B & C

[2007] FamCA 1422

FAMILY COURT OF AUSTRALIA

B & C [2007] FamCA 1422

FAMILY LAW – PROPERTY – Add backs – Contributions – Post-separation contributions, particularly failure to pay child support – Section 75(2) factors

Family Law Act 1975 (Cth)

Hickey & Hickey and A-G for the Commonwealth of Australia (Intervener)
(2003) FLC 93-143

APPLICANT: Mr B

RESPONDENT: Ms C

FILE NUMBER: HBF 6 of 2006

DATE DELIVERED: 22 November 2007

PLACE DELIVERED: Hobart

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 8 and 9 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Trezise

SOLICITOR FOR THE RESPONDENT: A T Legals

Orders

1. Within ninety (90) days of the date of this order Ms C (“the wife”) pay to Mr B (“the husband”) the sum of $240,169.00.

2. At the same time as payment is made by the wife to the husband in accordance with order 1 above, the husband sign all documents and do all things to transfer to the wife all of his interest in property at O, being the house and land contained in certificates of title volume … folio … and volume … folios … and … (“the home”).

3. At the time of payment in accordance with order 1 above and transfer in accordance with order 2 above, the wife obtain from the National Australia Bank a discharge of mortgage No. … and pay out the loan to the National Australia Bank (of about $217,000.00) (“the mortgage loan”).

4. Within thirty (30) days of the date of this order, the husband sign all documents reasonably required by the wife or her lawyer to transfer to the wife the husband’s right title and interest in:

   (a)the trailer registered in the husband’s name but in the wife’s possession to the intent that the wife be the sole and absolute legal owner thereof as against the interests of the husband; and

   (b)the caravan registered in the joint names of the parties but in the wife’s possession to the intent that the wife be the sole and absolute legal owner thereof as against the interests of the husband.

5. BY CONSENT within thirty (30) days from the date of these orders (or such longer time as is brought about by virtue of the nature of these shareholdings) the husband must:

   (a)transfer to the wife his interest in the twenty thousand “H” class shares in L Company Pty Ltd ACN … (“[L Company]”); 

   (b)in the event that the transfer of such shares is subject to the consent of the Directors of L Company; each of the husband and wife sign all documents and do all acts reasonably required to seek and obtain such consent; and

   (c)if such consent is not available then the husband shall hold such shares on trust for the wife and shall only deal with such shares as is directed by the wife, in writing;

   (d)the wife shall indemnify the husband in respect of calls and/or taxes, if any, arising from such transfer or holding;

   (e)the husband must keep the wife informed of any notices or information he receives in respect of these shares, until such time as the legal title to the shares is transferred to the wife or the value of the shares is vested in the wife or as she otherwise directs in writing.

6. BY CONSENT the wife assign to the husband the whole of her shareholding in T Pty Ltd (ACN 103 683 978) and that:

   (a)the wife shall within thirty (30) days of this order discontinue her personal involvement in proceedings in the Supreme Court of Tasmania at Launceston against L Company; and

   (b)the husband shall indemnify the wife in relation to all claims in regard to that shareholding and the wife’s liabilities as a director of T Pty Ltd, including any claims for capital gains tax on the distribution of any shares, legal costs of the parties (or either of them) or T Pty Ltd as may be ordered in favour of L Company in respect of the said Supreme Court proceedings; and

   (c)to the effect that the husband shall be entitled to any proceeds of the litigation between the husband, T Pty Ltd and L Company (if any) and he shall be entitled to pursue, settle or otherwise be solely responsible for that Supreme Court litigation.

7. BY CONSENT within thirty (30) days from the date of these orders (or such longer time as is brought about by virtue of the nature of these shareholdings) the wife must:

   (a)transfer to the husband her interest in the “I” class shares owned by the wife solely and or jointly with the husband in L Company; 

   (b)in the event that the transfer of such shares is subject to the consent of the Directors of L Company; each of the husband and wife sign all documents and do all acts reasonably required to seek and obtain such consent; and

   (c)if such consent is not available then the wife shall hold such shares on trust for the husband and shall only deal with such shares as is directed by the husband, in writing;

   (d)the husband shall indemnify the wife in respect of calls and/or taxes, if any, arising from such transfer or holding;

   (e)the wife must keep the husband informed of any notices or information she receives in respect of these shares, until such time as the legal title to the shares is transferred to the husband or the value of the shares is vested in the husband or as he otherwise directs in writing.

8. There be a Splitting Order against the wife’s superannuation entitlements in the B Superannuation Fund in accordance with s90MT(1)(b) of the Family Law Act 1975 in favour of the husband such that the husband be entitled to be paid 100% of that splittable payment and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order and that as and by way of consequential arrangement:

   (a)the wife shall resign as an appointor and/or trustee of the B Superannuation Fund; and

   (b)the husband shall pay and indemnify the Wife from payment of all or any liability of the wife arising from her former interest in the B Superannuation Fund and pay and indemnify the wife from payment of all liabilities of the B Superannuation Fund including any liability of the wife to the Australian Taxation Office arising from the Splitting Order, resignation and/or otherwise arising from this Order;

   (c)it is noted that the parties are trustees of the B Superannuation Fund and accept that there has been procedural fairness in terms of informing the trustees of the fund of this splitting order

9. BY CONSENT the wife shall forthwith resign as appointer and/or trustee of the V Trust and shall assign all of her interest, if any, to any asset or entitlement arising out of such trust to the husband within thirty (30) days of the husband forwarding documents to the wife to give effect to this order.

10. In the event that the wife is unable or unwilling to pay the sum of money referred to in order 1 above, within the time specified by these orders, or such longer period as is agreed in writing between the parties, the parties shall do all acts and take all steps to cause the home to be listed for sale by auction as soon as is practicable subject to:

    (a)the wife remaining in occupation of the home pending completion of the sale;

    (b)the wife paying municipal rates, water rates, land tax (if any), normal payments of principle and interest in respect of the mortgage to the National Australia Bank, proper insurance in respect of the home on the land;

    (c)the husband and the wife causing the property to be listed with a real estate agent agreed between them or, in the event the parties are unable to agree, then a real estate agent nominated by the President of the Real Estate Institute of Tasmania at the request of either party and at the expense of both parties;

    (d)the solicitor acting on the sale of the home be a solicitor agreed between the parties or, in the event they are unable to agree, then a solicitor nominated, at the request of either party, by the President of the Law Society of Tasmania;

    (e)the reserve on the property be set at $1,100,000.00 or such lower amount as agreed in writing by the wife;

    (f)out of the net proceeds of sale the parties must direct payment as follows:

    i.payment of agent’s fees and expenses, legal costs and disbursements;

    ii.any cost of appointment of agent and/or solicitor;

    iii.outstanding rates;

    iv.the amount due to the National Bank in respect of the mortgage loan;

    v.the amount in order 1 above together with interest on that sum as and from sixty days from the date of these orders, with interest accruing at the rate provided under the Rules of this Court;

    vi.the balance to the wife.

    (g)the wife to make the home reasonably available for inspection by prospective purchasers, including “open for inspection” days and the wife to keep the property in good order and condition, reasonable wear and tear excepted.

11. BY CONSENT it is noted that the partnership of the parties’ called “[the B partnership]” (“the partnership”) had been terminated by the parties on or before 30 June 2006.

12. The parties do all acts and sign all documents and provide all papers to U Chartered Accountants at …, Tasmania:

    (a)To jointly instruct them to prepare partnership returns for the partnership for the 2005 to 2006 financial years,

    (b)In the event that one or other of the parties neglects or refuses to pay fees reasonably required by the accountants, such fees may be paid by the other partner and such fees shall be refunded to that partner within seven (7) days of payment and interest shall accrue on such payment/s at the rate provided under the Rules of this Court;

    (c)Both parties must sign all documents and do all acts to ensure that the taxation returns for the partnership are lodged within four (4) months from the date of these orders;

    (d)Each of the parties shall be equally responsible for payment of the accounting fees in respect of these partnership income tax returns.

13. The wife must within thirty (30) days from the date of request sign all documents requested by the husband transfer to the husband any interest she has in the Crop sales.

14. The husband shall indemnify the wife against the school fees outstanding to both S School and N School in respect of any fees for the parties’ children to attend either of those schools in the 2007 school year. 

15. Unless otherwise specified in these Orders:

    (a)each party be solely entitled, to the exclusion of the other, to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of Order and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the policy owner thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements;

    (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.

16. BY CONSENT the wife’s application for child support orders is withdrawn and dismissed.

17. This matter be removed from the list of cases requiring determination.

18. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

    IT IS CERTIFIED

19. Pursuant to Rule 19.50 of the Family Law Rules2004 (Cth) it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBF 6 of 2006

MR B  

Applicant

And

MS C  

Respondent

REASONS FOR JUDGMENT

1. These are property proceedings between Mr B (“the husband”) and Ms C (“the wife”). 

2. The proceedings were commenced by the husband in February 2006 and initially related to parenting and property settlement.  The wife later amended her response to include an application for orders under the Child Support (Assessment) Act 1989.  The parties resolved parenting issues with the making of consent orders on 14 August 2007.  The wife withdrew her child support application during the property trial.

3. The husband’s application was for determination of the pool of property and division of that pool of property equally between himself and the wife. The primary asset of the parties is a farm at O (“the home”) which has an agreed value of $1,100,000.00.  The husband is content for the home to be assigned to the wife at that value provided there is provision for sale of the home if the wife is unable or unwilling to pay the amount determined by this Court as a just and equitable property settlement.

4. The husband also seeks orders for distribution “in speci” of the furniture, contents and chattels of the parties.

5. The husband also sought orders as set out in his affidavit of 19 June 2007 being those listed 1 to 15 under the heading “Matrimonial issues to resolve”.  The husband agreed that orders 3 through to 7 related to the children’s matters which had been resolved by consent orders in August 2007.

6. Order 8 related to the superannuation fund which has been resolved by consent and which is dealt with later in these reasons.  Order 9 related to the home and there was no issue that the home was to remain with the wife if she is able to afford to pay out the husband’s property entitlement.

7. Order 10 related to the proceeds of sale of a property owned by the parties which had been sold and the proceeds applied towards a National Australia Bank mortgage secured over the home.  There was an issue as to the tax payable by the wife in regard to the capital gain on such sale, which issue I have dealt with in these reasons.

8. In order 11 the husband seeks the appointment of an agent for the sale of the home.  The orders I will put in place will provide for agreement; if there is no agreement then an agent will be appointed by the President of the Real Estate Institute of Tasmania. 

9. The husband seeks orders with regard to the financial accounts in respect of the partnership and I have dealt with that issue in these reasons.

10. The husband also seeks an order for lodgement of financial accounts in regard to T Pty Ltd (“[T Pty Ltd]”), a trust known as the V Trust and B Superannuation Fund.  As a consequence of consent arrangements entered into between the parties during the course of the trial, the superannuation fund, the V Trust and T Pty Ltd have been assigned to the husband. As such he is able to deal with these commercial issues without the need of further orders.

11. The husband sought orders in relation to the division of the “H” class shares in L Company Pty Ltd. (“[L Company]”). Consent arrangements were entered into in regard to these shares.   The effect of the consent arrangements was that the “H” class shares in L Company owned by the husband are being transferred to the wife. 

12. The parties also owned significant “I” class shares in L Company, either through T Pty Ltd or owned jointly by the husband and wife or solely by the wife.  The consent arrangements do not impact on the ownership of the “I” class shares owned by T Pty Ltd but do transfer the shareholding in that company to the husband.  The orders provide for the transfer of the “I” class shares owned by the wife, either jointly or solely to the husband. 

13. Late in the hearing, submissions were made that the transfer of the “H” and “I” class shares needed the consent of the Directors of L Company and that such consent may not be forthcoming.  After discussion between the bench, counsel and the husband, consent arrangements were put in place to provide for the transfer of shares subject to any such consent and, in the event that the shares were not transferred, that the “H” class shares held by the husband were to be held by him on trust for the wife and that the “I” class shares held by the wife be held by her on trust for the husband.  Consent orders were to be made in that regard.

14. Finally, the husband sought orders in relation to monies held on trust for the children of the parties.  The children are not parties to these proceedings and the husband conceded that the equitable owners of the money were the children.  Counsel for the wife said this was not part of the case which needed to be determined I adopted that submission as it seemed to me that the parties have obligations as trustees in respect of those funds and, in the circumstances of this case, I should not exercise any jurisdiction I may or may not have in regard to the parties’ respective roles as bare trustees.

15. The husband’s submissions were that the contributions to property were equal (including initial contributions and having regard to contributions from the wife’s family) and that there ought not to be any adjustment for the other factors in favour of the husband or in favour of the wife.

16. The wife sought orders that she retain the home and that the property be divided as to seventy per cent to her and thirty per cent to the husband.  This is based upon a division of fifty five per cent to the wife and forty five per cent to the husband on contribution and a further adjustment of fifteen per cent with regard to the other factors including the s75(2) factors (being an overall difference of 30% in regard to the other factors). 

17. The wife initially sought child support orders as set out in her amended response and her case outline.  The wife withdrew those applications on the first day of hearing.

18. The wife was taken by surprise in terms of the husband’s assertions as to the valuations of the “H” class shares in L Company.  The wife had no knowledge of the superannuation fund except from having seen some cheque butts.  After some discussion between the parties it was agreed between them that the wife would consent to a splitting order of the B Superannuation Fund transferring one hundred per cent of her interest in that fund to the husband.  This would include 18,859 “H” class shares and the sum of about $12,000.00 held in a bank account.  That split would be on the basis that the “H” class shares were valued at 0.12c each making the agreed value of the superannuation fund $14,633.00. 

19. As a consequence of reaching that agreement the parties were aware that the value of those “H” class shares may have a value of more than 12 cents each as those shares may have some rights to interests in a company developed from or out of the shareholding of L Company. 

20. As consequence of this approach I determine that the division of property should be on the basis of a single list and not a separate list for the various accumulation type superannuation funds. 

21. The wife consented to orders that her shareholding in T Pty Ltd be transferred to the husband and that the wife resign as a director of that company.  An asset of T Pty Ltd is a holding of about 950,000 “I” class shares in L Company.

22. The balance of the “I” class shares are owned either individually or jointly by the husband and wife.  It was agreed that the wife would transfer her interest in those shares to the husband.  The wife attributed no substantive value to those “I” class shares.

23. In these proceedings the husband relied upon the following:-

    (a)paragraphs 37 to 59 of his affidavit filed 3 February 2006;

    (b)his affidavit of 19 June 2007;

    (c)his financial statement of 19 June 2007;

    (d)his affidavit of 7 November 2007 (being the affidavit in reply to the wife’s affidavit of 14 September 2007).

24. The husband sought to rely on two further affidavits. These affidavits were said to be in reply to two earlier affidavits of the wife, which the wife had not relied upon. I refused leave for the husband to rely on those two late filed affidavits, but I gave him leave to adduce oral evidence in an areas raised by him, after he considered the material in those affidavits. The three late affidavits of the husband were filed on the afternoon before the hearing and served on the wife’s solicitors later in that afternoon. The wife’s solicitors did not have an opportunity to take instructions from the wife until the commencement of trial.

1. I gave the husband leave to adduce oral evidence in relation to the issue of the 2007 school fees and I gave him leave to confirm on oath the submissions he made in his case outline as to the assets and liabilities.

2. The husband sought to adduce into evidence material relating to the wife’s mental health.  The husband conceded he had no professional expertise in this regard and the material he was endeavouring to put to the court related to searches he had undertaken on the internet.  I did not allow admission of that material as evidence.

3. The wife relied upon the following:-

   (a)her affidavit filed 14 September 2007;

   (b)an affidavit of her father filed 14 September 2007;

   (c)her financial statement of 27 August 2007.

4. In these reasons any statement of fact is to be regarded as a finding unless the contrary appears from the context in which the statement is made.

   BACKGROUND

5. The husband and wife were both aged forty two at the time of hearing.  They commenced a boyfriend/girlfriend relationship in about 1987.

6. The parties married in December 1990 and in 1991 the parties moved to southern New South Wales.  In the late 1990’s the parties moved to Tasmania.

7. There are four children of the parties’ relationship, M aged 16, I aged 14, J aged 11 and E aged 8.  The children live primarily with the mother and she has been their primary carer since at least separation. The time the husband has spent with the children has reduced over the period of just under two years since separation.  The husband moved to Sydney in late July 2007 and he has seen very little of the children since that time. Virtually all of the parenting of the children, at the present time, is left to the wife.

8. In about 1988 the wife purchased a business in Melbourne. That purchase was funded by a loan from her parents of $20,000.00.  The husband asserts that he advanced to the wife $6,000.00 from savings he had at that time. The wife denied that allegation of fact, although she conceded in cross-examination that she had borrowed some funds from the husband to enable payment for some ‘copper products’ to be sold from that business and that the husband charged a high rate of interest in respect of that loan.  The husband also gave evidence that he gave an unrestricted guarantee to the wife in respect of both lease and overdraft.  The wife agrees that the husband gave a guarantee (with another friend) in relation to a lease but not in respect of the overdraft. 

9. In 1989/1990 the parties commenced living together.  The wife’s uncontested evidence was that she sold her business for $50,000.00 in 1990 and repaid her parents $20,000.00. The wife’s contested evidence was how the proceeds of sale were disbursed.  She said that she paid out a car loan of approximately $6,000.00 and paid the husband’s outstanding college fees, which she said amounted to about $15,000.00. The husband said that the fees were paid by him.

10. In 1993 the wife opened a business in Southern NSW and subsequently opened a second business in the same area.  In 1998 the parties purchased a property (“the home”) for $300,000.00.  There was an issue as to whether the wife’s family contributed $110,000 or $130,000 towards funding that property.

    CREDIT OF WITNESSES

11. The credit of each of the parties was an issue in these proceedings.  Counsel for the wife submitted that the husband’s evidence ought not to be believed.  The husband asserted that the wife had a mental illness and told lies. There is no credible evidence that the wife suffers from a mental illness. I generally find that the wife’s evidence was clear and non-evasive and she endeavoured to give evidence accurately, however, from her own perspective.

12. The wife made concessions against her own interests.  Her evidence was that when the husband left the home he took all of the papers and records of the parties and, as such, her memory of precise details of transactions may have been wanting from time to time.  I accept her evidence in this respect.

13. The husband was not an impressive witness.  He took opportunities to minimise the wife’s contribution to the family and to expand his own.  In giving evidence he prevaricated and had a tendency to exaggerate.  From time to time, he seemed to fashion his evidence to suit his needs.

14. The issue regarding the income he derived from sports coaching illustrates this finding.  He gave evidence that he thought he would earn $15,000.00 per year in 2007/2008 as a coach and that this income would grow.  Subsequently, when shown a copy of a document he had lodged to the Child Support Agency[1] a few weeks before the hearing, he endeavoured to dissemble in respect of that evidence in terms of the information he had provided to the Agency showing his income from coaching as $5,000 per year.   

    [1] Exhibit “W2”.

15. In the same document, the husband asserted that he had “shared care” of the four children of the marriage in circumstances where, even on his evidence, he spent little time with them after July 2007. 

16. The husband had received a settlement of about $47,000.00 from L Company in August 2007.  During the course of the trial he claimed that he needed to pay tax on this sum as it was “income”.  He did not disclose this as income to the Child Support Agency (Exhibit “W2”)

17. There is also an issue as to the husband’s bona fides in respect of that application for change of assessment.  The husband had previously sought a change of assessment in respect of the child support for a period following September 2006 and that assessment had been the subject of a determination by a senior case officer, on 16 May 2007[2].  In that decision the senior case officer had determined that the husband had an income of $40,000.00 per year.  On the husband’s evidence, at about that time, his income was about $50,000.00.  In June 2007 the husband left his employment and, with as little as two days notice to his children[3], moved to New South Wales.

    [2] Exhibit W6

    [3] Exhibit W8

18. In his affidavit of 3 February 2006, the husband asserted that from at least 1998 until February 2001 he spent a great deal of time after work and weekend hours caring for the children.  He went on to say at paragraph 44 of that affidavit that from that time he and the wife shared the responsibilities of raising the children.  He says further at paragraph 46 that:

    ”46.From that time [April 2001] our life revolved around both our work and our care of the children. […] [the wife] worked fairly equivalent hours on developing the business and the care of the children”.

19. This affidavit was in support of his application for parenting orders.  In the husband’s affidavit sworn 7 November 2007 he sets out in paragraph 50:

    ”50.I worked the farm from 6.00am until 8.00am every morning.  This was difficult because in winter the sun didn’t rise until 8.00am.  I spent the weekend setting up for the following week when it would be dark.  I was always running from the farm into the shower and into the car to take the children to school and me to work in Launceston”.

20. At the commencement of the trial, prior to the agreement being reached with regard to the “H” class shares in L Company, the husband asserted that those shares were worth 0.12 cents each.  He had not informed the wife of his view on the valuation of these shares until the day before the hearing commenced.  This must be seen in the circumstances that the parties had agreed to a joint expert to value the shares and a valuation was prepared.  On making enquiries of KPMG the parties ascertained that L Company was arranging for valuation and relied upon that valuation which was issued in September 2006[4]. In February 2007 the husband asserted to Mr C that the shares had a valuation of $1.50[5].

    [4] Exhibit W13

    [5] Exhibit W14

21. The husband gave evidence that he had care of the children fifty per cent of the time from January 2006 to July 2006.  When questioned about orders that had been made in April 2006, he said that he saw them much more than the orders provided.  He finally conceded that the children were living with the wife most of the time but that was not what he wanted.  He gave evidence that in 2006 he took proceedings opposing the wife’s relocation to New South Wales and forcing her to return to Tasmania.  When asked about his relocation to Sydney on two days notice to the children, he understated the impact of this upon the children.

22. The husband was asked about the agreement he entered into with regard to school fees. It is clear, on the evidence, that the wife is unwilling for the children to remain in private schools and that the husband is determined that they do so.  The husband prevaricated in answers to questions about the wife’s agreement or non-agreement with the children remaining at the private schools and the alleged agreement to pay the 2007 school fees. I find that he agreed to pay the 2007 school fees without contribution by the wife.

23. His demeanour in the witness box was unhelpful and I have significant doubts as to his credibility as a witness of truth.  His evidence is unrealiable. On balance, I generally prefer the evidence of the wife to that of the husband, except where the husband’s evidence is supported by some objective facts or are not in issue.

    Principles to apply

24. The Full Court in Hickey & Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 78,386, reiterated the preferred approach to the exercise of discretion in property matters, pursuant to s 79:

    39.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. Firstly, 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. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.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. Thirdly, the Court should identify and assess the relevant matters referred to in ss.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. Fourthly, 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: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.

    40.Section 79, unlike s.78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. As a consequence of the first step in the preferred approach to the determination of the s.79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Tate v Tate (2000) FLC 93-047.

25. Thus the approach in this case involves a number of steps:

    (a)The identification of the property and its value;

    (b)An evaluation of the parties’ contributions having regards to
    ss 79(4)(a)(b) & (c); and

    (c)Consideration of any adjustment to that assessment having regard to the relevant matters in ss. 79(d),(e),(f) & (g) (“the other factors”) including the matters referred to in s.75(2); and

    (d)Consideration of whether the result is just and equitable.

IDENTIFICATION OF ASSETS AND LIABILITIES

1. There are various issues of identification of the property.

2. I find the property as:

   Assets

The home (agreed value)

         $1,100,000.00

Tax refund for financial year ended 30 June 2005 received post separation by husband (agreed value)

               $14,000.00

Tax refund for financial year ended 30 June 2005 received post separation by wife (agreed value)

                 $2,830.00

Furniture and contents and chattels in husband’s possession (agreed value)

                 $7,540.00

Furniture, contents, outdoor items, motor bikes, trailer, tools and caravan (agreed value)

               $23,215.00

L Company payment to husband on 3 August 2007

               $47,433.00

L Company payment to wife net of tax

               $50,000.00

Wife’s Pajero motor vehicle

$  8,000.00   

Agreed value of B Superannuation Fund

               $14,633.00

Agreed value of husband’s “H” class shares in L Company (20,000 shares)

(Note: to be transferred to the wife)

                 $2,400.00

Agreed value of wife’s “H” class shares in L Company (26,860 shares)

                 $3,223.00

Balance of Crop proceeds in the husband’s control and added back

               $15,910.00

Added back 2007 school fees paid by the husband out of the Crop funds

               $15,000.00

Tasplan Superannuation of wife

                 $2,512.00

Husband’s superannuation acquired post separation

                 $1,500.00

Total Assets

         $1,308,196.00

Liabilities

National Australia Bank home loan	$217,000.00
Capital gains tax P property	$11,846.00
Total Liabilities	$228,846.00
NET AMOUNT	$1,079,350.00

1. There is agreement as to the value of the home and the “H” class L Company shares. The valuation of the shares is on the basis of 0.12c per share. The husband transferred his 20,000 “H” class shares to the wife, by consent and the wife transferred her interest in the “I” class shares to the husband by consent, together with her interest in T Pty Ltd and its “I” class shares.

2. There was some evidence about a trust called “The [V] Trust”.  There was little information provided to me and each party treated this as having a “nil” value.  I have adopted their approach in that regard.

3. The wife was represented in these proceedings, the husband had earlier employed solicitors but unrepresented at the trial.  The husband had earlier incurred legal costs which he said were about $35,000.00.  The wife’s counsel and the husband expressed in submissions that there need to be no add-backs in respect of legal costs and there ought not be any claim for those liabilities. Both parties agreed that legal costs ought to be ignored.  I accepted their submissions in that regard.

4. The wife initially claimed some credit card debts as liabilities. She then withdrew those claims.  The husband claimed credit card debts as liabilities, but again he did not seek to have those debts set off against the pool of assets.  This debt apparently arose in circumstances where the husband had been paying rent over a period of time against his credit card. I accepted the parties’ submissions as to the credit card liabilities.

5. There is an issue about the furniture and how it should be dealt with but there is no issue as to the valuation of the furniture.  There is an issue about the Crop funds which are dealt with later in these reasons.

6. The wife’s unchallenged evidence was that her superannuation totalled $2,512.00 and that this was an accumulation fund. 

7. The parties had agreed that their own superannuation fund, B Superannuation Fund, had assets comprising a bank account of $12,370.00 and 18,859 “H” class shares in L Company.  By consent, the parties agreed to a splitting order of this superannuation fund to the husband.  It was not clear whether this was a complying fund or a non-complying fund.  If it was non-complying the non-compliance was as a consequence of the parties not lodging annual returns with regard to the fund.  The only documents held by the wife was the cheque books and she did not have a copy of the Trust Deed.  The submissions made by the parties were that the parties were trustees of this fund, and as such had been given procedural fairness. 

8. The husband gave evidence that his superannuation contributions amounted to $1,500.00 since separation. This evidence was not challenged and it is clear from his evidence that it was of an accumulation fund type. 

9. The superannuation funds, in the context of the assets in these proceedings, are such that they ought to be dealt with in a single list with other property as the total superannuation pool is less than $20,000.00.  In submissions, the husband said that he was concerned that he was being given an asset to which he could not gain access to until after his retirement.  In the context of an asset pool with over $1,000,000.00 it seems to me that the best approach in this particular case is to have the single list.  I have had regard to the husband’s submission that slightly in excess of  $16,000.00 of the assets being attributed to him is in superannuation funds and he has no access to those funds until he retires. 

10. An issue arises as to how to treat the amounts of about $47,433.00 and $90,000.00 the husband and wife (respectively) received on their dismissal from L Company.  From the husband’s evidence it is not in issue that this sum of about $47,433.00 relates to his holiday pay entitlements from his pre-separation employment with L Company[6].  As such I see no reason why this sum should not be included in the general pool of property.

    [6] Parargraph 88 of the husband’s affidavit 7 November 2007

11. The $47,433.00 paid to the husband by way of a bank cheque of $38,433.00 to him and the balance by way of transfer of ownership of the husband’s CRV at a valuation of $9,000.00.  Implicit in the submissions of the husband was the fact that the $9,000.00 represented the value of that motor vehicle.  He did not seek a reduction of its value nor did the wife seek to have that vehicle valued at a larger sum.  The wife’s evidence was that she had learnt, within the scope of her employment, that this sum was an “after tax” amount.  It is not clear on the evidence from the husband whether fringe benefits tax was paid on the transfer of the Honda CRV to him or not and whether income tax was paid on either the $47,433.00 or the $38,433.00.

12. The husband did not provide evidence as to whether tax was payable and if so what the amount would be.  On the state of the evidence before me I am unable to determine whether there is tax payable on the sum of $47,433.00 and if so what that tax would be.  The onus was on the husband to provide that evidence.  Accordingly, I will include that sum as an asset but I will not be “taking a guess” at what the tax may or may not be in respect of that sum.

13. The wife made a claim against L Company for unfair dismissal after her loss of employment in august 2006.  This was a claim that arose subsequent to separation and was different to the form of the payment to the husband (the husband’s payment being for holiday pay).  The wife was paid $90,000.00 and a Pajero motor vehicle was transferred to her.  The Pajero motor vehicle was transferred to her at a value of $8,000.00 to cover the “present value of the motor vehicle”[7].

    [7] Exhibit W17

14. The evidence of the wife was that this money was paid to her in the current financial year and in circumstances where she will earn from her employer a sum of about $80,000.00 over the twelve month period.  The wife’s evidence, which I accept, is that she will be paying tax on that settlement of about $40,000.00.  Accordingly, I find that the net amount payable to the wife in respect of the settlement of that unfair dismissal claim is $50,000.00

1. In addition the wife received the Pajero motor vehicle which was valued by L Company at $8,000.00.  It was clear during the evidence that this vehicle had not been included as part of the pool.  The wife requested inclusion of the motor vehicle as an asset, and that was done. There was argument as to the value of that vehicle.  The only evidence I had as to its value was that determined between the wife’s solicitors and the solicitors for L Company of $8,000.00.  The husband asserted that he thought the vehicle had a value of $20,000.00.  He adduced no evidence in that respect.  I asked the husband if he would be prepared to take the Pajero motor vehicle at a consideration of $20,000.00.  The wife consented to that course.  After careful reflection the husband said he did not wish to take the car at that valuation of $20,000.00.  As is often the case there are issues of value which are difficult to determine.  There was no evidence before the Court from either party apart from the evidence of the value contained in the settlement letter.  Doing the best I could with what I had, I determine the value the Pajero motor vehicle at $8,000.00.

2. At separation the bulk of the parties’ chattels were left at the home. These chattels had an agreed value of $23,215.00. The husband took or acquired some furniture and household effects which had an agreed value of $7,540.00.  There was no issue as to the value of these items until the commencement of the trial when the husband said he required a “pick a pile” approach in relation to this property.

3. It was clear that some of these chattels related to chattels used by the four children of the marriage and that this late approach took the wife by surprise.

4. In his affidavit of 19 June 2007 the husband sought some items of personal property but certainly not a “pick a pile” method. 

5. The parties separated in January 2006 and the wife has lived in the home with the children since that time.  The husband initially rented accommodation and then in July 2007 moved to Sydney.

6. The husband gave evidence that he set himself up in his new home, when he was in rental accommodation in Tasmania, so that each home would meet the needs of the children.

7. Having regard to these and the other circumstances set out in these reasons it seems to me not equitable on the part of the husband to require such an approach at this late stage.  Accordingly, I will be making no orders for division of such property except on the basis that the wife will retain such items of property as is in her possession including furniture, outdoor items, motor bikes, trailer, pools and caravan with a value of some $23,215.00 and the husband shall retain his furniture, contents and chattels with an agreed value of $7,540.00.

8. The wife sought to have set off against the assets a liability with regard to the capital gains tax payable in respect of the P property.  The wife’s evidence was that her accountant had calculated that that capital gains tax amounted to some $37,227.00.  However, the wife had lodged her 2006 income tax return and an assessment had issued in June 2007 showing tax payable of $11,846.00.  The wife’s counsel conceded that the wife’s income in that financial year was $125,773.00 and if the capital gain on the P property was not part of the income the wife would have received a tax refund of about $25,000.00 to $26,000.00.  Further, that such tax refund would have been an asset in the hands of the wife for the purpose of these proceedings.  Accordingly, the wife submitted that the only liability ought to be the sum of $11,846.00.  I accept the wife’s evidence that such amount was the tax payable.

9. The husband argued that the parties operated as a partnership in the farming business and the income tax returns for that partnership had not been lodged for the 2005 and 2006 financial years.  It was his evidence (and not challenged by the wife) that there would be tax losses to the husband and the wife and those losses would be applied equally against the income of the husband and of the wife. It was his submission that there should be no allowance for the $11,846.00 as it would be set off against the losses that the wife would achieve when the taxation returns were lodged.

10. The impact of adopting this submission would have been that the wife pays the whole of the capital gains tax in respect of the P property.  That would not have been just and equitable.  As such I will allow the $11,846.00 as a liability of the wife to be set off against the pool of assets.

11. Evidence of the husband was that the farming partnership had not lodged its income tax returns for 2005 and 2006 financial years.  The husband wanted a book-keeper to prepare the documents and then submit those to an accountant.  Initially in these proceedings, the husband had no objections to a firm of accountants, U Chartered Accountants, preparing the taxation returns as they had previously done so for the parties.  However, as that firm was continuing to act for the wife the husband no longer felt comfortable with them.  There was no challenge to the professional competence of U Chartered Accountants or their work in the past.

12. There is no issue that these returns need to be prepared and lodged.  I gave the parties an opportunity to try to resolve that issue during the course of the trial.  They were unable to do so and accordingly, I will be making orders for the lodgement of these income tax returns and payment of the accountant’s fees.  As these will be tax losses to both the husband and the wife which would be divided equally, I determine that it is just and equitable that they should equally pay for that work.  In the event that either one or other of the  parties choses not to pay the accountant it is open for the other party to do so and then to seek reimbursement from the non-paying party together with interest in accordance with the Rules under the Family Law Act 1975 (Cth). The only accountant nominated was U Chartered Accountants and they have prepared partnership returns for the business in the past, as such I will order that the parties instruct them.

13. The parties made submissions that the partnership had been terminated on or before 30 June 2006.  By consent the parties asked me to note that as an agreed fact.  I have done so in the orders.

14. The parties had agreed that the value of the home was $1,100,000.00.  During the course of submissions I discussed with both parties the type of order that the husband sought in the event that the wife did not pay the amount provided in the orders.  As a consequence of those discussions I have put in place default provisions in the event that the wife does not pay the husband the amount due under these orders.

15. Both parties received a tax refund for the financial year ended 30 June 2005 and both submitted that these sums ought to be included in the assets to be dealt with by the Court.  I have adopted these submissions.

16. The parties had an entitlement to money in relation to the sale of Crop produce in New South Wales.  The husband prepared a spread sheet endeavouring to show how that money was disbursed.  The husband gave no clear evidence as to the particular details within the spread sheet. However, he did say that from separation to the last payment, the husband had received net proceeds of about $56,900.00.  Of that sum $40,990.00 had been paid in school fees.  These were paid from a credit card account[8].  The difference between these sums was some $15,910.00.

    [8] Exhibit W10

17. The husband said that of those school fees paid, $15,000.00 related to fees for the 2007 school year paid either to S School or N School.

18. At the end of the first day of trial, the husband was given a copy of Exhibit ‘W10’ and asked to reconcile the difference between those sums as the husband asserted that the only amount remaining of the Crop funds was $7,100.00.

19. The following day the husband did not, in evidence, deal with that issue, although it was raised with him by the Court.  When the wife finished her case the husband was again told that if he wished to call further evidence in relation to this trial he would need to do so at that time.  The husband said he did not wish to do so.

20. The husband was informed that he could not adduce evidence during submissions.  There would be issues of procedural fairness which could not be addressed at that time.

21. During submissions the husband asserted that he paid out of the Crop funds about $5,000.00 by way of re-payment of a debt. This was not a debt which he had referred to in his affidavits or in his evidence.  It was not listed in his case outline, which he confirmed in evidence.  It was not a debt of which he had given notice to the wife.  I declined to accept his submissions in respect of that alleged debt as there was no evidence of it and he had ample opportunity to adduce such evidence. The husband had not provided discovery to the wife until the morning of the first day of trial and even then there were a number of occasions where documents were produced by the husband which ought to have been discovered earlier.

22. As such no satisfactory explanation has been given by the husband with regard to the difference between the sum of $15,910.00 which the wife asserts is left in the Crop funds and the sum of $7,100.00 which the husband asserts is left in Crop funds.  I am satisfied that the husband has control of the Crop Funds to the extent of $15,910.00 and I will include that sum in the pool of assets.

23. At the time of separation the children of the parties were attending private schools.  It is not an issue that during 2006 the wife wished to remove the children from the private schools as she did not have the income to meet those fees.

24. This must be seen in the circumstances where both the husband and wife were working with L Company up to shortly before the date of separation. In December 2005 the husband’s employment with L Company came to an end, when he resigned.  He did not take paid employment in any meaningful sense until late in 2006.  At that time he took employment in Tasmania, initially at $40,000.00 per annum and then later the salary increased to $50,000.00 per annum.  He left this paid employment in about June 2007.  The husband then moved to New South Wales, where he has not taken paid employment apart from his expression that he will be earning about $15,000.00 per year as a sports trainer and some hope that he has in respect of other businesses.

25. The wife was appointed Chief Executive Officer of L Company in early 2006.  The wife ceased to be Chief Executive Officer of L Company in April 2006 but continued her employment with the company as a manager.  On 15 August 2006 the wife’s employment with L Company was terminated.  Her income was significantly reduced.  In July 2007, after a take-over of the L Company the wife regained employment with that company as a Brand Manager on an income of about $91,000.00 per year (which sum included compulsory superannuation contributions).  The wife’s evidence was that she was unable to afford to continue to educate the children through private schools, notwithstanding her view, that she would have done so if the parties had the income to fund that expense.

26. In 2006 there was a dispute between the parties as to whether the children should remain at their respective private schools.  An agreement was reached and orders were made that the parties use the Crop funds to pay the school fees for the children but only for the 2006 school year.  This was implemented and the Crop Funds met the 2006 school fees, with a consequent reduction in the parties’ capital.

27. The husband asserts that the wife may have agreed to payment of school fees in 2007.  I do not accept his evidence in this regard.  Exhibit “W11” shows that in April 2007 the wife’s solicitors requested that the husband sign the enrolment forms for the private school fees on the basis that the husband had said he would pay private school fees for the children to attend S School and N School.  A further letter was sent to the husband on 24 April 2007 (this is also part of Exhibit “W11”).  The husband prevaricated in relation to this evidence in this regard and said that his view, now, was that he would pay all of the private school fees provided he received fifty per cent of the property settlement.  It was not in issue that the cost of private school fees, the present rate to complete the education of the four children would amount to almost $200,000.00.

28. I am satisfied that there was no agreement between the parties that the wife would contribute to private school fees in 2007 and further I find that the husband had unconditionally asserted he would pay private school fees in that year and that the wife had accepted that assurance and left the children at their respective private schools.

29. Notwithstanding these circumstances the husband paid out of the Crop funds private school fees for the 2007 school year totalling $15,000.00.  He did this in reckless indifference to the parties financial circumstances and in breach of their agreement that he alone pay these fees.  This must be seen in the light of the husband’s refusal to pay child support and refusal to acknowledge the significant change in the parties financial circumstances since separation.  Having regard to the principles applying in respect of add-backs I determine that the $15,000.00 ought to be added back and to be regarded as a capital sum in the hands of the husband.

30. In addition to paying private school fees from the Crop funds the husband incurred further liabilities for private school fees in 2007 being $15,810.00 with regard to S School and $4,001.00 in terms of N School.  In the circumstances of this case, the wife ought not to be penalised for the husband’s blind determination to leave the children at private schools notwithstanding the parlous income circumstances of the parties. The wife has had the full financial, emotional and physical responsibility of the children since July 2007 and is likely to continue to have that responsibility.  The husband’s involvement with the children has diminished over the almost two years of separation.  Between the parties the husband should be held to his agreement to be responsible for those school fees. I will make an order providing the wife with an indemnity from the husband in respect of that liability.

31. The amount outstanding under the mortgage to the National Australia Bank is $217,000.00.  The parties sold a property at P in May 2006 which was settled in June 2006.  After the proceeds of sale were set off against the mortgage to the National Australia Bank an amount of $205,000.00 was left outstanding.  That sum has increased over that period of about seventeen months to $217,000.00.

32. The evidence of the wife (which I accept) was that after the termination of her employment with L Company on 15 August 2006 she did not have the funds to meet the mortgage.  For a period of about six months these instalments were not met. This is to be seen in the context of the husband paying no child support at any time since separation.  The wife took employment with a number of businesses until she was re-employed by L Company in July 2007. 

33. As a consequence of the wife not making repayments for that period of about six months the net balance of the loan increased by about $12,000.00. The husband sought an add-back of that sum.  Having regard to all of the facts and circumstances in this case I do not propose to add back that sum.  In particular the wife had the sole financial responsibility of the children, apart from school fees.  The husband was earning $40,000.00 to $50,000.00 per year, from about November 2006 but did not provide financial support to the wife for the children.  To that end the husband relied upon a document entered into between the parties shortly after separation that the wife would meet the mortgage instalments.  This agreement does not bind the parties and should be seen in the content of the parties then financial circumstances.  In addition it appears that the agreement is based upon a hope that the parties would reconcile. The husband did not take account of the wife’s deteriorating financial circumstances particularly after August 2006.

34. In terms of the tax payable in respect of the capital gain on the P property I have dealt with that earlier in these reasons.

    CONTRIBUTIONS

35. At the commencement of cohabitation the wife says she had the following assets:

Business in Melbourne	$50,000.00
Motor vehicle	$10,000.00
Furniture & contents	$5,000.00
Total	$65,000.00

1. She said she had the following liabilities:

Loan from parents	$20,000.00
Motor vehicle loan	$6,000.00
Total	$26,000.00

1. The wife claimed that she had net assets of about $39,000.00.  Such a value of assets was based on the value of the sale of the business shortly after the parties married.

2. The wife says the husband had a motor vehicle with a value of approximately $5,000.00 and college fees outstanding of approximately $15,000.00.

3. The husband says he had savings of about $7,500.00, BHP shares of value of about $2,000.00, a car with a value of about $2,000.00, goods and chattels of minimal value.  This totals sum $11,500.00.  The husband denies that he had college fees outstanding and denies that fees were paid by the wife.  He seemed to prevaricate a little bit in this regard and he conceded that the wife may have paid some of the college fees. 

4. The husband said that the wife’s then business was in debt and he needed to lend money to the wife and that he supported the business by way of guarantees for overdraft and lease.  The husband said that when the business was sold the wife repaid her parents, paid to the husband $6,000.00, paid other business creditors of $12,000.00 but had about $10,000.00 remaining which was used for spending and as a cash deposit.  The husband agreed that $8,000.00 out of the sale of the business was used to reduce his loan for education fees.  It is therefore not an issue that at least $8,000.00 of the wife’s money was used to pay those fees.

5. The wife conceded some loans from the husband during that time and she said her recollection was somewhat vague after all the years had passed.

6. On the basis of the evidence before me I am satisfied that the husband had assets of less than $12,000.00 and owed college fees.

7. I am satisfied that the wife’s initial contribution was somewhat greater than that of the husband’s although this is somewhere of about twenty years ago.  It is not of significant weight in terms of contribution.

8. The parties purchased the home for $300,000.00 in about 1998/1999.  The wife says that a deposit of $30,000.00 was paid and that sum was provided by her family.  She said that the money was paid in a number of instalments, the first being a deposit, the second being the sum of $100,000.00 paid some months later.  There is no issue about the second and larger sum.  Of the $30,000.00 there is agreement that the sum of $10,000.00 was provided.  The issue is whether the additional sum of $20,000.00 was provided.  The wife’s memory is clear that it was $130,000.00.  The husband prepared a statement from bank records showing only $10,000.00 had been received.  

9. The wife’s father gave evidence of an advance of $130,000.00.  When cross-examined he said two cheques were issued, one for $10,000.00 and one for $100,000.00. Most of the evidence given by the wife’s father had been information gathered through the wife’s mother and as such was not entirely reliable. He did not produce records or bank statements or cheque butts showing the additional sum of $20,000.00.

10. On balance, I find that the wife’s family provided the sum of at least $110,000.00 towards the purchase of the home. This is not to say I do not believe the wife in terms of her evidence but on balance she has not established that fact to the civil standard.

11. The husband initially argued that the amount was a loan which was later given to the wife as an early inheritance.  In whichever case, this was a significant contribution to a primary asset of the parties. That asset, through whatever means, is now the principle asset which is the subject of these proceedings. I find that the $110,000.00 was applied to the purchase of the home.  The parties renovated the home in August, September and October 1999 after the parties had sold a property in Southern NSW and received $145,000.00. 

1. The husband asserts that he did not consent to the renovations and this was the wife’s undertaking without his support.  I treat this evidence as exaggerated or unreliable and I accept that the parties had the benefit of at least $110,000.00 by way of contributions from the wife’s family to acquire the home.  I give significant weight to that contribution.

2. Other than those contributions the parties have, in their various ways, made significant but generally equal contributions both with direct and non-direct financial and non financial contributions.  The parties have had the care of four children and neither submits that the other contributed less than fifty per cent towards the acquisition of the property up to the date of separation.  I do not intend to go through the issues of evidence between the parties with regard to the contribution between the date of cohabitation and the date of separation as, on the evidence, I am satisfied that other than the initial contributions and the contribution of $110,000.00 made by the wife’s family, the broader contributions are otherwise generally equal during the relationship.

3. Since separation the wife has had the primary care of the children.  This has been undertaken with some difficultly.  The husband has not met his child support obligations and there are some $5,533.00 arrears of child support at the time of the hearing.

4. The husband challenged a child support assessment and a determination was made by a Child Support Review Officer which was delivered on 16 May 2007[9].  The husband has not applied for a review of or sought to appeal that decision.  On 22 October 2007 the husband lodged a fresh application for a departure in respect of that particular child support assessment.  This seems to be based upon factors including the husband’s income of allegedly $5,000 per year from coaching and his false claim that he has the ‘shared care’ of the children at that time. He wrongly claims that the wife refuses to pay anything towards school uniforms and travel costs. Notwithstanding the parties’ agreement as to the value of the home at $1,100,000 he claims it has a value of $1,200,000.   He goes on to set out;

   “I want my CSA debt to “HER” removed”.

   [9] Exhibit W6

5. It is of value to note what had happened with child support in the context of contribution since separation and to be also considered in relation to the other factors further in these reasons.

6. In September 2006 the wife made an application for a child support assessment.  The husband was assessed to pay child support and the husband, in October or November 2006 lodged an application for child support assessment.  Assessments were made in favour of the wife and in favour of the husband and subsequently, after some review, a determination was made by a Child Support Review Officer in May 2007.

7. On 25 February 2007 the husband made it clear to the Child Support Agency that he did not regard their involvement in the lives of him and his family as being of any assistance at all.  He said at page 12[10]:

   21.I don’t want anything to do with the CSA: before" now " future.  Our kids have been raised well, they don’t want or need for anything “material”.  [The wife] and I are both doting parents so I suggest you tell us both to get off the tax payer gravy train and look after ourselves.

   [10] Exhibit W1

8. This was at a time when the wife had the primary responsibility for caring for the children and had lost her employment with L Company.

9. The husband gave evidence that at the time of separation he was still receiving an income from L Company.  He anticipated that income would continue until May 2006.  He entered into a rental arrangement in respect of accommodation and had a liability of $400.00 per week.  His income from L Company came to an end in January or February 2006.  The husband entirely blames the wife for this circumstance. The payment of the husband’s income was by L Company and I prefer the evidence of the wife that this income was terminated as a decision of the Board and not as her sole decision. The husband incurred significant debt by virtue of continuing to pay the rent.  He may have been forced to do this by virtue of the circumstances of the lease arrangement.

10. The husband obtained employment with a Development company in about October/November 2006 and remained in that employment until July 2007.  His salary commenced at about $40,000.00 per year and increased to $50,000.00 per year.  He gave up that employment and moved to Sydney.  He said it was not a rushed decision although it is clear that he only gave his children two days notice of his intention to move to Sydney[11].  The husband has otherwise occupied himself with unpaid employment or pursuing his interest in coaching athletes. He has a capacity to earn $40,000.00 to $50,000.00 but chooses not to exercise that earning capacity.

    [11] Exhibit W8

11. In his application for a change of assessment[12] the husband asserted to the Child Support Agency that he would only be earning $5,000.00 per year from coaching. In evidence the husband said that he anticipated earning $15,000.00 per year from that occupation and had some hope that this would be a growing income and gave evidence of hopes with regard to the Institute of Sport.  I find that the husband understated his income that he anticipated receiving from coaching to the Child Support Agency to facilitate his application to reduce his child support liabilities.

    [12] Exhibit W2

12. The wife has made greater contributions in a non-financial sense since separation, particularly since July 2007.  I have included the wife’s net payment of $50,000.00 plus her car of value of $8,000.00 in the pool of assets.  These are property acquired after separation and do not relate back to work done before separation (as was the case with the husband’s claim). 

13. As I have indicated in these reasons, the parties contributions, but for the wife’s post separation contributions (both financial and non financial) and the contribution of her parents of $110,000.00, are overall equal.  Having regard to the wife’s post separation contributions and to the contribution of at least $110,000.00 in 1998 for the purchase of the home, I am satisfied that the wife’s overall contribution was greater than that of the husband.  The wife seeks an adjustment of five per cent with regard to those particular contribution factors.  Having made an overall assessment of the facts regarding contribution and having regard to the findings I have made in respect of the facts in issue I determine that the contribution entitlement to the wife should be fifty five per cent and to the husband forty five per cent.

    OTHER FACTORS

14. Having regard to all of the evidence before me and the discussion in these reasons, I find that the wife has the primary care of the four children of the marriage who are aged 16, 14, 11 and 8.  She has the physical, emotional and financial responsibility for the care of these children.  The wife’s care of the children and this is likely to continue into the future without significant financial, emotional or physical assistance from the husband. The wife will continue in her role as a parent for the four children and as the primary source of financial support for them.

15. Only two of the children are currently spending time with the husband, and that time is of limited duration. 

16. The wife is working full time and is earning a good income. Her counsel submitted that her income and earning capacity are affected by her care and control of the four children.  There is no evidence of impact on her earning capacity. I have regard to that earning capacity being greater than that of the husband.  I give no weight to the wife’s submissions in regard to her alleged reduced earning capacity.

17. Both the parties are aged forty two and are in reasonable health.

18. Having regard to the discussion about child support earlier in these reasons, I am satisfied that the husband choses not earn income to the extent that he is able to earn income.  Further, the husband has not paid child support and on the evidence, to date is unlikely to pay child support, without some difficulties unless it relates to his desire for the children to continue in private schools at an annual present cost of about $30,000 per year. 

19. The wife was entitled to withdraw her support for private school education for the children, bearing in mind that the parties’ financial circumstances had reduced so significantly following the failure of their marriage and the termination of their respective employment with L Company. 

20. Having regard to all of the other factors, in particular those relating to the mother’s care of the four children, the youngest of whom is eight and in circumstances where the husband now lives in New South Wales, together with the child support difficulties faced by the wife and the husband’s refusal to comply with assessments, it seems to me that the adjustment sought by the wife, that is of fifteen per cent, is somewhat high in the circumstances of this particular case, however I determine that 12% to the wife is appropriate.

    CONSIDERATION AS JUST AND EQUITABLE

21. I have had regard to the contribution factors and the other factors and conclude that the net property should be adjusted so that the wife receives 67% per cent and the husband receives 33%.

22. This takes into account that the part of the husband’s property is the money he has spent on school fees this year and the superannuation of a sum just in excess of about $16,000.00 and that the husband will have a liability of about $19,000.00 outstanding for school fees for 2007.

23. The effect of these orders will mean that the home will be retained by the wife.  Thus, included in the adjustment should be an order that the wife retains the following property:

    Assets

The home	$1,100,000.00
Tax refund for financial year ended 30 June 2005 of the wife	$2,830.00
Furniture, contents, outdoor items, motorbike, trailer, tools and caravan	$23,215.00
L Company’s payment to the wife (net of tax)	$50,000.00
Pajero motor vehicle	$   8,000.00
Wife’s “H” class L Company shares (26,860)	$3,223.00
Wife’s “H” class L Company shares (20,000)	$2,400.00
Wife’s superannuation	$2,512.00
Total	$1,192,180.00

Liabilities

National Australia Bank mortgage	$217,000.00
Capital gains tax on the P property	$11,846.00
Total	$228,846.00
NET BALANCE	$963,334.00

1. The husband will retain the following assets:

Husband tax refund	$14,000.00
Husband’s superannuation	$1,500.00
B Superannuation Fund	$14,633.00
Add-back of money paid for private school fees 2007	$15,000.00
Crop funds	$15,910.00
Furniture, contents and chattels	$7,540.00
L Company’s payment to husband 3 August 2007	$47,433.00
Total	$116,016.00

1. Thirty three per cent of the total property pool is $356.185.00 of which the husband has $116,016.00 leaving a balance payable to him by the wife of $240,169.00. Overall the wife will receive $963,334.00 less $240,169.00 giving her a balance of $723,165.00 (including the home) and the husband will receive $356,185.00.

2. It is my view that such result is just and equitable.

I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate

Date:   22 November 2007