Sale of Former Matrimonial Home Ordered, 60% to Husband

Order to sell the house, with 60% of the sale proceeds to go to the Husband. 

There was an extra 10% adjustment to Husband, 5% of which was for his greater initial financial contribution and 5% was for Section 75(2) Factors.

The parties were ordered not to pay not more than $10,000 to prepare the property for sale , the Wife to be responsible for 60% of the costs of such works and the Husband to be responsible for 40% of the costs of such works.

The Husband was given the sole right to live in the property until it was sold.

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

Silcox & Silcox [2017] FCCA 1601 (13 July 2017)

Last Updated: 18 July 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) Within 21 days after the date of these orders the Husband do all such things necessary to list the property at Property R and more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the property”) for sale by public auction (“the auction”) on the following conditions:

(a) the parties shall appoint an agreed selling agent within 14 days of the date of these orders and if unable to agree to an agent the Husband shall nominate three agents and the Wife shall choose one of those agents to conduct the sale;

(b) the Wife’s solicitors shall have the conduct of the sale;

(c) the auction shall be listed no later than 8 weeks from the date of these orders;

(d) the reserve price be set at $1,235,000;

(e) the contract of sale shall state a settlement date (“settlement date”) as required by the purchaser but no longer than 90 days unless otherwise agreed between the Wife and the Husband in writing;

(f) the parties do all things necessary to complete any works required to prepare the property for sale as recommended by the selling agent to an amount not in excess of $10,000, the Wife to be responsible for 60% of the costs of such works and the Husband to be responsible for 40% of the costs of such works;

(g) within 7 days of the date of the signing of the contract of sale, the Husband shall do all such things and acts necessary to secure an early release of deposit monies and the deposit monies, net of payment of the agent’s commission, advertising expenses and legal expenses of the sale, shall be divided in the proportion of 60% to the Husband and 40% to the Wife; and

(h) the balance of proceeds of sale of the property at settlement be divided in the proportion of 60% to the Husband and 40% to the Wife.

(2) Pending the completion of the sale of the property:

(a) the Husband have the sole right to occupy the real property and during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due;

(b) the parties hold their respective interest in the real property upon trust pursuant to these orders; and

(c) neither party encumber the real property without the consent in writing of the other party.

(3) In the event the Husband refuses or neglects to do all acts and things and execute all such documents as are necessary to give effect to these orders within fourteen days of being requested to do so by the Wife’s legal representative a Registrar of the Federal Circuit Court of Australia be appointed pursuant to section 106A of the Act to execute all such documents in the name of the Husband who is refusing or neglecting to do all acts and things necessary to give validity and operation to the said deed or instrument.
(4) The Appointment of the Registrar pursuant to order (3) shall be deemed to have occurred on the filing of an affidavit by the Wife deposing to the acts of refusal or neglect as the case may be, on short notice to the Registrar in Chambers.
(5) Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Husband);

(b) insurance policies remain the sole property of the owner/beneficiary named therein;

(c) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(d) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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

MLC 4874 of 2011

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Wife in these proceedings has filed an Initiating Application seeking orders be made altering the parties’ property interests pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown of the parties’ marriage.
2. The Wife is seeking orders that the property at Property R (“Property R”) which is registered in the Husband’s sole name be sold, that the net proceeds of sale be divided equally between the parties and that otherwise the parties keep all other property in their possession including superannuation.
3. The Husband seeks the Wife’s Application be dismissed in its entirety.
4. The Husband argues that this is a matter where it is not just and equitable for the Court to make any orders that alter the parties’ current property interests.

Background

5. The Wife was born in (country omitted) on (omitted) 1961 and is aged 56 years. She is employed as a (occupation omitted) working three part-time jobs. She earns approximately $46,000 per annum. The Wife has not repartnered.
6. The Husband was born in (country omitted) on (omitted) 1948 and is aged 69 years. He is in receipt of an aged pension. The Husband has not repartnered.
7. The Husband migrated to Australia in 1981. He commenced work with (employer omitted) in (omitted) 1981, working as an (occupation omitted). The Husband became an Australian citizen in 1984.
8. The parties met and commenced a relationship in 1992 whilst the Husband was holidaying in (country omitted). The Husband had been previously married and had one adult child of that marriage residing in Australia when the parties commenced their relationship.
9. The Wife migrated to Australia in (omitted) 1994 to marry the Husband. She arrived on a “fiancé visa”.
10. The day the Wife arrived in Australia, the Husband took her to obtain a Medicare Card.
11. On (omitted) 1994, the day before the date set for the parties’ marriage, the Husband presented the Wife with a document in (nationality omitted) headed “Prenuptial Agreement” which purported to set out the division of the parties’ property in the event of divorce.
12. It is the Wife’s evidence that the Husband made it clear that if she did not sign the agreement there would be no marriage the next day and she was free to return to (country omitted).
13. An English translation of the agreement was annexed to the Husband’s trial affidavit sworn 9 May 2017. Both parties agree this translation accurately reflected the original document signed by them. The English translation reads as follows:

Page 1 of 2
PRENUPTIAL AGREEMENT SIGNED IN (OMITTED), VIC. ON (omitted) 1994
We undersigned, fully aware, have freely agreed on the described below property division in case of divorce:
Ms Silcox
My exclusive property will be apartment in (country omitted) ((country omitted)), (though $2,900 received as partial payment for the apartment from Mr Silcox).
Mr Silcox
My exclusive properties will be estates at Property S, VIC. and Property E, SA. as well as (employer omitted) superannuation and redundancy package from (employer omitted). Parties agreed that funds received from the sale of properties or from (employer omitted) are to be kept as a separate assets of spouses.
(Signature) (Signature)
Ms Silcox Mr Silcox

Signing of the said document has been witnessed.
(Signature)
Page 2 of 2
LOANS IMPOSED ON THE PROPERTIES
1. (country omitted) ((country omitted)) A$2,900 borrowed from Mr Silcox
2. Property S, VIC. A$39,700 borrowed from (omitted) Bank.
3. Property E, S.A. A$62,670 borrowed from (omitted) Bank

14. The Wife signed the agreement and the parties married in a civil ceremony on (omitted) 1994.
15. At the commencement of the marriage the parties’ assets, on the available evidence, consisted of the Husband’s Property S and South Australian properties, the Husband’s (employer omitted) Superannuation which on 1 July 1994 was $117,931.13 and the Wife’s (country omitted) property.
16. When the Wife moved to Australia in 1994 the Husband made the final payment owed by the Wife on her (country omitted) unit in the sum of $2,900.
17. It is the Husband’s evidence he sold a property in Property H, South Australia netting $34,414 prior to the Wife’s arrival in Australia. He was unable to provide the Court with any independent documents attesting to this sale, including when the property sold or what was done with the net proceeds of sale.
18. The parties returned to (country omitted) in (omitted) 1994 where a marriage ceremony took place on (omitted) 1994 in the Wife’s church in (country omitted).
19. The parties’ eldest son Mr K was born on (omitted) 1995 (“Mr K”). The parties’ second son Mr W was born on (omitted) 1997 (“Mr W”).
20. In or around 1994/1995 the Husband established a self-managed superannuation fund, (omitted) Superannuation Fund.
21. In 1996 the Husband chose to take a redundancy package from (employer omitted).
22. The Husband’s evidence relating to the sale of various properties and the management of finances in the early years of the parties’ marriage was not always clear or exact. The Husband is not criticised for this as many of these events took place over twenty years ago.
23. As best can be determined from the Husband’s evidence, the documents annexed to the Husband’s affidavits and the documents tendered by the Husband when giving evidence, between the establishment of the (omitted) Superannuation Fund and the family’s move to (country omitted) in 1998, the Husband sold all assets in his name and placed the proceeds of sale, his (employer omitted) Superannuation and redundancy payments in the (omitted) Superannuation Fund.
24. Whilst it is the Husband’s evidence he had additional savings over and above the proceeds of sale of his various properties, his superannuation and the redundancy payment, he was unable to provide any details as to those savings or produce any documents verifying same.
25. From the documentation and evidence available to the Court, the following is what is known of the parties financial history between 1994/1995 and 1998 is set out in the table below.

1. 1. 26. In 1998 the parties and their sons returned to live in (country omitted).
      27. It is the Wife’s evidence that when the parties married they had agreed they would return to live in (country omitted) and that their move in 1998 reflected that agreement.
      28. The Husband refutes the Wife’s evidence that he and the Wife had agreed they would return to (country omitted) at the time of their marriage or that the move in 1998 was intended to be permanent.
      29. However, annexed to the Husband’s affidavit sworn 15 April 2015 is copy correspondence from the Husband’s then solicitor dated 12 May 1997 in which the Husband is advised that if the trustee of a self-managed superannuation fund resides outside of Australia for periods that would make that trustee a non-resident and non-complying for superannuation taxation purposes, the fund would be taxed on its income and on all its assets at 48% plus the Medicare levy.
      30. In light of this advice the Husband closed the (omitted) Superannuation Fund prior to the parties’ departure to (country omitted) in 1998 and placed those funds into his bank accounts. This decision by the Husband indicates the Husband considered the parties’ return to (country omitted) at this time to be a permanent one.
      31. The Husband funded the parties move to (country omitted) from the monies realised from the (omitted) Superannuation Fund. Upon arrival in (country omitted) the Husband purchased two units in (omitted).
      32. After arriving in (country omitted), the Husband obtained employment in the (employer omitted) in (country omitted).
      33. The Wife, Mr K and Mr W lived in one of the (country omitted) units. (omitted) is approximately 250 kilometres from (omitted) . The Husband lived in (omitted) during the week and returned to (omitted) on the weekends.
      34. Both Mr K and Mr W suffered from severe asthma whilst living in (country omitted). Given the Husband was working in (omitted) during the week, Mr K and Mr W’s care fell primarily on the Wife. The Wife was assisted by her family who also lived in (omitted).
      35. After twelve months in (country omitted) the parties returned to live in Australia. It is the Wife’s evidence this was because the Husband did not like living in (country omitted). It is the Husband’s evidence the family returned to Australia because Mr K’s and Mr W’s asthma was better treated and managed in Australia.
      36. Prior to returning to Australia, the Wife sold her (nationality omitted) apartment for $30,000 and transferred the proceeds of sale to her Australian bank account. The Husband sold the two (country omitted) apartments for no net loss or gain.
      37. Upon the parties’ return to Australia, the Husband purchased a property at Property A from his adult daughter as well as land at Property C. The purchase price for these properties is unknown. The parties moved into the Property A property.
      38. The Husband did not seek to return to paid employment on the family’s return to Australia. He was able to immediately obtain a Centrelink pension which supported the family.
      39. In October 2000 the Husband sold the Property C property for an unknown amount and the Property A property for $154,000. The proceeds of sale of these properties were used to purchase Property R for $236,000. Prior to taking possession of Property R the carpets were removed, the floors sanded and lacquered and the property was painted to make the property more suitable for Mr K and Mr W as they continued to suffer from asthma.
      40. In or about 2001 Mr K commenced school at (omitted) School. The Wife used the proceeds of sale from her (nationality omitted) unit to pay Mr K’s school fees until he successfully obtained a scholarship from (omitted) School.
      41. Mr W also attended (omitted) School on a scholarship for an unknown period of time. He was very unhappy at the school and was thereafter home schooled by the Husband for a period of six years.
      42. In 2004, because both Mr K and Mr W were school age, Centrelink advised the parties that one of them was required to return to paid employment if the family was to continue to receive any form of Centrelink payment.
      43. The Wife, who had been a qualified (occupation omitted) in (country omitted), undertook the necessary courses to improve her English and upgrade her qualifications to enable her to obtain employment as a (occupation omitted). She returned to paid employment in 2004.
      44. The Husband continued to receive a Centrelink payment as well as Family Tax Benefits. These monies were placed into a joint account. Until 2008, the Wife’s wages were also placed into the joint account. The family’s living expenses were met from this account.
      45. In 2008 because the Wife’s earnings had increased, the amount the Husband received from Centrelink reduced. The parties agreed that an amount equal to the amount by which the Centrelink payments had reduced be paid into the joint account from the Wife’s earnings. The family’s living expenses including groceries, utilities, rates and clothes were met from the joint account.
      46. From 2008 the balance of the Wife’s earnings were placed in the Wife’s bank account. It is the Wife’s evidence these monies were used to pay the family’s additional living expenses including Mr K and Mr W’s school uniforms, books and extra-curricular activities, the Husband’s credit card, clothing for the family and travel expenses.
      47. In 2008 the parties’ marriage was becoming increasingly unhappy. The parties unsuccessfully attended counselling. It is the Husband’s evidence the parties separated at this time.
      48. The Wife disputes the parties separated in 2008 but rather continued to live as they had for most of their married life.
      49. Tendered into evidence was a file note of conversations between the Husband and Centrelink obtained from Centrelink under Freedom of Information for the period 2007/2008. The notes reveal conversations between the Husband and Centrelink in 2008 in which he indicates he is calling on behalf of his wife in relation to an issue she had with Centrelink.
      50. In 2009 the parties, Mr K and Mr W travelled as a family on an extended holiday to (country omitted) and (country omitted).
      51. In 2010 the Wife attempted to reach agreement with the Husband that she be able to take Mr K and Mr W with her to (country omitted) to visit her terminally ill father. The Husband did not agree to the Wife taking Mr K and Mr W with her on this trip.
      52. On 3 June 2011 the Wife filed an Initiating Application in what was then the Federal Magistrates’ Court seeking orders that she be permitted to travel to (country omitted) with Mr K and Mr W between 11 July 2011 and 23 July 2011. The Husband opposed the Wife’s application.
      53. On 8 July 2011 after an interim hearing Federal Magistrate Turner (as he was then known) made orders permitting the Wife, Mr K and Mr W to travel to (country omitted) between 11 and 23 July 2011.
      54. It is the Wife’s evidence that this was when the parties separated. It is her evidence that upon her return to Australia the parties lived separated under the one roof.
      55. Annexed to the Husband’s affidavit sworn 15 April 2015 is copy correspondence from Centrelink to the Husband dated 31 August 2011 which reads as follows:

“Dear Mr Silcox

Thank you for the recent information that you provided about your living arrangements.

After careful consideration a decision has been reached that your Disability Support Pension will continue.

This decision is based on the information that you provided. I formed the opinion that you are separated.

If your circumstances change please notify Centrelink within 14 days of the change.

Yours Sincerely

(omitted)
Review Officer
Centrelink”

56. After the parties separated in 2011 the Husband undertook a monthly reconciliation of all family accounts and expenses being utilities, food, rates, insurance and clothing and expenses for Mr K and Mr W. The Wife paid three quarters of these expenses from her earnings and the Husband one quarter from his disability pension and half share of the Family Tax Benefit payments.
57. Because the Husband was receiving half the Family Tax Benefits and child support from the Wife, the parties subsequently adjusted the payment of the parties’ reconciled living expenses so that the Wife paid five eighths and the Husband three eighths of those expenses.
58. In 2011 the Wife purchased a (vehicle omitted) motor vehicle which she paid for from her earnings.
59. In 2011 Mr K finished secondary school. He commenced a (course omitted) degree at (omitted) University in 2012. He will complete his degree this year.
60. In March 2014 there was a physical altercation between Mr W and the Husband at Property R. Mr W became extremely agitated and the Husband called an ambulance. The paramedics called the police.
61. After this incident, the Wife, Mr K and Mr W moved out of Property R into accommodation rented by the Wife.
62. At the time the Wife vacated Property R, she retained her motor vehicle and her savings of $42,000 which she had managed to save after the parties’ separation. The contents of Property R and the Husband’s motor vehicle were retained by the Husband.
63. After vacating Property R, the Wife sought counselling to assist Mr W. He returned to mainstream education and attended (omitted) University where he completed two certificate courses. He is currently in his first year of a degree in (course omitted) at (omitted) University.
64. The Wife was totally responsible for all of Mr W’s living expenses as well as the cost of his counselling, tutoring and other educational expenses until he commenced university.
65. Mr K and Mr W now receive a Youth Allowance and pay the Wife $146 per week by way of board. Both spend very little time with the Husband.
66. The Wife filed an Initiating Application seeking property orders on 16 February 2015. The Husband filed Response documents on 16 April 2015.
67. Procedural orders were made on 6 May 2015 listing the matter to a conciliation conference on 1 October 2015 and for final hearing on 13 July 2016.
68. The conciliation conference was unsuccessful and the Wife’s costs were reserved on that date.
69. The parties mutually sought an adjournment of the trial date to allow negotiations to take place. The parties reached an informal agreement without legal advice and filed Notices of Discontinuance. The informal agreement quickly fell through and after application to the Court by the Wife, the Wife’s Initiating Application was reinstated and the matter listed for final hearing.

The Issues

70. Having heard the parties’ evidence and their submissions, the issues between the parties are:
    1. is it just and equitable to make a property settlement order adjusting the existing legal and equitable interests of the parties in the property (“a Stanford argument”)?;
    2. if the Court forms the view it is just and equitable to make an order adjusting the parties existing legal and equitable property interests:
       1. should there be an adjustment in the Husband’s favour for his greater financial contribution at the commencement of the relationship?;
       2. should there be an adjustment in the Wife’s favour for her role as primary homemaker and parent and income earner both during the marriage and post-separation?;
       3. should there be an adjustment in the Husband’s favour for section 75(2) factors given the difference in the parties’ ages and the Wife’s greater earning capacity?

The Law

1. 1. 71. Section 79 of the Family Law Act 1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides that:
          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.
      72. Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
          (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that lastmentioned property, whether or not that lastmentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and

(e) the matters referred to in subsection 75(2) so far as they are relevant; and

(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and

(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

1. 1. 73. The matters to be taken into account under section 75(2) of the Act are as follows:
          (a) the age and state of health of each of the parties; and

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain; and

(e) the responsibilities of either party to support any other person; and

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party’s role as a parent; and

(m) if either party is cohabiting with another person–the financial circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party; and

(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i) a party to the marriage; or

(ii) a person who is a party to a de facto relationship with a party to the marriage; or

(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989

that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p) the terms of any financial agreement that is binding on the parties to the marriage; and

(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

74. The High Court in the matter of Stanford v Stanford [2012] HCA 52 held that prior to making orders for the division of the property in which the parties have an equitable interest in accordance with the provisions of section 79 of the Family Law Act 1975 (“the Act”), the Court must determine that it is just and equitable that the Court make such orders.
75. The High Court in paragraph 42 of Stanford (supra) held that in most cases
    “… the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applyings79(4)…”
76. If the Court is satisfied it is just and equitable that orders be made adjusting the parties’ property interests, the Court must then determine what orders are to be made.
77. Prior to the decision in Stanford the preferred approach in determining property matters was that set out by the Full Court in the matter of Hickey v Hickey[2003] FamCA 395; (2003) 30 Fam LR 355. At paragraph 39 the Full Court stated:

The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, 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. Second, the court should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, the court should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…

78. The Full Court in the matter of Bevan v Bevan(No 1) (2013) FLC 93-545 considered and discussed the correct application of Stanford when dealing with property matters. The Full Court in paragraph 71 of Bevan (No 1) states the following:
    71.
    • Stanford

     will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.

79. In Bevan & Bevan (No 2) (2014) FLC 93-572 the Full Court, having upheld the appeal against the decision at first instance proceeded to re-determine the property application before the Court. At paragraphs 18 and 19 of Bevan (No 2) Bryant CJ and Thackray J state the following:
    18. Senior counsel for the husband structured his submissions by reference to the “four-step” approach to property settlement applications discussed in our earlier reasons. By way of explanation for doing so, senior counsel said:16. The adoption of the above [four-step] approach is not intended to presuppose a positive answer to the question posed [by] section 79(2), nor to suggest that it is an approach appropriate in all proceedings. Rather, and provided that the fundamental propositions outlined by the High Court in 
    • • Stanford

     [2012] HCA 52; (2012) 293 ALR 70 … are not obscured, such approach is intended to and does no more than provide a principled, disciplined and structured means by which all of the matters arising for consideration pursuant to section 79 can be conveniently and properly identified and assessed.

17. Further, and whilst not said critically nor in a matter which seeks to cavil with the decision in this appeal, no other approach to the determination emerges readily from either 

1. Stanford

 nor the decision in this appeal. It is respectfully submitted that provided that the ‘fundamental propositions’ articulated in Stanford are not obscured, and whilst not universally so as has always been recognised, the approach set out above continues to provide a proper, transparent, certain and structured approach to the presentation and determination of applications pursuant tosection 79.

19. We have no issue with what senior counsel has said about the utility of the four-step process, which we accept provides a convenient way to structure both submissions and judgments, provided the caveat mentioned is not overlooked.

The Stanford Argument

80. It is submitted on behalf of the Wife that the parties were in a long relationship, they raised two sons and each contributed directly and indirectly to the acquisition, conservation and improvements of the property of the parties to the marriage and as such it is just and equitable for the Court to make orders adjusting the parties’ property interests.
81. It is submitted on behalf of the Husband that whilst the parties were in a long marriage because of the agreement entered into by both of them prior to the marriage, because the parties’ finances were kept separate throughout the marriage and because a sale of Property R will result in his being left without the ability to reaccommodate himself given his age and state of health, it is not just and equitable for the Court to make orders adjusting the parties’ property.
82. As noted in paragraph (75) of this judgment, the Full Court in Stanford (supra) held that in the majority of cases the just and equitable requirement is readily satisfied by the parties’ decision to end the marital relationship and a mutual desire for property orders to be made.
83. In those matters where a party argues that it would not be just and equitable for orders to be made adjusting the parties’ property interests, the High Court in Stanford (supra) provides some guidance as to the matters to be considered by the Court in determining the question of “just and equitable” as follows:
    “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.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 from 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). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.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. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit” in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong :

“The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down”.

39 Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law” . Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses” . The question presented by s 79 is whether those rights and interests should be altered.

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). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down” . To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

41 Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIAof the Act, then, subject to that Part, a court cannot make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

42 In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).”

84. The Full Court of Bryant CJ and Thackray J in Bevan & Bevan (No 1) (2013) FLC 93-545 considered the manner in which a court is to determine the preliminary question of whether it is just and equitable to make any orders altering property interests. In paragraphs 83-85 their Honours held:
    “83. Answering this preliminary question clearly involves the exercise of judicial discretion since, as was said in Stanford 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.84. Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection (emphasis added).

85. This requirement to consider the s 79(4) matters in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.”

85. In Chapman & Chapman [2014] FamCAFC 91 the Full Court again considered the decision in Stanford and in particular paragraphs 84 and 85 of the Full Court decision of Bevan (supra) set out in the preceding paragraph. At paragraphs 24-26 the Court held as follows:
    “24. In light of the broad sweep of the wife’s arguments on this issue, mention should also be made of what the plurality said in Bevan at [84] and [85]. The opening to the latter paragraph and its reference to a “…requirement to consider the s 79(4) matters…” (emphasis added) in answering the s 79(2) question suggests that those factors must mandatorily considered. Their Honours support that conclusion in [84] by reference to the words used in s 79(4):…it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, “..such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection.

(Bold emphasis in original).

25. If the plurality intended that a consideration of the s 79(4) matters is mandatory in answering the s 79(2) question, we respectfully disagree.

26. The judgment in Stanford points, in our view, to the opposite conclusion. In particular:

• The “…range of potentially competing considerations” and the consequent impossibility of charting the “metes and bounds” of what is just and equitable (at [36]);

• The ready satisfaction of the s 79(2) requirement in “many cases” by the fact of separation (at [42]);

• The statement that “it will be just and equitable” to make an order in “many cases” by reason of the “…choice made by one or both of the parties…” to end the marriage (at [42]);

• Equally, the statement that “it will be just and equitable” to make an order “in many cases” because “…there is not and will not thereafter be the common use of property by the husband and wife” (at [42], emphasis in original);

• The reiteration that: “…nothing in these reasons should be understood as attempting to chart the metes and bounds of what is ‘just and equitable’ (at [46]); and,

• The further reiteration that nothing in their Honours’ reasons is “…intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable” (at [46]).”

86. In Chapman (supra) Bryant CJ at paragraph 9 held:
    “9. Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4)when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in 
    s 79(4) have the potential to inform the decision under s 79(2), along with all other relevant considerations, as Murphy J held in Watson & Ling [2013] FamCA 57 at [12], citing Stanford at [40].”
87. As has been clearly enunciated by both the High Court and the Full Court there is no exhaustive definition of what constitutes “just and equitable”. A careful consideration of the particular circumstances of each individual couple and their relationship is to be undertaken when determining whether it is just and equitable to make an order altering property interests.
88. The salient factors in this matter are:
    1. what are the existing interests of the parties’ in property;
    2. the “Agreement”;
    100. the length and nature of the parties’ relationship;
    4. the manner in which the parties conducted their financial affairs;
    5. the financial/parenting/homemaking contributions of the parties during the relationship; and
    6. the parties’ future needs.

The parties’ property interests

89. The Husband is the registered owner of Property R and of a (vehicle omitted) motor vehicle.
90. The Wife has superannuation with (omitted) Superannuation Fund and is the registered owner of a (vehicle omitted) motor vehicle.
91. Both parties have chattels and personal effects.

The “Agreement”

92. As set out previously in this judgment the parties signed an agreement on 31 May 1994, the day before the parties were due to be married.
93. That document is in (nationality omitted) as that was the only language of the Wife at the time of the parties’ marriage. An accurate translation of that document is set out in paragraph (13) of this judgment.
94. It is the Husband’s submission that this document should be seen as binding on the parties as it was entered into freely by both of them and they conducted their financial affairs in such a way as to reflect the terms of that agreement.
95. It is the Wife’s submission that this agreement was signed by the parties some six years prior to the introduction of Part VIIIA of the Act and further that it was signed by both parties, and she in particular, without the benefit of any legal advice.
96. It is the Wife’s further submission that she was put under considerable pressure by the Husband to sign the agreement in circumstances where he presented it to her the day before the marriage and he told her that if she did not sign the document the marriage would not proceed. It is the Wife’s evidence that she had moved from (country omitted) to Australia in order to marry the Husband, she was without any family or support in Australia and in those circumstances felt she had no other option available to her but to sign the agreement.
97. It is further submitted on behalf of the Wife that subsequent to the parties’ marriage they did not conducted their financial affairs in accordance with the terms of the agreement. It is the Wife’s evidence that the proceeds of sale of her apartment in (country omitted) was used for the benefit of the parties and in particular for the payment of Mr K’s educational costs. Further, it is the Wife’s evidence that the various properties and resources of the Husband listed in the financial agreement were realised and whilst some of those proceeds were utilised in the purchase of Property R, the balance was used by the parties for the benefit of the family as a whole. The funds were used to meet the costs of the various trips made by the parties to (country omitted) and in particular in 1998 when the family moved to live in that country, for the purchase of motor vehicles and in meeting the day-to-day living expenses of the parties, particularly prior to the Husband becoming eligible to receive Centrelink payments and whilst the parties lived in (country omitted).
98. The Husband at the commencement of the trial urged the Court to adjourn the hearing of the matter until the High Court handed down its decision in the matter of Thorne v Kennedy. In that matter the High Court on 10 March 2017 granted special leave to appeal on the question of the law of duress as it applies to financial agreements entered into pursuant to Part VIIIA of the Act.
99. It was submitted by the Husband that if the Wife is arguing that the agreement entered into by the parties prior to their marriage should not be considered binding on the parties because it was entered into it by her under duress, then this court should await the determination of the High Court before dealing with this issue.
100. The agreement signed by the parties predates the introduction of Part VIIIA of the Act. It was entered into in somewhat dubious circumstances and more particularly absent any legal advice to either of the parties. Further, the parties have not conducted their financial affairs in accordance with the terms of the agreement during the period of their relationship.
101. Whilst the decision of the High Court in Thorne v Kennedy will be of genuine assistance in clarifying the law on the question of duress relating to financial agreements entered into pursuant to Part VIIIAof the Act, it is not a decision of relevance to this matter given the agreement predates the introduction of that legislation.
102. Accordingly, the existence of this document and its terms do not prohibit this court from making orders adjusting the parties’ property interests if the Court is satisfied it is just and equitable to do so.

The length and nature of the parties’ relationship

103. It is the Wife’s evidence that the parties separated in 2011 and the Husband’s evidence that the parties separated in 2008.
104. Whilst it is clear from the parties’ evidence that theirs was an unhappy marriage for a considerable period of time, I am satisfied on the objective evidence before the Court that separation did not occur until July 2011.
105. In 2008 the Husband was representing the Wife as being his wife to Centrelink in relation to a dispute she was having with that organisation. In 2009 the parties and the children took an extended holiday together as a family in (country omitted). It was not until 2011 that the Husband notified Centrelink that he and the Wife had separated and sought to have the arrangements for the payment of his pension altered.
106. It is apparent from the Husband’s evidence that he is someone who is fully cognisant of the requirements to qualify for Centrelink payments as well as his obligations to inform Centrelink of any alterations to his circumstances. If the parties had separated in 2008, the Husband would have advised Centrelink at that time. That he only notified Centrelink in 2011 is I believe confirmation that separation occurred in 2011.
107. It is the Wife’s evidence that the Husband was an extremely dominating person throughout the relationship, making the decisions affecting all family members without consultation or consideration of the opinion of others.

108. It is the Wife’s further evidence that the Husband was very secretive about his own affairs, that he had two locked cabinets in the house where he kept all paperwork such as Mr K’s and Mr W’s passports as well as financial information and that she did not have access to those cabinets.
109. It is the Wife’s evidence that the Husband was insistent that all real estate be registered in his name alone.
110. It is the Wife’s evidence that the Husband had a very traditional view of marriage and that it was his expectation that she be the homemaker and parent whilst he was the breadwinner even after his voluntary retrenchment from (employer omitted) in 1996 and decision to not return to paid employment.
111. It is the Wife’s evidence she did the majority of cooking, cleaning, washing, ironing and she took the children to medical appointments and school functions. She agrees that the Husband home-schooled Mr W. The Wife also agrees the Husband did some cooking and shopping. It is her evidence the Husband did the shopping to control the monies spent by the parties rather than to assist in the family domestic duties.
112. The Husband disputes the Wife’s evidence that he was controlling during the relationship. It is his evidence that he encouraged the Wife to undertake English lessons, upgrade her qualifications, obtain an Australian driver’s licence and pursue her career. He describes her as an intelligent, strong woman.
113. The Husband agrees that he and the Wife lived frugally but that this was a joint decision.
114. When giving his evidence, the Husband only reluctantly conceded the Wife’s role as the primary parent and homemaker and the party responsible for undertaking most of the household duties.

The manner in which the parties conducted their financial affairs

115. The Husband is unshakable in his belief that the former matrimonial home is his and that no orders should be made that disturbs his ownership of that property.
116. It is the Husband’s evidence that the funds utilised in the purchase of Property R have as their source the assets owned by him prior to the commencement of cohabitation to which the Wife made no contribution.
117. It is the Husband’s evidence that other than the government benefits received by the parties which were paid in to a joint account, the parties kept their finances separate throughout the relationship and that neither had an expectation of any entitlement to the financial resources of the other, including his ownership of Property R.
118. As noted earlier in this judgment, it is the Wife’s evidence that the Husband was most secretive about his financial affairs and that he retained all financial documentation in two locked filing cabinets to which she did not have access.
119. It is the Wife’s evidence that all monies received by way of government payments went in to a joint account, as did any monies earned by her between 2004 and 2008.
120. It is the Wife’s evidence that in 2008 she began to earn more than she had in preceding years and made a decision to set up her own account into which she placed her wages. It is the Wife’s evidence that at the Husband’s insistence she was required to pay into the joint account an amount equal to any reduction in government payments arising from her being in paid employment.
121. It is the Wife’s evidence that in addition to the monies paid by her into the joint account from her wages that were used for the payment of household expenses such as rates, utilities, food and the like, her income was also used to meet the living expenses of the family including the educational costs for Mr K and Mr W, clothing, extra curricular activities, medical expenses and the like.
122. It is the Wife’s evidence that she sold her (country omitted) unit when the parties returned to Australia in 2000 and these monies were used to pay school fees for Mr K to attend (omitted) School up until he was successful in obtaining a full scholarship to continue at that school.
123. After the parties separated under the one roof, the joint account was closed and both parties maintained separate bank accounts.
124. As has been set out previously in this judgment, after separation under the one roof the Husband conducted a regular reconciliation of household expenses and required the Wife to pay three quarters of those costs. The Wife’s contribution to the reconciled expenses was subsequently amended so that she paid five eighths of those costs.

The financial, parenting and homemaking contributions of the parties during the relationship and after separation

125. Whilst the High Court in Stanford (supra) held that to conclude that making an order is just and equitable only because of and by reference to the various matters in section 79(4) of the Act without a separate consideration of section 79(2) would be to conflate the statutory requirements and ignore the principles laid down by the Act, the Full Court in Bevan (No 1) (supra) held that it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in section 79(4) should be ignored in coming to the decision as to whether it is just and equitable to make orders adjusting or altering property interests.
126. There is no doubt in this matter that the Husband’s assets and resources at the commencement of the parties’ relationship greatly exceeded those of the Wife.
127. There is also no doubt that the funds used for the purchase of Property R can be directly traced back to the assets and resources owned by the Husband at the commencement of the relationship.
128. The Wife in these proceedings was the primary homemaker undertaking the majority of both parenting and homemaking tasks. The proceeds of sale of the unit in (country omitted) owned by her prior to the parties’ marriage was used to pay Mr K’s school fees at (omitted) School.
129. Whilst the Husband was in paid employment at the commencement of the parties’ relationship in 1994, he took a voluntary redundancy package in 1996 and other than a brief period in (country omitted) in 1999 did not return to any form of paid employment and remained reliant on Centrelink payments from that time for the support of the family.
130. In 2004 the Wife was required to return to paid employment in order for the parties to retain their entitlement to government support. For the remainder of the parties’ relationship until 2011, the income earned by the Wife was used in its entirety for the support of the family as a whole.
131. Whilst the parties remained separated under the one roof, the Wife continued to contribute both as homemaker and financially to the support of the family including the Husband until physical separation in 2014.
132. From 2014 the Wife solely supported herself and the parties’ two sons, including meeting the costs of Mr W’s education and health needs as well as paying for rent, food and other necessities. The Husband continued to reside in the unencumbered former matrimonial home and paid no child support for Mr W.

The parties’ future needs

133. It is the submission of the Husband that if orders are made for the sale of Property R, he will not be able to find allergy-asthma-free accommodation that would be suitable to meet his health needs.
134. The Husband in his outline of case document argues that he should not be required to continue on an income-tested pension and that he would require $800,000 from any property settlement to buy an annuity pension to fund income at his current level of Centrelink payments as well as meet his health needs.
135. It is submitted on behalf of the Wife that her ability to find employment as a (occupation omitted) is becoming more and more difficult as electronic (employment omitted) is making her skill base redundant.
136. It is the Wife’s evidence that because of the uncertainty of her employment, her ability to obtain a mortgage to enable her to reaccommodate herself is questionable and that whilst she has the capacity to continue in paid employment, the uncertainty of that employment going forward means that she is no more financially secure than the Husband.

Is it just and equitable to make orders for property division between the parties?

137. Having considered all of the matters which I believe are relevant to the question of whether it is just and equitable to make orders adjusting the parties’ property interests, I have formed the view that this question should be answered in the affirmative.
138. The agreement signed by the parties the day prior to their marriage does not preclude this court from exercising its jurisdiction under the Act. The agreement predates the introduction of Part VIIIA of the Act, was signed by both parties without the benefit of any legal advice and in circumstances where the Wife was given little choice but to sign the document.
139. Subsequent to the signing of the agreement, the parties conducted their financial affairs in a way that did not accord with the terms of that agreement. Whilst the Husband was very secretive in the management of his financial affairs, it is apparent from the evidence that there was an intermingling of the parties’ pre-marriage assets.
140. Both parties contributed to the upkeep of their family, including their two sons from income earned, government benefits, and I am satisfied from both the Husband and Wife’s pre-marriage assets.
141. Both parties made considerable contribution to the family directly and indirectly during the course of their seventeen year relationship.
142. Going forward, both parties need to reaccommodate themselves. Whilst the asset pool is a relatively modest one, it is sufficient to enable both parties to purchase their own home, especially as Mr K and Mr W are now adults.
143. It is for these reasons that I am satisfied that it is just and equitable that this court makes orders adjusting the parties’ property interests following the breakdown of their marriage.

What orders should be made?

144. As was set out in paragraphs (77)-(79) of this judgment, the approach usually adopted when determining what orders to make adjusting the parties’ interests in their property, is what is known as the four-step process as enunciated in the Full Court decision of Hickey (supra). In this matter I intend to adopt that process.

Assets and liabilities

145. The parties’ assets consist of Property R, the Wife’s (vehicle omitted) motor vehicle, the Husband’s (vehicle omitted) motor vehicle, household furnishings of limited value and the Wife’s superannuation.
146. None of the parties’ realisable assets have been valued by the parties.
147. The Wife has estimated the value of the parties’ respective motor vehicles to be $10,000 or less. Given the absence of any independent evidence as to the value of the vehicles and their relatively similar estimated value, it is not my intention to include those vehicles in the list of assets for division between the parties but rather that each of the parties will retain their motor vehicle.
148. In her Outline of Case, the Wife places a minimal value on the parties’ respective household chattels. Adopting the same approach as taken to the parties motor vehicles, I have formed the view both parties should retain those chattels in their possession without the necessity of them being included in the pool for division between the parties.
149. In relation to Property R, the Wife annexes to her trial affidavit sworn 25 April 2017 market appraisals of Property R from (omitted) Real Estate, Property R dated 13 April 2017, from (omitted) Real Estate dated 22 April 2017 and from (omitted) Real Estate dated 22 April 2017.
150. The three estate agents assess the value of Property R to be between $1,120,000 and $1,350,000.
151. The Wife’s superannuation is currently valued at $69,374. At separation the Wife’s superannuation was valued at $24,101.
152. Accordingly, the pool of assets available for division between the parties is as follows:

Contributions

153. It is the Husband’s submission that the Wife made no contribution to the purchase of Property R as the funds for its purchase can be traced directly to the real estate, superannuation and redundancy owned by him prior to the parties’ marriage. He therefore rejects any suggestion that the Wife has any entitlement to this property.
154. Whilst conceding that the funds for the purchase of Property R came solely from the Husband’s pre-marriage assets, it is the Wife’s submission that the contributions made by her during the course of the marriage and subsequent to separation as homemaker, parent and income-earner are such that the contributions of the parties both directly and indirectly to the acquisition, conservation or improvement of the property of the parties to the marriage or either of them is such that the parties’ contributions should be considered equal.
155. It is the Wife’s evidence that she was the primary homemaker during the course of the marriage and subsequent to separation. It is her evidence she was almost entirely responsible for the care and maintenance of the home as well as performing the majority of parenting duties.
156. It is the Wife’s further evidence that from 2004 she was the sole income earner in the home and that she contributed all of her income for the benefit of the family during the marriage.
157. Whilst somewhat reluctantly conceding the Wife undertook the majority of the household duties, it is the Husband’s evidence that he assisted in household maintenance and was an active and involved father, including home-schooling Mr W for some six years prior to the Wife, Mr K and Mr W vacating Property R in 2014.
158. There is no doubt that the Husband made the greater initial contribution to the matrimonial property as a result of his pre-marriage assets.
159. I am satisfied however that the Wife’s contributions during the course of the marriage as homemaker, parent and income earner were greater than those of the Husband.
160. Having considered the parties’ respective contributions, I am satisfied that the initial contribution of the Husband which resulted in the parties being able to purchase Property R on an unencumbered basis should be given greater weight and as such there should be an adjustment in the Husband’s favour for his greater contribution of 5%.

Section 75(2) factors

161. The Husband is currently aged 69 years and is in receipt of an aged pension. He has no other savings or income.
162. The Wife is aged 56 and is employed on a casual basis by three different employers and earns approximately $46,000 per annum.
163. It is submitted on behalf of the Wife that her future earning capacity is not secure as her skills are becoming increasingly redundant with the advancement of in-house electronic (employment omitted) that is available ever-increasingly to businesses.
164. It is the Wife’s evidence that whilst she has endeavoured to re-train and up-skill, she has genuine concerns about her capacity to generate sufficient income to support herself going forward.
165. It is submitted on behalf of the Wife that because of the uncertainty of her future income, her ability to borrow funds to re-accommodate herself is in doubt.
166. It is therefore submitted on behalf of the Wife that there should be no adjustment in either party’s favour for section 75(2) factors.
167. Both parties have exhibited throughout the entirety of their married life and since separation, a capacity to live frugally and support themselves and their two sons from very limited income.
168. Whilst the Wife’s average income is not large, she has shown herself to be hard-working, resilient and determined to support and improve herself.
169. That she was able to save $42,000 in the period between separation in 2011 and physical separation in 2014 whilst contributing up to three quarters of the parties’ living costs is indicative of her ability to live frugally and thriftily.
170. Whilst the Wife gave evidence of concerns about her ability to obtain work as a (occupation omitted) in the future, she placed no independent evidence of this before the Court. When she lost work with one of her regular employers during the course of this litigation she was able to find another employer to replace that lost work. I am therefore satisfied that the Wife has the capacity to earn an income and continue to contribute to superannuation over the next ten to fifteen years whilst the Husband cannot.
171. Accordingly, I am satisfied there should be an adjustment in the Husband’s favour for section 75(2) factors of 5%.

Superannuation

172. It is submitted on behalf of the Wife that at the time of separation in 2011, her superannuation was the relatively small amount of $24,000 and that its current value of $69,374 reflects contributions made by her post-separation.
173. It is further submitted on behalf of the Wife that superannuation of $69,374 is not large in any event.
174. It is therefore submitted on behalf of the Wife that she should retain the entirety of her superannuation entitlement.
175. The Husband made no submissions in relation to the question of there being any form of a superannuation splitting order as it was his contention that he should retain Property R and his car and the Wife retain her superannuation and motor vehicle.

176. In circumstances where the Husband is to receive a greater share of the only realisable asset of the parties being Property R, where the Wife’s current superannuation is a relatively small amount and where it’s value at separation was considerably less than it is now, I am of the view that the Wife should retain the entirety of her superannuation.

Just and equitable

177. As can be seen, I have made a determination that the division between the parties should be 60%-40% in the Husband’s favour.
178. Neither party can afford to retain Property R and it will therefore need to be sold in order to achieve a settlement between the parties.
179. If Property R sells for the median price of the estimates given by the three real estate agents who provided market appraisals for the property, the parties should, after selling costs, have net proceeds of sale of approximately $1,200,000 for division. A 60%-40% division would mean that the Husband would receive $720,000 and the Wife $480,000.
180. The amount received by the Husband will enable him to reaccommodate himself in a comfortable unit.
181. The amount received by the Wife will enable her to reaccommodate herself as I believe she will be able to borrow sufficient funds to purchase a suitable property and have the capacity to service that loan until retirement when her superannuation will be available to her to either pay out the mortgage or enable her to meet her loan commitments.
182. In these circumstances I am satisfied that this result is just and equitable to both parties.

The manner of the sale of the property

183. It is submitted on behalf of the Wife that the unshakeable belief of the Husband that the Wife has no entitlement to Property R is such that he will do everything in his power to obstruct and delay the sale of that property.
184. The Wife is therefore seeking that very specific orders be made for the sale of the property She also seeks orders be made that Property R be transferred to her to be held on trust by her to sell the property and that the Husband vacate the property within 21 days of the date of these orders to enable the Wife to have the proper conduct of the sale.
185. It is submitted on behalf of the Wife that the Husband will not be unduly inconvenienced by having to vacate Property R until its sale as he can reside with his adult daughter.
186. The Husband denies that he would be able to reside with his adult daughter as she has three children in her home and no room for him.
187. Whilst I harbour some concerns about the Husband’s acceptance of orders requiring the sale of Property R, the Husband is a law abiding man who I believe will not disobey the orders of this court.
188. In these circumstances I am not satisfied that orders should be made that require a transfer of the property to be held on trust by the Wife or for the Husband to vacate Property R pending settlement of its sale.
189. It should be noted however that if the Husband should fail to comply with the orders of this court or act in any way that hinders or unduly delays the sale, the Wife will have leave to make application on very short notice for orders in the terms sought by her as well as seeking to recover any costs associated with the necessity of bringing that application.
190. Very specific orders will be made as to the manner in which the property is to be sold to avoid any dispute between the parties as to how the sale is to take place.

I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date: 13 July 2017

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability.  An example is where the Court has expressly authorised the publication.  

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