Wife praised for her “fair and reasonable” approach
McBurney & McBurney [2016] FCCA 100 (29 January 2016)
The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/100.html?stem=0&synonyms=0&query=family%20law
Other matters
- Post separation the wife obtained an Intervention Order against the husband. This was a consequence of the husband damaging the gate of her home by deliberately driving into it. He acknowledged that he caused damage to her property and paid the compensation ordered in the sum of $1,990 out of the parties (omitted) Bank Line of Credit. He had significant income but did not apply his income to the payment. When the Intervention Order expired the husband sent a nasty and harassing note to the wife, to intimidate her, suggesting he would buy the property next door to her and knock it down before building a much larger two story house. Such behaviour was yet another indication of his intent to make life difficult for the wife and to thwart her attempts to separate from him both physically and financially. Even at trial he attempted to intimidate her by turning to her in closing submissions and saying “Fuck you, cunt of a thing”.
- Since separation the wife has been absolutely honest and reliable in her financial dealings with the husband and management of their financial affairs. The husband by his conduct has not been so with the wife. He has unilaterally removed funds from the (omitted) Bank Line of Credit. Between the two trial dates he took a further sum of $6,800. The husband had a savings sum of $30,000 which has been spent by him but with no evidence given to the Court as to how the husband expended such funds, or how and when they were accumulated.
- The evidence before the Court is that the value of the three real properties in the (country omitted) has increased since the parties purchased such properties. The husband’s evidence is that not only has this occurred but that he would have no difficulty selling such properties. Yet to date he has not sought to do so. He wishes to remain in occupation of the former matrimonial home with the wife paying a mortgage in respect of her accommodation and further years to pass. This is not just and equitable between the parties.
- The husband’s proposal at the end of the trial was that he would retain ownership of the former matrimonial home and that he would retain two thirds of the value of the parties Superannuation Fund. Over further time the (omitted) properties could be sold, but only at a price agreed by him and the wife could obtain any monies due to her from their sale. The parties’ debt would be paid out of the (omitted) properties sale proceeds with that debt to be paid in the meantime with the rental receipts of one property and how otherwise in a manner not considered by the husband. The husband then suggested a sale of the three (country omitted) properties but reiterated that he wished to sell the (omitted) properties first. He argued that he would have nowhere to live if the former matrimonial home was sold. He in fact could live in the untenanted (omitted) property, or in rental accommodation funded by his immediate access to superannuation monies. In short he put nothing concrete before the Court that would lead to a severance of the parties financial relationship and an easing of the financial burden carried by the wife in the need to meet her approximately $400 weekly mortgage repayment. This is before she attempts to repay her brother’s loan.
- The Court determines in the exercise of its discretion to divide the parties assets equally as submitted by the wife’s Counsel. The wife’s brother’s contribution of $70,000 and the husband’s and wife’s post separation income as applied to the parties assets in the wife’s, in the form of a $15,000 equity in her home, and in the husband’s in his far greater salary sacrificing into the superannuation fund for the purchase of the third property, are taken into account and for the reasons given above, and in the context of such a long marriage, do not disturb a position of equality. The formulation of the Orders is an application of the need to do justice and equity between the parties. That requires the wife to have control of the sale of the former matrimonial home and an order for such sale. In no other way will the wife be able to retire the parties debt quickly and maximise their assets values. The wife will receive no co-operation from the husband. Additionally the husband should be required to pay to the wife an amount of $8,800 being monies taken unilaterally by him from the parties funds and payment of the damaged gate as referred to in these reasons, and rounded up to $2,000.
- In arriving at the payment sum the Court determines that 50 percent of the (omitted) Superannuation Fund is $309,840.50. One half of the combined (employer omitted) Superannuation Fund is $39,250. The husband needs to account thus in the sum of $309,840.50 to the wife and the wife in the sum of $22,750 to the husband. Additionally the wife needs to account to the husband in the sum of $7,500 in respect of her equity in her home in Property H (total of $30,250). This leaves the husband needing to pay to the wife the sum of $279,590.50 together with the further $8,800 sum as described. The payment is therefore $288,390.50.
- The wife in these proceedings adopted a fair and reasonable approach to the resolution of the issues. The husband is fortunate that she did so.