Bunt and Bunt

FAMILY COURT OF AUSTRALIA

BUNT & BUNT

[2010] FamCA 262

FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – lack of disclosure – Contributions – Adjustments – waste – Just and equitable

Family Law Act 1975 (Cth) ss 75 & 79

In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Prince & Prince & General Credits Australia Limited & Attorney-General for State of Queensland & Attorney-General for the Commonwealth of Australia (1984) 9 Fam LR 481; FLC 91-501
Af Petersens and Af Petersens (1981) FLC 91-095
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414

APPLICANT:

Ms Bunt

RESPONDENT:

Mr Bunt

FILE NUMBER:

SYC

1345

2008

DATE DELIVERED:

13 April 2010

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATE:

8 & 9 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:	Mr P. Campton
SOLICITOR FOR THE APPLICANT:	Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT

HUSBAND:

Mr D. Roberts

SOLICITOR FOR THE RESPONDENT:

D G Thomas

Orders

Within 6 weeks from the date of these orders the husband shall pay to the wife or as she may direct, $583,247.
In the event that the husband does not pay the wife in accordance with order 1., the husband and the wife shall do all such acts and things and sign all such documents as may be necessary to list for sale and sell the properties situated at and known as:
(a) E property being Folio Identifier … ("the E property"); and
(b) K property being Folio Identifier … ("the K property")
("the properties") at the best price reasonably obtainable on the following terms:
2.1.The properties be listed for sale with an agent as agreed between the parties and failing agreement with an agent as nominated by a nominee of the President of the Real Estate Institute of New South Wales ("the agent");
2.2.The properties shall be listed for sale by private treaty or auction as agreed between the parties and failing agreement within 30 days of the date of the Orders, as determined by the agent.
2.3.In the event the properties are listed for sale by private treaty, they shall be listed at such price as agreed between the parties within 14 days of the date of the Orders and failing agreement at a price as nominated by a valuer as proposed by a nominee of the President of the Real Estate Institute of New South Wales ("the valuer").
2.4.In the event the properties are to be sold by public auction, the reserve price shall be as agreed between the parties not less than 3 days prior to the auction and failing agreement shall be as determined by the valuer.
2.5.The husband and the wife shall each pay and be responsible for payment of one half of the costs of sale of the properties as and when they fall due.
2.6.The husband and the wife shall pay one half of the agreed costs incurred in readying and presenting the properties for sale.
2.7.In the event the properties are listed for sale by private treaty and are not sold within three months of the first listing, the listing price shall be reduced by the amount of 5% each three months thereafter until the properties are sold.
2.8.In the event the properties are listed for sale by public auction and are not sold at auction, then the parties may negotiate with the highest bidder or any other interested parties and enter into a contract for sale which is not more than 5% below the reserve price and in the event the properties fail to sell by negotiation within 72 hours thereafter, they shall be listed for sale by private treaty at a price as agreed between the parties and failing agreement at a price which is 5% below the reserve price for the auction and if it then fails to sell by private treaty the listing price shall be reduced by a further 5% each three months thereafter until the properties are sold.
Pending the sale of the properties the husband shall pay as and when they fall due:
3.1. The water and municipal rates and charges for the properties;
3.2. The house and contents insurance for the properties;
3.3.All necessary costs of maintaining the properties in a state of good repair.
Upon settlement of sale of the properties ("the settlement date") the parties shall do all acts and things and sign all documents necessary to pay the proceeds of sale in the following manner and priority:
4.1.In payment of real estate expenses and commission, auction costs (if any), advertising costs and fees and other proper and usual expenses of sale;
4.2.In payment of the legal costs of sale;
4.3.In payment of the amount required to discharge Bank of Western Australia registered mortgage number …, registered on both properties;
4.4.In payment to the wife of $583,247; and
4.5.In payment of the balance to the husband.
Within 14 days of the date of the Orders the husband shall do all acts and things and sign all documents necessary to transfer to the wife his interest in Toyota Camry motor vehicle registration number ….
Within 14 days of the date of these Orders the wife shall divide the contents of the E property as identified and valued by the valuer, Mr P, into two lists of approximately equal value and shall provide those lists to the solicitor for the husband. Within a further 7 days thereafter, the husband shall elect to retain the items on one of those lists and shall notify the solicitor for the wife accordingly. Within 14 days thereafter or such further time as the parties may agree, the husband shall arrange for the items on other list to be safely transported to an address or addresses as directed to him by the wife in writing. The parties shall each pay and be responsible for payment of one half of the costs of that transportation.
Pending delivery of the items of personalty to the wife in accordance with Order 6. the husband shall maintain the contents of the E property in good repair and keep the contents insured.
Other than as provided for above the husband and the wife shall be solely entitled to the exclusion of the other to all property, chattels and superannuation of whatsoever nature and kind in their possession, ownership or control as at the date of the Orders.
If either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these Orders a Registrar of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A(1) of the Family Law Act to execute such documents on behalf of such party.
Leave is granted to either party to apply in relation to the implementation of these orders on giving the other party and the Court at least 7 days prior written notice.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1345 of 2008

MS BUNT

Applicant

And

MR BUNT

Respondent

REASONS FOR JUDGMENT

After living together for nearly 30 years the parties cannot agree on a settlement of their property.

Applications

The wife seeks orders in terms of her Application for Final Orders of the Wife filed on 5 February 2009. Order 1 is not pressed and the issue has been resolved by a consent order made on 9 March 2010. As to the property settlement, at the conclusion of oral submissions made in her case, learned counsel for the wife said that she seeks an adjustment reflecting an overall distribution of 75% of the net assets to her and 25% to the husband. That is very different to the outcome sought in her application. She seeks a payment from the husband to reflect that settlement and in default that the adjustment be made on the sale of the E and K properties. She does not seek the sale of the husband’s domestic services business. Therefore she no longer seeks orders 8 & 9 of her Application. Through her counsel the wife sought to deal with personalty at the E property by being permitted to attend at the home and select items accounting for half the value of the contents of the home based on the single expert’s valuation. Given the late change I am left unsure as to the precise orders sought. Presumably that is a matter for the Court. The order for adult child maintenance is not pressed. Doing the best I can, I understand that the wife seeks orders as follows:-
1.~~That within 6 weeks of the date of the orders the husband and the wife shall:~~
~~1.1. appear before the Beth Din of Sydney and New South Wales to give or receive a bill of divorcement in accordance with Jewish law; and~~
~~1.2. do all acts and things and sign all necessary documents required to give validity and operation to Jewish law in respect of the dissolution of their marriage in accordance with Jewish law.~~
3.By way of final property alteration pursuant to Section 79 of the Family Law Act:
2.1. That the husband and the wife shall do all such acts and things and sign all such documents as may be necessary to list for sale and sell the properties situated at and known as:
(a) [E property] being Folio Identifier […] ("the [E] property"); and
(b) [K property] being Folio Identifier […] ("the [K] property")
("the properties") at the best price reasonably obtainable on the following terms:
2.1.1.The properties be listed for sale with an agent as agreed between the parties and failing agreement with an agent as nominated by a nominee of the President of the Real Estate Institute of New South Wales ("the agent").
2.1.2.The properties shall be listed for sale by private treaty or auction as agreed between the parties and failing agreement within 30 days of the date of the Orders, as determined by the agent.
2.1.3.In the event the properties are listed for sale by private treaty, they shall be listed at such price as agreed between the parties within 14 days of the date of the Orders and failing agreement at a price as nominated by a valuer as proposed by a nominee of the President of the Real Estate Institute of New South Wales ("the valuer").
2.1.4.In the event the properties are to be sold by public auction, the reserve price shall be as agreed between the parties not less than 3 days prior to the auction and failing agreement shall be as determined by the valuer.
2.1.5.The husband and the wife shall each pay and be responsible for payment of one half of the costs of sale of the properties as and when they fall due.
2.1.6.The husband and the wife shall pay one half of the agreed costs incurred in readying and presenting the properties for sale.
2.1.7.In the event the properties are listed for sale by private treaty and are not sold within three months of the first listing, the listing price shall be reduced by the amount of 5% each three months thereafter until the properties are sold.
2.1.8.In the event the properties are listed for sale by public auction and are not sold at auction, then the parties may negotiate with the highest bidder or any other interested parties and enter into a contract for sale which is not more than 5% below the reserve price and in the event the properties fail to sell by negotiation within 72 hours thereafter, they shall be listed for sale by private treaty at a price as agreed between the parties and failing agreement at a price which is 5% below the reserve price for the auction and if it then fails to sell by private treaty the listing price shall be reduced by a further 5% each three months thereafter until the properties are sold.
4.That pending the sale of the properties the husband shall pay as and when they fall due:
3.1.      The water and municipal rates and charges for the properties;
3.2.      House and contents insurance for the properties;
3.3. All necessary costs of maintaining the properties in a state of good repair.
5.That upon settlement of sale of the properties ("the settlement date") the parties shall do all acts and things and sign all documents necessary to pay the proceeds of sale in the following manner and priority:
4.1.In payment of real estate expenses and commission, auction costs (if any), advertising costs and fees and other proper and usual expenses of sale;
4.2.        In payment of the legal costs of sale;
4.3.In payment of the amount required to discharge Bank of Western Australia registered mortgage number 9818404, registered on both properties.
4.4.In payment that reflects an overall property settlement of 75% to the wife.
4.5.In payment of the balance to the husband.
11.That the husband shall provide vacant possession of the [E] Property prior to or on the settlement date of the [E] property.
12.That within 14 days of the date of the Orders the husband shall do all acts and things and sign all documents necessary to transfer to the wife his interest in Toyota Camry motor vehicle registration number […].
7.That within 14 days of the date of these Orders the husband permit the wife access to the [E] property in order that the wife select one half of the contents of that property by value, based on the single expert’s valuation and that the wife retain those items.
~~8         That within 14 days of the date of these Orders:~~
(a)      The husband and the wife shall do all acts and things and sign all documents necessary to appoint a valuer to provide a valuation ("the valuation") of the business known as [Bunt Domestic Service Business] ("the business");
~~(b)      The husband shall pay to the wife an amount equal to 60% of the valuation ("the payment");~~
~~(c)      The wife shall do all things required to transfer her interest in the business to the husband upon the payment; and~~
(d)      In the event that the parties cannot agree on the valuer, the wife shall nominate three valuers in writing to the husband and the husband shall select a valuer from those nominated by the wife.
9.~~In the alternative to Order 8(b) and (c) above, the husband shall do all things required to transfer his interest in the business to the wife for an amount equal to 40% of the valuation.~~
10.That other than as provided for above the husband and the wife shall be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in their possession, ownership or control as at the date of the Orders.
…..
In his Response filed 9 April 2009, the husband seeks orders paraphrased as follows:-
1.That an account be taken of the matrimonial property including the real estate situated at and known as E, being the land contained in Certificate of Title Folio Identifier …; and K being the land contained in Certificate of Title Folio Identifier ….
2.That the Respondent Husband pay to the Applicant Wife the equivalent of the net value, after allowing for all debts and liabilities of the marriage including mortgage debts, in respect of the above real estate accrued at the date of separation, namely 1 April 2006, of such net equity in a sum equivalent to forty per centum (40%) thereof.
3.That paragraphs 2 to 11 of the Application of the Wife be otherwise dismissed.
4.Costs.

Documents read

The wife relied on the following documents:
Financial Statement of the Wife sworn 20 May 2008 and filed 23 May 2008;
Financial Statement of the Wife sworn 5 June 2009 and filed 9 June 2009; and
Affidavit of the Wife sworn 17 June 2009 and filed 19 June 2009.
The husband relied on the following documents:
Response filed on 9 April 2009:
Compulsory Offer of Settlement of June 2009[1].
Respondent Husband’s Affidavits sworn 29 October 2009.
Affidavit of Mr W sworn 2 November 2009.
Financial Statement sworn 2 November 2009.[2]
[1] For obvious reasons I did not read that document and no mention was made of it in the course of submissions on behalf of the husband
[2] The husband was cross-examined extensively in relation to an earlier Financial Statement but beyond his answers, it was not introduced into evidence
The evidence of the single experts is contained in:
Affidavit of Mr P sworn 12 February 2010
Affidavit of Mr S sworn 5 March 2010
Affidavit of Mr Ysworn 5 March 2010
Matters about which findings are required:
1.In respect of the pool of property, liabilities, superannuation and financial resources:
a.The nature of the wife’s beneficial interest in real estate in Israel from her late mother’s estate as being property or a financial resource;
b.The value of such property or financial resource. The husband contends a value of $106,496. The methodology as to the calculation of such quantum contended by the husband is agreed. The wife contends a nominal value.
c.Subject to the evidence, the current market value of the property E.
d.Subject to the evidence, the current value of the business trading as Bunt Domestic Services Business.
e.As to whether the husband and/or the wife and/or either of them remain indebted to the husband’s mother by way of loan in the sum of $20,000 - has the loan has been forgiven or is it not likely to be called upon to be repaid?
f.In the event the sum of $20,000, referred to in e. above is not found to be a sum which either or both parties are indebted to the husband’s mother, whether the same should be found to be a direct financial contribution by the Husband?
g.As to whether the debts of the wife by way of Virgin MasterCard, personal loans, Commonwealth Bank MasterCard and rent arrears should be included in the list of liabilities, or whether they should be taken into account pursuant to s75(2). The quantum of the liabilities as asserted by the wife are not the subject of contest.
h.As to the notional adding back of items of plant disposed of by the husband post separation, subject to the evidence.
4. As to contribution:
a.Subject to contentions as to waste by way of gambling made by the husband and the issue of the loan from the husband’s mother in #3(e) above, the parties agree that up to separation a finding of equality as to contribution should be made. The husband’s contention as to waste includes a finding of fact as to whether the sum of $30,000 borrowed from Mr W was for the purposes of gambling and should be apportioned solely to the wife.
b.Subsequent to separation, the quantum of income received by the husband from all sources and the application of such income.
c.The application of monies borrowed by the wife referred to in paragraph 4a above including the purpose of such borrowings and application of funds.
5.In relation to any adjustment as to the contribution finding by reference to s75(2):
a.The current income received by the husband from all sources;
b.The husband’s income earning capacity;
c.The wife’s capacity for employment and to receive income. The husband concedes that the wife suffers from type 1 diabetes [which the wife says] has affected her eyesight and causes pain in her legs.
d.Subject to the inclusion or otherwise of the wife’s current personal liabilities by way of loans and credit cards in the pool of property, the impact of wife’s requirement to repay the debts on her financial circumstances.
e.The responsibilities of the parties to continue to support the children of the marriage.
f.The wife’s assertions concerning the husband’s compliance with his obligations of disclosure as to his current financial circumstances.
g.The wife’s assertions concerning the impact of the husband’s resiling from his agreement to grant the wife a Gett, an assertion denied by the Husband?
General
The husband by way of his Response filed 9^th April 2009 seeks to retain the E and K properties. The wife does not oppose such relief upon the basis that the husband pays to the wife a specified sum within 28 days of s79 Orders being made, and in default, the properties be listed for sale and sold.
The wife seeks orders as to the return of items of jewellery in specie.

Short history

As at the date of the hearing the wife was 53 years of age and the husband was 57. They started to live together in 1977, were married in 1978 and separated in April 2006. The parties’ divorce became final on 25 May 2008.

Children

There are two adult children of the marriage:
T Bunt who was born in 1984 and as at the date of hearing she was 25 years of age; and
J Bunt who was born in 1985 and as at the date of hearing he was 24 years of age.

Background facts

In 1975 the husband travelled to Israel for the purpose of spending time on a Kibbutz.
In 1977 the parties commenced living together.
The parties were married in Israel in 1978.
In September 1978 the parties settled in Australia in a Sydney suburb.
In 1979 the Husband commenced worked as a domestic services provider Contractor.
In 1980 the husband and wife acquired a 50% interest in a domestic services business for the sum of $12,000. They obtained a bank loan to complete the acquisition. A short time thereafter the husband and wife dissolve the partnership with the third party and retain the gardening aspect of the business.
In 1980 the wife visited Israel.
On 2 March 1981 the husband and the wife purchased the former matrimonial home at E for the sum of $84,000. The husband’s mother gave the parties $33,000 towards the purchase price. The parties obtained a loan from the CBC Savings Bank for $40,000 and applied their savings of $15,000 to complete the acquisition.
In 1983 the wife was diagnosed with Type 1 Diabetes.
On 1 July 1983 the parties entered into a Partnership Agreement relating to the domestic services business.
In 1984 T was born. She is not the natural child of the parties. On 23 November 1984 T was taken into the care and placed with the parties.
In 1985 J was born. He is not the natural child of the parties. In October 1985 J was taken into care and placed with the parties.
Another child, a girl, was also fostered by the parties for a short period.
In 1986 the parties rented the former matrimonial home at E and worked jointly in a community organisation on the Central Coast of New South Wales.
In 1987 the parties undertook renovations to the former matrimonial home.
In 1990 the wife commenced working at an entertainment venue, initially as a Cleaner and later as Shift Manager for a period which continued for 4 years. The husband participated in that work.
In 1992 the wife underwent a hysterectomy.
In oral evidence the wife said that at about the time of the husband’s 40^th birthday, the parties adopted T and J. That would have been in about 1993.
In 1996 the parties undertook further renovations to the former matrimonial home. The parties borrowed moneys from the husband’s mother and otherwise from the National Australia Bank, to conduct the renovations. For a short period they make monthly payments of interest to the husband’s mother.
In 1997 the husband says the wife invested $12,000 in a residential block in Israel.
In 1997 the wife’s mother died in Israel. Her will made no provision for the wife.
On 18 October 1998 the wife and her siblings executed an estate partition agreement. The agreement provides that in the event the wife’s siblings sell their late mother’s Israeli property (Farm 55), she is to receive one third of the proceeds of sale, after payment of expenses and tax. It is asserted, without complaint from the husband, that the wife has no capacity at law to require the Israeli property to be sold.
On 12 November 1999 (the husband says on 1 December 1999) the parties jointly purchased K property for $330,000. They borrowed $453,000 from the National Australia Bank to acquire the property and to meet stamp duty and that borrowing was collaterally secured on the property and the home.
In 2002 the wife commenced working at the S Organisation as an Administrator. She remained in that position until June 2008 when she began work for the C Organisation. It is the wife’s evidence that she worked very long hours in that position. She continued in that position until she relocated to Melbourne in April 2009.
In 2002 the husband observed the wife remaining out late at night.
In 2003 the wife told the husband she had a need for a sum of $50,000 for medical treatment.
In 2003 the wife complained of cancer in the foot and a need for a sum of $30,000 for treatment.
On 26 May 2003 the parties refinanced their National Australia Bank loans with Bankwest for $600,000.
In 2004/2005 the husband undertook the replacement of beams and decking at the former matrimonial home.
The husband says that in 2005 J underwent treatment for depression.
In 2005 the husband took over from wife in dealing with family financial affairs.
The wife contends the parties separated in April 2006 when she moved to a separate bedroom in the former matrimonial home.
On 12 December 2006 the husband unilaterally terminated the partnership by way of letter. Since that time the husband has solely operated the domestic services business and retained all the benefits from that operation.
In March 2007 the wife left the former matrimonial home.
On 1 February 2008 the wife commenced to obtain monies by way of loan from Mr A. The husband says the initial advance was $15,000. As at the date of the hearing the wife owes him $35,000. The wife says that these funds were applied to purchase a car for J, to assist in supporting the children from time to time and to meet the wife’s general living expenses. In June 2009 Mr A agreed to extend the time for the wife to repay the loan to the conclusion of these proceedings.
On 19 March 2008 the wife borrowed $10,000 from B’Nai B’rith. The wife applies these monies to meet her own costs of support and to assist the children. The loan is repayable on the 19^th March 2010.
The parties were divorced on 24 April 2008. The divorce became final on 25 May 2008.
In June 2008 the wife ceased working at the S Organisation and commenced working for the C Organisation.
In July 2008 the wife borrowed a further $10,000.00 from Mr A.
In December 2008 the wife borrowed a further $10,000.00 from Mr A.
On 10 April 2009 the wife resigned from her employment with the C Organisation and moved to Melbourne. As to the reason for the move, the wife says that T lives in Melbourne and that she had no other family in Sydney. The wife has not engaged in paid employment since April 2009.
The wife says that J was diagnosed with depression in April 2009.
In 2009 the husband repainted T’s room in the former matrimonial home.
On 11 September 2009 the husband injured his elbow, fractured a bone in his upper arm and dislocated his shoulder. In cross-examination he conceded that by December 2009 he was again able to maintain the garden at the E property, in pristine condition.

Credit and Submissions

The evidence of the witnesses

The only witnesses called for cross-examination were the parties.
The wife appeared intent on answering honestly the questions put in cross-examination. At times she tried to answer in more detail than was required. There was no instance where she was established to have mislead the Court in evidence in chief or otherwise. She readily made concessions adverse to her case, when requested.
The husband presented as a careful witness. Indeed on some issues he was careful to the point of being pedantic. For example, he initially denied having documents or items in his possession if they were in the possession of his accountant or his solicitor. He was candid (albeit under a certificate pursuant to section 128 of the Evidence Act) in admitting to understating his income to the ATO. By that understatement he also mislead the single expert valuing the business and thereby, this Court. Thus ‘candour’ in the witness box revealed a substantial failure of disclosure and that must adversely impact on the husband’s credit.
As it transpired, there are few significant issues of fact in the proceedings that fall to be determined only by the uncorroborated testimony of the parties.

Submissions

The wife’s written submissions are as follows:
7 CONTRIBUTIONS PURSUANT TO SECTION 79(1) – (4).
Section 79(4) (a)
Financial contributions made directly or indirectly on by or on behalf of a party or a child of the marriage, to the acquisition, conservation or improvement of any property of the parties or any of them.
·     At the commencement of cohabitation, the wife contributed savings originating from her late father’s estate in the sum of US $6,000 (W#4.1.1). The husband at that time contributed savings of $1,500 (H#7(i)).
·     Throughout the period of cohabitation, the wife applied all her income and savings for the benefit of the family.
·     On acquisition of the matrimonial home at [E] on the 3rd March 1981, the parties received a gift from the husband’s mother of $33,000 (W#4.4.2, H#15(2)).
·     At or about the time of acquisition of the [E] property, the wife’s mother loaned to the parties the sum of $5,000 (W#15(3)). A further borrowing of $5,000 was subsequently made by the wife’s mother to the parties. In 1996 the parties borrowed $10,000 from the husband’s mother to meet the costs of some renovations to the [E] home. (W#4.4.4).   The husband may contend, subject to the evidence, that the parties borrowed $20,000 from his mother in 2000. The wife contends, notwithstanding the husband’s mother has loaned funds to the parties, that it is not likely that any of these loans will be “called in”, or in the alternative have been forgiven. Consistent with the dicta in Biltoft[3] the wife contends that notwithstanding an obligation did exist in relation to the said debts, that obligation is not likely on the balance of probabilities to ever have to be repaid.
[3] (1995) FLC 92-614
·     In 1999 the wife’s family provided US $7,000 to the parties to assist in the care of the children and to meet general living expenses (W#4.8.4). In 2005 the wife’s family assisted the child [J] in attending Israel for youth programmes (W#4.8.5). The wife contends that such contributions were made on her behalf
·   The husband has had the benefit subsequent to the separation between the parties and the wife’s vacation of the [E] home (a period approaching 3 years) of:
i.   All of the income generated from the [domestic services] business;
ii. The rental income received from the investment property and the rental income received from boarders occupying the [E] home; and
iii. Had the benefit of occupation of the [E] home in circumstances where the wife has met the costs of rental accommodation.
·By way of an estate partition agreement entered into in Israel on the 18th October 1998, the wife has the benefit of a potential financial resource in agricultural land that formed part of her late mother’s estate. The realisation of that resource is wholly dependent on the absolute discretion of the wife’s siblings, and should such resource be realised, any proceeds would be subject to farming land tax of 50%, realisation costs and distribution as between her siblings. The husband has made no direct or indirect contribution to this financial resource. In the circumstances the resource is contended to be of nominal value.
Section 79(4) (b)
The contribution, (other than financial contributions) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any property of the parties to the marriage.
·During the period of cohabitation, the wife applied her efforts and labours towards the maintenance and conservation of the [E] home.
·During the period of cohabitation the wife assisted the husband with the [labour] and other aspects of the [domestic services] business. (W#4.6.4, H#17).
Section 79(4) (c)
The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any of the children of the marriage, including any contribution made in the capacities of homemaker and parent.
·Throughout the period of cohabitation, the wife was the person who was primarily responsible for caring for the children on a day to day basis. The husband assisted in the care of the children especially when they were younger subject to his employment in the [domestic services] business (W#2.5 to 2.8, H#40, 41). The husband contends that he was working for 55 hours / 6 days each week.
·   Throughout the period of cohabitation, the wife was the person who was responsible for the domestic tasks in and around the home (W#3.1).
Section 79(4) (e)
These are matters referred to Sub Section 75(2) as far as they are relevant:
THE WIFE CONTENDS THAT HER CONTRIBUTIONS UP TO THE DATE OF HEARING SHOULD BE FOUND TO BE 50%.
9.    FACTORS TO BE CONSIDERED PURSUANT TO SECTION 75(2)
Section 75(2) (a)
The age and state of health of each of the parties;
·The husband is aged 57 years.
·The husband is in good health.
·The wife is aged 53 years.
·The wife is in poor health. The wife suffers from Type 1 diabetes. This has affected her eyesight. She finds it difficult to read and cannot drive a motor vehicle. She has constant pain in her legs.
·The husband concedes that renovations were occasioned to the [E] home so as to “obviate the need for (the wife) to climb and ascend the stairs) (H#30).
Section 75(2) (b)
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
·The husband presently receives a substantial income from the operation of the parties’ business.
·The single expert opined that a reasonable salary component/ allowance of the business enterprise is $80,000 per annum, and that such benefits together with additional profits (by reference to the published financial statements) have been received by the husband for the last 3 years.
·The wife is presently not engaged in employment and is in receipt of Centrelink benefits.
·The wife is unlikely to engage in employment in the future.
·The husband will at all times enjoy a substantially superior income earning capacity to that of the wife.
·The husband proposes to retain the benefit of the [E] home and the income produced from the boarders in that property.
Section 75(2) (d)
Commitments of each of the parties that are necessary to enable the party to support;
(i)       himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
·The wife receives insufficient income to meet her periodic needs and has borrowed monies to support herself subsequent to separation.
Section 75(2) (e)
The responsibilities of either party to support any other person;
·Both the husband and the wife have considered it appropriate during the marriage to provide financial support for each of the children subsequent to their attaining their majority. [J] has required psychiatric help for depression (H#45, W#7.3 & 7.4).
·The parties have individually provided financial support for the children subsequent to separation include acquiring motor vehicles for them and providing them with monies from time to time when required (H#43, 44, 46, W#7.3.5, 7.4.3, 7.4.4).
·A portion of the loans presently owing by the wife have been incurred in supporting the children.
Section 75(2) (f)
Subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under –
(i)         any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
·Both parties have the benefit of superannuation entitlements. The value of the husband’s superannuation are slightly greater than that of the wife. Neither party seeks a superannuation splitting order. The wife contends that the superannuation entitlements of the parties should be included in a single pool of property.
·The wife is in receipt of a Centrelink benefit.
Section 75(2) (g)
Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
·The wife’s standard of living has substantially decreased subsequent to separation.
Section 75(2) (m)
If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
·The husband cohabits with boarders in the home. He receives financial benefits from such circumstance.
Section 75(2) (o)
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account; and
·Subject to the evidence, the wife contends that the husband has failed in his obligations of disclosure.
·The husband may contend the wife has occasioned waste by gambling. The wife puts into issue such finding of waste.
·The wife contends that any financial resource she has by way of her interest in the property in Israel is of nominal value.
·Both parties consider it appropriate to continue to individually financially support the children after separation.
·The husband solely retains the benefit of occupation of the home and the income produced by boarders in that home, the income produced from the investment property and income produced by the parties’ business subsequent to separation. The wife was required to borrow monies in order to meet her reasonable periodic costs of support.
·The husband has agreed to grant the wife a gett. He now appears to have resiled from that position. The refusal of the husband to grant the wife a gett will effectively prevent the wife from remarrying and gaining the benefit of additional financial support, which might come from that remarriage. The wife contends that the husband’s approach is vindictive. In effect, the husband has control of a potential financial resource of the wife².
THE WIFE SUBMITS THAT THERE SHOULD BE AN ADJUSTMENT OF 15% IN HER FAVOUR AS A RESULT OF THE SECTION 75(2) FACTORS
ACCORDINGLY THE WIFEWOULD HAVE 65% OF THE AVAILABLE PROPERTY.
The issue of the wife securing a Gett was resolved by the parties and the submissions made in relation to that issue need not be set out in these reasons.
The written submissions on behalf of the husband are:
I. Contribution-based entitlement.
Subject to the evidence contributions of the following types will be alleged by the Husband under Section 79(4) (a), (b) and (c), namely:-
(a)The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition conservation or improvement of any of the property of the parties to the marriage ...
1.   The Husband, at the date of marriage contributed his savings of approximately$1,500.00 in cash[4];
[4] Paragraph 7 of the Husband’s Affidavit
2.   The Husband contends that the Wife possessed nominal savings at the date of marriage[5];
[5] ibid
3.   The Husband was in full-time employment throughout the marriage;
4.   As a result of the Husband’s enterprise in his business, the parties saved a deposit to purchase the former matrimonial home and were able to amortise their mortgage advance on the former matrimonial home[6];
[6] Paragraph 14 of the Husband’s Affidavit
5.   As a result of the Husband’s employment and the assets acquired by the parties, the parties were able to acquire an investment property on 12 November 1999[7];
[7] Paragraph 23 of the Husband’s Affidavit
6.   The Husband contributed his earnings towards the renovation of the former matrimonial home[8];
[8] Paragraphs 29 and 30 of the Husband’s Affidavit
7.   The Husband financially supported the family constituted by the wife and the two children of the marriage in their schooling, extra-curricular activities and tertiary education primarily with his earnings;
8.   The Husband paid for Health Insurance for the family until 2008 and continues to do so for the child [J][9].
[9] Paragraph 47 of the Husband’s Affidavit
9.   During the marriage and post separation, the Husband has attended to the payment of mortgage and loan instalments, land rates, water rates and all outgoings on the former matrimonial home including repayment of the Wife’s liabilities[10].
[10] Paragraphs 47 and 50 of the Husband’s Affidavit
(b)The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage ... to the acquisition conservation or improvement of any of the property of the parties ...
1.   The Husband and Wife jointly arranged for the purchase of the investment property at [K];
2.   The Husband participated in renovating and redecorating the former matrimonial home, including the addition of a second storey involving stairs, a new bathroom, bedroom and a study[11];
[11] Paragraphs 29, and 33 to 36 of the Husband’s Affidavit
3.   The Husband undertook regular maintenance and repairs to the former matrimonial home including painting, repairs to the roof, mowing of lawns, landscaping the gardens and general cleaning work[12].
[12] Paragraphs 33 to 36 of the Husband’s Affidavit
(c)The contribution made by a party to the marriage to the welfare of the family ... including any contribution made in the capacity of homemaker or parent;
1.   The Husband took part in the raising, education and well being of the children of the marriage on a day to day basis[13].
[13] Paragraphs 39 and 40 of the Husband’s Affidavit
2.   The Husband devoted his time entirely to his employment and to the needs of the family[14].
[14] Paragraphs 40 and 41 of the Husband’s Affidavit
J. Other matters
Subject to evidence the Husband will allege the following matters are relevant under s79 (4) (d), (e), (f) and (g) and s75(2) namely:-
S.79(4)(d) - the effect of any proposed order upon the earning capacity of either party to the marriage.
The Husband’s sole income is his [domestic services] business which relies on the goodwill generated by him.
S.79(4)(e) the matters referred to in sub-section 75(2) so far as they are relevant:
S.75(2) (a) The age and state of health of each of the parties;
1.The Husband is 57 years of age and in reasonably good health;
2.The Wife is 53 years of age and she contends she suffers from Diabetes[15].
[15] Paragraph 6.6 of the Wife’s Affidavit sworn 14 January 2010
3.There is no evidence that the Wife’s state of health affects her capacity for employment.
(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
1.The Husband’s financial position is as set out in his Financial Statement filed on 2 November 2009;
2.The Husband may have limited time remaining in his employment [in the domestic services business] concerning the physical aspects of that work[16].
[16] Paragraph 57 of the Husband’s Affidavit
3.The Wife was in fulltime employment until 2009, when she voluntarily gave up this position of employment[17].
[17] Paragraph 4.2.5 of the Wife’s Affidavit
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Not Applicable
(d) commitments of each of the parties ...
The commitments of the Husband and the Wife are listed in their Financial Statements.
(e) the responsibilities of either party to support any other person;
The child [T] is now financially independent.The child [J] resides in Perth in Western Australia and has been undertaking university studies.The Applicant Wife and the Respondent Husband reside in Melbourne and Sydney respectively.
(f) eligibility for a pension allowance or benefit ...
1.The Husband is not in receipt of any Centrelink benefits.
2.The Wife discloses receipt of a New-Start Allowance in a sum of $265.26 per week[18].
[18] Wife’s Financial Statement filed on 29 January 2010
(g) where the parties have separated a standard of living that in all the circumstances is reasonable;
Not Applicable.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
Not Applicable.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income earning capacity property and financial resources of the other party;
Not Applicable.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The parties cohabited for 28 years. During the entire period of cohabitation, it will be submitted that the Husband dedicated his life to the marriage in the sense of earning an income and further, in the sense of providing support and care for the Wife and the family.
(l) the need to protect a party who wishes to continue that party’s role as a parent;
Not Applicable.
(m) if either party is cohabiting with another person- the financial circumstances relating to the cohabitation;
The Husband has not cohabited with another person until two weeks ago.
(n) the terms of any order made or proposed to be made under S.79 ...
To be taken into account.
(na) any child support payable ...
Not Applicable.
(o) any fact or circumstance which in the opinion of the court, the justice of the case requires to be taken into account;
Not applicable
The Wife’s Application for Adult Child Maintenance:
So far as the Respondent Husband is aware, the child [J] is a person who is sui juris and in the circumstances the Applicant Wife has no standing to bring proceedings on his behalf.That is a matter for [J].
K. Conclusion
1.The net asset pool available for distribution to the parties is likely to be $692,931.00.
2.On the principles of Norbis and Norbis, it is submitted that a global approach is appropriate.
3.It will be submitted that at separation contributions made by the Husband amounted to approximately 60% and it will be argued that due to wastage of assets by the Wife through the Wife’s gambling there was a consequential need for the parties to refinance.
4.Further, it will be submitted that the Wife’s significant gambling debts and subsequent personal loans to B’Nai B’rith, Mr [A] and credit card debts should be considered against the Husband substantially reducing matrimonial liabilities post separation.
5.It will be submitted that the Husband’s significant contributions post separation should also be taken into account.
6.It will be submitted that by virtue of the section 79(4)(e) and S.75(2) factors relating to the age of the Husband and his capacity for employment that no allowance should be made in favour of either party.
L. Effect of orders sought
The effect of the orders sought by the Husband, it is submitted, would result in a just and equitable division of the matrimonial property of the parties which reflect the parties’ respective contributions and section 75(2) factors.

The approach in proceedings under section 79

The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 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. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [19]
[19] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370
There is no mention of steps in section 79 but it is convenient to approach the exercise of discretion in a structured way. The Full Court has supported such an approach.[20]

[20] See Hickey above

The property of the parties at the date of the hearing

The Court is required to make a finding as to the property of the parties. That involves identifying assets, liabilities and financial resources and their values.
There are circumstances whereby assets are included in the list for division although they no longer exist. The same logic would apply to the exclusion from the relevant list of liabilities, debts that do exist at the date of the hearing. In the Marriage of Omacini (2005) 33 Fam LR 134 the Full Court noted:
[30]     To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)      Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b)      Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c)      In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)      where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)      where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.
The parties worked off an agreed balance sheet. The issues left to be determined relate to:
The value of the E Property
The agreed balance sheet revealed a dispute between the parties as to the value of the former matrimonial home. The husband contends for a value of $725,000, in accordance with the opinion of the single Expert, Mr P. The wife arguing for a value of $800,000. In the days prior to the hearing the solicitor for the wife wrote to Mr P, with a copy to the husband’s solicitors, drawing the attention of the expert to certain recent sales and enquiring whether, in light of those sales and an apparent general movement in the local market, the expert wished to revise his opinion. In the course of cross-examination of Mr P it became apparent that there was a lack of effective communication with Mr P. On receipt of the letter Mr P wrote back to the effect that he would prefer to deal with the letter orally – during the hearing. The thrust of his evidence before me was that if a revised valuation was needed then that could not be achieved in a letter responding to questions about particular recent sales. In order to revisit his opinion, he needed to undertake further enquiries and submit a report, updating his December 2009 report. There was tacit acceptance of Mr P’s response and at the conclusion of the oral trial I made orders by consent for an updated report.
The updated report was provided to my chambers on 6 April 2010. No application was made on behalf of either party to relist the matter pursuant to leave granted for that purpose. Thus there is no dispute in relation to the updated report. The E property has a value of $790,000.
The husband’s savings
In cross-examination the husband was asked about any cash on hand. He said that he had about $200. It is submitted on behalf of the wife, without complaint on behalf of the husband, that the $200 should be added to the list of relevant assets. In those circumstances I will include that item in the pool.
The husband’s IAG shares
The husband has IAG shares. The agreed balance sheet has different figures for the value of the share. There were no submissions about this dispute. In his Financial Statement the husband puts the shares at $3,352. I will include them in the list of assets at that value as an admission against interest.
Stamp Collection
The opinion of the single expert valuer, Mr S, is accepted by the parties. Counsel for the husband asked that I note the reference in the expert’s report to the fact that a commission would be paid on sale. It is conceded however in the husband’s case that he does not intend to sell the stamp collection. On that basis there is no need to take into account that potential cost.
The wife’s Toyota Prado motor vehicle
The parties have included different figures for the wife's motor vehicle in the agreed balance sheet. There is no valuation evidence in respect of the vehicle. The wife has estimated a value of $4,800. I will include that figure in the list as an admission against interest.
The Domestic Services Business
Mr Y is the single expert appointed to value the business. He valued the business at $21,700. His report makes it clear that he relied on the information supplied to him by the husband. He employed a Capitalisation of Earnings methodology. He relied for his valuation on the declared income figures for the business for the last three years.
Mr Y was not told that the declared income figures understated the income of the business. The husband conceded in cross-examination that the 2008 figure was understated by as much as $30,000 and that the 2009 figure was understated by about 10% (which represents $12,000). I assume that the 2007 figures were similarly understated. The income figure, less an allowance for reasonable wages for the husband, was used in a formula employed by the Valuer. The understatement of income means the valuation is understated. It was conceded in the wife’s case that there is no other evidence of valuation and she did not press for an adjournment to have the revised figures put to the Valuer. The husband says that he does keep any records of his undeclared income. The effect of his evidence is that in addition to his formal accounting documents, he maintains a workbook or journal that records the work he undertakes. It is his practice to throw the journal away soon after the end of each financial year. The journal does not record amounts actually paid for work and for this reason is also unreliable in relation to income as opposed to work invoiced. The husband does not have the journals for the 2008 or 2009 years. I assume he has no journal for any earlier year. Thus even if the Valuer was asked to revise his opinion, there is no reliable information about the real income figures. Why the husband thinks his income from 2008 might have been understated by as much as $30,000 and yet the 2009 figure was only understated by $12,000, is not explained. It is the husband’s obligation to explain these things.
Thus the business is valued at $21,700 and I am left to deal with the fact that the business has a higher value together with the husband’s lack of disclosure, under section 75(2).
Contents of the E property
There is no challenge to opinion of the single expert Valuer, Mr P, who put the contents at $6,768. Counsel for the wife asked that the court deal with the matter by allowing the wife access to the former matrimonial home to select half of the items by value, based on Mr P’s valuation. By seeking no orders himself save for the dismissal of the wife’s application about household contents, the husband’s formal application is that he retain the contents of the E property. However, in the course of his cross-examination the husband made it clear that, although not until the final settlement of property he intended to return some items to the wife. I told that parties that I would not make an order requiring the husband to permit the wife to attend at the property. The parties do not enjoy a good relationship and whether they were alone or supported by friends or family there is the potential for unpleasantness at such an event. I will make an order for pick-a-pile distribution with the wife to divide the contents into two lists of approximately equal value, on the basis of the expert's valuation. The husband can then elect to retain the contents of one of those lists. Leave will be granted to the parties to restore the proceedings in the event that that process is not satisfactory. On that basis I will omit the household contents from the list of assets.
Paid costs
As to Items 14 and 15 of the agreed balance sheet, there is evidence in the form of the cost advice letter from his solicitor as to the husband's source of funds and oral evidence from the wife as to the source of funds for her payments.
The husband has paid $11,265. His Costs Notice[21] states that the source of the funds was the Bankwest Lite Transaction Account. The balance of that account is included in the agreed list of assets. I am satisfied that the pool of assets would be greater but for those payments. On the basis of the approach described in In the Marriage of DJM and JLM I will include that amount as a notional asset.
[21] Exhibit 4
The wife has paid $14,401.92. The Costs Notice[22] states that the funds came from a combination of her own funds (I take that to mean post separation earnings), a credit card and personal loans. I have no record that any more definite evidence was given. The wife has substantial borrowings from the period after separation. Those borrowings are included in the list of relevant liabilities. In the circumstances I assume those borrowings would have been less than they are but for those payments. On the basis of the approach described in In the Marriage of DJM and JLM I will include that amount as a notional asset.
[22] Exhibit 4
Proceeds of Sale of Business Plant and Equipment
As to Item 16 in the agreed balance sheet it is sought on behalf of the wife to include a figure of $2,000 for the proceeds of sale of plant and equipment from the business. It was submitted on behalf of the wife that the husband conceded that figure in the course of cross-examination. That is not my recollection. My record shows the question to which the husband conceded words to the effect “a maximum value of $2,000” related to or appeared to be taken by the husband to relate to the current value of the business plant and equipment. The husband went into some detail about a change in his approach to equipment. Some years ago he decided not to buy new items of equipment but to retain or acquire used equipment. Where practicable he keeps the bodies of the machinery but has the motors replaced. It was the husband’s evidence that he sold no equipment, that the items that disappeared off the depreciation schedule were out of service and were thrown away.
I will not include a figure for the sale proceeds of plant and equipment.
The Wife’s Interest in Land in Israel
The wife has an interest in land in Israel. On 18 October 1998 the wife and her siblings executed an estate partition agreement. The agreement provides that in the event the wife’s siblings sell their late mother’s Israeli property (Farm 55), she is to receive one third of the proceeds of sale after payment of expenses and tax. It is agreed that the share has a value to her of $106,496.20 but it is also agreed that there will be some taxes paid in the event of a sale. It is asserted in the wife’s case, without complaint on behalf of the husband, that the wife has no capacity at law to require the Israeli property to be sold.
I do not propose to include this interest as an asset. It is far from a readily accessible asset. The restrictions on accessing the interest are not a contrivance associated with these proceedings. The relevant interest came into being in 1998, long before separation and the property has not been sold in the intervening period. The property might never be sold.
Even if the interest was included in the list of relevant assets, there is no suggestion that the husband made any contribution to it, nor that it was relied on or brought into the marriage in any sense. There is no evidence that financial sacrifices were made because of the interest. The proper course is to deal with the interest as a financial resource.
I find that the assets are:

ASSETS

VALUE

E property (H)

$790,000.00

K property (H)

$490,000.00

Bankwest Lite (H)

$25,513.19

BankWest Equity Release Account

$19,129.90

Husband’s cash on hand

$200.00

IAG Shares

$3,352.00

Husband’s Stamp Collection

$4,253.00

Domestic Services Business

$21,700.00

Husband’s paid legal costs

$11,265.00

AMP Flexible Lifetime superannuation (H)

$86,965.49

ANZ Access Account (W)

$1,100.00

Toyota Motor Vehicle (W)

$4,800.00

Wife’s paid legal costs

$14,401.92

AMP Personal Super Plan (W)

$49,133.06

Zurich Retirement Plan (W)

$24,699.02

Gross assets

$1,546,512.58

Liabilities:

As to the disputed debts:
The husband’s $20,000 Debt to his Mother
It is an agreed fact that the husband’s mother lent the parties $20,000. The versions of evidence given by them differ as to whether the advance was in one or more than one tranche but the fact of the advance is agreed. The argument on behalf of the wife is that the debt should not be included in the balance sheet because it will never be called in.
The advance was made in about 1996. The parties made payments of interest to the husband’s mother but after a period those payments ceased. In the context of these proceedings the husband has had discussions with his mother about her advancing him further funds to assist in buying the wife out. The husband understands that his mother might have $400,000 but does not know whether she will ultimately advance that amount or any particular amount to him. In the course of those discussions the husband was given to understand that funds advanced to him are likely to be by way of an anticipation of his interests pursuant to his mother’s will. Thus the husband would not be required to repay those funds.
In Prince & Prince & General Credits Australia Limited & Attorney-General for State of Queensland & Attorney-General for the Commonwealth of Australia (1984) 9 Fam LR 481; FLC 91-501 the Full Court cited with approval a comment from Af Petersens and Af Petersens (1981) FLC 91-095 in the following passage:
The assessment of debts and liabilities is not necessarily arrived at by a strictly mathematical or accountancy approach in all cases. While some liabilities are charges upon the property which can be accurately assessed at a certain date, others are at large, or have not been precisely determined, e.g. tax liabilities (Kelly and Kelly (No. 2) (1981) FLC ¶ 91-108 p. 76,801 ). In some cases the amount of the liability can only be estimated generally (Albany (supra) , p. 75,717). The Court can make an allowance for a particular liability if appropriate to do so. In some cases there are sufficient uncertainties as to the alleged liability to lead the Court to disregard it entirely or partly (e.g. a loan from a parent of the party not likely to be enforced; Af Petersens (supra); Quirk (1983) unreported). In other cases, the Court may take the view that because of the circumstances
The loan from the husband’s mother is not likely to be repaid. The husband had notice that the wife put that loan into contention. No evidence was called from the husband’s mother. The husband conceded that his mother could have given evidence. Interest payments ceased some time ago. I will not include the loan as a relevant liability. The advance has status as a contribution on behalf of the husband but not otherwise.
The wife’s Personal Liabilites
The wife owes the following amounts:

Virgin – Mastercard (W)

$16,016.00

B'Nai Brith (Personal Loan) (W)

$10,000.00

Mr A (Personal Loan) (W)

$35,000.00

Commonwealth Bank Mastercard (W)

$1,474.00

Wifes’s Personal Loan

$40,000.00

Wife’s rent arrears

$4,125.00

Total

$106,615.00

There is no issue about the debts being owed. Indeed, it is conceded on behalf of the husband that they be included in the list of liabilities. The husband however argues that those loans or some part of them represent waste through gambling and warrant an adjustment to him on contributions after separation, or a reduction in any adjustment to the wife under section 75(2).
The relevant liabilities are:

LIABILITY

BALANCE

BankWest Gold Home Loan …-1

$331,244.66

BankWest Gold Home Loan …-3

$48,712.23

BankWest Gold Home Loan …-9

$107,245.43

Virgin – Mastercard (W)

$16,016.00

B'Nai Brith (Personal Loan) (W)

$10,000.00

Mr A (Personal Loan) (W)

$35,000.00

Commonwealth Bank Mastercard (W)

$1,474.00

Wifes’s Personal Loan

$40,000.00

Wife’s rent arrears

$4,125.00

Husband's Mastercard

$1,419.00

Gross liabilities

$595,236.32

Net assets

The net assets have a value of $951,276.26 ($1,546,512.58 - $595,236.32). Of that sum $160,797.57 is in the form of superannuation.

Financial Resources

Financial Support for the husband from his family

In the context of these proceedings the husband has had discussions with his mother about her advancing him further funds to assist in buying the wife out. The husband understands that his mother might have $400,000 but does not know whether she will ultimately advance that amount or any particular amount, to him. In the course of those discussions the husband was given to understand that funds advanced to him are likely to be by way of an anticipation of his interests pursuant to his mother’s will. Thus the husband would not be required to repay those funds.
Albeit that no particular sum was identified, the husband had a conversation with his uncle about an advance of funds and believes that some assistance could be available from that source if needed. The husband has a financial resource in the form of members of his family.
The Wife’s Interest in Land in Israel
As is set out above, the wife has an interest in land in Israel. In the event the wife’s siblings sell their late mother’s Israeli property (Farm 55), she is to receive one third of the proceeds of sale after payment of expenses and tax. It is agreed that the share has a value to her of $106,496.20 but it is also agreed that there will be some taxes paid in the event of a sale. There is no evidence to the effect that the property will be sold or when. The interest represents a financial resource to the wife.
Otherwise there is no evidence of either party having any financial resource.

Contributions

The obligations placed on the Court by s 79 call for an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets[23]. There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of parties[24].
[23] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1
[24] In the Marriage of Shewring (1987) l2 Fam LR 139
As to whether the Court should apply the considerations in section 79(4) to the assets globally or asset by asset, the authorities have it the former approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.

100. In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:
“… approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.”

Here the submissions were made on a global basis and I will adopt the same course.

Contributions

Section 79(4)(a) Contributions

Financial contributions, both direct and indirect were made by each of the parties.
The parties had little by way of assets when cohabitation started. They worked as foster carers, cleaning and other work at and in the business. More recently the wife had employment for a Jewish social organisation. The husband’s focus has been the business and since separation he has had sole control.
The parties received income from real estate in the form of tax free income from boarders at E property and rent from the K property. The husband’s mother gave the parties money at several points. Something in excess of $50,000 came in from that source.

Section 79(4)(b) contributions

This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
Apart from work in the business, there is little evidence about contributions of this type.

Section 79(4)(c) contributions

This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
The division of labour between the parties necessarily left much of the parenting role to the wife. Although the wife had a role to play in the business in relation to financial matters. The husband was the principal agent in the business.
The wife made a greater contribution by way of homemaker and parent than the husband.

Conclusion on Contribution

It is argued in the husband's case that the contributions favour him overall 67% compared to 33% to the wife. It is argued on behalf of the wife that the contributions were equal to the date of hearing.
It is agreed that the contributions made up until separation were equal.
The focus then is on the events after separation.
The advances from the husband’s mother were made many years ago and in my view would not warrant a departure from the formally agreed position on contribution to the date of separation. The husband's argument is substantially based on his reduction of debt since separation by of the order of $140,000 and on the wife incurring substantial debt. It is argued that I can be satisfied that the wife made inappropriate payments for the benefit of the adult children.
The husband’s case does not make sense. He argues for a 17% allowance because of the imbalance of contributions since separation. The assessment of contributions is not a mathematical exercise but in the context of these proceedings 17% represents about $160,000 and an adjustment of that amount would mean a difference between the parties of twice that sum. Such an adjustment could not be warranted by the evidence in this case. The reduction in debt was $140,000 and the wife’s debt amounts to $106,000. If I found for the husband as to every dollar of those sums, they could not justify an imbalance of $320,000.
There is no issue about the reduction in the parties’ secured debt by the husband since separation. However, of the parties only the husband was in a position to make that contribution. For the last three years, while the wife lived in rented accommodation, he had the exclusive use of every substantial asset of the marriage – the business and the E and K properties. I deal with the issue of the wife’s gambling later in these reasons but suffice it to say that the husband was not able to make that case.
As to financial support provided by the wife to the adult children, this is not a serious issue. It has pleased the parties to provide support to the children at various times and in various ways. That support continued after the children became adults. For all that this point is argued in his case, the husband too has been very generous to both children. He cannot sustain an argument that the wife’s assistance to them represents a diversion of matrimonial funds. The parties have acted as loving parents should and their support of T and J reflects great credit on them.
Significant contributions have been made parties over a very long period. They came to Australia with very little and made a good life for themselves and their children. There were advances made from the husband’s mother. On the other hand the husband has a greater financial resource than the wife. However, in the context of cohabitation spanning nearly 30 years, I find that the various contributions of the parties would properly be acknowledged by a finding that they were made equally.

The other matters in Section 79

Once contributions have been assessed, the other factors in section 79(4) need to be considered. They are:
Section 79(4) (d)
Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. No submissions were addressed to this issue. The wife no longer seeks the sale of the business. In those circumstances it is hard to see how the proposed orders would effect the parties’ earning capacities.
Section 79(4)(e) - Section 75(2) Factors
The relevant matters in Section 75(2) would seem to be paragraphs (a), (b), (e), (j), (k) and (o).

(a) the age and state of health of each of the parties;

First, as to the age and state of health of each of the parties. As at the date of the hearing the wife was 53 years of age and the husband was 57. The husband suffered injuries in about September 2009. He was mended later that year. There is no probative evidence about his health. The wife underwent a hysterectomy during the marriage and in 1983 she was diagnosed to suffer from Type 1 Diabetes. The wife has some restrictions in her mobility. Indeed many years ago the parties arranged renovations to the E home to assist the wife in that regard. The wife has been recently treated for damage to her retinas and that is likely to be a consequence of her Diabetes. The wife says that she is restricted in her capacity to work at a computer screen for more than 2 hours without a blurring of vision. There is no medical evidence as to the wife’s prognosis.

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

The wife’s income is $265.26 per week by way of Newstart Allowance.
The wife lives in rental accommodation in Victoria and she lives alone.
My arithmetic does not reconcile with that in the wife’s Financial Statement. By my reckoning the wife’s expenses are:

Expense

Amount

Rent[25]

$125.00

Motor vehicle insurance – GIO

$28.00

Private Health Insurance - MBF

$27.00

Motor vehicle registration Toyota Prado

$12.00

Repayments of personal loan to Mr A

$52.00

Repayments on Virgin Mastercard

$53.00

Repayments on Commonwealth Bank Mastercard

$8.00

Food

$100.00

House supplies

$15.00

Gas

$8.00

Electricity

$21.00

Petrol

$55.00

Car maintenance

$15.00

Clothing and shoes

$20.00

Medical dental and optical

$117.00

Chemist pharmaceuticals

$32.00

Books and magazines

$5.00

Gifts

$25.00

Hairdressing, toiletries

$15.00

Education expenses for a child

$32.00

Living expenses for J

$340.00

Total

$1105.00

[25] It is the wife’s evidence that she has an agreement with her landlord that her rent will accumulate and will be paid out upon the settlement of these proceedings

Of those categories of expenses, the wife pays $372 for the benefit of the children.
The agreed evidence about the wife’s assets and liabilities is set out earlier in these reasons.
As to the wife’s earning capacity, she is seeking employment but is not confident about securing what she wants. It is the husband’s case that the wife was fully engaged in paid employment until relatively recently and voluntarily gave up that employment. It is the husband’s case that the wife is not fully exercising her earning capacity.
The wife was working Monday, Tuesday and Wednesday from 7.30 am to 10.30 pm and normal hours on Thursdays and Fridays. She asked her employer if she could work fewer hours but that could not be accommodated. She then worked in a short term job in C Organisation. That job ceased in February 2009. In April 2009 the wife then moved to Melbourne. Since arriving in Melbourne the wife has contacted UIA, Jewish Care, the Designers Federation of Australia, Montefiori Home, King David School, Yavna School and is registered with a work placement organisation. It is the wife’s assessment that she is not capable of a full-time job.
Of relatively recent times the wife had paid employment. The wife has been actively seeking paid employment. I am satisfied that she has a capacity for paid employment. There is no probative evidence as to why the wife would restrict her search for jobs to those within the Jewish community. I am satisfied that the wife has unexercised earning capacity. That said, the wife has long standing health problems affecting her mobility and the type and duration of work she could reasonably take on. The wife is 53 years of age. We do not live in times of full employment and the wife’s move to Melbourne in April 2009 may well have restricted her employment options. Whatever employment the wife can reasonably aspire to, she cannot expect an income of the order of that enjoyed by the husband, or anything like it.
The husband says that he earns $2,865 per week made up of $1.00 in share dividends, $415 per week rent on the K property, $350 in board and $2,099 per week from the business. As is set out above, the business income figure is likely to be understated. The husband is able to claim some expenses associated with his accommodation.
The husband lives at the E property with the boarders. The husband’s Financial Statement does not make sense of the boarding arrangement. The husband receives $350 per week in board but according to his Statement, pays no expenses to feed the boarders. He says that the $1,212 being the “Total of all other expenditure” is made up of his personal expenses of $308 and business expenses of $904.
The husband deposes to the following expenses:

Expense

Amount

Income tax

$200.00

Superannuation contributions – AMP Life

$46.00

Mortgages - Bankwest

$276.00

Rates & unit levies

$60.00

Other mortgage payments – K property - Bankwest

$498.00

Other rates and unit levies

$100.00

Motor vehicle insurance premiums – AAMI

$6.00

Health Fund contributions - MBF

$43.00

CTP motor vehicle insurance - AAMI

$12.00

Motor vehicle registration – Holden Barina

$7.00

Business expenses

$904.00

Other expenses.

$308.00

Food

$100.00

House supplies

$45.00

House repairs

$40.00

Electricity

$50.00

Telephone

$10.00

Clothing and shoes

$2.00

Medical dental and optical

$20.00

Entertainment & hobbies

$7.00

Chemist pharmaceuticals

$10.00

Cleaning

$4.00

Repairs furnishings and appliances

$10.00

Gifts

$5.00

Hairdressing, toiletries

$5.00

Sub-total

$308.00

Total

$2460.00

The husband says in his Financial Statement that, included in those expenses is $20.77 he pays for J’s MBF health benefits. It is not suggested that the husband is not exercising his earning capacity but I note that he is 57 years of age and I take judicial notice of the fact that he is engaged in a physically demanding occupation.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

The parties’ children are adults.

(d) commitments of each of the parties that are necessary to enable the party to support:

himself or herself; and
a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

I have set out the evidence in relation to the parties’ expenses.

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

any law of the Commonwealth, of a State or Territory or of another country; or
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,

and the rate of any such pension, allowance or benefit being paid to either party;

The wife receives a Newstart Allowance. The parties have interests in superannuation funds.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

There is little evidence in relation to the standard of living of the parties during the marriage.

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

Neither of the parties intends further study or to set up in a new business.

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

This is not a relevant matter.

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

The background facts support a finding that the wife undertook the main parenting role and that allowed the husband to maintain employment on a full-time basis. Until recently, the wife undertook the household finances and undertook the banking for the business. The husband undertook the hands-on aspects of the business.

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The corollary of the benefit of the wife’s efforts to the husband has been that the marriage restricted the wife’s earning capacity. She was not able settle into any field of remunerative endeavour. She thereby lost the benefits of a long history of full-time employment such as superannuation, leave entitlements and opportunities for promotion.

(l) the need to protect a party who wishes to continue that party's role as a parent;

The parties have each provided support to the adult children. No case is made out that the provision of such support will limit the earning capacity or income of either party.

(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

143. I have set out that evidence above.

(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

There is no child support assessment.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

The husband failed to disclose his income, which in turn means that the value attributed to the business is understated. Financial disclosure is a condition precedent to a proper outcome in financial proceedings. The authorities have it that where there is a failure to disclose, the Court has greater freedom in dealing with the disclosed assets.
As to the argument made in the husband’s case about waste committed by the wife – the wife conceded that she spent time in premises licensed for gambling and that she gambled. The problem comes in identifying the fact and extent of waste. The wife regularly spent time in licensed premises, regularly drew funds from ATM's at those premises and some of those moneys were applied to gambling. It is possible that something of the order of $4,000.00 a year[26] was withdrawn at licensed premises. On the other hand, the husband conceded that the relevant account was the main working account of the family. The import of that being that funds for living expenses had to be withdrawn from somewhere.
[26] Exhibit 6
It is not possible to identify substantial waste by gambling from that evidence. The husband was not able to make the case that the wife wasted substantial funds. He was not able to quantify the losses and therefore the waste argument is not made out.

(p) the terms of any financial agreement that is binding on the parties.

There was no binding agreement made between the parties.
Section 79(4)(f)
There are no other relevant orders made under the Family Law Act 1975.
Section 79(4)(g)
There is no child support assessment.

Conclusion

In final submissions learned counsel for the wife argued that rather than the 15% adjustment contended for in his written submissions, as the evidence had fallen there should be a 25% adjustment to the wife under s75(2). Initially the husband's case was that no adjustment is warranted. In final submissions it is argued that no more than 5% should be allowed to the wife.
As to the matters referred to above the important factors are:

ØThe wife’s health is compromised;
ØThe wife has an earning capacity which is currently not being exercised. Nevertheless, the husband’s income and earning capacity are far greater than those of the wife. As to that part of his income sourced in the domestic services business, at 57 years of age the husband will not be able to continue in an active role indefinitely;
ØThe husband’s financial resources are likely to be more valuable than those of the wife;
ØEach of the parties has provided financial and other support to their adult children but of recent times, more of the support has been provided by the wife;
ØIt was the parties’ arrangement that the husband was the principal of the business, with the wife undertaking some financial work for the business and the family and the main parenting role. That arrangement both assisted the husband to focus on the business and adversely affected the wife’s earning capacity;
ØThe husband failed to disclose the extent of his income and thereby caused the value of the business, to be retained by him, to be understated.

In accordance with the approach advanced for both parties, these matters all call for an adjustment in favour of the wife. She seeks an adjustment of 25% largely on the basis of the difference in the parties earning capacity and the husband's lack of disclosure. There should be a substantial adjustment to the wife. I will allow a 10% adjustment. In the context of this case that represents about $95,000 and a difference between the parties of the order of $190,000. Minds would differ about the level of adjustment but too great an adjustment runs the risk of ignoring the efforts of the parties over more than 30 years.

Just and Equitable

The net assets have a value of $951,276.26 ($1,546,512.58 - $595,236.32). Of that sum $160,797.57 is in the form of superannuation. A division in the proportions 60% to the wife and 40% to the husband would leave them with about $570,766 and $380,510 respectively.
The wife has the following assets and liabilities:

ASSETS

VALUE

ANZ Access Account (W)

$1,100.00

Toyota Motor Vehicle (W)

$4,800.00

Wife’s paid legal costs

$14,401.92

AMP Personal Super Plan (W)

$49,133.06

Zurich Retirement Plan (W)

$24,699.02

Virgin – Mastercard (W)

-$16,016.00

B'Nai Brith (Personal Loan) (W)

-$10,000.00

Mr A (Personal Loan) (W)

-$35,000.00

Commonwealth Bank Mastercard (W)

-$1,474.00

Wifes’s Personal Loan

-$40,000.00

Wife’s rent arrears

-$4,125.00

Gross assets

($12,481.00)

In order to bring her to 60% of the assets she should receive a further $583,247.
That would leave the husband with:

ASSETS

VALUE

E property (H)

$790,000.00

K property (H)

$490,000.00

Bankwest Lite (H)

$25,513.19

BankWest Equity Release Account

$19,129.90

Husband’s cash on hand

$200.00

IAG Shares

$3,352.00

Husband’s Stamp Collection

$4,253.00

Domestic Services Business

$21,700.00

Husband’s paid legal costs

$11,265.00

AMP Flexible Lifetime superannuation (H)

$86,965.49

BankWest Gold Home Loan …-1

-$331,244.66

BankWest Gold Home Loan …-3

-$48,712.23

BankWest Gold Home Loan …-9

-$107,245.43

Husband's Mastercard

-$1,419.00

Payment to the wife

-$583,247

Gross assets

$380,510.26

On those figures it seems unlikely that the husband will be able to retain the E and K properties. However, as is referred to above the husband has had discussions with his mother and his uncle about them advancing him funds to assist in buying the wife out. Nevertheless the orders should address all possible contingencies. I will require that the husband make the payment to the wife and refinance the secured debts where necessary and in default, that the E property, and if necessary, the K property be sold and the wife receive $583,247 from the net proceeds of sale.
The contents of the E property were omitted from the list of assets. I will make an order for pick-a-pile distribution with the wife to divide the contents into two lists of approximately equal value, on the basis of the expert's valuation. The husband can then elect to retain the items set out on one of those lists and the wife will take the items described on the other. Leave will be granted to the parties to restore the proceedings in the event that that process is not satisfactory.

Conclusion under Section 79

Significant contributions were made by each of the parties over a long marriage. They acquired assets and provided a secure home for their children. In the course of about 30 years of cohabitation and since, the parties shared the work of the family in different ways. The orders I propose will effect a just and equitable settlement of their property.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate:

Date: 13 April 2010

[2010] FamCA 262

13 April 2010

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Property Law

Legal Concepts

Remedies

Costs

Injunction

Jurisdiction

Procedural Fairness

ASSETS	VALUE
E property (H)	$790,000.00
K property (H)	$490,000.00
Bankwest Lite (H)	$25,513.19
BankWest Equity Release Account	$19,129.90
Husband’s cash on hand	$200.00
IAG Shares	$3,352.00
Husband’s Stamp Collection	$4,253.00
Domestic Services Business	$21,700.00
Husband’s paid legal costs	$11,265.00
AMP Flexible Lifetime superannuation (H)	$86,965.49
ANZ Access Account (W)	$1,100.00
Toyota Motor Vehicle (W)	$4,800.00
Wife’s paid legal costs	$14,401.92
AMP Personal Super Plan (W)	$49,133.06
Zurich Retirement Plan (W)	$24,699.02
Gross assets	$1,546,512.58

Virgin – Mastercard (W)	$16,016.00
B'Nai Brith (Personal Loan) (W)	$10,000.00
Mr A (Personal Loan) (W)	$35,000.00
Commonwealth Bank Mastercard (W)	$1,474.00
Wifes’s Personal Loan	$40,000.00
Wife’s rent arrears	$4,125.00
Total	$106,615.00

LIABILITY	BALANCE
BankWest Gold Home Loan …-1	$331,244.66
BankWest Gold Home Loan …-3	$48,712.23
BankWest Gold Home Loan …-9	$107,245.43
Virgin – Mastercard (W)	$16,016.00
B'Nai Brith (Personal Loan) (W)	$10,000.00
Mr A (Personal Loan) (W)	$35,000.00
Commonwealth Bank Mastercard (W)	$1,474.00
Wifes’s Personal Loan	$40,000.00
Wife’s rent arrears	$4,125.00
Husband's Mastercard	$1,419.00
Gross liabilities	$595,236.32

Expense	Amount
Rent[25]	$125.00
Motor vehicle insurance – GIO	$28.00
Private Health Insurance - MBF	$27.00
Motor vehicle registration Toyota Prado	$12.00
Repayments of personal loan to Mr A	$52.00
Repayments on Virgin Mastercard	$53.00
Repayments on Commonwealth Bank Mastercard	$8.00
Food	$100.00
House supplies	$15.00
Gas	$8.00
Electricity	$21.00
Petrol	$55.00
Car maintenance	$15.00
Clothing and shoes	$20.00
Medical dental and optical	$117.00
Chemist pharmaceuticals	$32.00
Books and magazines	$5.00
Gifts	$25.00
Hairdressing, toiletries	$15.00
Education expenses for a child	$32.00
Living expenses for J	$340.00
Total	$1105.00

Expense		Amount
Income tax		$200.00
Superannuation contributions – AMP Life		$46.00
Mortgages - Bankwest		$276.00
Rates & unit levies		$60.00
Other mortgage payments – K property - Bankwest		$498.00
Other rates and unit levies		$100.00
Motor vehicle insurance premiums – AAMI		$6.00
Health Fund contributions - MBF		$43.00
CTP motor vehicle insurance - AAMI		$12.00
Motor vehicle registration – Holden Barina		$7.00
Business expenses		$904.00
Other expenses.		$308.00
Food	$100.00
House supplies	$45.00
House repairs	$40.00
Electricity	$50.00
Telephone	$10.00
Clothing and shoes	$2.00
Medical dental and optical	$20.00
Entertainment & hobbies	$7.00
Chemist pharmaceuticals	$10.00
Cleaning	$4.00
Repairs furnishings and appliances	$10.00
Gifts	$5.00
Hairdressing, toiletries	$5.00
Sub-total	$308.00
Total		$2460.00