CARRINGTON & CARRINGTON

[2010] FamCA 2

FAMILY COURT OF AUSTRALIA

CARRINGTON & CARRINGTON [2010] FamCA 2

FAMILY LAW – PROPERTY - contributions - add backs - whether there has been a premature distribution of property or waste – no evidence of either

FAMILY LAW – PROPERTY - whether notice of proceedings for financial orders under Pt VIII and VIIIB of the Family Law Act 1975 (Cth) needs to be given to persons whose interests would be affected by the making of an order

Family Law Act 1975 (Cth) ss 75(2), 79(d),(e),(f),(g), 79(4)(a)(b), (c), 79(10), 90SM(10)
Family law Amendment (De Facto Financial Matters and Other Measures) Act 2008
Family Law Rules 2004 r 14.07

Biltoft and Biltoft (1995) FLC 92-614
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

APPLICANT: Ms Carrington

RESPONDENT: Mr Carrington

FILE NUMBER: HBC 70 of 2008

DATE DELIVERED: 14 January 2010

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 25, 26, 27 & 30 November and 1 December 2009.

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Tree S.C. with Ms K Fowler

SOLICITOR FOR THE APPLICANT: Simmons Wolfhagen

COUNSEL FOR THE RESPONDENT:	Mr D Lewis with Ms E Turner
SOLICITOR FOR THE RESPONDENT:	Temple-Smith Partners

Orders

1. On or before 1 April 2010 the husband pay to the wife the sum of one million, nine hundred and eighty one thousand, eight hundred and seventy four dollars and fifty cents ($1,981,074.50) (“the payment”).

2. Contemporaneously with the payment, the wife transfer to the husband all her right title and interest in:

   a.the former matrimonial home situate at H Street, … in Tasmania (“the home transfer”) and more particularly described in Certificates of Title: ... (“the home”); and

   b.The real property situate at C Street, … in Tasmania and more particularly described in Certificate of Title Volume … (“the cottage”).

3. Contemporaneously with the home transfer:

   a.the parties shall do all such acts and sign all such documents as are necessary to release the Wife from her personal obligations contained in the following by Partial Discharge of Mortgage or by the Husband fully repaying and discharging same:

   i.the mortgages to the ANZ Bank, Mortgage No. …4 and Mortgage No. …2 and Mortgage No. …6 (“the mortgages”) registered on the title of the home and/or the cottage  and procure a release from the bank in favour of the wife from any liability outstanding in respect of the mortgage;

   ii.The ANZ Bank overdraft account in the joint names of the parties, (“the overdraft”) and procure a release from the bank in favour of the wife from any liability outstanding in respect of the overdraft;

   iii.The ANZ Bank loan in the sum of approximately $75,000, held in the joint names of the parties, (“the shade cloth loan”) and procure a release from the bank in favour of the wife from any liability outstanding in respect of the shade cloth loan.

   iv.all other finance to which the wife is a party, or in any way liable, by way of guarantee or otherwise, pertaining to the person or entities referred to in paragraph 6(b) of these Orders

   b.the wife sign all documents necessary, as prepared by the Husband’s solicitors and delivered to the wife’s solicitors, to:

   i.cease being a beneficiary of the entities The M Family  Trust, The B Family Trust, The F Trust and The T Services Family Trust

   ii.Resign her position of office in the entity T Co. Pty Ltd

   iii.Dissolve the partnership Carrington & Carrington and transfer all net assets of same to the Husband.

4. Within twenty eight (28) days of the date of this order:

   a.the husband transfer to the wife all his right title and interest in the Range Rover motor vehicle registered in the joint names of the parties, Registration Number …;

   b.the wife shall deliver to the husband, via the parties’ solicitors, the balance of any business records in the possession of the wife pertaining to the entities referred to in paragraph 6(b) of these Orders.

5. The parties forthwith do all things necessary to sell the Toyota DINA motor vehicle (truck), registration number … by public auction, by delivering the said vehicle to S Auctioneers, with the sale proceeds, less the costs of sale, to be divided between the parties 52.5% to the wife and 47.5% to the husband, with neither party or their representative to bid at or otherwise purchase the said vehicle.

6. The husband indemnify the wife in respect of:

   a.all payments, taxes and liabilities of whatsoever nature of or with respect to the home and the cottage including but not limited to the mortgage and all rates, and outgoings of the home and the cottage of whatsoever nature or kind; and

   b.all liabilities to pay tax including but not limited to income tax, goods and services tax, capital gains tax, penalty tax, interest and superannuation payments which may arise in the future in respect of any tax return lodged on behalf of the wife or any entity in which she has an interest to the date of these Orders including but not limited to the entities identified or known as:

   i.The M Family Trust,

   ii.The B Family Trust,

   iii.The F Trust,

   iv.The T Services Family Trust,

   v.T Co Pty Ltd,

   vi.Carrington & Carrington Partnership, and

   vii.The Husband personally.

7. Contemporaneously with the home transfer the parties:

   a.divide the household furniture, contents, antiques and artwork between themselves in accordance with the itemised list annexed hereto and marked “A”;

   b.BY CONSENT sign all such documents necessary to transfer to their sons L Carrington and H Carrington, in equal shares, for consideration of ONE DOLLAR ($1.00), their right title and interest in the K Shack Lease over Property Identification Number  …, identified by the Department of Environment, Parks, Heritage and The Arts, by file reference Number … with the parties to share equally in any vendor costs associated with the said transfer;

8. Subject to the terms of this order the wife shall relinquish in favour of the husband any claim she may otherwise have to an interest in the following:

   a.any savings, shares, money in the bank, interest in any trust, or investments of the husband;

   b.following division of the items covered by annexure “A” any furniture, contents, household effects, or any items of personalty in the possession of the husband;

   c.any entitlement of the husband to any superannuation whether by way of lump sum, pension or otherwise;

   d.any motor vehicle in the possession of the husband;

   e.X Pty Ltd;

   f.L Forestry Pty Ltd;

   g.HD Pty Ltd;

   h.LB Pty Ltd;

   i.The Husband’s share in the FR Investment.

9. Subject to the terms of this order the husband shall relinquish in favour of the wife any claim he may otherwise have to an interest in the following:

   a.any savings, money in the bank or investments of the wife;

   b.following division of the items covered by annexure “A” any furniture, contents, household effects, or any items of personalty in the possession of the wife;

   c.any entitlement of the wife to any superannuation whether by way of lump sum, pension or otherwise;

   d.any motor vehicle in the possession of the wife;

   e.The Wife’s share in the FR Investment

10. From 1 December 2009 until the payment referred to in paragraph 1 of these Orders is made by the husband, the husband shall:

    a.Pay:

    i.to the wife the sum of five hundred dollars ($500), each week, by way of cash payment to the wife on the Monday of each week.

    ii.the wife’s aurora accounts incurred at the home.

    b.Permit the wife to:

    i.use the parties’ ANZ Gold credit card number 4564… to the value of seven hundred and fifty dollars ($750) each week; and

    ii.exclusively occupy the home.

11. Except as specified in this order each party is solely entitled to the exclusion of the other to all other property and chattels in the possession of such party at the date of this order and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records, insurance policies are deemed to be in the possession of the person named as owner or otherwise named as the beneficiary and superannuation entitlements are deemed to be in the possession of the person named as the worker in the records of the relevant funds.

12. Except as specified in this order each of the parties be liable for any debt in his or her own name, and indemnify the other party in relation thereto.

13. Except as specified in this order neither the husband nor the wife shall incur in the name of the other any account debt or any other liability and subject to the provisions of this order each shall pay or discharge all accounts debts and other liabilities presently standing in their respective names or hereinafter incurred by either of them and shall at all times keep the other indemnified therefrom and from all claims actions and other expenses in connection therewith.

14. Each of the parties shall do all such acts and things and execute all such documents as he or she may be required to do and execute to give effect to the terms of this order.

15. BY CONSENT this order is binding upon the heirs, executors, personal representatives, administrators and assigns of each of the parties.

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

17. All subpoenaed documents remain on the file for a period of twenty eight days from the date of this order and then at that time be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same after the expiry of twelve (12) months.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

   “A”

ANTIQUES	Value	Wife to Keep	Husband to Keep
Huon Pine Chest of Drawers (x2)
(L to keep 3rd one)	$14,000	$14,000
Huon Pine Dressing Table	$7,000	$7,000
Linen Cupboard	$2,000	$2,000
Cedar chest Drawers -gift	$0.00	$0.00
Book Case	$9,000	$9,000
Pedestal Dining Table	$1,200	$1,200
Chase lounge	$3,000	$3,000
Hall table	$700	$700
Miniature Grandfather clock- gift	$0.00	$0.00
Dressing Table	$600	$600
Mahogany Wash Stand -gift	$0.00	$0.00
Rosewood Chiffonier	$1,800	$1,800
Walnut Dining Chairs	$800	$800
Wall clock	$1,800	$1,800
English Oak roll top desk	$1,800	$1,800
Jacobean Lounge Suite	$2,500	$2,500
Blackwood cheval mirror - gift	$0.00	$0.00
Chase lounge	$200	$200
Pine kitchen table	$1,200	$1,200
Pine kitchen dresser – to stay	$2,500	$2,500
China dinner set - gift	$0.00	$0.00
Terrines - gift	$0.00	$0.00
Brass & pewter bed	$900	$900
Brass bed - gift	$0.00	$0.00
TOTAL	$24,400	$26,600
ARTWORK
Artist One x2 (each keep one)	$6,000	$3,000	$3,000
Artist Two - gift	$0.00	$0.00
Artist Three	$800	$800
Artist Four	$600	$600
Artist Five (frames only) – gift	$0.00	$0.00
Artist Five (prints only)	$400	$400
TOTAL	$4,000	$3,800
BALANCE FURNITURE/CONTENTS
2 Chesterman couches and pine box	$4,000	$4,000
all other household contents	$15,000	$15,000	$0.00
TOTAL	$15,000	$4,000
GRAND TOTAL OF ANTIQUES, ARTWORK AND CONTENTS	$43,400	$34,400

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

CORRIGENDUM

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 70 of 2008

Ms Carrington

Applicant

And

Mr Carrington

Respondent

JUDGE:  Benjamin J
DATE OF ORDERS:          14 January 2010       
WHERE MADE:                Hobart

CORRIGENDUM              13 April 2010

1. On page 8, paragraph 30, page 20 paragraph 108 and page 22 paragraph 111 of the Reasons for Judgment the sum of $150,000 needs to be included as an agreed liability for a loan to T Company Pty Ltd, which is a service company for B Family Trust.

2. On page 8 paragraph 30 of the Reasons for Judgement delete the sum of $357,421 and insert the sum of $507,521.

3. On page 9 paragraph 31 of the Reasons for Judgment delete the sum of $4,144,340 and insert the sum $3,994,340.

4. On page 20 paragraph 108 of the Reasons for Judgement delete the sum $357,421 and insert the sum of $507,521.

5. On page 20 paragraph 109 of the Reasons for Judgment delete the sum $4,144,340 and insert the sum $3,994,340.

6. On page 20 paragraph 109 of the Reasons for Judgment delete the sum $4,134,340 and insert the sum of $3,984,340.

7. On page 20 paragraph 110 of the Reasons for Judgment delete the sum $4,134,340 and insert the sum of $3,984,340.

8. On page 20 paragraph 110 of the Reasons for Judgment delete the sum of $2,170,528.50 and insert the sum of $2,091,778.50.

9. On page 20 paragraph 110 of the Reasons for Judgment delete the sum of $1,963,811.50 and insert the sum of $1,892,561.50.

10. On page 21 paragraph 110 of the Reasons for Judgment delete the sum of $4,371,236 and insert the sum of $4,372,236.

11. On page 22 paragraph 111 of the Reasons for Judgment delete the sum of $348,600 and insert the sum of $498,600.

12. On page 22 paragraph 114 of the Reasons for Judgment delete the sum of $2,059,824.50 and insert the sum of $1,981,074.50.

13. Subsequent to the delivery of Reasons the parties both acknowledged that they forgot to include a debt of $150,000 in the agreed list of assets and liabilities.  The evidence, in respect of this liability, was before the Court but was not included in the agreed assets and liabilities and was therefore not identified as an issue to be determined by me.

I certify that the preceding 9 paragraphs are a true copy of the Corrigendum of the Reasons for Judgment herein of the Honourable Justice Benjamin.

Associate:

Dated 13 April 2010

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 70 of 2008

MS CARRINGTON

Applicant

And

MR CARRINGTON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between Ms Carrington (“the wife”) and Mr Carrington (“the husband”) relating to the distribution of their property.

2. The parties had been married for over 27 years.  They have two children, L and H.  These children are both aged over 18 and they are relatively self sufficient.

3. This husband and wife have interest in three businesses;

   ·A forestry business (in which they own shares with other people),

   ·An agriculture business (this business is solely owned by the parties but which employs one of their sons); and

   ·A distribution business.

THE ISSUES

1. The issues are:-

   ·The present value of the agricultural seeds.

   ·Whether the proceeds from the sale of a motor vehicle and the liquidation of two AMP policies by the husband should be added back to the asset pool.

   ·Whether the greenhouses situated on the farm property have an independent value over and above the value of the land (including fixtures), and if so, what is that value.

   ·Whether the shade cloth debt of $70,000 which was incurred for the agriculture business is the joint responsibility of the parties or solely the husband. The husband spent $70,000 on shade cloth for the agriculture business.  The wife said she only agreed to its purchase on the basis that she was not responsible for any losses that arose from that acquisition.  The shade cloth was damaged in high winds prior to the hearing and now has an agreed value of $15,000. 

   ·The amount of the trade debtors of both the agriculture business and the distribution business.

   ·The amount of the trade creditors of both the agriculture business and the distribution business.

   ·The extent of tax liabilities, if any.

   ·The value, if any, of tax credits owing from the Australian Tax Office in respect of the agriculture business.

   ·Whether X Pty Ltd had the capacity to earn further income or had some value in relation to the selling of timber at the mill door.

   ·Whether the parties’ contributions ought to be assessed at 52 per cent by the husband (as a result of his claim that he has made greater post separation contributions) or equal as submitted by senior counsel for the wife. The parties both submit that their contributions from the commencement of their relationship in 1976 until separation in November 2007 were equal.  The husband asserts his contributions since separation have been greater than those of the wife because of his management of the assets.

   ·The husband also claimed an adjustment of 8 per cent in his favour in respect of the other factors.  The wife claimed an adjustment of 10 per cent in her favour, on the basis that the husband has not fully disclosed the income from the agriculture business.  The wife says that in the event that the precise amount is not able to be determined there ought to be an adjustment in her favour in relation to the other factors.  She also claims that the husband has expertise in the forestry industry and as such is able to manage the forestry assets and achieve a return to capital of almost 10 per cent, which return on capital is greater than the wife could achieve. 

2. The husband’s case is that he wants to retain, if possible, all of the businesses and the business assets.  This will mean that he will carry significant debt and as such there should be the 8 per cent adjustment.   The wife does not oppose the husband retaining that property as long as she receives a just and equitable sum representing her entitlement to property.

3. The only superannuation of the parties is an amount of $37,116 which the husband has in an AXA Superannuation Fund.  The submission on behalf of the wife, which was adopted on behalf of the husband, is that this superannuation in the context of the pool of assets is such that there ought not to be a separate list.

4. Bearing in mind that the pool of assets will end up being in the vicinity of 4 million dollars I accept that submission.

BACKGROUND

1. The husband is 57 and the wife is 54.  The parties commenced living together in 1976 and married in March 1977.  They established the agriculture business in about 1985/1986 and the distribution business at about the same time.  They started the Forestry business in about 1990 when HD Pty Ltd was established.  The parties separated in November 2004.  

2. The parties’ agriculture business involves growing products and selling them, including through a local market.  There is a wholesale component to that business.

3. The second business is a distribution business to the Huon Valley and Tasman Peninsula.  There is no issue as to the valuation of that business. 

4. The third business is the forestry investments.  The structure of the forestry business is relatively complex, and as such I have invited the parties’ legal representatives to draft the orders to give effect to the transfer of the businesses to the husband.  The orders made reflect that assistance.

1. One of the forestry companies is LB Pty Ltd.  Its shares are held as to one half by the husband and wife and the other half by the O family. 

2. LB Pty Ltd owns land and holds a two third interest in HD Pty Ltd.  As such the husband and wife effectively have a one third interest in HD Pty Ltd.  The remaining two thirds interest in HD Pty Ltd is held by the E family and the O family.  HD Pty Ltd owns the land upon which timber is produced.

3. There was apparently some friction between the O family and the parties. As a result the husband, wife and E family set up a new company called L Forestry Pty Ltd.  The E family own half the shares in the company and the husband and wife own the other half of the shares.

4. The various forestry companies own and use land in a number of ways.  They own some of the land subject to timber rights agreements (with major public companies) and some land without such agreements.

5. On the land without timber rights agreements the various private companies, in which the husband and wife have interests, derive income from the harvesting and sale of timber.

6. On the properties which are subject to timber rights agreements, the public companies establish, maintain and harvest trees and pay rent.  There is an issue as to the involvement of the land holders, in particular the husband.  This is in terms of the work he is or is not required to do and the amount of work he actually does.

7. The wife asserted that this marriage broke up as a consequence of the husband being in a long standing relationship with DP and that there was a child of that relationship, W who is now aged about 16.  The husband provides financial support for W and sees him regularly. 

8. The unchallenged evidence of the husband was that he was having an affair with DP and the relationship was neither ‘strong or lasting’.[1]  The evidence of both the husband and wife is that the husband has re-partnered with another person, JC since at least 2008.  There is unchallenged evidence of a long term sexual relationship between the husband and DP (26 years on the evidence of the wife[2]).  When I raised the issue of notice to a de facto partner with the husband’s counsel it was submitted that the evidence did not establish a de facto relationship.  Further the unchallenged evidence of both husband and wife was that the relationship between the husband and DP was terminated before March 2009 and as such any rights which DP may have would arise under State legislation.  As to the relationship between the husband and JC, that has been in place since 2008 and at the date of hearing it appears to be of less than 2 years duration.

   [1]Paragraph 39 of the husband’s affidavit filed the 2 November 2009.

   [2]Paragraph 78 of the wife’s affidavit filed the 13 November 2009.

9. The Family Law Act 1975 (Cth) (“Family Law Act”) was amended in 2008 by the Family law Amendment (De Facto Financial Matters and Other Measures) Act 2008. The amendment provides for heterosexual and same sex de facto couples, who live in referring States, to have issues of property and/or maintenance dealt with under the Family Law Act.[3]

   [3]The amendments apply to all Territories and States except Western Australian and South Australia. Tasmania referred powers by the Commonwealth Powers (De Facto Relationships) Act 2006 (Tas).

10. Sections 79(10) and 90SM(10) of the Family Law Act provides a list of persons entitled to become parties to proceedings for financial orders under Pts VIII and VIIIAB of the Act. These persons include other de facto partners, spouses, parties to financial agreements and any other person whose interests would be affected by the making of the order interested. Rule 14.07 of the Family Law Rules 2004 requires applicants to serve a notice on such persons.

11. The Full Court[4] has discussed notice in relation to unsecured creditors in a number of decisions which includes Biltoft and Biltoft (1995) FLC 92-614 at 82,124 where it said:-

    A general practice has developed over the years that, in relation to applications pursuant to the provisions of s. 79, the Court ascertains the value of the property of the parties to a marriage by deducting from the value of their assets the value of their total liabilities.  In the case of encumbered assets, the value thereof is ascertained by deducting the amount of the secured liability from the gross value of the asset. See, Ascot Investments Pty Ltd v. Harper & Anor (1981) 148 CLR 337 where Gibbs J. (as he then was) pointed out at p 355 that the Court “must take the property of a party to the marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions or covenants that limit the rights of the party who owns it.” Where the assets are not encumbered and moneys are owed by the parties or one of them to unsecured creditors, the court ascertains the value of their property by deducting from the value of their assets the value of their total liabilities, including the unsecured liabilities.

    [4]Comprising of Nicholson CJ, Ellis and Buckley JJ.

12. This approach must inevitably apply to spouses, former spouses, heterosexual and same sex partners who were or are in a relationship with a party to financial proceedings under the Family Law Act. 

13. Care needs to be taken by parties, legal practitioners and judicial officers to ensure that all relevant persons are notified of the proceedings and are given reasonable and timely notice of the proceedings. 

14. The submission by counsel for the husband in these proceedings was that there was no need to give notice of these proceedings bearing in mind the facts set out above. I accept that submission.

15. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary intention is clear from the context.  Further it is not the task of these reasons to touch upon every fact but it is the task of these reasons to determine the issues and make findings on the issues.

16. Many of the issues raised during the trial were resolved and, to their credit, senior counsel for the mother and counsel for the father have narrowed the issues in final submissions.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

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

   39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.

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

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

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

   (b)An evaluation of the parties’ contributions having regards to ss 79(4)(a)(b) and (c) of the Family Law Act.

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

   (d)A review of the outcome against a just and equitable requirement.

Identification of the property and its value

1. Most of the values in the pool are agreed, the assets and liabilities as agreed or determined are as follows:-

Description	Retained by	Amount
General furniture and electrical*	Wife	$15,000
Artwork*	Wife	$4,000
Antiques*	Wife	$24,400
Range rover*	Wife	$8,900
FR investment*	Wife	$62,500
Wife’s jewellery*	Wife	$4,725
C Sreet home and H Street cottage*	Husband	$1,155,000
General furniture & electrical*	Husband	$4,000
Artwork divided and to be kept by the husband*	Husband	$3,800
Antiques divided and to be kept by the husband*	Husband	$26,600
Vehicle 1964 shell*	Husband	$1,100
Vehicle 1970*	Husband	$6,000
Vehicle 1971 shell*	Husband	$1,000
Pool of vehicle parts*	Husband	$1,200
Boat*	Husband	$8,750
AMP Shares*	Husband	$4,255
FR investment*	Husband	$62,500
Superannuation*	Husband	$37,116
Parties interests in Timber companies shareholdings*	Husband	$2,414,700
X Pty Ltd*	Husband	$15,630
M net assets (all agreed except trade debtors (determined by the court as being $20,000) and trade creditors which I  have dealt with in these reasons)	Husband	$68,431
Agriculture goodwill*	Husband	$128,510
Agriculture seed stock	Husband	$92,640
Agriculture – plant and equipment	Husband	$208,135
Agriculture Toyota Hi-Ace*	Husband	$6,700
Agriculture Toyota Dina refrigerated truck* - this truck is to be sold and the proceeds divided. Therefore it is included in this list but not in the list at the end of the reasons.	Husband	$10,000
Market stall*	Husband	$50,000
Agriculture Trade debtors	Husband	$25,000
Cattle*	Husband	$31,169
Agriculture Tax credit owing	Husband	$20,000
Total Assets	$4,501,761

Liabilities
Wife’s Visa card*	Wife	$8,821
Trade creditors Agriculture business	Husband	$11,600
ANZ loan Agriculture business (shade cloth loan)	Husband	$70,000
Tax liability Agriculture business *	Husband	$137,000
Overdraft Agriculture business *	Husband	$130,000
T Company Pty Ltd	$150,000
Total Liabilities	$507,421

1. The net pool of assets is $3,994,340.

2. The items marked with an asterisk are agreed.

3. Counsel for both parties submitted that there ought to be one list of property bearing in mind the relatively small pool of superannuation property.  I accepted and adopted that submission. Counsel for the husband said there may be a submission for splitting the superannuation if the husband’s case was not successful.  There was no submission to that effect and there was no evidence provided in respect of procedural fairness to the trustees of the fund.  Having regard to that situation I do not make orders to split the superannuation and as such it remains an asset of the husband.

4. The parties also own a lease of a shack at K in Tasmania.  By agreement the parties want that property transferred to their two children as part of the property settlement and that as a consequence it ought not to be taken into account in the assessment of the pool of assets.  

5. The parties have an interest in T Co Pty Ltd, T Services Family Trust and the F Family Trust.  The parties agree that each of those entities have no assets and no liabilities

The value of the seeds

1. An expert, Mr N, gave evidence on affidavit[5] as to the valuation of the seeds.  In her evidence the wife was critical of the methodology used by this witness in his valuation.  However, Mr N was not required for cross-examination and although not independent, his evidence was admitted unchallenged and I accept his valuation.  The valuation is as at 16 July 2009.

   [5] Filed the 10 November 2009.

2. The husband gave evidence that the quantity of seeds had reduced in value.  He said, and I accept, that some of the seeds referred to in Mr N’s valuation were no longer in existence as they had produced plants and the seeds were either exhausted or had expired.  According to the arithmetic of the husband’s counsel (which figures were accepted by senior counsel for the wife and myself) these disposals reduced the present value of the stockpile of seeds to $71,102.

3. The husband also gave evidence that seeds were bought and used regularly.  There was evidence that in September 2009 the husband purchased seeds to the value of $24,116.40.  This purchase was not recorded in the business books due to payment coming from the forest business and miscommunication between the husband and wife. 

4. Having regard to the fluctuations of the stockpile of seeds senior counsel for the wife said that in the circumstances the value of the seeds should be treated as $92,640.  I accept and adopt that submission.  I determine the present value of the seeds at $92,640.

Claim to add back the proceeds from the sale of a Lotus motor vehicle and surrender value 2 AMP policies

1. There is no issue that these assets have been sold by the husband and that the value of the Lotus car was about $15,700 and the AMP Policies each had surrender values of about $17,910.

2. The agriculture business has struggled since the parties separated and the wife ceased to be involved in its day to day operation, the cause of which is in issue.  Both parties took living expenses from the businesses.  There is no evidence which satisfies me that there has been a premature property distribution nor was there waste.

3. Senior counsel for the wife submitted the husband had applied $24,000 toward his legal costs and had provided no satisfactory explanation as to where the balance of about $9,600 went.  The evidence is that both parties have spent money on legal costs and neither party is seeking an add back in that regard.  As such I do not adopt the submission of the wife in this regard.

4. The husband’s evidence was that he applied the money due to him from work in the forestry business to meet the expenses of the agriculture business.  I am satisfied that the husband has applied the money from the sale of the assets to enable the businesses to continue and to meet the reasonable financial needs of the parties and their children.  As such I will not add back these sums.

The Greenhouses

1. The parties agreed that the House and Cottage properties have a value of $1,155,000.  The properties were valued by Mr P, a real estate valuer, who was appointed as the single expert in these proceedings.  His report is dated the 30 June 2009[6].  Mr P’s qualifications were not in issue and he included the greenhouses as fixtures to the property.  He was cross-examined and said that the greenhouses added nothing to the value of the property and may in fact deter some buyers.  His opinion was that there was no separate value attaching to them.

   [6] See annexure A of the affidavit of Mr P filed 17 November 2009.

2. The parties employed Mr D as an expert to value the fixtures and fittings. Mr D’s valuation report was provided as at the 19 of May 2009.[7]  As a single expert, his qualifications were not in issue.  He valued the 6 greenhouses at $135,000 on the basis that they were second-hand and some were in poor or average condition.  During submissions counsel for both parties submitted, in error, that the value was $150,000.  That figure included the sum of $15,000 for the shade cloth, which amount was not in dispute, although how it is to be treated is the subject of later discussion.  There was no issue that the greenhouses could not effectively be moved to another site and their only value, if not used on the farm, was for scrap metal. 

   [7] See annexure A of the affidavit of Mr D filed 17 November 2009.

3. The husband’s evidence in relation to the greenhouse was that there would be between twenty and twenty five tonnes of steel contained in them. That steel could be sold, as such the greenhouses have a scrap value of $2,500.

4. Having regard to the evidence of Mr P I am satisfied that the value of the greenhouses as a stand alone asset are negligible and that they do not add to the value of the real property and they are fixtures of the real property.  As such I will treat their value for the purpose of this hearing as scrap at $2,500.  Thus the otherwise agreed values of the agriculture business plant and equipment should be varied from $340,635 by $132,500 to $208,135.

The Shade Cloth

1. The husband spent $70,000 on shade cloth for the agriculture business.  The wife said she only agreed to its purchase on the basis that she would not be responsible for any losses that arose from that acquisition.  The shade cloth was damaged in high winds prior to the hearing and now has an agreed value of $15,000.  The question for the court to determine is whether the debt of $70,000, which was incurred for this item, is the joint responsibility of the parties or solely the husband.

2. At paragraph 101 of her affidavit[8] the wife said she reluctantly agreed to the installation of shade cloth in the agriculture business.  The parties needed to borrow $70,000 from ANZ bank for this purpose.  The wife said the funds were borrowed on the basis of an agreement, between herself and the husband, that the debt would not deplete the pool of assets.  She said the husband does not now adhere to the agreement.

   [8] Filed 13 November 2009.

3. I make no criticism of the parties for not calling their son L to give evidence and involving him in these proceedings in respect of this or other issues.

4. Having heard the evidence of the wife and having heard the evidence of the husband, on balance I prefer the evidence of the wife.  That is that the husband agreed to be bound by that value.  However, the parties have been separated for many years, they have lived from the proceeds of the businesses and the businesses needed to be operated.  Since the shade cloth was installed it has suffered significant damage as a result of the strong winds affecting the farm over the last winter months.  I am satisfied the shade cloth was needed for the business and has been damaged by subsequent events.

5. I have had regard to the agreement between the husband and wife but in the circumstances of this case I do not consider that its terms should be implemented.

6. It is the wish of both parties that their eldest son continues to operate this agriculture business, in which the husband helps this son regularly as does the wife.

7. The shade cloth is valued at $15,000.  There is no issue as to that valuation. The shade cloth was bought with an ANZ bank loan.  I will leave the loan intact as a liability of the husband and the shade cloth value at $15,000.  

Trade Debtors

1. The amount of the trade debtors of both the agriculture business and the distribution business are in issue. The parties accept that the debtors for the distribution business are $20,000 and the wife says that she believes it is $10,000 more at $30,000.  The parties accept that the debtors for the agriculture business are $25,000 but the wife says she believes it is $10,000 more.  This difference arises out of the wife’s distrust of the husband.  There is no evidence which satisfies me that the husband has excluded $10,000 in debtors from either of these businesses.  As such the amounts not in issue are determined to be the value of those assets.  It was open to the wife to invite the single expert business valuer, Mr S, to audit those sums.  She did not do so. I accept the debtors as asserted by the husband.

Tax Credits

1. The value, if any, of tax credits owing from the Australian Tax Office in respect of the agriculture business is also in issue.  Some time after separation the wife ceased the bookkeeping of the Forestry business. 

2. However, the wife has continued to do the books for the distribution business and the agriculture business. The wife says that the husband has, in recent times, not provided her with the relevant invoices to enter them in the accounting system.

3. The husband says he provided such invoices to the wife by leaving them in an office part of the packing shed.  There is a serious miscommunication or mal-communication between the husband and wife.

4. As a consequence there is money which has been expended, perhaps a considerable sum, which may not have been placed on the records of the agriculture business.

5. In addition the evidence of the husband is that he has spent a large sum of money on seeds and that this money was paid out of his loan account with the Forestry Company.  That amount of money could be in excess of $200,000.

6. Some of those amounts were not placed on the records of the agriculture company.  As a consequence, now that these issues have been identified, it is open for the husband to file an amended tax returns and BAS returns and receive back some goods and services tax.  It was submitted by senior counsel for the wife that the husband would also get tax credits back.  This is not likely to be the case as the evidence of the husband was that the agriculture business has not made any serious profits in recent years.

7. Senior counsel for the wife submitted that an amount of $30,000 should be allowed for these tax credits and the goods and service tax.  Having regard to the evidence of the husband, which I accept, the evidence of the husband’s accountant Mr I, which I also accept, and other evidence in relation to these sums it seems to me that the amount likely to be repaid to the husband will be about $20,000.  Doing the best I can with what evidence I have I determine that the tax credits are $20,000.

Trade Creditors

1. There was an issue between the husband and the wife as to the amount of the trade creditors.  In terms of the trade creditors in the distribution business the difference was between $100,000 and $100,511.  In terms of the trade creditors in the agriculture business the wife asserted the difference was $2,400 and the husband asserted that it amounted to $11,600.

2. The wife raised objections in relation to a number of amounts including the pro rata of the Aurora power bill (which I propose to allow), Mr FR (farm lease), some bodywork and other accounts.  The husband, in evidence, was cross-examined in relation to these amounts. On balance, I am satisfied with his evidence in that regard.

3. It was open for the wife to raise those issues with Mr S, the single accounting expert, and ask him to undertake an audit.  She did not do so.    Accordingly, I will treat the trade creditors as asserted by the husband, vis $100,511 in relation to the distribution business and $11,600 in relation to the agriculture business.

X Pty Ltd

1. During the course of the hearing there was dispute as to whether X Pty Ltd had the capacity to earn further income or had some value in relation to the selling of timber at the mill door.  There was no argument in relation to this at the end of the trial and I take it that the parties accepted the evidence of the husband that such sales were no longer viable bearing in mind the state of the industry.

2. If I have misinterpreted the submissions in that regard I am, in any event, satisfied with the husband’s evidence that such sales are no longer viable.

3. In relation to X Pty Ltd there was an issue as to the sale of an excavator.   This issue was resolved shortly before the end of the trial, with no add back being made for that vehicle.  Further there is an agreement that the bank account balance, in respect of X Pty Ltd’s assets, amounted to $1,330.  Accordingly I value that asset at $15,630 (being the agreed value of a Ford falcon motor vehicle[9] plus the bank accounts). 

   [9] $14,300.

Tax liabilities

1. The husband gave evidence that as a consequence of the miscommunication between himself and the wife (and in that regard I make no formal finding against one party or the other) that the businesses owed tax totalling $143,250.  I accept that evidence.

2. I also accept that $6,000 of that debt has been repaid leaving an amount of $137,250 as at the completion of the hearing.  I treat that liability at that sum for the purpose of making an adjustment of property.

CONTRIBUTIONS

1. The parties had lived together for many years up until the end of their relationship in 2004.  The husband claims that his contributions since that time have been greater than those of the wife.  He says this because he has continued to run and mange the three businesses together with continuing his role as a parent for their adult children.

2. I accept the evidence of the husband in relation to the hours that he works in the agriculture business.  Similarly I accept the evidence of the husband in relation to his work in the distribution business and the forestry business.

3. I also accept the evidence of the husband that he does work on the leased land and unleased land and that he is paid for the work that he undertakes for the various forestry companies. I am satisfied that he is a hard worker and he has continued the levels of work which he undertook prior to separation.

4. Both parties submit that I should treat the contributions prior to separation as being equal.  Having regard to the evidence of both parties I am comfortable in adopting that approach as it is clear that this couple worked very hard to accumulate assets over a significant period of time.

5. The husband claims that the wife ceased significant involvement in the book keeping of the forestry business and the running of the agriculture business and that has now fallen to him.

6. I generally accept the evidence of the wife that she was unable to continue working in the agriculture business due to the approach to her which was adopted by the husband.  I am also satisfied that to the best of her ability, and having regard to the documents that were provided to her, that the wife continued to undertake the data entry for the agriculture business and the distribution business.  She provides mentoring to her elder son in running the business and assists him from time to time.

7. The wife’s involvement in the businesses was less subsequent to separation than prior to separation but, as I indicated earlier, that is partly as a consequence of the husband’s approach in that regard.

8. The wife continued to care for their son H until he attained the age of 18 years. 

9. I accept that the husband has been the driving force in relation to the forestry businesses including acquiring properties to the benefit of the parties since separation.  I have had regard to that factor.

10. The wife has a concern that the husband may have taken money from the agriculture business, particularly in terms of its market stall.  The onus in that regard is on the wife. The wife said that the husband conducted a “black book”.  The husband’s evidence was that he uses a book where he records sales at the market.  He then provides an envelope to the wife and details to their accountant.  The husband uses that book to provide an invoice for any wholesaling of products at the market to other sellers.  I accept his evidence in that regard. I am satisfied that the husband has properly accounted for the income of the agriculture business.

11. During the course of the trial the wife endeavoured to show that the husband had taken significant monies from the loan account of the Forestry business, which he did,  and applied much of that money to his personal expenditure.  As to the expenditure most was used to pay for seeds for the agriculture business and a lesser sum, in personal expenditure, was applied to fuel for the husband’s motor vehicles which was consistent with the husband’s evidence of being involved in the forestry industry.

12. The husband provided accounting evidence of monies credited to his account and debited to his account.[10]  I am satisfied the husband has spent money relatively modestly (bearing in mind the wealth of the parties) and in similar form to that spent by the wife. 

    [10] Exhibit H12.

13. Submissions by the husband’s counsel for the division of the property as to 48 per cent to the wife and 52 per cent to him included his involvement with the children and that he worked full time including the development of the forestry business.

14. I have also had regard to the payments made by the husband towards the care of his son W and the home-maker and parenting contributions of the mother.

15. Having considered all of the evidence I am satisfied that the contribution of the parties over the whole of their relationship, including post-separation contributions, should be treated as equal and I do so.   

OTHER FACTORS

1. The wife seeks an adjustment in her favour in respect of the other factors of 10% so that, on her case, the property would be divided as to 60% to her and 40% to the husband.  The husband seeks that the property be divided as to 58% to him, having regard to the other factors, and 42% to the wife.

2. Both parties have set out health difficulties in their affidavits which were not challenged.  In a joint chronology they noted that the husband was diagnosed with Multiple Sclerosis in 1979 and in 2001 he was diagnosed with throat cancer.  The wife was diagnosed with breast cancer in 1986 and has had surgical intervention in 2001.

3. Counsel for both parties submitted that I should treat the health difficulties of both the parties as having equal weight.  Having regard to the evidence and those submissions I adopt that course. 

4. The husband asserts that he will end up with all of the businesses and the loans associated with the business together with a loan to pay out the wife.  Senior counsel on his behalf submits that as a consequence, the husband will have the all the responsibility and the risk involved in the three businesses.  The husband will have significant liabilities and will need to continue to work to manage those liabilities through the various businesses.  The husband has the care of his youngest son who is about 16 years of age.

5. The husband tendered[11] a list of his liabilities.  The liabilities of the timber business amounted to sum $319,625 per annum.  This must be seen in the context that of that sum about $150,000 was said to be debt reduction and I accept the evidence of the wife that the timber industry gives a very strong return of income to capital (just under 10 per cent).

   [11] Exhibit H19.

6. Whilst the husband has significant debts associated with the businesses, and this will increase if he adopts the approach to pay out the wife rather than sell the assets, it is always open for him to sell assets should he so choose.  I accept the evidence of Mr P, in preference to the evidence of the husband, in relation to the sale of the house on the farm property.

7. Any risks with regard to business, particularly the forestry business, are built into the valuation and this is a risk which the husband wishes to take.  The husband has sought to retain that business.

8. I am satisfied the husband has the knowledge and skills primarily in relation to the forestry business as he has shown in the evidence he gave regarding the development of that business including since separation.

9. He also has skills in terms of the agriculture business in particular the selling of products at the market and wholesale to other sellers.

10. In terms of the wife, she has great knowledge and skills in the agriculture business.  She does not have the skills the husband has in relation to the forestry business.  The wife has skills as a book keeper including entering data into computers.  I am satisfied that she does not have the earning capacity of the husband.  I have had regard to this bearing in mind the relatively large pool of assets involved.

11. I indicated to counsel that any payment to the wife should take place within four months from the 1 December 2009 after which time she would have the ability to invest the money as she chooses.  In the meantime the husband will pay $1,250 per week to the wife and she will continue to have the exclusive occupation of the home in which she now resides.

12. The businesses which have been retained by the husband, in particular the cash flow from the forestry business, are very strong and will leave him in a position where he should be able to easily manage his debts and accumulate further assets.  The wife does not have the skills to do so.

13. Both parties have an interest in an investment at FR which will eventually deliver significant capital returns to each of them.  On the evidence before me I am unable to determine whether it will be in the next eight years as asserted by the husband or fifteen to twenty years as asserted by the wife.  In any event this is a considerable sum and each will have the capital available to them from that investment some time in the medium to long term future.

14. There was evidence from the wife as to the returns that the husband should have received from the seeds that he purchased particularly in the last two years.  I am satisfied, on the husband’s evidence, that the husband has not hidden assets or income in relation to the agriculture business, however I am equally satisfied that the husband did not have the skills displayed by the wife in relation to that part of the agriculture business. 

15. I am satisfied that the husband will be able to manage the business, with his eldest son, into the future, to ensure that the business is more profitable.

16. The wife says that the husband has earned significant undeclared income from the sale of produce.  She says that in 2008 the husband purchased 493,000 seeds of one type which was a very large quantity.  He purchased 72,400 hundred seeds of another type.  She says that along with these and 80,000 other seeds this converted to an income of about $57,000 in the financial year ended 30 June 2009.  She says that in October 2008 he imported a large number of seeds. 

17. The wife asserts that with all the new seeds purchased this should either show up in stock of seeds or sales.  She says that the accountant Mr I says the market generates net income of $95,000 a year.  She says this is much higher than this and asserts, on the material available to her, that the income should have been $310,647 in the 2009 financial year. 

18. In paragraph 114 of her affidavit the wife seemed to be raising allegations of fraud against the husband and his accountant.  She withdrew those allegations on cross-examination and her only complaint was that the accountant,
    Mr I, was slow in providing information.

19. During her evidence the wife provided details of her knowledge of the industry of growing produce including the acquisition of seeds, the timing, the storage etc.  In addition the wife is mentoring her son in that business and, apart from sales, was very much the driving force in terms of the business.

20. I am satisfied that the wife has a capacity to work in that industry and she has skills to either run her own business or work for companies who run that business.  I am unable to determine the extent of her earning capacity.  It was open for her to seek orders to take the business but because of the circumstances of her relationship breakdown she chose not to do that.  Notwithstanding this she continues to have an earning capacity.

21. Having regard to all of the evidence in respect of the future needs of the parties and having regard to the submissions made by senior counsel for the wife and counsel for the husband I am satisfied there should be an adjustment in favour of the wife of 2.5%.

JUST AND EQUITABLE

1. After considering all of the facts and circumstances in these proceedings and the evidence before me I am satisfied that the property should be divided as to 52.5% to the wife and 47.5% to the husband. 

2. The assets and liabilities of the parties are as follows:-

Description	Retained by	Amount
General furniture and electrical*	Wife	$15,000
Artwork*	Wife	$4,000
Antiques*	Wife	$24,400
Range rover*	Wife	$8,900
FR investment*	Wife	$62,500
Wife’s jewellery*	Wife	$4,725
Cottage and House*	Husband	$1,155,000
General furniture & electrical*	Husband	$4,000
Artwork divided and to be kept by the husband*	Husband	$3,800
Antiques divided and to be kept by the husband*	Husband	$26,600
Vehicle 1964 shell*	Husband	$1,100
Vehicle 1970*	Husband	$6,000
Vehicle 1971 shell*	Husband	$1,000
Pool of vehicle parts*	Husband	$1,200
Boat*	Husband	$8,750
AMP Shares*	Husband	$4,255
FR investment*	Husband	$62,500
Superannuation*	Husband	$37,116
Parties interests in Timber companies shareholdings*	Husband	$2,414,700
X Pty Ltd*	Husband	$15,630
M net assets (all agreed except trade debtors (determined by the court as being $20,000) and trade creditors which I  have dealt with in these reasons)	Husband	$68,431
Agriculture goodwill*	Husband	$128,510
Agriculture seed stock	Husband	$92,640
Agriculture – plant and equipment	Husband	$208,135
Agriculture Toyota Hi-Ace*	Husband	$6,700
Agriculture Toyota Dina refrigerated truck* - this truck is to be sold and the proceeds divided. Therefore it is included in this list but not in the list at the end of the reasons.	Husband	$10,000
Market stall*	Husband	$50,000
Agriculture Trade debtors	Husband	$25,000
Cattle*	Husband	$31,169
Agriculture Tax credit owing	Husband	$20,000
Total Assets	$4,501,761

Liabilities
Wife’s Visa card*	Wife	$8,821
Trade creditors Agriculture business	Husband	$11,600
ANZ loan Agriculture business (shade cloth loan)	Husband	$70,000
Tax liability Agriculture business *	Husband	$137,000
Overdraft Agriculture business *	Husband	$130,000
T Company Pty Ltd	$150,000
Total Liabilities	$507,421

1. The net pool of assets is $3,994,340, less the $10,000 being the Toyota Dina (which is to be sold and proceeds divided) leaving a balance of $3,984,340.

2. In dividing the sum of $3,984,340 in accordance with the above percentage the wife would be entitled to 52.5% ($2,091,778.50) and the husband would be entitled to 47.5% ($1,892,561.50).  The husband will retain the following property:-

Description	Amount
Cottage and House	$1,155,000
General furniture & electrical	$4,000
Artwork divided and to be kept by the husband	$3,800
Antiques divided and to be kept by the husband	$26,600
Vehicle 1964 shell	$1,100
Vehicle 1970	$6,000
Vehicle 1971 shell	$1,000
Pool of vehicle parts	$1,200
Boat	$8,750
AMP Shares	$4,255
FR investment	$62,500
Superannuation	$37,116
Parties interests in Timber companies shareholdings	$2,414,700
X Pty Ltd	$15,630
M net assets (all agreed except trade debtors (determined by the court as being $20,000) and trade creditors which I  have dealt with in these reasons)	$68,431
Agriculture goodwill	$128,510
Agriculture seed stock	$92,640
Agriculture – plant and equipment	$208,135
Agriculture Toyota Hi-Ace	$6,700
Agriculture Toyota Dina refrigerated truck	$0.00
Market stall	$50,000
Agriculture Trade debtors	$25,000
Cattle	$31,169
Agriculture Tax credit owing	$20,000
Total Assets	$4,372,236

1. The husband retains the following liabilities:-

Description	Amount
Trade creditors Agriculture business	Husband	$11,600
ANZ loan Agriculture business (shade cloth loan)	Husband	$70,000
Tax liability Agriculture business	Husband	$137,000
Overdraft Agriculture business	Husband	$130,000
T Company Pty Ltd	$150,000
Total Liabilities	$498,600

1. The wife will retain the following property:-

Description	Amount
General furniture and electrical	$15,000
Artwork	$4,000
Antiques	$24,400
Range rover	$8,900
FR investment	$62,500
Wife’s jewellery	$4,725
Total Assets	$119,525

1. The wife retains the following liabilities:-

Description	Amount
Wife’s Visa card	$8,821
Total Liabilities	$8,821

1. Therefore the husband would need to pay to the wife the sum of $1,981,074.50 give effect to these orders.  This will be done by the husband either making a cash payment to the wife or from the selling property in the event that he is unable to borrow the funds on or before the 1 April 2010.

2. Having regard to all of these facts and circumstances I am satisfied that the outcome is just and equitable.

___________________________________________________________________________

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:     

Date:              14 January 2010