Yellin and Temple

[2013] FCCA 360

FEDERAL CIRCUIT COURT OF AUSTRALIA

YELLIN & TEMPLE [2013] FCCA 360

Catchwords:
FAMILY LAW – Property settlement – marriage of 13 years 4 months – contributions – assessment of the weight of initial contribution and the use to which the parties put the contribution – gifts or loans of money from respondent’s parents regarded as contributions by the respondent – post separation contribution to the welfare of the parties’ children – where no adjustments under s.75(2) of the Family Law Act 1975 (Cth) – just and equitable – whether it is just and equitable to make a superannuation splitting order – where respondent seeks to retain the former matrimonial home for herself and two of the parties’ three children.

Legislation:
Family Law Act 1975 (Cth), ss.75, 79, 81, 90MT, 106A

Family Law (Superannuation) Regulations 2001 Part 6

Cases cited:
Gosper & Gosper (1987) 90 FLR 1: 11 Fam LR 601; FLC 91-818
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Kessey & Kessey (1994) 18 Fam LR 149; FLC 92-495
Pellegrino & Pellegrino (1997) 22 Fam LR 474; FLC 92-789
Pierce & Pierce [1998] FamCA 74; (1998) 24 Fam LR 377; (1999) FLC 92-844
Stanford v Stanford [2012] HCA 52
Williams & Williams (1985) 10 Fam LR 355; FLC 91-628

Applicant: MR YELLIN

Respondent: MS TEMPLE (FORMERLY YELLIN)

File Number: SYC 5557 of 2010

Judgment of: Judge Scarlett

Hearing dates: 16-17 May 2013

Date of Last Submission: 17 May 2013

Delivered at: Sydney

Delivered on: 30 May 2013

REPRESENTATION

Counsel for the Applicant: Mr Watkins

Solicitors for the Applicant: Slattery Thompson

Counsel for the Respondent: Mr Lee

Solicitors for the Respondent: George Khoury & Co

ORDERS

1. The name of the Respondent is MS TEMPLE.

2. The Respondent is to pay to the Applicant the sum of $65,639.06 within three (3) months of the date of these Orders and upon payment the Applicant is to transfer to the Respondent all of his right, title and interest in the property situate at and known as Property G in the State of New South Wales.

3. The Respondent must within three (3) months of the date of these Orders and contemporaneously with the transfer of the Applicant’s right, title and interest in the property at Property G, do all acts and things necessary and sign all documents and execute all instruments so as to refinance the mortgage secured over the said property into the Respondent’s sole name absolutely and indemnify and keep the Applicant indemnified against all liability relating to the mortgage secured over the said property.

4. In the event that the Respondent should fail to pay the sum of $65,639.06 to the Applicant within the time specified in Order (1) above, the Applicant and the Respondent must forthwith sign all documents and do all acts and things necessary to sell the property at Property G on the following terms and conditions:

   (a)The property is to be listed for sale by private treaty for a period of three (3) months, after which time it is to be sold by public auction.

   (b)The listing agent and the auction agent shall be as agreed between the parties but failing agreement as nominated by the President of the Real Estate Institute of New South Wales.

   (c)The listing price for the property shall be as agreed between the parties and failing agreement as determined by the listing agent.

   (d)The sale price and reserve price if the said property is submitted to auction shall be as agreed between the parties and failing agreement as determined by a valuer agreed by the parties and failing agreement as nominated by the President of the Real Estate Institute of New South Wales.

   (e)The solicitor acting on the sale shall be as agreed between the parties and failing agreement as nominated by the President of the Law Society of New South Wales.

   (f)The terms of the contract for sale shall be as agreed between the parties and failing agreement as determined by the solicitor acting on the sale of the said property.

   (g)The net proceeds of sale after payment of agent’s selling expenses including auction expenses and solicitor’s costs of sale shall be disbursed as follows:

   (i)As to any monies outstanding to the mortgagee holding security over the said property;

   (ii)As to 40% of the net balance to the Applicant; and

   (iii)As to the remaining 60% to the Respondent.

5. The Applicant is to retain as his own property absolutely to the exclusion of the Respondent:

   (a)all bank accounts and other accounts in his name;

   (b)his superannuation entitlement in [L] Super;

   (c)his superannuation entitlement in [S] Pty Limited;

   (d)any motor vehicle registered in his name; and

   (e)all furniture, chattels, personal effects, clothing, items of personal use and adornment and any other items of personalty currently in his possession.

6. The Respondent is to retain as her own property absolutely to the exclusion of the Applicant:

   (a)all bank accounts and other accounts in her name;

   (b)her superannuation entitlement in [D] Fund;

   (c)any motor vehicle registered in her name; and

   (d)all furniture, chattels, personal effects, clothing, items of personal use and adornment and any other items of personalty currently in her possession.

7. The Applicant and the Respondent are each to be responsible for any liabilities incurred in their name including all borrowings, personal loans and credit card facilities and shall indemnify each other and keep each other indemnified against any liability that may occur in respect of any such borrowing, loan or credit card facility.

8. Each party must sign all documents and execute all deeds and instruments and do all acts and things necessary to give full force and effect to these Orders and in the event that either party refuses or neglects to comply with any provisions of these Orders within fourteen (14) days of having been requested in writing to do so then a Registrar of this Court is appointed under the provisions of section 106A of the Family Law Act to sign all documents and execute all deeds and instruments in the name of that party and do all acts and things necessary to give validity to such document, deed or instrument.

9. Written submissions in support of any application for costs are to be filed and served within fourteen (14) days of the date of these Orders and written submissions in opposition to any such application are to be filed and served within a further period of fourteen (14) days.

IT IS NOTED that publication of this judgment under the pseudonym Yellin & Temple is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 5557 of 2010

MR YELLIN

Applicant

And

MS TEMPLE (FORMERLY YELLIN)

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Husband for orders for the settlement of property issues between his former wife and himself. Essentially, he seeks:

   a)an order that he should transfer to the Wife his interest in the former matrimonial home in return for a payment of $120,000.00; and

   b)that there should be a splitting order in favour of the Wife in respect of his superannuation under s.90MT(1)(a) of the Family Law Act 1975 in an amount of $26,583.00.

2. The Wife also seeks property orders. She does not want a superannuation splitting order. What she seeks is an order that she should retain the former matrimonial home in return for a payment to the Husband of $30,000.00.

Background

1. The parties were married [in] 1995 and separated in February 2009, when the Husband left the matrimonial home. They were divorced on 23^rd March 2010.

2. There are three children of the marriage.

3. [X] was born [in] 1997. He is now living with the Husband but was until recently living with the Wife.

4. The two younger children, [Y], aged 13, and [Z], aged 9, both live with the Wife.

5. The Wife has reverted to the use of her maiden name of Temple.

Procedural History

1. The Husband filed an Application for property Orders on 2^nd September 2010. The Application was returnable on 25^th October 2010. However, the Application was adjourned on two occasions, first, by consent, to 22^nd November and then to 14^th February 2011. The Respondent did not file a Notice of Address for Service until 4^th January 2011 and did not file a Response until 3^rd February 2011.

2. On 14^th February 2011 the parties were directed to attend a Conciliation Conference before a Registrar on 2^nd May 2011. 

3. The Conciliation Conference did not proceed on 2^nd May because the Registrar was not satisfied that the parties had filed the necessary documents. The Registrar made a number of directions and adjourned the Conference to 18^th July 2011.

4. The Conference was again adjourned to 17^th November 2011. The matter was not resolved and on 12^th December 2011 the Application was listed for final hearing in March 2013.  

5. On 9^th July 2012 the Court re-listed the Application and offered the parties the opportunity to take part in the mediation scheme organised by the NSW Bar Association and the Law Society of NSW. Both parties declined mediation

6. The hearing dates in March 2013 were vacated by the Court due to the pressure of other matters and the Application was adjourned to 16^th and 17^th May for final hearing.

Orders Sought

1. The Applicant Husband seeks these orders as set out in a Minute submitted by his counsel on the second day of the hearing:

   1. That the Wife pay to the Husband $120,000.00 within 42 days of these orders and upon payment, the Husband is to transfer to the Wife all his right, title and interest to the property situate and known as Property G.

   2. Should the Wife fail to pay the said sum by the due date in order 1 hereof, the parties sign all documents and do all acts to sell the property at Property G on the following terms and conditions:

   2.1The property shall be listed for sale by private treaty for a period of two months after which time it shall be sold at auction.

   2.2The listing agent and auction agent shall be as agreed by the parties but failing agreement, as determined by the President of the REI of NSW.

   2.3The listing price shall be as agreed and failing agreement be determined by the listing agent.

   2.4The sale price and reserve price (if the property is auctioned) shall be as agreed and failing agreement as determined by a valuer agreed by the parties and failing agreement, as determined by the President of the REI of NSW.

   2.5The solicitor acting on the sale shall be as agreed and failing agreement, as nominated by the President of the Law Society of NSW.

   2.6The terms of the contract shall be as agreed and failing agreement, as determined by the solicitor acting on the sale.

   2.7The net proceeds of sale, after payment of agent’s selling expenses (including auction expenses) and solicitor’s costs of sale, shall be disbursed as follows:

   2.7.1Firstly, as to any monies outstanding to the Bank secured over the said property.

   2.7.2Nextly, as to the balance of the net proceeds of sale to be divided equally between the husband and the wife.

   3. A splitting order in respect of the interest of Mr Yellin d.o.b.  [omitted] 1972 in the [L] Super Fund in the following terms to effect a split to the Wife in an amount of $26,583.00:

   3.1That paragraphs 3.1-3.9 of these orders are binding on the Trustee of the Fund.

   3.2That the amount allocated to the Wife in these proceedings out of the interests of the Husband in these proceedings in the Fund is $26,583.00 of a base amount of approximately $40,000.00 presently standing in the Husband’s account.

   3.3That pursuant to s.90MT(1)(a) of the Family Law Act (“the Act”), whenever a splittable payment becomes payable in respect of the interest of the said Husband in the Fund that the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001(“The Regulations”) using the base amount and there be a corresponding reduction in any entitlement of the person to whom the splittable payment would have been but for these Orders.

   3.4.That order 3.3 has effect from the operative time.

   3.5.The operative time for the purpose of order 3.4 of these orders is four business days after the date of service of these Orders on the Trustee of the Fund.

   3.6.The Husband shall within 14 days of becoming entitled to receive a superannuation fund benefit from the Fund, provide to the Fund all such forms as shall be necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require.

   3.7That there be liberty to apply to each party and Trustee in relation to the implementation of these Orders effecting[1] the Superannuation interest.

   [1] sic

   3.8That until such time as the Superannuation split to the Wife pursuant to these Orders can be rolled over into a separate of the Wife that:

   3.8.1The husband shall provide the Wife no less than 28 days notice in writing before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accepts or becomes entitled to access in whole or in part his entitlement in the Fund.

   3.8.2The Husband shall direct and authorise the Trustee of the Fund to communicate with the Wife and/or any person authorized by her in writing:

   3.8.2.1.to answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to the Fund; and

   3.8.2.2to provide to the Wife and/or her authorised representative a copy of any notice of any application by the Wife which seeks release of entitlements in the Fund insofar as that release may effect[2] the Wife’s entitlement in the Fund pursuant to these orders.

   [2] sic

   3.8.3The Husband by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the Wife, her heirs, her executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these Orders.

   3.9In the event that the Superannuation split to the Wife pursuant to these orders can be rolled over into a separate account to the Wife, each of the parties hereto shall each do such acts and things and execute all such documents as may be necessary to facilitate and implement that rollover.

   4.  That the Wife be declared the owner and the Husband have no claim upon:

   4.1All items of personal possession in her possession, custody or control.

   4.2All bank accounts and other property registered in her sole name.

   4.3All motor vehicles registered in her sole name.

   5.  The Husband shall be declared the owner of and the Wife shall have no claim upon:

   5.1    All items of personal possession in his possession, custody or control.

   5.2    All bank accounts and other property registered in his sole name.

   5.3    All motor vehicles registered in his sole name.

2. The Respondent Wife seeks these orders, which are set out in the Case Outline Document prepared by her counsel:

   1. That within thirty (30) days of the date of these Orders, the Husband do all acts and things necessary, including signing all necessary documents so as to transfer and assign to the Wife all of her[3] right, title and interest in and to the real property situated at Property G, in the State of New South Wales (“the property”).

   [3] sic

   2. That within thirty (30) days of the date of these Orders and contemporaneously with the transfer of the said property in Order (1) above, the Wife do all acts and things necessary, including signing all documents, so as to refinance the existing mortgage secured over the property into the Wife’s sole name absolutely and indemnify and keep the husband indemnified against all liability relating to the mortgage over the former matrimonial property.

   3. That within thirty (30) days of the date of these Orders the Wife shall pay the husband $30,000.

   4. That save and except as mentioned above, the Wife retain as her own property absolutely and the Husband transfer to and relinquish all right, title, interest and claim in and to the following assets and resources of the Wife:-

   (a)     all bank and other accounts in her name;

   (b)     her superannuation entitlement;

   (c)the furniture, chattels, personal effects and jewellery in her possession.

   5. That save and except as mentioned above, the Husband retain as his own property absolutely and the Wife transfer to and relinquish all right, title, interest and claim in and to the following assets and resources of the Husband:-

   (a)     all bank and other accounts in his name;

   (b)     his superannuation entitlement;

   (c)the furniture, chattels, personal effects and jewellery in his possession.

   6. That the Husband and Wife each be responsible for liabilities incurred in their name including all borrowings, personal loans and credit card facilities and shall indemnify and keep indemnified the other against any liability that may occur in respect thereof.

   7. That each party do and procure the doing of all things and procure the signing of all documents necessary to give full force and effect to the provisions of these Orders and in the event that either party refuses or neglects to comply with any provisions of these Orders within fourteen (14) days of a written request to do so, then a Registrar of this Court is appointed pursuant to section 106A to execute all documents in the name of that party and do all acts and things necessary to give validity to this Order.

   8. That either party have liberty to apply to this Honourable Court on the giving of seven (7) days notice in writing to the other for the interpretation and/or enforcement of the Terms and Conditions thereof.

Evidence and Submissions

1. The Husband relied on the following:

   a)His Amended Application filed on 7^th May 2013;

   b)His affidavit sworn or affirmed on 3^rd June 2010 but, curiously, not filed until 29^th April 2013; and

   c)His Financial Statement filed on 16^th May 2013.

2. The Husband gave oral evidence and was cross-examined by Mr Lee of counsel, who appeared for the Wife.

3. The Wife relied on the following:

   a)Her affidavit sworn 2^nd February 2011;

   b)Her affidavit sworn 14^th May 2013; and

   c)The affidavit of her father, Mr T, sworn on 14^th May 2013.

4. The Wife gave oral evidence and was cross-examined by Mr Watkins of counsel, who appeared for the Husband. Mr T, who has only recently been discharged from hospital after surgery, was not required for cross-examination.

5. Mr Watkins submitted that the parties’ contributions should be considered as equal, notwithstanding the fact that the parties received a gift of approximately $20,000.00 from the Wife’s parents at the commencement of the marriage. He submitted that the weight given to the initial contribution is less as the marriage grows long (see Pierce & Pierce[4]).

   [4] [1998] FamCA 74; (1998) 24 Fam LR 377; FLC 92-844

6. Further, it was submitted that there ought to be no adjustment for subsection 75(2) factors. The Wife had had the benefit of the use and occupation of the former matrimonial home since the parties separated in February 2009, over four years ago, whilst the Husband had been obliged to find rental accommodation. The Wife had also had the benefit of a financial resource comprising funds provided by her father.

7. It was also relevant that two of the children are living with the Wife but the oldest child, [X], is now living with the Husband.

8. In answer to a question from the Bench, Mr Watkins submitted that if the Husband were to retain his superannuation, it would not be a “dollar for dollar” adjustment because of the delay in receiving the benefit of the superannuation funds. There should be a discount of about $13,000.00, approximately half the value of the superannuation. This would result in the Husband receiving a payment of $107,000.00 for his interest in the former matrimonial home.

1. Mr Lee, in answer to a question from the Bench, told the Court that his client would need a longer period of time to raise the money sought by the Husband if the Court were to make such an order.

2. It was submitted on behalf of the Wife that the money she brought into the marriage was analogous to a dowry. Her input was greater than that of the Husband. At times, he was not working and she had to make some of the mortgage payments. The Wife’s contribution, he submitted was greater than that of the Husband.     

3. Mr Lee submitted that for a considerable amount of time the Husband had been behind in child support payments. He has the ability to earn a greater income than the Wife has.

4. The Wife needs to retain the home for herself and the two children of the marriage who live with her. The Husband had refused over a period of years to assist with any of the mortgage payments. Thus, there should be an adjustment under s.75(2) of the Act.

The proper approach to determination of a property application

1. The way a court approaches property matters has been set out by the Full Court of the Family Court in Hickey & Hickey.[5] In that decision, the Full Court held at [39] the approach involved four inter-related steps:

   Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties…and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters…including…the matters referred to in s 75(2) so far as they are relevant…Fourthly, the Court should resolve what order is just and equitable in all the circumstances of the case.

   [5] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143

2. The Court should also have regard to the decision of the High Court of Australia in Stanford v Stanford[6], where the majority (French CJ, Hayne, Kiefel and Bell JJ) set out the way a court hearing a property application should deal with the requirement in subsection 79(2) that prescribes:

   The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

   [6] [2012] HCA 52

3. Their Honours held at [36]:

   The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s. 79 is not “to be exercised in accordance with fixed rules”, nevertheless three fundamental propositions must not be obscured.[7]

   [7] [2012] HCA 52 at [36]

4. Those three fundamental propositions are set out in paragraphs [37], [38] and [40] of the decision:

   37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows form the text of s.79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added)…

   38.Second, although s. 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion…

   …

   40.Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s. 79(4).[8]

   [8] [2012] HCA 52 at [37]-[38], [40]

5. What in my view emerges clearly from the decision in Stanford is that the court must consider the “just and equitable” requirements at an earlier stage than the fourth step in Hickey. Satisfaction that it is “just and equitable” to make an order is a condition precedent to a consideration of the matters referred to in s.79(4). First, the Court must be satisfied that it is just and equitable to make an order under s.79 at all. As was the case in Stanford, their Honours said at [53]:

   It was not shown that, had the wife not died, it would have been just and equitable to make a property settlement order. It follows that it was not open to the Full Court to find that it was still appropriate to make an order with respect to property.[9]

   [9] [2012] HCA 52 at [53]

6. However, the Court must again consider whether it is just and equitable to make a particular order when the Court is considering “what order (if any)” should be made under s.79. Thus, the requirements of s.79(2) must again be borne in mind after the Court has undertaken the third step in the process, as the Full Court held in Hickey.

Just and Equitable

1. Applying the decision in Stanford, the first matter to be considered is whether it is just and equitable to make an order under s.79 at all. In my view, it is just and equitable. The parties have been divorced since 2010 and they each wish to move on with their lives. Their relationship does not appear to be good.

2. Thus, there is clearly a need to make such orders as will finally determine the financial relationship between the parties and avoid further proceedings between them (see Family Law Act, s.81).

The Parties’ Property and Liabilities

1. When it is considered that the parties’ principal asset is the former matrimonial home, it is disappointing that neither party has provided any title details about the property other than its street address at Property G. The parties’ Financial Statements each state that the parties have a 50% interest in the property, valued at $250,000.00.

2. With that paucity of information, it is hard for the Court to make any definitive finding as to the “existing legal and equitable interests of the parties in the property”.[10] The parties are proceeding on the basis that they have a legal and equitable interest in the property in equal shares.

   [10] Stanford v Stanford [2012] HCA 52 at [37]

3. The parties agree that the property is valued at $500,000.00. There is also no issue as to the amount owing on the mortgage or on the value of the parties’ superannuation. The parties are apparently content to leave the items of personalty that they hold in their respective possession and do not seek to have the values of the items taken into consideration.

Non Superannuation Asset Pool

1. The only non-superannuation asset that the Court is asked to consider is the former matrimonial home at Property G, with an agreed value of $500,000.00.

2. The only liability the Court is asked to consider is the mortgage over the former matrimonial home, presumably to the National Australia Bank, but the parties in their affidavits have been parsimonious in their details. The parties agree that the amount outstanding is $249,000.00.

3. Counsel for the Husband, who also prepared a useful if brief balances Sheet, stated in his Case Outline Document:

   Each of the parties has other debts, which were incurred post separation and ought not be taken into account in the division of assets.

4. Counsel for the Wife did not demur from this assertion.

5. After deducting the amount of $249,000.00 from the agreed value of the real estate of $500,000.00, I find the net value of the non-superannuation asset pool to be $251,000.00.

Superannuation

1. There is no dispute between the parties as to the value of their superannuation interests. I find the value of the parties’ superannuation to be:

   a)Husband’s [L] Super  $43,760.00

   b)Husband’s interest in [S] Pty Limited $14,710.24

c)Wife’s interest in [D] Fund   $8,303.00

TOTAL SUPERANNUATION                $66,773.24

1. The net total, combining the net non-superannuation pool with the superannuation, amounts to $317,773.24.

The Parties’ Contributions

1. This is a matter where the Wife obtained loans from her parents at the commencement of their marriage to apply towards the purchase of their first home at Property M. The Wife deposes in her affidavit of 3 February 2011 and her father, Mr T, deposes in his affidavit, that the Wife received the following amounts from her parents:

   a)$30,470.61 to go towards the purchase price;

   b)$4,794.00 to cover the stamp duty; and

   c)A further $4,000.00 to install kitchen cupboards.[11]

   [11] Affidavit of Ms Yellin (now Ms Temple) 3.2.2011 at [4 (c)]; affidavit of Mr T 14.5.2013 at [5]

2. Mr T also deposes that he has been assisting the Wife by paying her $275.00 each week towards her mortgage payments, which the Wife also asserts in her affidavit of 14 May 2013.

3. Both the Wife and her father depose in their affidavits that the total amount he has paid to her, including the original amounts referred to above, amounts to $99,214.61.[12]

   [12] Affidavit of Ms Yellin (now Ms Temple) 14.5.2011 at [10]; affidavit of Mr T 14.5.2013 at [6]

4. Whilst it is fair to say that some $39,264.61 was advanced to the Wife at the beginning of the marriage, in about October 1995, this does not mean that the Court should necessarily find that the effluxion of time means that the weight of the contribution has so diminished as to be minimal. The Full Court of the Family Court (Ellis, Baker and O’Ryan JJ) held in Pierce & Pierce[13] that the trial judge had failed to make an adequate assessment of the weight of the initial contribution. Their Honours said at [30]:

   There is an obligation on a trial judge not only to identify the relevant contributions but also to assess them In this case, his Honour failed to adequately, or at all, assess these contributions. In our view he failed to properly weigh the greater initial contribution of the husband, with all the other relevant contributions, and seems not to have had regard tot the use made by the parties of the husband’s greater contribution.

   [13] supra

5. In this case, the initial contribution made by the Wife, in obtaining the money from her parents, enabled the parties to buy their first home. They later sold that home at Property M and bought the former matrimonial home at Property G.

6. In a marriage where the parties cohabited from October 1995 to February 2009, a period of thirteen years and four months, the initial contribution must be given a significant amount of weight.

7. The evidence, unchallenged by the Husband, is that the Wife obtained a total amount of $99,214.61 from her father, some of which was put towards the mortgage repayments once the Husband left the matrimonial home in February 2009. Thus, there is a further amount of $59,950.00 which the Wife claims to have received either during cohabitation or after the parties separated. In the latter case, this would be regarded as a contribution to the welfare of the family under s.79(4)(c) of the Act[14], as the parties’ three children were all living with the Wife until 21 December 2012, when [X] left home and moved in with his father, with whom he now resides.

   [14] Williams & Williams (1985) 10 Fam LR 355; FLC 91-628

8. The amounts provided by way of loan or, as has now been deposed, an advance on the Wife’s expectations from her father’s estate, should properly be regarded as a contribution made on behalf of the Wife (see Gosper & Gosper[15], Kessey & Kessey[16] and Pellegrino & Pellegrino[17]).

   [15] (1987) 90 FLR 1; 11 Fam LR 601; FLC 91-818

   [16] (1994) 18 Fam LR 149; FLC 92-495

   [17] (1997) 22 Fam LR 474; FLC 92-789

9. It has been submitted on behalf of the Husband that the Wife was able to remain living in the home whilst he had to find rental accommodation for himself. Against this, the Wife claims that the Husband was tardy with payments of child support and was in arrears to the extent of $6,352.23 as at 5^th March 2013. A copy of a letter from the Child Support Agency dated 5^th March 2013 forms Annexure “A” to her affidavit of 14^th May 2013, corroborating her claim that the arrears amounted to $6,352.23 as at that date.

10. Otherwise, the Husband worked during the marriage, but there were times when he was unemployed. The Wife deposed that the Husband lost his job at the time their son [X] was born [in] 1997. The Wife’s father gave the Husband a job to assist him.

11. The Wife stopped working when the parties’ first child, [X], was born and then became a full-time mother to their three children.

12. In my view, this is not a case where the parties’ contributions should be regarded as equal. The initial contribution on the part of the Wife, which led to the parties being able to purchase their own home, the contributions by the Wife’s parents on her behalf, and the Wife’s post-separation contributions in looking after the welfare of the children, all lead to a conclusion that the contributions favour the Wife.

13. The parties’ contributions are assessed at 60% by the Wife and 40% by the Husband.

Other factors taken into account under subsection 79(4)(d) to (g)

1. Paragraph (d) of subsection 79(4) requires the Court to take into account the effect of any proposed order on the earning capacity of either party. There does not appear to be any effect on the earning capacity of either party.      

2. Paragraph (e) of s.79(4) requires the Court to take into account the matters referred to in subsection 75(2) so far as they are relevant.

3. The Husband was born [in] 1972 and is therefore about to attain the age of 41 years. He is apparently in good health.

4. The Wife was born [in] 1972 and is therefore 40 years and 10 months old. She also appears to be in good health.

5. The Husband earns the sum of $813.00 per week before tax. He claims to be paying child support in the sum of $142.00 per week.

6. The Wife has been working part time in her father’s business at a wage of $239.00 per week. She also deposes that her father pays her $275.00 per week, which she applies towards the repayments on the mortgage.[18]

   [18] Affidavit of Ms Yellin 14.5.2013 at [10]&[13]

7. The Husband now has the care and control of one child of the marriage who has not attained the age of 18 years. [X], who was born [in] 1997, has been residing with him since, apparently, 21^st December 2012. [X] will turn 18^th on [omitted] 2015.

8. The Wife has the care and control of the two younger children of the marriage, [Y] and [Z]. [Y] was born on [omitted] and is aged 14 years. [Z] was born on [omitted] 2003 and is therefore 9 years and 5 months old.

9. Neither party has remarried. Neither party claims to be cohabiting with any person other than their children.

10. The Husband has been assessed by the Child Support Agency to pay child support in the sum of $338.00 per month. There was an outstanding amount of $6,352.23 as at 5^th March 2013.[19] The Husband gave evidence that these arrears arose as a result of his being unemployed from September 2011 to March 2013.

    [19] Letter dated 5.3.2013 from the Child Support Agency to the Respondent forming Annexure “A” to her affidavit of 14.5.2013

11. The parties are divorced by Order of this Court. There are no parenting Orders in force.

12. Counsel for the Husband submits that there are no factors under s.75(2) of the Family Law Act that call for an adjustment in favour of either party. I believe that this submission is correct. It is significant that the Husband now has the care of the parties’ oldest child and the Wife has the care of the two younger children. The Husband also has a child support liability in respect of the two children living with the Wife and is apparently solely responsible for the cost of supporting the child [X]. Whilst this state of affairs has only been in existence since December last year, there is nothing to suggest that [X] will be returning to the care of his mother in the near future.

13. I am not of the view that any adjustment to the parties’ percentage entitlements is called for under the relevant matters contained in s.75(2).

14. Thus, the parties’ percentage entitlements stand at 40% to the Husband and 60% to the Wife.

What Order is it just and equitable to make under s.79?

1. Again, the Court now being satisfied that an order under s.79 should be made, s.79(2) requires the Court to be satisfied that, in all the circumstances, it is just and equitable to make the order.

2. There are competing considerations. The Wife wishes to retain the former matrimonial home, where she is living with the two younger children. The Husband does not wish to move back into the home, rather, he seeks a cash payout. He, after all, has to rehouse himself and [X].

3. The Husband wants a superannuation splitting order in respect of one of his superannuation interests. He does not seek any order in respect of the Wife’s modest superannuation entitlement.

4. The Wife does not want a split of the Husband’s superannuation interest. She wants to buy the Husband out of the former matrimonial home.

5. The Husband’s proposal effectively sees him trading a financial benefit to him in the future, when he retires, for a greater amount of cash at this time. Whether or not that is a wise decision is not a matter for this Court to rule upon. The Husband is an adult with legal representation.

6. In my view it is, in all the circumstances, just and equitable to make an order that will allow the Wife to retain the former matrimonial home. She has had financial assistance from her parents in the past, which appears to be ongoing, and it is likely that she will be able to call on them in the future if she needs to do so. She will, as her counsel submits, require some time to obtain finance to buy out the Husband’s interest in the former matrimonial home.

7. With respect, I cannot see any benefit to either party in a superannuation splitting order, especially as the amount involved is comparatively modest. It appears to be more trouble than it is worth.

Conclusions

1. The net asset pool amounts to $317,773.24.

2. The Husband is entitled to 40% of the value of the net asset pool, which amounts to $127,109.30.

3. The Wife is entitled to 60% of the value of the net asset pool, which amounts to $190,664.04.

4. The Husband will retain his superannuation entitlements of $43,760.00 ([L] Super) and $17,710.24 ([S] Pty Ltd), amounting to $61,470.24. Thus, to obtain 40% of the value of the net assets, he will need to receive an amount of $65,639.06 in exchange for his interest in the former matrimonial home.

5. That figure is significantly less than the Husband sought from the Wife but more than twice the figure she sought to pay to the Husband. Clearly, the Wife will need time to organise the appropriate finance and I propose to allow a period of three months.

6. If either party seeks to pursue an application for costs, he or she may do so by way of a written submission, to be filed and served on the other party within 14 days. A further 14 days will be allowed for any written submission in reply.         

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  24 May 2013