Bedson and Bedson

[2010] FamCA 622

FAMILY COURT OF AUSTRALIA

BEDSON & BEDSON [2010] FamCA 622

FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth) ss 75(2), 79

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693

APPLICANT: Mr Bedson

RESPONDENT: Ms Bedson

FILE NUMBER: SYC 5189 of 2009

DATE DELIVERED: 9 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 28 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Hansons Lawyers

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Maguire & McInerney Lawyers

Orders

1. That the wife forthwith do all acts and things reasonably necessary to transfer to the husband all her right title and interest in the following properties:

   1.1.W property, Lot … DP …

   1.2.M property

2. Subject to the transfer of her interest pursuant to the above order the husband refinance the parties’ loans numbers …02 and …98 with Perpetual Trustees (and secured by way of mortgages over the said properties) so as to release the wife from any liability thereunder.

3. That the husband forthwith do all acts and things reasonably necessary to transfer to the wife all his interest in the property at N, Lot …/DP ….

4. That subject to the transfer of his interest pursuant to the above order the wife refinance the parties’ loan number …99 with Perpetual Trustees (and secured by way of mortgage over the said property) so as to release the husband from any liability thereunder.

5. That the parties do all acts and things and sign all documents necessary so as to effect the sale of the properties at F, Lot …/DP… and E at the best price reasonably obtainable in the following manner:

   5.1.To list the properties for sale by private treaty with such agent as the parties may agree to appoint and the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due.

   5.2.The sale price of the properties to be listed be mutually agreed upon by the parties or in the absence of an agreement reached within 14 days of the date of these orders be the price nominated as the fair market value by the valuers H Valuers in respect of the property at F and by valuers T Valuers in respect of the property at E, the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when they fall due.

   5.3.the parties each execute a Contract for Sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or in the absence of any agreement at the price nominated by the valuer pursuant to paragraph 5.2 of these orders.

   5.4.That the parties shall instruct such solicitor or conveyancer as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within 14 days of the date of these orders, shall instruct such solicitor or conveyancer as may be appointed by the President for the time being of the Law Society of New South Wales the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due.

6. On settlement of the sale of the said properties the proceeds of sale be paid in the following manner and priority:

   6.1.All costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees, and other expenses;

   6.2.The amounts required to discharge the mortgages;

   6.3.The amounts required to pay all outstanding municipal and water rates with respect to the properties;

   6.4.The capital gains tax liability to which each of the parties is assessed in respect to the sale of the properties;

   6.5.Of the balance remaining of the proceeds of sale of the property at E the husband shall be paid 23.918 percent and the wife will be paid the balance;

   6.6.The balance of the proceeds of sale of the property at F shall be paid to the wife.

7. That the forthwith husband sign all documents necessary to transfer to the wife the balance of the joint account with the IMB Account Number …146 Everyday A/C being $16,551.96.

8. That both parties sign all documents to revoke any authority or direction that payments of mortgage forthwith cease to be deducted from the joint account with the IMB (account number …146) in respect of the properties at:

   8.1.W;

   8.2.M;

   8.3.F;

   8.4.E;

   8.5.N.

9. That the wife do all things reasonably necessary to permit the husband to take possession of and retain the personal property and household effects particularised in schedule 1 which became Exhibit 13 in the evidence in the proceedings.

10. That the husband forthwith do all necessary things and sign all necessary documents to transfer to the wife her expense his interest in the 2005 Holden Astra Sedan registration number …

11. That the wife forthwith do all necessary things and sign all necessary documents to transfer to the husband at his expense her interest in the 1996 Ford Explorer Wagon registration number ….

12. That the wife retain the sideboards acquired shortly prior to separation and be responsible to pay as and when they fall due all payments in respect of the GE Credit line facility obtained by the husband to acquire such sideboards and she shall indemnify the husband against all liability under the facility.

13. That in default of the parties or either of them doing all things and executing all such documents as are necessary to give effect to these orders and upon the Registrar being satisfied of such failure or neglect or default by either party by way of affidavit evidence only the Registrar is appointed pursuant to s 106A of the Family Law Act 1975 to execute all such documents in the name of the party in default and to do all such things necessary to give validity and operation to the said document.

14. That subject to compliance by the parties with their obligations pursuant to the above orders each of the parties otherwise retain free from any claim by the other all property and assets in that party’s respective possession or control as at the date of these orders.

15. That all exhibits be released.

16. That both parties have leave to relist these proceedings on 7 days notice in relation to the implementation of these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5189 of 2009

MR BEDSON

Applicant

And

MS BEDSON

Respondent

REASONS FOR JUDGMENT

Introduction and Applications

1. These are property proceedings.  The parties are Mr Bedson and Ms Bedson.  For convenience I shall refer to them as “the husband” and “the wife” respectively.

2. The husband seeks orders to the following effect:

   ·That the wife forthwith transfer to him her interest in the properties at W and M;

   ·That the husband refinance the parties’ loans number …02 and …98 with Perpetual Trustees secured over the above properties so as to release the wife from any liability therefor;

   ·That the husband forthwith transfer to the wife his interest in the property at N;

   ·That the wife refinance the parties’ loan number …99 with Perpetual Trustees secured over the property so as to release the husband from any liability therefor;

   ·That both parties cause the sale of the properties at R and E at the best price reasonably obtainable and that the proceeds of sale be paid as follows:

   oIn payment of agent’s commission, sale costs and legal costs on sale;

   oTo discharge  the mortgages;

   oIn payment of any outstanding council and water rates;

   oIn payment of capital gains tax liabilities; and

   oThe balance to be paid to the parties in equal shares.

   ·That the husband transfer the balance of the IMB joint account being $16 551.96 to the wife;

   ·That the wife permit the husband to take possession of and retain certain particularised personal property and household effects;

   ·That the wife retain the side boards acquired shortly prior to separation

   ·That the wife be responsible for and pay all payments in respect of the GEC Credit Line facility obtained by the husband and used to acquire the side boards and indemnify the husband in relation thereto;

   ·That the husband transfer to the wife his interest in the 2005 Holden Astra motor vehicle;

   ·That the wife transfer to the husband at his expense her interest in the 1996 Ford Explorer motor vehicle;

   ·An enforcement order; and

   ·That there be a superannuation splitting order in respect of the husband’s superannuation so that a base amount of $5388 be allocated to the wife out of his interest in B Superannuation Fund;

3. On the other hand, the wife is seeking orders the effect of which would be to divide the non-superannuation assets into the proportions of 60 percent to the wife and 40 percent to the husband. 

4. To achieve this the wife seeks orders to the effect that she be declared the owner of the following property:

   ·Property at N;

   ·Holden Astra motor vehicle;

   ·Savings accounts with Commonwealth Bank;

   ·Household furnishings and effects in her possession;

   ·That the wife assume responsibility for paying the RESI mortgage in respect of the N property;

   ·That the net proceeds of sale of the properties at F and E be paid to the parties 60 percent to the wife and 40 percent to the husband;

   ·That the wife transfer to the husband her interest in the properties at W and M and that the husband assume sole responsibility for the mortgages thereon;

   ·That the husband be declared the sole owner of the Ford Explorer motor vehicle, the ski boat and household furnishings and items of personalty;

   ·That otherwise the parties each be responsible for payment of all liabilities in their names respectively;

   ·That the husband pay the wife an amount which would achieve an overall division of the non-superannuation assets in the proportions of 60 percent to her and 40 percent to the husband.

5. The wife also seeks a superannuation splitting order in relation to the husband’s superannuation so that it would be split equally between them, the amount of the split being $51 564.54 as a base amount.

Background

1. The husband was born in 1965 and he is therefore 44 years of age.  The wife was born in 1966 and she is therefore 43 years of age.  The parties commenced cohabiting in late 2001 and they married in 2003.  They separated in April 2009.

2. There are no children of the marriage.  But the wife has a son from her previous marriage namely, D born in May 1996.  D lived with the parties during their cohabitation and marriage.  The husband has two children namely R and S.  R lived with the parties for approximately the first twelve months of their cohabitation.  S initially spent time living with the parties on most weekends.  She subsequently lived with the parties for almost 5 years.

3. At the time of marriage the husband’s property consisted of:

   ·His home at F subject to a mortgage;

   ·Shares obtained through his employment with B Company;

   ·A Honda Legend motor vehicle and a Ford utility motor vehicle, some furniture and effects; and

   ·A superannuation entitlement.

4. The husband was working as a tradesman with B Company.

5. At this time the wife’s property consisted of the following:

   ·Her home at N subject to a mortgage; and

   ·A Nissan motor vehicle subject to a liability.

6. The wife was working at a motel.  The husband moved into the wife’s home at N and rented out his home.

7. During the period of their cohabitation prior to marriage, the parties decided that they would borrow $352 000 secured over the titles to both of their homes.  They used part of these funds to pay out their existing loans.  The balance was used to purchase shares with a cost of $40 000 in the wife’s name and a Ford Explorer motor vehicle in the wife’s name.  The wife traded in her Nissan vehicle.  They went on a holiday to the Sunshine Coast in Queensland.

8. Shortly after their marriage the parties purchased an investment property at E for $290 000.  They borrowed $232 000 on mortgage.  The balance was funded from the sale of the shares they had recently purchased ($37 000), money from a line of credit in the husband’s name and some savings.

9. They then went to Queensland for a couple of days and undertook some modest renovation, maintenance and painting work on this property as well as some landscaping.  The wife’s cousins also gave some assistance.  The property was then rented out and the rental income was applied to servicing the borrowings.  The husband later returned to the property and undertook further renovation work on it for approximately five days.

10. In early 2004 the parties purchased another investment property this being at M also for $290 000.  The entirety of the funds required were borrowed using the security of both investment properties.

11. Again work was undertaken by the parties over a period of 10 days to two weeks.  This involved some repairs, maintenance and painting.  New blinds and a clothesline were installed.  The property was then rented out.  Income produced was used to service the borrowings.

12. Also in 2004 the parties purchased a home at O for $355 000.  This purchase was funded by the parties borrowing $70 000 on the security of the N property and $284 000 secured against O property.  This property was rented out for 6 months then the parties moved in.  Repairs and improvements were also undertaken by the parties to this property.

13. At this time, upon the parties moving out of the N property, they rented the N property to the wife’s parents at a reduced rental.  A separate granny flat at the property was also rented out to a different tenant.

14. In approximately 2007 the parties purchased the property at W for $580 000.  This purchase was funded by a loan secured over this property of $464 000 and a loan secured over other properties owned by the parties.  Considerable renovation work was then undertaken by the parties to this property.  The parties then moved into this property using it as their home and they rented out the O property.

15. At separation the husband left the home and commenced living with his mother.  He continues to live with his mother.  The wife has remained living at the W property.  She has paid the mortgage repayments.

16. As indicated above, the parties separated in April 2009.  They sold their O property, the sale being settled in June 2009.  After discharging the mortgage and paying the costs of the sale the proceeds were approximately $96 548.  These funds were held in the trust account of Hennikers, Solicitors.  The parties were unable to agree about how to deal with these funds.  Following a hearing in November 2009 orders were made to the effect that from the Hennikers Trust account funds the wife be paid $30 000 and the husband be paid $15 000, the characterisation of such payments to be considered by the trial judge in the substantive proceedings.  Other orders were also made including orders to achieve payment of all rental received to the joint account and to achieve an orderly sale of the F property.

The Applicable Law

1. Sub-section 79(1) of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate.

2. Sub-section 79(2) provides that the Court shall not make an order under the above sub-section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. There is a long-standing preferred approach to the determination of an application brought pursuant to the provisions of s 79.  This involves four inter-related steps.  Firstly, the Court should make findings about 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), 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. 

4. This approach has been confirmed in numerous cases in this Court including for example Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355; Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 and Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693.

Property available for division

1. The property available for division between the parties consists of the following:-

$
1.        W property	610,000
2.         E property	499,000
3.         M property	360,000
4.         F property	360,000
5.         N property	345,000
6.         IMB Joint controlled monies account	16,551
7.         Husband’s Lysaght Credit Union savings	32
8.         Husband’s B Company shares	2,593
9.         Husband’s Ford explorer motor vehicle	4,000
10.      Husband’s ski boat	15,000
11.      Husband’s advance from Hennikers trust account (add back)	15,000
12.      Husband’s legal fees paid (add back)	24,000
13.      Wife’s Holden Astra motor vehicle	10,000
14.      Wife’s advance from Hennikers trust account (add back)	30,000
_____________
$2,291,176

1. The liabilities are as follows:-

$
1.         Mortgage on W property	466,000
2.         Mortgage on E property	292,033
3.         Mortgage on M property	233,326
4.         Mortgage on F property	272,759
5.         Mortgage on N property	281,739
6.         Outstanding rates, W property	353
_____________
$1,546,210
Surplus	$744,966

1. The parties also have the following superannuation:-

$
1.        Husband’s B Super	140,327
2.        Wife’s MLC	39,591
__________
$179,918

Contributions

1. As indicated above, each of the parties owned a home subject to a mortgage at the time they commenced their cohabitation.  It would appear that the husband probably owned more equity in his home at the time than did the wife.  But whatever the difference was at the time, it really has no significance all these years later.  This is because of all the relevant contributions which the parties have made since that time.

2. The major difference between the parties in relation to their contributions lies in their submissions about how the Court should take account of the husband’s ownership of shares which had been issued to him through his employment at B Company at the time the parties commenced their cohabitation in late 2001.

3. It is clear that at the time the parties commenced cohabiting the husband owned 9293 shares in B Company as well as 827 options under the employee share plan.  Some of the shares were fully paid and some were subject to a loan under the plan.  The husband also acquired further shares.  But in any event, by the end of July 2002, all the shares had been fully paid for through the payment of dividends under the B Company employee share plan.

1. The husband sold parcels of these shares from mid-2004 until early 2006.  Much of the net proceeds were used to reduce the outstanding loan on the N property.  But some of the net sale proceeds of the shares were paid towards the costs of acquisition of the properties at W and W.

2. It is submitted on behalf of the husband that the Court should accept that the total net amount of such share sale proceeds after payment of capital gains tax was approximately $182 000 and that the husband should be regarded as having made the entirety of the contribution to this.

3. On the other hand it was submitted on behalf of the wife that for the Court to take such an approach would simply deliver a windfall to the husband.  There were two bases to this submission.  Firstly, it was submitted that although the shares were acquired by mid-2002 the wife has made a most important contribution to their conservation.  This was on the basis that by permitting use of her home as security for the parties’ borrowings which enabled them to invest in property, this had the effect that the shares were able to be preserved because otherwise the shares would have had to have been sold to provide funds to invest in property.  The second basis to this submission was that at approximately the time of cohabitation the shares had a gross value of approximately $90 000 and there was still approximately $53 200 owing under the share plan so that the shares would have had a net value of approximately $36 000.

4. In relation to the first part of this submission, while with respect, it is very creative, I am unpersuaded that there is any substance in the submission, at least so far as it goes to conservation.  In relation to the second part I must say I have grave difficulty accepting the accuracy of the suggested values. 

5. Having said this, I accept the submission that simply to bring the amount of approximately $182 000 into consideration as a direct contribution wholly by the husband would be inappropriate.  I accept that the wife has made some contribution, albeit quite modest, to the acquisition of the shares, and in any event, by way of her contributions to the welfare of the parties.

6. The other main issue about contributions concerns the renovations and maintenance work undertaken in relation to the various properties.  The husband’s case was to the effect that he personally undertook most of this work and that the wife gave him really only token assistance with it.  It was submitted that bearing his contributions from the shares and this work in mind, there should be a finding to the effect that his contributions overall to the non-superannuation property have been 70 percent and the wife’s 30 percent.

7. I must say I am unable to accept this submission.  In relation to the renovation work, I am satisfied that the wife assisted with the work.  Having said this, I am also satisfied that the husband undertook the major part of this work.  But the husband’s greater contributions in this regard have to be considered in the context of all other relevant contributions.

8. I am satisfied that the wife made a greater contribution to the welfare of the parties, undertaking a greater share of the domestic work than the husband.  She had more time to do this than the husband.  His primary responsibilities were his paid work and the renovation and maintenance work.

9. Weighing all relevant contributions, in my view it is clear that the husband’s contributions overall have been greater than those of the wife.

10. This is because of his shareholding and because of the renovation and maintenance work.

11. In my view the proper assessment of the parties’ contributions overall in relation to the non-superannuation assets are 58 percent by the husband and 42 percent by the wife.

12. So far as the superannuation is concerned, the husband has a superannuation benefit with B Super with an agreed value of $140 327.  On the other hand the wife has a superannuation benefit with MLC with an agreed value of $39 591.  This is a total of $179 918 as indicated above.

13. The husband commenced his membership of the relevant superannuation scheme at the time he commenced his employment. 

14. He has been a member of the superannuation scheme for more than 28 years.  The wife’s superannuation interest has accumulated during the parties’ cohabitation and marriage.

15. It was submitted on behalf of the husband that the contributions by the parties in relation to their superannuation overall have been 75 percent by the husband and 25 percent by the wife.  I accept this submission for the reason that such a large part of the husband’s contributions to his own superannuation have been made prior to or since the period of the parties’ cohabitation and marriage.

s 75(2) matters

1. The husband is 44 years of age and he is in good health.  As indicated above he has been working in his present position since he qualified as a tradesman following his apprenticeship.  On all current indicators he would be expected to be able to continue working in this capacity for the foreseeable future.

2. The husband’s current income from his employment is $1980 per week.  He is a member of the B Superannuation Scheme.

3. The wife is also 44 years of age and she is in good health. She is working as a full-time secretary.  Her income from this employment is approximately $812 per week.  There is no suggestion that the wife would not be able to continue in this, or similar employment, for the foreseeable future.

4. The wife has primary responsibility to care for her son D. But his father regularly paid child support for this child during the period of the parties’ cohabitation and marriage. There is no reason to think that this would not continue.

5. The husband has some credit card liabilities of approximately $18 000.

6. The parties agreed that it would not be appropriate for there to be any set-off of property pursuant to s 75(2)(o) for what each party did for the other party’s child or children.  This was for the reason that each party was a committed and effective parent towards the child or children of the other.  Further, as indicated above, the wife’s son D lived with the parties during the entirety of the parties cohabitation and marriage and the husband’s children lived for significant periods with the parties.  So one would have thought that the efforts each party made to the welfare of the children of the other have been approximately equal.

7. The husband has some long service leave owing to him.  It was submitted on behalf of the wife that this should be brought into consideration in an amount calculated on the basis of the husband’s remuneration for the amount of long service leave available.  I do not propose to do so but I take it into account generally pursuant to s 75(2)(o) of the Act.

8. In my view a consideration of the relevant matters pursuant to s 75(2) of the Act require a modest set-off of property in favour of the wife.  The wife’s son D is a couple of years younger than the husband’s daughter S.  All other things being equal, the wife could be expected to have to support D for a longer period than the husband would have to support S.  Also, the husband has his long service leave credits as I have said.  But these are quite modest factors.  The most significant matter is the fact that the husband can be expected to continue to earn income at a much higher rate than the wife.  But the disparity between the property and superannuation the parties will enjoy based on the finding about contributions is also significant.

9. In all these circumstances, in my view, to achieve a just and equitable order the Court will be required to make a 5 percent adjustment in favour of the wife of the property and superannuation.

Conclusion

1. The husband is to have 53 percent of the assets other than the superannuation.  This is property with a value of $394 832 (53 percent of $744 966 = $394 832).  The husband is also to have 70 percent of the superannuation which is $125 943 (70 percent of $179 918 = $125 943).  This is property and superannuation with a total value of $520 775 ($394 832 + $125 943 = $520 775). 

2. The husband has the following property and superannuation:

$
1.        Credit Union savings	32
2.        B Company shares	2,593
3.        Ford explorer	4,000
4.        Ski boat	15,000
5.        Advance from Hennikers trust account	15,000
6.        Legal fees paid	24,000
7.        B Super	140,327
_____________
$200,952

1. To achieve property and superannuation with a value of $520 775 the husband will require further property with a value of $319 823 ($520 775 - $200 952 = $319 823).

2. The husband wishes to retain the properties at W and 8M.  The equity in these properties is $144 000 and $126 674 respectively.  This would provide the husband with property with a value of $270 674 ($144 000 + $126 674 = $270 674).  To achieve property with a value of $319 823 the husband would require further property with a value of $49 149 ($319 823 - $270 674 = $49 149).  There are outstanding rates in respect of the W property of $353.  So the husband will also require this amount which would be a total of $49 502 (49 149 + $353 = $49 502).

3. This can be paid to him from the net proceeds of sale of E property.  This property has an agreed value of $499 000 and a mortgage of $292 033.  So the equity is $206 967.  If the husband is paid $49 502 from this, the balance of $157 465 will be paid to the wife ($206 967 - $49 502 = $157 465).

4. On the other hand the wife is to have 47 percent of the property other than superannuation.  This is property with a value of $350 134 (47 percent of $744 966).  The wife is also to have the equivalent of 30 percent of the superannuation which is $53 975 (30 percent of $179 918 = $53 975).  Accordingly, the wife is to have property and superannuation with a total value of $404 109 ($350 134 + $53 975 = $404 109).

5. The wife will have the following:

$
1.        IMB joint controlled monies account	16,551
2.        Holden Astra motor vehicle	10,000
3.        Advance from Hennikers trust account (add back)	30,000
4.        MLC Superannuation	39,591
_____________
$96,142

1. For the wife to achieve property and superannuation with a value of $404 109 she will require additional property with a value of $307 967 ($404 109 - $96 142 = $307 967).

2. The wife wishes to retain her property at N.  This has an agreed value of $345 000.  The mortgage thereon is $281 739 so the equity therein is $63 261 ($345 000 - $281 739 = $63 261).

3. If the wife is to have the property and superannuation referred to above which, as indicated, has a value of $96 142 and the equity in her property at N, this would all have a value of $159 403 ($96 142 + $63 261 = $159 403).  To achieve property and superannuation with a value of $404 109 the wife would require additional property with a value of $244 706 ($404 109 - $159 403 = $244 706).  The balance of the equity in the E property would be $157 465 as I have said.  Added to the wife’s property, superannuation and N property equity this would be a total of $316 868 ($159 403 + $157 465 = $316 868).  The wife would still need additional property with a value of $87 241 ($404 109 - $316 868 = $87 241).  This would come from the proceeds of sale of the property at F.  This property has an agreed value of $360 000 and a mortgage of $272 759.  The equity therefore is $87 241 ($360 000 - $272 759 = $87 241).

fourth step

1. The orders I propose would not affect the income-earning capacity of either party.

2. The husband would keep the property and superannuation referred to above.  In addition he would retain the properties at W and M subject to their mortgages.  The property at E will be sold and from the net proceeds the husband will be paid the percentage equivalent of $49 502 from the net proceeds of sale which is 23.918 percent of the equity ($201 967).  The wife will be paid the balance thereof.  This should provide her with approximately $157 465.

3. This could be applied by the wife to reduce the mortgage on her N property or used as she might wish. 

4. The property at F will be sold and the net proceeds paid to the wife.  This should provide her with approximately $87 241.  Accordingly, the wife should be able to reduce the mortgage on her N property by $244 706 ($157 465 + $87 241 = $244 706).

5. I shall also make some orders in relation to the parties’ personal property.

6. In my view it is unnecessary for any superannuation splitting order to be made in order to achieve a just and equitable outcome.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     

Date:              9 July 2010