Zandas and Zandas and Anor
[2016] FCCA 1917
•27 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZANDAS & ZANDAS & ANOR | [2016] FCCA 1917 |
| Catchwords: FAMILY LAW – Property – Application for property settlement – whether just and equitable – assets and liabilities of the parties identified – contributions of the parties – 17 year relationship – loan from husband’s brother – superannuation split – whether any adjustment should be made under Family Law Act 1975 (Cth) s.75(2) – no adjustment – credibility of witnesses – unreliable evidence of parties. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 90MT |
| Cases cited: Bevan & Bevan (2013) 49 Fam LR 387; FLC 93-545; FamCAFC 116 |
| Applicant: | MR ZANDAS |
| First Respondent: | MS ZANDAS |
| Intervenor: | MR R ZANDAS |
| File Number: | SYC 5680 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 14 August 2015; 16-18 March 2016 |
| Date of Last Submission: | 18 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smith |
| Solicitors for the Applicant: | Glissan & Associates Lawyers |
| Counsel for the Respondent: | Ms Beck (direct brief) |
|
| Counsel for the Intervenor: | Mr Clifton |
Meehans Solicitors
ORDERS
Within seven (7) days the Applicant and the Respondent are directed and ordered to sign all necessary documents, writings, things or authorities to pay the sum of $213,000.00 forthwith to the intervenor Mr R Zandas from the controlled monies account held with Dimocks Family Lawyers in full and final settlement of the debt owed to him.
These Orders bind the Trustee of the (omitted) Superannuation Fund.
The balance of the said controlled monies account be paid as to one third each of the balance remaining to the bank accounts of the three children of the marriage, namely X born (omitted) 1995, Y born (omitted) 1998 and Z born (omitted) 2000.
As provided by s. 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect to the superannuation interest of the husband Mr Zandas in the (omitted) Superannuation Fund:
(a)the wife Ms Zandas will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $66,801 (provided that such base amount shall not exceed the value of the interest determined under s 90MT(2) );
(b)there be a corresponding reduction in the superannuation interest of the husband Mr Zandas to whom the splittable payment would have been made but for the order; and
(c)these Orders have effect from the operative time and the operative time for this Order is four (4) days.
The Applicant husband is declared the owner absolutely to the exclusion of the Respondent wife of the (omitted) shares.
The Respondent wife is declared to be the owner absolutely to the exclusion of the husband of the Mazda motor vehicle registration number (omitted).
Other than as provided in these Orders, as between the parties, the parties shall each be declared to be the legal and beneficial owner of all other property and all other financial entitlements in their respective names, possession or under their control to which each party is presently legally or beneficially entitled including motor vehicles, furniture and furnishings, monies in bank accounts, real estate, shares, insurance policies, choses-in-action and credits or any entitlement to receive monies from third parties.
All other outstanding Applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Zandas & Zandas & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5680 of 2012
| MR ZANDAS |
Applicant
And
| MS ZANDAS |
First Respondent
And
| MR R ZANDAS |
Intervenor
REASONS FOR JUDGMENT
Application
This is an Application for property settlement by the Applicant Husband who commenced by filing an Application on 21st September 2012. The Wife filed her Response on 21st November 2012. The Husband’s brother Mr R Zandas initially swore an affidavit on 19th May 2014 in support of the Applicant Husband and then on 15th April 2015 he was successful in his application to be joined as a party.
The proceedings have had a chequered history. The matter was listed for hearing over a period of two days on 28th and 29th May 2014 but due to the unsatisfactory behaviour of Counsel then appearing for the Husband, I ordered that:
a)The Husband should pay the Wife’s costs of the two days thrown away on an indemnity basis; and
b)The Principal Registrar was directed to forward to the Office of the Legal Services Commissioner a copy of the Reasons for Decision with a request that the Commissioner investigate whether the particular barrister had demonstrated unsatisfactory professional conduct in his representation of the Applicant on 28th and 29th May 2014.
The Husband subsequently secured other representation. I am pleased to note that the Husband’s present Counsel, Ms Smith, has conducted herself with commendable decorum throughout the proceedings and she and her instructors have conducted their client’s case in an efficient and sensible manner.
Regrettably, when the matter came back to Court, Mr R Zandas became ill in the witness box whilst being cross-examined by Ms Beck of Counsel for the Wife. He was taken to hospital by ambulance and the hearing date was vacated.
Each of the parties filed various amending documents with the final orders sought by the Husband as set out in his outline of case document at paragraph 5 on page 13. The Respondent Wife seeks orders in accordance with the document filed by her under the heading of ‘minute of order for the First Respondent Wife’ and the intervenor seeks orders as set out in the document filed by him and titled ‘Final orders sought by the Intervenor.’
The dispute is mainly concerned about the distribution of the Husband and Wife’s assets which consist substantially of funds of $234,055.00 held in a controlled monies account, various other assets of less significant value in their names and including their superannuation entitlements. They are also in dispute about whether there are monies owing to the Husband’s brother in the sum of $213,000.00 and whether he should be paid from the funds held in the controlled monies account.
Documents relied upon
The Documents relied upon by the Applicant Husband are:
a)his Initiating Application filed on 21st September 2012;
b)his affidavit of 21st September 2012;
c)his financial statement filed on 21st September 2012;
d)the affidavit of Mr R Zandas, the Husband’ s brother and intervenor, filed on 19th May 2014;
e)the financial statement of the Husband’s brother filed 24th June 2014;
f)his affidavit filed on 13th November 2014;
g)his affidavit filed on 16th April 2015;
h)the affidavit of Ms T filed 22nd April 2015;
i)the affidavit of Ms K filed 22nd April 2015;
j)an affidavit of attempted service filed 23rd April 2015;
k)reports of Mr R (expert) dated 23rd April 2015;
l)his Outline of Case Document; and
m)His Final Submission document.
The Documents relied upon by the Respondent Wife are:
a)her Response filed on 16th November 2012;
b)her Amended Response filed on 19th April 2013;
c)her Further Amended Response filed on 19th May 2014;
d)her affidavit of 1st March 2013;
e)her affidavit of 19th May 2014;
f)her affidavit of 22nd April 2015;
g)her Financial Statement filed on 19th May 2014;
h)her Outline of Case document; and
i)the submissions of the Respondent wife.
The Documents relied upon by the Intervenor are:
a)his affidavit sworn 16th May 2014;
b)affidavit sworn 18th March 2015;
c)his Financial Statement of 2nd September 2015;
d)case summary of the intervenor dated 28th April 2015; and
e)final submissions of the intervenor filed 18th April 2016.
Background
The Husband is 46 years of age, having been born on (omitted) 1970. He is currently manager of a (business omitted) and he lives at Property R.
In his financial statement he says he has a nett weekly income of $1,355.00. He also received a little over $2,000.00 in child support from the wife.
The Wife is 45 years of age. She was born on (omitted) 1971 and currently lives at (omitted). She is an (occupation omitted) and says her nett income is the weekly sum of $1,151.00. She pays rent of $450.00 per week and has paid a little over $2,000.00 in child support.
The parties first met in 1993 and commenced to live together in 1994 at Property R, a property in which the Applicant says he had a 50% share with his brother. They married on (omitted) 1995 and finally separated on 5th September 2011.
There are three children of the marriage, namely: X born (omitted) 1995, currently 21 years of age; Y born (omitted) 1998, currently 18 years old; and Z born (omitted) 2000, currently 15. The youngest child, Z, lives with his father on a full-time basis and spends no time with his mother. Y shares his time equally between his parents and X spends most of her time at her boyfriend’s home in (omitted). The child Y is in year 11 at (omitted).
At the commencement of the marriage, the Husband had a 50% share in the property at Property R with his brother Mr R Zandas. The Husband, at this time, was employed in the (employer omitted) industry and continued in that type of employment for most of the marriage.
The Wife was employed full-time in the (employer omitted) and had a part-time casual position at the (employer omitted), where the Husband was also working. She also owned a Mazda motor vehicle. She took maternity leave following the birth of their first child and then returned to the workplace full-time with the (employer omitted) until (omitted) 1998, when she commenced maternity leave with the imminent arrival of the parties’ second child.
On 5th February 1999, the Wife was made redundant and received a redundancy payment of $23,915.24. She continued in the role of full-time mother and home duties until 2007, when she commenced a permanent position as (occupation omitted) at the (employer omitted), where she still works.
In 2011, the Mother was awarded a government scholarship to study (course omitted) three days a week. On the completion of her studies, she resumed full-time work.
The Husband continued during this time to work in the role of (occupation omitted) in the (employer omitted), the (employer omitted) and three (employer omitted) managed by one Mr F. He then became (occupation omitted) of the (employer omitted) until March 2008 when he purchased the (employer omitted) as his own business.
In 1996, the parties purchased a property at Property H for $200,000.00 using the equity that the Husband had in Property R as security. In 1999, they purchased a property at Property S as an investment which later they sold.
In December 2001, the Applicant Husband sold his 50% share in the property at Property R to his brother for $170,000. At the same time, the parties purchased Property O for $760,000.00 and sold Property H for $460,000.00. They lived in the Property O property until late 2007 when it was sold for $1,300,000.00. They then purchased a property at Property C for $1,650,000.00 using the proceeds of sale from the Property O property and a mortgage to the (omitted) Bank. That property was sold after the parties separated for $1,675,000 and is the source of the funds in the controlled monies account now totalling $234,055.00.
In late 2003, the parties purchased a (omitted) Shares investment for $24,000.00. They still own the investment which is now valued at $6,000.00.
The issue of the purchase of the (business omitted) is a significant factor in the dispute in these proceedings. In March 2008, the Husband incorporated a company called Zandas Investments. The company was set up to purchase and operate the business being the (omitted business). The Wife was never happy about the purchase of the business as she did not think it would be successful. As it turned out, the business was never really profitable.
The loan to purchase the business was secured against the family home. Within 12 months, the situation became extremely difficult and the contract exposed the parties to losses of up to $1,000,000. The husband said to his brother Mr R Zandas “we need to get out of this.” Thereafter his brother provided the parties with $200,000. He did this by establishing a line of credit in August 2008, secured against his home for $200,000. The husband says that there was an agreement with Mr R Zandas that the husband and wife would be responsible for the principal sum and they would also meet the interest. Thereafter, various sums were withdrawn and paid to the husband and wife’s joint account at the (omitted) Bank. The monies were used to fund the business, to pay the mortgage on the family home and also to cover various living expenses. Finally, on 21 April 2010, a further $100,000 was paid to Salim Rutherford Lawyers Trust Account as an agreed settlement amount to be released from the business contract.
The parties separated in 2011 when the wife left the husband and the matrimonial home with the children. Then, on 1 March 2012, the parties sold the matrimonial home and the money is now in the controlled monies account with Dimocks Family Lawyers, namely $234,055, the balance of the proceeds of sale after payment of the mortgage to the (omitted) Bank, payment of outstanding school fees and $50,000 released to each of the husband and the wife as well as sufficient funds to pay out the car loan on the Mazda which is now in the possession of the wife.
Orders sought
The husband and his brother each claim that the amount of principal and interest outstanding in respect of the monies advanced by the brother is $213,000 and should be paid to him out of the monies held in the controlled monies account. The wife opposes any payment to Mr R Zandas and seeks that monies to be paid to each of the children in the sum of $20,867, being the funds removed from their accounts and the balance to her. She also seeks a splitting order of the husband’s superannuation to equalise their entitlements. Further, she seeks to retain the Mazda motor vehicle while the husband should have the time shares in the (omitted) Shares and his interest in the company (omitted) Pty Ltd, which was established to conduct a (omitted) business. Otherwise, she says, they should each retain the assets in their respective possession.
In addition to the payment of the amount of $213,000 to his brother, the husband seeks that 75% of the controlled monies account should be paid to him and that the wife pay him the sum of $32,136.48, being 50% of the interest repayments made by him on the loan, that he retain the (omitted) Shares time shares and otherwise in effect each party retain the assets in their respective possession.
The Proper Approach to determination of a Property Application
As first step, the Court must follow the decision of the High Court in Stanford[1] and consider, first of all, whether it would be just and equitable to make a property order under s.79(2) of the Family Law Act 1975 (Cth).
[1] (2012) 247 CLR 108; 47 Fam LR 481; FLC 93-518
The High Court set out three fundamental propositions:
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…
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 a 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)).[2]
[2] (2012) 247 CLR 108 at [37]-[38], [40]
The High Court in Stanford did not refer to or endorse the four step process set out in the decision of the Full court of the Family Court in Hickey & Hickey[3], but in my view the Court will still obtain valuable guidance from the decision in Hickey after considering the decision in Stanford.
[3] (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395
The Full Court of the Family Court in Bevan & Bevan[4] (2013) FLC ¶93-570, when discussing the decision of Stanford, noted that the High Court neither approved nor disapproved of the process but indicated that the decision served to refocus attention on the obligation only to make an order adjusting property interests where it was just and equitable to do so (see also Baglio & Baglio[5] [2013] FamCA 105).
[4] (2013) 49 Fam LR 387; FLC 93-545; [2013] FamCAFC 116
[5] [2013] FamCA 105
The four steps set out in Hickey at [39] require the Court to:
a)make findings about the identity and value of the property, liabilities and financial resources of the parties;
b)identify and assess the contributions of the parties;
c)identify and assess the other factors in s.79(4), particularly the matters referred to in subsection 75(2) of the Family Law Act 1975; and
d)resolve what order is just and equitable in all the circumstances.
Just and equitable
The parties have been separated since 2011 and have been engaged in litigation since the husband commenced proceedings by filing his Application for property settlement on 21 September 2012. They were divorced by Order of this Court made on 9 February 2016 which became final on 10 March.
The parenting proceedings between them were finalised by Consent Orders.
I am satisfied that in all the circumstances it is just and equitable to make orders for settlement of the parties’ property.
Findings and conclusions
In general, I found the evidence of the Applicant husband and the Respondent wife to be less than impressive. My contemporaneous note of the evidence of the wife in cross-examination by Ms Smith on 17 March was that she did not appear to be telling the truth.
Mr R Zandas, on the other hand, appeared to be a witness of credit. He was prepared to answer the questions put to him and did not attempt to evade them. On occasion, he gave answers that were not necessarily to his advantage. For instance, the fact that he did not claim that the wife was present during the conversation about the advance of the second hundred thousand dollars paid into Salim Rutherford Lawyers to settle the imminent litigation was consistent with his evidence lacking exaggeration and being truthful. Indeed, the evidence with respect to the monies advanced by him were such that the Court could have no doubt that his initial contributions were paid into the joint account of the husband and the wife. The documentary evidence of both the intervenor’s account and the joint account of the husband and the wife supported those payments. Furthermore, the payment of the hundred thousand dollars to the lawyers is also well documented.
The wife’s evidence with regard to her lack of knowledge of the payments into the joint account was implausible. The account was in joint names of the husband and wife and the statements were forwarded to the parties’ home address. She conceded that she had seen the statements.
As Counsel for Mr R Zandas submits, the one simple and clear aspect of the wife’s cross-examination in relation to the loan by the intervenor was that she could not deny that the funds were advanced. Not only did she not respond to questions about her knowledge of the monies advanced but she used the questions as an opportunity to put forward various matters that were irrelevant to the questions asked.
In relation to her claimed lack of awareness about the imminent litigation, it is clear that a caveat was placed on the matrimonial home and that both the applicant husband and the respondent wife signed a preparation of lapsing notice. She indicated when the document was put to her that she was not certain whether it was her signature or not. She later claimed she did not remember signing it. There is simply no doubt that the monies claimed to have been advanced by the intervenor were advanced and were advanced in the circumstances claimed by the intervenor and the husband.
The wife, in her final submission, says that if the Court does find that the intervenor provided monies to the parties personally, it should be construed as a gift. That proposition is simply without any foundation. First, I accept the evidence of the intervenor and the husband with respect to conversations that took place prior to the advancement of the funds. Secondly, the intervenor is a person of modest means who has had to borrow the funds himself. It is implausible that he would have borrowed the funds and put his own financial security at risk to be able to make a gift to his brother and his brother’s wife. While there is nothing in writing, I am satisfied that the funds were advanced on the basis that they would be repaid with whatever interest was incurred by the intervenor. I am further satisfied that it was agreed that they would be repaid as soon as possible. There is no doubt that possibility arose once the former matrimonial home was sold.
In all the circumstances of this case, I am satisfied that it is just and equitable that the $213,000 owing to Mr R Zandas should be repaid to the intervenor from the controlled monies account. The loan was a debt of the marriage and there is no evidence of it being recklessly or fraudulently incurred.
The next issue to be determined is whether the monies taken from the children’s bank accounts by the husband and wife being the proceeds of monies they inherited from their uncle, totalling $64,272.96, should be repaid. I agree with the wife’s submissions that those funds cannot be construed as a loan. The parties simply took those monies from the children’s accounts and it was used at least in part for credit card and debt reduction. I am satisfied that while there will not be sufficient funds to pay the children in full, what is available from the balance of the controlled monies account should be paid as to one third of that sum to each of the children’s accounts.
Finally, I have already indicated that I found the husband’s evidence to be less than impressive. He was unable to provide adequate explanations for the various withdrawals from his account totalling $41,500 between May-June 2014. His evidence with respect to the company (omitted) Pty Ltd which had a value placed on it of $12,524 for his half share and the fact that he transferred it to Ms T, a person who he described as ‘just a friend’ was also unsatisfactory.
Furthermore, the evidence of the loan from Ms T is simply not believable. While the loan is alleged to be over three years prior to the affidavit sworn by Ms T on 22 April 2015, there is no mention of it in the husband’s earlier affidavits. Similar conclusions can be made with respect to the evidence of Ms K, who was not available for cross-examination. In any event, the alleged loans are post separation and in my view are the responsibility of the husband.
The Parties’ Assets and Liabilities
The evidence of the assets of the parties are set out in the balance sheet as follows:
| Ownership | Description | Wife/de facto partner’s value | Husband / de facto partner’s value | |
| ASSETS | ||||
| 1. | J | Balance of Controlled Monies Account held with Dimocks Family Lawyers | $234,055 | $234,055 |
| 2. | W | Mazda Car (omitted) | $1,000 | $7,500 |
| 3. | H | Household contents | $5,000 | $5,000 |
| 4. | W | Household contents | $2,000 | $5,000 |
| 5. | W | (omitted) Bank Account (omitted) | $484 | $484 |
| 6. | J | (omitted) shares | $6000 | $6,000 |
| 7. | H | Funds held in trust account with Glisson & Associates Lawyers | $13640 | $0 |
| 8. | H | (omitted) Bank Account No (omitted) | $8434 | $8,434 |
| 9. | H | (omitted) Shares | $4758 | $4,758 |
| 10. | W | (omitted) shares | $Nil | $1,514 |
| Total | $275,371 | $272,690 | ||
| ADDBACKS | ||||
| 11. | H | Legal fees | $132,536 | $146176 |
| 12. | H | Indemnity Costs paid from controlled monies account to wife’s counsel | $15,000 | $15,000 |
| 13. | W | Legal fees | $25,000 | NK |
| 14. | H | Withdrawals | $41,500 | $0 |
| 15. | H | Damage to Mazda (omitted) | $4,369 | $0 |
| 16. | W | Volkswagen vehicle | Nil | $12,219 |
| 17. | H | Interest in (omitted) Pty Ltd | $12524 | Nil |
| Total | $230,929 | $173,395 | ||
| LIABILITIES | ||||
| 18. | J | Debt to Mr R Zandas | Nil | $213,000.00 |
| 19. | W | 50% payment of interest on debt owed to Mr R Zandas payable to Husband by the Wife | Nil | $32,136 |
| 20. | J | Debt to X, Y & Z | $62,601 | $0 |
| 21. | H | Debt to Ms T | Nil | $30,000 |
| 22. | H | Debt to Ms K | Nil | $30,000 |
| Total | $62,601 | $305,136 | ||
| SUPERANNUATION | ||||||
| Member | Name of Fund | Type of Interest | Wife/de facto partner’s value | Husband/ de facto partner’s value | ||
| 23. | H | (omitted) Superannuation | Accumulation | $191,181 | $191,181 | |
| 24. | W | (omitted) Superannuation | Accumulation | $32,144 | $32,144 | |
| 25. | W | (omitted) Super | Accumulation | $40,581 | $40,581 | |
| 26. | W | (omitted) Super | Accumulation | $1 | $1 | |
| Total | $263,907 | $263,907 | ||||
| FINANCIAL RESOURCES | ||||
| Ownership | Description | Wife/de facto partner’s value | Husband/ de facto partner’s value | |
| 27. | H | Husband’s rent free accommodation | $1000 | $0 |
| Total | $1000 | $0 | ||
Notes [to balance sheet]
In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:
1. Why an item should not be on the balance sheet.
2. Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.
3. Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.
4. Any other comment a party wishes to make in relation to the disputes item.
| Item No | |
| 2 | (husband) As per redbook.com.au valuation for equivalent vehicle 26/4/2015 |
| 12 | As per Orders of the Court 11/6/14 |
| 14 | (husband) This is not an addback |
| 15 | (wife) See Paragraph 81 & Annexure K of wife’s affidavit 21/4/15 |
| 15 | (husband) This is not an addback. |
| 17 | (wife) As per Joint Expert Report (Valuation of (omitted) Pty Ltd) of Mr R dated 23/4/15. Value of 50% of (omitted) Pty Ltd at 30 June 2014 is $12,524. (Annexure G wife’s affidavit 22/4/15 and husband’s own evidence that he transferred his interest in June 2014 for no consideration to Ms T) |
| 17 | (Husband) Page 1 Mr R’s report 1 states as of 23/4/2015 that Mr Zandas’ current interest in (omitted) Pty Ltd is NIL. |
| 20 | (Wife) Paragraphs 53-56 wife’s affidavit 21/4/15 |
| 20 | (Husband) Not a debt due to be repaid. |
| 27 | (wife) Wife says Ms T makes payments to Mr R Zandas for Mr Zandas rent on (omitted) apartment |
| 27 | (Husband) Husband pays Strata fees, council rates, land tax in lieu of rent, as well as maintenance of the property. |
The position that remains is that (omitted) time shares, the Mazda motor vehicle, the (omitted) shares and the parties’ bank accounts and household furniture need to be dealt with as well as the parties’ superannuation entitlements. As I have stated, both parties have failed to disclose their real financial position and both have spent time in the witness box avoiding and evading providing answers to questions about their respective financial positions. I am reminded of what the Full Court of the Family Court said in Black & Kellner[6] and Weir & Weir[7] that when the evidence of a party is unreliable and unsatisfactory, trial judges need “not to be unduly cautious in making findings in favour of the innocent party”.
[6] (1992) 15 Fam LR 343; FLC 92-287
[7] (1992) 16 Fam LR 154; (1993) FLC 92-338
These proceedings arise from a 17 year relationship where the husband came into the marriage that some years later in December 2001 was valued at $170,000.00 and the Wife contributed a redundancy payment of $23,915.24 in February of 1999. The Husband otherwise contributed as an income earner and the Wife as a homemaker and income earner. Give the lack of transparency of both parties, I propose to treat their contributions as equal.
Other Factors taken into account under subsection 79(4)(d) to (g)
Paragraph (d) of subsection 79(4) requires the Court to take into account the effect of any proposed order on the working capacity of either party. There does not appear to be any likely effect on either party’s earning capacity.
Subsection 75(2) Matters
So far as the 75(2) factors are concerned, both Husband and Wife are in their mid-forties and on the face of their documentation the Husband has only a slightly greater income earning capacity than the Wife. The youngest child lives with him and has no contact with his mother but he has only a relatively short time remaining as a student. I also bear in mind that the Mother is anxious to complete her (omitted) studies which will add to her expenses and in all the circumstances I am satisfied that there should be no further adjustment for the s 75(2) factors.
Whether Proposed Orders are Just and Equitable
I am satisfied that it is appropriate in the circumstances that the parties should share equally what has been accumulated by them over a 17 year period and in this regard, the splitting order that I propose to make will equalise the parties’ superannuation entitlements. I will order accordingly. I am satisfied that these orders are just and equitable in all the circumstances.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 27 July 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Property Law
Legal Concepts
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Remedies
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Costs
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Constructive Trust
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Injunction
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Jurisdiction
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