BAILEY and BELL

[2017] FCWA 86

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

CITATION: BAILEY and BELL [2017] FCWA 86

CORAM: DUNCANSON J

HEARD: 3 - 4 MAY 2017

DELIVERED : 3 JULY 2017

FILE NO/S: PTW 4454 of 2014

BETWEEN: MS BAILEY

Applicant

AND

MR BELL
Respondent

Catchwords:

PROPERTY - Where it is just and equitable to make a property settlement order - Where contributions were equal - Where the husband's disclosure was inadequate - Adjustment for s 75(2) factors in favour of the wife

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 79
Family Law Rules 2004 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Ms A Tait

Respondent: Self-Represented Litigant

Solicitors:

Applicant: Ball & Co.

Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Dickons v Dickons (2012) 50 Fam LR 244

K v K [2002] FamCA 1150

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Bailey], the wife and [Mr Bell], the husband are unable to agree about the division of their property. The parties separated in February 2013 after a relationship of about 20 years.

2The orders sought by the wife are that if the husband seeks to retain the former matrimonial home at [Country Town A], he should pay her a cash sum such that she retain 67.5% of the parties’ property overall. The parties would otherwise retain the assets and liabilities in their respective names.

3The orders sought by the husband are that the property of the parties be divided equally between them. He seeks to retain the Country Town A property and pay to the wife a sum reflecting the equal division.

THE PROCEEDINGS

4The wife commenced these proceedings in relation to financial matters when she filed her initiating application on 4 November 2015. She subsequently amended her application on 18 February 2016 and sought parenting orders.

5The husband filed responding documents in May 2016.

6The parties attended a conciliation conference on 6 October 2016. They were unable to reach agreement in relation to either financial or parenting issues and the matter was programmed to a Readiness Hearing on 7 February 2017.

7The wife complied with orders for filing trial documents. The husband did not.

8On 7 February 2017 it was ordered that the time within which the husband comply with the order for filing trial documents be extended on one further and final occasion by 35 days. It was ordered, that in the event the husband failed to comply with that order, subject to the discretion of the trial judge, the wife be granted leave to proceed on an undefended basis.

9The matter was listed for trial in the Bunbury circuit commencing 1 May 2017.

10The husband had not complied with the orders for filing trial documents. The wife sought to proceed on an undefended basis.

11The husband attended court. He explained he had recently obtained legal advice and wished to participate in the proceedings.

12I was of the view that the husband’s participation was necessary to enable me to make orders which are just and equitable.

13The husband made an oral application that a family report be obtained and consequently the trial, in relation to parenting issues, be adjourned.

14The wife was reluctant to adjourn the trial. She sought to have all issues determined at the earliest opportunity.

15For reasons discussed with the parties, I was satisfied that I would not be able to make orders which would be in the best interests of the children without a family report and further inquiry into their circumstances.

16The wife sought to proceed with the trial in relation to financial matters, notwithstanding that the living arrangements of the children would be a relevant matter to the division of the parties’ property.

17The parties subsequently agreed that the arrangements for the children as they currently stand, namely, the child [Child A] living with the wife and the child [Child B] living with the husband, would be the basis upon which the matter was determined. I was satisfied that both parties wished to proceed on this basis.

18The husband provided disclosure prior to commencement of the trial, although the wife was critical of the adequacy of that disclosure.

19The parties did not provide a joint asset and liability schedule, and prior to the commencement of evidence I endeavoured to ascertain the extent of the dispute between the parties in this respect.

20I explained the procedure for self-represented litigants to the husband.

21The court provided copies of the wife’s documents to the husband and he was given an opportunity to read and consider them and prepare his cross-examination.

BACKGROUND

22The wife was born [in] 1971. She is 46 years of age. The husband was born [in] 1972. He is 45 years of age.

23The wife is [an] [administration assistant]. The husband is a [plumber].

24The parties commenced a relationship in either 1992 as stated by the wife or in late 1993 as stated by the husband (nothing turns on the difference). They married [in] 1995. There are two children of the marriage, Child A born [in] 2001 and Child B born [in] 2005. Child A lives with the wife. Child B lives with the husband.

25The parties separated on 15 February 2013 and were divorced [in] 2014.

26The wife is in a de facto relationship with [Mr G]. She and Child A live in his home.

27The husband lives with Child B in the Country Town A property, which is the former matrimonial home.

THE PARTIES AND THE EVIDENCE

28The wife was represented by counsel and the husband was a self-represented litigant. The wife was cross-examined by the husband in some detail regarding his expenditure for joint purposes after separation and also her use of the business bank account. Some of the information put to the wife in cross-examination was new to her and in many instances she was reluctant to concede the expenditure had been made. The wife was slow to make concessions in this respect and although she was not dishonest, she was not particularly cooperative and forthcoming.

29The husband questioned the wife’s alleged expenditure of $300 per week on rent. This is an amount she commenced paying by way of rent to Mr G in March 2015. She entered into a de facto relationship with Mr G about a month later. The wife says she continues to pay rent to live in his home together with Child A. The rent of $300 per week appears to be high, given that in 2014 when the wife rented a property in [Country Town C], she paid weekly rent of $320 to occupy an entire home.

30Mr G was not called as a witness. He would have been able to corroborate the wife’s evidence about this and about funds she has borrowed from him, to which I refer below. He did not do so and there was no explanation for this. I infer Mr G’s evidence would not have assisted the wife.

31The husband was not necessarily an untruthful witness, but in many respects his evidence was unreliable. Much of the information provided by him was as he said “a guesstimate”, and was not supported by relevant documents which were within the husband’s possession or control. The husband did not provide any satisfactory explanation as to why documents were not provided in relation to important issues, such as loan applications, loan balances, credit card statements, values of assets and alleged debts.

32On several occasions the husband was questioned regarding the whereabouts of evidence in support of his assertions as to values and financial transactions. He frequently replied “it’s all in the bank statements”. Quite what was in the bank statements was not identified to me. Some bank statements were produced and tendered in evidence, but they were incomplete.

33During the course of the trial, the husband obtained documents which ought to have been provided at the beginning. Other documents which he ought to have obtained, he did not, saying he was not asked for them.

34The husband’s disclosure was inadequate.

35The Family Law Rules 2004 provide that each party to a case has as duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.

36In K v K [2002] FamCA 1150 the Full Court said at [51]:

Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour. This is the course the trial Judge adopted. It was a course clearly open to him and one that does not merit appellate interference.

37Having regard to the deficiencies in the husband’s disclosure, I am able to take a “robust view” as to the findings regarding his financial position.

38The husband’s failure to disclose does not necessarily mean I should reject all of his evidence, I will however treat it with caution and do the best I can with it.

SHORT FINANCIAL HISTORY

39At the time the parties commenced their relationship, neither had any assets of any significance. Both parties were in employment.

40In 1993 the parties purchased a block of land in [Country Town F], upon which they built a home.

41In 2000 the parties purchased the Country Town A property and built a home there. The Country Town F property was subsequently sold and the proceeds applied to the Country Town A property mortgage.

42The wife ceased full-time employment immediately after the children were born, but subsequently returned to paid employment.

43The wife was diagnosed with [a serious illness]. She ceased work while she underwent therapy. She subsequently returned to employment in 2012.

44The parties established the [family trust] which trades as [the family business], a business operated by the husband. The trustee is [the family company].

45In late 2012 the husband took up fly-in/fly-out employment working one week on and one week off. The wife’s treatment was costly.

46After the parties separated in February 2013 each lived in the Country Town A property on a week about basis and the children remained in the home.

47In November 2014 the parties reduced the mortgage repayments in respect of the Country Town A property to interest only.

48In 2014 the wife occupied a rental property at Country Town C in respect of which she paid rent. The husband remained in the Country Town A property and paid the interest on the mortgage.

49In March 2015 the wife moved in to the home of her partner, Mr G. She says, by agreement, she pays him $300 per week in rent.

50After separation the husband sold vehicles. The proceeds were applied to joint expenses, including in relation to the Country Town A property.

51Currently, Child A lives with the wife and does not spend time with the husband. They continue to live in the home of Mr G. The wife is employed as [an] administration assistant.

52The husband still operates the family business, although the business has ceased trading. The wife is no longer part of the business. The husband anticipates terminating the tenancy of his business premises in the next three months. He is currently a contractor to [Company M]. Child B lives with the husband and does not spend time with the wife.

THE LAW

53These proceedings are governed by s 79 of the Act. To determine this matter I shall:

•identify the existing legal and equitable interests of the parties in their property;

•ascertain whether it is just and equitable to make a property settlement order and, if so;

•identify and assess the contributions of the parties;

•consider ss 79(4)(d), (e), (f) and (g) of the Act which include the relevant matters in s 75(2) and determine the adjustment (if any) which should be made;

•make such orders as are just and equitable.

THE EXISTING PROPERTY INTERESTS OF THE PARTIES

54At the conclusion of the evidence certain items remained in dispute and they were as follows.

Vehicle A

55The husband says the value of [Vehicle A] is $5,500. The wife says the value of this vehicle is $6,000, being the amount attributed to its value in the husband’s financial statement filed 23 May 2016. Neither party provided a valuation of the vehicle.

56I propose to attribute a value of $5,750 to the vehicle which is the mid-point between the parties’ positions.

Family business

57The business has ceased trading. The husband estimates its value to be $3,000. The wife estimates its value to be $13,188.

58In his said financial statement, the husband attributed a value of $10,925 to the business as at the date of swearing the financial statement, which was 17 May 2016. He did this by deducting the value of the liabilities from that of the assets. Both parties adopted this methodology in calculating the value of the business for trial. In other words, what both parties assert to be the value of the business is the net value of its assets.

59The wife’s value of the business excludes the value of [Vehicle B] and [Vehicle C] which she treats separately.

60The wife’s value of $13,188 is arrived at as follows:

Bank Account	$7,188
Hoist	$500
Mower	$500
Debtors	$2,000
Tools in workshop	$3,000
TOTAL	$13,188

61The husband said the value of $3,000 is arrived at as follows:

Bank Account	$7,188
[Vehicle B]	$4,000
[Vehicle C]	$20,000
Tools and Equipment	Nil
Money owed to the business	$2,000
SUB TOTAL	$33,188

Less liabilities
ANZ loan for [Vehicle C]	$20,000
Credit card liability	$2,000
Tax liability	$1,800
GST liability	$1,500
Workshop closure costs	$3,000
SUB TOTAL	$28,300

62In fact, on the husband’s figures the value of the business would be $4,888.

63The values of the assets and liabilities of the business were in dispute. Apart from the business bank account, which was vouched, little else was agreed.

64Doing the best I can with the evidence my findings as to the assets and liabilities of the business are set out below.

65I propose to include as assets of the business Vehicle C and Vehicle B, rather than dealing with them separately. In doing so, I follow the way in which the business assets were set out in the husband’s financial statement filed 23 May 2016.

Vehicle C

66The husband purchased this vehicle for $34,916 in August 2015. He traded in a vehicle for $14,000. He borrowed $23,632 from the ANZ Bank.

67The husband asserts the value of Vehicle C is $20,000 and the outstanding loan is a similar amount. There was no evidence of the balance of the loan, nor of what repayments had been made. In terms of the ANZ agreement the monthly instalments are $492. If I assume the husband has made 12 monthly instalments since he swore his financial statement on 17 May 2016, when he said the outstanding liability was $20,000, it is reasonable to assume that the principal sum has been reduced by about $5,900. Doing the best I can therefore, I propose to include the liability associated with Vehicle C, being the ANZ loan in the sum of $14,100.

Vehicle B

68The husband said Vehicle B was a business asset. This is consistent with his sworn financial statement. The wife treated this asset separately. Although there was no documentary evidence supporting the husband’s position, I am prepared to accept the value of this item was $5,500 at the time the husband swore his financial statement. I have no reason to disbelieve his evidence that the engine has “blown up” and that it will cost $1,500 to repair. I will therefore include Vehicle B at a value of $4,000.

Tools and equipment

69In his financial statement the husband deposed to having tools and equipment worth $3,000. I do not accept that his tools and equipment are now worth nothing as he asserted relying on the family trust financial statements. I will include the figure of $3,000 for this item which includes the value of the hoist of $500. It does not include the value of the mower of $500 which was shown separately in the business accounts but which the husband says is not a business asset.

Business debtors

70The husband said the business is owed money. I shall include the husband’s “guesstimate” of $2,000.

Tax and GST liabilities

71I accept that there are income tax and GST liabilities. The husband’s “guesstimate” is that the tax liability is about $1,800 and the GST liability is about $1,500.

72Although it is not possible to distinguish whether the tax liability is of a business or a personal nature, I am prepared to accept the tax is payable. As I take it into account here, I will ensure that no other tax liability is taken into account.

Workshop closure costs

73The husband asserts that he will incur costs of about $3,000 in connection with the closure of the workshop. There was nothing to substantiate this assertion. I do not accept that this is a lump sum debt. This is an ongoing expense of the business. The rent is payable from the business income up until the point that the tenancy is terminated.

Business credit card

74The husband said the business has a credit card debt of $2,000. He provided a Bankwest Mastercard statement for the period from 24 March 2017 to 20 April 2017 with a closing balance of $1,984. He did not provide a complete set of statements. He was not therefore able to fully address the wife’s questions as to how much of this debt was for personal use and how much for business use. Initially, the husband asserted the card was used solely for business purposes, but upon close examination of the statement, it was apparent there had been some personal expenditure, for example, to travel agents and airlines. The husband conceded that these expenses were for his personal travel, but said the card was used to make those purchases and any personal expenditure was repaid. He was referred to a debt of $237 for liquor and beer stores, but assured the wife’s counsel they were business expenses.

75I accept the husband has a credit card which he uses for business purposes. On the statement with which I was provided, it was apparent that the card is used for business purposes, although there is some personal expenditure. I am inclined to accept the husband’s evidence that the personal expenditure on the card is repaid. His accounts are prepared by his accountant, to whom he provides the relevant information. The accounts make no reference to personal expenditure such as the cost of travel.

76I will include this liability in the sum of $1,984.

77I find the assets and liabilities of the business to be as follows:

Assets
[Vehicle B]	$4,000
[Vehicle C]	$20,000
Bankwest account	$7,188
Tools and equipment	$3,000
Mower	$500
Debtors	$2,000
TOTAL ASSETS	$36,688
Liabilities
ANZ loan for [Vehicle C]	$14,100
Tax liability	$1,800
GST liability	$1,500
Credit card debt	$1,984
TOTAL LIABILITIES	$19,384

78The value to be attributed to the business, being the net value of its assets, is $17,304.

79I find the property of the parties to be as set out in the schedule below.

ASSETS	Ownership	Value
[Country Town A property]	J	$550,000
[Vehicle D]	H	$500
[Vehicle A]	H	$5,750
[Yamaha] motor cycle	H	$500
[Family business]	H	$17,304
Woolworths shares	W	$2,440
[Vehicle E]	W	$3,000
Boat	H	$500
Household furniture	H	$3,000
Bank account	W	$363
Bank account	H	$1,571
Total Assets	$584,928
LIABILITIES
Home mortgage	J	$198,000
Total Liabilities	$198,000
TOTAL NET ASSETS	$386,928
SUPERANNUATION
Rest Industry Super	W	$33,000
Australian Super	H	$35,500
Total Superannuation	$68,500
TOTAL NET ASSETS AND SUPERANNUATION	$455,428

IS IT JUST AND EQUITABLE TO MAKE A PROPERTY SETTLEMENT ORDER

80The parties separated over four years ago and are divorced.

81The Country Town A property remains in the joint names of the parties, although it is occupied by the husband. The parties are jointly responsible for the mortgage in respect of the Country Town A property.

82Following the irretrievable breakdown of their marriage and in circumstances where there is no longer common use of their property, both parties seek to alter their property interests. The parties’ express or implicit assumptions regarding their property interests have been brought to an end with the ending of their relationship. In these circumstances I find it is just and equitable to make a property settlement order.

CONTRIBUTIONS

83At the commencement of cohabitation both parties were in employment.

84The husband completed his apprenticeship and obtained employment as a plumber. He commenced the [plumbing] business. He was also in paid employment on a fly-in/fly-out basis. The husband worked long hours.

85The wife worked as [an] administration assistant during the relationship, except for short periods following the births of the children. The wife was not employed for about 18 months when she underwent treatment for [the] [serious illness].

86The husband made the greater financial contributions. The wife was the primary carer for the children and homemaker. Both parties made non-financial contributions.

87Both parties worked hard in their respective spheres. The wife submitted the parties’ contributions to date of separation were equal. The husband said he wanted to be “fair”, but he considered his contributions were greater, perhaps 60%/40% in his favour.

88I accept the husband worked very hard. At a point during the parties’ relationship he worked fly-in/fly-out and also in the [plumbing] business when not away. He said at times he worked 100 hours a week. I am mindful however, that contributions are to be looked at over the whole of the parties’ relationship.

89After separation the parties shared the Country Town A property with the children remaining in the home and the parties living in it on a week about basis. In about 2014 the wife moved out of the house and obtained rental accommodation at a cost of $320 per week, for a period of about a year. The husband remains in the Country Town A property and by agreement between the parties pays interest only repayments on the home of about $189 per week. He also paid rates and insurances pertaining to the home. He has maintained the property and carried out repairs.

90In 2015 the wife moved into accommodation owned by Mr G to whom she says she pays rent of $600 per fortnight. The husband continued to occupy the Country Town A property.

91After separation the wife continued in employment, and for a period of about a year had access to the business bank account. I accept that her financial circumstances at that time were extremely difficult.

92The husband continued in employment. He sold some assets, but I also accept that sale proceeds were applied to the maintenance and preservation of the parties’ other assets, including expenses pertaining to the home.

93The wife questioned the husband’s sale of assets pointing out that if debts were paid from the sale of joint assets, then both parties have met those debts. The wife also pointed out that the parties refinanced the home loan shortly prior to separation and consolidated their debts. I accept the parties had a number of debts at the time of separation. Debts were paid by the husband from his income and also from the sale of joint assets. The evidence does not enable me to calculate the precise amounts involved and nor is it necessary for me to do so on an arithmetical basis.

Assessment of contributions

94The wife’s counsel assessed contributions as 52.5% in favour of the wife and 47.5% to the husband. Counsel said the differential of 5% arises by reason of the wife’s care of Child A, being her additional efforts and the cost to her of dealing with Child A’s needs.

95The husband disagreed. He assessed contributions as about 60% to him and 40% to the wife. He attributed the difference to his hard work during the relationship, and his maintenance and preservation of assets, and payment of debts post-separation.

96The Court must assess contributions holistically. The Full Court said in Dickons v Dickons (2012) 50 Fam LR 244 at [24]:

… However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

97I have considered the parties’ differing contributions in the particular circumstances of their relationship from the commencement of cohabitation to the date of trial. I accept the husband worked very hard during the relationship, including at a difficult time for the wife when she suffered ill health. I accept that the wife occupied rental accommodation for a year while the husband continued to occupy the family home. The wife has had the care of Child A and has attended to her special needs. The husband has had the care of Child B. The husband has continued to work hard and has met the outgoings for the Country Town A property.

98In my assessment, having regard to the parties’ differing contributions in this long relationship, which produced two children, I consider by reason of contribution the division should be an equal one.

99The effect of this finding as to contribution is that each party is entitled to receive property to a value of $227,714.

RELEVANT S 75(2) FACTORS

100I refer to the s 75(2) factors insofar as they are relevant.

101The wife is 46 years of age and is presently in good health. The husband is 45 years of age and is in good health.

102The wife is in employment as [an] administration assistant on a casual basis. She has a gross income of about $35,000 per annum.

103The husband’s employment is as set out at paragraph 52 above. The husband says the gross weekly income of the business varies depending on the number of hours worked. This can vary from a maximum of $2,500 per week to a minimum of $500 per week. The husband will continue to be a contractor for a period of time, but may become an employee of a company in due course and work for wages. The husband says and I accept that from his gross weekly income he has a number of business expenses to pay. He said he currently draws $880 per week by way of personal income from the business consistent with the amount he received during the marriage.

104The husband’s evidence in this respect is supported by the financial statements of the family trust for the year ended 30 June 2015 in respect of which the husband’s taxable income was $31,223. The business income was $82,145. It had expenses of $52,417 and the net income of the business in that year was $29,728.

105The husband did not provide his notice of assessment for the 2016 financial year and in this respect his disclosure was inadequate.

106I accept the wife’s earning capacity is limited to her present earnings and her qualifications enable her to work as [an] administration assistant.

107The husband has previously worked fly-in/fly-out and in that sense has demonstrated a significant earning capacity. However, he has the care of Child B which is a limitation on his earning capacity.

108The husband nevertheless has a greater earning capacity than the wife.

109Both parties have the care of a child. Child A is 15 years of age and living with the wife. She has some special needs. Child B is 12 years of age and living with the husband. The children do not see the parent with whom they are not living.

110As to the parties’ commitments, most are not out of the ordinary except for the wife’s rent payable to Mr G. The wife pays $600 per fortnight to him. Thereafter, she has little remaining funds available to meet other expenses including, fuel, food and phone. The wife says she also contributes $100 towards household bills. The wife said she has never asked for a reduction in the rent, although in the past Mr G has told her that she does not have to pay the rent if she is struggling financially.

111I accept that at the time the wife moved into Mr G’s house she was prepared to pay rent. The wife and Mr G became de facto partners a month later and the wife has continued to pay that rent. In my view, the amount she pays is high. In evidence she said she wanted to pay her way and keep her independence. This is a very heavy commitment for the wife which, it appears, she chooses to pay.

112The wife deposed to having borrowed funds from Mr G in the sum of $50,000. She did not seek to include this as a liability in the schedule of assets and liabilities. The wife deposed Mr G provided her with financial assistance including funds to pay her legal expenses. I was given no information as to her legal costs; there was no breakdown of this amount, and no way for me to ascertain the reasonableness or otherwise of it. No submissions were made about it and the evidence does not enable me to take this into account in any material way.

113The wife says the financial circumstances of her cohabitation with Mr G are as set out at paragraph 110 above.

114Both parties receive family tax benefit.

115The living arrangements of the children are as stated above. Neither party pays child support.

116The parties have the superannuation interests referred to above.

117The standard of living of both parties is modest. Both parties seek to have a reasonable standard of living.

118As to any other fact or circumstance which the justice and equity of the case requires me to take into account, I refer above to the husband’s inadequate disclosure.

Assessment of s 75(2) factors

119In my assessment having regard to the s 75(2) factors as a whole, I consider an adjustment in favour of the wife of 10% is warranted. 10% of the parties’ property is $45,543. The most significant factors warranting the adjustment are the husband’s non-disclosure and his greater earning capacity.

JUST AND EQUITABLE

120The outcome is that the wife will receive 60% and the husband will receive 40% of the parties’ property. There is a disparity of 20% which is $91,086. The total value of the parties’ property is $455,428.

121The wife’s entitlement of 60% is $273,257. The husband’s entitlement of 40% is $182,171.

122The wife retains the following:

ASSETS	Value
Woolworths shares	$2,440
[Vehicle E]	$3,000
Bank account	$363
Total Assets	$5,803
SUPERANNUATION
Rest Industry Super	$33,000
TOTAL NET ASSETS AND SUPERANNUATION	$38,803

123The husband retains the following:

ASSETS	Value
[Country Town A property]	$550,000
[Vehicle D]	$500
[Vehicle A]	$5,750
[Yamaha] motor cycle	$500
[Family business]	$17,304
Boat	$500
Household furniture	$3,000
Bank account	$1,571
Total Assets	$579,125
LIABILITIES
Home mortgage	$198,000
TOTAL NET ASSETS	$381,125

SUPERANNUATION
Australian Super	$35,500
TOTAL NET ASSETS AND SUPERANNUATION	$416,625

124If each party retains the property as set out above the husband has property of $416,625 and the wife has property of $38,803.

125To achieve the percentage division ordered, the husband will have to pay the wife the sum of $234,454. Upon doing so, to retain the home the husband will have to refinance the home loan. If he is unable to refinance the home loan and pay the sum of $234,454 to the wife, the Country Town A property will have to be sold. In that event the actual amount to be received by each party will be that which gives the effect to a percentage division which I have determined is just and equitable. The amounts will be calculated by reference to the schedule above to include the actual sale price of the Country Town A property, the actual amount required to repay the mortgage, and the usual adjustments and sale costs.

126The wife does not own a home but she lives in Mr G’s home with Child A. She will receive a significant lump sum payment.

127The parties’ financial circumstances are relatively modest. The outcome gives the opportunity to the husband of retaining the home as he wishes to do. The wife will receive a cash sum.

128In the context of a long marriage producing two children where both parties worked hard, I am satisfied the orders I propose to make are just and equitable.

THE PROPOSED ORDERS

129Subject to hearing from Counsel and the husband, the orders I propose to make are as follows:

1Within 60 days of the date of these orders the husband, pay to the wife the sum of $234,454.

2Contemporaneously with the payment referred to in order 1 of these orders:

(a) the wife transfer to the husband the whole of her right title and interest in the property at [the] [Country Town A property]; and

(b) the husband discharge the mortgage to Commonwealth Bank of Australia and refinance the loan into his sole name.

3In the event the husband fails to pay the said sum of $234,454 to the wife as provided for in order 1 above, then the [Country Town A] property forthwith be placed on the market for sale and there be liberty to apply in relation to the conditions of sale.

4Upon settlement of the sale of the [Country Town A] property, the parties do all acts and things necessary to cause the proceeds of sale to be applied as follows:

(a) in payment of all usual and necessary costs of sale and settlement of sale, including agents fees and commissions;

(b) in payment of any rates and taxes outstanding;

(c) in discharge of the mortgage to the Commonwealth Bank;

(d) the balance remaining be divided between the parties so as to effect an overall division of the property of the parties as to 60% to the wife and 40% to the husband, taking into account the property to be retained by each of them as provided for in paragraphs 122 and 123 of the reasons for judgment, save and except:

(i)the value of the [Country Town A] property which shall be the actual sale price less actual selling costs and actual adjustments on sale; and

(ii)the actual sum required to discharge the mortgage to Commonwealth Bank.

5Pending the transfer or sale of the [Country Town A] property, the husband be responsible for payment of and pay the mortgage repayments and rates and taxes pertaining to the property.

6Any right title or interest the husband may have in the following vest in the wife absolutely:

(a) bank accounts in the wife’s name;

(b) the [Vehicle E] motor vehicle;

(c) the Woolworth’s shares in the name of the wife; and

(d) the wife’s superannuation with Rest Industry Super.

7Any right title or interest the wife may have in the following vest in the husband absolutely:

(a) bank accounts in the name of the husband;

(b) the [Vehicle D] motor vehicle, [Vehicle A] and [Yamaha] motor cycle;

(c) the [family business];

(d) the boat;

(e) household furniture in the possession of the husband; and

(f) the husband’s superannuation with Australian Super.

8Each party be solely responsible for any and all liabilities in the name of each of them respectively and indemnify the other and keep that party indemnified in relation to such liabilities.

9The parties do all acts and things and sign all documents necessary to give effect to the orders made here.

10The parties have liberty to apply with respect to the implementation of these orders.

11The application and response insofar as they relate to financial matters be otherwise dismissed.

12In relation to material tendered as an exhibit into evidence in these financial proceedings:

(a) all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;

(b) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

13In the event of an appeal being lodged prior to the expiration period of 42 days, order 12 above does not apply.

I certify that the preceding [129] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate