In the recent case of Gully & Aksoy [2017] FCCA 118 (1 September 2017) Judge Henderson heard an application for property orders in a case of a 22 year marriage between a 52 year old homemaker wife and a 51 year old breadwinning husband. Of their three children, the youngest (Z) (17) suffered from an intellectual disability (global development delay autism) and was cared for by the wife. That condition was such that Z may “never be self-supporting financially or physically and this mother may be supporting him at all levels for the rest of her life”.

While contributions were agreed as equal during the relationship it was agreed that the husband had brought in an initial financial contribution of $60,000. It was, however, contentious as to the weight to be given to the husband’s post-separation injury payment of $1.4 million, which formed part of his $2.1 million in superannuation. It was agreed that he could draw down on the injury component of his superannuation, but not as to how much tax should be deducted from that amount.

Court Analysis

The Court stated that each party was dependent upon the money they received in these proceedings to support themselves in the future.

It was true that the wife did not have any physical impairment preventing her from working. The wife was physically well and suffered no disabilities. Her capacity to work, however, was compromised by three factors:

a) The first was the length of the marriage, some 22 years, and that she was the primary stay-at-home parent and homemaker and has not worked for 24 years.
b) Secondly, she has no skill or training for any work and would have to retrain at age 52.
c) Thirdly, her care of [Z], a child who requires significant day-to-day care. The Court found that the wife, like the husband, had no capacity to support herself in the future from work.

The Court accepted the proposition that the wife’s contribution to the superannuation was limited due to the husband’s contributions of $1.4 million due to his accident. The counsel for the husband assessed her contribution at around 17.5%.

Based on a string of court cases, however, both parties’ contributions must be looked at over the whole of the period being during the marriage and post separation and then an assessment made of their needs into the future.

Parties’ Assets

Looking at the parties’ entitlement to the assets other than superannuation the parties contribution based entitlement was as at separation equal and neither party contended for any other finding. These assets were:

1. Cars $192,500
2. The matrimonial home $1,180,000
3. Stapled securities in (company omitted) $11,933
4. Furniture $11,000
Total debts were $534,553. Deducting those debts from the matrimonial assets, the Court found them to be there an amount of $860,390 to be divided

The total superannuation, including the wife’s modest amount of $2,422 was $2,120,806

The Court accepted the submission and the report of Mr N that the parties could each draw down from the superannuation fund in the husbands’ name due to his incapacity for work and thus this money was available to them. The Court accepted that there was a tax liability in relation to any superannuation monies drawn down if drawn down prior to the age of 60.

Wife’s Submission

Counsel for the wife’s submission was that the Court ought not to reduce the superannuation balance at all by deducting tax payable as the parties may not wish to draw down their superannuation entitlement to pay out debts. However, the matrimonial debts secured over the home were just that, joint debts. If in paying those debts off and reducing them to nil a tax debts arises then that tax liability must also be shared. The husband would be required to extinguish the wife’s’ liability for the current mortgages upon the home being transferred to him and he did not have sufficient other liquid funds to do so other than drawing down from his superannuation fund. Accordingly, it would have been grossly unfair to saddle only the husband with tax payable upon discharging joint debts.

However, the Court did not take the entirety of tax payable as if the whole amount was drawn down. The Court accepted that the wife may not draw down her share of superannuation until age 60. In the event either the husband or wife chose to draw down their superannuation once matrimonial debts were paid, that was a matter for them and tax would come off their share.

Matrimonial Debts

The matrimonial debts were $524,485 being $534,553 less the (omitted) car debt of $10,550. Going to Mr G’s table if an amount of $600,000 was drawn down by the husband he would incur a tax debt of $90,420. The Court accepted to reduce the gross superannuation to be divided by $90,000 to make allowance for extinguishing the joint matrimonial debts.

Husband’s Superannuation

The adjusted superannuation to be divided between the parties was $2,030,806 being the current superannuation of $2,120,806 less $90,000. This sum together with the liquid assets of $860,390 was a total of $2,891,196 to divide.

At separation, the Court accepted the husband’s superannuation was around $276,000 and that at the time of the accident was some $600,000.

The superannuation increased over time since separation due not only to the husband’s contribution due to employment but also the usual increase in the value of the assets comprised in the superannuation fund over time by investment strategy and the like of the trustee of the fund

The wife has clearly contributed to the increase in the base superannuation to $600,000 as she made a contribution to the amount in the fund at separation and has continued to contribute to that fund by her parent and homemaker contribution continuing post separation in the sole care of [Z] since September 2013 and her contribution must be looked at over the whole of the period

In relation to the $1.4 million of the fund from the insurance pay out, the Court accepted the wife’s contribution based entitlement was limited as the monies came to the husband due to an accident and from injuries he suffered post separation although she had made a contribution to the husband in being able to acquire and sustain his position with (employer omitted) by her homemaker and parenting contributions.

Given that the superannuation was available to the parties albeit with a tax liability for drawdowns prior to age 60, the Court proposed to treat the party’s assets as one pool even though the wife’s contribution to the current value of the superannuation pool was at first blush limited

Parties’ Contribution

Looking at the party’s marriage as a whole, the wife’s contribution was and continued as a parent and homemaker. The wife was the stay at home parent and continued in the sole care of [Z] and this permitted the husband in the past to work the long hours and do the job he did, as she was the parent who took up the care of three children of the marriage. The wife’s support of her husband in working in jobs that took him away during the week and for long hours during the week at times meant he was only available on weekends and in holidays to assist her. Her care of [Z] post separation and sole care since the husband’s accident allowed him to focus on his rehabilitation and to continue to work for some time after his accident as he did not have the care of or responsibility for [Z] and this is a contribution to the increase in superannuation

The husband made an initial contribution of $60,000 to the party’s assets at the commencement of the marriage some 20 years ago, was clearly the sole income provider for the family and has made a superior contribution to the current superannuation

The Court found that based on past contribution to their assets that the husband had made a superior financial contribution to the parties assets, and initially assessed contributions at 75% by the husband and the wife 25%.

Section 75(2) Factors

Section 75(2) of the Family Law Act outlines a number of factors (including future needs) that the Court can take into consideration when formulating a just and equitable settlement of parties’ property.

The Court found that the 75(2) factors in relation to the wife and husband being unable to work were similar. The wife had not worked for 25 years; she has no training and would need to re-train. The wife was 52. Even if the Court found the wife had some limited capacity to re-train and then find work that is simply not an available finding given the care needs of [Z] which were overwhelming to the wife re-training and /or working.

The Court accepted that the husband was no longer able to work and he, like the wife, must support himself from the monies he receives after this hearing. The wife, however, had both herself and [Z] to support and [Z]’s support was more likely than not to be for the remainder of the wife’s life.


The Court found the wife’s “section 75(2) factors” to be greater than the husband’s and that her past contribution to the parties’ assets should be adjusted by 15 per cent for the above reasons. This resulted in an entitlement of 40% to the wife and 60% to the husband.

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