an employee, however this does not entitle him to claim this as a business expense. It can be inferred that this was done either to reduce his tax, or that he was running a business which he has failed to disclose.
The wife says the husband also advertised another small business. She annexes another Chinese advertisement in her affidavit, but none of which have been translated and it is not clear to me from looking at that annexure that it is related to the husband.
It is clear on the evidence that both parties rented additional rooms at their properties and failed to disclose that rental income.
Supporting Witnesses
The wife’s mother swore an affidavit and was cross-examined. She arrived in Australia in 2019 and has been living with the wife since then, and confirmed that she and her husband advanced to the wife money in order to assist her to purchase the F Street, Suburb G property by transferring money between the years 2010 and 2012. The wife’s mother gave evidence that they have also provided approximately $40,000 towards the wife’s legal fees. The wife’s mother required the assistance of an interpreter and it is clear that she is not very familiar with electronic banking. She said that her husband sends some money to Australia and that the amount was not very much as her living expenses are low. I am not satisfied that the wife is financially supporting her mother. The wife does not disclose this in her financial statement and her mother makes no mention of this in her affidavit.
The wife’s mother gave evidence that she spoke to the wife about the purchase of the B Street, Suburb C property but did not refer to the D Street, Suburb E property directly, and said that she was shown photos of the D Street, Suburb E property and discussed the idea of the parties buying a matrimonial home and then later buying an investment property if they had the money.
The husband’s wife and mother filed brief affidavits in support of his case. Neither were required for cross-examination.
Section 75(2) factors
The husband has remarried and has a young child. He provides the financial support for his family as his wife stays home and looks after their child. The husband says he has anxiety and depression however provides no medical evidence and remains working full-time. Neither party’s earning capacity has been affected by the marriage. Whilst the wife earns more from her employment than the husband, I am not satisfied that the parties have disclosed all of their income. I am not satisfied that either party is obliged to support their parents. Considering all of these factors I am satisfied that there should be no adjustment under s.75(2).
Effect of Orders Made
Asset Liability Wife Husband F Street, Suburb G Property $975,000 $278,390 $696,610 D Street, Suburb E Property $700,000 $352,880 $347,120 B Street, Suburb C Property $975,000 $355,484 $619,516 Loan owing to Parents $89,000 - $89,000 Commonwealth Bank Account $42,230 $42,230 Bank H Account $531 $531 Super Fund J $207,998 $207,998 Super Fund K $87,117 $87,117 Combined Net Pool $946,838 $965,284 Payment adjustment +$200,432 -$200,432 Effect of the Orders $1,147,273 $764,853 Conclusion
The husband’s argument is that of a classic Stanford style case where it would not be just and equitable to make any adjustment of the parties property interests. This however is not sustainable for two reasons. Firstly, it ignores the fact that the wife owned the F Street, Suburb G property before the commencement of the relationship where an initial contribution cannot be ignored, particularly given the parties’ relatively short relationship. The use of the F Street, Suburb G property must also be taken into account. This property was the matrimonial home throughout the relationship even if the wife rented additional rooms out from time to time. I am satisfied that the husband did not contribute to the F Street, Suburb G property expenses during the first year and that this assisted him in saving funds to purchase the B Street, Suburb C property. I reject the argument that the wife made no contribution to the husband’s investment property as it ignores the indirect contribution by reason of the fact that he is able to rent out both properties in their entirety because they were living in her property. I accept the wife’s evidence that there was some discussion about moving into the B Street, Suburb C property and making this their matrimonial home but chose to remain in F Street, Suburb G as a matter of convenience. The wife was not challenged about her evidence that she and the husband cleaned the B Street, Suburb C property and bought basic furniture and electronic goods so that they could rent out that property.
I also reject the husband’s argument that the fact that his properties increased by a greater amount than the wife’s property post separation somehow should be attributed to him. Neither party suggests that the increase in values of properties was anything other than as a result of market forces. As a result, in considering the full Court’s comments in Jabour and Jabour [2019] FamCAFC 78, I do not accept that the increase in the properties should be treated as a contribution in favour of either party.
I am satisfied that the wife had equity in the F Street, Suburb G property at the beginning of the relationship of approximately $360,000 which was made up of the deposit she had and the money she received from her parents. Both parties have made indirect financial and non-financial contributions to the other’s respective property. Neither party seeks a superannuation split. Whilst the wife made additional voluntary contributions to her superannuation during the relationship and post separation, which presumably otherwise could be applied to reducing the debt on the F Street, Suburb G property, it would be unfair to ignore the significant increase in her superannuation and the fact that she has significantly more superannuation than the husband. If the superannuation was simply put to one side, it would not be fair to the husband and I take this into account when considering the myriad of contributions made by both parties.
Having considered the totality of the evidence including the unsatisfactory evidence about the value of the wife’s defined benefit entitlements, I find that the wife should receive a cash payment from the husband in $200,432, and otherwise the parties each keep the assets, liabilities and superannuation in their possession. This will result in an overall adjustment of the net asset pool of 60% to the wife and 40% to the husband. I am satisfied that the orders I make are just and equitable.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 25 July 2022
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