B & B - [2005] FamCA 624

[2005] FamCA 624
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT CANBERRA CA 909 OF 2003
B
AND:
B
RESERVED JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE FAULKS
DATE OF HEARING: 7 & 8 October 2004

DATE OF JUDGMENT: 15 July 2005
APPEARANCES:
Mr J Millar for the husband
Ms A Tonkin for the wife
MATTER:B v B
CA 909 OF 2003

CORAM:Faulks DCJ
DATE OF HEARING: 7-8 October 2004

DATE OF JUDGMENT: 15 July 2005

CATCHWORDS:
FAMILY LAW - PROPERTY - s 79 Family Law Act - Pool contains: superannuation paid as pension and legal fees - Contributions - s 75(2) Family Law Act - disparities in income

CASES CITED:
Coghlan v Coghlan (2005) FLC ¶93-220; Townsend v Townsend (1995) FLC ¶92-569; Chorn v Hopkins (2004) FLC ¶93-204; Hickey v Hickey (2003) FLC 93-143; Pierce v Pierce (1999) FLC ¶92-844

REASONS FOR JUDGMENT
CA 909 OF 2003
B v. B
IN CANBERRA
7 & 8 OCTOBER 2004
Foreword

This is a case about the division of property between the husband and the wife who were married in early 1987. Throughout this judgment from time to time reference to be made to the parties as the husband and the wife, this is for convenience only and I do not wish to cause any offence to either party by doing so. The orders sought by each of the parties at the hearing are set out in endnotes 1Endnote 1 and 2Endnote 2.
I wish also to record at this point my apology for the delay in delivery of judgment. I accept that the delay has undoubtedly caused the parties a level of emotional anguish and possibly some financial difficulty. I offer my sincere apologies.
Notwithstanding that it is by no means a justification for the delay, the Full Court’s decision in Coghlan v. Coghlan[1] certainly bears upon the determinations I am obliged to make and clarifies a number of the arguments raised by counsel in their final addresses at the completion of the hearing. I offered counsel, through their instructing solicitors, the opportunity to make further submissions to me about the matter in the light of the determination in Coghlan v. Coghlan. They chose not to do so.
[1] (2005) FLC ¶93-220

The way in which I approach my determination.

In this matter there were disputes about some items in the pool of assets. These were the wife’s superannuation entitlements, the husband’s superannuation entitlements and household contents. There are disputes also about some of the liabilities of the parties or of the husband. These included the loan that the husband asserted he had received from a family member and his liability for legal costs. One of the items that might properly be included in the list of assets, namely an order for costs, the husband had been successful in obtaining is properly an off-set against the liability for costs.
The wife also disputed that a P MasterCard debt and a P loan ought to be included as joint liabilities.
Having determined what the pool of property for division is between the parties and in the light of the Coghlan v. Coghlan decision I propose to deal with the superannuation entitlements separately from the other assets.[2]
[2] Notwithstanding what I said to counsel during final addresses in the light of the law then thought to be applicable.
I propose then to examine the contributions that each of the parties have made in accordance with the provisions of section 79(4) of the Family Law Act 1975.
Having determined those issues between the parties, I will then consider whether the provisions of section 75(2) require any adjustment to a division of property calculated by reference to the contributions of the parties. Finally I will consider whether, in the light of all of those considerations, the result is one which might properly be regarded as just and equitable.
Brief background and summary of some matters not in dispute
At the time of judgment the wife is about 47 years old and the husband just short of 43 years old. The parties began their relationship in 1985, marrying in 1987. At about the time that they commenced their relationship the wife was diagnosed with Repetitive Strain Injury and redeployed on light duties. The parties had bought a house which is part of the property in the pool for division at R in the Australian Capital Territory in 1986 and began to live together in 1986 or at little earlier if the wife’s version is correct. The wife paid the cash component of the purchase price from her savings. The husband paid the stamp duty.
Early in the following year the wife was pensioned out of the Public Service. She received a lump sum payment from her employer of about $5,000 ($2,000 on her evidence) for long service and recreation leave entitlements. She also received a pension which she still receives to this day.
Their son was born in 1989 and he is now 16 years old.
During the course of their cohabitation the wife had problems with her ears and had a number of operations in 2000 and 2001. These operations required the expenditure of money and some of this (at least on the assertion of the husband) came from money he received when he left his previous employment in the year 2000. It appears that he received in total about $45,000.00 (before tax) in two components during that year. The husband commenced employment with CW, having left his previous employment in November 2000.
From about late 2002 until early 2003 the husband suffered from depression and had six months sick leave. He returned to work in 2003 on a graduated work plan for a six week period which increased his work to full-time at the end of that period. The parties separated in late 2002. At that time the wife caused the husband to be charged with offences relating to an alleged assault upon her by him. These involved allegations that he had had sexual intercourse with her without her consent and common assault.
The husband, in later 2002, was admitted to a private psychiatric unit for almost a month. The wife subsequently obtained an interim domestic violence order against the husband in that same month in 2002 which became a final order the following month in 2002 (without admissions). In early 2003, the charge against the husband of sexual intercourse without consent was dismissed.
During 2003 the husband had approximately three and a half months paid long service leave but returned to work full-time in 2004. During 2003 the husband admitted himself to the private psychiatric unit for two weeks and also attended there subsequently on a weekly basis.
In August 2003 the husband and wife entered into a child support agreement and in November 2003 the charge of common assault against the husband was dismissed in the Magistrates Court. In early 2004 a costs order was made in favour of the husband against the Director of Public Prosecutions in the sum of $26,272.00. That was subsequently the subject of an appeal but at the time of the hearing that appeal had not been disposed of.
The property pool
The following items are included without dispute in the property pool. The values agreed about them, at the time of the hearing, are set out along side them:
R (joint)  $280,000
Magna motor vehicle (h[3])  $10,500
Computer and personal effects (h)  $2,000
Funds in the wife’s bank account (w[4])                 $6,517[5]
IAG shares (1,035) (w)  $5,288
Cash at separation (w)  $5,000
Cash at separation (h)  $1,500
[3] “husband”
[4] “wife”
[5] This figure was apparently accepted by Mr Millar P1 T 08 10 2004
Other items potentially in the pool
Money in P in a joint account - $2,099
I exclude this item. There is some suggestion that the money was held on trust or account of the parties’ son[6].
[6] See husband’s form 13, September 2004 [37]
The sum does not appear in the wife’s list of property. The wife in her affidavit[7] makes general reference to the account. No documents about it were tendered. Paragraph 49 of the husband’s affidavit sworn in September 2004 may relate to that account and if that paragraph does so relate it asserts that the account was closed in November 2002. There is not enough evidence for me to justify including that account in the list of property.
[7] September 2004 [18]
Household contents
The value of these items was not agreed. It was suggested by the husband’s counsel during final submissions that I should ascribe a value of $5,000 to those items in the husband’s possession and a similar amount to those in the wife’s. No valuation was procured by either party. Assertions are not evidence. I acknowledge that at least in the husband’s eyes the division of those items of furniture was approximately equal and therefore in my opinion they can (be) validly and reasonably excluded from the list of property.
Jewellery
No valuation of the jewellery was obtained. The wife “valued” it at $200. This might be properly regarded as an admission against interest - although certainly the most minor of admissions. The husband asserted that I could reasonably interpret the value as $2,000. Mr Millar argued that the wife’s obligation was to have valued them properly. But to the extent that the matter is in issue, the only evidence is the admission of the wife in the sum of $200. That sum will be added to the list of property.
Costs for and against the husband
Arguably, the order for costs the husband obtained against the Director of Public Prosecutions ($26,272) might properly be regarded as an asset. The outcome of the appeal against that order by the DPP is not known to me. In any event it ought to be an off-set against any potential costs liability and it would be improper to include it in the list of assets without also including a compensatory part at least, of the husband’s liability for costs. For reasons I will set out hereafter I propose not to include either the costs order (or any funds claimed from it) or the costs liability in the list of assets and liabilities.
Revised list of property
R (joint)  $280,000
Magna motor vehicle (h)  $10,500
Computer and personal effects (h)  $2,000
Funds in the wife’s bank account (w)                  $6,517
IAG shares (1,035) (w)  $5,288
Cash at separation (w)  $5,000
Cash at separation (h)  $1,500
Jewellery (w)  $200
$311,005
Liabilities
Mortgage on the house  $55,064
Hire purchase loan for the Magna car               $10,586[8]
  $65,650
Disputed liabilities
[8] This means effectively the car has a negative value
Husband’s Legal Fees
The inclusion as a joint liability of husband’s liability for costs is disputed. This is about $60,000. It is not disputed that he had paid his solicitor $8,732. This precise figure appears to have come from those receipts the husband had. It is asserted that in addition, his solicitors in the criminal proceedings had waived some $5,710. The husband asserted that he had paid a further $4,000 in respect of counsel’s fees and that he was left with a liability of something in the order of $55,000.
The husband argued that this sum or whatever it is on an adjusted and reconciled basis, should be included in the liabilities of the parties for the purposes of determining the net property pool. It was not asserted by either party that the husband had engaged in some form of “waste”. The payment was clearly not an elective expense on the part of the husband. Nevertheless, it was not an expense to which the wife consented or which the wife sought that the husband undertake or acquiesced in the husband’s undertaking. It might be argued that she was the instigator of the events leading up to the expenditure because of her complaint to the Police but this in turn might be met with the argument that the husband’s conduct potentially or possibly gave rise to that complaint.
Mr Millar argued that it was improper not to take account of this liability. A broad consideration of section 79 of the Family Law Act 1975 would provide some credence for this argument. The section does not limit the division the court may make to property in existence at the time of separation. However there may a long time between separation and a court hearing and it may be unjust to leave parties umbilically united in debt during this period.
In a sequence of cases beginning with Townsend v. Townsend[9] the Full Court has considered how legal costs (particularly of the parties’ Family Court proceedings) should be dealt with. A convenient and comprehensive summary of these cases is contained in Chorn v. Hopkins[10]. Their Honours make the following comments in paragraphs 56-60:
[9] (1995) FLC ¶92-569
[10] (2004) FLC ¶93-204
56. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post- separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
59. Outstanding legal fees themselves are generally not taken into account as a liability.
60. If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.
These references relate to costs in the Family Court proceedings before the Court. However there are some other principles which may be elicited from their Honours’ determinations. If funds were owned by either of the parties or by them jointly at the time of separation and those funds were applied for the purposes of one of the parties subsequently, such an application of funds ought ordinarily to be regarded as an anticipatory division (referred to sometimes as a “premature division”) of property to that party. In such circumstances the amount of the expenditure should then be added back into the list of property.
Borrowings undertaken or debts accrued post-separation by one party or the other ought properly to be considered on a case by case basis. If the borrowing was undertaken to fulfil a joint purpose, for example, the re-payment of mortgages or the maintenance of some asset, then the borrowing might be regarded as a joint liability or a liability applicable to both of the parties or even more precisely a liability to diminish the pool of property of the parties. If on the other hand a borrowing was undertaken for purely recreational purposes, it is hard to understand how that, without the consent of the other party, might properly be regarded something to reduce the pool of property. I am not suggesting that the husband’s debt was occurred on a recreational basis.
In between those areas are borrowings or debts which might be undertaken for the purposes of meeting living expenses. These have been the subject of some comment from time to time by the Full Court and it seems that if such borrowings are undertaken on a reasonable basis or were reasonably necessary, a trial judge might apply that liability in diminution of the property pool.
In my opinion the husband’s legal fees in this matter do not fall into a category which should diminish the property pool. It seems to me that in the absence of any agreement or at least acquiescence on the part of the other party, one party cannot bind the other to some post-separation debt merely because it is a liability incurred prior to the determination of the matter by a court. At a prima facie level a borrowing by one party or the acquiring of a debt unilaterally after separation ought not to be regarded as diminishing the pool of property for distribution between the parties. It is incumbent upon the borrower or debtor to demonstrate that the funds borrowed or debt incurred were applied for or otherwise related to either a reasonable joint purpose or were expended in an appropriate way as the reasonable living expenses of that party. A failure to convince a court of these matters ought properly to lead to the exclusion of such item from the list of liabilities in the property pool.
None of this however, removes the obligation of the court to consider such a liability as one of the factors to be taken into account as part of the financial circumstances of one of the parties under section 75(2) of the Family Law Act 1975.
Other Loans
If I were to apply the same principles to two of the other loans in dispute I could not be satisfied that either the MasterCard debt of $3,000 or the P loan of $4,462 should be included in the list of liabilities. The evidence about each of those items is unsatisfactory and in my opinion an appropriate explanation has not been established.
In a slightly different category is the loan from the family member of $5,000.
The husband claims this as a debt in his financial statement of September 2004. The wife argues that it is not clear whether or not this was part of the money that had been asserted to have been paid in legal fees. It had not been included in an earlier financial statement (February 2003). The husband’s evidence is vague and in the absence of any documentary support or any evidence from the person to whom the loan is alleged to be due it should be disregarded. In addition to the reasons set out above, about post-separation borrowings generally, I reject this “loan” as a liability also because of the inadequacy of the evidence about it.
Accordingly, the only liabilities to be applied in reduction of the pool are the mortgage $55,064 and the hire purchase loan $10,586.
Therefore excluding superannuation entitlements the net property pool is:
R (joint)  $280,000
Magna motor vehicle (h)  $10,500
Computer and personal effects (h)  $2,000
Funds in the wife’s bank account (w)                  $6,517
IAG shares (1,035) (w)  $5,288
Cash at separation (w)  $5,000
Cash at separation (h)  $1,500
Jewellery (w)  $200
Minus
Mortgage on the house  $55,064
Hire purchase loan for the Magna car               $10,586
  $245,355
Superannuation (general)
Before the determination of the Full Court (or at least the majority thereof) in Coghlan v. Coghlan the seemingly settled state of the law relating to superannuation was set out in Hickey v. Hickey[11]. That decision would have required the inclusion in the pool of property, at a primary level, of the parties’ respective entitlements to superannuation valued in accordance with the Act and Regulations. The figures for such superannuation were agreed in this case.
[11] (2003) FLC 93-143
The wife’s superannuation entitlements are represented by the income she has been receiving during the whole of the period of cohabitation (and will continue to receive) at $333,999.23 and the husband’s PSS superannuation (which necessarily of course would not fall in for some time) at $259,871.76.
Since the determination of their Honours in the Full Court in Coghlan v. Coghlan however, in my opinion, particularly in this matter, it would be appropriate to deal with the superannuation separately from other items of property. This is a case moreover, in which each of the superannuation entitlements ought to be considered separately from each other. Different considerations apply to each.
Wife’s superannuation

This is superannuation in a payment phase. There is no lump sum. There will be no lump sum. The (nearly) $333,400 valuation is for all practical purposes the valuation of an income stream. Ms Tonkin[12] submitted that if I were to incorporate that valuation in the list of property then I should treat the wife as having no income. There is some force in that submission.
[12] for the wife.
However, irrespective of that, it was argued by Ms Tonkin that the husband had made no contribution to the superannuation entitlement at all. This was because, as any entitlement for the superannuation had accrued prior to cohabitation (certainly marriage), the husband could not assert validly that any contribution he made subsequently as home-maker and parent or generally by way of financial contributions could affect in any way the establishment of or indeed the payment of the wife’s entitlement. Her entitlement was established before he could contribute and was not affected in any way by his contribution. I accept those submissions. In my opinion the husband made no contribution to the wife’s superannuation entitlement.
Husband’s superannuation
The husband began his contributions to his superannuation in 1981 which was about four years before the beginning of his relationship with the wife. The wife argues that she contributed indirectly to the husband’s superannuation from 1985 until 2002. This superannuation is still in the accumulation phase and will not fall in for (potentially) another twelve years.
The wife’s argument is based in part on the proposition that during the period of cohabitation, funds available to the family or to her were not available because money was being paid by the husband into his superannuation.
This argument has been advanced over many years in relation to superannuation funds. It is based in part on the fallacious assumption that the husband had a choice about his contribution. He had no more choice about the contribution than he did about the taxation deducted from his pay at source. The argument has more force if voluntary contributions are made. There is however, no evidence that this was the case here.
Nevertheless, the asset was accumulated during the course of cohabitation. The wife made contributions to the relationship during this period both financial and non-financial and as home-maker and parent.
Although the contrast in treatment of contributions to the superannuation entitlements is to some extent anomalous, it would be inappropriate to disregard those contributions. Indeed on a contributions basis, in my opinion it would be reasonable to say that the wife has contributed about 45% and the husband 55% of the superannuation. The differential takes account of the earlier contributions by the husband.
Nevertheless it would be appropriate also to consider as a factor under section 75(2)(f), that the superannuation will not fall in for some time and is not an asset directly and presently available to the husband. The continued inclusion in the Act of section 75(2)(f) notwithstanding the substantive amendments made to the Act about superannuation generally, suggests to me that the legislature intended that there should be a further examination of the nature of the superannuation entitlements after contributions had been assessed.
Neither party in this matter sought a splitting order for superannuation. Ms Tonkin acknowledged that such an order might be possible but saw that as operating only in relation to the husband’s superannuation entitlements.
She conceded the wife’s superannuation entitlements although an income stream, were within the definition of the Act, splittable payments.
Taking account of the contribution factors relating to the husband’s superannuation and the section 75(2) factor mentioned above as well as section 75(2) factors generally, it seems to me that there should be a substantial discounting of the “division” of the husband’s superannuation entitlements in favour of the husband. In my opinion the division should be 20% to the wife and 80% to the husband.
I regard such a division in the circumstances relating to that aspect as being just and equitable.
Contributions generally (in relation to the property pool other than superannuation)
Initial contributions
The wife’s initial contributions included some $10,000 in savings, a station wagon (subsequently sold for $3,000) and household furniture. The husband had a Commodore worth about $2,000, household effects and a motorcycle. The husband also apparently had a debt to a Building Society in relation to his motor vehicle (summary of argument at paragraph 5(b)) but the amount of the loan is not disclosed.
The wife made a significant initial contribution which indeed provided, as the husband acknowledges, the basis for their acquisition of the former family home. The husband asserts that the balance of funds other than those contributed by the wife were borrowed jointly and that he paid the stamp duty of some $4,000. Ms Tonkin on behalf of the wife argues that the wife’s initial contribution constituted a springboard for the acquisition of the primary and the most substantial item of property in the property pool. She referred to Pierce v. Pierce[13]. Their Honours in Pierce v. Pierce said[14]:
“in our opinion it is not so much a matter of erosion of contribution but a question of what value is to be attached, in all the circumstances, to the initial contribution. It is necessary to waive the initial contributions by a party with all other relevant contributions with both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution[15]. In the present case that use was a substantial contribution of the purchase price of the matrimonial home…”
[13] (1999) FLC ¶92-844
[14] [28]
[15] Emphasis added.
Ms Tonkin argued (relying upon the dicta in Pierce) that in this case the wife had supplied that initial contribution to the acquisition of the main item in the asset pool (apart from superannuation). There is some force to that submission.
The husband argued that he had been the major financial contributor and that he always earned more than the wife did and that this increased over time to about $55,000 a year with penalty rates of about $3,000 whereas the wife’s income had remained at about $22,000. “At all times the wife’s income was well below that of the husband” [16]. Moreover, the husband applied what appears finally to have been (gross) some $45,000 to family purchases from the payout he received and (he claims that he used some of these funds) to meet the costs of medical procedures for4 the wife. He also claims that he expended some of that money in accommodating the parties on trips to Sydney. I accept that the money was expended for family purposes.
[16] [5(c)] husband’s summary of argument
The wife also received in 1987 a further lump sum payment from her employer of about $5,000 (or $2,000) as mentioned in the background material. As a result it could be said overall that the husband made a larger financial contribution than did the wife.
The husband asserted that he also made a substantial contribution as a parent to their son and in his support of the wife. He also claims to have contributed in home-making in a physical way by performing household tasks such as vacuuming, ironing, hanging out washing etc. This claim was initially denied by the wife but in the course of some unsatisfactory evidence on her behalf, she made concessions which support the husband’s contentions that he did at least some of these tasks. If one were to apply a practical view to the matter (untainted by the animosity the parties felt towards each other or feel towards each other) it would be reasonable to say that the wife performed (as her counsel suggested) the primary role of parent and home-maker. To begin with she did not (or was not able to) attend remunerated employment for most of the period the parties were together[17]. It is also true that her illness prevented her from conducting some household activities and I accept that the husband did some of these. In my opinion there is no evidence to support a contention that he did anything like one half of such tasks but I do accept that he was both supportive of his wife during her illness and that he did and was obliged to do some tasks which she was unable to do.
[17] her income applied notwithstanding this of course

I think that overall the wife’s contributions as home-maker and parent, financially and in a non-financial sense exceeded the financial and other contributions of the husband.
Ultimately counsel for the wife retreated to a position of arguing that contributions ought to be regarded as 52% by the wife and 48% by the husband. This is in contrast of the husband’s counsel’s submissions that the husband ought to be regarded as having contributed 55% and the wife 45%.
In my opinion Ms Tonkin’s concession is appropriate and I should regard contributions to the general pool of property between the parties at 52% by the wife and 48% by the husband.
Section 75(2) factors
The wife is receiving a superannuation pension. She lives in the former family home but the husband meets part of the expenses in relation to it. It is not clear to me that the wife would be able to meet the mortgage as it presently exists let alone if she had to increase the mortgage to obtain money to pay out the husband in some way.
The husband asserts she has a capacity to work and that she has for all practical purposes chosen not to. The inference to be drawn it is suggested is that her present position is one of forensic tactics not of physical incapacity. No medical evidence was adduced on the part of the wife to support her contention that she is unable to work.
Equally there is no evidence that she is able to work and the fact that she has not worked for such a long time is a reasonable indicator that it would be difficult if not impossible for her to return to full-time remunerated employment. Moreover, essentially her income derives from her pension which has been taken into account as property - although the husband ultimately received no ‘credit’ in relation to it.
The wife will have the care of their sixteen year old son for about half of the time in accordance with their agreement and the child support she has received to help her support her son will be diminished as a result of the arrangements entered into by the parties. She is slightly older than the husband and has not re-partnered. If I were to make an order requiring the payment of any money by her to the husband, it seems probable the house would have to be sold and if it were, she would then have difficulty in reaccommodating herself with the funds she would then have after payment of the husband.
The husband is earning, at least in gross terms, substantially more than the wife. Mr Millar in a very complicated set of submissions[18] attempted to demonstrate that there is very little difference between the net income of the parties. I found it difficult to follow his submissions on this matter - not the least because he appeared to have failed to take account of the wife’s taxation. The imbalance is still significantly in favour of the husband and I reject Mr Millar’s submissions on this point. The husband is capable of earning and continues to earn more than the wife and that is a factor properly to be taken into account. He also has superannuation which has again been taken into account previously which means that he will receive a pension when he reaches 55 and retires.
[18] T 8 October 2004 p9 ff
I accept further that the husband has contributed to the support of the wife and their son since separation.
The husband lives in a relationship with his new partner and her two children who are partly supported by him. If he were to receive nothing by way of payment from the wife, he will be left in a situation where it would be difficult for him to reaccommodate himself - except through the good offices of his partner in whose home he presently lives.
It would have to be said that neither of the parties can look forward optimistically, to their respective financial futures.
Ms Tonkin urged on me that I should adjust the division of property so the wife receives 70% of the total pool. (This properly speaking given the downwards adjustments she made on the question of contributions, should probably be 67%.)
I do not believe that an adjustment of that sort is called for by the circumstances of each of the parties. This is particularly so when I take account of the liability that the husband potentially has in relation to his legal fees and to the fact that the wife’s superannuation is a benefit she will continue to enjoy but which has not otherwise been adjusted for in these proceedings between the parties.
In my opinion there should be a further adjustment of the division between the parties so that it reflects that the wife receives 57% of the general property pool and the husband 43%.
Additional amounts referable to superannuation
There would be no adjustment in favour of the husband in respect of the wife’s superannuation but there would be an adjustment of 20% of the husband’s superannuation which I will round up to $260,000 for the purposes of this calculation. That is, there should be an adjustment in favour of the wife of a further $52,000.
The wife will retain:
R property  $280,000
The jewellery  $200
Funds in her bank account  $6,517
IAG shares (1,035)  $5,288
Cash at separation  $5,000
$297,005
The wife will have the liability of the family mortgage of $55,064. In total she should receive 57% of the net property pool ($139,852) plus $52,000 – a total of $191,852. She already has $241,941 and therefore she will owe $50,089 to the husband. This I round down to $50,000.
If, as appears probable, she will have to sell the family home then the proceeds of the sale will establish the true net value of the R property and the amounts between the parties will be adjusted accordingly in relation to the percentages set out above.
Just and equitable
The outcome for either party is not attractive. Neither may from his or her resources be able to accommodate himself or herself. The wife’s present and likely future income is meagre but if she can raise the money, she may be able to stay in the house. The husband’s greater income and his new relationship should enable him to start again but only in a modest way. All in all I am satisfied that the division I propose is just and equitable.
Orders
Among the orders I have been asked to make by agreement is the return to the husband of his war games, equipment and figures, less a miniature drill which Ms Tonkin asserts is not in the wife’s possession. These have no doubt been returned to him by now but I will make the order in any event unless I am informed to the contrary.
Accordingly I make the following orders:
1. That the wife pay to the husband the sum of $50,000 (the Payment) within sixty (60) days of the date of these Orders or such longer period as the parties may agree (the Due Date).
a.The husband do all such things necessary to transfer to the wife at her expense all of his right, title and interest in the property situated at and known as R in the Australian Capital Territory (the Property); and
b.The wife do all such things necessary to cause the P to release the husband from his obligations under mortgage secured over the Property.
3.    That from the date of this Order the wife indemnify the husband and keep him indemnified against all liabilities and outgoings with respect to the Property.
4.    That if the Payment or any part of it has not been made by the Due Date or the wife is unable to comply with Order 2(b),
a.The wife shall, in addition to the Payment, pay to the husband interest on the payment or the amount outstanding at the rate prescribed by the Family Law Rules to be calculated from the Due Date;
b.The parties do all such things necessary to effect the sale of the Property; and
c.The parties have liberty to apply about the terms of sale if they cannot promptly reach agreement about them.
5.    That if the Property is sold pursuant to Order 4(b), the husband and wife shall do all things necessary to cause the proceeds of sale of the Property to be to be distributed as follows:
a.To pay all costs, commissions and expenses of the sale;
b.To pay the usual rates adjustments;
c.To pay the amount required to discharge the mortgage;
d.To pay $50,000 or so much of the payment as is then outstanding together with the interest in accordance with Order 4(a) to the husband;
e.To pay to the husband 43% of the difference between $224,936 ($280,000 - $55,064) and the net proceeds of sale after payments in 5(a)-5(c) have been deducted; and
f.To pay the balance to the wife.
6. That if either party fails to execute any document necessary to put these Orders into effect fourteen (14) days after the expiry of the sixty (60) days for Payment, a Registrar of the Family Court at Canberra is appointed pursuant to Section 106A of the Family Law Act 1975 to execute such documents in the name of the parties.
7.    Subject to Order 9, that the wife be declared the sole owner to the exclusion of the husband of all property (including choses-in-action) in her possession at the date of these Orders (including furniture, personal possessions, superannuation entitlements, credit cards and other debts and shares).
8.    That the husband be declared the sole owner to the exclusion of the wife of all property (including choses-in-action) in his possession at the date of these Orders (including furniture, personal possessions, superannuation entitlements, credit cards and other debts and the vehicle).
9.    That within seven days of the date of these Orders, the wife make available for collection by the husband or an agent on his behalf the following:
a.War games board games (approximately 20);
b.Sets of miniature war games rules (approximately 5);
c.Miniature army sets including figurines, vehicles, ships and aircraft;
d.War games magazines;
e.Board games magazines;
f.Lever arch files with war games information;
g.Occupational Health & Safety textbooks (approximately 10);
h.Written study notes and marked assignments;
i.Military history books (approximately 30);
j.Aircraft magazine collection (approximately 10 magazine holders);
k.Completed aircraft models (approximately 8);
l.Uncompleted aircraft and vehicle models (approximately 20);
m.Pots of paint (approximately 60);
n.Paint brushes;
o.Model working tools;
p.Assorted modelling tools;
q.Photo albums including photos of the husband, his family and friends for the period prior to his relationship with the wife and photos of the parties’ son;
r.Computer software, games and accessories.

Endnote 1
Minute of Orders Sought by the Applicant Husband

1. That the wife pay to the husband the sum of $143 000 (“the Payment”) within 30 days of the date of these Orders (“the Due Date”).

That at the time of Payment,

a.The husband do all such things necessary to transfer to the wife at the expense of the wife all of his right, title and interest in the real Property situated at and know as R in the Australian Capital Territory (“the Property”);
b.The wife do all things necessary to cause the P to release the husband from all liability with respect to the loan secured by mortgage over the Property to the P and if such release cannot be obtained by the time of Payment then Order 2(c) shall apply;

c.The wife do all things necessary to cause the mortgage to be discharged at the expense of the wife.

3. That from the date of the payment the wife indemnify the husband against all rates and land tax (if any) with respect to the Property.
4. That from the date of Payment or the completion of sale in Order 5(b) as the case may be:
a.The wife have the right to occupy the Property;
b.The wife pay mortgage payments, house insurance, rates and land tax (if any) with respect to the Property; and
c.Neither party shall mortgage or otherwise offer the Property for security other than for the purposes of compliance with Order 1.

5. That if the whole of the Payment has not been made by the Due Date,
a.The wife shall, in addition to the Payment, pay to the husband interest on the payment or the amount outstanding from time to time as the rate prescribed by the Family Law Rules to be calculated from the Due Date to the date of Payment; and
b.The wife do all things necessary to effect the sale of the Property.

6. That the husband and wife do all things necessary to cause the proceeds of sale of the Property to be to be distributed as follows:
a.To pay all costs, commissions and expenses of the sale;
b.To pay the usual rates adjustments;
c.To pay the amount required to discharge the mortgage;
d.Subject to any adjustments necessary pursuant to Orders 6(a) to 6(c) above to pay so much of the payment as is then outstanding together with the interest in accordance with order 5(a) to the husband, and
e.To pay the balance to the wife.

7. That liberty be reserved to either party to apply to the Court on seven days notice to the other with respect to the terms and conditions of the sale.
8. That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect fourteen days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such documents in the name of the parties.
9. That the wife be declared sole owner of IAG shares in her name.
10.That the husband be declared the sole owner of the 2001 Magna sedan motor vehicle.
11.That the husband will indemnify and keep the wife indemnified in relation to the Essanda car loan.
12.That the husband be declared the sole owner of his Public Sector Superannuation Scheme entitlements.
13.That the wife be declared the sole owner of her Commonwealth Superannuation Scheme entitlements
14.That the husband will indemnify and keep the wife indemnified in relation to P credit card.
15.That within seven days of the date of these Orders, the wife make available for collection by the husband or an agent on his behalf the following:
a.War games board games (approximately 20);
b.Sets of miniature war games rules (approximately 5);
c.Miniature army sets including figurines, vehicles, ships and aircraft;
d.War games magazines;
e.Board games magazines;
f.Lever arch files with war games information;
g.Occupational Health & Safety textbooks (approximately 10);
h.Written study notes and marked assignments;
i.Military history books (approximately 30);
j.Aircraft magazine collection (approximately 10 magazine holders);
k.Completed aircraft models (approximately 8);
l.Uncompleted aircraft and vehicle models (approximately 20);
m.Pots of paint (approximately 60);
n.Paint brushes;
o.Model working tools;
p.Miniature power drill and accessories;
q.Assorted modeling tools;
r.Photo albums including photos of the husband, his family and friends for the period prior to his relationship with the wife and photos of the parties’ son;
s.The parties personal papers including tax records and bank statements, and
t.Computer software, games and accessories.

16.That unless otherwise specified in these Orders:
a.Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in possession of such party at date of these Orders (furniture, personal possessions and like-chattels in the property deemed to be in the possession of the wife); and
b.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

17.That the Husband has liberty to amend his Application upon a single expert providing valuations in this matter.

In the Alternative
1.The husband pay to the wife the sum of $81 800 (“the Payment“) within 30 days of the date of these Orders (“the Due Date”).
2.That at the time of the Payment:
a.The wife do all such things necessary to transfer to the husband at the expense of the husband all of her right, title and interest in the real Property situated at and know as R in the Australian Capital Territory (“the Property”);
b.The hsuband do all things necessary to cause the P to release the wife from all liability with respect to the loan secured by mortgage over the Property to the P and if such release cannot be obtained by the time of Payment then Order 2(c) shall apply;
c.The husband do all things necessary to cause the mortgage to be discharged at the expense of the husband.

3.That from the date of the payment the husband indemnify the wife against all rates and land tax (if any) with respect to the Property.
4.That from the date of Payment or the completion of sale in Order 5(b) as the case may be:
a.The husband have the right to occupy the Property;
b.The husband pay mortgage payments, house insurance, rates and land tax (if any) with respect to the Property; and
c.Neither party shall mortgage or otherwise offer the Property for security other than for the purposes of compliance with Order 1.

5.That if the whole of the Payment has not been made by the Due Date,
a.The husband shall, in addition to the Payment, pay to the wife interest on the payment or the amount outstanding from time to time as the rate prescribed by the Family Law Rules to be calculated from the Due Date to the date of Payment; and
b.The husband do all things necessary to effect the sale of the Property.

6.That the wife and husband do all things necessary to cause the proceeds of sale of the Property to be to be distributed as follows:
a.To pay all costs, commissions and expenses of the sale;
b.To pay the usual rates adjustments;
c.To pay the amount required to discharge the mortgage;
d.Subject to any adjustments necessary pursuant to Orders 6(a) to 6(c) above to pay so much of the payment as is then outstanding together with the interest in accordance with order 5(a) to the husband, and
e.To pay the balance to the wife.

7.That liberty be reserved to either party to apply to the Court on seven days notice to the other with respect to the terms and conditions of the sale.
8.That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect fourteen days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such documents in the name of the parties.
9.That the wife be declared sole owner of IAG shares in her name.
10.That the husband be declared the sole owner of the 2001 Magna sedan motor vehicle.
11.That the husband will indemnify and keep the wife indemnified in relation to the Essanda car loan.
12.That the husband be declared the sole owner of his Public Sector Superannuation Scheme entitlements.
13.That the wife be declared the sole owner of her Commonwealth Superannuation Scheme entitlements
14.That the husband will indemnify and keep the wife indemnified in relation to credit card A.
15.That within seven days of the date of these Orders, the wife make available for collection by the husband or an agent on his behalf the following:
c.War games board games (approximately 20);
d.Sets of miniature war games rules (approximately 5);
e.Miniature army sets including figurines, vehicles, ships and aircraft;
f.War games magazines;
g.Board games magazines;
h.Lever arch files with war games information;
i.Occupational Health & Safety textbooks (approximately 10);
j.Written study notes and marked assignments;
k.Military history books (approximately 30);
l.Aircraft magazine collection (approximately 10 magazine holders);
m.Completed aircraft models (approximately 8);
n.Uncompleted aircraft and vehicle models (approximately 20);
o.Pots of paint (approximately 60);
p.Paint brushes;
q.Model working tools;
r.Miniature power drill and accessories;
s.Assorted modeling tools;
t.Photo albums including photos of the husband, his family and friends for the period prior to his relationship with the wife and photos of the parties’ son;
u.The parties personal papers including tax records and bank statements, and
v.Computer software, games and accessories.

16.That unless otherwise specified in these Orders:
a.Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in possession of such party at date of these Orders (furniture, personal possessions and like-chattels in the property deemed to be in the possession of the wife); and
b.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.

17.That the Husband has liberty to amend his Application upon a single expert providing valuations in this matter.

Endnote 2
Minute of Orders Sought by the Respondent Wife
By way of adjustment of property interests of the parties pursuant to s79 of the Act: -
1.The applicant husband shall do all acts and things and execute all necessary documents to cause all his right title and interest in the former matrimonial home situated at R to be transferred to the wife.
2.Within 28 days of the date of these orders the husband shall cause the mortgage registered over the R property to be discharged.
3.Within 28 days of the date of these orders the husband shall pay to the wife’s solicitors on behalf of the wife the sum of $60 585.
4.The wife shall do all acts and things and execute all necessary documents to cause all her right title and interest in the Magna sedan to be transferred to husband.
5.Prior to transfer of the Magna sedan the husband shall cause the Essanda loan to be transferred into his sole name and thereafter shall indemnify the wife in relation to all and any claims in respect of the loan.
6.The husband transfers to the wife any right, title and interest he has in property in the possession of the wife including but not limited to real and personal property and any superannuation interest in her name.
7.The wife transfers to the husband any right, title and interest she has in property in the possession of the husband including but not limited to real and personal property and any superannuation interest in his name.

In the Alternative (to (3) above)
8.In accordance with s90MT(1)(a) of the Family Law Act (1975) (“the Act”), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of BE (“the husband”) from his interest in the Public Sector Superannuation Scheme (“the PSS Scheme”) BG (“the wife”) is entitled to be paid by the Trustee of the PSS Scheme (“the Trustee”) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $60 585 and there is a corresponding reduction in the entitlement that the husband would have but for this order.
9.The operative time for Clause 1 is four (4) days after service of this Order on the Trustee.

Notation
The parties note that this Order and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
10.Clause 7 is amended as follows -
Subject to clause 8 and 9 the wife transfers to the husband any right, title and interest she has in property in the possession of the husband including any real and personal property in his name.