Bender and Bender

[2013] FamCA 195

FAMILY COURT OF AUSTRALIA

BENDER & BENDER [2013] FamCA 195

FAMILY LAW – PROPERTY – Long marriage – where the parties’ main asset is a substantial piece of land – where the husband seeks to subdivide the property – where the wife seeks to sell the property as one Lot – determination of just and equitable alteration

Family Law Act 1975 (Cth)

APPLICANT: Ms Bender

RESPONDENT: Mr Bender

FILE NUMBER: SYC 816 of 2011

DATE DELIVERED: 21 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 16 August 2012; 14 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maddox

SOLICITOR FOR THE APPLICANT: Marsdens Law Group

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. All existing orders be discharged.

2. Pursuant to s 79 Family Law Act 1975 (Cth) an order be made in accordance with paragraphs 3 to 23 below.

3. The husband and wife forthwith do all things to list B Street, C suburb (“the C suburb property”) for sale by private treaty with Mr D of E Real Estate (“the agent”) at a listing price to be agreed upon between the parties and failing agreement as recommended by the agent but not to be less than $1,500,000.

4. Pending the sale of the C suburb property, the husband do all things to keep the property in a neat and tidy condition and in a state ready for its sale.

5. Pending the sale of the C suburb property, the husband allow the agent or its nominee to the property at all reasonable times for the purpose of inspecting the C suburb property and/or showing the C suburb property to prospective purchasers.

6. The husband and wife accept any offer to purchase the C suburb property for $1,500,000 or more.

7. If the contracts to sell the C suburb property have not been exchanged within three months from the date of these orders, the husband and wife do all things to list the C suburb property for sale by auction by the agent, with an auctioneer to be nominated by the agent, with a reserve price of $1,400,000.

8. The proceeds of the sale of the C suburb property be distributed in the following priority:

   8.1.Payment of legal costs and agent’s fees in relation to the sale;

   8.2.Discharge of the mortgage to Westpac;

   8.3.Payment to the wife of 54.49 percent of the balance;

   8.4.Payment to the husband of 45.51 percent of the balance.

9. For the purposes of showing the C suburb property to prospective purchasers or to sell the property, the husband and wife shall sign all documents and do all things requested by the agent, within 48 hours of being requested to do so.

10. The solicitor acting on the sale be a solicitor as agreed between the parties and failing agreement to be nominated by a nominee of the President of the Law Society of New South Wales from time to time (“the solicitor on the sale”).

11. If either party has in his or her possession or control the Certificate of Title to the C suburb property, he or she is to forthwith deliver the Certificate of Title to the solicitor on the sale.

12. In the event that any fees are required regarding implementation of the sale, each party is to pay promptly one half each, but in the event that either party defaults in such payment, the other party may pay the relevant fees and be reimbursed from the proceeds of sale of the C suburb property.

13. Either party is granted leave to relist the matter on 7 days notice, in respect of the implementation of these orders particularly in relation to the sale of the C suburb property.

14. The Court allocates, as required by section 90MT(4) of the Family Law Act 1975 (Cth), a base amount of $28,000 to the wife out of the husband’s interest in F Super (“the fund”).

15. In accordance with section 90MT(1)(a) of the Family Law Act 1975 (Cth) the Court:

    15.1.creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and

    15.2.makes a corresponding reduction in the entitlement to the husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.

16. Whenever the Trustee of the fund makes a splittable payment out of the husband’s interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 14 of these Orders in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth).

17. The husband shall do all things necessary, including but not limited to, exercising his request pursuant to Regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in the wife’s name in the fund with the value of the transferable benefits calculated in accordance with Regulations 7A(11) of the Superannuation Industry (Supervision) Regulations 1994 (Cth).

18. Paragraphs 14 to 17 have effect from the operative time and the operative time is 7 days after service of a sealed order upon the Trustee of the fund.

19. The husband shall retain all interest, rights and entitlements, to the exclusion of the wife to:

    19.1.All assets in his name in the table in the Reasons for Judgment under the heading “Just & Equitable”;

    19.2.Any other motor vehicle, plant equipment and tools currently in his sole name and/or control;

    19.3.The business G Pty Ltd.

20. The husband will indemnify the wife in relation to any debt or liability arising from the business activities of G Pty Ltd or any other business previously conducted by the parties.

21. The wife will be entitled to attend, with any person she chooses, the C suburb property for the purpose of obtaining her personal property and effects and if she wishes to do so she will give the husband, within 21 days of the date of these orders, written notification of the time at which she will be attending the property (such time to be no later than 21 days from the giving of the written notification) and any persons who will be attending with her and the husband will allow the wife and any such persons entry to the C suburb property for this purpose.

22. Except as otherwise provided for in these orders, each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.

23. The parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these orders.

24. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bender & Bender has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 816 of 2011

Ms Bender

Applicant

And

Mr Bender

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties to these proceedings cohabitated for 36 years and have three children, all of whom are now adults. They are now unable to agree upon the division of their property, and seek orders from the Court.

APPLICATIONS

1. The parties’ former matrimonial home is their main asset, and lies on a substantial piece of land. The main issues in this case are whether an order should be made to the effect that the wife receive an adjustment of assets that is different from the parties’ current legal and equitable interests and whether an order should be made for the subdivision of the property.

2. The wife is seeking that the former matrimonial home be sold as one block and the proceeds be divided 60/40 in her favour. She also seeks $27,000 from the husband’s superannuation.

3. The husband is seeking that the net assets of the parties be divided evenly. He seeks that the parties join in the subdivision of the former matrimonial property and each party receive half of that subdivision. He is also seeking that the wife return a coin and stamp collection that he alleges she stole.

DOCUMENTS RELIED UPON

1. The applicant wife relies on the following:

   5.1.Amended Application filed 3 February 2012

   5.2.Wife’s affidavit sworn 2 August 2012

   5.3.Financial Statement filed 14 February 2011

   5.4.Affidavit of Ms H sworn 1 March 2012

   5.5.Affidavit of Mr I filed 6 June 2012

   5.6.Affidavit of Mr V sworn 26 July 2012

2. The respondent husband relies on the following:

   6.1.Response to Initiating Application filed 14 June 2011

   6.2.Husband’s affidavit sworn 14 June 2011

   6.3.Husband’s financial statement filed 14 June 2011

SHORT HISTORY

1. The husband was born in 1948 and is now aged 64.

2. The wife was born in 1953 and is now aged 59.

3. The parties commenced cohabitation in 1974.

4. The parties married in 1978.

5. The child J was born in 1975 and is now aged 37.

6. The child K was born in 1978 and is now aged 34.

7. The child L was born in 1979 and is now aged 33.

8. The parties separated in September 2010. They cohabited for 36 years.

CREDIT

Wife

1. The husband made two major complaints in relation to the wife’s evidence. The first related to evidence the wife gave in a spousal maintenance hearing when the husband was not present and the second related to assertions made by the wife that monies were moved from the parties’ joint account to Ms M’s account. There were some difficulties with the wife’s evidence in both of these areas.

2. In relation to the first matter, the wife’s affidavit sworn 10 February 2011 (which became part of Exhibit 14) makes a number of assertions:

   44. [Mr Bender] on average would earn no less than 6 to 7 thousand dollars per week.

   …

   84. I have noticed that [Mr Bender’s] son from his first relationship, [Mr N], is now:

   (a) assisting [Mr Bender] in various business enterprises; and

   (b) driving expensive new vehicles.

   …

   86. [Mr N] has never been in paid employment to my knowledge and has previously been addicted to heroin and has an extensive criminal record.

3. I note the wife has repeated these paragraphs in her affidavit sworn 2 August 2012.

4. The husband wanted me to obtain a transcript of the hearing before Rose J when the wife relied on her affidavit sworn 10 February 2011. A recording of that hearing is on the CD which became exhibit 13. It was played in court. Justice Rose clearly had before him two affidavits which became exhibit 14. Nothing arose out of the listening of that recording that went directly to the wife’s credit.

5. The husband disputed the wife’s evidence that Mr N had been addicted to heroin and I am unable to make any finding one way or the other about the respective statements they each have made about that matter.

6. The bigger complaint the husband makes is the wife’s statement he was earning not less than $6-7,000 per week. That statement does not seem to be borne out by the financial records and given the wife was involved prior to separation in the running of the business and given she had no knowledge that anything about the business had changed, this was a careless overestimate of the husband’s income.

7. In relation to the second matter, the wife’s affidavit sworn 10 February 2011 further said:

   87. [Mr Bender] has also removed monies from our joint account to an account he has with his new girlfriend [Ms M], the various amounts are as follows:

   (a) 13 January 2010 cheque deposit for $44,759.91 account number …

   (b) 15 January 2010 $43,000 to account number …

   (c) 1 April 2010 $422,422.92 cheque deposit to account number …

8. I note the wife repeated (and expanded on) this paragraph in her affidavit sworn 2 August 2012. The wife annexed bank statements in the name of the husband and Ms M showing these amounts, but there is no evidence that would indicate that the monies referred to by the wife came from the joint account of the parties.

9. In relation to some other matters, the wife swore an affidavit on the 28 April 2011 which says “I have attempted to personally serve the husband at [O Street, P suburb] which is to my knowledge the husband’s last known address.” During cross examination, the wife denied she had attempted personal service. She said she had never been to that address. Counsel for the wife suggested from the bar table that the wife’s solicitor had incorrectly prepared that affidavit, but did not call the wife’s solicitor as a witness.

10. In her affidavit sworn 2 August 2012, the wife said that she needs financial assistance from her sons. In cross examination, she agreed she has not relied on financial support from her sons since May 2011 when Rose J made orders for spousal maintenance.

11. The matters to which I have referred make me pause before accepting everything the wife says.

Husband

1. Whilst I accept substantial parts of what the husband has said (primarily because it was not disputed by the wife), I find that the husband’s credit is significantly in doubt.

2. On the first day of the final part of the hearing, the husband confidently made assertions directed towards myself that included:

   When you were at [Q Legal], I sacked you because of a non appearance to protect my grandson. I want the matter stopped. I sacked you. I paid you $5000. You got on a plane and went to Melbourne, you didn’t appear for my grandson. And I still haven’t got the $5000 back, and I never even saw you. I want this matter stopped, right now. I want another judge.

   You took $5000 off me, personally off me, to appear in a protection case for my grandson and you promised me faithfully you were going to take the case. Stopped the case and went off to Melbourne and left my grandson with a paedophile.

   You were the solicitor that I put off the case when you promised faithfully that you turn up. The next day in court and you said “no”. When I rang you said “no I’m going to get it adjourned.”

   You failed to attend on the thing, you promised me faithfully that you were going to attend on the day and when I rang you, you said “I’ve got an appointment, I’m flying to Melbourne, we’ll get it adjourned.”

   You were the solicitor that was going to act for me.

   It was contact with you on the phone, one contact and you said to me “bring your $5000”.

3. I made a direction for the Docket Registrar to obtain from the firm Q Legal a copy of the file where they acted for the husband. Documents from that file (exhibit 16) indicated that the husband first signed a fee agreement with Q Legal on 9 June 2006 and had an initial conference with that firm on 15 June 2006. The firm seems to have carried out a significant amount of work on the husband’s behalf over a short period of time. When presented with those documents and presented with exhibit 17, which was the text of things the husband had said to me on the previous occasion (replicated above), the husband maintained that it was myself who had provided him with these services, notwithstanding my assurance to him that I had been appointed as a judicial officer for over a year at the time of the events to which he referred. Somewhat bizarrely the husband suggested I might have gone back to the firm to clear up outstanding matters. I invited the husband to proffer an apology which only led to him reasserting untenable propositions. In those circumstances, it is very difficult to accept anything that the husband says unless it appears to be uncontroversial.

Conclusion on credit

1. There are difficulties with the credit of both parties. Where the parties are in dispute about matters that are relevant to the determination I have to make, I will attempt to resolve issues by looking at what version is more inherently likely or otherwise supported by objective evidence.

DETAILED CHRONOLOGY

1. The husband was born in 1948 and is now aged 64.

2. The wife was born in 1953 and is now aged 59.

3. In 1971, the wife immigrated to Australia from Iraq.

4. The parties commenced cohabitation in 1974.

5. The parties’ child J was born in 1975 and is now aged 37.

6. Around 1976, the husband sold a property in the Blue Mountains. He purchased a property at S Town (a business and a residence above the business). The wife gives evidence that this property was owned by the husband and his former wife. The parties moved into that residence.

7. The parties married in 1978.

8. Around 1978, the parties purchased a property at T Street, U suburb.

9. The parties’ child K was born in 1978 and is now aged 34.

10. The parties’ child L was born in 1979 and is now aged 33.

11. Around 1980, the husband sold the property at S Town.

12. Around 1980, the parties sold the property at T Street, U suburb

13. Around 1984, the parties purchased another house in T Street, U suburb.

14. In 1987, the parties sold this house in T Street, U suburb.

15. On 17 March 1987, the parties started a business named V Pty Ltd. Both parties were listed as directors.

16. Around 31 March 1987, the parties purchased a property at C suburb for $115,000.

17. In 1988, the husband was declared bankrupt. The evidence is not specific about what alterations of assets happened between the husband’s trustee in bankruptcy and the husband at this time and the wife did not focus upon that part of the financial history during the hearing.

18. In January 1995, the parties sold 2 acres of the C suburb property to W Town Council.

19. In September 1995, an Apprehended Violence Order was made in favour of the wife against the husband.

20. Around September 2007, the wife was diagnosed with breast cancer.

21. In 2008, the wife’s cancer went into remission.

22. In August 2010, the wife had surgery on her back.

23. The wife asserts the parties separated on 11 September 2010. On this date she changed the locks of the matrimonial home.

24. The wife moved out of the former matrimonial home on 14 September 2010.

25. On May 2011, Rose J ordered the husband pay spousal maintenance to the wife in the sum of $500 per week. The husband did not appear in those proceedings.

APPROACH

1. In this matter my task is to:

   55.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;

   55.2.Determine whether it is just and equitable to make an order altering those interests and if so;

   55.2.1.Identify relevant contributions and assess them;

   55.2.2.Consider relevant matters referred to in Section 79(4)(d) – (g) Family Law Act 1975 (Cth)(“FLA”);

   55.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

1. Exhibit 4 contains a joint balance sheet dated 21 December 2011, which was referred to during proceedings on 16 February 2012 and the “Wife’s balance sheet” which was handed up in court on 16 August 2012.

2. In relation to the first part of Exhibit 4 (the balance sheet dated 21 December 2011), I made the following directions on 16 February 2012:

   6.  In relation to the motor vehicles, it is agreed that the items in the husband’s possession and control on the joint balance sheet are items 3, 4, 5, 6, 7, 8, 9, 15, 23, 24, 25, 27, 32, 33, 34, 36 and 41.

   10.  I note in relation to items 52 and 53 on the balance sheet, the wife acknowledges that those amounts are outstanding and in relation to item 52 the amount is $20,685 and in relation to item 52 [sic: this should read 53] the amount is $5,859.

3. The settled balance sheet is set out below. My determination appears in bold. The reason for that determination is set out under the relevant item number. Some numbers are missing because it was agreed that some items on the original balance sheet would not be included. On those items where one of the parties did not assert any value, I have noted this as “[BLANK]”.

Assets
Item no.	Title	Description	Husband	Wife		Agreed/ Determined	Value
1	J	B Street, C suburb	$2,500,000.00	$3,000,000.00		Determined	$1,500,000.00
2	H	X Street, Y suburb	$0.00	NK		Determined	$0.00
3	H	Prime Mover 1	$15,000.00	$120,000.00		Determined	$15,000.00
4	H	Trailer	$6,000.00	$40,000.00		Determined	$6,000.00
5	H	Refrigerator Trailer	$500.00	$35,000.00		Determined	$500.00
6	H	Car 1	$5,000.00	$39,000.00		Determined	$5,000.00
7	H	Truck	$8,000.00	$37,163.00		Determined	$8,000.00
8	H	SUV	$2,000.00	$12,000.00		Determined	$3,000.00
9	H	Car 2	$14,000.00	$40,000.00		Determined	$14,000.00
15	H	Ride On Mower	$250.00	$5,000.00		Determined	$250.00
23	H	Three box trailers	$1,100.00	$1,000.00		Determined	$1,100.00
24	H	Coaster bus	$8,000.00	$24,000.00		Determined	$8,000.00
25	H	Prime Mover 2	$500.00	$60,000.00		Determined	$500.00
27	H	Flat Top Truck	$0.00	$1,000.00		Determined	$0.00
32	H	Car Trailer	$1,500.00	$1,000.00		Determined	$1,500.00
33	H	Caravan	$2,800.00	$5,000.00		Determined	$2,800.00
34	H	40ft Container	$1,500.00	$10,000.00		Determined	$1,500.00
36	H	Car 3	$400.00	$1,500.00		Determined	$400.00
39	W	Car 4	[BLANK]	$2,000.00		Determined	$2,000.00
41	H	Motor Bike	$15,000.00	$46,000.00		Determined	$15,000.00
43.1	W	Household contents	[BLANK]	$1000.00		Determined	$1,000.00
43.2	H	Household contents	$500	$5,000.00		Determined	$500.00
44	W	Commonwealth Bank Account	[BLANK]	Neg		Determined	$490.00
45	H	Power Saver account with Ms M	[BLANK]	NK		Determined	$0.00
46	H	Savings	[BLANK]	NK		Determined	$0.00
48	H	Shipping Containers (two) 20 ft	$1,000.00	$7,000.00		Determined	$1,000.00
59	H	Superannuation	$56,000.00	$54,000.00		Determined	$56,000.00
Total assets			$1,643,540.00
Liabilities
Item no.	Title	Description	Husband		Wife	Agreed/ Determined	Value
49	J	Westpac Home Loan	$196,000.00		$197,000.00	Determined	$196,000.00
50	H	Ms M	$20,000.00		$0.00	Determined	$0.00
51	H	Australian Tax Office	$5,500.00		[BLANK]	Determined	$5,500.00
52	H	Capital Finance for Car 2	$14,500.00		[BLANK]	Determined	$14,500.00
53	H	Asanda Finance for Coaster Bus	$0.00		[BLANK]	Determined	$0.00
54	H	Telephone & Gas	$0.00		[BLANK]	Determined	$0.00
55	H	American Express Credit Card	$5,000.00		$0.00	Determined	$0.00
56	H	Commonwealth Credit Card	$6,997.70		$0.00	Determined	$0.00
57	H	IMB Credit Card	$18,000.00		$6,956.00	Determined	$6,956.00
58	H	St George Credit Card	$9,177.99		$7,263.00	Determined	$7,263.00
Total liabilities			$230,219.00
Total net assets			$1,413,321.00

Item 1 – the C suburb property

1. Mr V was the single expert in this matter. In his affidavit sworn 26 July 2012, he initially opined the property was worth $1.8 million “in its current configuration.” He opined that if the property was “subdivided into two super lots” the front allotment (Lot 31) would be worth $703,112 and the rear allotment (Lot 32) would be worth $1,103,125.

2. Exhibit 9 is a valuation report dated 15 July 2012 from Y Pty Ltd, tendered by the husband. I note they incorrectly state they were appointed as a Chapter 15 expert. They opine that Lot 31 is worth $790,000, and Lot 32 is worth $680,000. Y Pty Ltd did not provide an opinion as to the value of the property as one lot.

3. On 16 August 2012 I ordered that Y Pty Ltd and Mr V convene a conference and prepare a joint statement of valuation.

4. On 3 September 2012 the valuers provided a statement of joint valuation (exhibit 19). Their agreed evidence was that if the current property was to be subdivided into two super lots, both of those super lots would be of equal value, being in the sum of $745,000.

5. Mr V gave evidence (unaffected by the husband’s cross examination) that the highest use that this land could be put to is to be sold to a developer (who would be able to take the land as it is and divide it into 17 residential lots). The land sold in that way to a developer would bring on Mr V’s view, an amount of $1.5 million ($10,000 more than the two super lots would be worth once subdivided).

6. The balance sheet will record the property as having a value of $1,500,000.

Item 2 – Y suburb property

1. This is the property owned by Ms M. The wife wished to explore whether the husband had an interest in this property. The wife did not establish or in the end, even assert the husband had an interest in this property. The assertions about the husband’s association with Ms M are further discussed at item 45.

2. This property was not listed on the wife’s second balance sheet.

Items 3, 4, 6, 7, 8, 9, 24, 25, 41 – husband’s motor vehicles (as valued)

1. After I made notation 6 on 16 February 2012 (as set out above), the husband had some of his vehicles valued. The following values are taken from Ms H’s affidavit sworn 1 March 2012 which attaches the valuations the husband arranged.

ITEM NO.	VEHICLE	VALUATION
3.	[Prime Mover 1]	$15,000
4.	[Trailer]	$6,000
6.	[Car 1]	$5,000
7.	[Truck]	$8,000
8.	[SUV]	$3,000
9.	[Car 2]	$14,000
24.	[Coaster bus]	$8,000
25.	[Prime Mover 2]	$500
41.	[Motor bike]	$15,000

1. These figures were not challenged by the wife.

Items 5, 15, 23, 27, 32, 33, 34, 36 – husband’s other various motor vehicles (not valued)

1. During his oral evidence, the husband made concessions as to the value of the motor vehicles in his possession that had not been valued. The wife did not lead any other evidence as to the value of these vehicles, and did not challenge the husband on the figures he conceded. I will accept the husband’s concessions as to the value of these vehicles.

ITEM NO.	VEHICLE	Value conceded by the husband in oral evidence
5.	Refrigerator Trailer	$500
15.	Ride On mower	$250
23.	Three box trailers	$1100
27.	Flat top truck	$0
32.	Car trailer	$1500
33.	Caravan	$2800
34.	Container	$1500
36.	Car 3	$400

1. In relation to item 23, the husband gave evidence that there are three box trailers, worth $600, $300, and $200 respectively. I accept this evidence. This item has been appropriately renamed in the settled balance sheet.

2. In relation to item 27, the husband contended that the flat top truck was not his. I accept this evidence.

Item 39 – Wife’s vehicle

1. The husband did not lead any evidence, or challenge the wife in regards to the value of her Car 4. I will accept the wife’s value of $2000.

Item 43 (which is now 43.1 and 43.2) – Household contents

1. There was no focus on this item during the hearing. The original joint balance sheet that was handed up on 16 February 2012 recorded that item as being the husband’s household contents of $5,000 as asserted by the wife. In the second balance sheet that forms part of Exhibit 4, that item changes to joint household contents with the wife’s value being asserted at $1,000 and the husband’s value being asserted at $500. Those figures are taken from the wife’s financial statement filed 14 February 2011 and the husband’s financial statement filed 14 June 2011 respectively. That is the only evidence I have and I will accept those values in relation to the issue of household contents. There will be two items on the balance sheet for household contents, one for the wife and one for the husband.

Item 44 - Wife’s bank account

1. When the wife filed her financial statement in February 2011, she indicated that she had $490 in a bank account. That evidence was not updated for the trial. The first balance sheet which forms part of Exhibit 4 records the current balance in that account as being “Neg”. That however does not have evidentiary value and I accept the sworn evidence of the wife in her financial statement.

Item 45 – Ms M

1. The wife raised an issue relating to the husband’s involvement in accounts with Ms M.

2. The wife annexes as part of Annexure O to her affidavit sworn 2 August 2012 a card in Ms M’s handwriting which is addressed to the husband and contains the message “Lots of love as always from your loving wife [Ms M] xxx”.

3. The husband’s explanation for that expression on the card was that the wife had alleged that the husband was having affairs with various women, including not only Ms M but also Ms Z and Ms AA. The husband alleged (without actually proving it or putting it to the wife) that those two other women wrote cards in similar terms as a joke to aggravate the wife.

4. The husband describes Ms M as an extremely close friend, but not one with whom he has (or ever had) a de facto relationship. He has never resided with Ms M.

5. There is a very curious set of financial documents annexed to the wife’s affidavit sworn 2 August 2012 relating to the husband and Ms M. The husband had joint accounts with Ms M with the St George Bank from about January 2010 onwards. On 24 March 2010 there were transactions of around $42,000 going between accounts that the husband had with Ms M jointly. On 31 March 2010 an amount of $422,422 was deposited into one of the joint accounts. When asked where this money came from, the husband said it came from the sale of one of Ms M’s properties. On 6 July 2010 Ms M became the registered proprietor of a property which has as its folio identifier, … (see Annexure L to the wife’s affidavit sworn 2 August 2012). That property was purchased for the sum of $450,000. One might infer that it is possible that the purchase price for that property came from an account that was in the joint names of the husband and Ms M. The husband denied that he was the source of any credit funds into the joint account he held with Ms M. The husband asserted that the reason he had  joint accounts with Ms M was because Ms M was a gambler and she wanted to ensure that she did not waste the monies by putting the husband in charge of the disposition of those monies.

6. The wife attempted to assert that a property in Ms M’s name had been transferred to her daughter, Ms BB. The wife tendered two real property searches (exhibit 5); one which demonstrated that Ms M was the owner of the property and the other which demonstrates that Ms BB is the owner of the property.

7. The difficulty (not appreciated during the hearing) is that a closer analysis of these documents discloses that they are in fact two different properties. It is therefore conceivable that, as the husband asserted, Ms BB bought a property in her own name using first home buyer’s advantages.

8. The husband gave evidence that Ms M owns a number of properties as a result of receiving an inheritance from her late father. On the evidence I have, it is clear that Ms M owns at least two properties (the one referred to in exhibit 5, and the one referred to at Annexure L of the wife’s affidavit sworn 2 August 2012).

9. The wife cannot point to any substantial source of funds that would allow the husband to obtain a substantial interest in any property in Ms M’ name.

10. The wife has not established that the husband has a beneficial interest in any asset currently held by Ms M.

Item 46 - Savings

1. No evidence was led that would allow me to make a finding that the husband had hidden savings.

Item 48 – Shipping containers

1. The husband conceded that he had sold two shipping containers for $500 each. He says the third shipping container belonged to his son. I will accept the husband’s evidence, and accept it is appropriate to addback $1000.

Item 49 – Westpac Home Loan

1. The husband conceded in oral evidence that the home loan was “probably a bit less” than $197,000. He said it was “probably 196 [thousand dollars] or something like that amount.” The wife did not seek to challenge that amount. I will accept the home loan is currently $196,000.

Item 50 – Debt to Ms M

1. The husband during cross examination indicated that he did not intend to press the assertion that the amount that he says he owes Ms M should be added back onto the balance sheet. Accordingly I will not take into account any alleged debt the husband owes to Ms M.

Item 51 – Debt to the Australian Taxation Office

1. The husband originally indicated his tax debt was in the sum of $11,000, but in oral evidence he said that he had some money put away for that debt already and agreed the effective debt was only $5500. The wife did not seek to challenge that amount.

Items 52 and 53 – Debt for the Coaster Bus and a debt for telephone and gas

1. As I noted on 16 February 2012, the wife conceded that these amounts were outstanding.

2. During the hearing the husband indicated that item 52 had reduced from $20,685 to $14,500 and item 53 had reduced from $5,859 to nil. The wife did not seek to challenge those figures.

Items 55, 56, 57, and 58 - Credit cards

1. The point of difference in items 55-58 is that the wife quotes the debts on those credit cards as around about the time of separation, whereas the husband quotes those debts as at today. Between the date of separation and to date the husband has been operating the business G Pty Ltd. This was the business that was operating as at the date of the separation. The husband has had all the vehicles and equipment associated with the business in his possession and has used them to generate income. The husband’s evidence is that the income generated by that business is in the order of $4,000 per week (prior to expenses being paid). The husband did not lead sufficient evidence to substantiate that he needed to run debts on his credit cards in order to cater for ordinary living expenses and consequently the increases in credit card debts won’t be taken into account by me on the balance sheet and the wife’s figures will be preferred for items 55 – 58.

Item 59 – Superannuation

1. The husband initially did not assert a value for his superannuation. The wife asserted it was $54,000. In his oral evidence, the husband said “It could be a bit higher…I think about 56 [thousand dollars] or something.” I accept that the husband’s superannuation has increased since the balance sheet was created in December 2011, and is now $56,000.

WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE

1. The parties have separated and their marital partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities. As the balance sheet set out above demonstrates, the assets and liabilities remaining with each party are $1,304,000 held jointly; $105,831 held by the husband and $3,490 held by the wife.

2. I find that in all the circumstances, it is just and equitable to make an order altering the net property of the parties.

CONTRIBUTIONS

Initial Contributions

1. The wife says that “at the time [the parties] met” the husband had a property in the Blue Mountains. The wife says the husband sold the property in the Blue Mountains and purchased a property at S Town before their marriage. Although the wife deposed that the S Town property was purchased after the parties began cohabitation, she also deposed that the S Town property was owned by the husband and his former wife. 

2. The wife said she had no significant assets at the date of cohabitation.

Financial Contributions

1. The husband was the primary breadwinner.

2. The wife says that when the parties lived in S Town she “worked in the [business] seven days a week to help [the husband] get the business back up and running so that it could be sold.” In cross examination, the husband challenged the wife, asserting that the wife’s sister ran the business along with another woman and the wife “only came in to collect the till of a night”. I do not accept that was so.

3. In her affidavit, the wife says that she “assisted [the husband] in his business by taking care of the bookkeeping and administrative duties”.In cross examination, the wife elaborated. She “answered the phones, whenever [there were delays] they used to talk to [me], I ha[d] to sort the problems out”. She said she also went to “pick [up] all the cheques…sometimes [she would] go twice to pick [up] the cheque[s] because they need[ed] two signature[s]”. She said she also acted as a “tea lady, [making] their lunch.” The wife conceded she briefly quit the business in 1997 when she asserts the parties separated. On the wife’s version, when the parties reconciled, the wife said she continued working in the business and dealt with “any problems, [delays]… facing all these customers, mak[ing] them happy.” The husband denied that the parties separated in 1997 but he asserted the wife quit working in the business in 1997.

4. The husband cross examined the wife about her knowledge of various fatal accidents in which contractors, who were employed by the business, were involved. Her knowledge of these accidents was not good but that does not mean to say she was not otherwise involved in the day to day activities of the business. I accept she was. That business operated bank accounts upon which either party could sign up until after the date of separation.

5. I accept the wife’s evidence about her involvement in the business.

Non-Financial Contributions

1. The wife was the primary homemaker and parent. The wife asserts that the husband “did not contribute to the care of the children as they were growing up. [The husband] also made no contribution to the household duties such as cleaning, cooking, washing or ironing.” Although the absolute terms in which the wife makes these statements may be slightly overstated, I accept that she did the vast majority of these duties.

Post Separation Contributions

1. From May 2011, the husband has been paying $500 per week spousal maintenance. The wife agreed that the husband was up to date with these payments. The husband had sole access to funds generated by the business after separation.

Conclusions on contributions

1. Counsel for the wife submitted that in the context of a long marriage, the parties’ contributions were approximately equal.

2. The husband sought a 50/50 division overall. He argued that his contributions in the last 15 years of the marriage were greater than the wife’s contribution and that any adjustment that the wife sought pursuant to s 79(4)(d) – (g) FLA would be offset by his higher contributions during the last 15 years of the marriage.

3. The husband asserted that in 1997 the wife left the business and abandoned any practical involvement in the day to day affairs of the business. The wife conceded that she was not involved in the business for a couple of months in 1997 when she left the matrimonial home with the children and went to live with her mother. I accept her evidence that she returned after a short period and the parties reconciled.

4. There is nothing in the evidence provided by the husband that would allow me to make a finding that on an overall basis after 39 years his contributions were any more than the wife’s.

5. The wife fulfilled her role as homemaker and parent and provided the husband with assistance in his business activities.

6. I find on an overall basis that a division of net assets should be 50/50 based on contributions.

FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS

1. The wife asserts that she is entitled to a 10 percent adjustment by way of s 79(4)(d) – (g) FLA matters.

2. She primarily relies upon the fact that the husband continues to have an earning capacity. The wife asserts she has not been in paid employment outside of the family businesses in which she worked with the husband.

3. In notation 3 of 27 June 2012 I noted that the husband had conceded that the wife’s health and her age meant that she had no capacity to obtain gainful employment. He significantly resiled from that concession during the hearing and on that basis I allowed the wife to rely upon medical reports that were attached to her affidavit and statements by the wife about her health. The wife has significant health issues and is unable to work.

1. The husband is 64 years of age. He contends he has significant health issues. The husband tendered a medical report from Dr CC (exhibit 3) dated 22 February 2012 and a letter from Dr DD (exhibit 8). Neither party required either doctor for cross examination.

2. The medical report from Dr CC says that an ultrasound was conducted and showed “considerable scarring of [the husband’s] kidneys” and that the husband “was referred along with a history of long standing hypertension, proteinuria and renal impairment.”

3. Although the letter from Dr DD says the husband complained of a separation of his abdominal muscles, an “ultrasound examination done last December 2011 failed to pick any abnormality.”

4. During the hearing, the husband asserted (and demonstrated) that he may have personality difficulties, but they do not seem to have affected his ability to operate productively in the workforce.

5. Up until this point in time however, any issues with the husband’s health have not stopped the husband from working 10 hours a day, 5 days a week earning at a rate of approximately $80 per hour.

6. I do accept however that the husband will not be able to continue to work for an indefinite period and must be coming close to the end of his working life. The husband however does still have some earning capacity which the wife does not.

7. I am mindful of the net assets the parties will receive as a result of the contribution finding. Balancing the matters discussed, I find a 2.5 percent adjustment is appropriate in the wife’s favour and I will make that adjustment.

JUST AND EQUITABLE

1. On a just and equitable basis the overall adjustment based on contributions and s 79(4)(d) – (g) factors will be 52.5 percent to the wife and 47.5 percent to the husband.

2. The overall percentage division could be achieved by a distribution of the assets and liabilities in accordance with the table set out shortly, but first I need to consider whether the C suburb property should be sold as it is or subdivided and the two lots then divided between the parties.  

Whether the property should be sold or subdivided

1. The husband says he has worked all his life and has not got any superannuation and this property is his superannuation.

2. In the event that I decide that it is just and equitable to order that the parties join together in carrying out a subdivision of the property into two super lots, the parties agree that the husband would take the front lot (lot 31) and the wife would take the back lot (lot 32).

The cost of a subdivision

1. It is unclear how much subdivision would cost. Some costs are known.

2. Mr V annexed a copy of a letter dated 13 April 2012 sent from W Town Council to the husband. In that letter, the Council write “an estimate of the likely development contribution to Council to be imposed on a development consent for subdivision of the above land into 2 allotments has been estimated to be $22,980.”

3. In addition to the development contribution, the husband, from the bar table, asserted the cost of subdivision would only be $3,500. The husband however misunderstands the document he relies upon to make that assertion. Ms I’s affidavit annexes a letter from Urban which says they will perform “site inspection and review documentation” and will provide “advice in respect to the cost and process of subdividing the subject land.” They will charge $3,300 to provide a quote. The actual cost of doing the work is unknown.

The value of the property if subdivided

1. As I have said earlier, exhibit 19 is the joint statement of valuation. The valuers opined that if the property was subdivided into two lots, each Lot would be worth $745,000. However that amount did not take into account the cost of subdivision. I have found that the property in its current configuration is worth $1.5 million. This means the total value of the two subdivided lots is at least $10,000 less than if the block was sold in its current configuration, before the costs of subdivision are taken into account.

The parties’ working relationship

1. I admitted evidence by the wife about the husband’s conduct on the basis that its use be limited to the issue of whether or not there should be an order for the subdivision of the C suburb property.

2. The husband tendered a police statement in relation to one of the incidents which became exhibit 12. I note that in that police statement, which was tendered without objection, there is a note by the police which says:

   It appears that the victim is using Police to assist her in her messy civil dispute over the property and sale of stated property.

   Police spoke with the victim who changed her allegation numerous times and alleged incidents that have occurred at a time where it is a [sic] apparent from speaking [to] the victims [sic] daughter that the POI [the husband] was not even at the residence at the stated times.

3. Whilst that statement in the police records (untested hearsay) casts some shadow over the evidence given by the wife, I accept in general terms the wife’s evidence about incidents of aggression and family violence in the marriage.  Her evidence is certainly consistent with the presentation of both parties over a reasonably extended period of time in my court room. 

4. The husband spent much of his time in cross examining the wife attempting to establish how bad their working relationship was in the final years of the partnership. There were heated exchanges between the parties during the hearing and there is a large amount of animosity between the parties at the current time.

5. There is no doubt that the parties still currently have a very confrontational relationship.  I conclude that to make a set of orders which:

   133.1.didn’t give the wife finality; and

   133.2.locked her into a type of ongoing business relationship with the husband

   133.3 creates the potential for further extensive litigation and conflict and certainly are not orders that should be made in this case if s 81 FLA is kept firmly in mind.

6. The husband submitted that the wife could simply put a sign on the back block and sell it and he could keep the front block. I accept the wife’s apprehension about that as a general proposal. The details of working out a subdivision by the parties cooperating and then a sale of the Lot owned by the wife in circumstances where the husband occupies the neighbouring property is fraught with difficulty.

7. I find that it is not practicable to expect that the husband and wife could cooperate and work in a harmonious way in order to effect a subdivision of the C suburb property.

8. The husband indicated in final submissions that he did not want the opportunity of first refusal in terms of the acquisition of the property.

9. The husband agreed that the agent for sale be Mr D of E Real Estate.

10. Both parties agreed that the property should be first sold by private treaty and the wife wanted the property listed for auction if it had not been sold in three months. I accept that is appropriate.

11. The wife sought that her current solicitors be the solicitors who prepare the contract for the sale of the C suburb property. It would be more appropriate if that solicitor was somebody whom the parties agreed upon or failing agreement, is somebody neutral nominated by a nominee of the President of the Law Society of New South Wales and I will make an order accordingly. 

12. In relation to other orders regarding the implementation of the sale, the husband did not propose specific orders. I will make the orders the wife sought.

13. The wife has sought leave for either party to relist the matter before me on 7 days notice in respect of the implementation of the orders for the sale of the C suburb property. I accept that is appropriate, and I will order accordingly.

14. The wife says she has no superannuation. She seeks a splitting order that she receive $27,000 of the husband’s superannuation. Given the wife asserted the husband superannuation was $54,000, I took the wife’s application as one for 50 percent of the husband’s superannuation. The husband in final submissions said that he sought each party receive “fifty-fifty of [his] super[annuation]”. I will make a splitting order for each party to receive 50 percent of the husband’s superannuation which gives the wife a base amount of $28,000.

15. As previously indicated, the percentage adjustment between the wife and the husband will be 52.5 percent / 47.5 percent and this can be achieved as follows:

Husband gets 47.5 percent
Assets
Item No.	Description	Percentage	Value
1	B Street, C suburb	46.1 percent	$691,496
2	X Street, Y suburb	100 percent	$0
3	Prime Mover 1	100 percent	$15,000
4	Trailer	100 percent	$6,000
5	Refrigerator Trailer	100 percent	$500
6	Car 1	100 percent	$5,000
7	Truck	100 percent	$8,000
8	SUV	100 percent	$3,000
9	Car 2	100 percent	$14,000
15	Ride on mower	100 percent	$250
23	Three box trailers	100 percent	$1,100
24	Coaster bus	100 percent	$8,000
25	Prime mover 2	100 percent	$500
27	Flat Top Truck	100 percent	$0
32	Car trailer	100 percent	$1,500
33	Caravan	100 percent	$2,800
34	Container	100 percent	$1,500
36	Car 3	100 percent	$400
41	Motor bike	100 percent	$15,000
43.2	Household contents	100 percent	$500
245	Power Saver account with Ms M	100 percent	$0
46	Savings	100 percent	$0
48	Two 20 ft shipping containers	100 percent	$1,000
59	Superannuation	50 percent	$28,000
Liabilities
Item No.	Description	Percentage	Value
49	Westpac home loan	50 percent	$98,000
50	Ms M	100 percent	$0
51	Australian Tax Office	100 percent	$5,500
52	Capital Finance for Car 1	100 percent	$14,500
53	Asanda Finance for Coaster bus	100 percent	$0
54	Telephone & gas	100 percent	$0
55	American Express credit card	100 percent	$0
56	Commonwealth credit card	100 percent	$0
57	IMB credit card	100 percent	$6,956
58	St George credit card	100 percent	$7,263
Net Assets to Husband			$671,327
Wife gets 52.5 percent
Assets
Item No.	Description	Percentage	Value
1	B Street, C suburb	53.9 percent	$808,504
39	Car 4	100 percent	$2,000
43.1	Household contents	100 percent	$1,000
44	Commonwealth Bank account …	100 percent	$490
59	Superannuation	50 percent	$28,000
Liabilities
Item No.	Description	Percentage	Value
49	Westpac home loan	50 percent	$98,000
Net Assets to Wife			$741,994

1. Standing back, I consider an adjustment of assets and liabilities in that manner to be one that is just and equitable between the parties.

PROPOSED ORDERS

1. Given that there is to be a sale of the C suburb property and the precise sale price is not known, it is appropriate to order that the net proceeds of sale be divided between the parties by a percentage calculation. The agreed value of the property is $1,500,000 and the mortgage is $196,000. As the distribution table shows, the wife is entitled to $808,504 out of the agreed gross value of $1,500,000 and the husband is entitled to $691,496 out of that value. The parties will equally share the mortgage. The net equity to be divided is $1,304,000. Therefore the wife will receive 54.49 percent of the net proceeds (($808,504 - $98,000)/$1,304,000) and the husband will receive 45.51 percent of the net proceeds (($691,496 - $98,000)/$1,304,000).

2. The husband and wife operated a business together. The husband still operates that business. The wife has sought an order that the husband indemnify her in relation to the business. I find that is appropriate, and will order accordingly.

3. Given the parties’ poor working relationship, I accept it is appropriate to make an order pursuant to s 106A FLA for a Registrar to execute documents in the event either party refuses or neglects to do so.

4. The husband sought that the wife return his “father and mother’s property” and his “coin and stamp collections” that belonged to his father. During cross examination, the wife denied she had taken these items. I accept the wife’s evidence. Consequently, I will not make the order the husband seeks.

5. The husband asserts the wife took most of the parties’ joint belongings when she moved out of the former matrimonial home. The wife asserts that she took very little from the former matrimonial home and still has some personal items in the C suburb property that she would like to collect. I accept the wife’s evidence that she still has some personal belongings at the C suburb property and I will make an order that she collect those items after providing the husband with written notification as to the time she will attend the property. The time the wife nominates to collect her personal items is to be within 21 days of giving notice to the husband, such notice to be given within 21 days of these orders.

6. The wife does not seek any final order for spousal maintenance and the current interim order for spousal maintenance will be discharged.  

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 March 2013

Associate:

Date:  21.3.13